IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Acquittal Appeal No.S-05 of 2020

Appellant/complainant : Mushtaq @ Baboo s/o Muhammad Qasim Chachar

    Through Mr. Abro Abdul Qadir, Advocate

The State                       :   Through Mr.Ali Anwar Kandhro, A.P.G 

Date of hearing             :    17.08.2020

Date of decision            :   17.08.2020

J U D G M E N T

IRSHAD ALI SHAH, J; The appellant/complainant by means of instant Criminal Acquittal Appeal has impugned judgment dated 24.12.2019, passed by learned 5^th Civil Judge & Judicial Magistrate/MTMC, Shikarpur,  whereby the private respondents have been acquitted of the offence outcome of FIR/Crime No.06/2019, u/s.452, 337-A(ii), F(ii),114,147,148 PPC of P.S Bachal Bhayo.

2.                The facts in brief necessary for disposal of instant criminal acquittal appeal are that; the private respondents after having formed an unlawful assembly and in prosecution of their common object, by making trespass into house of appellant/complainant, caused hatchet and lathi blows to PWs Liaquat, Mukhtiar, Imran and Irfan, for that they were booked and reported upon by the police.

3.                At trial, the private respondents did not plead guilty to the charge and the prosecution to prove it, examined appellant/complainant and his witnesses in all ten and then closed the side.

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

5.                On evaluation of evidence so produced by the prosecution, the learned trial Magistrate acquitted the private respondents of the offence for which they were charged by way of impugned judgment.

6.                It is contended by learned counsel of the appellant/complainant that the learned trial Court has recorded acquittal of the private respondents on the basis of improper appreciation of the evidence, without taking into consideration the non production of the opinion of the Medical Board. By contending so, he sought for admission of the instant criminal acquittal appeal to its regular hearing with issuance of notices against the private respondents.

7.                It is contended by learned A.P.G for the State that he would be having no objection, if the instant criminal acquittal appeal is admitted to its regular hearing.

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

9.                The FIR of the incident was recorded with delay of about nine days; such delay having not being explained plausibly could not be overlooked. There is counter version of the incident and the parties are found to be disputed with each other over the matter of kids. In these circumstances, learned trial Court was right to record acquittal of the private respondents by making following observation;

“In wake of counter case to instant case, registered by one of the accused persons, presence of the parties in village/vicinity is not denied but place of occurrence claimed by complainant has been found doubtful. Such doubt is more strengthened when presence of villagers at the alleged place of occurrence is claimed by the witnesses and those persons have not been part of investigation neither as eye witnesses nor the mashirs of alleged place of occurrence. Thus, another circumstance of doubt is created as to for what reasons they remained aloof or were made remain aloof from the investigation episode. Therefore, the investigation chapter of prosecution case is also not helpful to the case of prosecution. Even otherwise, during course of investigation particularly while inspecting place of occurrence. I.O has not collected any material from the alleged place of incident to draw positive inference in favour of prosecution especially in connection with place of occurrence”.

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.              The impugned judgment is not appearing to have been passed in arbitrary or cursory manner, to be interfered with by this Court by means of instant criminal acquittal appeal by admitting it to regular hearing at the cost of precious time of this Court, only for want of non-production of opinion of medical board, it is dismissed accordingly.

                                                                                                JUDGE