IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.S-11 of 2010
Appellant/complainant : Haji Abdul Fattah s/o Abdul Hameed Khoso
Through Mr.Asif Ali Abdul Razzaq Soomro, Advocate
State : Through Mr.Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 22.11.2018
Date of decision : 22.11.2018
JUDGMENT
IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant criminal acquittal appeal has impugned judgment dated 15.01.2010, passed by learned Assistant Sessions Judge, Kashmore, whereby the private respondents were acquitted of the charge for offence punishable u/s 220, 506/2 PPC.
2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that the appellant/complainant lodged an FIR with P.S Kashmore, for robbery of his motorcycle and licensed pistol; subsequently he carried a feeling that the private respondents being police officials by misusing their authority have extended favour to his nominated accused in above said robbery case. On the basis of such feeling, he filed a direct complaint against the private respondents, which was brought on record by learned trial Court after due enquiry.
3. The private respondents did not plead guilty to the charge, and the appellant/complainant in order to prove the same examined himself and his witnesses Jalaluddin and Naimatullah, produced all the ancillary documents and then closed the side.
4. The private respondents in their statements recorded u/s 342 Cr.PC denied the allegation leveled against them by the appellant/complainant by pleading innocence by stating that they have been involved in this case falsely by the appellant/complainant due to old enmity. 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, the learned trial Court acquitted the private respondents of the offence for which they were charged, by way of impugned judgment.
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 assessment of the evidence. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing with appropriate action against the private respondents.
7. Learned A.P.G for the State by supporting the impugned judgment sought for dismissal of the instant criminal acquittal appeal, as it has been filed without grant of special leave to appeal.
8. I have considered the above arguments and perused the record.
9. Admittedly, the acquittal of the private respondents has been recorded in a direct complaint, and to challenge such acquittal, is subject to provision of Section (2) of Section 417 Cr.PC, which reads as under;
“Sec.(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court”.
10. No special leave to appeal obviously is sought for by the appellant/complainant before filing of the instant criminal acquittal appeal, therefore, the same could hardly be proceeded further.
11. If for the sake of arguments, it is believed that the instant criminal acquittal appeal without special leave to appeal is competent even then it could not be proceeded further on merits simply for the reason that the main grievance with the appellant/complainant is that the private respondents being police officials have misused their authority by extending favour to his accused nominated in robbery case, as such according to him, they have committed an offence punishable u/s 220 PPC, which reads as under;
”Section 220 PPC. Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement or to keep persons in confinement, corruptly or maliciously commits any person for trial or confinement, or keeps any persons in confinement, in the exercise of that authority knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both”.
13. The bare perusal of above provision of law would make it clear that it follows only when there has been excess of police officer of his legal power of arrest, that it comes necessary to consider whether he has acted corruptly or maliciously and with the knowledge that he was acting contrary to law. In the instant matter, it is not case of the appellant/complainant that he or any of his witness was kept confined illegally by the private respondents in their official capacity. In that situation, the charge against the private respondents for having committed an offence punishable u/s 220 PPC was misplaced and their prosecution for the above said offence together with allegation of criminal intimidation punishable u/s 506/2 PPC was somewhat significant. In these circumstances, the learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt by making the following observation;
“The statements of PWs are contradictory and untrustworthy. In the instant case prosecution/complainant has failed to carry out such obligation. A single circumstance creating reasonable doubt in the mind of prudent man then such benefit shall be given to the accused not as a matter of grace or concession but as a matter of right”.
14. 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”.
15. 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 call for interference.
16. In view of facts and reasons discussed above, the instant Criminal Acquittal appeal is dismissed.
J U D G E
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