HIGH COURT OF SINDH AT KARACHI

 

Criminal Acquittal Appeal No. 29 of 2019

 

 

Appellant             :         Mst. Rida w/o Mohammad Faizan

                                      through Mr. S. Abdul Waheed, Advocate  

 

Respondent No.1 :         The State

 

Respondents No.2-3:     None present for Mohammad Aslam &

Mohammad Alam, as notice not issued to them.

                                     

Date of hearing     :        16.4.2019

 

Date of Judgment :        16.4.2019

 

 

J U D G M E N T

 

 

Abdul Maalik Gaddi, J.–   The captioned appeal is directed against the judgment dated 20.11.2018, passed by the learned XXI-Judicial Magistrate, Karachi East, in case crime No. 257/2013 registered under Sections 147, 148, 149, 392 and 354 PPC at P.S KIA, Karachi, whereby the said Magistrate, after full dressed trial, while extending benefit of doubt, acquitted the accused under Section 245(i) Cr.P.C.

         

2.       Brief facts of the case are that complainant namely Mst. Rida w/o Faizan has lodged the FIR on 08.8.2013 at 1146 hours with Police Station KIA, stating therein that on 27.7.2013 she was present in her house at 2000 hours accused persons namely Muhammad Aslam, Muhammad Alam entered in the house while 15/20 persons were standing outside of the house, committed robbery of three mobile phones, two gold bangles, gold locket cash amount of Rs.50,000/-, robbed cash amount of Rs.5000/-, ATM card from Faizan three bracket fan and others documents, three gold rings, ear rings pair, thereafter they entered from the window and took cash amount of Rs.2,50,000/-, mobile phone, fourteen mobile cards. Accused persons also misbehaved with the Hira Abid. After getting order from Honorable 4th Additional Sessions Judge Karachi East she lodged the FIR.

 

3.       It appears from the record that trial Court framed the charge against the accused persons at Ex.02, to which they did not plead guilty and claimed to be tried vide their pleas at Ex.02-A and 02-B.

 

4.       The prosecution, in order to prove the allegation against the accused has examined PW-01, Rida Faizan, who produced the photocopy of application moved by the complainant to SHO police station KIA, she also produced the certified copy of order dated 06.08.2013 passed by IVth Additional Sessions judge Karachi East in Cr. Misc. Application No.1353/2013 at Ex.03-03-B, statement recorded under Section 154 CrPC at Ex.03-C, FIR at Ex.03-D, memo of site inspection at Ex.03-E, prosecution examined PW-02 Muhammad Faizan at Ex.04. PW No.3 Muhammad Ashiq at Ex.05. PW-04 Hira Abid at Ex.06. PW-05 Abid Hussain at Ex.07. Statement of process server was recorded at Ex.08, who submitted his report at Ex.08-A, NBW of I.O at Ex.08-B and copy of death certificate of I.O at Ex.08-C, evidence of PW-07 SIP Muhammad Umar Khattak was recorded at Ex.09. These witnesses were cross-examined by the learned counsel for respondents No.2 and 3 and on 28.7.2018 learned ADPP for the state filed statement, closing side of prosecution, which was kept on record at Ex.10.

 

5.       The statements of the accused persons were recorded under Section 342 CrPC at Ex.11 and 12, in which they have denied the allegation as leveled against them. However, neither they examined themselves on oath nor led any evidence in their defence.

 

6.       Mr. S. Abdul Hameed, learned counsel for appellant contended that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record; that the ground on which the trial Court proceeded to acquit the accused persons are not supportable from documents and evidence on record. He further submitted that the respondents have been directly charged and that the discrepancies in the statement of witnesses are not so material on the basis of which accused persons could be acquitted. He further contended that the learned trial Court has based its findings of acquittal mainly on the basis of minor contradiction on non-vital point in the statement of prosecution witnesses and the prosecution evidence has not been properly appreciated. Therefore, under these circumstances, he was of the view that this appeal may be allowed as prayed.

 

7.       I have heard the learned counsel for appellant at a considerable length and have gone through the documents and evidence on record and come to the conclusion that the prosecution has failed to establish its case against the accused persons for the reasons that the alleged incident took place on 27.7.2013, whereas the FIR of the incident was lodged on 08.8.2013 by complainant Mst. Rida after the delay of about 11 days without any plausible explanation. It has come on record that the parties have already lodged FIRs against each other over property. This aspect of the case shows that parties are already having inimical terms with each other. Therefore, false implication of the accused persons in this case cannot be ruled out. During the course of arguments, I have read the evidence of the prosecution witnesses with the able assistance of learned counsel for appellant and noted number of contradictions on material particulars of the case and these contradictions have already been pointed out/ highlighted by the learned trial Court in its impugned judgment, which are as under:

“Complainant in her statement had stated that they were sitting at home after Iftar Time at about 8 P.M. while PW: Hira Abid in her chief stated the time of occurrence at Magrib Azan.

Complainant in her FIR had mentioned that accused persons robbed cash amount of Rs.50000/- from her but she did not depose the same in her chief examination. It further appears from the complainant at the time of trial made improvements in her statement as she in her chief examination deposed that Muhammad Aslam had beaten her and her cloths were torn but the same facts were disclosed by her in FIR, neither that shirt was seized as case property nor same was produced before the court.

Complainant in her chief examination had also made improvement that accused person entered in the shop through the window, while PW.03 Muhammad Faizan deposed that accused persons entered in the shop through Door of the house.

PW:2    Muhammad Faizan in his cross-examination had admitted that there is dispute between complainant and accused persons on property. He further admitted that accused persons are the owners of shop and house of complainant.

PW:4    Hira Abid in her cross-examination admitted that many FIR have been registered by her father against the accused persons.”

 

8.       During the course of arguments, when these contradictions were confronted to learned counsel for appellant for reply, he has not satisfied this Court. Moreover, learned counsel for appellant also could not show the specific part of the judgment, wherein the learned trial Court has committed any gross illegality. I have gone through the case-law reported as Inamullah vs. The State and 2 others (2010 PCrLJ 1375), wherein it has been held that once an accused was acquitted by the competent court of law after facing agonies of protracted trial then he would earn the double innocence, which could not be disturbed by the Appellate Court lightly.

 

9.       Whatever mentioned above, more particularly in the light of case-law referred to above, I reach at the irreversible conclusion that the appellant has miserably failed to prove its case against the accused persons, therefore, no interference in the impugned judgment is required by this Court, as it is well reasoned and of-course speaking one. Resultantly, the instant criminal acquittal appeal, being devoid of any merit is hereby dismissed in limine.

 

JUDGE

asim/pa