Criminal: Acquittal: Appeal: No

Criminal: Acquittal: Appeal: No.01 of 2013.

Present.

Mr. Justice Ahmed Ali Shaikh

Mr. JusticeSalahuddinPanhwar.

Date of Hearing:21^st February, 2013.

Mr.Mushraf Ali Memon advocate for appellant.

Mr.Zulifquar Ali Jatoi D.P.G for the State.

J U D G M E N T.

SALAHUDDIN PANHWAR,J.- The appellant/complainant has assailed the impugned Judgment dated 18^th December 2013 passed in Special Case No.96/2012 Re.(The State v MouraliasGulbahar and others), whereby respondents have been acquitted.

2. Succinctly, the facts as set out in prosecution case are that on 10.05.2012 at 2130 hours, complainant Muhammad Iqbal lodged report at P.S Moro, stating therein, that he is rendering service as Security Officer in MDFD Mills ShahpurJahania. At about 10.00 a.m. when he alongwith other staff was available at the main gate of the Mills, accused persons namely Mour, Ashraf, Irshad, Mithal, Zulifquar and Hakim Bhutto duly armed with lathies and hatchets, with 10/15 persons, reached at the main gate of the Mills. ChowkidarRasoolBux and HaqNawaz,were available at the main gate; and he and other security staff restrained them not to enter into the Mills but they intruded into the Mills. Accused persons fought with Shakeel Ahmed Manager Lamination Section, Administrative Officer Muhammad Danish and other Administrative staff of quality control. Accused persons gave kicks, fists and hatchets blows to Shakeel Ahmed and Muhammad Danish. They had also fought with Syed Mohsin Ali Hashmi and maltreated him. They brought him at the Admin office alongwith Syed Mohsin AliHashmi. Accused persons also fought with Safdar Abbas at the office of Admin branch and they were asked that their demands will be accepted with ‘Bhatta’. Accused persons detained them for about 3 to 4 hours without any justification. The complainant party informed to high-ups and by that time accused persons had gone. The complainant further stated that accused persons, were issuing threats that “if the factory would be run than they will cause the murder to the complainant party”; hence F.I.R was lodged. During the course of investigation police arrested accused Gulbahar, Ashraf andZulifquar on 14.05.2012 and after completing the investigation, the accused persons were sent up for trial.

03. To prove the charge and substantiate the allegations, the prosecution examined PW 1 HC Muhammad Khan Dahar at Ex.5, he produced FIR at Ex.5/A. PW 2 Muhammad Iqbal was examined at Ex.6, he produced further statement at Ex.6/A. PW 3 RasoolBux was examined at Ex.7, he produced memo of inspection of place of incident at Ex.7/A, memo of arrest of accused at Ex.7/B. PW 4 Safdar Abbas was examined at Ex.8. PW 5 Muhammad Shakeel was examined at Ex.9. PW 6 Muhammad Danish was examined at Ex.10.Sikander Ali Lund was examined at Ex.11, he produced memo of recovery of crime weapons at Ex.11/A, Roznamcha entry at Ex.11/B. PW 8 Syed Mohsin Ali was examined at Ex.12. PW 9 PC KhadimHussain was examined at Ex.15. PW 10 Inspector Abdul MajeedArain was examined at Ex.16, he produced order of investigation at Ex.16/A. Thereafter learned DDPP for the State closed the side of prosecution at Ex.17.

04. The statements of respondents/accused under Section 342, Cr.P.C were recorded to which they pleaded not guilty on the ground that they were the employees of MDFB Industries ShahpurJahania and they were already insisting for their permanent appointment to Management and the Management was not willing, therefore they were implicated in this case falsely and they claimed trial.

05. The learned counsel for the appellant has inter alia contended that the impugned judgment is against the settled principles of criminal administration of justice, the learned Special Judge has not appreciated the evidence available on record, thus the impugned judgment is capricious, fanciful, shocking and not maintainable under the law; witnesses in their statements have categorically deposed against the respondents/accused and sufficient incriminating material was available to award the conviction to the respondents/accused; but such aspect has not been considered by the learned trial Judge .

06. Learned DPG, while refuting the contention of learned counsel for the appellant/complainant argued that the impugned judgment is elucidative and all the material piece of evidence have been considered, thus under any circumstance, it cannot be said that impugned judgment is against the settled norms of law; in fact the respondents;were employees of the Sugar Mill and they were agitating for their jobs therefore, the question of extortion is not available in the instant case.

7. Before dilating upon the merits of the case it is suffice to say that it is a settled proposition of law that that when an accused is acquitted from the charge by a court of competent jurisdiction, then is settled principle of law that double presumption of innocence will remain attached with that judgment, therefore, such judgment cannot be disturbed unless it is proved that same is arbitrary, shocking, capricious, fanciful and against the settled parameters of criminal administration of justice.

8. Having heard the arguments and meticulous examination of evidence, impugned judgment, It is pertinent to mention that learned counsel for appellant has failed to refer any piece of evidence, which could persuade to hold that the inference drawn by trial court is against the principles of appreciation of evidence. The impugned judgment of the trial court, while acquitting the respondents cannot be said to be perverse and the reasons thereof are not fanciful, capricious, speculative and artificial, thus, in absence of holding the order of acquittal as such, it cannot be interfered with. The trial court has dilated upon all the contentions, as agitated by counsel in the judgment, in question, relevant portion whereof is reproduced herein below for ready reference:-

“30.The documents produced by the accused indicate that they were employed in the factory and their services were administered through a contractor NabiBux. All the accused except one are Dahri by caste. One of their caste fellows had filed a constitutional petition against the company before Hon’ble High Court of Sindh Bench at Sukkur and therefore the management would be aggrieved with GhulamSarwaqrDahiri as well as the accused who are his relatives and caste fellows.

31. It is strange that the security officials working on the gate were armed with weapons and inspite of that the accused having lathis with they entered into the factory. It is also strange that few persons, having lathies, compelled others duly armed with deadly weapons to be confined at a place.

32.From the evidence of the witnesses, in particular, cross examination it came on record that security cameras were installed on different places of factory premises including at main gate. The complainant and other witnesses who are representative of the management failed to bring video clips of CCTV Cameras which would be a strong evidence to show the act of the accused persons. It is noted that the security personnel did not make any phone call to law enforcing agencies at the very moment when the accused forcibly entered into the factory premises having lathies with intention to demand Bhatta though they would have all communication facilities such as land line telephone, mobile phone and other internal communication system. It is also strange that none from the workers was cited as witness to the incident. Most of the private witnesses are working in the factory and enjoying managerial and administrative positions. PW-Syed Mohsin Ali Shah in response to a question replied that accused were seen by him in the factory prior to the incident as they were employed there on temporary basis. It seems an industrial dispute between workers and the management instead of a dispute triable by a special court having jurisdiction to try cases of terrorism and like nature”.

9. From bare perusal of above judgment and examination of evidence appended with appeal, it is pertinent to mention that reasons and contradictions pointed out by the learned Special Judge in the impugned Judgment, are in line of evidence recorded during the trial,therefore, acquittal of respondents/accused is accordance with the law and judgment, in question, cannot be termed as fanciful, shocking,capricious and against the settled principle of law.

10. As discussed above, impugned judgment is not suffering from any illegality, irregularity, miss-reading or non-reading of evidence, thus,by short order dated 21.2.2013 we had dismissed, this criminal acquittal appeal is dismissed in limine, these are the reasons for the said short order.

JUDGE

Akber.