IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

Crl. Acquittal Appeal           :           Zulfiqar Ali Shah vs.

No. S- 17 of 2021.                            Jan Ali alias Babay &Others

For the Appellant                 :           Mr. Nisar Ahmed G. Abro, Advocate

Date of hearing                    :           11.02.2022

Date of announcement      :           11.02.2022

ORDER

Agha Faisal, J.         (1) Granted. (2) Over ruled. (3) Granted; subject to all exceptions. (4) The appellant had filed a case/ F.I.R alleging theft of water pump and solar fan. The said proceedings culminated into acquittal of the accused/ respondents No.1 and 2 vide judgment dated 04.02.2021. This acquittal appeal challenges the aforesaid judgment.

2. Per learned counsel the trial Court had been unable to appreciate the evidence in its proper perspective, hence, the acquittal was unsafe.

3. Heard and perused. At the very onset learned counsel was asked to demonstrate the recovery memo to show recovery of stolen items from the accused, however, he remained unable to do so. It is also noted that while the narration in the F.I.R suggests that the accused were seen taking away a solar fan and water pump, however, the list of stolen items had been enlarged to include iron girders and other items as well. This inconsistency has also not been explained. Notwithstanding the foregoing, it is considered imperative to reproduce the conclusive findings of the trial Court herein below:

“Therefore, keeping in view of above discussion and contradictory statement, occurrence of triple edged story in only one managed case is converted into admission upon the accused to be habitual offenders by seeking the result to get desired motive. But unfortunately, prosecution remained failed and could not shake the marks of acquittal in part of accused persons. Since, prosecution witnesses are not corroborated with each other from any corner of the prosecution case. Admittedly, the major admissions have already been discussed as above, which are sufficient to indicate the ulterior motive. Furthermore, prosecution has failed to examine PW Syed Paryal Shah, who is eyewitness of the allegedincident and P.C Riaz Ahmed, who is mashir of arrest ofaccused and recovery. Therefore, I am of the humble view that, the instant F.I.R has been lodged against above named accused persons in order to seeing the accused behind the bar with ulterior motive and  collusion as the date of instant incidetn is not mentioned in instant F.I.R, which is fully based beyond the shadow of exchanging harsh words. Prosecution has failed to produce sufficient material or evidence against the accused, hence, false implication against the accused cannot be ruled out. Prosecution has failed to prove its charge against above named accused persons for alleged offences beyond shadow of reasonable doubt. Therefore, the point under discussion is answered, as doubtful.”

4. It is settled law that an accused is innocent till proven guilty and exoneration by a court of competent jurisdiction confirms the same. Such a vested right may only merit interference if the court below has disregarded material evidence, misread evidence and / or received such evidence illegally. Interference in acquittal ought not to be warranted merely because on re-appraisal of the evidence a different conclusion could also be possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice. The august Supreme Court has envisaged a pivotal test in such matters, being that the finding sought to be interfered with, after scrutiny, should be found as artificial, shocking and ridiculous. No such case has been made out before this Court in the present case.

5. This Court has given careful consideration to the contents of the impugned judgment and is of the view that that the appellant’s counsel has remained unable to identify any infirmity therein, meriting interference of this Court. In view of foregoing, this appeal is dismissed in limine.

                                                                    JUDGE