IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acq. Appeal No. S-133 of 2021

Appellant		Muhammad Maroof Chandio,
		Through Mr. Suhendar Kumar Gemnani, advocate

Respondents No.1 to 4		Farooq and others
		Through Mr. Muhammad Afzal Jagirani, advocate
State		Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing		30-03-2023
Date of order		30-03-2023

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant Criminal Acquittal Appeal, the appellant/complainant Muhammad Maroof has assailed the judgment dated 02.12.2021, passed by the learned District & Sessions Judge, Kambar-Shahdadkot @ Kambar, in Sessions Case No. 215/2021 (Re. State Vs. Farooq Chandio & others), for offence punishable Under Sections 324, 114, 337-A(i), 337-F(i), 337-F(v), 337-H(ii), 148, 149, whereby respondents/ accused Farooq and four others were acquitted.

2. Precisely, the facts leading to disposal of instant criminal acquittal appeal as per contents of FIR are that on 26.03.2021 at about 08:30 pm, at Kamber-Waggan road near Fatal Petrol Pump, situated in Deh Bago Dero, Taluka Kamber, accused (1) Farooque (2) Ghulam Mustafa @ Don both sons of Hassan Ali Chandio (3) Ameer s/o Zameer Hussain Chandio (4) Muhammad Pariyal s/o Ali Murad Chandio (5) Zameer s/o Khair Muhammad Chandio (6) Waseem @ Farhi s/o Manzoor Gopang, all armed with pistols intercepted complainant party and accused Zameer Chandio instigated other accused, to which accused Farooque made straight fire on PW Zahid with intention to commit his murder, which hit him and he fell down on ground while raising cries. Accused Ghulam Mustafa @ Don made direct fire on PW Zaffar, which hit him. Complainant party raised cries of murder, murder, to which all accused fled away from spot while making aerial firing, complainant noticed that fire was hit to PW Zahid on his leg and Zaffar received injury on his hand and they were brought at Civil Hospital Kamber for treatment, hence this FIR.

3. On completion of usual investigation, the police submitted final challan against the respondents/accused before learned trial Court, where after all legal codal formalities, the charge was framed against them, to which they pleaded not guilty and claimed trial vide their plea were recorded.

4. In order to establish accusation against the respondents/ accused, the prosecution examined as many as seven witnesses, who produced certain documents and items in support of their evidence. Thereafter, the learned Incharge DPP for the State closed it’s side.

5. The respondents/accused in their statement recorded in terms of Section 342 Cr.P.C denied the allegations leveled against them by pleading their innocence. They however, did not examine themselves on oath nor led any evidence in their defence. However, accused Farooq produced copy of FIR, USB, copy of another FIR and copy of judgment.

6. The learned trial Court after hearing the Counsel for the parties and evaluation of the evidence acquitted the respondents/accused, which the appellant/complainant has assailed before this Court by preferring the instant criminal acquittal appeal.

7. Per learned counsel for the appellant/complainant that learned trial Court has passed the judgment in violation of law and there was sufficient material on record to convict the respondents/accused but learned trial Court acquitted them on flimsy grounds; that the complainant and his witnesses have fully supported the case and the evidence of complainant was corroborated by the evidence of bank official; that no major contradiction is available in the evidence of prosecution witness; that the judgment passed by the learned trial Court is not based on cogent reasons. He lastly submits that the acquittal of the respondents/accused by way of impugned judgment requires interference by this Court and the same may be set aside.

8. Learned D.P.G. has supported the impugned judgment.

9. Learned counsel for respondents has also supported the impugned judgment and submits that all the respondents/accused are innocent and falsely been implicated in this case by the complainant; that accused persons were not present at the place of incident at the alleged time, but complainant has implicated them in this case with malafide intentions as there is outstanding amount of accused party against complainant and to usurp the same, he has implicated the respondents/accused in this case. He further submitted that there are huge contradictions in the statements of P. Ws, which are major, therefore, the learned trial court has rightly acquitted the respondents/accused from the charge. He has prayed for dismissal of instant criminal acquittal appeal.

10. Heard learned counsel for appellant/complainant, learned counsel for the respondents/accused and learned D.P.G. and perused the material made available on the record.

11. The perusal of judgment reflects that the learned trial Court has mainly acquitted the respondents/accused on the following reasons;

“Complainant Muhammad Maroof deposed that they came at Nasirabad Naka at the shops of their relatives to purchase grocery material, whereas eyewitness/injured Zaffar has deposed that they came at Kamber City but at present he does not remember exact place and they had not taken tea nor purchased anything---PW/injured Zaffar in his examination-in-chief deposed that after incident all accused ran away towards southern side while making slogans, whereas PW/injured Zahid in his examination-in-chief deposed thereafter, all accused made aerial firing and ran away--- Complainant deposed that incident lasted for five minutes, whereas PW/injured Zaffar deposed that incident lasted for 10/15 minutes---PW/injured Zaffar deposed that he came at hospital by foot with the help of people, however injured Zahid was brought with the help of public persons on motorcycle, whereas PW/injured Zahid deposed that he was brought at hospital with the help of other public persons on their hands. Apart from the above contradictions, it is matter of record that PW/injured Zahid did not implicate accused Ghulam Mustafa as he has not deposed anything in his examination-in-chief but only deposed that accused Zamir instigated all accused not to spare them and kill them, to which accused Farooque made fire upon him and thereafter, all accused made aerial firing and ran away, which is also big dent to the case of prosecution as he did not depose whether accused Ghulam Mustafa made fire upon PW Zaffar or not. Moreover, mashir of place of vardhat and inspection of injuries has been associated by ASI, is real son of complainant and no independent mashir from public has been associated in this case. Both I.O and mashir have also given contradictory statements as I.O/ASI in his examination-in-chief deposed that he inspected place of vardhat and recovered 02-empties of T.T pistol, whereas Mashir in his examination-in-chief deposed that ASI visited place of incident in his presence and mashir Shoukat Ali on the pointation of complainant Muhammad Maroof and collected 04-empties of 30-bore pistol---I.O/ASI in his examination-in-chief also deposed that on the next day at about 0700 hours, he went to Taluka Hospital Kamber, where he examined injuries of injured Zahid and Zaffar and prepared such memo, whereas Mashir deposed that ASI also said them for coming to CMCH Larkana in the morning time at 07:00 am then at about 07:00 am he alongwith Shoukat Chandio went to CMCH Larkana where ASI also arrived there alongwith complainant. ASI inspected injuries of injured Zaffar and Zahid and prepared such memo in their presence and obtained signatures over the memo.”

12. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Supreme Court in the cases of State Versus Abdul Khaliq and others (PLD 2011 SC 554), wherein the Hon’ble Supreme Court has held as under:-

“From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

13. Based upon the above discussion, I am of the humble view that the learned trial Court has rightly acquitted the respondent/accused by way of impugned judgment which even otherwise does not suffer from any illegality to be interfered with by this Court by way of instant Criminal Acquittal Appeal, the same fails and is dismissed in limine together with listed application.

J U D G E

Abdul Salam/P.A