IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-84 of 2016

Appellant/Complainant : Sheeraz s/o Aftab Ahmed Soomro,

Through Mr.Altaf Hussain Surhio, Advocate

Respondents : Through Mr.Ahsan Ahmed Qureshi,

Advocate for private respondents

The State through Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing : 19.11.2018

Date of decision : 23.11.2018

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned order dated 22.10.2016, passed by learned 3^rd Civil Judge & Judicial Magistrate, Larkana, whereby, the private respondents have been acquitted of the offence for which they were charged.

2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that the private respondents with rest of the culprits, allegedly caused pistols butt blows to PWs Ameer Bux and Ashfaque Ahmed and then went away by issuing threats that in case the pending litigation against them is not withdrawn by their father Aftab Ahmed then they will have to face dire consequences. The incident as per the appellant/complainant was reported to police, his report was not recorded by the police, he then filed the direct complaint of incident before the learned trial Magistrate.

3. In preliminary enquiry, the appellant/complainant examined himself and PW Ameer Bux and Ashfaque Ahmed and then closed the side. The direct complaint so filed by the appellant/complainant then was brought on record by learned trial Magistrate.

4. The private respondents joined the trial, they did not plead guilty to the charge and the appellant/complainant in order to prove the charge, examined himself and both of his above said witnesses and then the learned trial Magistrate acquitted the private respondents of the charge by way of an application u/s 249-A Cr.PC, vide his order dated 22.10.2016, which has been impugned by the appellant/complainant before this Court by way of instant criminal acquittal appeal, as stated above.

5. It is contended by learned counsel of the appellant/complainant that the learned trial Magistrate has acquitted the private respondents of the charge without lawful justification ignoring the fact that the evidence of medical officer who examined the injuries of the appellant/complainant and his witnesses was yet to be recorded. By contending so, he sought for remand of the matter to the learned trial Magistrate for its disposal afresh after recording evidence of the medical officer.

6. It is contended by the learned counsel the private respondents that no medical officer was examined by the appellant/complainant in preliminary enquiry, who could have been examined by the learned trial Magistrate before recording acquittal of the private respondents. By contending so, he sought for dismissal of the instant criminal acquittal appeal.

7. Learned A.P.G supported the impugned order.

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

9. The complaint was filed by the appellant/complainant with delay of about eight days to the incident; such delay could not be lost sight of in the circumstances of the case. As per complaint, no injury to the appellant/complainant or to his witness is attributed to any of the private respondents specifically, which appears to be significant. The parties are already disputed and such dispute between them is going on between them before various Courts of competent jurisdiction. In these circumstances, the learned Magistrate was justified to record acquittal of the private respondents u/s 249-A Cr.PC, by recording following observation;

“Evidence of complainant and both eye witnesses has been recorded. Both the eye witnesses are brothers to the complainant. Long standing enmity in between parties is admitted by the complainant. The series of cases registered against accused persons by complainant, his father and grandfather is sufficient to prove malafide on the part of complainant party. The complainant and both witnesses were referred by the Court for their medical examination, during preliminary enquiry. Such medico-legal certificates are available on record, wherein medical officer opined that since no injury was seen on the person of injured witnesses, therefore, no opinion was given as to nature of injury. Therefore, medical evidence does not support the ocular version of complainant. All the 16 accused persons are members of one and same family, who worked different sectors of life in different cities belonging to professions of Teacher, Doctor, Engineer, Private employees and others. All the facts and circumstances of the case taken cumulatively, made the entire prosecution story highly improbable to the prudent mind.

10. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is has been observed 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. Prima facie, nothing has been brought on record by the appellant/complainant, which may suggest that the impugned order of acquittal of the private respondents has been passed by learned trial Court in arbitrary or cursory manner, which may call for interference by this Court.

12. In view of facts and reasons discussed above, the instant Criminal Acquittal appeal is dismissed together with listed application for special leave to appeal.

J U D G E