IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Acquittal Appeal No. S- 32 of 2023.
Appellant: Moula Bux, through Mr. Saeed Ahmed Bijarani, Advocate.
Respondents: Muhammad Rahim alias Dhila and 2 others.
Date of Hearing: 08.05.2023.
Date of Judgment: 08.05.2023.
Judgment
Zulfiqar Ali Sangi, J-. This appeal against acquittal under Section 417 (2-A) of Cr.P.C is directed by complainant Moula Bux Bahalkani assailing judgment dated 01.04.2023, passed by learned Sessions Judge, Kashmore @ Kandhkot in Sessions Case No.198/2022 re; The State v. Muhammad Rahim alias Dhila & others, arisen out of F.I.R No.86/2022 of P.S A-Section Kandhkot, whereby the learned trial Court has acquitted the accused/ respondents No.1 and 2, namely, Muhammad Rahim alias Dhila and Fateh Muhammad alias Khillo.
2. The case of prosecution as depicted from para 2 of the impugned judgment, reads as under: -
“The brief facts of this case as narrated in the F.I.R No.86/2022 of P.S A-Section Kandhkot lodged on 07.5.2022 by Moula Bux Bahalkani are that the people of Bahalkani community has dispute over issue of honor killing with accused Fateh Muhammad alias Khillo Bahalkani and others but the complainant has no nexus with the issue nevertheless accused Fateh Muhammad alias Khillo Bahalkani and others used to say that they would settle accounts with the complainant as the complainant and others have been seen in company of opponents of accused Fateh Muhammad alias Khillo. On 05.05.2022, the complainant, his brohter Khuda Bux, cousin Ameer Bux were proceeding towards new Sabzi Mandi, Kandhkot town. At 0530 hours they reached bungalow of Nek Muhammad Suhriyani and came across Fateh Muhammad alias Khillo armed with lathi, Raheem Bux alias Sodho armed with T.T pistol, Mazhar, Raheem alias Dhilla, Abdul Khalique and an unknown person who were all armed with lathis. All the accused raised hakal, issued threats and accused Fateh Muhammad alias Khillo inflicted lathi blow on the complainant due to which the complainant sustained injury on elbow of right arm. Accused Raheem Bux alias Dhilla inflicted lathi blow which hit below elbow of left arm. Accused Abdul Khaliq inflicted lathi blow on left hand of the complainant. Oppo mobile phone set of the complainant was also damaged due to lathi blow inflicted by accused Abdul Khalique. All the accused inflicted blows on the complainant and decamped by riding on motorcycle The complainant approached P.S A-Section Kandhkot, obtained letter for examination and treatment of injuries; reached Taluka Hospital Kandhkot, obtained medico legal certificate and lodged F.I.R of the incident.”
3. On completion of usual investigation, the investigation officer submitted challan before the concerned Magistrate against accused Muhammad Raheem and Fateh Muhammad, while rest of the accused were shown as absconders. After completing usual formalities against absconding accused they were declared as proclaimed offenders and case was sent to the learned Sessions Judge for trial. Formal charge was framed against the accused/ respondents No.1 and 2, to which they pleaded not guilty and claimed to be tried.
4. At trial, the prosecution examined its witnesses and after closing the side of prosecution the statements of accused were recorded under Section 342, Cr.P.C, who claimed their innocence and false implication in the case; however they neither examined themselves on oath nor any witness in their defence. Ultimately, the learned trial Court after hearing the parties counsel passed the impugned judgment, whereby acquitted the respondents No.1 and 2. Hence, this appeal has been preferred by the complainant.
5. Learned counsel for the appellant mainly contended that trial Court has not appreciated the evidence produced at trial according to principles of evaluating the evidence in criminal cases. He further contended that prosecution has produced trustworthy ocular testimony supported by medical evidence before the trial Court but it has not appreciated the evidence and erroneously extended benefit of doubt in favour of accused/ respondents No.1 and 2. He further contended that the prosecution had proved its case beyond any shadow of doubt and the acquittal of the accused/ respondents has caused miscarriage of justice. He lastly contended that the impugned judgment may be set-aside and the accused/ respondents No.1 and 2 may be convicted.
6. A careful perusal of the impugned judgment reflects that the learned trial Court inter alia found the material contradictions in the evidence produced by prosecution; the entire evidence produced by the prosecution has been discussed in detail; delay in registration of the F.I.R has been considered to be fatal to the prosecution case and that the ocular evidence is also in conflict with medical evidence; recovery is also found to be doubtful. As such, the learned trial Court has recorded acquittal of the accused/ respondents No.1 and 2 and on the basis of cumulative assessment of the evidence brought on record. The learned trial Court after proper assessment of the evidence determined that the prosecution failed to prove the case against accused persons, and then extended them the benefit of doubt.
7. When called upon to show the misreading or non reading of evidence or other infirmity afflicting the impugned judgment, particularly the points noted by the learned trial Court in the impugned judgment, the learned counsel for the appellant was found wanting and could not point out any such error or omission. The contradictions and other material observed by the trial Court have been suitably highlighted in its judgment. The observations of the trial Court on very material points seems to be proper and it has properly commented on all aspects of the case. In these circumstances, the learned trial Court has rightly come to a conclusion that the prosecution could not establish the case against the respondents/ accused.
8. It is well settled principle of law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remain slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477) the Honourable apex Court observed as under:-
“That the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non reading of evidence… Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.
9. Similar view was reiterated by the Honourable apex Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-
“Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.”
10. For the foregoing reasons and keeping in view the dictum laid down in the cases (supra), I, do not see any weight in the arguments advanced by learned counsel for the appellant/ complainant and do not find any illegality in the impugned judgment of acquittal, as such the acquittal appeal is hereby dismissed in limine.
Judge
Ansari