THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Acquittal Appeal No.D-17 of 2020
Present:
Mr. Justice
Zafar Ahmed Rajput
Date of hearing. 21.09.2021.
Mr. Aneet Kumar Rajput, advocate
for the appellant
O R D E R
ZAFAR AHMED RAJPUT, J- Through
instant Criminal Acquittal Appeal, the appellant/complainant has assailed the
judgment, dated 18-02-2020, passed by the learned Ist. Sessions Judge/MCTC, Sukkur
in Sessions Case No.247 of 2018, arisen out of F.I.R. No.100/2017, registered
under sections 302, 337-J, 109, P.P.C. at P.S. Rohri, whereby the respondents
Nos. 1 to 3 were acquitted of the charge by extending them the benefit of
doubt.
2. Briefly
stated, facts of the case are that on 20-08-2020 appellant/complainant Ghulam Shabir lodged the FI.R alleging therein that the
accused persons were annoyed with the son of complainant over the dispute of
business competition. On 14-08-2017 complainant, his son Amanullah and Muhammad
Saeed and others were available in home, it was 1230 hours, accused/respondents
Irfan, Amjad Ali Shani knocked the door of home, whereupon they came out from
their home. While coming accused persons taken away son of complainant towards
quarter of PC Jameel in order to compromise talk. In the meanwhile brother of
complainant returned at home, it was 02:00 p.m, Amanullah (son of complainant)
on phone call disclosed to Mazhar Ali
that above accused brought him at quarter of Jameel Ahmed for talk where
accused Abdul Qayoom Shahani and Abdul Hafeez Khuhro were also present. Accused
Irfan and Abdul Qayoom and others have given poisonous bottle to him and he is
in critical condition. Accused Irfan Ali further disclosed that they done so on
the instance of Afroz Ali Shahani. Thereafter, complainant, his son Muhammad
Saeed, brother Mazhar Ali rushed towards quarter of Jameel Ahmed Khuhro where
they saw accused namely Irfan, Abdul Qayoom, Amjad Ali and Abdul Hafeez with
open faces, who on seeing the complainant party went out from the quarter. The
complainant party witnessed that Amanullah (son of complainant) was crying
inside the quarter and disclosed the entire facts. Complainant brought him at
Taluka Hospital Rohri wherefrom he obtained police letter and thereafter, he
was referred to Civil hospital, Sukkur in the meanwhile patient was referred to
Hira Hospital where he died at 1230 hours. After funeral rite complainant
lodged FIR.
3. After
usual investigation, police submitted the report under section 173 Cr.P.C
(challan). The accused was charged formally, to which they pleaded not guilty
and claimed to be tried.
4. At the trial, prosecution in order to
substantiate the charge against the respondents/accused examined as many as Nine
witnesses, who produced relevant documents in their depositions. Thereafter, the statements of accused were
recorded, wherein they denied the allegations leveled against them. They
neither examined themselves on oath nor produced any witness in their defense. On
the assessment of the evidence on record, the learned trial Court acquitted the
accused persons under section 265-H(i), Cr.P.C., vide impugned judgment.
Aggrieved by the same, the complainant has preferred this Criminal Acquittal Appeal.
5. Heard the learned
counsel for appellant, perused the material available on record.
6. Learned counsel for appellant has contended that the learned trial
Court has not appreciated the evidence of the P.Ws. who have fully implicated
the respondents with the commission of alleged offence; that the role of
accused/respondents No. 1 to 3 is clear from contents of FIR, ocular evidence
is very clear that the accused have committed the alleged offence; that the
impugned judgment passed by the trial Court is without applying its judicious
mind and has not appreciated material available on the record; that the
evidence produced by the appellant before the learned trial Court was enough to
connect the respondents No.1 to 3 with commission of offence whereas learned trial
Court did not consider the same for the conviction of respondents; that the
ocular account is corroborated with the medical evidence and it is fit case for
conviction but learned trial Court has failed to consider the same which is
sheer injustice with appellant.
7. Learned
trial Court while deciding point No.2 as not proved, has observed as under:
“The Medical
record of GMMC hospital indicates the deceased was drug addicted. This fact as
well as disclosed by a taxi driver who took him in the first instance that the
deceased was looking in a dunken condition. No single proof of poison
whatsoever was found from the body of deceased during the postmortem or medical
check-up. The I.O. during investigation did not collect any material to connect
the accused with the commission of offence. No bottle of black stone or any
connecting material was found from the room although the complainant party had
appeared at spot allegedly at the moment when the accused had escaped before
their eyes. In non-availability of sign of black stone at the spot or even at
the body of deceased speaks adverse the claim of the complainant party. The
statements of PWs appears to have been given in a stereo type manner without
giving the detail of the incident minutely. The cause of death of deceased
remained unascertained, although the postmortem was conducted”
8. The material on record approves the
assessment of learned trial Court; hence, the prosecution has failed to bring
home guilt of accused beyond reasonable doubt. It is well settled principle of
law that for basing conviction against an accused there should be strong
evidence before the trial Court and if the doubt, even slightest, arises in the
prudent mind as to the guilt of the accused, benefit of the same has to be
extended in favour of the accused.
9. We do not find any
merit in arguments of learned counsel appellant. The learned trial Court has recorded
the reasons for its order of acquittal which are based on evidence on record
and the conclusion drawn by the learned trial Court as to the innocence of accused
persons is appropriate.
10. The extraordinary remedy of an appeal against an acquittal is
different from an appeal against the order of conviction and sentence because
presumption of double innocence of the accused is attached to the order of
acquittal. Thus, on the examination of the order of acquittal as whole,
credence is accorded to the findings of the subordinate Court whereby the
accused had been exonerated from the charge of commission of the offence. Therefore, to reverse an order of acquittal,
it must be shown that the acquittal order is unreasonable, perverse and
manifestly wrong. The order of acquittal passed by the trial Court which is
based on correct appreciation of evidence will not warrant interference in
appeal. The Honourable Supreme Court while dealing with the appeal against
acquittal has been pleased to lay down the principle in the case of Muhammad
Shafi Vs Muhammad Raza& another reported in 2008 SCMR 329, as
under:-
“An accused is presumed to be
innocent in law and if after regular trial he is acquitted, he earns a 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, we are therefore, of the view that
the prosecution has failed to discharge the onus and the finding of acquittal
is neither arbitrary nor capricious to warrant interference.”
11. In view of above reasons,
the impugned acquittal order does not suffer from any illegally or infirmity
and misreading or non-reading of evidence leading to miscarriage of justice;
therefore, the same is not open for interference by the High Court under
section 417 (2) Cr.P.C.
12. This criminal acquittal appeal, therefore,
stands dismissed accordingly in limine along
with listed applications.
J U D G E
J U D G E
Ihsan/*