IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Cr. Acq. Appeal No. S-29 of 2023

 

 

Appellant

 

Imtiaz Ali Kalhoro

 

 

Through Mr. Ghayoor Abbas Shahani, advocate

 

 

 

Date of hearing

 

17-05-2023

Date of Judgment

 

17-05-2023

 

J U D G M E N T

Zulfiqar Ali Sangi, J.    Through instant Criminal Acquittal Appeal, the appellant/complainant Imtiaz Ali has assailed the judgment dated 16.03.2023, passed by the learned IV-Additional Sessions Judge, Larkana in Sessions Case No. 604/2021 (State Vs. Izhar Mehdi and another), for offence punishable Under Sections 452, 365-B, 343, 148 & 149 P.P.C, registered at Police Station Rahmatpur, whereby respondents/accused Izhar Mehdi and Zulfiqar were acquitted.

2.                         Precisely, the facts leading to disposal of instant criminal acquittal appeal are that the incident took place on 12.07.2021. Complainant, Imtiaz Ali Kalhoro, along with his 16-year-old daughter Mst. Kanwal, brothers Ashfaq Ahmad and Altaf Hussain and other family members were asleep in the courtyard of their house located at Bhens Colony in Larkana. They were awakened by some noise and saw that the accused Izhar Mehdi s/o Zulfiqar and Zulfiqar s/o Shah Murad along with co-accused Waqar Haidar Magsi, Gaffar Magsi, and an unknown, were present in the courtyard holding pistols. The accused held the complainant and his family members at gunpoint and made them be quiet. Izhar Mahdi Magsi, one of the accused, grabbed complainant's daughter Mst. Kanwal by the arm and dragged her outside the house while she screamed. The other accused followed and went outside as well. When the complainant and his remaining family members went to the door, they saw that Gaffar Magsi was driving a motorcycle and the other accused were sitting in a white car, and they abducted Mst. Kanwal. Thereafter, complainant, upon consultation with his elders, lodged the FIR on July 12, 2021 at 4:00 pm alleging therein that Izhar Mahdi Magsi, along with the co-accused, forcibly entered in his house and abducted his daughter Mst. Kanwal with the intention of marrying her against her will or committing rape with her, hence the complainant lodged the above F.I.R.

3.                         After registration of F.I.R, the investigation was conducted and challan was submitted before the competent court. The charge was framed against respondents, 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 seven witnesses, who produced certain documents and items in support of their evidence. Thereafter, the learned ADPP for the State closed it’s side.

5.                          The respondents/accused in their statements recorded in terms of Section 342 Cr.P.C denied the allegations leveled against them by pleading their innocence. Accused Zulfiqar Ali examined him on oath and produced copy of deposition of one Yar Muhammad recorded before learned Judicial Magistrate-IV, Larkana in Criminal Case No.93/2021. Accused Izhar Mehdi Magsi examined himself on oath and produced Nikahnama dated 05.04.2021 of his marriage with complainant’s daughter Mst. Kanwal (allegedly abducted), album of seventeen photographs with her and her brother, six pages containing SMS messages between him and complainant’s daughter, six pages containing chatting on Messenger Application between him and complainant’s daughter and USB of video message of complainant’s daughter. Accused also examined DW-1 Nadir Ali Magsi and DW-2 Aijaz Ali Mugheri in support of their version that complainant’s daughter, prior to the incident, had been wedded wife of accused Izhar Mahdi Magsi. Thereafter, learned counsel for accused closed their evidence side.  

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 prosecution has proved the case through oral and documentary evidence; that all oral and documentary evidence produced by accused Izhar Mehdi are fake and false evidence; that under the settled principle of law, such evidence cannot be given weight unless are sent for forensic examination; that complainant’s daughter’s statement U/S 164 Cr.P.C and evidence of learned Judicial Magistrate, who had recorded such statement, inspire confidence that accused have committed a heinous crime which is also against society; that 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.                         Heard learned counsel for appellant/complainant and perused the material made available on the record.

9.                         The perusal of judgment reflects that the learned trial Court has mainly acquitted the respondents/accused on the basis of contradictions in the evidence of prosecution witnesses and by believing the defence version disclosed by the accused persons is as under:-

 

          "I now revert to the evidence of accused recorded under Section 340(2) Cr. PC at Ex.14 and 15 and documents produced by them, and evidence of their defense witnesses Nadir Ali and Aijaz Ali recorded at Ex.16 and 17 respectively. Based on the defence evidence presented, it appears that accused Izhar Mahdi Magsi, prior to the incident, had married complainant’s daughter Mst. Kanwal (allegedly abductee) with her and her parents’ consent on April 5, 2021, of which Nikkah was cited by Maulvi Mumtaz Ali Soomro, vide Nikkahnama (Exh.15/A). The relationship between the spouses started to strain due to a dispute over marriage expenses between their parents, which resulted in criminal cases being initiated against accused by complainant and his relatives. It is also noted that the complainant’s maternal uncle Shabir Ahmad had lodged FIR No.58/2021 at PS Rahmatpur under Section 506 (2) PPC etc. against accused Zulifiqar Magsi. In Criminal Case No.93/2021, which had arisen out of FIR No.58/21, Shabir Ahmad had admitted accused Izhar Mahdi Magsi’s relationship with complainant’s daughter Mst. Kanwal (allegedly abducted) as her husband during his evidence recorded before the learned Judicial Magistrate- IV, Larkana, as evidenced by Exh.14/A. Furthermore, during cross-examination of the accused in the instant sessions case, learned ADPP assisted by learned counsel for complainant did not put a single question or give a suggestion that Shabir Ahmad is not the maternal uncle of the complainant and that he had not admitted during his evidence in Criminal Case No.99/2021 complainant’s daughter Mst. Kanwal (allegedly abducted)’s relationship with accused Izhar Mahdi Magsi as her wedded wife.

 

          Besides, accused Izhar Mahdi Magsi has produced album of seventeen photographs at Exh.15/B. The physical contact and expression of affection between complainant’s daughter Mst. Kanwal (allegedly abducted) with accused Izhar Mahdi Magsi captured in these photographs, if seen in the context of defence witnesses’ not refuted evidence discussed in preceding paragraph, substantiates accused’s version that prior to alleged incident, complainant’s daughter Mst. Kanwal (allegedly abducted) has been in relationship with accused Izhar Mahdi Magsi as his wedded wife. Furthermore, accused Izhar Mahdi Magsi has produced six pages containing SMS messages between him and complainant’s daughter at Exh.15/C, and six pages containing chatting on Messenger Application between him and complainant’s daughter at Exh.15/D. These SMS messages and Messenger chatting indicate complainant’s daughter Mst. Kanwal (allegedly abducted)’s affection with accused Izhar Mahdi Magsi. He has stated in his evidence at Ex-15 that these SMS messages had been sent to him by complainant’s daughter from her father’s cell phone. The SMS messages appear to be sent from cell phone No.03083463565. Learned ADPP, without giving suggestion during cross examination to accused Izhar Mahdi Magsi that said cell phone number does not belong to complainant, has advanced argument that without forensic test of said SMS messages, said SMS messages cannot be believed to be sent by complainant’s daughter Mst. Kanwal (allegedly abducted) from her father’s cell phone number."

 

10.                      On the basis of above reasoning the accused were acquitted.

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 respondents/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.

  

                                                                                   J U D G E

Abdul Salam/P.A