IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-26 of 2018

Present

Mr. Justice Irshad Ali Shah

Appellant /Complainant :           Syed Mehboob son of Syed Nabi Shah,

Through Mr.Irfan Badar Abbasi, Advocate

State                                      :           Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing                  :           02.07.2018             

Date of decision                :           02.07.2018                         

J U D G M E N T

IRSHAD ALI SHAH. J- The appellant by way of instant Criminal Acquittal Appeal has impugned judgment dated 12.04.2018, of learned 2^nd Civil Judge & J.M, K.N.Shah, whereby he has acquitted the private respondents of the charge. 

2.                    The facts in brief necessary for disposal of instant acquittal appeal are that; the private respondents with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object, caused butt blows to PW Imtiaz Shah and then went away by causing kicks and fists blows to appellant, for that they were booked and challaned in the present case.

3.                    At trial, the private respondents denied the charge and prosecution to prove it examined PW-01 appellant, produced through FIR of the present case, PW-02 Imtiaz Shah, produced through him the letter, PW-03 Mashir Tanveer Shah, produced through him mashirnama of place of incident and arrest of accused Haji Illahi Bux, PW-04 Dr.Imdad Kalhoro, produced through him provisional and final medical certificate in respect of injuries sustained by the said injured, PW-05 SIO/ASI Abdul Karim, produced through him “roznamcha” entry No.09 and then closed the side.  

4.                    The private respondents in their statements recorded under section 342 Cr.PC denied the prosecution allegations against them by pleading innocence; they did not examine anyone in their defence in disproof of the prosecution allegation.

5.                    On evaluation of evidence, learned trial Court acquitted private respondents of the charge by way of judgment dated 12.04.2018, which the appellant has impugned before this Court.

6.                    It is contended by learned counsel for the appellant that the learned trial Court has acquitted the private respondents of the charge without appreciating the evidence of prosecution properly. By contending so, he sought for admission of the instant acquittal appeal to its regular hearing.

7.                    Learned A.P.G being available in the Court after waiving the notice supported the impugned judgment.

8.                    I have considered the above arguments and perused the record.

9.                    The place of incident is situated at distance of 1 ½ furlong from P.S Kakar, yet the FIR of the incident was lodged with delay of three hours, such delay could not be lost sight of. As per mashirnama of injury as is stated to be by PW/Mashir Tanveer Hussain, injured was found sustaining single injury. On medical examination, as per medical officer Dr.Imdad Kalhoro, the said injured was found sustaining four injuries. Wherefrom came the rest of three injuries? No explanation to it is offered by the prosecution. As per appellant in his FIR, he too sustained kicks and fists blows. There is nothing on record which may prove that the appellant sustained kicks and fist blows during course of incident. Admittedly, there is dispute between the appellant and private respondents over the street. If it is so, then possibility to involve the private respondents in a criminal case on the part of appellant to have settlement over above said dispute with them could not be lost sight of. PW/injured Imtiaz Shah during course of his examination was fair enough to admit that his 161 Cr.PC statement was recorded by police on 03.01.2017. If it was so, then it was with delay of one day to the incident, the same hardly carries a value, as it is not explained plausibly.

10.                  In case of Abdul Khaliq v. the State (1996 SCMR-1553), it is held that;

“late recording of statement of witness under section 161 Cr.PC, reduces its value to nil unless delay is plausibly explained”.

11.                  SIO/ASI Abdul Karim during course of his examination admitted before learned trial Court that 161 Cr.PC statements of the PWs were written by WHC Muhammad Ramzan. If it was so, then the prosecution was under lawful obligation to have examined WHC Muhammad Ramzan being material witness of the case. His non examination could not be lost sight of. In these circumstances, the learned trial Court was right to acquit the private respondents of the charge by extending them benefit of doubt by way of impugned judgment, which is not appearing to be arbitrary. It is not calling for any interference by this Court by way of instant Criminal Acquittal Appeal.

12.                  In case of State vs. Rasheed Ahmed (NLR 2004 Cr. 286), it was held that the judgment of acquittal which is neither arbitrary nor has caused miscarriage of justice would not warrant interference by the High Court.

13.                  In case of Muhammad Tassawur vs. Hafiz Zulqarnain and others (PLD 2009 SC-53), it was held that when an accused person who is acquitted of the charge by the Court of competent jurisdiction carries with him presumption of double innocence.

14.                  In view of above, the instant criminal acquittal appeal is dismissed in limine.

                                                                                                J U D G E

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