IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Acquittal Appeal No. S- 25 of 2023.
Appellant: Imam Bux, through Mr. Muhammad Saleh Kolachi, Advocate.
Respondents: Pir Jan and 2 others.
Date of Hearing: 03.04.2023.
Date of Judgment: 03.04.2023.
Judgment
Zulfiqar Ali Sangi, J-. This appeal against acquittal under Section 417 (2-A) of Cr.P.C is directed by complainant Imam Bux Jafferi assailing judgment dated 14.03.2023, passed by the learned Civil Judge and Judicial Magistrate-II, Kashmore in Criminal Case No.02/2023 re; The State v. Pir Jan and others, arisen out of F.I.R No. 27/2022 of P.S Gublo Katcho, whereby the learned trial Court has acquitted the accused/ respondents No.1 and 2, namely, Pir Jan Jafferi and Shah Ali Jafferi.
2. The case of prosecution as depicted from para 2 of the impugned judgment, reads as under:
“That, on 08.11.2022 son of the complainant, namely, Irshad Ali had gone to accused Shah Ali Jafferi for grazing cattle. The, complainant and his son Mian Bux went to Shah Ali for providing him meal, where cattle were grazing. It was about 1500 hours, when cattle started moving; therefore, complainant party chased the cattle. They saw accused Shah Ali, Pir Jan, Bagh Ali, Bhooro, Saood and Baboo all having lathis took away two buffalos of the complainant. The complainant party made hue and cry but no result. After returning to their home, complainant party narrated such facts to their elders and met with accused persons through nekmards for return of said stolen buffalos but no result with the result this F.I.R was registered on 11.11.2022.”
3. On completion of usual investigation, the police filed report to concerned Magistrate against accused Pir Jan and Shah Ali, showing rest of accused as absconders. The learned Magistrate took cognizance of the case. 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 filed 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 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, as well as other infirmities. As such, it 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 determined that the prosecution failed to prove the case against accused persons, hence duly extending them the benefit of doubt; the learned trial Court acquitted them.
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.
8. From a careful perusal of impugned judgment and other material, it is found that the contradictions 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.
9. 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”.
10. 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.”
11. 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