IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acq. Appeal No. S-100 of 2022

Appellant		Mst. Nawab Khatoon,
		Through Mr. Ahsan Ahmed Qureshi, advocate

State		Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing		18-04-2023
Date of order		18-04-2023

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant Criminal Acquittal Appeal, the appellant/complainant Mst. Nawab Khatoon has assailed the judgment dated 07.09.2022, passed by the learned Civil Judge and Judicial Magistrate Thull in Criminal Case No. 07/2022 (Re. State Vs. Muhammad Ali Shah), for offence punishable Under Sections 452, 337-A(ii), 506/2 & 34 P.P.C, whereby respondent/accused Muhammad Ali Shah was acquitted.

2. Precisely, the facts leading to disposal of instant criminal acquittal appeal are that complainant Mst Nawab Khatoon W/O Khadim Hussain by caste Unar lodged instant FIR on 08.11.2021 at 1815 hours with PS A-section Thull, stating therein that, enmity on the issue of agricultural land is going on with the accused Muhammad Ali Shah and he was annoyed with the complainant. On 20-09-2021 the complainant along with his Pws namely Allah Rakhio and Nazar Muhammad were present in the house. Thereafter at about 05:30 PM the accused namely 1-Muhammad Ali Shah having lathi in his hand along with two unknown accused armed with TT pistols entered into the house of the complainant. The accused Muhammad Ali Shah said to the complainant that she has annoyed him on the issue of the land she has complained to the Police, by saying so the accused Muhammad Ali Shah caused lathi blow to the complainant which hit her on her head, she fall down on the earth and blood was oozing. The Pws intervened and the unknown accused pointed TT pistols to them and issued the threats of the murder to them. Thereafter the accused made their escape good. Thereafter the complainant appeared at the P.S wherefrom she obtained the letter for the treatment and after getting medical certificate she lodged the FIR.

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

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

5. The respondent/accused in his statement recorded in terms of Section 342 Cr.P.C denied the allegations leveled against him by pleading his innocence. He however, did not examine himself on oath nor led any evidence in his defence.

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

7. Per learned counsel for the appellant/complainant, that the learned trial Court has passed the judgment in violation of law and there was sufficient material on record to convict the respondent/accused but learned trial Court acquitted him on flimsy grounds; that the accused prima facie has committed the offence; that the complainant and her witnesses have fully supported the case; that no major contradiction is available in the evidence of prosecution witnesses; that the judgment passed by the learned trial Court is not based on cogent reasons. He lastly submits that the acquittal of the respondent/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;

It may be seen that complainant Nawab Khatoon was available at police station after occurrence on the same day. But she did not lodge the FIR at the first available opportunity. It may be observed here that an FIR in a criminal case is an extremely imperative piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye witnesses present at the crime scene. Delay in lodging the FIR quite often results in adjournment with mala fide intention. On account of delay the FIR not only deprives of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation, adversely affecting the case of the prosecution. Forming this view I take guidance from reported case laws of Honourable Sindh High court, larkana bench reported as 2021,PCr.L.J 1654 ( Manik @ Muhammad Ali and an other---Appellants v/s the state----respondents. Principle FIR was lodged after considerable delay of 10/11 hours--Delay in lodging of FIR provides sufficient time for deliberation and consultation--Held: Possibility cannot be ruled out qua false implication of the accused. Forming this view I take guidance from the reported case law of the larger bench of the Honorable Supreme Court of the Pakistan reported as------ PLJ 2008 SC 269 AKHTAR ALI & others—Appellants-------------versus STATE—Respondent.

That during the course of the hearing of the case the counsel of the complainant has filed a statement along with one photograph of the complainant being injured in the photo. The same was not produced before the I.O so also before this court during the evidence of the complainant and the same was produced after recording the statement of the accused therefore it may be the afterthought of the complainant in order to strengthen her case.

Besides, so far as the question of the medical evidence is concerned it is now well settled that medical evidence may confirm the ocular evidence with regard to the seat of the injuries, nature of the injury, kind of the weapon used in the occurrence, but it would not connect the accused with the commission of the crime. Medical evidence itself does not constitute any corroboration qua the identity of the accused persons to prove their culpability. Medical evidence is always treated of confirmatory nature and it does not identify the actual accused involve in the commission of the offence. In order to corroborate the contents of the medical certificates the prosecution witnesses has not supported the contents of the medical certificate. The prosecution was failed to prove the material fact about the seat of the injuries sustained by the P.W at the hands of the accused persons.

In addition to this it is difficult to discard the testimony of the injured witness. Rule of the prudence however, requires the court to look for independent corroboration. Injured witness would not be relied upon IPSO FACTO, because of the injuries, but it is to be examined that, whether his evidence is trustworthy and confidence-inspiring. If the prosecution version did not get the corroboration from overall surrounding circumstances of the case, mere stamp of injury on the body of a person would not be sufficient to hold that whatever he had testified was the whole truth. Mere stamp of injuries on the person of a witness was not a proof of him being a truthful witness. Forming this view I take the guidance from the reported case law of the Honorable Peshawar High Court reported as (2018 Pcr. L. j Note 131----- Raiz-----Appellant----versus---The State Respondents).

After such contradictory and unconvinced statements of prosecution witnesses, story as narrated by PWS cannot be believed to be trustworthy. Hence, I am of the considered view that the prosecution has failed to prove the charge against accused beyond shadow of reasonable doubt. For the purpose of benefit of doubt to an accused more than one infirmity was not required, but a single infirmity regarding reasonable doubt in mind of reasonable and prudent mind regarding truth of charge would make whole case doubtful. I am fortified upon case law Hamza V/s. The state 2000 P.Cr.L.J 1360 Karachi(c) and 1996 SCMR 1541(C).Hence point No: 01 is answered as doubtful. I have great respect and regard with the case laws of the Hon’ble superior courts but the same are distinguishable with the facts and circumstances of the case.

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