IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.D-23 of 2013

Appellant/Complainant : Khalil Ahmed s/o Noor Muhammad Shaikh

Through Mr.Habibullah Ghouri, Advocate

Respondent No.1 : Ashfaq Ahmed s/o Aslam Shaikh

Through Mr.Athar Abbas Solangi,

Advocate

Respondent No.2 : The State through Mr.Sharafuddin Kanhar,

A.P.G

Date of hearing : 03.09.2018

Date of decision : 03.09.2018

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned the judgment dated 11.04.2013, passed by learned 2^nd Additional Sessions Judge, Larkana, in Sessions Case No.232 of 2008, arisen out of Crime No.27/2008, registered at P.S Darri, under section 302 PPC, whereby he has acquitted the respondent No.1 of the charge.

2. The facts in brief necessary for disposal of instant acquittal appeal as narrated in the FIR are that; the respondent No.1 who happened to be husband of deceased Mst.Aneela committed her murder by setting her on fire while she was running pregnancy of seven months, for that the present case was registered against him and he after usual investigation was challaned by the police to face trial for the above said offence before the Court of law.

3. At trial, the private respondent did not plead guilty to the charge and prosecution to prove it, examined PW-01 appellant/complainant, who produced FIR of the present case, PW-02 Zubair Ahmed, PW-03 PC Jameel Ahmed, who produced copy of N.C report, PW-04 Dr.Shahida, who produced postmortem report on the dead body of said deceased, PW-05 Mashir Javed, who produced memo of examination of dead body of said deceased, memo of place of incident and recovery of burnt clothes of the said deceased, PW-06 Abdul Waheed, PW-07 Rasheed Ahmed, who produced copy of his 164 Cr.PC statement, PW-08 SIO/Inspector Parvez Ali, who produced Lash Chakas Form and Danistnama on the dead body of said deceased, medico legal certificate issued by medical officer (legal) Civil Hospital Karachi, letter of RMO Civil Hospital Karachi for recording statement of the deceased, roznamcha entries and report of chemical examiner, PW-09 SIO/SIP Mukhtiar Ali, who produced attested copy report of chemical examiner and report of Additional Superintendent, Burn Centre, Civil Hospital Karachi , PW-10 HC Ali Dino, who produced receipt whereby the dead body of deceased was acknowledged by one Shakeel Ahmed, PW-11 Mr.Ghulam Farooq Shaikh, the then Civil Judge & Judicial Magistrate, Larkana, who produced 164 Cr.PC statement of PW Zubair Ahmed.

4. The respondent No.1 in his statement recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence by stating that;

“The death of my wife Mst.Aneela was caused due to inefficiency, incompetency and lack of knowledge of Dr.Rasheed Ahmed Mangi, he has never treated any burns patient in life, nor has such experience. He had not given first aid to my wife which is very essential for saving the life of burns patient. He neither bother to call specialist of burns, chest, heart and eyes to examine her, diagnosis her and suggest first aid treatment. Complainant Khalil intentionally and unintentionally politicized cause of her death by not admitting in Burns Ward at Larkana nor getting treatment for specialist, so also he did not admitted her in burns Ward Civil Hospital Karachi, he firstly went to Agha Khan Hospital knowing that there is no Burns Ward at Agha Khan Hospital Karachi, where various tests were conducted by doctors and almost 5 to 6 hours were wasted at Agha Khan Hospital. I produce three original test repots of Agha Khan Hospital, dated 01.02.2008, timing 1237 hours, another test 1245 hours and third radiological report. The complainant Khalil Ahmed brought my wife at burns Ward after wasting 5/6 hours, precious time of my wife and admitted her Burns Centre, Civil Hospital, Karachi at 02.55 P.M. Time is disclosed in medico legal certificate issued by Burns Centre, as well as death certificate. Because of the negligency of doctors and complainant Khalil, my wife has expired. Inspite of burns 30 % and like case there are patient in good health, as they are timely treated by the doctors. I am innocent and pray for justice”.

He, however, did not examine anyone in his defense or 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 respondent No.1 of the offence for which was charged by way of judgment, which the appellant/complainant has impugned before this Court, by way of instant Criminal Acquittal Appeal.

6. It is contended by learned counsel of the appellant/complainant that the learned trial Court has acquitted the respondent No.1 of the offence on the basis of improper appreciation of the evidence, which was otherwise strongly corroborated by attaining circumstances. By contending so, he sought for conviction against the private respondent.

7. Learned counsel for the respondent No.1 has sought for dismissal of the instant criminal acquittal appeal by contending that the respondent No.1 has been acquitted by learned trial Court by assigning cogent reasons, as he was involved in this case falsely by the complainant party only to settle the dispute with him on matrimonial affairs.

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

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

10. Admittedly, the FIR of the incident has been lodged with un-plausible delay of eight days, which could not be lost sight of. Neither the complainant nor any of his witness has seen the respondent No.1 committing the alleged incident, they allegedly went at the place of incident on information which was communicated to them by inmates of house of the respondent No.1. The involvement of the respondent No.1 in this case on the basis of gesture and disclosure of the deceased is not free from doubt. If for the sake of arguments it is believed that the deceased actually disclosed before the complainant and his witnesses that it was the respondent No.1 who had set her on fire, then the complainant party was under lawful obligation to have got recorded the dying declaration of the deceased, which was not done by the complainant party for no obvious reason, which has made the implication of the respondent No.1 with the alleged offence doubtful. The deceased indeed was unfit to make any statement before the police as is evident by the letter, which was addressed by ASI Ghulam Mustafa to RMO Burns Ward, Civil Hospital, Karachi. No much reliance could be placed upon report of chemical examiner, as scarf, brazier and burnt shirt of the deceased were sent to him with delay of about one month. As per history sheet of the deceased issued by authority at Burn Centre, Civil Hospital Karachi, produced by SIO/SIP Parvez Ali, the deceased caught fire while working in the kitchen. If such report is believed to be true, then it makes the involvement of the respondent No.1 in this case to be doubtful one. 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.

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 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.

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 Court in arbitrary or cursory manner, which may justify making interference with it.

15. Above are the reasons of our short order dated 03.09.2018, whereby the instant criminal acquittal appeal was dismissed.

JUDGE