IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-35 of 2017

Appellant/Complainant :      Din Muhammad s/o Dost Muhammad Sarki

Through Mr.Habibullah Ghouri, Advocate

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

Date of hearing               :       17.08.2018          

Date of decision              :       17.08.2018                   

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 09.05.2017, passed by learned 1^st Additional Sessions Judge, Jacobabad, 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 Din Muhammad by night after keeping him and his witnesses under fear of death, robbed him of his gold ornaments and other belongings, as are detailed in the FIR,       for that the present case was registered.

3.                After usual investigation, the private respondents were challaned by the police before the Court of law. At trial, they did not plead guilty prosecution to prove the charge, examined PW-01 appellant/complainant Din Muhammad, produced through him FIR of the present case and his application which he addressed to Senior Superintendent of Police, Jacobabad, PW-02 Abdul Majeed, PW-03 Nasrullah Sarki, PW-04 Mashir Dilmurad, produced through him memo of place of incident, memo of arrest of accused Guhram, memo of arrest of accused Khair Muhammad and memo of recovery of rifle, PW-05 SIO/ASI Tariq Ali 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. 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 lawful justification ignoring the recovery of robbed rifle from one of 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 supported the impugned judgment.

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

9.                The names and descriptions of the accused are not disclosed in the FIR by the appellant/complainant though he has lodged the same with delay of about six days to the incident, which appears to be significant. Nothing has been brought on record by the appellant/complainant, which may prove his ownership over the robbed articles. As per the appellant/complainant, he came to know about involvement of private respondents Khair Jan and Guhram in the incident and then approached them for return of his robbed articles. By stating so, he failed to disclose the source whereby he came to know about involvement of the said private respondents in the incident, which appears to be significant. PWs Nasrullah and Abdul Majeed being residents of different area were chance witnesses to the incident. The identification parade of the private respondents Khair Jan and Guhram before Magistrate at Thull, if any, who were already approached by the appellant/complainant for return of his alleged robbed articles, was hollow formality. As per PW/Mashir Dilmurad, the memo(s) of place of incident and recovery of robbed rifle were prepared by “Munshi”. If it was so, then it belies the contents of said memo(s) that those were prepared by SIO/ASI Tariq Ali.  In that situation, the private respondents could hardly be connected with the recovery of robbed rifle. The Magistrate who allegedly has conducted identification parade of private respondents Khair Jan and Guhram was not examined by prosecution for no obvious reason. In these circumstances, 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.

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 carries 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 be arbitrary.

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, which may justify interference with it.   

14.              Above are the reasons of short order dated 17.08.2018, whereby the instant criminal acquittal appeal was dismissed.

                                                                                                                                                                                          JUDGE

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