IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.D-40 of 1998   

 

 

                                                            Before:-

                                                            Mr.Justice Muhammad Iqbal Mahar

                                                            Mr.Justice Irshad Ali Shah

 

Appellant/Complainant :      Ali Murad through

Miss. Rizwana Jabeen Siddiqui, Advocate

 

Respondents                  :       Shahdad, Anwer and Muhammad

                                                Yakoob Through Mr. J.K Jarwar

                                                Advocate

 

The State                               :           Through  Mr. Abdul Rehman Kolachi, DPG 

 

Date of hearing               :       12.02.2019          

Date of decision             :       12.02.2019                             

 

J U D G M E N T

 

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 31.08.1998, passed by learned Additional Sessions Judge, Kandiaro, whereby the private respondents have been acquitted of the offence, for which they were charged. 

2.                 The facts in brief necessary for disposal of instant criminal acquittal appeal are that the private respondents with co-accused Khawand Bux (now has died) allegedly in furtherance of their common intention committed Qatl-e-Amd of Azizullah by causing him fire shot injuries for that they were booked and reported upon by the police before the Court of law for their trial in accordance with law.

3.                 At trial, the private respondents did not plead guilty to charge and the prosecution to prove it, examined PW-01 appellant/complainant Ali Murad (Exh.14), he produced FIR of the present case, PW-02 Arbab Ali (Exh.16), PW-03 Ashfaq (Exh.17); PW-4 Mashir Ghulam Muhammad (Ex.19), he produced memo of place of incident and inquest report; PW-5 HC Muharam Ali (Ex.20), he produced memo of recovery of blood stained cothes of the deceased; PW-6 Tapedar Ali Gohar (Ex.21), he produced sketch of vardhat; PW-7 Dr. Mazhar Ali (Ex.22), he produced postmortem report on the dead body of the said deceased; PW-8 Addl:SHO Allahditto (Ex.26) to identify signatures of SIO/SIP Muhammad Achar Kalhoro (who died before his examination) then and then closed the side.

4.                 The private respondents in their statements recorded u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence. They did not examine themselves on oath or any one in their defence.

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 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/complainant that the prosecution has been able to prove its case against the private respondents beyond shadow of doubt by producing cogent evidence which has been disbelieved by learned trial Court without lawful justification. By contending so, she sought for adequate punishment for the private respondents.

7.                 Learned DPG for the State and learned counsel for the private respondents by supporting the impugned judgment sought for dismissal of the instant acquittal appeal.

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

9.                The FIR of the incident has been lodged with unplausible delay of about 7 ˝ hours, such delay as such could not be overlooked, as it is reflecting consultation and deliberation.

10.              In case of Mehmood Ahmed and others vs. The State and others (1995 SCMR 127), it has been held by Hon’ble Apex Court that;

“that delay of two hours in lodgment of FIR in the particular circumstances of the case has assumed great significance as the same could be attributed to consultation, taking instruction and calculatedly preparing the report keeping the names of accused open for roping in such person whom ultimately the prosecution might wish to implicate.”

 

11.              The incident admittedly has taken place at night time and identity of the private respondents is based under the light of bulb which is a weak piece of evidence. There is no recovery of any sort from any of the private respondents. The private respondents as per complainant Ali Murad were challaned in this case on his complainant as they were going to be released by the police after declaring them to be innocent. If it is so, then it prima facie indicate that the private respondents were found to be innocent by the police on investigation. As per P.Ws Arbab Ali  and Ashique their 161 Cr.P.C statements were recorded on the next date of incident. Why not on the same date of incident? No explanation to it is offered by the prosecution. Be that as it may, the late recording of 161 Cr.P.C statements of above said witnesses has rendered the evidentiary value of their version to be doubtful.   

 

12.               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.”

 

13.              The entire investigation of the present case was conducted by SIO/SIP Muhammad Achar Kalhoro, the prosecution has not been able to examine on account of his death. No doubt death is a natural process yet his non-examination could not be overlooked in case like the present one.

14.              In the said circumstances, learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt, such acquittal could not be interfered with as it is not found to be arbitrary or cursory.

15.              In case of State & ors vs. Abdul Khaliq & ors (PLD 2011 SC-554), it has been held by the Hon’ble Apex 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”.

 

   

 

16.              For what has been discussed above, the instant criminal acquittal appeal was dismissed by way of short order dated 12.02.2019 and above are the reasons for the same.

                                               

                                 Judge

 Judge

 

 

 

ARBROHI