IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.D-15 of 2017

Present:

Mr. Justice Zafar Ahmed Rajput,

            Mr. Justice Irshad Ali Shah,

Appellant/Complainant :      Muhammad Nawaz s/o Fareed Khan  Soomro

Through Mr.Altaf Hussain Surhio, Advocate

Respondent No.1                     : Muhammad Saleem s/o Muhammad Umar Khoso

Through Mr.Azhar Hussain Abbasi,  Advocate

Respondent No.2           :       The State through Mr.Khadim Hussain Khooharo,

A.P.G 

Date of hearing               :       24.09.2018          

Date of decision              :       24.09.2018                   

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 05.06.2017, passed by the learned Judge, Anti-Terrorism Court, Shikarpur, whereby the respondent No.1 was acquitted of the offence, for which he was charged, in Special Case No.32/2016, arisen out of Crime No.76/2011, registered u/s.365-A, 342 PPC & U/A. 17/3 PEHO, at P.S Jaggan @ Humayun. 

2.                The facts in brief necessary for disposal of instant acquittal appeal are that; the respondent No.1 allegedly alongwith co-accused abducted appellant/complainant Muhammad Nawaz and PW Talha Fareed for ransom when they were going back to their village, on their Car and thereafter they kept them confined illegally and robbed them of their Car, mobile phones, cash and documents per details mentioned in the FIR, for that the present case was registered.

3.                At trial, the private respondent did not plead guilty to the charge and the prosecution to prove it, examined PW-01 appellant/complainant Muhammad Nawaz at Exh.04, who produced attested copy of FIR of the present case and his 164 Cr.PC statement; PW-02 Talha Fareed at Exh.05, who produced attested copy of his 164 Cr.PC statement; PW-03 ASI Imran Ali Bhayo at Exh.06, who produced attested copy of FIR Crime No.68/2011, u/s.324, 353 PPC of P.S Jaggan @ Humayun and attested copy of memo of place of incident; PW-04 Faisal Bahadur at Exh.07; PW-05 ASI Iqbal Ahmed at Exh.08; PW-06 HC Fakharuddin at Exh.10 and PW-07  Inspector Imam Bux Brohi at Exh.11, who produced memo of arrest of accused/private respondent.

4.                Respondent No.1 in his statement recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence. He neither examined himself nor anyone in his defense 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 charge by way of judgment, which is impugned by the appellant/complainant before this Court, by way of instant Criminal Acquittal Appeal.

6.                It is contended by learned counsel of the appellant/complainant that the prosecution was able to prove its case against the private respondent beyond shadow of doubt through cogent evidence, which has been disbelieved by learned trial Court without any lawful justification. By contending so, he sought for conviction for the private respondent.

7.                It is contended by learned counsel for the private respondent that the FIR has been lodged with delay of about three months, without any lawful justification; that co-accused Abdul Hameed @ Hasti and Muhammad Shahban have already been acquitted by this Court, vide judgment dated 27.02.2018 passed, in Criminal Appeal No.D-59/2014 and Criminal Jail Appeal No.D-61/2014; that the case of the respondent No.1 is on better footings to that of acquitted co-accused.

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

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

10.              Significantly none reported the incident to police soon after its occurrence. It was reported by the appellant/complainant on 40^th day of his recovery, which smells of deliberation. The explanation of the appellant/complainant that he after recovery, cannot lodge FIR of the incident with the police being ill, as he was undergoing treatment at Karachi, cannot be believed, as he has not been able to substantiate such plea by producing any document in that respect. In that situation, the delay in lodgment of the FIR could not be lost sight of, as it is reflecting consultation. The recovery of the appellant/complainant and PW Talha Fareed from the captivity of the culprits, after an armed encounter by the police without being hurt under mysterious circumstances is appearing to be doubtful. The FIR of the incident relating to encounter of the police admittedly was lodged against the unknown culprits. Admittedly, no ransom was paid for recovery of the appellant/complainant and PW Talha Fareed. Co-accused Abdul Hameed alias Hasti and Muhammad Shahban on being convicted for the above said offence by the learned trial Court, on appeal have already been acquitted by this Court. In these circumstances, the learned trial Court was right to record acquittal of the respondent No.1 of the charge by extending him benefit of doubt by way of impugned judgment.

11.              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”.

12.              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 by way of instant appeal.   

13.              Above are the reasons of our short order dated 24.09.2018, whereby the instant criminal acquittal appeal was dismissed.

                                                                                                                                                                                          JUDGE

                                                             JUDGE

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