IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-24 of 2015

Appellant/Complainant :      Asif Parvaiz s/o Abdul Fattah Mahar

Through Mr.Shakeel Ahmed Ansari, Advocate

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

Date of hearing               :       14.09.2018          

Date of decision              :       14.09.2018                   

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 17.09.2015, passed by learned 3^rd Civil Judge & Judicial Magistrate, Shikarpur, whereby the private respondents were acquitted by him of the offence outcome of FIR/Crime No.72/2014, u/s.506/2,384,148,149 PPC of P.S Rustam. 

2.                The facts in brief necessary for disposal of instant criminal acquittal appeal are that; the private respondents with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, being armed with deadly weapons, allegedly committed mischief by letting the drainage water to flow in the lands of the appellant/complainant, occupied the same by force, demanded from appellant/complainant “Bhatta” of rupees ten Lacs to vacate it and threatened him of murder, for that they were booked and challaned in the present case.

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 Mashir Ali Nawaz, produced through him memo of place of incident, PW-03 SIO/SIP Ali Asghar 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 by the appellant/complainant on account of his dispute with them over landed property. In support of their contention, they produced the agreement. In first instance, they did not want to examine anyone in their defense but at later stage by way of an application under section 540 Cr.PC examined DWs Abdul Nabi and Ameer Bux in their defense. They did not examine 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. 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 FIR of the incident has been lodged with delay of about one month; such delay in lodgment of the FIR could not be lost sight of, indeed it is reflecting consultation. The appellant/ complainant has not been able to produce any document at trial which may prove his ownership over the land which allegedly was occupied by the private respondents. PW Anwar Ali was given up by the prosecution. His non-examination without any cogent reason prima facie indicates that he was not going to support the case of prosecution. As per DWs Abdul Nabi and Ameer Bux, the parties are disputed over the landed property. If it was so, then it apparently was caused with the appellant/complainant to involve the private respondents in the instant litigation perhaps with a view to have settlement. In these circumstances, the learned trial Magistrate was right to order for acquittal of the private respondents of the offence for which they were charged 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 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.              Above are the reasons of short order dated 14.09.2018, whereby the instant criminal acquittal appeal was dismissed.

                                                                                                JUDGE

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