IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-05 of 2015

Appellant/Complainant : Waqar Ahmed s/o Saeed Ahmed Khoso

Through Mr.Athar Abbas Solangi, Advocate

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

Date of hearing : 17.09.2018

Date of decision : 17.09.2018

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 25.03.2015, passed by learned 1^st Civil Judge & Judicial Magistrate, Jacobabad, whereby the private respondent was acquitted of the offence outcome of FIR/Crime No.04/2013, u/s.392, 34 PPC of P.S Garhi Hassan.

2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that; the private respondent with rest of the culprits, in furtherance of their common intention, being armed with deadly weapons, robbed the appellant/complainant and his witnesses of their motorcycle, for that the present case was registered.

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, PW-02 Asad Mehmood, PW-03 Mashir Abdul Jabbar, PW-04 SIO/ASI Hidayatullah, PW-05 SIO/ASI Muhammad Azeem and then closed the side.

4. The private respondent in his statement recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence by stating that he has been involved in this case falsely by the appellant/complainant. He also examined DW Gulab in his defense and himself 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 respondent 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 recorded acquittal of the private respondent on the basis of improper appreciation of the 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. Learned A.P.G supported the impugned judgment.

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

9. As per appellant/complainant and PW Asad Mehmood, they with PW Abdul Hameed were going to their village through their motorcycle. The travelling by three persons through a single motorcycle is appearing to be somewhat significant. Be that as it may, it was further stated by them that when they reached near to village Mir Muhammad Khoso; they were confronted by the private respondent and others who by pointing their weapons robbed them of their motorcycle. Nothing has been brought on the record by the appellant/complainant or PW Asad Mehmood, which may suggest that they actually were having a motorcycle in their ownership at the time of incident, which has made the robbery of motorcycle to be doubtful one. Their evidence is inconsistent on the point of raising cries at the time of incident. PW Abdul Hameed was not examined by the prosecution. His non-examination without any lawful justification prima facie indicates that he was not going to support the case of prosecution. There is no recovery of any sort from the private respondent on his arrest. As per private respondent, he has been involved in this case falsely by the appellant/complainant on account of his dispute with him over a plot. In these circumstances, the learned trial Court was right to order for acquittal of the private respondent of the charge by extending him 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 until and unless it is found to have been passed in arbitrary or 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, which may call for interference.

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

JUDGE