IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-64 of 2017

Appellant/Complainant : Sobhraj s/o Lachman Dass in person,

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

Private respondent Abid Hussain in person

Date of hearing : 31.08.2018

Date of decision : 31.08.2018

J U D G M E N T

IRSHAD ALI SHAH. J- The appellant by way of instant Criminal Acquittal Appeal has impugned judgment dated 24.10.2017, of learned Civil Judge & J.M-I, Qamber, whereby he has acquitted the private respondent of the offence, for which he was charged.

2. The facts in brief necessary for disposal of instant acquittal appeal are well disclosed in the FIR, which was lodged by appellant/complainant Sobhraj with P.S Qamber City, which reads as under;

“Complaint is that on 05.02.2016, accused Nazir Ahmed and Sajjad both sons of Roshan Ali Gopang, by putting me under fear of death wrongful restraint encroached upon the shop of “Darbar Wali Wilayat Rai Sahib” by putting locks thereupon, for that I lodged FIR Crime No.21/2016, u/s.341, 448, 506/2, 34 PPC with P.S Qamber City. On 10.02.2016, the possession of the said shop was restored to me by Roshan Ali Gopang the father of said accused. I applied my locks thereon. On 11.02.2016, me and my grandson Advocate Bantilal s/o Ramesh Kumar were going to “Darbar Sahib” when reached adjacent to said shop, there under the light of bulbs, we found that the locks applied therein have been broken and in shop were found sitting Zahid Hussain @ Kaloo having pistol, 2. Abid Hussain with hatchet, both sons of Roshan Gopang r/o Shah Latif Colony Qamber, and two unknown culprits , their faces were open, they could be identified if seen again, they were having lathies, the shop was encroached upon illegally. I asked from them as to why they have encroached upon my shop illegally on that they threatened me to be killed in case I would make demand for possession of the shop. In the meanwhile there came Advocate Tariq Ali son of Mehra Ali Mirjat, r/o Ghoshala Muhalla and other persons. They also seen the accused. Then accused Zahid and Abid by applying their locks on the shop ran away. I went to Koural Shah, the nekmard of the accused but he did not meet me. I then came at P.S to make complaint that above said accused in furtherance of their common intention have encroached upon my shop illegally and have threatened me of murder. I am complainant, action be taken”.

3. After usual investigation the private respondent was challaned by the police before the Court of law. At trial, the private respondent did not plead guilty and prosecution to the charge examined PW-01 appellant/complainant Sobhraj, he produced attested copy of order of learned 3^rd Additional District Judge, Larkana and Extract From Property Register Card and FIR of the present case, PW-02 Bantilal, PW-03 Mashir Aneel Kumar, PW-04 SIO/ASI Munawar Ali, PW-05 Mashir Saifullah and then closed the side.

4. The private respondent in his statement recorded under section 342 Cr.PC denied the prosecution allegation by pleading innocence. He did not examine anyone in his defence or himself on oath in disproof of the prosecution allegation.

5. On evaluation of the evidence, so produced by the prosecution, the learned trial Magistrate acquitted the private respondent of the offence for which he was charged by way of judgment dated 24.10.2017, by way of instant criminal acquittal appeal.

6. It is contended by learned counsel for the appellant that the learned Magistrate has acquitted the private respondent of the charge without any lawful justification and improper appreciation of evidence. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing for further action against the private respondent.

7. It is contended by private respondent in person that he has been involved in this case falsely by the appellant/complainant only to compel him to vacate the shop in his possession without any lawful justification. By contending so, he sought for dismissal of the instant criminal acquittal appeal.

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

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

10. The FIR of the incident has been lodged by the appellant/complainant with delay of one day without any plausible explanation; such delay could not be lost sight of, as it is reflecting consultation. No independent witness is examined by the appellant/ complainant to prove his allegation that the possession of the shop in fact was restored to him by the private respondent through his father Roshan Ali. PW Tariq Ali being independent witness has not been examined by the prosecution for no obvious reason. The inference which could be drawn of his non examination would be that he was not going to support the case of prosecution. PW Bantilal could hardly be relied upon being interested witness as he admittedly is grandson of the appellant/complainant. In that situation, the contention of the private respondent that he has been involved in this case falsely by the appellant/complainant to compel him to vacate the shop in his possession without lawful justification could not be lost sight of. In these circumstances, the learned trial Magistrate was right to record acquittal of the private respondent of the charge by extending him benefit of doubt.

11. 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.

12. 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.

13. 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”.

14. Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Magistrate in arbitrary or cursory manner, which may call for interference by this Court by way of instant criminal acquittal appeal, it is dismissed accordingly.

JUDGE