JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

Criminal Acquittal Appeal No.S-154 of 2021

Before:

                             Mr.JusticeAmjad Ali Sahito.

Fresh case.

01. For orders on MA No.95/2022 (U/A)

02. For orders on office objection at Flag 'A'.

03. For hearing of main case.

12.01.2022

Mr.KashifHussain Shaikh, Advocate for Appellant.

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01. Urgency granted.

02. Deferred.

03. The facts in brief necessary for disposal of instant acquittal appeal are that on 10.04.2019 at 2000 hours complainant Muhammad Shareef lodged FIR at PS Mithiani alleging that on 12.03.2019 he had gone to his land, on return when he reached at Banana garden of Imam Ali Bhurt, it was about 7.00 pm he saw five persons with open faces who were identified to be Anwar, Ayub, Altaf armed with guns while two were unidendified persons armed with pistols. It was further alleged that on instigation of accused Anwar, accused Ayub caused butt blows of gun to complainant which hit to him on little finger of left hand, accused Altaf and unidentified person maltreated complainant by causing kicks and fists blows. Accused Anwar made straight fire of gun upon complainant with intention to commit his murder, which hit complainant on his left leg, complainant raised cries and fell down meanwhile Abdul Rasheed and Muhammad Morial came there who intervened and rescued the complainant party, then accused fled away, complainant with the help of witnesses came at P.S. Complainant obtained referral letter and after obtaining final MLD went to PS and lodged FIR.

4.   After completing the 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.

5. During the pendency of the sessions case before trial Court, respondents/accused Muhammad Ayub and AltafHussain through their counsel moved an application under Section 265-K Cr.P.C for their pre-mature acquittal on the ground that there is no probability of the accused /respondents being convicted if the case is proceeded further and evidence of all the witnesses recordedowing to the fact that during the course of investigation the case was disposed of by the I.O under false ‘B’ class and there is no tangible evidence against the respondents/accused to connect them with the alleged offence when the old enmity between the parties is going on.

6.       Learned counsel for the appellant contended that accused persons are nominated in the FIR and they have participated in the commission of offence. The respondents/accused along with co-accused in furtherance of their common object committed rioting and on instigation of accused Anwar, other accused caused butt blows and made gun fire upon complainant which hit on his left leg. The Investigating Officer did not conduct the fair investigation in the matter and the case was disposed of in ‘B’ class but the concerned Magistrate took cognizance and on his direction the challan was submitted; that learned trial court has committed illegality while acquitting the respondents/accused under Section 265-K Cr.P.C and there is sufficient material available with the complainant party to prove their case, hence the impugned order is liable to be set aside.

7. In view of above, all the contentions raised by learned counsel for the appellant for remanding the case back to learned trial Court are repelled with full force being without merits and misconceived. From perusal of judgment passed by the trial Court it transpires that during the course of investigation, the complainant and his witnesses could not bring sufficient material before Investigating Officer hence their case was recommended to be disposed of under false ‘B’ class but the Magistrate concerned took cognizance and on his directions the challan was submitted. The Judgment of trial Court further reveals that the charge was framed on 16.11.2019 and the prosecution was put on notice to procure the attendance of witnesses but prosecution failed to procure the witnesses. Moreover, complainant lodged the FIR with the delay of one month and seven days without any plausible explanation. There is admitted enmity between the parties which is evident from perusal of contents of FIR. The complainant of this case is said to have died and the principal accused namely Anwar has also reported to be died and the proceedings against him were abetted vide order dated 01.06.2021.

8. Basically, the scope of interference in an appeal against acquittal is narrow and limited for the reason that in 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 presumption of innocence is doubled. As per dicta laid down by the Honorable Supreme Court, it has been categorically held that such judgment should not be interfered unless the findings are perverse, arbitrary, foolish, artificial, speculative, and ridiculous, which is not the case in hand.

9. In the instant case, I do not find any illegality or irregularity committed by the learned trial Court, while passing the impugned order, which does not call for any interference by this Court.

10. In view of the facts and reasons discussed above, I find no merit in the present case and resulting in miscarriage of justice while recording acquittal of the respondents/ accused under Section 265-K Cr.P.C. by the learned trial court. Resultantly, the instant appeal merits no consideration, and accordingly the same is dismissed in limine along with pending applications, if any.

                                                         J U D G E

Irfan/PA