IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.S-24 of 2013
Appellant/Complainant : Dr.Dayali Gul w/o Dr.Raj Kumar Adwani
Through Mr.Safdar Ali Ghouri, Advocate
Respondents : The State through Mr.Raja Imtiaz Ali Solangi, A.P.G, and Mr.Abdul Rehman Bhutto
Advocate for private respondents.
Date of hearing : 10.08.2018
Date of decision : 10.08.2018
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant appeal has impugned judgment dated 25.04.2013 of learned Civil Judge & J.M-IV, Larkana, whereby he has acquitted the private respondents of the offence for which they were charged.
2. The facts in brief necessary for disposal of instant appeal are that; the appellant/complainant with her associates when was conducting Interviews for making appointments in health department for the vacant posts, there came private respondents and others with a threat to the appellant/complainant that in case their relatives are not allowed to participate in Interview and appointed, then they being office bearers of the staff union would arrange for boycott against her, such report as per appellant/complainant was made by him with Director and Deputy Secretary Health. It was further stated by the appellant/complainant that on 02.11.2012, at about 10.30 A.M, when she was available at R.H.C.A Training Centre, Shaikhzaid Hospital, Larkana, the door of her office was hit hard, there arose commotion, which attracted her and her witnesses Dr.Jameela, Dr.Aneela and Dr.Erum. There they found the private respondents with 8/9 more culprits. They were causing damage and were raising slogans that in case their demands are not meet, then they would kill the appellant/complainant. It was further stated by the appellant/complainant that private respondents and others by saying so, insulted her and committed mischief to create harassment, she then reported the incident to police on “15” Complaint Centre. The police came at the spot and then the private respondents with their associates went away.
3. On investigation, the private respondents were challaned by the police before the learned trial Court. They did not plead guilty to the charge and prosecution to prove it, examined PW-01 appellant/complainant Dr.Dayali Gul, produced through her FIR of the present case, PW-02 Dr.Jameela, PW-03 Dr.Erum, PW-04 Mashir Ameet Kumar, produced through him mashirnama of place of incident, PW-05 ASI Ghulam Ali Kalhoro, PW-06 SIO/ASI Sajid Hussain and then closed the side.
4. The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence. They did not examine any one in their defense or themselves on oath in disproof of the prosecution allegation against them.
5. On evaluation of evidence, so produced by the prosecution, the learned trial Court acquitted the private respondents of the offence for which they were charged by way of the 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 for the appellant/complainant that the learned trial Court has acquitted the private respondents of the charged offence, without proper appreciation of the evidence and lawful justification. By contending so, he sought for appropriate action against them.
7. Learned A.P.G for the State and learned counsel for private respondents sought for dismissal of the instant criminal acquittal appeal by supporting the impugned judgment.
8. I have considered the above arguments and perused the record.
9. The operative part of evidence of appellant/complainant reads as under;
“On 02.11.2012, I was available at my Centre RHC-A Training Centre Larkana alongwith Dr.Jameela, Dr.Aneela, Dr.Irum and other staff. We heard noise and we saw every one Rasool Bux Kalhoro, Muhammad Nawaz Memon, Khadim Gachal, Abdul Amin Memon, Muhammad Amin Bhutto and other unidentified persons, will be identified if seen again. They entered into the Centre and they started causing harassment to the females. They were raising cries against me and I called on “15” Centre. After few minutes police came there and on seeing police, accused made violation, issued threats and thereafter went away. Thereafter, I went at P.S Waleed, where I registered the FIR against accused persons”.
10. There is nothing in evidence of the appellant/complainant which may show that the private respondents threatened the appellant/complainant of murder or caused any damage to the property.
11. The operative part of evidence of PW Dr.Jameela reads as under;
“All the accused caused harassment, raising slogans by saying that they will kill the complainant so also used abusive language. Accused also harassed the patients as well as staff members. Thereafter, all the accused persons went away while issuing threats of dire consequences”.
12. The evidence of PW Dr.Jameela is somewhat different to that of appellant/complainant. As per her, the private respondents and others by raising slogans threatened the appellant/complainant to be murdered, abused her and then went away. What kind of abuses those were? Her evidence is silent.
13. The operative part of evidence of PW Dr.Erum reads as under;
“They raised slogans and cried. They used abusive language against the complainant. Then asked to patients to leave the centre then they all went away by raising cries”.
14. The perusal of evidence of PW Dr.Erum would shows that she has not leveled allegations of criminal mischief or criminal intimidation with murder against the private respondents, which appears to be significant.
15. The evidence of appellant/complainant and her witnesses as is detailed above being inconsistent is appearing to be doubtful and could hardly be relied upon to record conviction against the private respondents.
16. In case of Faheem Ahmed Farooqui vs.The State (2008 SCMR-1572), it is held that;
“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful”.
17. ASI Ghulam Ali who allegedly recorded FIR of the incident during course of his cross examination was fair enough to admit that the FIR was recorded by WHC Muhammad Allam. If it was so, then WHC Muhammad Allam being essential witness ought to have been examined by the prosecution. His non-examination obviously has prejudiced the private respondents in their defense.
18. It was stated by SIO/ASI Sajjad Hussain during course of his examination that he recorded 161 Cr.PC statements of PWs on 03.11.2012. It was with delay of one day to FIR. No plausible explanation to such delay is offered by the prosecution. In that situation, no much reliance could be placed upon evidence of the witnesses which the prosecution has produced before learned trial Court.
19. 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.PC. Reduces its value to nil unless delay is plausibly explained.”
20. It is stated by the appellant/complainant in her FIR that the private respondents were office bearers of the staff union. If it was so, then the involvement of the private respondents on account of rivalry between officers and staff could not be lost sight of.
21. It is settled by now that the acquittal carries with it double presumption of innocence and interference with acquittal is narrow and limited, which could only be interfered with when the judgment of the acquittal is not found to have been passed in arbitrary and cursory manner.
22. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Court that;
“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.
23. Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may call for interference with it by this Court by way of instant Criminal Acquittal Appeal.
24. Above are the reasons of short order dated 10.08.2018, whereby the instant criminal acquittal appeal was dismissed.
JUDGE
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