IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-07 of 2014

Appellant/complainant  :           Ali Khan son of Ghulam Qadir Noonari

Through Mr.Abdul Rehman Bhutto, Advocate

Respondents                        :         Through Mr.Ashiq Illahi Sundhrani,

Advocate for private respondents

The State through Mr.Raja Imtiaz Ali Solangi, A.P.G 

Date of hearing                    :         19.11.2018             

Date of decision                  :         19.11.2018                         

O R D E R

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant criminal acquittal appeal has impugned judgment dated 12.02.2014, passed by learned 2^nd Civil Judge & Judicial Magistrate, Kandhkot, whereby the private respondents have been acquitted of the offence punishable u/s 337-A(i), F(i), 147, 148 PPC, outcome of FIR Crime No.272/2010 of P.S “A” Section Kandhkot.

2.                    The facts in brief necessary for disposal of instant criminal acquittal appeal are that as per appellant/complainant, the private respondents with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object, by committing trespass in his house, caused, fists, kicks and butt blows to him and his witnesses Muhammad Jaffar, Khadim Hussain, Gulab, Majid Ali and Muhammad Azeem and then went away by making aerial firing to create harassment, for that the present case was registered.

3.                    At trial, the private respondent did not plead guilty to the charge, and prosecution to prove it, examined PW-01 appellant/complainant Ali Khan, produced through him FIR of the present case, PW-02 Muhammad Jaffar, PW-03 Khadim Hussain, PW-04 Gulab, PW-05 Muhammad Azeem, PW-06 Abdul Majid, PW-07 HC Moojuddin, PW-08 SIO/ASI Noor Muhammad, produced through memo of place of incident, PW-09 medical officer Dr.Abdul Subhan, produced through medical certificate in respect of injuries sustained by complainant and his witnesses and then closed the side.

4.                    The private respondents in their statements recorded under section 342 Cr.PC denied the prosecution’s allegation by pleading innocence. They did not examine anyone in their defence or themselves on oath in disproof of the prosecution’s allegation.

5.                    On evaluation of evidence so produced by the appellant/complainant, learned trial Court acquitted the private respondents by way of judgment, as stated above.

6.                    It is contended by learned counsel for the appellant/complainant that the learned trial Court has acquitted the private respondents of the charge without lawful justification and on the basis of improper evaluation of the evidence. By contending so, he sought for appropriate action against the private respondents.

7.                    Learned A.P.G for the State and learned counsel for the private respondent by supporting the impugned judgment sought for dismissal of the instant criminal acquittal appeal by contending that the impugned judgment is well reasoned.

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

9.                    There is no independent witness to the incident. The parties are already disputed over matrimonial affairs. On investigation not only Section 452 PPC was omitted but co-accused namely Shah Murad, Anees Ahmed, Zubair Ahmed and Zain-ul-Abideen were let off by the police finding them to be innocent. In these circumstances, the learned trial Court was right to record acquittal of the private respondents of the charge by extending them benefit of doubt by making very cogent observation, which reads as below;

“It is evident that the complainant and PWs are closely related to each other. The complainant and his witnesses admitted that at the time of incident so many people of Muhalla gathered there, but despite of that none of them was associated as witness of the incident. The complainant and his witnesses are related inter-se, in such circumstances, the complainant was required to associate independent witnesses as witness of the incident. The complainant deposed that the incident continued for about 10/15 minutes while PW Muhammad Jaffar deposed that the incident continued for about 02 hours. The complainant deposed that they remained admitted in hospital for one day and one night while PW Muhammad Azeem deposed that they remained admitted in hospital for two days. It is pertinent to mention here that the mashirnama of place of vardat shows that no any empty/shell was secured form the place of vardat. It is categorically stated in mashirnama of place of vardat that fired bullets are not found from the place of incident. In this regard the I.O also admitted that no any empty bullet was found from the place of vardat. The enmity between complainant and accused party is admitted in FIR as well as in the depositions of complainant and his witnesses. In this regard, it is pertinent to mention here that the complainant and accused party lodged counter FIRs against each other i.e FIR No.272/2010 & 274/2010. In both FIRs the date and time of incident is same. In both incidents, the accused from both sides alleged to have sustained injuries. The counter version incident is presumed to be double edged weapon which cuts both sides. In counter version cases the liability upon each and every accused relating to the commission of offence cannot be fixed with certainty. The bone of contention between the parties is divorce given to the sister of complainant of present case. In such circumstances, the implication of accused in false case cannot be ruled out”.         

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 accordingly.

                                                                                                                J U D G E