IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.D-52 of 2013

Present:

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Irshad Ali Shah,

Appellant/Complainant : Khan son of Bakhshal by caste Junejo

Through Mr.Javed Ahmed Soomro, Advocate

Respondents No.1 to 4 : 1). Sadaruddin son of Mubarak

2). Qamaruddin son of Mubarak

3). Ayaz son of Muhammad Safar

4). Ali Sher son of Islam

Through Mr.Habibullah Ghouri, Advocate

Respondent No.5 : The State through Mr.Sharafuddin Kanhar,

A.P.G

Date of hearing : 17.09.2018

Date of decision : 17.09.2018

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 23.11.2013, passed by the learned Additional Sessions Judge, Ratodero, whereby the respondents No.1 to 4 were acquitted of the offence, for which they were charged, in Sessions Case No.29/2011, arisen out of Crime No.280/2010, registered u/s.302, 114, 337-H(ii) PPC, at P.S Ratodero.

2. The facts in brief necessary for disposal of instant acquittal appeal are that; the respondents No.1 to 4 alongwith co-accused allegedly, after having formed an unlawful assembly and in prosecution of their common object, fired and killed Mujeeb Rehman, for that the present case was registered.

3. At trial, the respondents No.1 to 4 did not plead guilty to the charge and the prosecution to prove it, examined PW-01 appellant/complainant Khan Muhammad at Exh.11, who produced FIR of the present case; PW-02 Abdul Haq at Exh.12; PW-03 Habib Rehman at Exh.13; PW-04 PC Sajjan Ali at Exh.14; who produced receipt of delivery of dead body of deceased; PW-05 medical officer Dr.Akhtiar Ali at Exh.15, who produced postmortem report on the dead body of the deceased; PW-06 Mashir Mumtaz Ali at Exh.16, who produced memo of place of incident; PW-07 Tapedar Nazir Hussain at Exh.19, who produced sketch of vardat; PW-08 ASI Sajjad Hussain at Exh.20; and PW-09 SIO/SIP Muhammad Sulleman at Exh.21, who produced Danistnama, Lash Chakas Form and memo of examination of dead body of the deceased and memo of place of incident.

4. The respondents No.1 to 4 in their statements recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence by stating that they were involved in this case falsely as Mst.Hafeezan contracted marriage with Tufail. It was further stated by them that together with the deceased, Haji Ranjhan and Ghulam Mustafa were also killed, for that an FIR Crime No.281/2010 was registered. They produced photo stat copy of that FIR, it was further stated by them that they on investigation were also found to be innocent by the police. They; however neither examined themselves on oath nor anyone in their defense in disproof of the prosecution allegation.

5. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the respondents No.1 to 4 of the charge by way of judgment, which is impugned by the appellant/complainant before this Court, in 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 respondents 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 respondents No.1 to 4.

7. Learned A.P.G and learned counsel for the respondents No.1 to 4 however have supported the impugned judgment.

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

9. No doubt, the complainant and his witness to some extent have supported the case of prosecution on factual premises but their evidence could hardly be relied as they were having the reason to involve the respondents No.1 to 4 in this case falsely on account of matrimonial dispute, which is admitted even in FIR of the present case. The appellant/complainant and his witnesses were disbelieved by the police during course of investigation. Consequently, the respondents No.1 to 4 were released by placing their names in column No.2 of the charge sheet. The reason for doing so which prevailed with SIO/SIP Muhammad Sulleman as per his evidence was that on the date of incident, the incident of firing took place between Khosa and Jakhrani community at Resham Gali Larkana, as one of the bullets hit to the deceased who by sustaining that bullet injury died and during investigation, on the basis of statements u/s. 162 Cr.PC of independent persons of the locality, he came to the conclusion that the appellant/complainant has involved the respondents/accused in this case falsely only to satisfy his matrimonial dispute with them. PWs Akbar Ali and Habibullah supported the SIO/SIP Muhammad Sulleman in his above said conclusion. PW/Mashir Mumtaz Ali has not supported the case of prosecution.

10. 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”.

11. 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. Hence, the instant Criminal Acquittal Appeal is dismissed, accordingly.

JUDGE