Crl. Acquittal Appeal No. S- 128 of 2019
Shoukat Ali
.
.
...
.
..
...Appellant
Versus.
The State and others.
.
......
. Respondents
For Hearing of
Main Case.
Mr. Abdul Rauf Hullio Advocate for appellant/complainant.
Mr. Abdul
Rehman Kolachi, Deputy P.G for the State.
Date of hearing: 28-10-2019
Date of short
Order: 28-10-2019
J U D G M E N T
RASHEED AHMED
SOOMRO J.,
Instant Crl. Acquittal Appeal is directed against the judgment dated 29.06.2019,
passed by learned 2nd Civil Judge & Judicial Magistrate, Kotdiji
in Crl. Case No. 112 of 2016, arising out of crime No. 104 of 2016, registered
with P.S, Kumb, for offences under Sections 452, 337A(i), 337A(iii), 337F(iii),
337F(v), 337L(2), 147, & 149 PPC, whereby respondents/accused were acquitted
of the charge.
2. Facts leading to disposal of this appeal
are that on 28.05.2016 at about 1000 hours, private respondents/accused in
association with absconding accused formed an
unlawful assembly by arming themselves with deadly weapons and in furtherance
of their common object committed criminal trespass by entering into house of
complainant Shoukat Ali and inflicted Lathi blows to him and other witnesses. Complainant sustained injuries at
his head and at elbow of right arm, witness Raja sustained injuries at his head
and left arm, father of complainant, namely, Muhammad Ali sustained injuries at
his head and left shoulder, Rasool Bux sustained injuries at his nose and on
other body parts, Sikandar Ali sustained injury of Lathi at his left arm,
mother of complainant Mst. Bachul sustained injuries at her left arm wrist and
other parts of body. Consequently, above FIR was
lodged on the same day at 2230 hours.
3. Charge was framed against the private 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 Cr.P.C 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 Deputy P.G for the State while supporting the impugned
judgment contended 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 Deputy 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 there are glaring contradictions in the
evidence of complainant and PWs/injured on material points. In their evidence, complainant and
PWs/injured deposed to have been maltreated by the accused persons with
Lathies, but they have not attributed specific role to any of the accused and
there are general allegations against all the accused persons and it has
rightly been observed by the trial Court that none of the injured specifically
named the accused with specific role of causing him/her Lathi blows, as such it
cannot be said that which accused caused what sort of injury to the injured
persons.
7. Furthermore,
according to prosecution witnesses, they sustained injuries and blood oozed
from their injuries, but surprisingly Mashirnama of site inspection is silent
with regard to blood stains as neither I.O. collected
the same nor he saw blood stains at the place of incident though the place of
occurrence was visited by the I.O promptly. It has also come on record that
many villagers came at the place of incident, but none of them is cited as witness and/or Mashir of the case. PW-Sikandar
Ali has admitted that he filed some cases against the accused party, which were
rejected, as such, there is longstanding enmity between the parties, therefore, false implication of the accused after due
deliberation and consultation cannot be overruled.
8.
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.
9. 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. Learned counsel for the appellant / complainant has not been able to
point out any illegality or
irregularity, misreading and non-reading or serious flaw or infirmity in the impugned judgment warranting interference by this Court.
10. 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-
128 of 2019 being devoid of any merit was dismissed by a short order dated
28.10.2019 and these are the reasons in support of short order.
JUDGE