JUDGMENT SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Criminal Acquittal Appeal No.S-125 of 2021
Appellant: PirBakhsh
son of SohrabChachar
Through Mr.Sanwal Khan Chachar Advocate.
Versus
Respondents : Imam Bakhsh and 05 others
Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.
Date of hearing: 24.02.2022.
Date of Judgment: 24.02.2022.
J U D G M E N T
AMJAD ALI SAHITO, J-.Being aggrieved and dissatisfied with
the judgment dated 13.10.2021,recorded under Section 245-(1) Cr.P.C in favour
of the respondents Nos. 1to6by the learned Civil Judge & Judicial
Magistrate-I Ubauroin criminal case No. 221/2021 arising out of FIR
No.106/2020 for offences under sections 337-U, 147, 148, 149, 504 PPC registered
at PSUbauro, District Ghotkiwhereby the respondents1 to 6 were acquitted from
the charge.
2. The
facts in brief necessary for disposal of instant acquittal appeal are that there
was annoyance between the parties over agricultural land. On 10.08.2020 complainant was present inside his otaq, in the meantime at 4.00 pm accusedpersons
namely: Imam Bakhsh, Rafique Ahmed, Naseer Ahmed, Sajjad, Muhammad Ghazi and
Ali Nawaz having sticks/lathies trespassed in the otaq of complainant and
challenging him abused him, accused Rafique Ahmed caused fist blows to
complainant on his face with the result his upper lip got injured and tooth was
broken while the remaining accused maltreated complainant by causing kicks and
fist blows. Then complainant raised cries which attracted to his sons Mir
Hassan and Gaji who intervened and gave holy names to accused then accused went
away while abusing, ultimately complainant was brought at Police Post
KamooShaheed from where he obtained letter for medical examination and after medical
treatment lodged FIR.
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 Medical Officer Dr. Nisar Ahmed
at Exh.09 who produced letter for treatment and medical certificate of injured.
PW-2 complainant PirBakhsh at Exh.10 who produced FIR. PW-3 mashirGaji Khan at
Exh.11 who produced mashirnama of injuries, mashirnama of site inspection and
mashirnama of arrest of accused Imam Bakhsh and Rafique.PW-4 Investigating
officer ASI FaizullahKosh at Exh.13 who produced entry No.25. PW-5 HC
LalBakhshChachar was examined at Exh.14 who produced entry No.07. 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. After
assessment of evidence learned trial court has passed the above impugned
judgment which is assailed before this Court through instant criminal acquittal
appeal.
8.
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.
9. Learned D. P.G by supporting the impugned Judgment submits that
complainant could not prove his case hence the learned trial Court has rightly
passed the Judgment and acquitted the respondents/accused.
10. The case of prosecution is that on 10.08.2020
complainant was present inside his otaq,
in the meantime at 4.00 pm accused persons namely: Imam Bakhsh, Rafique
Ahmed, Naseer Ahmed, Sajjad, Muhammad Ghazi and Ali Nawaz having sticks/lathies
trespassed in the otaq of complainant and after challenging abused him, accused
Rafique Ahmed caused fist blows to complainant on his face with the result his
upper lip got injured and tooth was broken while the remaining accused
maltreated complainant by causing kicks and fist blows. Then complainant raised
cries which attracted to his sons Mir Hassan and Gaji who intervened and gave
holy names to accused then accused went away while abusing, ultimately
complainant was brought at Police Post KamooShaheed and after getting letter
and medical treatment lodged FIR
11. From perusal of judgment passed by the trial Court it reveals
that complainant PirBakhshChachar in his cross examination deposed that P.Ws
came after the accused had maltreated him and further stated that PWs have not
seen the accused while maltreating him but on the contrary PW Gaji in his
examination-in-chief/ evidence recorded at Exh.11 deposed that he and his
brother PW Mir Hassan went inside otaq and saw accused were fighting with their
father/complainant. Complainant has deposed that he was sitting in the room of
his otaq while PW Gaji deposed in his cross that complainant was present in the
courtyard of his otaq. Complainant has deposed in his examination in chief that
he was admitted in hospital for 07 days while PW Medical Officer Dr. Nisar
Ahmed deposed in his cross examination that injured remained in hospital for
2/3 hours and complainant/injured was discharged on the same day at 10.30 pm.
Complainant deposed in his evidence that about 15/20 villagers gathered at the
place of incident while PW Gaji denied the version of complainant by saying
that no one came from the villagers at the place of incident. From the evidence
of complainant it has come on record that complainant himself has admitted that
the accused are his brothers and nephews and complainant also admitted his
enmity with accused persons over the partititon of landed property and even the
police failed to secure blood stained clothes, broken tooth was secured by
police or produced by the complainant. It is also evident from perusal of
record that complainant at the time of getting letter for treatment did not
disclose to police that his tooth was broken or even the memo of injuries also
does not disclose that whether took of complainant was broken. Medical Officer
who was examined before trial Court has admitted in his evidence that he has
not collected Dental Expert opinion nor the same was produced before trial
Court. There are many contradictions in the statements of PWs examined by the trial Court and no
independent witness was cited to corroborate the circumstances has been
examined.
12. Ihave 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 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 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”.
13.
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”
14. In
view of facts and reasons discussed above, the instant Criminal Acquittal
appeal is dismissed.
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