IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acq. Appeal No. S-117 of 2021

Appellant		Ali Khan Bhatti
		Through Mr. Habibullah G. Ghouri, advocate

State		Mr. Ali Anwar Kandhro, Additional Prosecutor General
Date of hearing		15-05-2023
Date of order		15-05-2023

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant Criminal Acquittal Appeal, the appellant/complainant Ali Khan Bhatti has assailed the judgment dated 05.11.2021, passed by the learned I-Additional Sessions Judge/MCTC, Kambar in Sessions Case No. 235/2021 (Re. State Vs. Muhammad Ali and another), for offence punishable Under Sections 395,458, 148,149 P.P.C, registered at Police Station Warah, whereby respondent/accused Muhammad Ali @ Ahmed Ali @ Panah and Muhammad Saleh @ Saloo were acquitted.

2. Precisely, the facts leading to disposal of instant criminal acquittal appeal are that complainant Ali Khan Bhatti lodged the F.I.R on 25-12-2020 at about 02:30 am at P.S. Warah stating therein that in the (mid Night) six unknown accused, duly armed with pistols trespassed complainant’s house situated at Hamal Mohalla Warrah, held all inmates as hostages at the point of guns and thereafter committed dacoity of Cash, Golden Ornaments and other house hold articles, all valuing Rs.13,64000, hence the complainant lodged the above said F.I.R.

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

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

5. The respondents/accused in their statement of accused 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.

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

7. Learned counsel for the appellant/complainant submits that the impugned judgment is result of misreading and non-reading of evidence adduced at the trial and the trial court has erred both on law and facts; that charge was framed in the case on 30 June 2021 but the evidence of complainant, PWs, mashir, investigating officer etc was recorded on 05.11.2021 and on the very same day the statement of accused u/s 342 Cr.P.C was recorded and the judgment was also pronounced on the same day. The entire trial was held and completed on one date i.e 05.11.2021 which amounts to justice hurried, justice buried; that evidence of PW Shahid Hussain was not recorded who happens to be eye witness of the incident. He further submits that evidence of the Learned Judicial Magistrate-Il Warrah on the point of holding of identification parade was also not recorded and the judgment is also silent whether these two material witnesses were given up by the prosecution or otherwise; that FIR of the present case was lodged promptly without loss of time just within 30 minutes of the incident as the place of incident is situated at the distance of half km from P.S. He further submits that the evidence of complainant and P.Ws was not shattered and they have fully supported the case of prosecution; that the complainant properly identified the respondents/accused in the identification parade held before the learned Magistrate and there are no material contradictions in between testimony of complainant and P.Ws. 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. Heard learned counsel for appellant/complainant, learned D.P.G. and perused the material made available on the record.

10. The perusal of judgment reflects that the learned trial Court has mainly acquitted the respondent/accused on the following reasons:

Undeniably, names and face features of unknown accused don’t transpire in FIR as well as 161 Cr.P.C statements of eye witnesses, who after around five months disclosed their names through further statements and that too without disclosing that how, when and where they came to know about identity of present accused persons.

Undeniably, complainant, eye witness, mashir and even I.O while responding questions put in Cross Examinations deposed that case property viz. a pair of Leelams and Hasri, which was allegedly recovered at the pointation of accused was not sealed on the spot. Moreover, no receipt or recovery has been produced in respect of safe recovery as well as safe deposit of alleged case property.

It is significant to observe that as per scheme of law visualized under Cr.P.C-1898 there is no provision for recoding further statements of complainant or eye witnesses and that such practice is only adopted by police in order to fill up lacuna left by prosecution. Moreover, both eye witnesses are admittedly chance witnesses and no plausibly justification brought on record that how they came at the house of maternal uncle before the incident, who is the complainant of the case.

It is therefore easy to understand and to conclude to prudent mind that evidence and material whatever has been brought on the record by the prosecution is insufficient to base conviction against the present accused because quality of evidence decides fate of criminal trial and prosecution is bound to prove truth of charge against the accused beyond shadow of the reasonable doubt but as regards case in hand alleged participation of the accused in the alleged crime has been found highly doubtful entitling them to acquittal not a matter of grace but as a matter of right.

11. 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.”

12. 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