IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Acquittal Appeal No. S- 60 of 2022.

Appellant:                             Imdad Hussain, through Mr. Ghulam Rasool Narejo, Advocate.

Respondents:                        Ghulam Rasool and 8 others.

Date of Hearing:                   10.05.2023.

Date of Judgment:                10.05.2023.

Judgment

Zulfiqar Ali Sangi, J-. This appeal against acquittal under Section 417      (2-A) of Cr.P.C is directed by complainant Imdad Hussain Brohi assailing judgment dated 13.5.2022, passed by learned 2^nd Civil Judge & Judicial Magistrate/ MTMC, Larkana in  Criminal Case No.162/2021 re; The State v.  Ghulam Rasool alias Ghulam Hussain Jagirani & others, arisen out of F.I.R No.39/2021 of P.S Kanga, whereby the learned trial Court has acquitted the accused/ respondents No.1 to 8.

2.         The case of prosecution as depicted from para 2 of the impugned judgment, reads as under: -

            “The relevant fags as unfolded in the F.I.R are that complainant Imdad Hussain Brohi appeared at the P.S Kanga on 27.8.2021 and reported the matter stating therein that on 19.7.2021 he along with P.Ws Hakim Ali Brohi, Ghulam Muhammad Brohi and Shahid Hussain were available at his agricultural land situated in Deh Dodai, where at about 08.00 a.m., accused Ghulam Rasool, Deedar, Bashir, Zahid all having lathis; Baqar having pistol, Munwar having repeater, Ali Nawaz and Anwar Jagirani having lathis went there. The accused Baqar and Munwar aimed their weapons and instigated other accused persons not to spare the complainant, as he had filed civil suit against them, on such instigation accused Ghulam Rasool caused lathi blow to Ghulam Muhammad on his head and his blood started oozing, accused Ali Nawaz caused lathi blow to Shahid Hussain on his head and his blood started oozing, accused Anwar Ali caused lathi blow to Hakim Ali on nose and his nose was broken, accused Baqar and Munwar caused but blows to complainant, whereupon complainant party raised cries, after that all the accused persons while issuing murderous threats and making aerial firing went away, finally the complainant went at Police station and got registered such F.I.R. The motive is said to be civil suit filed by the complainant against the accused persons.”

3.         On completion of usual investigation, the investigation officer submitted challan against accused persons before concerned Magistrate, who took cognizance of the case. Formal charge was framed against the accused/ respondents No.1 to 8, 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 to 8. 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 to 8. 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  to 8 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 learned trial Court has discussed in detail the entire evidence produced by the prosecution. The delay in registration of the F.I.R and delay in recording 161 Cr.P.C statements of prosecution witnesses has been considered to be fatal to the prosecution case by the learned trial Court. The motive of the alleged incident and previous enmity between the parties has also been considered and the ocular evidence has also been declared to be in conflict with medical evidence, as out of three medical certificates, two were declared as incorrect by the special medical board, so also there were material contradictions between statements of witnesses in respect of ocular and medical evidence. As such, the learned trial Court has recorded acquittal of the accused/ respondents No.1  to 8 on the basis of cumulative assessment of the evidence brought on record by determining that prosecution failed to prove case against accused persons, hence duly extending them the benefit of doubt.

7.         The contradictions and other infirmities 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. 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.

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