JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

 

Criminal Acquittal Appeal No. S- 55 of 2022

 

                Before:

                                                   Mr. Justice Amjad Ali Sahito.

 

 

For hearing of main case.

 

19.04.2022

 

Mr. Faiz Muhammad  Brohi, Advocate for Appellant.

                        -.-.-.-.-.-.-.-.-

 

          Appellant/Complainant Anwar son of Bahadur bycaste Ujjan has challenged the Judgment dated 15.03.2022 passed by learned Additional Sessions Judge-II Naushehro Feroze in Sessions Case No. 53 of 2020 arising out of crime No. 108/2019 registered at Police Station Tharu Shah, through which respondents/accused Nos. 1 and 2  have been acquitted by extending benefit doubt under section 265-H(i) Cr.P.C.

2.      The facts in brief necessary for disposal of instant acquittal appeal are that complainant Anwar Ujjan lodged FIR with PS Tharu Shah on 20.07.2019 at 1500 hours alleging that on 07.03.2019 he along with his brother Peer Bux and other family members were available in the house, it was 1.00 pm, accused Zameer, Bisharat armed with pistols, Bahar, Abbass and three unknown persons having lathies forcibly entered in his house, used abusive language and issued murderous threats on which brother of complainant namely Peer Bux made resistance, accused Zameer caused butt blows of pistol to him on his head and right arm. Complainant party raised cries which attracted to Haroon who came there, accused Bisharat caused butt blow of pistol to Pir Bux on his leg, accused Bahar Solangi caused lathi blow to Pir Bux on his right hand and accused Abbass Ujjan caused lathi blow to Pir Bux on his right shoulder, thereafter, complainant and witnesses Haroon rescued Pir Bux, accused Zameer robbed cash of Rs.30,000/-, one pair of ear rings valued at Rs.90,000/-, thereafter accused run away by making aerial firing and issued threats of murder. Complainant brought his injured brother Pir Bux at PS Tharu Shah, wherefrom obtained letter for treatment, injured pir Bux got treatment from Civil Hospital Tharu Shah, wherefrom he was referred to civil Hospital Nawabshah. Complainant filed application before Sessions Judge Naushehro Feroze and after seeking directions went to PS and lodged FIR.

3.           After investigation, Investigation Officer submitted the challan and after completion of all the legal formalities the trial court framed the charge against the accused to which they pleaded ‘not guilty’ and claimed to be tried.

4.           At the trial, the prosecution examined PW-1 SIP Gul Muhammad at Exh.03 who produced mashirnama of visiting place of vardat and attested copy of entry No.12 dated 20.07.2019 at Exh.03-B. PW-2 PC Makhdoom Nisar (mashir of visiting place of vardat) at Exh.5 he produced memo of application U/S 22-A B Cr.P.C, true copy of order dated 17.07.2019, statement dated 20.07.2019. PW-4 eye witness Muhammad Haroon  at Exh.06 he produced mashirnama of examining the injuries. PW-5 HC Shoukat Ali (author of FIR) at Exh.07, he produced attested copy of entry No.11. PW-06 Muhib Ali (I.O) was examined at Exh.08. PW07 Dr. Riaz Hussain Medical officer at Exh.9 he produced letter No. 216 dated 07.03.2019, Provisional Medical Certificate dated 08.03.2019, expert opinion and final Medical Certificate dated 06.04.2019. PW-08 Peer Bux  (eye witness/injured) was examined at exh.10. PW-09 WHC Nawab Khan Dahri was examined at Exh.11. Thereafter, prosecution closed its side.

5.           Trial Court recorded statements of accused under section 342 Cr.PC wherein they denied the prosecution allegations, claimed their false implication in the case.

6.           After assessment of evidence learned trial court has passed the above impugned judgment which is assailed before this Court through instant criminal acquittal appeal.

7.       Learned counsel for the appellant contended that all the witnesses have fully supported case of prosecution but their evidence was not appreciated by the learned trial court; that there are minor contradictions in the evidence of witnesses and on the basis of minor contradictions, accused were acquitted; that learned trial court has committed illegality while acquitting the respondents and there was huge evidence for conviction of respondents.

8.                Learned Additional Prosecutor General on behalf of State supports the impugned judgment.

9.                The case of prosecution is that on 07.03.2019 complainant Anwar along with his brother Peer Bux and other family members were available in the house, it was 1.00 pm, accused Zameer, Bisharat armed with pistols, Bahar, Abbass and three unknown persons having lathies forcibly entered in his house, used abusive language and issued murderous threats on which brother of complainant namely Peer Bux made resistance, accused Zameer caused butt blows of pistol to him on his head and right arm. Complainant party raised cries which attracted to Haroon who came there, accused Bisharat caused butt blow of pistol to Pir Bux on his leg, accused Bahar Solangi caused lathi blow to Pir Bux on his right hand and accused Abbass Ujjan caused lathi blow to Pir Bux on his right shoulder, thereafter, complainant and witnesses Haroon rescued Pir Bux, accused Zameer robbed cash of Rs.30,000/-, one pair of ear rings valued at Rs.90,000/-, thereafter accused run away by making aerial firing and issued threats of murder. Complainant brought his injured brother Pir Bux at PS Tharu Shah, wherefrom obtained letter for treatment, injured Pir Bux got treatment from Civil Hospital Tharu Shah, wherefrom injured was referred to civil Hospital Nawabshah and then after filing of an application for registration of FIR, got orders and lodged FIR.

10.              From perusal of record and proceedings it reveals that admittedly there is delay of about four months and 12 days in lodging of FIR without plausible explanation. After registration of FIR, the investigation was conducted and I.O of the case recommended the case for disposal in ‘B’ class. Complainant Anwar Ujjan has deposed in his evidence that injured was admitted in hospital for five days but the injured has not supported his evidence while recording his evidence. Complainant has deposed in his evidence that amount of Rs. 30,000/- and pair of ear rings were lying in red colour iron box but it is surprising to note that said iron box was neither part of investigation nor the same was produced in the Court. From the record it also reflects that complainant Anwar Ujjan and injured Pir Bux were not known to the present accused Zameer and Bisharat prior to present incident then they have introduced their names with their parentage name in the FIR as well as statement U/S 161 Cr.P.C. Thus there are many contradictions in the statements of  PWs examined by the trial.

11.       I have considered the above arguments and perused the record. From perusal of judgment passed by the trial Court it appears that the same is speaking one and does not suffer from any interference by this Court. In these circumstances, the learned trial Court obviously  was right to record acquittal of the private respondents by extending them benefit of doubt and such acquittal is not found to have been recorded in arbitrary or cursory manner, which may call for interference by this Court.  

             In case of The State and others vs. Abdul Khaliq and others     (PLD 2011 SC-554), it is held by the Hon’ble Apex 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 criinal 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”.

12.              I am fully satisfied with appraisal of evidence done by the learned trial Court and I am of the view that while evaluating the evidence, the difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case, interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Learned counsel for the appellant failed to disclose any misreading and non-reading of evidence. In the case of Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639), the Hon’ble Supreme Court of Pakistan has held that:-

“We have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents No.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/appellant and learned Additional prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos. 2 to 5 which reasons have not been found by us to be arbitrary, capricious of fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed”

 

13.             In view of facts and reasons discussed above, the instant Criminal Acquittal appeal is dismissed in limine.

 

                                                                            J U D G E

Irfan/PA