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