IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 39 of 2017

Appellant/Complainant : Muhammad Sharif Magsi

in person

: The State, through Syed Sardar Ali Shah

Deputy Prosecution General

Date of hearing : 08.3.2019

Date of decision : 08.03.2019

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 28.02.2017, passed by learned 3^rd Civil Judge and Judicial Magistrate Sukkur, whereby the private respondents have been acquitted of the offence outcome of FIR Crime No.12/2016 of P.S Site Area Sukkur.

2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that the private respondents after having formed an unlawful and in prosecution of their common object by using damage to shop of appellant/complainant, take away therefrom his belongings as are detailed in FIR by making aerial firing to create harassment, for that they were booked and reported upon by the police before 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 appellant/complainant and his witnesses and then closed the side.

4. The private respondents during the course of their examination u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence by stating that they have been involved in this case falsely by the appellant/complainant.

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 impugned judgment, as stated above.

6. It is contended by the appellant/complainant in person that the learned trial Court has recorded the acquittal of the private respondents without lawful justification. By contending so, he sought for adequate action against the private respondents.

7. Learned D.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal acquittal appeal.

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

9. The FIR of the incident has been lodged with delay of about fourteen days, such delay has not been explained plausibly, same as such could not be overlooked. The very case on investigation as per appellant/complainant was recommended by the police to be cancelled under ‘B’ false class. As per PWs Rasool Bux and Khalid Hussain, they are witnesses of the appellant/complainant in few more cases. If it is so, then they appear to be stock witnesses of the appellant/complainant, who could hardly be relied upon. In these circumstances, learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt with the following observation;

“According to all PWs people of vicinity called complainant and informed him about the incident but name of the person who informed complainant has not been disclosed anywhere, as well as none has come forward to be witness from such vicinity though complainant stated in his cross-examination that a filing station is situated at the distance of 20 feet and guards are always present there IO in his cross-examination has also stated that he has investigated from the shopkeepers of the shops situated in vicinity of place of incident but he didn’t get any information about the happening of incident. According to the story of prosecution, complainant’s nephew was beaten up by all accused but surprisingly no injury or medical report relating to such incident has been brought on record. There is 14 days inordinate delay in lodgment of FIR. Additionally there is no recovery from the possession of accused. Moreover, it is the case of prosecution that the accused have committed theft of 2 maunds of iron from the shop of complainant but none has stated about how and on what such heavy quantity of iron was taken from the place of incident making their escape good.”

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. Nothing has been brought on record by the appellant/complainant which may suggest that the impugned judgment is arbitrary or cursory to be interfered with by way of instant Criminal Acquittal Appeal, it is dismissed accordingly.

Judge

ARBROHI