IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-37 of 2016

Appellant/Complainant  :           Naveed Ali son of Abdul Qayoom Junejo

Through Mr.Mazhar Ali Bhutto, Advocate

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

Date of hearing                  :           16.07.2018             

Date of decision                :           20.07.2018                         

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 08.06.2016, of learned Civil Judge and Judicial Magistrate, Dokri, whereby the private respondents were acquitted 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 hatchet and lathies blows to appellant/complainant Naveed Ali and his witnesses, for that the present case was registered.  The private respondents after due investigation were challaned by police before learned trial Magistrate to face trial for the above said offence.

3.                    At trial, the private respondents did not plead guilty to the charge and prosecution to prove it, examined PW-01 injured Mst.Shazia, PW-02 appellant/complainant injured Naveed Ali, produced through him FIR of the present case, PW-03 injured Shaman Ali, PW-04 Halar, PW-05 mashir Shah Nawaz, produced through him mashirnama of injuries and mashirnama of place of incident, PW-06 Dr.Abdul Ghaffar, produced through provisional and final medical certificates in respect of injuries sustained by the injured, PW-07 SIO/SIP Abdul Hakeem Shah, produced through him roznamcha entries relating to his departure and arrival at Police Station Badeh, PW-08 ASI Abdul Razaque Taggar being author of the FIR of the present case and then closed the side.

4.                    The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution’s allegations by stating that they have been involved in this case falsely. They did not examine anyone in their defence or themselves on oath in disproof of the prosecution allegation.

5.                    On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge by way of judgment, which the appellant/complainant has impugned before this Court, by way of instant Criminal Acquittal Appeal, as stated above.

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

7.                    Learned A.P.G has supported the impugned judgment.

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

9.                    Both the parties admittedly are disputed since long. It has also come on record that there is counter version of the incident. In that situation, the delay of 10 ½ hours in lodging of the FIR of the instant case could not be lost sight of simply for the reason that it is reflecting consultation. Be that as it may, while recording FIR of the present case, ASI Abdul Razaque Taggar has determined the nature of injuries of his own without waiting for the medical opinion. Apparently he did so only to favour the complainant party. As per PW injured Halar, the police came at hospital and saw (examined) injuries of the injured. As per PW/Mashir Shah Nawaz his signatures were obtained by the police at place of incident and at Police Station Badeh. If it is so, then mashirnama of examination of the injuries apparently was prepared at Police Station, Badeh. As per medical officer Dr.Abdul Ghaffar, the injuries to the injured were caused by hard blunt substance. If it is so then it belies the appellant/complainant
Naveed Ali in his FIR that the hatchets were also used by causing the injuries to the injured. PW SIO/SIP Abdul Hakeem Shah was fair enough to state that he recorded 161 Cr.PC statements of the PWs on 11.02.2014, if it was so then it was with delay of about one day to the FIR. No plausible explanation to such delay in recording 161 Cr.PC statements of the PWs is offered by the prosecution. In these circumstances, the learned trial Magistrate was right to record acquittal of the private respondents by extending them benefit of doubt by way of impugned judgment, which is not appearing to be arbitrary to be interfered with by this Court by way of instant Criminal Acquittal Appeal.

10.              In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

11.                  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.

12.                  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.

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

                                                                                                J U D G E

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