IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Acquittal Appeal No.S– 16 of 2020

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

For hearing of main case.

17.02.2020

Mr. Nisar Ahmed Mallah Advocate for appellant.

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ZULFIQAR ALI SANGI, J; Through this acquittal appeal the appellant/complainant namely Mst. Salma has impugned the judgment dated 10.01.2020 passed by Additional Sessions Judge-II Naushehro Feroze, in Sessions case No.225/2015 arising out of crime No.20/2015 U/s 376, 34 PPC Police Station, Bhirya Road district, Naushehro Feroze whereby the respondents Khadim Hussain, Kabeer Ali, Nadeem, Sathi Khan and Mst. Shamshad were acquitted by extending benefit of doubt to them.

2. Brief facts of the prosecution case are that complainant Mst. Salma lodged FIR on 10.04.2015 at Police Station, Bhirya Road stating therein that on 10.04.2015 she was present at her house when accused Khadim Hussain came there and asked that her wife is not well and he wants to get her medical check-up from Doctor and she may accompany him to Doctor. On such request complainant along with her son Seengar Ali, accused Khadim Hussain, his wife Shamshad Khatoon, Kabir Ali, Nadeem Ali and Sathi Khan all by caste Panhwar came on motorcycles at Bhirya Road at the house of Haji Haroon, at about 01:00 p.m, Haji Haroon left complainant and accused party for Juma prayer. After a while accused Khadim Hussain came along with co-accused Nadeem, Kabir Ali, Sathi Khan and Mst. Shamshad Khatoon. Out of them accused Khadim Hussain committed forcible Zina with complainant while other accused hold her and made naked photographs of complainant in their mobile phones. Complainant raised cries which attracted her son Seengar Ali, Aslam Panhwar and Aijaz Ali they also saw complainant in naked position. On appearing of witnesses accused persons ran away, hence complainant appeared at Police Station and lodged the FIR.

After investigation the challan accused/respondents was presented in the trial Court.

3. In support of their case prosecution examined PW-1 Mst. Salma Panhwar at Ex.04 she produced FIR at Ex.4-A, PW-2 Seengar Ali Panhwar was examined at Ex.5. Thereafter charged was amended. PW-3 Dr. Nafees Ahmed Memon (M.O.) was examined at Ex.7 who produced letter Cr. No.20/2015 dated 20.4.2015 at Ex.7-A and he also produced Medico Legal Certificate at Ex.7-B. PW-4 Noor Mohammad Panhwar was examined at Ex.8 who produced such mashirnama of arrest at Ex.8-A. PW-05 Nisar Ahmed Panhwar was examined at Ex.09 who produced mashirnama of place of wardat at Ex.9-A. PW-06 Khadim Hussain Bhatti (I.O) was examined at Ex.10 who produced chemical report No.862163 dated 16.4.2015 at Ex.10-A. PW-7 Gul Bibi (WMO) was examined at Ex.11, she produced police letter No.Cr.20/2015 dated 10.4.2015 at Ex.11-A, she also produced provisional medical certificate at Ex.11-B. She also produced report of chemical examiner bearing No.862163 dated 16.4.2015 at Ex.11-C and she also produced Final Medico Certificate bearing No.RHC/BH/35 dated 21.04.2015 at Ex.11-D. Thereafter, learned ADPP closed prosecution side at Ex.12, and then statements of accused were recorded U/s 342 Cr.P.C.

4. Learned Counsel for appellant submits that the judgment of the trial Court is perverse, non-speaking and contrary to the evidence brought on the record therefore, it is liable to be set-aside; that complainant and his PWs have fully supported the case of prosecution and prosecution has fully established its case for conviction but learned trial Court on flimsy ground has acquitted the respondents; that evidence produced by the prosecution has not been properly appreciated by the trial Court; that medical evidence though was supported but was not considered. He further submits that Court had to weigh the quality and not the quantity of evidence and in the present case sufficient material was on record warranting conviction of accused but learned trial Court did not give any weight and acquitted the respondent’s mere on presumption. He lastly submitted that conclusion drawn by the trial Court regarding innocence of accused was perverse coupled with non-reading and mis-reading of evidence hence, same is liable to be set-aside and conviction may be awarded to the respondents.

5. I have heard the arguments advanced by the learned Counsel for appellant and have scanned the material available on record. Perusal of evidence of star witness Mst. Salma it appears that on 10.04.2015 when she was available in the house where accused Khadim entered in the house along with his wife Mst. Shamshad and requested that her wife is not feeling well and asked to accompany to the woman Doctor at hospital then she had gone with his son while accused Khadim boarded on his motorcycle with his wife and on the way saw towards road Kambir and Nadeem who were already available on their motorcycle and one person Sathi Pannwar was also present there and they reached at Bhirya road city and went in the house of Haji Haroon who asked about their arrival and then handed over keys of house to Khadim, then Khadim asked his son Seengar Ali to go to the city she asked Mst. Shamshad to go to the Doctor for treatment but she was avoiding, in the meantime the outer door was knocking, Mst. Shamshad went to the door and opened the door, Khadim, Kambir, Sathi and Nadeem entered into the house she was sitting watching T.V and they entered and Khadim grappling her hand and they dragged to the room situated to the southern side and accused Khadim Hussain removed off her clothes and committed Zina-bil-Jabr and accused Kambeer recorded her naked movies and accused Nadeem and Sathi caught hold her hands and legs and after some time Mst. Shamshad knocked the door and asked about arrival of her son Seenghar thereafter accused persons ran away. Apart from above, her evidence has totally been belied by the Women Medical Officer she clearly mentioned that “No any mark of violence seen on whole body at the time of examination. In cross examination she deposed that it is possible that we can obtained swab of any married women and sent for chemical analysis it will be positive hence, there is no question of committing any Zina-bil-Jabr with her but she stated against accused/respondents. PW Seenghar who is son of victim Mst. Salma and is interested witness, who has also given contradictory evidence before learned trial Court thus, the evidence furnished by prosecution is not inspiring confidence to connect the respondents in the alleged commission of offence.

6. The prosecution has examined only interested witnesses and independent witnesses namely Aslam Panhwar and Aijaz Ali though were available and according to complainant they were seen her in naked condition but they were not examined before the trial Court which suggests that they are not supporting the case of prosecution.

7. The conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the private respondents beyond shadow of doubt. In this regard the reliance is placed upon the case of State and others v. Abdul Khaliq and others (PLD 2011 SC-554), wherein it has been held by the Honourable Supreme 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 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 could 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, fooling, 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 infirmities”.

8. After considering the material available in the file I have come to the conclusion that the impugned judgment dated 10.01.2020 passed by II-Additional Sessions Judge, Naushehro Feroze is based on proper appreciation of the evidence which is not fanciful. Needless to mention that when an accused person is acquitted by a Court of competent jurisdiction, then double presumption of innocence is attached to its judgment, with which the superior Courts in numerous cases do not interfere unless the impugned judgment appears to be vague, perverse and arbitrary or against the record.

9. In the above circumstances, I am of the view that trial Court has rightly come to the conclusion that reasonable doubt has been created in the prosecution case and its benefit has rightly been extended to the respondents, therefore, learned II-Additional Sessions Judge, Naushehro Feroze was justified for acquitting the respondents and no case for issuance of notice to the respondents has been made out hence, instant Crl. Acquittal appeal stands dismissed in limine.

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