Judgment Sheet.

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S-150 of 2018

Date of hearing : 07.10.2019.

Mr. Muhammad Nasir Malik, Advocate for Appellant.

Mr. Zulifqar Ali Jatoi, Additional Prosecutor General.

-.-.-.

J U D G M E N T

Naimatullah Phulpoto, J. Through this Acquittal Appeal, appellant / complainant Muhammad Ibraheem son of Muhammad Ismaeel Chandio has impugned the judgment dated 25.09.2018 passed by Judicial Magistrate-III Naushehro Feroze in criminal case No. 120/2018 for offences under sections 452, 506/2, 147, 148, 337-A(i) and 337-L(ii) PPC. On the conclusion of trial vide judgment dated 25.09.2018 respondents / accused Muhammad Rakhiyal, Palio Khan, Muhammad Yakoob, Ameer Ali and Haji were acquitted.

2.                     Complainant Muhammad Ibraheem lodged his report at Police Station Naushehro Feroze against accused, it was recorded vide crime No. 99/2018 under sections 452, 506/2, 337-F(i), 147, 148 PPC.

3. On the conclusion of the investigation, challan was submitted against the accused under the above referred sections.

4. Trial Court framed the charge against all the accused. They pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined eight (07) PWs and prosecution side was closed.

6. Statements of accused persons were recorded under Section 342, Cr. P.C in which accused claimed false implication in this case and denied the prosecution’s allegation. They did not examine themselves on oath nor produced any witness in their defense.

7. Learned trial Court after hearing learned counsel for the parties and assessment of the evidence in para No. 3 at page No.3 by sounded the valid reasons acquitted the accused vide judgment dated 25.09.2018, for the following reasons.

“3. The careful perusal of the record shows that the evidence of the complainant, PWs and mashir does not inspire confidence, as the complainant has avert his own version of FIR, in the FIR he asserted that on their criess Son Muhammad Khan Chandio and other villagers came running and the accused while seeing them went away, but in his deposition in examination-in-chief he has deposed that on cries his sons rushed there but accused harassed them and then left the scene. Further more in her evidence in cross- examination PW/injured Mst. Sadori has stated that on 12.02.2018 Police recorded her statement at Police station, on the other hand, PW-ASI Rajib Ali (l.O) in his evidence examination- in- chief has deposed that on 22.6.2010 HC Ahmed Khan handed over FIR of Crime No. 99/2018 U/S 506/2, 452, 147,148, 337-A(i), L(ii) PPC for investigation and on the same day he recorded 161 Cr.P.C statements of Muhammad Khan, Mst. Sadori and Mst. Hameeda. Such major and material contradictions in the case of the prosecution suffered with the legal infirmities as discussed above. Apart from that the place of crime is alleged located at populated village but no independent witness assigned by the complainant party even complainant in his FIR has stated that his son Muhammad Khan Chandio and other villagers came running over the place of incident. Furthermore complainant and PW/injured Mst. Sadori have admitted that there is an enmity over the consent love marriage between Mst Raheela (daughter of complainant) with accused Rakhial. There exists also unexplained delay of about (02) days in lodging the FIR, Besides that from the perusal of evidence it reveals that the case in hand against the accused is of general allegations and no specific role has been attributed to any accused which is also big dent to prosecution case.”

8. Complainant being dissatisfied with the acquittal of the accused has filed this appeal.

9. Learned advocate for the appellant/complainant mainly contended that impugned judgment of the trial Court is based on misreading and non-reading of evidence. He has also argued that trial Court has disbelieved strong documentary evidence without assigning sound reasons, and prayed for converting the acquittal to the conviction.

10. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General argued that in the present case incident took place on 20.06.2018 at 5.00 p.m but the injured appeared before Medical Officer on 21.06.2018 at 2.00 p.m. there is nothing on record that why injuried did not appear before Medical Officer soon after the incident. Women Medical Officer in her certificate has mentioned the age of injuries / duration was 12 hours, which falsifies the ocular version. There are also material contradictions in the evidence of prosecution witnesses. Learned Additional PG lastly argued that trial Court has properly appreciated the evidence and acquittal of the accused / respondents is neither perverse nor based upon misreading of evidence. He has supported the judgment of the trial Court.

11. It is settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:

“16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against ' acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

12. From perusal of judgment of trial Court it reveals that there is also no serious flaw or infirmity in the impugned judgment. Incident took place on 20.06.2018 at 5.00 p.m but injured appeared before W.M.O on 21.06.2018 at 2.00 p.m, such delay has not been explained. Ocular evidence was contradictory to medical evidence. There are material contradictions in the evidence of prosecution witnesses. View taken by the learned trial Court is a possible view, structured in evidence available on 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, impugned view is found on fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled.

13. The Criminal Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Irfan/PA