IN THE HIGH COURT OF SINDH CIRCUIT COURT AT LARKANA
Cr. Acquittal Appeal No. S-84 of 2019
|
Date |
Order with signature of Judge |
Mr. Abdul Rehman Bhutto, advocate for the appellant.
Mr. Aitbar Ali Bullo, D.P.G for the State.
Date of hearing 14-02-2020
Date of order 14-02-2020
Date of reason 03-03-2020
-.-.-.-.-.-.-.-.-.-.-.-.
O R D E R
Shamsuddin Abbasi, J. This criminal acquittal appeal has been directed against the judgment dated 30.10.2019, passed by I-Civil Judge & Judicial Magistrate/MCTC, Kandhkot, in Criminal Case No.329/2019, re: State V/S Hakim Ali and others, whereby the learned trial court has acquitted the respondents/accused, namely, Hakim Ali, Rahib Ali, Haslan, Ali Akbar, under Section 245(1), Cr.P.C of the charge under Sections 457 and 380 P.P.C, culminated from Crime No.33/2017, of P.S. Jamal.
2. Brief facts of the prosecution case are that the appellant/complainant lodged the F.I.R at P.S. Kashmore on 12.03.2019 stating therein that on 11.03.2019 he along with his brother, namely, Khatir Ali, cousin Farooq Ali at evening time tied the cattle in the cattle shade and went to sleep after having dinner in their house. On 12.03.2019, at about 01-00 a.m, they awoke on the barking of dogs and saw in the lights of electric bulbs that accused persons everyone Hakim armed with gun, Akbar equipped with lathi, Raheb armed with gun, Haslan equipped with lathi, came there, untied one buffalo and committed theft of a buffalo. Complainant party raised cries but the accused persons left the place of incident due to darkness of night. Thereafter, the complainant lodged the above F.I.R.
3. After usual investigation, the police submitted the report U/S 173 Cr.P.C, before the concerned court on 26.03.2019 and the case was sent up to learned court for disposal in accordance with law. The copies of the relevant police papers were supplied free of cost to the above named present accused persons in compliance of Section 241-A Cr.P.C on 07.05.2019. A formal charge was framed by learned trial court against the respondents/accused, to which they pleaded ‘not guilty’ and claimed trial.
4. To prove its case, the prosecution has examined the witnesses, namely, A.S.I. Sher Dil, the author of F.I.R, S.I.P Kamand Ali, the Investigating Officer of the case, Tharan Khan, the complainant of the case, Khatir Ali, the eye-witness of the occurrence, Mehrullah, the mashir of place of incident. The A.D.P.P for the State closed its side vide statement dated 30.10.2019.
5. On closure of the prosecution side, the respondents/accused recorded their statements under Section 342 Cr.P.C, wherein, they denied the prosecution allegations, pleaded innocence and prayed for justice. Respondents/accused neither examined themselves on oath nor examined any witness in their defence.
6. Upon assessment of the evidence, learned trial court acquitted the respondents/accused under Section 245(1) Cr.P.C of the charge vide impugned judgment.
7. Being aggrieved and dissatisfied with the judgment of acquittal, the appellant/complainant has assailed the same through instant criminal acquittal appeal.
8. Learned counsel for the appellant has argued that the judgment passed by the learned trial court is much against the law and facts, therefore, not sustainable in the eyes of law; that the impugned judgment is the result of misreading and non reading; that there is sufficient evidence adduced by the prosecution at trial and same has not been properly considered by the learned trial court to warrant conviction to the respondents and not their acquittal; that trial court has not recorded cogent reasons while passing impugned judgment, which is not based on the correct appraisal of evidence brought on record by the prosecution.
9. I have heard the learned counsel for the appellant and perused the record.
10. From perusal of record, it appears that all the prosecution witnesses are closely related inter-se. P.W/eye witness Khatir Ali is brother of complainant and P.W Farooq Ali is cousin of complainant, therefore, propriety of safe administration of justice demands that their evidence cannot be considered as gospel truth but the same has to be examined with care and caution. Admittedly, incident had taken place in the dark hours of the night at 01-00 a.m. and the source of identification is electric bulbs which is weak source of identification. It is a matter of record that I.O has not secured these bulbs at the time of preparation of mashirnama of place of incident. There is delay of 9 hours in lodgment of FIR and it cannot be ruled out that F.I.R of the present case has been lodged by complainant after due deliberation and consultation. It has also come on the record that P.W Khatir Ali has stated in his cross-examination that accused persons made 2/3 aerial fires, which is contradictory with the F.I.R as well as deposition of complainant, it is also contradictory to the mashirnama of place of incident as no empty was secured from place of incident. It is a matter of record that I.O in his deposition has stated that he left Police Station for visiting place of incident at 08-00 a.m. and distance between Police Station and place of incident is 8/9 K.M but F.I.R shows that complainant lodged instant F.I.R at 09-00 a.m. It is presumed that I.O before registration of F.I.R started investigation which created serious doubts in the prosecution case.
11. From the perusal of evidence of the prosecution witnesses, it reveals that there are contradictions in the statement of P.Ws and the complainant on the number of cattles as the complainant has deposed in his cross-examination that there were 7/8 cattle tied in the cattle shade out of which 2 were cows and others were buffaloes, while on the contrary, P.W Khatir Ali deposed in his cross-examination that 9 buffaloes and two cows were available in the cattle shade. The complainant in his cross-examination has deposed that occurrence continued for about 15/16 minutes, while P.W Khatir Ali has deposed in his cross-examination that the occurrence continued for about ½ minutes. The depositions of the complainant and P.W are not enough confidence transpiring to convict the above named accused persons and on the contrary there are major contradictions in their evidence. Learned counsel for the appellant has not been able to point out any material piece of evidence or any other crucial point, any misreading or non-reading of evidence, which has not been considered or discussed by the learned trial court in the impugned judgment.
12. The principles for appreciation of evidence in appeals against the acquittal are now well settled in case of Yar Muhammad and 3 others V/S The State (1992 SCMR 96). It has been observed by the Hon’be Apex court of Pakistan that “unless the judgment of trial court is perverse, completely illegal and on perusal of evidence no other conclusion could be except that the respondent/accused is guilty or there has been made complete misreading of evidence leading to miscarriage of justice, High Court would not exercise jurisdiction U/S 417 Cr.P.C.” It was further held that in exercising this jurisdiction, High Court has always to be slow unless it feels that gross injustice has been done in the administration of criminal justice.
13. An accused is presumed to be innocent in law and if after regular trial he is acquitted, he earns double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, therefore, this Court is of the view that the prosecution failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. Reliance in this regard, may be placed on case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329).
14. It is pertinent to mention that when an accused is acquitted from the charge by court of competent jurisdiction, then, it is well established principle of law that double presumption of innocence will remain attached with the judgment of acquittal, therefore, such judgment cannot be interfered with unless it is proved that same is arbitrary, shocking, capricious, fanciful and against the settled principles of criminal administration of justice. In this respect, reliance may respectfully be placed on case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585).
15. On careful examination of the evidence, circumstances appearing in the case and in the light of the arguments of parties, it transpires that complainant and P.Ws on account of their close relationship with the complainant are interested witnesses. Delay of 9 hours in lodgment of F.I.R, night time incident and source of identification is electric bulbs which were not ceased. These are material contradictions in their statements. In this view of the matter, it cannot be said that the conclusions arrived at by learned trial court were such that no reasonable person would conclusively reach the same. Reliance may respectfully be placed on case of Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549).
16. In the case of State and others v. Abdul Khaliq and others (PLD 2011 SC 554), Honourable Supreme Court has held as under:-
“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significally 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. 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 of wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolishly, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusion, should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.
17. Apart from the above material contradictions and discrepancies, rendering the prosecution case doubtful, there are many other material contradictions in the prosecution case, which need not to be discussed here just to save the time and space. The learned trial Court has acquitted the respondents extending them benefit of doubt on failure of the prosecution to prove its case against them beyond reasonable doubt. It needs no reiteration that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. A perusal of the impugned acquittal judgment would reveal that the same is apt to the facts and circumstances of the case, which suffering from no illegality or any infirmity and misreading or non-reading of the evidence, does not call for any interference. Above are the reasons of short order announced by me on 14.02.2020, whereby the instant criminal acquittal appeal was dismissed.
Judge
Abdul Salam/P.A