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