IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal Acquittal Appeal No.S- 38 of 2019
Appellant/Complainant : Muhammad
Khan Bhutto through
Mr. Ubedullah Ghoto
Advocate
Respondent : The State, through Mr. Shafi Muhammad
Mahar, Deputy Prosecution General
Date of hearing : 29.04.2019
Date of decision
: 29.04.2019
JUDGMENT
IRSHAD ALI
SHAH, J.- The facts in brief necessary for disposal of
instant criminal acquittal appeal as per the appellant/complainant are that the
private respondents allegedly after having formed an unlawful assembly and in
prosecution of their common object outraged modesty of Mst. Shabana by cutting
the hairs of her head for that they were booked and reported upon by the
police.
2. 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.
3. On evaluation of evidence so produced
by the prosecution, learned 1st Civil Judge and Judicial Magistrate,
Ubauro acquitted the private respondents of the charge by way of judgment dated
14.02.2019, which his impugned by the appellant/complainant before this Court
by way of instant Criminal Acquittal Appeal.
4. 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 appraisal of the evidence. By
contending so, he sought for adequate action against the private respondents.
5. Learned DPG for the State by
supporting the impugned judgment has sought for dismissal of the instant
Criminal Acquittal Appeal by contending that it is well-reasoned.
6. I
have considered the above arguments and perused the record.
7. The
FIR of the incident has been lodged with delay of about 16 hours, that too
after consultation with elders, same as such could not be overlooked, which has
made the version of the complainant to be doubtful.
8. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127),
it was observed by the Hon’ble Court
that;
“Delay of two hours in lodging the FIR in the particular
circumstances of the case had assumed great significance as the same could be
attributed to consultation, taking instructions and calculatedly preparing the
report keeping the names of the accused open for roping in such persons whom
ultimately the prosecution might wish to implicate”.
9. The
scissor and the hairs of Mst. Shabana which were cutout allegedly by the
private respondents, it is said were secured with delay of ten days even to
FIR. No person of prudent mind would keep with him such like things, which is
to be used against him as an evidence; parties it is said are already disputed
over matrimonial affairs. In that situation, learned trial Court was right to
record the acquittal of the private respondents by extending them benefit of
doubt.
10. In case of Tarique Pervez vs. The State (1995 SCMR 1345), it has been held by
Hon’ble Apex Court that;
“For giving benefit of doubt to an accused it
is not necessary that there should be many circumstances creating doubt- if a
simple circumstance creates reasonable doubt in a prudent mind about the guilt
of the accused, then he will be entitled to such benefit not as a matter of
grace and concession but as a matter of right.”
11. Admittedly,
the principle for hearing of appeal against acquittal and conviction are
altogetherly different. The acquittal could only be interfered with when it is
found to have been recorded in arbitrary and cursory manner.
12. 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”.
13. In
view of the facts and reasons discussed above, the instant Criminal Acquittal
Appeal is dismissed accordingly.
Judge
ARBROHI