Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. S – 119 of 2019
Date of hearing : 08.11.2019.
Mr. Nusrat Hussain
Memon, Advocate for appellant / complainant.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
J U D G M E N T
NAIMATULLAH PHULPOTO, J. – Respondents (1) Manzoor son of Jalaluddin,
(2) Abbas son of Jalaluddin, (3) Muhammad Shareef son of Abdul Raheem and (4)
Abdul Rasheed son of Nihal were tried by learned Civil Judge & Judicial
Magistrate-II, Ubauro in Criminal Case No.72/2019 (The State v. Manzoor and
others) for offences under Sections 452, 392, 147, 148, 149, 354, 506/2, PPC.
After regular trial, respondents have been acquitted by the trial Court vide
judgment dated 17.06.2019, for the following reasons:
“ 7. Apart from above
prosecution also examined I.O, who disclosed that the real dispute is over
matrimonial affair, which is also admitted fact that Mst Husna has taken khulla
from the son of complainant PW Haleem and the dispute is over such khulla, in this
regard accused Manzoor has also
filed copy of judgment and memo of suit which shows that Mst Husna had filed
suit on 22nd
December 2018,
while the FIR has been lodged on 01st January 2019, and
showing the alleged incident on 21-12-2018,
which shows when Mst Husna filed suit for khulla
against PW Haleem then complainant side has filed misc:
application for FIR while showing alleged incident just one day before filing
the suit of khulla, which shows and prove that complainant has made annoyed
with the demand
of khulla by Mst Husna. Further
it is also, on record and admitted by complainant in her evidence that prior
to this FIR
accused aside already filed misc: application against her son for
FIR, which is on record as copy of such misc: application has been
filed
by accused Manzoor in his statement under section 342 crpc, which further shows
when accused side had moved for action against complainant, they lodged this
FIR due to pressurize accused Party. Therefore these all lacunas and material
contradictions render the whole story doubtful and thus it cannot be relied
upon to convict the accused persons. As it is the principle of criminal justice
system that whenever a slightest doubt created, in prosecution story, the
benefit of doubt goes to accused, but here in this matter there are brightest
doubt and whole story of complainant is doubtful. As it was held in PLD 2019 SC
64, that single reasonable
doubt/circumstance is enough to
acquit the accused from hours, charge, and in 2017 SCMR
986, it is held
that, “Even
a single doubt, if found reasonable, would entitle accused person to acquit and not a combination of several doubts”. Therefore, it is found that prosecution has failed
to prove the charge against accused persons beyond any shadow of doubt, and
from above discussion and reasons I came to the conclusion that there is no
incriminating material came on record, which implicate the above named accused
persons in this case and
connect them with the alleged charge. Hence, I have left
no option but
to reply these points as doubtful and not proved with the above mentioned
reasons. For what has been discussed above, I am of the firm opinion that prosecution has failed to
bring home the guilt of all accused, hence the point No.01 and 02 are not proved and
answered as negative/doubtful. ”
2. Mr.
Nusrat Hussain Memon, learned advocate for the appellant submitted that there
are minor contradictions in the evidence of the prosecution witnesses and trial
Court failed to appreciate the evidence according to the settled principle of
law. He submitted for converting the acquittal to the conviction.
3. Mr. Zulfiqar Ali
Jatoi, learned Additional Prosecutor General argued that in fact there is
family dispute between the parties and there are major contradictions in the
evidence of the prosecution witnesses and trial Court has rightly recorded the
acquittal in favour of the respondents and after acquittal they have double
presumption of the innocence. He prayed for dismissal of this acquittal appeal.
4. After
hearing the learned counsel for the parties, I have perused the evidence
available on the record. Learned trial Court, in the impugned judgment in para
No.7, has highlighted the infirmities in the prosecution case. Counsel for the
appellant himself has admitted that there are contradictions in the evidence of
the prosecution witnesses. Case has been registered by Mst. Hakimi against
the respondents over family dispute. At the trial, prosecution could not
succeed to prove it’s case. It is by now well-settled that scope of the
acquittal appeal is quite narrow and limited. While hearing the acquittal
appeal, this Court is not supposed to re-appreciate the evidence, but only Court
has to see whether judgment of the acquittal is perverse or arbitrary. In this
case, impugned judgment is based upon the sound reasons and requires no
interference. Rightly, reliance is placed upon the case of Zulfiqar Ali v. Imtiaz and others (2019
SCMR 1315), wherein Hon’ble Supreme Court has observed as under:
“ 2. According to the autopsy report, deceased
was brought dead through a police constable and there is nothing on the record
to even obliquely suggest witnesses’ presence in the hospital; there is no
medico legal report to postulate hypothesis of arrival in the hospital in
injured condition. The witnesses claimed to have come across the deceased and
the assailants per chance while they were on way to Chak No.504/GB. There is a
reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as
the witnesses, who had first seen the deceased lying critically injured at the
canal bank and it is on the record that they escorted the deceased to the
hospital. Ali Sher was cited as a witness, however, given up by the
complainant. These aspects of the case conjointly lead the learned
Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend
benefit of the doubt consequent thereupon. View taken by the learned Judge is a
possible view, structured in evidence available on the record and as such not open
to any legitimate exception. It is by now well-settled that acquittal once
granted cannot be recalled merely on the possibility of a contra view. Unless,
the impugned view is found on the fringes of impossibility, resulting into
miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails.
Appeal dismissed. ”
5. For the above
stated reasons, this Acquittal Appeal is without merit and the same is dismissed.
J U D G E
Abdul Basit