IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Criminal Acquittal Appeal No.D-82 of 2011
Before:-
Mr.Justice
Muhammad Iqbal Mahar
Mr.Justice
Irshad Ali Shah
Appellant :
Muhammad Pathan s/o Razi Khan Kalwar,
Through Mr. Hadi Bux Bhatt, Advocate
Respondents. : 1. Manzoor Ahmed son of Gajjan.
2. Ghulam Shabbir son of Bashir Ahmed.
3. Aijaz Ali son of Ali Sher.
4. Mujahid son of Muhammad Ramzan.
All bycaste Kalwar. Through Mr. Ghulam
Shabbir Dayo.
State : Through
Mr. Aftab Ahmed Shar, A.P.G
Date of
hearing : 02-05-2019.
Date of decision : 02-05-2019.
J U D G M E N T
IRSHAD
ALI SHAH, J.- The appellant/complainant by way of instant appeal has
impugned judgment dated 06-10-2011, passed by learned 1st Additional
Sessions Judge, Sukkur, whereby he has acquitted the private respondents/accused
of the offence for which they were charged.
2. The fact in
brief necessary for disposal of instant Cr. Acquittal Appeal are that the
private respondents with rest of the culprits after having formed unlawful
assembly and in prosecution of common objection by committing trespass in house
of appellant/complainant fired and injured Saeedullah with intention to commit
his murder, who died at hospital, for that they were booked and reported upon.
3. At trial,
the private respondents and co-accused Sajjad Hussain did not plead guilty to
the charge and prosecution to prove it examined PW/1 appellant/complainant
Muhammad Pathan at Ex. 26, he produced copy of FIR at Ex. 26/A, PW/2
Faheemullah at Ex. 27, PW/3 Asadullah at Ex. 28, PW/4 Dr. Muhammad Abdullah at
Ex. 29, he produced inquest report at Ex. 29/A and post mortem report at Ex.
29/B, PW/5 mashir Hafiz Muhammad Siddiq at Ex. 30, he produced memo of injuries
at Ex. 30/A, memo of vardat at Ex. 30/B, PW/6 mashir Hamidullah at Ex. 31, he
produced memo of examination of dead body of the deceased at Ex. 31/A, Danistnama
at Ex. 31/B, memo of clothes of deceased at Ex. 31/C, memo of arrest of accused
at Ex. 31/D, PW/7 Mehboob Ali at Ex. 32, PW/8 ASI Allah Dino at Ex. 33, he
produced Dasnistnama at Ex. 33/A, case diary at Ex. 33/B, PW/9 Inspector Hafiz
Rehman at Ex. 34, PW/10 PC Rafique Ahmed at Ex. 35, PW/11 Tapedar at Ex. 37, he
produced copy of sketch at Ex. 37/A and then closed the side vide statement at
Ex. 38.
5. The statements
of private respondents/accused and co-accused Sajjad Hussain were recorded
under section 342 Cr.P.C at Ex. 39 to 43 wherein they denied the prosecution allegation
by pleading innocence, they did not examine themselves on oath or anyone in
their defence, but produced certain documents to prove their innocence.
6. On
evaluation of evidence, so produced by the prosecution, the learned trial Court
convicted co-accused Sajjad Hussain and sentenced him to undergo imprisonment
for life and to pay fine of Rs. 200,000/- and in default in payment whereof to
undergo R.I for six months for an offence punishable u/s 302(b) PPC for having
committed murder of Saeedullah while acquitted private respondents/accused of
the offence for which they were charged, such acquittal of the private
respondents/accused is impugned by the appellant/complainant by way of instant
Crl. Acquittal Appeal before this Court.
7. It is
contended by learned counsel of the appellant/complainant that learned trial
Court has recorded acquittal of the private respondents/accused without lawful
justification. By contending so he sought for adequate punishment for the
private respondents/accused.
8. The A.P.G
for the State and learned counsel for the private respondents/accused by
supporting the impugned judgment has sought for dismissal of instant Cr.
Acquittal Appeal.
9. We have
considered the above arguments and perused the record.
10. The specific role of committing death
of deceased is attributed to co-accused Sajjad Hussain, who now has been
convicted, Role attributed to the private respondents/accused in commission of
incident is only to the extent of instigation and/or making aerial firing,
which is hardly proved of evidence. In
that situation, it would be safe to conclude that the prosecution has not been able
to prove the involvement of the private respondents in commission of incident
beyond shadow of doubt. In these circumstances, learned trial Court was right
to record their acquittal of the private respondents/accused by extending them
benefit of doubt, such acquittal is neither appearing to be arbitrary nor
cursory to be interfered with by this Court.
11. In
case of State & ors vs. Abdul Khaliq
& ors (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”.
12. In view of
the facts and reasons discussed above, the instant Criminal Acquittal Appeal is
dismissed accordingly.
JUDGE
JUDGE
Nasim/P.A