IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 38 of 2019

 

 

           

Appellant/Complainant :           Muhammad Khan Bhutto through

Mr. Ubedullah Ghoto Advocate

 

Respondent                  :         The State, through  Mr. Shafi Muhammad

Mahar, Deputy Prosecution General

                                                           

                                                           

Date of hearing               :       29.04.2019

Date of decision             :       29.04.2019          

 

JUDGMENT

 

IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant criminal acquittal appeal as per the appellant/complainant are that the private respondents allegedly after having formed an unlawful assembly and in prosecution of their common object outraged modesty of Mst. Shabana by cutting the hairs of her head for that they were booked and reported upon by the police.

2.                 At trial, the private respondents did not plead guilty to the charge and prosecution to prove it, examined appellant/complainant and his witnesses and then closed the side.

3.                 On evaluation of evidence so produced by the prosecution, learned 1st Civil Judge and Judicial Magistrate, Ubauro acquitted the private respondents of the charge by way of judgment dated 14.02.2019, which his impugned by the appellant/complainant before this Court by way of instant Criminal Acquittal Appeal.

4.                It is contended by learned counsel of the appellant/complainant that learned trial Court has acquitted the private respondents of the charge without lawful justification and on the basis of improper appraisal of the evidence. By contending so, he sought for adequate action against the private respondents.

5.                 Learned DPG for the State by supporting the impugned judgment has sought for dismissal of the instant Criminal Acquittal Appeal by contending that it is well-reasoned.

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

7.                The FIR of the incident has been lodged with delay of about 16 hours, that too after consultation with elders, same as such could not be overlooked, which has made the version of the complainant to be doubtful.

8.                In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble 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”.

 

9.                The scissor and the hairs of Mst. Shabana which were cutout allegedly by the private respondents, it is said were secured with delay of ten days even to FIR. No person of prudent mind would keep with him such like things, which is to be used against him as an evidence; parties it is said are already disputed over matrimonial affairs. In that situation, learned trial Court was right to record the acquittal of the private respondents by extending them benefit of doubt.

10.              In case of Tarique Pervez vs. The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;

“For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.”

 

11.              Admittedly, the principle for hearing of appeal against acquittal and conviction are altogetherly different. The acquittal could only be interfered with when it is found to have been recorded in arbitrary and cursory manner.

12.              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”.

 

 13.             In view of the facts and reasons discussed above, the instant Criminal Acquittal Appeal is dismissed accordingly.

 

                                                                                 Judge

 

 

ARBROHI