IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.S-45 of 2010
Appellant/Complainant : Dost Muhammad s/o Haji Peer Jan Khan
Through Mr. Saeed Ahmed Bijarani, Advocate
Respondents : Through Messers. Shafi Muhammad Mahar & Gul Muhammad Mahar, Advocate(s)
for private respondents
Mr.Sharafuddin Kanhar, A.P.G
Date of hearing : 28.09.2018
Date of decision : 28.09.2018
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 27.05.2010, passed by learned Assistant Sessions Judge, Kandhkot, whereby the private respondents were acquitted of the offence for which they were charged in case, outcome of FIR Crime No.33/2008, u/s.324, 337-F(v), A(i), 337-H(ii), 147, 148, 149 PPC of P.S A-Section Kandhkot.
2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that; the private respondents together with rest of the culprits, allegedly after having formed an unlawful assembly and in prosecution of their common object, caused lathi blows/injuries to PW Allah Dad with intention to commit his murder and then went away by making aerial firing to create harassment in order to satisfy their matrimonial dispute with the complainant party, for that the present case was registered and they after usual investigation were challaned before the Court of law by the police to face trial for the above said offence.
3. At trial, the private respondents did not plead “guilty” to the charge and the prosecution to prove it, examined PW-01 appellant/complainant Dost Muhammad at Exh.06, produced through him FIR of the present case, PW-02 Allah Dad at Exh.07, PW-03 Mashir Nazar Muhammad at Exh.08, produced through him memo(s) of injuries and arrest of the accused, PW-04 SIO/ASI Muhammad Hassan at Exh.09, produced through him memo of place of incident, PW-05 Mashir Asif Ali at Ex.10, PW-06 medical officer Dr.Muzafar Ali at Exh.11, produced through him provisional as well as final medicate certificates in respect of blows/injuries sustained by the said injured 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. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.
5. However, after close of the side, at the instance of learned counsel for one of the private respondents, Sadaruddin was examined as Court witness.
6. Consequently, after due hearing, 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.
7. It is contended by learned counsel of the appellant/complainant that the appellant/complainant and his witnesses have supported the case of the prosecution on all the material points yet the learned trial Court has acquitted the private respondents of the charge by extending them benefit of doubt, without any justification. By contending so, he sought for conviction for the private respondents for the above said offence.
8. Learned counsel for the private respondents and learned A.P.G for the State have supported the impugned judgment by contending that the injured has sustained injuries on account of his fall from the motorcycle and the appellant/complainant in order to satisfy his enmity with the private respondents after due consultation has involved them in this case falsely and their acquittal by learned trial Court is well reasoned. By In support of their contention they have relied upon case of Azhar Ali vs. the State (PLD 2010 SC-632) and case of Haji Amanullah vs. Muneer Ahmed & Ors (2010 SCMR-222).
9. I have considered the above arguments and perused the record.
10. Appellant/Complainant Dost Muhammad soon after the incident and injured PW Allah Dad as per FIR went at P.S, A-Section Kandhkot but they did not lodge report of the incident, but preferred to be referred to hospital, which appears to be significant. In that situation, the delay of one day in lodgment of the FIR could not be lost sight of. As per appellant/complainant Dost Muhammad, he was having matrimonial dispute with private respondents. If it was so, then the motive if any with the private respondents was against the appellant/complainant and not against his brother PW Allah Dad. As per appellant/complainant, the private respondents besides lathies were also having pistols. If the private respondents would have any intention to kill PW Allah Dad then they would have caused him fire shot injuries and not have chosen to cause him blows/injuries with lathies. The causing of lathi blows/injuries to PW Allah Dad allegedly by the private respondents and others with intention to commit his murder in the said circumstances is not appealing to prudent mind. 161 Cr.PC statement of PW Nazar Muhammad as per him was recorded on 04.03.2008. If it was so, then it was with delay of about seven days to the FIR. No explanation to such delay is offered by the prosecution. 161 Cr.PC statement of PW Allah Dad as per SIO/ASI Muhammad Hassan was recorded on 06.03.2008. If it was so, then it was with delay of about nine days to the FIR. The final medical certificate which is produced on record by the prosecution through medical officer Dr.Muzafar Ali was issued on 01.03.2008. The final medical certificate normally is issued on discharge of the patient. The recording of 161 Cr.PC statement of PW Allah Dad on 06.03.2008, with delay of about five days even after issuance of final medical certificate could not be lost sight of. PW Allah Dad during course of his cross examination stated that his statement was not recorded by the police. Such statement on the part of PW Allah Dad could not be lost sight of. As per appellant/complainant, PW Allah Dad was taken to Agha Khan Hospital at Karachi for treatment of his injuries. As per medical officer Dr.Muzafar Ali, PW Allah Dad was referred by him to Jinnah Post Graduate Medical Centre at Karachi. As per SIO/ASI Muhammad Hassan, the lathies were secured by him from the place of incident on 27.03.2008. It was on next date of the incident. It is not appealing to common sense that the lathies would remain at the place of incident a busy spot for one day without being moved by either of the party. The contention of the learned A.P.G and learned counsel for the private respondents that PW Allah Dad has sustained blows/injuries on account of his fall from the motorcycle in the said circumstances, could not be lost sight of. In these circumstances, the learned trial Court has rightly recorded acquittal of the private respondents by extending them benefit of doubt.
11. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;
“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.PC. Reduces its value to nil unless delay is plausibly explained.”
12. 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.
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 by this Court.
15. In view of facts and reasons discussed above, the instant appeal fails, it is dismissed accordingly.
J U D G E
.