IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acquittal Appeal No.S-61 of 2022

Appellant(s) : Mst. Aqeela Khatoon Abbasi, through

Mr. Muhammad Afzal Jagirnai, Advocate

Respondent(s) : Muhammad Sarwar Abbasi and another

Mr. Shafi Muhammad Mahar, DPG.

Date of hearing & Order : 08.09.2022.

O R D E R.

Naimatullah Phulpoto, J.- Respondents Muhammad Sarwar son of Muhammad Sabir and Mst. Salma daughter of Sabir by caste Abbasi, were tried by learned Civil Judge and Judicial Magistrate-I, Jacobabad in Criminal Case No.12/2022, re-State v. Muhammad Sarwar and others, arisen out of Crime No.20/2019, registered at Police Station City Jacobabad, for offence under Sections 457, 380, 147,148 PPC Vide judgment dated 18th May, 2022 the respondents/accused were acquitted while extending benefit of doubt. Appellant Mst. Aqeela Khatoon has filed this acquittal appeal against the acquittal recorded by the trial Court.

2. After usual investigation challan was submitted against the respondents/accused for offence under Sections 457, 380, 147,148 PPC.

3. 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.

4. 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.

5. Trial Court after hearing the learned Counsel for the parties recorded acquittal in the favour of the respondents vide judgment dated 18.5.2022.

6. Mr. Muhammad Afzal Jagirani, learned advocate for the appellant/ complainant, argued that respondents had committed lurking house trespass and had stolen house hold articles of complainant. 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.

7. Mr. Shafi Muhammad Mahar, learned Deputy Prosecutor General, present in the Court in other matters, waived the notice and argued that prosecution has failed to prove its case against the respondents/accused, because the appellant/complainant could not produce any sufficient and incriminating material/ evidence against accused persons and relevant witnesses of the case/crime. It is further argued that independent witnesses of the locality were not produced before the trial Court to prove the prosecution case. Lastly, it is submitted that the judgment of the trial Court is based upon sound reasons and prayed for dismissal of the acquittal appeal.

8. I have carefully heard learned advocate for the appellant/complainant and learned D.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 mentioned in paragraph 14 of impugned judgment. Relevant para is reproduced as under:-

"In continuation of above paras:- it is also pertinent to mention here that, after bare perusing the contents of FIR, respective chief &cross examination of prosecution witnesses as well as material placed before me which reveals that, it has reiteratively contended that, the accused Muhammad Sarwar being son-in-law to complainant had allowed by complainant to reside at the house of complainant. Moreover, looking to the compelling circumstances of prosecution case, it must be required to cite Mst. Aneela Naz as witness, since the all the relevancy of above facts and circumstances of prosecution case directly belongs to Mst. Aneela which cannot easily be furnished by present complainant and PWs. In this regards neither the I.O had taken effort to record any statement of Mst. Aneela Naz nor she has been cited as witness in witness calendar of charge sheet. Furthermore, another eyewitness of alleged incident namely Ghulam Ali has not been examined by prosecution case. The surprising fact of prosecution case is that, with regard the medical evidence prosecution had not produced even a single clue on account of medical evidence. Mst. Aneela Naz keeps importance in prosecution case since the alleged incident take place on account of returning of her dowry articles, on whose civil nature litigation instant story managed. Non production of PW Muhammad Ali and non citing the Mst. Aneela Naz as witness is sufficient to creates serious doubt and makes the prosecution story suspicious. Such conduct of the prosecution, itself harmful for the case of prosecution. Further, the court can assume about the non production of Mst. Aneela Naz and non examination of PW namely Ghulam Ali that, they would depose against the prosecution. Hence such evidence did not produce in the court. Reliance can placed on Article 129 of Qanun-e-Shahadat. The illustration (G) of above article is hereby reproducedLg) "that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it." Such illustration clears the above view of the court".

Prosecution had failed to prove its case.

9. 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.”

10. 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-61 of 2022 is without merits and the same is dismissed.

JUDGE

S.Ashfaq/-

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acquittal Appeal No.S-61 of 2022

Appellant Mst. Aqeela Khatoon Abbasi, through

Mr. Muhammad Afzal Jagirnai, Advocate

Respondent(s) Muhammad Sarwar Abbasi and another

Mr. Shafi Muhammad Mahar, DPG.

Date of hearing & Order : 09.08.2022.

O R D E R.

2. Brief facts of the prosecution case as mentioned in the second paragraph of the impugned judgment are that, incident took place on 13/03/2019 at about 1200 hours noon while the complainant Mst. Aqeela Khatoon W/O Muhammad Ramzan by caste Abbasi reported the same on 18/04/2021 at about 2150 hours at Police station City, Jacobabad stating therein that she is resident of Ghousia Muhalla, beat No.02 Bazaar Ghaat Jacobabad. One accused Muhammad Sarwar is son-in-law to complainant, while his brothers accused Anwar, Asif, Imamuddin, Muhammad Yousif and Mst. Salma were stayed at the house of complainant. On 13/03/2019, complainant alongwith her husband Muhammad Ramzan and relative Ghulam Ali Brohi had gone to JIMs Hospital Jacobabad for treatment after giving stay to accused & his brothers/sister in one room while another room was locked by complainant. At about 1200 hours, the complainant party after getting free from treatment and returned, on returning they reached in the street and saw that, one Dotson had parked near the house of complainant which contains the house hold article of complainant. On that, complainant party came forward to proceed towards their house but accused persons immediately got succeeded to escape away towards western side by boarding on such Dotson alongwith house hold articles of complainant's house. Complainant party being empty handed and due to fear did not trace the accused and entered into house alongwith his PWs where they found the lock of closed room was broken and the house hold articles were scattered. Further complainant party saw that the house hold articles containing one fridge, one stabilizer, two ceiling fans, one solar plate, two batteries, one generator, one loud speaker, one computer, one laptop, one LCD TV while other house hold articles and cloths were also missing, as same have been stolen away by above named accused persons. Thereafter, complainant usually approached to accused party for returning of her stolen property, but accused party kept the complainant on hollows hopes and finally refused to return the same. On that, complainant appeared at police station and lodged instant FIR against above named accused, as mentioned above.

3. After usual investigation challan was submitted against the respondents/accused for offence under Sections 457, 380, 147,148 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 18.5.2022.

7. Mr. Muhammad Afzal Jagirani, learned advocate for the appellant/ complainant, argued that respondents have taken away the house hold articles containing one fridge, one stabilizer, two ceiling fans, one solar plate, two batteries, one generator, one loud speaker, one computer, one laptop, one LCD TV while other house hold articles and cloths. 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. Shafi Muhammad Mahar, learned Deputy Prosecutor General, present in the Court in other matters, waived the notice and argued that prosecution has failed to prove its case against the respondents/accused, because the appellant/complainant could not produce any sufficient and incriminating material/ evidence against accused persons and relevant witnesses of the case/crime. It is further argued that independent witnesses of the locality were not produced before the trial Court to prove the prosecution case. 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 D.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 -------------------------------

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:-

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-61 of 2022 is without merits and the same is dismissed.

JUDGE

S.Ashfaq/-