IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-32 of 2014

Appellant/Complainant : Allah Yar s/o Ubedullah Ghanghro

Through Mr.Altaf Hussain Surhio, Advocate

State : Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing : 17.08.2018

Date of decision : 27.08.2018

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 29.04.2014, passed by learned Additional Sessions Judge, Ratodero, whereby the private respondents were acquitted of the charge.

2. The facts in brief necessary for disposal of instant acquittal appeal are that; the private respondents with rest of the culprits, being armed with deadly weapons, by committing trespass into house of appellant/complainant Allah Yar by night after keeping him and his witnesses under fear of death robbed him of his belongings, as are detailed in the FIR, for that the private respondents were booked and challaned by the police before the Court of law.

3. At trial, the private respondents did not plead guilty and prosecution to prove the charge, examined PW-01 appellant/complainant, produced through him FIR of the present case and his further statement, PW-02 Amanullah, PW-03 Aijaz Ali, PW-04 SIP Uris Khan Jatoi, PW-05 mashir Samiullah, produced through him memo of recovery, PW-06 mashir Muhammad Ali, produced through him memo of place of incident, PW-07 SIO/ASI Nizakat Ali, produced through him memo of arrest of accused Asadullah and Sulleman and roznamcha entries No.23 and 24, PW-08 PC Ashiq Ali, PW-9 PC Wasim, produced through him P.R bond and his statement, PW-10 SIO/Inspector Zulfiqar, produced through him certain documents, PW-11 Abdul Fattah, produced through him his statement, PW-12 Muhammad Ismail, produced through him his statement, PW-13 Muhammad Ishaq, produced through him his statement, PW-14 Shah Muhammad, produced through him his statement, PW-15 Roshan Ali, produced through him his statement, PW-16 Qamaruddin, produced through him his statement, PW-17 Ghulam Mustafa, produced through him his statement, PW-18 Muhammad Sulleman, produced through him his statement, PW-19 Hussain Bux, produced through him his statement, PW-20 Abdullah, produced through his statement and then closed the side.

4. The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence by stating that they have been involved in this case falsely on account of political rivalry between their Nekamrds Ali Nawaz and Dr.Abdullah. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.

5. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge by way of judgment, which the appellant/complainant has impugned before this Court, by way of instant Criminal Acquittal Appeal, as stated above.

6. It is contended by learned counsel of the appellant/complainant that the learned trial Court has acquitted the private respondents of the charge without proper appreciation of the evidence and without any lawful justification ignoring the recovery of certain robbed articles from them. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing for further action against the private respondents.

7. Learned A.P.G has supported the impugned judgment.

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

9. The FIR of the incident has been lodged with delay of more than nine hours of the incident, such delay could not be lost sight of, as it is reflecting consultation. The private respondents as per the appellant/complainant and PW Amanullah were identified by them under the light of bulbs. They in that respect are belied by memo of place of incident which makes no disclosure of bulbs at the place of incident. If for the sake of arguments, it is believed that the private respondents were actually identified by the appellant/complainant and PW Amanullah under the light of bulbs, then this appears to be a weak piece of evidence. PW Aijaz Ali was fair enough to state that he has not seen as to who had committed robbery of household articles of appellant/complainant. His such piece of evidence could not be overlooked. If for the sake of arguments, it is believed that the private respondents were actually identified by the appellant/complainant and PW Amanullah at the time of incident then there was no need for them to have tracked the footprint marks of the culprits, such an exercise on their part makes to believe that the incident, if any, actually was un-witnessed. As per appellant/complainant no foot print mark of the culprit was found available at the place of incident. He in that respect was belied by PW/Mashir Muhammad Ali by stating that the foot print marks of the culprits were found visible at the place of incident. Inconsistency in their evidence as is pointed above could not be lost sight of. Indeed, it has reduced the evidentiary value of memo of place of incident. PW Samiullah first mashir to recovery was not examined by the prosecution under the pretext that he is un-well. The inference which could be drawn of his non-examination under the pretext of his being un-well would be that he was not going to support the case of prosecution. The recovery of certain robbed articles from certain private respondents being available in market, on 6^th day of their arrest, from the otaq, which was not in their exclusive possession could hardly connect them with commission of the incident. The property as per SIO/ASI Nizakat Ali and PW/Mashir Samiullah on recovery was sealed at the spot, the same when was produced before the Court was found un-sealed. Who unsealed it? No explanation to it was offered by the prosecution. The evidence of SIO/SIP Zulfiqar Ali and rest of the witnesses hardly carries a value, as it pertains to subsequent investigation which according to appellant/complainant was conducted after one year of the incident. In that situation, the learned trial Court was right to record acquittal of the private respondents of the charge by extending them benefit of doubt by way of impugned judgment, which is not appearing to be arbitrary or cursory to be interfered with by this Court by way of instant Criminal Acquittal Appeal.

10. In case of Faheem Ahmed Farooq vs.The State (2008 SCMR-1572), it is held that;

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

11. It is settled by now that the acquittal carry with it double presumption of innocence and interference with acquittal is narrow and limited, which could only be interfered with when the judgment of the acquittal is found to have been passed in arbitrary and cursory manner.

12. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble 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. Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner.

14. In view of the facts and reasons discussed above, the instant criminal acquittal appeal is accordingly dismissed.

JUDGE