ORDER
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Acquittal Appeal No. D-17
of 2020
DATE ORDER WITH
SIGNATURE OF JUDGE
21.09.2021.
Present:
Justice Zafar
Ahmed Rajput
JusticeAmjad Ali Sahito
Mr. Aneet Kumar Rajput, advocate
for the appellant.
ZAFAR AHMED RAJPUT, J- Through
instant Criminal Acquittal Appeal,the appellant/complainanthas assailed the
judgment, dated 18.02.2020, passed by the learned Ist. Sessions Judge/MCTC, Sukkur
in Sessions Case No.247 of 2018, arisen out of F.I.R. No.100/2017, registered
under sections 302, 337-J, 109, P.P.C.at P.S. Rohri, whereby the respondents
Nos. 1 to 3 were acquitted of the charge by extending them the benefit of
doubt.
2. Briefly
stated,facts of the case are that,on 20-08-2020,appellant/complainant Ghulam Shabbir Abro lodged the FI.R alleging therein
that his son Amanullah used to work on a stall at Rohri Station where Irfan and
Abdul Qayyum also worked at platform, who had rivalry with him. On 14-08-2017,he,
his son Amanullah and others were available in house at 1230 hours, when accused/respondents
Irfan and Amjad Ali Shahani took Amanullah towards quarter of PC Jameel on the
pretext of compromise talks. In the meanwhile, complainant’s brother Mazhar Ali
also returned home at 02:00 p.m., Amanullah disclosed to Mazhar Ali on phone
call that above named accused had given him poisonous drink on the instance of
Afroz Ali Shahani and he was in critical condition Thereafter, complainant, his
son Muhammad Saeed, brother Mazhar Ali rushed towards quarter of Jameel Ahmed
Khuhro where they saw the accused Irfan, Abdul Qayyum, Amjad Ali and Abdul
Hafeez, who on seeing themwent out from the quarter.Amanullah was crying inside
the quarter, he disclosed the entire facts. Complainant brought him at Taluka
Hospital Rohri, from there he was referred to Civil Hospital, Sukkur and then he
was taken to Hira Hospital, where he died.
3. After
usual investigation, police submitted the report under section 173 Cr.P.C
(challan). The respondents/accused were charged formally,to which they pleaded
not guilty and claimed to be tried.
4. At the trial, prosecution in order to
substantiate the charge against the respondents/accsued examined as many as ninewitnesses,
who produced relevant documents in their depositions. Thereafter, the statements of accused were
recorded, wherein they denied the allegations leveled against them. They
neither examined themselves on oath nor produced any witness in their
defense.On the assessment of the evidence on record, the learned trial Court acquitted
the respondents/accused persons under section 265-H(i), Cr.P.C., vide impugned judgment.
Aggrieved by the same, the complainant has preferred this Criminal Acquittal Appeal.
5. Heard the learned
counsel for appellant, perused the material available on record.
6. Learned counsel for appellant has contended thatthe learned trial
Court has not appreciated the evidence of the P.Ws. who have fully implicated
the respondents/accsued with the commission of alleged offence; that the role
of respondents/accused is clear from contents of FIR and the ocular evidence is
very clear that they had committed the alleged offence; that the impugned
judgment has been passed by the learned trial Court without applying its
judicious mind and it failed to appreciate material available on the record;
that the evidence produced by the appellant before the learned trial Court was
enough to connect the respondents/accsued with commission of offence whereas
learned trial Court did not consider the same for the conviction of respondents/accsued
and it is a fit case for conviction but learned trial Court failed to consider
the same which is sheer injustice with appellant.
7. Learned
trial Court while deciding point No.2 as not proved, has observed as under:
…“The Medical
record of GMMC hospital indicates the deceased was drug addicted. This fact as
well as disclosed by a taxi driver who took him in the first instance that the
deceased was looking in a drunken condition. No single proof of poison
whatsoever was found from the body of deceased during the postmortem or medical
check-up. The I.O. during investigation did not collect any material to connect
the accused with the commission of offence. No bottle of black stone or any
connecting material was found from the room although the complainant party had
appeared at spot allegedly at the moment when the accused had escaped before
their eyes. In non-availability of sign of black stone at the spot or even at
the body of deceased speaks adverse the claim of the complainant party. The statements
of PWs appear to have been given in a stereo type manner without giving the
detail of the incident minutely. The cause of death of deceased remained
unascertained, although the postmortem was conducted”
8. The material on record approves the
assessment of learned trial Court; hence, the prosecution has failed to bring
home guilt of accused beyond reasonable doubt. It is well settled principle of
law that for basing conviction against an accused there should be strong
evidence before the trial Court and if the doubt, even slightest, arises in the
prudent mind as to the guilt of the accused, benefit of the same has to be
extended in favour of the accused.
9. We do not find any
merit in arguments of learned counsel for the appellant. The learned trial Court
hasrecorded the reasons for its order of acquittal which are based on evidence
on record and the conclusion drawn by the learned trial Court as to the innocence
of accused persons is appropriate.
10. It may be relevant to observe
here that the extraordinary remedy of an appeal
against an acquittal is different from an appeal against the order of
conviction and sentence because presumption of double innocence of the accused
is attached to the order of acquittal. Thus, on the examination of theorder of
acquittal as whole, credence is accorded to the findings of the subordinate
Court whereby the accused had been exonerated from the charge of commission of
the offence. Therefore, to reverse an order
of acquittal, it must be shown that the acquittal order is unreasonable,
perverse and manifestly wrong. The order of acquittal passed by the trial Court
which is based on correct appreciation of evidence will not warrant
interference in appeal. The Honourable Supreme Court while dealing with the
appeal against acquittal has been pleased to lay down the principle in the case
of Muhammad Shafi Vs Muhammad Raza& another,reported
in 2008 SCMR 329, as under:-
“An accused is presumed to be
innocent in law and if after regular trial he is acquitted, he earns a double
presumption of innocence and there is a heavy onus on the prosecution to rebut
the said presumption. In view of the discrepant and inconsistent evidence led,
the guilt of accused is not free from doubt, we are therefore, of the view that
the prosecution has failed to discharge the onus and the finding of acquittal
is neither arbitrary nor capricious to warrant interference.”
11. In view of above reasons,
the impugned acquittal order does not suffer from any illegally orinfirmity and
misreading or non-reading of evidence leading to miscarriage of justice;
therefore, the same is not open for interference by the High Court under
section 417 (2) Cr.P.C.
12. This criminal acquittal appeal, therefore,
stands dismissed accordingly in limine along
with pending application.
JUDGE
JUDGE
Ihsan/*