IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acquittal Appeal No.S-73 of 2022

Appellant Ghulam Murtaza Chandio, through

Mr. Suhendar Kumar Gemnani, Advocate.

Respondents Khan Mohammad Brohi & others.

Mr. Ali Anwar Kandhro, Addl. P.G.

Date of hearing & Order : 12.08.2022.

O R D E R.

Naimatullah Phulpoto, J.- Respondents Khan Mohammad son of Wahid Bux, Mohammad Sallah son of Allah Bux, Faiz Mohammad son of Raheem Dad and Baboo Raheem son of Faiz Mohammad, all by caste Brohi, were tried by learned Judicial Magistrate-I, Shahdadkot in Criminal Case No.36/2022, re-State v. Khan Mohammad Brohi & others, arisen out of Crime No.134/2021, registered at Police Station A-Section, Shahdadkot, for offence under Sections 506/2, 427, 148, 149, PPC. Vide judgment dated 27^th May, 2022 the respondents/accused were acquitted while extending benefit of doubt. Appellant Ghulam Murtaza alias Sagar Chandio has filed this acquittal appeal against the acquittal recorded by the trial Court.

2. Brief facts of the prosecution case as mentioned in the second paragraph of the impugned judgment are mainly that complainant/ appellant had purchased plot from respondent Khan Mohammad but he was not prepared for execution of documents, resultantly, incident took place on 02.07.2021. It is alleged that on the aforesaid date, at 0930 hours, respondents Khan Mohammad, Mohammad Sallah, Faiz Mohammad and Baboo Raheem, all by caste Brohi, armed with deadly weapons, appeared at disputed plot and issued threats of the dire consequences and demolished portion of the boundary wall. After delay of four days, complainant lodged FIR against the respondents, as mentioned above.

3. After usual investigation challan was submitted against the respondents/accused for offence under Sections 506/2, 427, 148, 149, PPC.

4. Trial Court framed charge against the respondents and the respondents pleaded ‘not guilty’ and claimed to be tried. At the trial prosecution examined three witnesses; thereafter, prosecution side was closed.

5. Trial Court recorded statements of accused under Section 342, Cr.P.C, in which they claimed false implication in this case and denied the prosecution allegations. Respondents/accused did not lead evidence in their defence and declined to give statement on oath.

6. Trial Court after hearing the learned Counsel for the parties recorded acquittal in the favour of the respondents vide judgment dated 27.5.2022.

7. Mr. Suhendar Kumar, learned advocate for the appellant/ complainant, argued that respondents had attacked upon the appellant and demolished his boundary wall. Prosecution had proved its case against the respondents at trial. It is further contended that the trial Court has recorded acquittal in the favour of the respondents without assigning the sound reasons and impugned judgment is perverse. Lastly, it is submitted that acquittal may be converted into the conviction.

8. Mr. Ali Anwar Kandhro, learned Addl. P.G., present in the Court in other matters, waived the notice and argued that prosecution has failed to prove it’s case against the respondents/accused, because the appellant/complainant could not produce documents of the disputed plot. It is further argued that independent witnesses of the locality were not produced before the trial Court to prove the prosecution case. Learned Addl. P.G. further submitted that the piece of evidence of video recording produced at the time of arguments has rightly been disbelieved by the trial Court. Lastly, it is submitted that the judgment of the trial Court is based upon sound reasons and prayed for dismissal of the acquittal appeal.

9. I have carefully heard learned advocate for the appellant/complainant and learned Addl. P.G. for the State, perused the depositions of the prosecution witnesses and the impugned judgment, felt no necessity to issue the notices to the respondents/accused. I have come to the conclusion that the trial Court has rightly acquitted the respondents, mainly for the reasons that there was dispute over a piece of plot and alleged incident had occurred in the morning time in a village. Prosecution witness Ghulam Rasool is related to the complainant, but no independent person of village was examined at trial. It is unbelievable that respondents/ accused attacked upon the complainant with deadly weapons, but not a single injury or scratch was caused to him. Appellant/complainant had produced video recording of the alleged incident before the trial Court at the time of final arguments, but such piece of evidence was rightly disbelieved by the trial Court for valid reasons. Additionally, the prosecution was required to prove safe custody of said video recording before the trial Court. I have no hesitation to hold that the ingredients of the offences with which the respondents/accused were charged, are not satisfied from the evidence which has been brought on the record.

10. So far the appeal against the acquittal is concerned, after acquittal respondents/accused have acquired double presumption of innocence. This Court would interfere only if the judgment was arbitrary, capricious or against the record, but in this case there were number of infirmities, as mentioned above. Impugned judgment of acquittal, in my considered view, did not suffer from any misreading and non-reading of evidence. As regard to the consideration warranting the interference in the appeal against acquittal and an appeal against conviction, principle has been laid down by the Hon’ble Supreme Court in various judgments. In the case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo (1993 SCMR 585), Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

“14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, 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. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

11. For what has been discussed above, I am of the considered view that the impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan. Neither there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, Criminal Acquittal Appeal No.S-73 of 2022 is without merits and the same is dismissed.

JUDGE

Qazi Tahir PA/*