IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Acquittal Appeal No.S- 182 of 2017

Muhammad Juman Bhutto…....…………………………….Appellant.

Versus

Allah Dino and others……………………………………Respondents.

1. For orders on MA 10688/2017

2. For hearing of main case.

Mr. Sundar Khan Chachar Advocate for appellant.

Mr. Shafi Muhammad Mahar, Deputy P.G for the State.

Date of hearing: 03-12-2018

Date of short Order: 03-12-2018

J U D G M E N T

RASHEED AHMED SOOMRO J., Appellant/complainant Muhammad Juman Bhutto has assailed the judgment dated 17.10.2017, passed by learned II-Civil Judge & Judicial Magistrate, Mirpur Mathelo in criminal case No. 01 of 2017 arising out of crime No.06 of 2017 registered at P.S, Belo Mirpur-Ghotki for offence under sections 337A(i), 337A(ii),337L(ii), 147, 149 PPC, whereby the private respondents/accused were acquitted of the charge.

2. Precisely, the facts of the prosecution case are that on 04.02.2017 at about 0930 hours, outside the house of complainant, namely, Muhammad Juman situated in Deh Lal Pitafi, private respondents/accused, duly armed with sticks caused blows of sticks on the head and other parts of body of Muhammad Ayub s/o complainant. Consequently, above FIR was lodged.

3. The learned trial court after framing of charge, recording evidence of prosecution witnesses and hearing the parties acquitted the respondents of the charge by way of judgment, which is impugned in this appeal.

4. Learned counsel appearing for appellant/complainant 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 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 supported the impugned judgment and argued that sufficient material was available on record creating reasonable shadow of doubt and by giving them such benefit, respondents have been rightly acquitted by the trial court.

6. I have considered the arguments advanced by learned counsel for appellant as well as learned DPG so also perused the record of case. Scanning of material available on record shows that alleged incident took place on 04.02.2017, but the FIR was belatedly lodged on 08.02.2017 after delay of four days despite the fact that complainant received MLC of injured on 05.02.2017, and no satisfactorily explanation has been offered by the complainant for such an inordinate delay, which creates doubt and gives presumption of false implication of respondents/accused after due deliberation and consultation. Furthermore, there are major contradictions and inconsistency in the evidence of prosecution witnesses on material points, which have rightly been considered and discussed by the trial court in the impugned judgment. Admittedly, the incident is alleged to have taken place at the house of complainant and in his evidence, complainant deposed that “On 04.02.2017 I along with my brother (Manzoor) were present in my house”, whereas such version of complainant is contradicted by the evidence of eyewitness Muhammad Ayoub (injured), who admitted in his cross-examination that “It is correct to suggest at the time of incident he (Manzoor) was present in the shop”. Apart from other contradictions, this glaring contradiction was sufficient to create dent in the prosecution case.

7. Moreover, according to PW/Medical Officer Dr. Mir Hassan Kolachi, the final medical certificate was challenged before the medical board and as complainant party did not appear before the Medical Board, the Board suspended the final medical certificate, as such the medical certificate has lost its authenticity and validity. Admittedly, no arrival or departure entry was produced by the I.O to support his version that he actually visited the place of occurrence or not, which also creates doubt. Despite the fact that complainant admitted in his evidence that his place of occurrence is situated in thickly populated village consisting of 100 houses, and there are 10/12 houses in his Mohalla, but even then he failed to cite any independent person to support his version, which also creates doubt in the prudent mind and these were fatal to the prosecution case.

8. The Hon’ble 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".

9. The upshot of the above discussion is that the prosecution has failed to prove guilt of the respondents, as such the trial court had no option but to acquit the 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. There appears no illegality or irregularity, misreading and non-reading in the judgment impugned warranting interference by this court.

10. It is also well-settled principle of law that there should not be series of dents and doubts in the prosecution case, but if a single doubt is created even then the defence is entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. It is also established law that after gaining acquittal a double presumption of innocence was earned by the private respondents and the superior courts have always been reluctant to set aside findings of acquittal unless it is proved that the findings arrived at by the trial court while acquitting the accused are based on misreading, non-reading of evidence or the acquittal is perverse, shocking, artificial and ridiculous.

11. For what has been discussed above, I am of the considered opinion that the prosecution failed to bring home the charge against the respondents beyond reasonable doubt, thus the trial court has rightly acquitted the respondents of the charge. No case for interference in the impugned judgment is made out, therefore, by a short order dated 03.12.2018 instant Crl. Acquittal Appeal No. S-182 of 2017 was dismissed being meritless and these are the reasons in support of short order.

JUDGE