IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Acquittal Appeal No. S- 62 of 2022.

Appellant: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Respondent: Ahsan Sanjrani.

Date of Hearing: 01.06.2023.

Date of Judgment: 01.06.2023.

Judgment

Zulfiqar Ali Sangi, J-. This appeal against acquittal under Section 417 Cr.P.C has been directed by the State through Deputy Prosecutor General assailing judgment dated 26.01.2022, passed by learned 1^st Additional Sessions Judge/ Model Criminal Trial Court, Shikarpur, in Sessions Case No. 270/2020 re; The State v. Ahsan, arisen out of F.I.R No.112/2020 of P.S New Foujdari (Shikarpur), whereby the learned trial Court has acquitted the accused/ respondent Ahsan.

2. The accused/ respondent Ahsan was booked under Section 25 of Sindh Arms Act, 2013, on the allegation that he being under police custody remand in main murder case bearing Crime No.109/2020 of P.S New Foujdari volunteered to produce the crime weapon i.e. T.T pistol and ultimately he led police party to place of incident and produced such weapon in presence of police mashirs. Such pistol according to prosecution was used by the accused in the commission of main case of murder of Wazir Ahmed and causing injuries to his sister Mst. Humaira.

3. On completion of usual investigation, the police filed challan to concerned Magistrate against accused, who took cognizance of the case. Formal charge was framed against the accused/ respondent, to which he 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 was recorded under Section 342, Cr.P.C, who claimed his innocence and false implication in the case; however he neither examined himself on oath nor any witness in his defence. Ultimately, the learned trial Court after hearing the parties counsel passed the impugned judgment, whereby acquitted the accused/ respondent. Hence, this appeal has been filed by the Prosecution.

5. Learned Deputy Prosecutor General 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 but the same has not appreciated and learned trial Court erroneously extended benefit of doubt in favour of accused/respondent. He further contended that the prosecution had proved its case beyond any shadow of doubt and the acquittal of the accused/ respondent has caused miscarriage of justice. He lastly prayed that the impugned judgment may be set-aside and the accused/ respondent may be convicted.

6. A careful perusal of the impugned judgment reflects that learned trial Court inter alia found the material contradictions in the evidence produced by prosecution. It was further observed by learned trial Court that the accused was acquitted of the charges in the main murder case i.e. Crime No.109/2022 of P.S New Foujdari by the same Court vide judgment dated 26.01.2022.

7. It is matter of record that in the instant case, as per prosecution the accused/ respondent had taken part in the main murder case arisen out of F.I.R No.109/2020 under Sections 302, 324, 311 and 34 P.P.C, wherein the same weapon was used by him. And, admittedly the accused/ respondent was acquitted of the charges by the learned trial Court. As such, the recovery of pistol, which is shown to be used in the aforesaid offence, becomes doubtful. In this respect, I would like to take reliance from a case reported as Fida Hussain v. the State (2012 P.Cr.L.J 226), in which it is held as under:

"In this context, I noticed that the appellant had been acquitted in Crimes No.1 of 2011 and 2 of 2011 and this is an off-shoot of the above-cited crimes, as such, the appellant is entitled to be acquitted in the instant case, which is an off-shoot of the said cases."

8. Accordingly, when the prosecution could not establish the companion/ main case, the off-shoot case could not be established, especially when there are pearls of doubt scattered in the entire prosecution case.

9. 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 D.P.G was found wanting and could not point out any such error or omission.

10. 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 respondent/ accused.

11. 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”.

12. 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.”

13. 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 D.P.G. for the State and do not find any illegality in the impugned judgment of acquittal, as such the acquittal appeal is hereby dismissed.

Judge

Ansari