JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

 

Criminal Acquittal Appeal No.D-01 of 1997

 

                             Before:

Mr. Justice Muhammad Faisal Kamal Alam

Mr.  JusticeAmjad Ali Sahito,.

 

 

Date of hearing:            16.02.2022.

Date of Judgment:        16.02.2022.

                                      None present for the Appellant.

                                      None present for private Respondents.

                                      Mr. Aftab Ahmed Shar, Additional P.G

 

 

 

J U D G M E N T

 

 

AMJAD ALI SAHITO, J-.Being aggrieved and dissatisfied with the judgment dated 26.11.1996,recorded under Section 265-H(i) Cr.P.C. in favour of the respondents No.2  to 7by the learnedIInd Additional Sessions Judge Jacob Abad in Sessions case NO. 49/1991 & 99/1992 arising out of the FIR No.03/1991 for offence under sections302, 148,149 PPC and 24 Cattle Trespass Act, 1871registered at PS Kareem Bakhsh, whereby the respondents2 to 7 were acquitted from the charge.

2.      The facts in brief necessary for disposal of instant acquittal appeal are that complainant owns his land in DehMehar Ali which he used to cultivate and loosan crop was cultivated. The land of Talib  Haji and other Baber were situated near their lands and in some lands were cultivated with loosan crop. On the day of incident i.e 17.01.1991 complainant Muhammad Moosa, Talib and Haji were harvesting/cutting loosan crop when at about 1.00 pm they saw cattle of Sher Ali Bangulani entered in the loosan crop of Talibwhereupon Talib asked Sher Ali to drive away his cattle as the same are damaging the crop but Sher Ali has refused and Talib Ali drove away cattle of Sher Ali for Dhak. Sher Ali went to his house and Talib Ali was stille driving the cattle. In the meanwhile accused persons namely Sher Ali, Jalaluddin, Karim Dino, Mehboob, Sijawal and KhawandBux all bycasteBanglani duly armed with lathies came  and all six accused caused lathi blows to Talib who raised cries and fell down. Complainant and PW Haji intervened and rescued Talib. Thereafter all six accused drove away the cattle and went to their houses. Complainant party then saw that Talib had injuries on his head, left side near right eye and was lying unconscious. Complainant and PW Haji took injured to Police Station where lodged FIR under sections 325,147, 148, 149 PPC and Section 24 of Dhak Act. After registration of FIR, police referred the injured to hospital but he succumbed to injuries on same day, therefore Section 302 PPC was added.

3.      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.

4.      The charge was framed against respondents/accused by the trial Court, to which they pleaded not guilty and claimed to be tried.

5.      At the trial, in order to establish accusation against the accused, the prosecution examined PW-1 ASIP KhadimHussain at Exh.28 who produced mashirnama of inspection of dead body, inquest report, letter of M.O addressed to SHO, Inspection Form of dead body and receipt of dead body. PW-2 Dr.RaheemIjaz was examined who produced post mortem report of deceased. PW-3 complainant Muhammad Moosa was examined at Exh.31 who produced roznamcha entry. PW-4 Haji at Exh.32.PW-5 SIP Abdul MajeedJarwar at Exh.33 who produced mashirnama of injuries of injured, mashirnama of arrest of accused Sher Ali, mashirnama of vardat, mashirnama of securing lathi from Sher Ali.PW-6 GohramTapedar who produced sketch of vardat in duplicate. PW-7 HC Khair Muhammad was examined at Exh.36 who produced mashirnama of arrest of accused Jalaluddin alias Jamaluddin and securing gun from him. PW-8 PC GhulamNabi at Exh.37. PW-9 HC Muhammad Khan at Exh.38 who produced mahsinrmaaof arrest of accused Sijawal and securing of gun from him. PW-10 HC Saifuddin at Exh.39 who produced FIR. PW-11 mahsirSoomer was examined at Exh.40. PW-12 SHO Muhammad Bachal Shaikh at Exh.41.PW-13 HC Muhammad Murad was examined at Exh.43, thereafter learned State counsel closed its side.

6.      Trial Court recorded statements of the respondents/accused were recorded under Section 342 Cr.P.C, wherein they denied the prosecution allegations leveled against them. However, neither they examined themselves on oath nor led defense evidence.

7.      The learned trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, acquitted the respondents/accused Nos. 2 to 7 vide judgment dated 26.11.1996. The acquittal recorded by the learned trial Court has been impugned by the appellant / complainant before this Court by way of filing the instant Criminal Acquittal Appeal.

8.      None present for the appellant/complainant. It is pertinent to mention that per case diaries of this file, it was reported by the police that whereabouts of the respondents/accused is not known and repeatedly the process was issued against them but the police failed to procure the attendance of private respondents/accused and at last on 06.10.2010 the live warrants for the service of private respondents were directed by this Court to be issued against respondents/accused and also the office was directed to fix the matter as and when the respondents/accused are served. Today no one is present on behalf of appellant/complainant though the matter was listed in Court.

9.      Learned Addl.P.G. while supporting the impugned judgment argued that respondents are innocent and have falsely been implicated.

10.    We have heard learned D.P.G for State and with his assistance have gone through the evidence as well as impugned judgment.

11.    The case of prosecution is that on17.01.1991 complainant Muhammad Moosa, Talib and Haji were harvesting/cutting loosan crop when it was 1.00 pm they saw cattle of Sher Ali Bangulani entered in the loosan crop of Talib whereupon Talib asked Sher Ali to drive away his cattle as the same are damaging his crop but Sher Ali has refused and Talib Ali drove away cattle of Sher Ali for Dhak. Sher Ali went to his house and Talib Ali was still driving the cattle. In the meanwhile accused persons namely Sher Ali, Jalaluddin, Karim Dino, Mehboob, Sijawal and KhawandBuxbycasteBanglani armed with lathies came and all six accused caused lathi blows to Talib who raised cries and fell down. Complainant and PW Haji intervened and rescued Talib. Thereafter all six accused drove away the cattle and went to their houses. Complainant party then saw that Talib had injuries on his head, left side near right eye and was lying unconscious. Complainant and PW Haji took injured to Police Station where lodged FIR under sections 325,147, 148, 149 PPC and Section 24 of Dhak Act. After registration of FIR, police referred the injured to hospital but he succumbed to injuries on same day, therefore Section 302 PPC was added.

12.    From perusal of judgment passed by the trial Court it reveals that during evidence complainant /PW Muhammad Moosa admitted in his cross examination that accused caused single blow to Talibindividually hence Talib fell down and the accused did not repeat the second blow. PW Haji was examined by the trial Court who deposed same material facts as stated by complainant and further stated that after attack by the accused persons complainant went to his house brought bullock cart, then they took injured to P.P KarimBux but this fact was not disclosed by complainant during his evidence or this fact was not mentioned in the whole episode from registration of FIR and during the course of investigation. He admitted that all accused had used their respective lathis and Talib had sustained in all four blows. He further admitted that he has stated in his statement U/S 161 Cr.P.C that lathi blows were caused by all six accused on the person of Talib/deceased. He also admitted that when police visited vardat there was no blood stains available at vardat. SIP Abdul MajeedJarwar was examined who deposed in his evidence that complainant Muhammad came at Police Station along with injured TalibHussain for lodging report, he registered his report but during cross examination he stated that injured Talib was brought at Police Post on a Bullock Cart but complainant has not stated so. He further admitted that he has not seen any other witness with the complainant. Moreover it has been brought in the evidence that only one lathirecovered  from accused Sher Ali which was also not blood stained. The ocular evidence is contradictory to the medical evidence. No recovery was affected from any other accused except accused Sher Ali. The fatal injury particularly has not been attributed to any one of the accused.

13.       Wehave considered the arguments of learned Additional P.Gand 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 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. 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 findingsare 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”.

 

14.              We are fully satisfied with appraisal of evidence done by the learned trial Court and are 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”

 

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

 

                                                                    J U D G E

 

J U D G E

 

Irfan/PA

 

 

 

14.    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”

 

15.    The sequel of the above discussion is that I am satisfied with the appreciation of evidence evaluated by the learned trial Court while recording acquittal of the respondents/accused persons by extending the benefit of the doubt, which does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed accordingly.

16.    These of reasons of my short order announced in earlier part of the day whereby the instant acquittal was dismissed.

 

 

JUDGE

                                               

Irfan/PA