Crl. Acquittal Appeal No. S- 151 of 2019
Abdul Majeed
.
.
.
...
..
..
...Appellant
Versus.
Fayaz Ahmed and others
......
. Respondents
For Hearing of
Main Case.
Mr. Yasir Arfat Mahar Advocate for appellant/complainant.
Mr. Aftab
Ahmed Shar, Additional P.G for the State.
Date of hearing: 25-10-2019
Date of Judgment: 25-10-2019
J U D G M E N T
RASHEED AHMED SOOMRO J., Instant Crl. Acquittal Appeal is directed against the
judgment dated 23.08.2019, passed by learned Judicial Magistrate-II (MTMC),
Ghotki in Crl. Case No. 46 of 2019, arising out of crime No. 275 of 2018, of
P.S, A-section, Ghotki for offences under Sections 337A(ii), 147, 148, 149 PPC,
whereby respondents/accused were acquitted of the charge.
2. Facts leading to disposal of this appeal
are that on 03.11.2018, complainant came to attend hearing of murder case
arising out of FIR No. 76/2014 before the Court of learned 2nd
Additional sessions Judge, Ghotki, where accused Fayaz, Ghulam Murtaza with
pistols, Abdul Razak, Shabir, Abdul Haleem with Lathi and Khan Muhammad at
03-00 p.m, stopped complainant party in front of Jamia Masjid Ghotki, and all
accused persons gave kicks and fists blows to complainant and P.Ws and accused
Shabir and Abdul Razak caught hold of complainant from his arms and accused
Fayaz inflicted butt blows on the head of complainant. Consequently, above FIR was lodged
on 04.11.2018 at 1430 hours.
3. Charge was framed against the respondents, to which they pleaded
not guilty and claimed trial. Thereafter, prosecution led evidence of
prosecution witnesses and recorded statements of accused in terms of section
342 CrPC and after hearing the parties vide impugned judgment acquitted the respondents
of the charge.
4. Learned counsel for appellant argued that
there was sufficient evidence connecting the private respondents with the
commission of offence, but the learned trial court illegally acquitted them of
the charge; that the trial court failed to take into consideration that the
offence is of heinous nature; that respondents failed to create any dent in the
prosecution case but even then the trial court illegally, unlawfully and
without any justifiable reason acquitted them of the charge and while
acquitting the respondents the trial Court failed to record any cogent reason.
5. On the
other hand, learned Additional P.G for the State while supporting the impugned
judgment argued that the respondents have rightly been
acquitted by the trial court after appreciating the evidence properly.
6. I have considered the arguments advanced by
the learned counsel for appellant, learned Additional P.G for the State so also
as well as perused the record of case
and have reached to a conclusion that respondents/accused have rightly been
acquitted by the trial Court for the reasons that according to contents of FIR,
complainant has alleged that he along with two persons, namely, Shafique and
Ali Abbas was going to attend the Court hearing, but prosecution has examined
only one eyewitness, namely, Shafique, whereas eyewitness Ali Abbas has not
been examined by the prosecution. Furthermore, I.O of the case admitted to have kept
entry No.21 recorded by the complainant, but surprisingly in the said entry, the
complainant does not disclose names of the accused. Moreover, the very
important aspect of the case is that the alleged incident took place on
03.11.2018 and the FIR was lodged on the very next date i.e. 04.11.2018 when
complainant produced medical certificate before the police, but Medical Officer
has contradicted the version of the injured by deposing that the injured remained
admitted in hospital for two days. If the injured had remained admitted for two
days in the hospital then the FIR should have been lodged
on 05.11.2018, but perusal of FIR reveals that it was lodged on 04.11.2019. The
learned counsel for the appellant/complainant has failed to satisfy the Court
on this point, which is extremely fatal to the
prosecution case.
7.
It is also settled law that
ordinary scope of acquittal appeal is considerably narrow and limited and
obvious approach for dealing with the appeal against the conviction would be
different and should be distinguished from the appeal against acquittal because
presumption of double innocence of accused is attached to the order of
acquittal. In the recent judgment in the case of Zulfiqar
Ali v. Imtiaz and others (2019 SCMR 1315), Hon'ble Supreme Court has held as under:
2. According to the autopsy report, deceased
was brought dead through a police constable and there is nothing on the record
to even obliquely suggest witnesses presence in the hospital; there is no
medico legal report to postulate hypothesis of arrival in the hospital in
injured condition. The witnesses claimed to have come across the deceased and
the assailants per chance while they were on way to Chak No.504/GB. There is a
reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as
the witnesses, who had first seen the deceased lying critically injured at the
canal bank and it is on the record that they escorted the deceased to the
hospital. Ali Sher was cited as a witness, however,
given up by the complainant. These aspects of the case conjointly lead the
learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon.
View taken by the learned Judge is a possible view, structured in evidence
available on the record and as such not open to any legitimate exception. It is
by now well-settled that acquittal once granted cannot
be recalled merely on the possibility of a contra view. Unless, the impugned
view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal
Appeal fails. Appeal dismissed.
8. Under
these circumstances, I am of the considered opinion that prosecution has failed
to prove guilt of the respondents, as such the trial
court had no option but to acquit the private respondents of the charge. The
trial court after proper appraisal of material available on record and
attending all the legal as well as factual aspects of the case passed a very
exhaustive and well-reasoned judgment. No illegality or irregularity,
misreading and non-reading could be pointed out by the
learned counsel for the appellant in the judgment impugned warranting
interference by this court.
9. In view of above discussions, I am of the
considered view that no case for interference in the impugned judgment is made out, therefore, instant Crl. Acquittal Appeal No. S-
151 of 2019 stands dismissed being meritless.
JUDGE