IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S-12 of 2015

Before:-

Mr.Justice Irshad Ali Shah

Appellant : Muhammad Yousif s/o Muhammad Eidan,

Through Mr. Ghulam Shabir Dayo, Advocate

Respondents. : 1. Qurban son of Abdul Sattar Shaikh
2. Akhtiar son of Kouro @ Koural

3. Hadi Bux son of Kouro @ Koural

4. Ghulam Nabi son of Dodo Shaikh

5. Wali Muhammad son of Akan

Through Mr. Muhammad Qayoom Arain

State : Through Mr. Shafi Muhammad Mahar, D.P.G

Date of hearing : 13-05-2019.

Date of decision : 13-05-2019.

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant/complainant by way of Instant Cr. Acquittal Appeal has impugned judgment dated 28-01-2015, passed by learned IInd Assistant Sessions Judge, Khairpur, whereby he has acquitted the private respondents 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 after having formed an unlawful assembly and in prosecution of their common object by using criminal forced caused, butt, lathies and knife injuries to appellant/complainant with intention to commit his murder, then went away by insulting him, for that the present case was registered.

3. At trial the private respondents did not plead guilty to the charge and prosecution to prove it examined PW/1 appellant/complainant at (Ex. 8), he produced FIR of the present, PW/2 Pervaiz Ali at (Ex. 9), PW/3 Naveed Ali at (Ex.10), he produce memo of injuries, arrest and recovery, PW/4 HC Muhammad Ali, he produced police letter and rozanmacha entry, PW/5 Dr. Inayat Ali at (Ex. 12), he produced medical certificate in respect of injuries sustained by the appellant/complainant together with ancillary documents, PW/6 SIO/SIP Jamsher Ali and then closed the side.

4. The private respondents in their statements recorded u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence, they did not examine themselves on oath, but examined DWs Sanaullah, Ghulam Mustafa, Ahmed Din and Muhammad Qasim in their defence to prove their innocence.

5. On evaluation of evidence, so produced by the prosecution, the learned trial Court acquitted the private respondents by way of the judgment which is impugned by the appellant/complainant before this Court by way of instant Cr. Acquittal Appeal.

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

7. The D.P.G for the State and learned counsel for the private respondents/accused by supporting the impugned judgment have sought for dismissal of instant Cr. Acquittal Appeal.

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

9. The FIR of the incident has been lodged with delay of two days, such delay having not being explained plausibly by the prosecution as such same could not be lost sight of, such delay indeed has made the version of the complainant as doubtful one.

10. 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”.

11. PW Muneer Ahmed has not been examined by the prosecution without lawful justification. Inference which could be drawn of his non-examination would be that he was not going to support the case of prosecution. PW Pervaiz Ahmed was son of the appellant/complainant, he such as such was having reason to support his father, the appellant/complainant. His evidence is not worth reliable. In these circumstances, learned trial Court was right to record their acquittal of the private respondents by extending them benefit of doubt.

12. In case of Tarique Bashir 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.”

13. Admittedly the principal for hearing appeal against conviction and acquittal are different. The acquittal could only be examined when it is found to have been recorded in arbitrary and cursory manner.

14. 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”.

15. Nothing has been brought on record, which may suggest that the private respondents have been acquitted by trial Court in arbitrary or cursory manner, which may justify this Court to make interfere with the acquittal of the private respondents, by way of instant Cr. Acquittal Appeal. It is dismissed accordingly.

JUDGE

Nasim/P.A