IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal Acquittal Appeal No.S-
179 of 2018
Appellant/Complainant : Mohabat Kosh through
Mr. Shamsuddin
N.Kobhar, Advocate
The State, through Mr. Aftab Ahmed Shar
Additional Prosecutor General
Date of hearing : 25.02.2019
Date of decision
: 25.02.2019
JUDGMENT
IRSHAD ALI
SHAH, J.- The appellant/complainant by way of instant
Criminal Acquittal Appeal has impugned judgment dated 17.11.2018, passed by
learned 1st Civil Judge and Judicial Magistrate Ubauro,
whereby he has acquitted the private respondents of the charge.
2. The
facts in brief necessary for disposal of instant criminal acquittal appeal are
that the private respondents allegedly after having formed an unlawful assembly
in prosecution of their common object by using criminal force caused fists,
kicks and hatchet with its back side at the head of PW Khursheed,
for that they were booked and reported upon by the police before Court of law
for their trial.
3. At trial, the private respondents did
not plead guilty to the charge and prosecution to prove it, examined
appellant/complainant and his witnesses and then closed the side.
4. On evaluation of evidence so produced
by the prosecution, learned trial Court acquitted the private respondents of
the charge as stated above.
5. It
is contended by learned counsel of the appellant/complainant that learned trial
Court has acquitted the private respondents of the charge without lawful
justification and on the basis of improper assessment of the evidence. By
contending so, he sought for adequate action against the private respondents.
6. Learned Additional PG for the State by
supporting the impugned judgment sought for dismissal of the instant acquittal
appeal.
7. I
have considered the above arguments and perused the record.
8. The
FIR of the incident has lodged with delay of about one day,
same could not be lost sight of. It reflects consultation and deliberation. The
parties are already disputed over landed property. For single injury with back
side of hatchet to PW Khursheed at least seven
persons have been involved, such fact could not be overlooked. PW Khursheed during course of his examination was fair enough
to admit that he did not appear before Medical Board for examination of his
injury. His failure to do so, without lawful justification could not be lost
sight of. It constitutes an act of mense rea on his part. In these circumstances, learned trial
Court was right to record acquittal of the private respondents by extending
them benefit of doubt, such acquittal is not calling for any interference by
this Court as it is neither cursory nor arbitrary.
9. In
case of State and others vs. Abdul Khaliq and others (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”.
10. In
view of the facts and reasons discussed above, the instant Criminal Acquittal
Appeal is dismissed in limine.
Judge
ARBROHI