IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-06 of 2013

Appellant/complainant: Agha Farhan Ali s/o Agha Deedar Hussain

Through Mr.Habibullah Ghouri, Advocate

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

Date of hearing : 05.09.2018

Date of order : 05.09.2018

O R D E R

IRSHAD ALI SHAH, J.- The appellant by way of instant Criminal Acquittal Appeal has impugned judgment dated 09.01.2013, passed by learned 1^st Additional Sessions Judge, Shikarpur, 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 unknown culprit allegedly being armed with deadly weapons, after having formed an unlawful assembly and in prosecution of their common object, by using criminal force, fired at appellant/complainant Agha Farhan Ali and his witnesses with intention to commit their murder and then went away by making aerial firing to create harassment, eventually Agha Deedar Hussain father of the appellant/complainant died after sustaining heart attack. The incident accordingly was reported by the appellant/complainant to the police.

3. On investigation, the private respondents were challaned by the police before the Court of law. They did not plead guilty to the charge and prosecution to prove it, examined PW-01 appellant/ complainant Agha Farhan Ali, produced through him FIR of the present case, PW-02 Nizamuddin, PW-03 Javed Akhtar, PW-04 Mashir Lala Sarfraz Ahmed, produced through him memo of place of incident, PW-05 SIO/SIP Muhammad Yousif, PW-06 SIO/SIP Sudheer Ahmed and then closed its’ side.

4. The private respondents in their statements recorded under section 342 Cr.PC pleaded innocence by denying the prosecution allegations. They in order to prove their innocence produced certain documents. They did not examine themselves on oath or any one in their defence.

5. On evaluation of the evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the offence for which they were charged by extending them benefit of doubt, by way of impugned judgment.

6. It is contended by learned counsel for the appellant/complainant that the learned trial Court has acquitted the private respondents of the charge without proper appraisal of the evidence. By contending so, he sought for action against the private respondents in accordance with law.

7. Learned A.P.G has sought for dismissal of the instant appeal by supporting the impugned judgment by contending that the very case on further investigation conducted by SIO/Inspector Zulfiqar Ali Khuhawar was found to be false.

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

9. The FIR of the incident has been lodged by the appellant/complainant with delay of one day; such delay according to him occurred as he was busy in funeral of his father Agha Deedar Hussain who allegedly died of heart attack at the time of incident. No document is produced by the appellant/complainant to show that his father Agha Deedar Hussain actually died of heart attack at the time of incident. In that situation, the delay in lodging of the FIR being un-plausible could not be lost sight of. As per appellant/complainant and his witnesses, the fires allegedly made at them by the private respondents, they managed to save by falling on the ground. The straight fires made with intention to commit murder of someone within very close range could hardly be managed by falling on the ground. In that situation, the allegation of firing by the private respondents at the appellant/complainant and his witnesses with intention to commit their murder is appearing to be doubtful one. The allegation leveled by the appellant/complainant on further investigation conducted by SIO/Inspector Zulfiqar Ali Khuhawar as per learned A.P.G was found to be false. The parties admittedly are disputed over installation of iron-pipe in their street to prevent flow of traffic. In these circumstances, the learned trial Court was right to record acquittal of the private respondents 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. Needless to state that, the acquittal carries with it double presumption of innocence and interference with acquittal is narrow and limited until and unless the acquittal is found to have been recorded 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. The acquittal of the private respondents by learned trial Court by way of impugned judgment could hardly be said to have been recorded in arbitrary or cursory manner, which may call for interference by this Court.

14 In view of above, the instant criminal acquittal appeal is dismissed accordingly.

JUDGE