IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-74 of 2017

Appellant : Abdul Malik s/o Atta Muhammad Soondhro

Through Mr.Mazhar Ali Bhutto, Advocate

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

Date of hearing : 03.10.2018

Date of decision : 03.10.2018

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/PW by way of instant Criminal Acquittal Appeal has impugned judgment dated 23.11.2017, passed by learned 2^nd Assistant Sessions Judge, Shikarpur, whereby the private respondent was acquitted of the offence, for which he was charged.

2. It is alleged that the private respondent with rest of the culprits, in furtherance of their common intention, caused fire shot injuries to PW Muhammad Qasim on his thigh with his gun, with intention to commit his murder, for that the present case was registered.

3. At trial, the private respondent did not plead guilty and prosecution to prove the charge, examined PW-01 appellant/PW Abdul Malik at Exh.31, PW-02 Mashir Muhammad Ibrahim at Exh.32, PW-03 SIO/SIP Ghulam Hussain at Exh.33, PW-04 medical officer Dr. Ghulam Asghar at Exh.34 and then closed the side.

4. The private respondent in his statement recorded u/s.342 Cr.PC denied the prosecution allegation’s by pleading innocence. He did not examine himself on oath in disproof of the prosecution allegation or anyone in his defence.

5. On evaluation of evidence so produced by the prosecution at trial, the learned trial Court acquitted the private respondent of the charge by way of impugned judgment.

6. It is contended by Mr.Habibullah Ghouri, Advocate, who is holding brief by learned counsel for the appellant/PW that the learned trial Court has acquitted the private respondent of the charge without any lawful justification. By contending so, under instructions he sought for disposal of the instant criminal acquittal appeal on merits.

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 un-plausible delay of nine days, which could not be lost sight of, as it is reflecting consultation. Complainant Abdul Karim and PW/injured Muhammad Qasim could not be examined by the prosecution, on account of their natural death. The benefit of their non-examination has right been extended in favour of the private respondent by learned trial Court. As per medical officer Dr. Ghulam Asghar, injuries sustained by the injured could be self suffered or on account of fall from the motorcycle. If such version of the medical officer Dr. Ghulam Asghar is believed to be true then it makes the nature of injuries sustained by PW/injured Muhammad Qasim allegedly at the hands of private respondent to be doubtful one, such conclusion also takes support from the evidence of SIP/SIP Ghulam Hussain wherein he has stated that he did not find footprint marks of the culprits or any incriminating articles at the place of incident. No much reliance could be placed upon evidence of PW/Mashir Muhammad Ibrahim as he was not able to state as to where the memo(s) of vardat and injuries were prepared. The perusal of evidence of appellant/PW Abdul Malik, may suggest that the private respondent was not shown to him at the time of recording his evidence. As per learned trial Judge, 161 Cr.PC statements of the PWs have also been recorded with un-plausible delay of one day even to FIR. The parties as per FIR are already disputed over the landed property. In these circumstances, the learned trial Court 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 is available 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 by way of instant appeal, it is dismissed accordingly.

J U D G E