IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Acquittal Appeal No. S- 73 of 2016
Syed Ghulam Murtaza Shah
Appellant
Versus.
The State and others
...
. Respondents
For Hearing of
Main Case.
The Appellant:
Through Mr. Dareshani
Ali Haider Ada Advocate.
The State: Through Abdul
Rehman Kolachi, Deputy P.G waives notice.
Date of hearing: 14-05-2018
Date of Judgment: 14-05-2018
J U D G M E N T
RASHEED AHMED SOOMRO J., Instant Crl. Acquittal Appeal is directed against the
judgment dated 27.04.2016, passed by 1st Judicial Magistrate,
Kotdiji, in criminal case No. 298 of 2015, culminating out of crime No. 123 of
2015 of P.S, Sorah for offences under sections 427, 430, 504, 506/2, 147, 148
PPC, whereby respondents/accused were acquitted of the charge.
2. Facts leading to disposal of this appeal
are that on 18.11.2015 at about 12:00 noon, respondents/accused formed an
unlawful assembly by arming themselves with the weapons and committed rioting
near the land of appellant/complainant on watercourse situated in Deh Chundiko,
where they caused mischief to watercourse and diverted its water for land
illegally and intimated complainant party by pointing pistol that if they would
not leave the land they would commit their murder and also abused them by
causing fists and slaps knowingly that such an act may provoke them to break
the peace. Resultantly,
above FIR was lodged.
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 DPG 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 as well as learned
DPG for the State so also perused the record of case. Perusal of impugned
judgment reflects that leaned trial court has discussed and considered the
glaring material contradictions in the evidence of complainant and PW-Ali
Murtaza Shah. Complainant in FIR has alleged that accused caused them slaps and
fits blows while in evidence he made improvement by deposing that accused
caused them lathi and fist blow, while eyewitness PW-Ali Murtaza has deposed
that accused caused them hurts with lathies and abused them. In this regard, no
medical certificate was produced or mark of violence was noted by I.O at the
time of registration of FIR, as such the version of
complainant is not supported by the evidence of eyewitness. Moreover, in
FIR complainant has mentioned that when they reached at scene of offence, they
saw accused while causing mischief to watercourse, whereas in his evidence
deposed that when they reached near the houses of accused on watercourse where
accused came and caused mischief to watercourse. Similar statement has been
deposed by PW Ali Murtaza that when they reached near place of incident, where
accused came there and caused mischief to watercourse. In cross-examination, complainant
admitted that he was driving motorcycle while on same point PW-Ali Murtaza Shah
has admitted that they proceeded to visit land and he was driving motorcycle.
7. Furthermore,
during course of trial, complainant failed to produce any record showing his ownership
over the subject land, for which watercourse was constructed. Moreover, I.O
visited the place of occurrence and disclosed in memo of inspection that
watercourse was old broken, such fact was also
admitted by him during cross-0examiation. Though complainant and PW- Ali
Murtaza Shah denied the dispute with accused, but said fact was admitted by I.O
during his cross-examination that civil dispute was going on between Dada Shah
and Ahmed Shah, as such in presence of enmity evidence of independent source
was required which is not available on record to believe the story of
prosecution.
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.
8. The
Honble Supreme Court of Pakistan in case of Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803) has
been pleased to observe as under:
"It needs no reiteration that
when an accused person is acquitted from the charge by a Court of competent
Jurisdiction then, double presumption of innocence is attached to its order,
with which the superior Courts do not interfere unless the impugned order is
arbitrary, capricious, fanciful and against the record".
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-73
of 2016 being meritless stands dismissed.
JUDGE