Cr.Acq.Appeal No. 11 of 2010.
Appellant: Dur Muhammad through Mr. Zulifquar AliSangi
advocate.
Respondents: ASI Ahmed Ali Wassan and
others through Mr.Syed Sardar Ali Shah APG and Mr.MuhammadYakoobSoomro Advocate.
Date of Hearing 21st December, 2012.
Date of Decision 21st December 2012
JUDGEMENT.
SALAHUDDIN PANHWAR,J-Through instant criminal acquittal
appeal, the appellant has assailed lthe judgment dated 22nd October
2009 passed in Direct Complaint No.57/2008 (Rs.Dur Muhammad v ASI Ahmed Ali Wassan and others) whereby
respondents/accused were acquitted by giving them benefit of doubt.
2. The
facts as set out in Direct Complaint are as under:-
“ that on 11.11.2008
complainant Dur Muhammad with his brother Jan Muhammad was at his shop, where
ASI Ahmed Ali Wassan with two un-identified constables and private persons
namely GhulamAsgher, Gul Hassan, Jam Ali, Muhammad Murad, Dost Ali, Faiz Ali
all by caste Dahars came. Accused ASI Ahmed Ali with two constables caused butt
blows to complainant and his brother and private persons caused lathy blows to
them. They robbed Rs.15000/- cash, two bags of sugar four packets of Gold Leaf,
four iron tins of Ghee four bags of Aatta, took in Datsun and kidnapped Jan Muhammad
and went away in the Datsun complainant approached Nekmard of locality namely
Sarfraz Khan Khaskheli then approached to police paid Rs.20000/- as illegal
gratification for release of Jan Muhammad. The police also robbed Seeko-5 Wrist
Watch and one gold necklace from P.W Jan Muhammad, Therefore, the complainant
Dur Muhammad filed this complaint before the court of Judicial Magistrate
Mirwah;therafter same was brought on the file of AdditionalDistrict and
Sessions judge.”
3. In
order to prove the charge and substantiate the allegations the complainant
examined himself at Ex.10, he produced copy of complaint filed by him at
Ex.10/A the complainant got examined one witness Dil Muhammad alias DilMurad at
Ex.11, thereafter the complainant closed his side vide Ex.14. The statement of
accused persons under section 342, Cr.P.Cwere recorded at Ex.15 to 21, wherein,
they denied the allegation leveled against them and prayed for justice.
4. Learned
counsel for the appellant has inter alia contended that the impugned judgment
is based on misreading and non-reading of evidence, thus, same is not
maintainable under the law; trial Court has not appreciated the evidence
produced by the appellant; sufficient evidence was available before the trial
Court for awarding the punishment but such evidence has not been appreciated by
the trial Court; impugned judgment is shocking, capricious, fanciful and
against the norms of the law.
5. Conversely,
learned counsel for the respondents assisted by learned APG, has contended that
the trial Court has considered all the facts and material available on record;
no illegality or infirmity is pointed out by the counsel for the appellant;
since the respondents have been acquitted, therefore, double presumption of
innocence is attached in this case, thereby instant appeal is liable to be
dismissed.
6. Having
heard the arguments of the learned counsel for the parties; as matter of
record, the learned counsel for the appellant failed to refer any piece of
evidence which could persuade to hold that conclusion drawn by the trial
Court is against the weight of evidence
on record; the judgment of the trial Court, while acquitting the
respondents/accused cannot be said to be perverse and reasons, thereof are fanciful,
capricious, speculate and artificial
and in absence of holding the order of acquittal as such it cannot be
interfered with. The trial Court has dilated upon all the material facts and
circumstances of the case and evidence brought on file. It will be conducive to
refer the relevant portion of the judgment, which is as under:-
“The complainant has miserably failed to get examined Jan
Muhammad from whom, as alleged, that cash amount and golden locket with chain
were removed by ASI. The complainant in his deposition has also deposed that
approached to NekmardSarfraz Ali Khaskheli and through him paid illegal
gratification of Rs.20,000/- to Ahmed Ali Wassan. The complainant did not
examine the NekmardSarfraz Ali Khaskheli in support of his contention.
Even otherwise. The witnesses of complainant Dil Muhammad alias DilMurad
admitted during evidence that so many shops and hotel are situated near the
shop of complainant inspte of that complainant did not examine any neighbourer
witness in support of his contention.
Asthe witness of the complainant
has clearly deposed in his evidence that complainant at the time of incident
was not present at his shop therefore, I am of the view that evidence of
complainant is not reliable because witness Dil Muhammad alias DilMurad has not
supported the entire version of complainant”.
From
the bare perusal of impugned judgment and material available on record , it is
manifest that, evidence of witnesses was not upto mark, same was lacking the
parameters of evidence for awarding the conviction hence trial court has
rightly reached on the conclusion that complainants case was not free from the
doubt, thereby benefit of doubt was extended to the accused persons,
consequently impugned judgment cannot be termed as fanciful, capricious and
shocking.
7. It
is settled principle of law that, when an accused person is acquitted
from the charge by the Court of competent jurisdiction; then double presumption
of innocence is attached to its order with which the superior Courts do not
interfere unless the impugned order is arbitrary, capricious, fanciful and
against the record.
8. In
view of the above no misreading or non-reading of evidence or any material
piece of evidence having affect of varying to judgment having not been
appraised in the true prospective could be pointed out to warrant interference
by this Court.
9. Above
are the reasons of a short order dated 21.12.2012 whereby this criminal
acquittal appeal was dismissed.
JUDGE