ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.Acq.Appeal.No.S- 61  of  2013

DATE        ORDER WITH SIGNATURE OF JUDGE

            1. For orders on MA 3227/2013.

            2. For Katcha Peshi.

            3. For orders on MA 3228/2013.

12.08.2013.

Mr. Badal Gahoti, Advocate for appellant.

                                    =

            The appellant has assailed the judgment dated 22.05.2013 passed by learned Additional Sessions Judge, Matiari in Direct Complaint/Sessions Case No.04/2012, whereby the respondents No.1 to 10 were acquitted by giving them benefit of doubt.

            The case of the prosecution is that the complainant namely Muhammad Uris filed Direct Complaint on 27.03.2009 against the respondents, alleging therein that he is Hari of Mumtaz Gahoti at his land situated at Deh Fatehpur and there was dispute over agricultural land of Zamindar with Ali Raza and others. On 17.09.2007, the complainant was available at his land where at about 5-00 P.M, respondents Zulfiqar, Ali Raza, Haji Sahelo and Lal Muhammad, all sons of Ghulam Umar, Santosh Kumar, Chandur and Mohan, sons of Jani Mal, Sodho s/o Gul Muhammad and two unknown armed persons abused the complainant and asked him that they have restrained him from working in the land and they will not spare. By saying so, accused Zulfiqar made straight fire upon the complainant with intention to kill him but luckily same did not hit him. Other accused also beaten him with kicks and fists. He raised cries to which PWs Imdad Ali and Allah Obhayo were attracted and reached there and witnessed the incident.

            After preliminary inquiry, the said complaint was brought on record and after examining the complainant and witnesses namely Imdad and Allah Obhayo and after recording the statements of accused, the trial Court acquitted them by giving benefit of doubt.

            The learned counsel for the appellant/complainant has contended that the contradictions pointed out by the trial Court are minor in nature and does not give any cause for creating shadow of doubt upon the prosecution case, therefore, acquittal order by the trial Court is arbitrary and without considering the material placed on record, therefore, this Court after hearing the parties may scrutinize the judgment of the trial Court in Criminal Acquittal Appeal by exercising the powers u/s 417(2) Cr.P.C.

            It is settled principle of law that the accused in Criminal Acquittal Appeal earns double presumption of his innocence and until and unless strong reasons are brought on record that the trial Court has passed the judgment without considering the record and the said judgment is contrary to law than the said judgment could be interfered.

            Considering the above proposition of law, I have gone through the evidence recorded by the trial Court of complainant namely Muhammad Uris and PWs Imdad and Allah Obhayo. The complainant who is examined at Ex.04 has stated that accused Zulfiqar was armed with 222 rifle while PW Imdad has stated that accused Zulfiqar was armed with repeater. He further stated that Mohan and Sodho were armed with lathi and hatchet but PW Imdad has stated that Laloo, Chandur, Mohan, Sodho and Zain-ul-Abdin were armed with lathies and hatchets while complainant has not shown presence of accused Zain-ul-Abdin at the spot and in entire evidence. It is a case of prosecution in deposition of complainant that Zulfiqar fired straight upon him with intention to commit his Qatl-e-Amd but PW Imdad has not supported the complainant on this point. It is also the case of complainant that on cries 10/12 persons gathered at the wardat but neither PW Imdad nor PW Allah Obhayo stated regarding arrival of any villager at wardat.

            It has also come on record that prior to lodging of this Direct Complaint, the complainant has recorded FIR against the respondents. The said FIR after investigation was disposed of under ‘B’ Class. The Magistrate approved the said summary. The said order was assailed before this Court and was maintained. Thereafter, the Direct Complaint was filed.

            For creating shadow of doubt, it is settled law that many circumstances are not required. If the accused is able to create a slightest shadow of doubt upon the prosecution story than its benefit be given to the accused not as a matter of concession or grace but as a matter of right. In the instant case major contradictions are apparently appearing in the evidence of prosecution witnesses not only regarding the presence of some accused but also regarding role attributed to them. Enmity has also been admitted between the parties. In such circumstances, the trial Court has right reached to the conclusion that no case was made out for conviction of accused and by extending benefit of doubt, they were acquitted.

            No any material has been brought on record for interference in the order of the learned trial Court by exercising powers u/s 417(2) Cr.P.C. The Criminal Acquittal Appeal stands dismissed in limine alongwith listed applications.  

                                                                                                            JUDGE                                                          

Tufail