IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal
Acquittal Appeal No.D- 22 of 2010
Present:
Mr.
Justice Muhammad Iqbal Mahar
Mr.
Justice Irshad Ali Shah
Appellant/Complainant : None
present
Private Respondents : None present
The State,
through Syed Sardar Ali Shah
Deputy Prosecution General
Date of hearing : 27.02.2019
Date of decision
: 27.02.2019
JUDGMENT
Irshad Ali Shah, J-
The
appellant/complainant by way of instant Criminal Acquittal Appeal has impugned
judgment dated 25.02.2010, passed by learned 3rd Additional Sessions
Judge Mirpur Mathelo,
whereby the private respondents Shahban, Mushtaque Ahmed and Ali Gohar have
been acquitted of the offence, for which they were charged.
2. The
facts in brief necessary for disposal of instant criminal acquittal appeal as
per appellant/complainant are that the said private respondents with rest of
the culprits after having formed an unlawful assembly and in prosecution of
their common object by committing trespass into house of appellant/complainant
committed death of his son Muhammad Shahban by causing fire shot injuries and then went away by
making aerial firing to create harassment, for that they were booked and
reported upon by the police.
3. At trial, the said private respondents
did not plead guilty to charge and the prosecution to prove it, examined PW-1
appellant/complainant and his witnesses and then closed the side.
4. The said private respondents in their
examination u/s 342 Cr.PC denied the prosecutions’
allegation by pleading innocence. They did not examine themselves on oath but
examined Shamsuddin, Muhammad Mithal
and Luqman in their defence
to prove their plea of alibi.
5. On evaluation of evidence so produced
by the prosecution, the learned trial Court acquitted the said private
respondents of the offence for which they were charged by way of impugned judgment,
as stated above.
6. Since long none has come forward on
behalf of appellant/complainant to pursue the instant Criminal Acquittal
Appeal, which cannot be kept on file for indefinite period, therefore, it was
decided to dispose of the same on merits with the help of learned DPG for the
State.
7. Learned
DPG for the State sought for dismissal of the instant appeal by supporting the
impugned judgment.
8. We have considered the above arguments
and perused the record.
9. As
per evidence which is brought on record by the appellant/complainant through
his witnesses, the specific role of committing Qatl-e-Amd of Muhammad Shahban by causing
him fire shot injuries is attributed to absconding accused Naimatullah.
The private respondents have been involved in the instant case by the
appellant/complainant on point of vicarious liability by leveling allegation of
aerial firing against them which is not proved beyond doubt. They even
otherwise on investigation as per SIO/SIP Yahya Khan
were also found to be innocent. In that situation, learned trial Court was
right to record their acquittal by extending them benefit of doubt by making
following observation;
“There is one another important aspect of the
case which renders the availability of the present accused at the time of
alleged incident very doubtful. In this respect I would like to highlight the
evidence of P.W Moula Bux
who acted as mashir of the place of incident
(Ex.12/A) wherein it is specifically disclosed that there was only one empty
cartridge lying at the place of incident which was secured by the police in his
presence. If for the sake of arguments it is believed for a moment that the
present accused either made aerial firing or they made fire shots at the
complainant party, there should have been more than one empty cartridge at the
place of incident but as I have just said that there was only one empty
cartridge lying at the place of incident it was secured by the police,
therefore, the presence of present accused at the time of alleged incident has
become very doubtful.”
10. 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”.
11. For
what has been discussed above, the instant Criminal Acquittal Appeal fails and
it is dismissed accordingly.
Judge
Judge
ARBROHI