THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.182 of 2025

Present: Mr. Justice Shamsuddin Abbasi

Appellant : Mst. Zoya Ali daughter of Muhammad Shafi in person

Respondent : State through Mr. Zahoor Shah, Addl: P.G.

Date of Hearing : 15.05.2025

Date of decision : 15.05.2025

JUDGMENT

Shamsuddin Abbasi, J.- Respondents/accused Waqar Ali, son of Muhammad Sarwar, Muhammad Sarwar son of Ali Askar and Mst. Baseera daughter Muhammad Sarwar were tried by learned Additional Sessions Judge-VII, Karachi East in Sessions Case No.5059/2022, arising out of FIR No.748/2022, registered at P.S. Gulistan-e-Johar, Karachi for offence under sections 342, 34, PPC. After regular trial, respondents were acquitted of the charge vide judgment dated 11.10.2024. Appellant/complainant Mst. Zoya Ali, being dissatisfied with the impugned judgment has filed this criminal acquittal appeal. Notice was issued to the Prosecutor General Sindh.

2. Brief facts of case are that on 02.02.2021 appellant married to respondent No.2 Waqar Ali Bangash, behaviour of family of her husband was not good. On 10.09.2022 accused persons maltreated her on trivial issue and ousted her from her matrimonial home, hence the subject FIR.

3. After usual investigation challan was submitted against accused persons, charge was framed against them, to which they pleaded not guilty and claimed to tried. At trial, prosecution examined three witnesses. Thereafter, prosecution side was closed.

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

5. Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 11.10.2024 acquitted the respondents/accused of the charge, hence this acquittal appeal is filed.

6. Appellant/complainant in person mainly argued that the impugned judgment suffers from misreading and non-reading of evidence produced before learned trial Court; that there was huge evidence against the respondents even then the trial Court recorded acquittal of the respondents/accused. She further argued that trial Court has failed to appreciate the evidence according to settled principles of law. She prayed for allowing this acquittal appeal.

7. I have carefully re-examined entire prosecution evidence available on record with the assistance of appellant as well as learned Additional Prosecutor General Sindh. It appears that trial Court acquitted the respondents/accused vide judgment dated 11.10.2024, mainly for the following reasons:

“10. I have given due consideration to the arguments advanced by the learned counsel for the parties and have gone through the evidence brought on record, perusal of which reveals that prosecution case suffers from material discrepancies, Inconsistencies and contradictions, which makes the case as doubtful. As per contents of FIR, complainant has mentioned therein that "Incident took place on 10-09-2022", whereas, FIR was lodged 19.09.2022, after an inordinate delay of 09 days, for which prosecution and complainant has failed to give any plausible explanation.

11. On contrary, it has been alleged by the learned counsel for accused that complainant has committed fraud and cheating with the accused/ex-husband and, as her real name is Shazia Arain but she posed herself as Zoya and contracted marriage with the accused Waqar and has further alleged by the learned counsel for accused that complainant concealed the fact regarding her age, as she is 40 years old and she was already married to Ramzan, having a son namely Shahzaib from her first wedlock. However, complainant concealed such facts from the accused Waqar and contracted marriage with him while keeping him in dark. In this regard, complainant was asked multiple questions by the learned counsel for accused during the course of cross-examination but complainant denied such allegation. On the other hand, complainant has admitted during her cross-examination that she does not have her CNIC and voluntarily added that she will apply for CNIC once she receives death certificate of her father, while admitting that her father has expired about one year ago. It is astonishing for this Court to learn that a lady, who is married, has not yet got herself registered in database of NADRA, and she states that she will apply for her CNIC once she receives death certificate of her father, who has admittedly expired one year ago. This creates a reasonable amount of doubt and it appears that complainant is already registered in database of NADRA and she has concealed such fact on purpose, Accused Waqar, in support of his contention and in continuation to the above, during the course of statement U/S 342 Cr.PC, has produced an FIR bearing No.40/2019 of PS-Hala Nawa, Mitiari, showing name of complainant as Shazia Arain, photocopy of CNIC in the name of Shazia Arain and bio-metric affidavit of complainant showing her name as Zoya Ali. Be that as it may, IO of the case was also asked about such fact during the course of his cross-examination, to which he replied that "I cannot say that actual name of complainant is Shazia Arain. I do not know that victim was already married with Muhammad Ramzan. I cannot say that Muhammad Ramzan was her first husband, it is fact that victim appeared to be 35-40 years old from her appearance.

12. I have further examined the material available on record, wherefrom it transpires that, during the course of cross-examination of complainant, she has deposed that "I went to police station for lodging FIR at 04:00 or 05:00 PM", on the contrary, FIR was lodged at 03:40 PM. She has further deposed that I don't remember where memo of arrest and memo of site inspection were prepared by police" whereas, in her examination-in-chief she herself deposed that police prepared memo of arrest at the spot. Complainant was asked twice about police officials visiting the place of incident to which she firstly replied that police visited place of incident on 20-09-2022 at about 3-4 PM and secondly she replied that police visited the place of incident at Maghrib time. Thereafter, she was asked about the preparation of memo of site inspection, twice, firstly she denied that memos were prepared at police station and secondly she deposed that she do not remember as to where such memos were prepared. Moreover, it is mentioned in FIR that at about 08:00 PM in night, her husband released her from room, whereas complainant deposed in her examination-in-chief that at 08:00 PM her husband entered in the room, again maltreated her and then ousted her from the house. Both statements are made by complainant herself, which are contradictory to each other. Such denial and contradictions coming from the complainant, prejudice and undermines her own case.

13. Apart from the above contradiction, as per FIR, complainant has leveled allegation of maltreatment and outraging her modesty against her ex-husband, father-in-law and sister-in-law, whereas, when she was inquired, in her cross-examination, she deposed that she is not aware if her father-in-law was admitted in eye hospital for his operation on 10.09.2022 and her sister-in-law was also accompanied him in hospital, to look-after him. She has also admitted during the course of her cross-examination that her torn clothes are not present in the Court, whereas, IO of the case has deposed during the course of his cross-examination that complainant has never produced any torn clothes to him. It has further come on record that complainant/victim was medically examined with a plausible delay as IO of the case admitted during the course of his cross-examination that he has issued letter for medical examination to victim with a delay of 14 days. However, he voluntarily added further that as soon as victim disclosed him about the injuries she has sustained, he forthwith issued her letter for medical examination, which reflects that complainant after sustaining injuries lodged instant FIR against accused persons but forgot to disclose the investigation officer about her injuries for a period of 14 days. It is unacceptable for a prudent mind that a victim went for registration of FIR on the very next day of incident, got registered the FIR while leveling multiple allegations against accused persons, even disclosed the tiniest details in FIR, i.e. mental agony faced by her, but failed to inform the investigation officer about the injuries she has sustained. It has been admitted by the complainant that she has visited the police station multiple times after registration of FIR, which means during the period of delay (14 days) she has been to police station, remained in contact with IO but still failed to disclose about her injuries for a noticeable period of 14 days. On the other hand IO of the case during his cross-examination further deposed that he did not notice any injures on the face or hands of the victim. In this context, evidence of MLO was perused, which was in total contradiction with the above facts as MLO has opined the injuries to be 11 days old.

14. Furthermore, IO of the case admitted during his cross-examination that memo of site inspection as produced before this Court, bears overwriting in his signature and memo of site inspection lacks signatures of Masheer HC Inayatullah, whereas, memo of arrest lacks signature of Masheer PC Rao. Even otherwise, after medical examination of victim/complainant, WMLO has also found only one injury, which is old and healed. Except above, nothing in terms of medical evidence is available on record, in support of the prosecution case.

15. Nevertheless, nothing has come on record to substantiate the authenticity of the alleged incident as contended. Non-production of torn clothes to substantiate allegation of complainant, has miserably denied the prosecution/complainant's case. In this context it is suffice to say that real evidence, if not produced before the Court and no explanation furnished in behalf of, was a bounden duty of prosecution to produce. Article 129 of the Qanun-e-Shahadat, 1984, provided that if any evidence available with the parties was not produced, then it would be presumed that had that evidence been produed the same would have been gone against the party producing the same. Reliance is placed upon the case of FIDA HUSSAIN VS The State 2021 PCr.LJ 174 Lahore High Court Lahore.

Art. 129(g) Withholding best evidence-Effect-Prosecution has the prerogative to examine witnesses of its choice but where a material witness is given up and best evidence is withheld, Court may draw an adverse inference under illustration (g) of Art. 129 of the Qanun-e-Shahadat.

16. Apart from the above, it has further come on record that there was some family dispute between the parties, however, such contention has also not been proved but in absence of any concrete evidence from prosecution side, such allegation from accused side is sufficient to show a motive and malafide on the part of complainant, which cannot be ruled out. Thus, I am of the view that prosecution case suffers from material discrepancies, inconsistences and contradictions which creates a reasonable amount of doubt in the story of the prosecution. Even otherwise, no any concrete evidence or material was produced by the prosecution/complainant side before this Court. Medical record available on file, is also not supporting the prosecution case. There appears devastating contradictions and fatal dents in prosecution case. Summarizing above, I am of the view that prosecution case is severely lacking any concrete evidence against the present accused, and while it suffers from grave inconsistencies. It is well settled law that burden to prove rest on the part of prosecution, even a single doubt in the prosecution case goes in favor of accused. It is very much difficult to give due weight to prosecution evidence discussed herein above. It is well settled law that no one should be construed into the crime unless his guilt is proved beyond reasonable shadow of doubt by prosecution through reliable and confidence inspiring evidence.

17. In light of above given reasons, this point is replied as doubtful. On point of benefit of doubt, rule of Islamic Jurisprudence has been laid down in Judgment rendered by the Honorable Supreme Court of Pakistan in Ayub Masih's case (PLD 2002 SC 4046) wherein the Apex Court has ruled as under:

“It is also my settled that if there is any element of doubt as to the guilt of the accused, the benefit of the doubt must be extended to him. The doubt of-course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden role, is essentially a rule of prudence, which cannot be ignored while dispersing justice in accordance with law. It is based on the maxim, it is butter that ten guilty persons be acquitted rather than one innocent person be convicted. In simple words it means that utmost care should be taken by the Court while convicting an accused. It was held in The State V. Mushtaq Ahmed PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Laws and is enforced rigorously in view of the saying of Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal, is better than his mistake in punishing an innocent.”

18) Judged from all the angles and considered from all aspects, after fair reappraisal of evidence, I am of the firm and considered view that the prosecution has miserably failed to establish its case against accused Waqar Ali son of Muhammad Sarwar, Basira daughter of Muhammad Sarwar and Muhammad Sarwar son of Ali Askar. Accordingly, they are acquitted u/s 265-H(i) Cr.PC from the alleged charges. Accused persons are present on bail, their bail bond stands cancelled and surety are discharged.

11. 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. 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 that 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 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; that 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.

12. Admittedly, Appeal of petitioner is hopelessly barred by time for a period of three months and she failed to explain the delay so caused in filing of appeal reasonably. Thus, the application for condonation of delay is dismissed.

12. The appellant is unable to point out any error, perversity, or legal or jurisdictional defect in the impugned judgment calling for interference by this Court. 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.

13. For 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

Gulsher/PS