IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-63 of 2017

 

Appellant/Complainant :      Nasrullah son of Bux Khan Surhiyani,

                                                Through Mr.Abdul Rehman Bhutto, Advocate                      

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

Date of hearing               :       25.10.2018          

Date of decision              :       25.10.2018                   

 

JUDGMENT

 

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 18.10.2017, passed by learned 2nd Civil Judge & Judicial Magistrate, Kandhkot, whereby he has acquitted the private respondent of the offence for which he was charged. 

2.                The facts in brief necessary for disposal of instant criminal acquittal appeal are that the private respondent with rest of the culprits, by committing trespass into “otaq” of appellant/ complainant committed theft of his iron box containing wrist watch, mobile phone, two pairs of clothes and cash of Rs.24170/-, 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 ASI Gulsher Ahmed Bhatti, produced through him FIR of the present case, PW-02 appellant/complainant Nasrullah, PW-03 Noor Hassan, PW-04 SIO/SIP Niaz Hussain Khoso, produced through him memo of place of incident and memo of arrest of private respondent, PW-05 Mashir Amanullah and then closed the side.

4.                The private respondent in his statement recorded u/s.342 Cr.PC denied the prosecution allegation 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, the learned trial Magistrate acquitted the private respondent, by way of judgment, which the appellant/complainant has impugned before this Court.

6.                It is contended by learned counsel of the appellant/complainant that the learned trial Magistrate has acquitted the private respondent without lawful justification and on the basis of improper assessment of evidence. By contending so, he sought for adequate action against the private respondent.

7.                Learned A.P.G while supporting the impugned judgment has sought for dismissal of the instant criminal acquittal appeal by contending that the very case on investigation was found to be false.

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

9.                Admittedly, the incident as per appellant/complainant in his FIR was reported to police, after consultation with elders. No elder who was consulted before reporting the incident to police, was examined by the appellant/complainant at trial, which appears to be significant. The identity of the private respondent is based under torch light, which appears to be a weak piece of evidence. No torch light even otherwise the appellant/complainant has been able to produce before the police during course of investigation. The very case on investigation as per SIO/Inspector Niaz Ahmed was found to be false and recommended to be cancelled under false “B” class. In these circumstances, the learned trial Magistrate was right to record acquittal the private respondent by extending him benefit of doubt.

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 by the appellant/complainant, which may suggest that the impugned judgment has been passed by learned trial Magistrate in arbitrary or cursory manner, which may call for any interference by this Court.  

12.              In view of facts and reasons discussed above, the instant Criminal Acquittal appeal is dismissed.

 

                                                                                           J U D G E