THE HIGH COURT OF SINDH AT KARACHI

Spl. Criminal Anti-Terrorism Acquittal Appeal No. 78 of 2021

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

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Appellant : The State through Prosecutor General Sindh through Mr. Khadim Hussain Addl. P.G

Respondents : Nemo

Date of Hearing : 19.12.2023

Date of decision : 19.12.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Prosecutor General Sindh has filed this acquittal appeal against respondents/accused Dr. Zulfiqar Ali Mirza and others. It appears that respondents/accused were tried by learned Judge, Anti-Terrorism Court No.I, Karachi in Special Case No.A-219 of 2015. After regular trial, vide judgment dated 12.04.2021, respondents/accused were acquitted.

2. Brief facts leading to the filing of instant Acquittal Appeal are that on 03.05.2015 at about 1330 hours, SIP Wali Muhammad lodged FIR No. 159/2015 for offences under Sections 147/ 148/ 149/ 353/ 393/ 427/ 504/ 506-B/ 120-B PPC read with Section 7 of ATA 1997 at PS Badin, wherein it is alleged that respondents/accused and others duly armed with sophisticated weapons forcibly entered into the police station and threatened the SHO to register his complaint against I.G and others, who replied that it would be registered after getting permission from high officials, on which, the respondents and others caused damage in the police station and left police station while threatening the police officials of dire consequences. Hence, the FIR as referred above was lodged against the respondents and others. After usual investigation, challan was submitted against respondents/accused under the above referred sections.

3. Trial Court framed charge against the respondents/accused at Ex.5, to which they pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined eleven witnesses. Thereafter, prosecution side was closed.

5. Trial Court recorded statement of respondents/accused under Section 342 Cr.P.C. Respondents/accused claimed their false implication in the case. Respondents/accused neither examined themselves on oath under section 340(2) Cr.PC to disprove the prosecution allegations nor led any evidence in their defence.

6. Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 12.04.2021 acquitted the respondents/accused, hence this acquittal appeal is filed.

7. The facts of the case in detail as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 12.04.2021 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Mr. Khadim Hussain Addl. P.G argued that trial Court failed to appreciate the evidence according to settled principles of law; that impugned judgment is perverse in law and prayed for allowing this acquittal appeal.

9. We have carefully re-examined entire prosecution evidence available on record with the assistance of Addl. P.G. It appears that trial Court acquitted the respondents/accused vide judgment dated 12.04.2021 mainly for the following reasons:

“27. The prosecution to prove its case has examined in all eleven witnesses in the present case, out of them four witnesses namely Ghulam Rasool Mallah (Ex.11), Shah Nawaz Malah (Ex.12), Noor Muhammad Soomro (Ex.14) and Ghulam Hussain Shidi (Ex16) are private/independent witnesses, however, they have not implicated any of accused to be culprit of present incident. The remaining witnesses including complainant are police officials, but none of them have deposed against the accused. Moreover, PC Tariq Ex.13 has deposed that he along with other police personnel were called at police station due to law and order situation, as such, they went there and found 200/300 persons. Accused Dr. Zulfiqar Ali Mirza along with companion were bare handed. Though most of the prosecution witnesses including complainant Sub Inspector Wali Muhammad Chang are said to be eyewitnesses of the incident, however, they have contradicted each other on material points. There is nothing on record to say that Dr. Zulfiqar Ali Mirza along with his companion had come at police station while armed with weapons. None of prosecution witness has deposed that accused persons had made firing at alleged place of incident. Thus the presence of accused Zulfiqar Ali Mirza and his companions at the place of incident became doubtful, as none of the prosecution witnesses has assigned role of any of the accused in the alleged incident.”

10. Record reflects that trial Court appreciated the entire evidence carefully and finally reached to the conclusion that the prosecution had utterly failed to establish the guilt of respondents/accused beyond reasonable doubt. The gist of the evidence reveals that four prosecution witnesses namely Ghulam Rasool Mallah, Shah Nawaz Malah, Noor Muhammad Soomro and Ghulam Hussain Shidi, who were private and independent witnesses have not supported the case of prosecution and did not implicate any of the accused to be culprit of the alleged offence. Trial Court has rightly observed that there were material contradictions in the evidence of prosecution witnesses. Addl. P.G could not controvert those infirmities in prosecution case. However, he concedes that no arm was recovered from the respondents/accused. It is a well-settled proposition of law that in an appeal against acquittal, the Court would not ordinarily interfere and would instead give due weight and consideration to the findings of the Court acquitting the accused which carries a double presumption of innocence, i.e. the initial presumption that an accused is innocent until found guilty, which is then fortified by a second presumption once the Court below confirms the assumption of innocence, which cannot be displaced lightly. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 SC 554) the Apex Court, while considering numerous pronouncements held that 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, or suffering from the errors of grave misreading or non-reading of the evidence. Such judgments should not be lightly interfered with and a 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 Apex 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. 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, and the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities.

11. The impugned judgment passed by learned trial Court is neither perverse nor speculative, but it is based upon sound reasons, which requires no interference by this court.

12. For the above stated reasons, there is no merit in the appeal against acquittal. Finding of the innocence recorded against the respondents/accused by the trial Court are based upon sound reasons which require no interference at all. As such, instant Acquittal Appeal is without merit and the same is dismissed.

J U D G E

J U D G E