ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acquittal Appeal No. S – 30 of 2019

Date Order with Signature of Hon’ble Judge

For hearing of main case

01.04.2019

Mr. Faiz Muhammad Leghari Advocate for the Appellant

Mr. Aftab Ahmed Shar, Additional PG for the State

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Irshad Ali Shah, J;-. The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 01.02.2019 passed by learned Additional Sessions Judge Moro, whereby the private respondents have been acquitted of the offence for which they were charged.

2. The facts in brief necessary for disposal of instant Criminal Acquittal Appeal as per the appellant/complainant are that the private respondents after having formed an unlawful assembly and in prosecution of their common object during course of robbery, caused hatchet and dagger blows to P.Ws Hamid Ali and Abdul Ghaffar with intention to commit their murder, for that they were reported upon by the police to face the trial.

3. At trial, the private respondents denied the charge and prosecution to prove it examined appellant/complainant and his witnesses and then closed its side.

4. The private respondents during the course of their examination u/s 342 Cr.P.C denied the prosecution allegations by pleading innocence, they did not examine anyone in defence or themselves on oath, but produced certain documents to prove their innocence.

5. On evaluation of evidence, so produced by the prosecution, the private respondents were acquitted of the offence for which they were charged by learned trial Court, such acquittal is impugned by the appellant/complainant before this Court by way of instant Criminal Acquittal Appeal, as stated above.

6. It is contended by learned counsel for the appellant/complainant that the prosecution was able to prove its case beyond shadow of doubt through cogent evidence, yet the private respondents have been acquitted of the offence by the learned trial Court without lawful justification. By contending so, he sought for adequate action against the private respondents.

7. Learned Additional PG for the State has sought for the dismissal of instant Criminal Acquittal Appeal by contending that the impugned judgment is well reasoned.

8. I have considered the above arguments and perused the record.

9. The incident it is said has taken place on 13.07.2017. The direction for recording of FIR was obtained by the appellant/complainant from the learned Ex-Officio Justice of Peace having jurisdiction on 25.07.2017 while FIR of the incident is lodged with police on 29.07.2017, such delay could not be overlooked as it reflects consultation and deliberation.

10. In case of Mehmood Ahmed and others vs. the State and another (1995 SCMR-127), it has been observed by the Hon’ble Apex Court that;

“Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

11. Learned trial Judge by recording the acquittal of the private respondents has made the following valid observation;

“No doubt, the PWs during their examination-in-chef had implicated the above named accused person in this case but during their cross examination they had made some contradictions and admission which had highly effected upon the veracity of witnesses, such as the complainant had admitted that copy of NC entry No.19 at Ex.04-B does not show any kind of incident of dacoity with him and even not any denomination or currency number had been disclosed by the complainant and his P.Ws. The complainant had further admitted that the names of all accused persons are not mentioned in the said entry. Complainant had further admitted that when he came at P.S he was in complete sense but on the same day of incident he had not lodged the FIR against the accused persons and had further admitted that there is no independent witness in this case from besides village of place of incident. He (complainant) had further admitted that the accused persons had challenged their medico legal certificates before the medical board and had further admitted that he does not known that the medical board had kept their medical certificates in abeyance due to their non appearance before the board and even he had further admitted that he had not applied to the medical board for reopening/restoration of their MLCs.”

12. The very case on investigation as per ASI/SIO Muhammad Hussain was found to be false and recommended to be cancelled under ‘B’ class. In these circumstances, learned trial Court was right to record acquittal of private respondents by extending them benefit of doubt.

13. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it has been held by the Hon’ble Apex Court that;

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

14. No justification is available which may call for making interference with the impugned judgment, consequently instant Criminal Acquittal Appeal fails and it is dismissed accordingly.

Judge

ARBROHI