ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acquittal Appeal No.S-113 of 2020

 

Date

               Order with signature of Judge

 

Appellant:                                  Muhammad Uris Khaskheli

  Through Mr. Abdul Wahab G.

  Shaikh, Advocate

 

Respondents:                             Mr. Aijaz Ali Bhutto, Advocate

 

State:                                         Through Ms. Shabana Naheed,

                                                  APG

 

Date of hearing:                         08.11.2021

 

Dated of order:                           08.11.2021

                                                 

O R D E R

 

Zulfiqar Ali Sangi, J:             This Criminal Acquittal Appeal has been filed by the Appellant against the judgment dated 26.11.2020, passed by learned Judicial Magistrate-II, (MTMC), Naushahro Feroze, whereby Respondents No.1 to 6 have been acquitted of the charges, hence this appeal.

 

2.       As per FIR, the allegation against the Respondents is that on 22.12.2019 at about 08:30 hours, when Complainant alongwith his family members were available at his house, they forcibly trespassed into his house possessing lathies and pistols, caused lathi blow on the head of complainant and his brother; besides one of the accused/Respondent caused butt blow of pistol on the left side of head of Complainant’s uncle and the other caused lathi blows on the other parts of his body, hence such FIR was registered. 

 

3.       Learned counsel for the Appellant/Complainant, at the very outset submits that the impugned judgment passed by learned trial Court is illegal, unlawful and void; that learned trial Court while passing the impugned judgment has not appreciated the evidence of the Appellant/Complainant and his witnesses with regard to commission of offence committed by the Respondents/accused; that the learned trial Court did not consider the evidence of complainant, which was consistent with the contents of FIR and was duly supported by the prosecution witnesses wherein each and every respondent/accused was specifically attributed proper role; that impugned judgment is based on presumption and assumption so also on surmises and conjectures; that learned trial Court did not apply its judicial mind while passing the impugned judgment; that there is no major contradictions, however the minor discrepancies are not fatal to the case of appellant, even otherwise the minor discrepancies should have been ignored instead of acquitting the accused. In the last, he submits that impugned judgment passed by learned trial Court may be set-aside and respondents may be convicted.  

 

4.       Conversely, learned Counsel representing the Respondents submitted that the Respondents are innocent and have falsely been implicated by the Complainant party in this case; next contends that there are material contradictions in the prosecution evidence which creates doubt regarding presence of prosecution witnesses during the time of alleged incident; contends that there is delay of 39 days in lodging of FIR; further contends that present appellant/complainant had earlier filed Criminal Misc. Application under Section 22-A(6)(i) Cr.P.C, bearing No.195 of 2020, alleging therein same incident, which was dismissed by learned 2nd Additional Sessions Judge, Naushahro Feroze; lastly contends that alleged incident as mentioned in the FIR did not ever happened; besides medical certificate is a managed one, hence prayed that instant acquittal appeal may be dismissed.

 

5.       Learned DPG representing the State, while adopting the arguments of learned Counsel representing the Respondents, argued that the learned trial Court has rightly passed the impugned judgment by considering the material available on record hence requires no any interference by this Court. 

5.       Heard arguments. Record perused.

6.       Perusal of record shows that appellant has miserably failed to establish extra ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial court may be interfered with by this court. This is a case of alleged trespassing and causing injuries to the family members residing in the house and in this regard prior to registration of FIR, an application under Section 22-A (6) (i) was also filed by the Appellant/Complainant, which was met with dismissal thereafter such FIR was lodged; however the version put in the miscellaneous application is totally different from the version mentioned in the FIR; besides major contradictory statements of prosecution witnesses in their statements recorded under Section 161 Cr.P.C. For the sake of convenience, para-12 of the impugned judgment is reproduced as under;-

“PW-02 complainant Muhammad Uris has alleged in an FIR that accused used to reside criminal type of persons at their residency, resulting complainant family felt difficulty while going and coming, on which they resisted them not to do so, due to which accused were annoyed with them. On this piece of evidence, learned defense Counsel put him in the test of cross examination and asked question to which he denied that prior to registration of this FIR, he had filed any criminal misc. application under Section 22-A and 22-B Cr.P.C, for registration of FIR against the present accused in the Court of Hon’ble Sessions Judge, Naushahro Feroze, of the same alleged incident but the CTC copy of the said criminal misc. application bearing No.195 of 2020, alongwith the affidavit of the complainant Muhammad Uris came on the record during the time of examination of accused Muhammad Usman recorded under Section 342 Cr.P.C. I have perused the contents of criminal misc. application wherein complainant has stated purely different from the facts of the present FIR by alleging therein that above named accused had taken away one girl from the village on which he/applicant had retrained them from staying of the said girl in village, by saying them that it would create problem for the other villagers, on which above named accused were annoyed. Complainant also deposed that on 22.12.2019 at about 08:30 hours, above named accused trespassed into his house, whereas he had alleged that accused persons had trespassed into his house round about 08:00 hours, on same date in his criminal misc. application. PW-02 complainant deposed that 07 above named accused had illegally entered into his house, whereas he had alleged in his criminal misc. application that 10 accused persons had entered into his house, out of them 04 were unknown accused and rest were Muhammad Usman, Abdul Ghaffar, Abdul Majeed, Gulzar, Muhammad Bux and Akbar, however; the name of accused Akbar is not mentioned in the contents of this FIR lodged by the Complainant. PW-02 complainant deposed that accused Muhammad Usman was possessing lathe whereas I have perused the contents of criminal misc. application, wherein he had alleged that accused Muhammad Usman was armed with pistol. Complainant also deposed that he alongwith his brothers each namely Ghulam Shabir and Ghulam Kabir and other family members were available at his house when accused persons trespassed into his house whereas I have perused the contents of criminal misc. application, wherein he had alleged that he alongwith his father Meer Muhammad, brother Ghulam Shabir and uncle Ali Mardan and other family members were available at his house when accused persons had entered into his house. Injured Ali Mardan deposed that accused Muhammad Usman caused him lathe blow on his left hand whereas accused Abdul Majeed caused butt blow of pistol on his left side of head. In this regard, I have perused the statement of the injured Ali Mardan recorded by the I.O under Section 161 Cr.P.C wherein he had alleged purely different from the above version by stating that accused Muhammad Usman, Gulzar and Abdul Majeed had caused butt blow of pistol and lathes on his head. However his statement recorded under Section 161 Cr.P.C is fully silent in respect of the injury received by him in his arm. In this respect, I am fortified from the case law reported as Ibrar Hussain and others v. The State and others (2007 SCMR 605) wherein Hon’ble Supreme Court of Pakistan has held that:-

“Person making contradictory statement could not be held worthy of credence---Witness making contradictory statements and changing his version as and when suited according to situation, such type of improvement were found and deliberate and dishonest, therefore, could cause serious doubt on the veracity of such witness”.     

 

7.       It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the later case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of MUHAMMAD IJAZ AHMAD V/S FAHIM AFZAL (1998 SCMR 1281) and JEHANGIR V/S AMINULLAH AND OTHERS (2010 SCMR 491). It is settled principle of law as held in the plethora of case law that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice. 

8.       There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons do not warrant any interference by this Court and is accordingly maintained.

9.       This Criminal Acquittal Appeal is decided in the above terms.

 

Faisal Mumtaz/PS                                                                            JUDGE