IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

 LARKANA

 

Crl. Acquittal Appeal No. S- 39 of 2020.

 

Appellant:                 Nazir Ahmed Lakhair, through Mr. Habibullah G. Ghouri, Advocate.

 

Respondents:            Abdul Qadir and Ghulam Nabi.

 

The State:                  Mr. Muhammad Noonari, Deputy Prosecutor General.

             

Date of hearing:        05.4.2021.

Date of judgment:    05.4.2021.

 

JUDGMENT

 

Zulfiqar Ali Sangi, J-.        This acquittal appeal is directed against the judgment dated 04.6.2020 passed by learned 2nd Judicial Magistrate/ MTMC Mehar, in Criminal Case No.156/2019 Re; State v. Abdul Qadir Lakhair and another arisen out of F.I.R No.03/2019 of Police Station Nao-Goth (District Dadu), registered for offences punishable under Sections 435 & 34 P.P.C, whereby the learned trial Court had acquitted the accused/ respondents No.1 and 2, by extending benefit of doubt. The appellant/ complainant having aggrieved and dissatisfied with the impugned judgment has filed instant appeal.

 

2.         Precisely, facts of prosecution case are that, appellant/ complainant lodged F.I.R with P.S Nao-Goth, stating therein that there existed dispute between accused Abdul Qadir and others with his brothers over landed property and the accused persons used to warn them about taking existing wheat crop. That on 07.4.2019, when complainant alongwith his nephews Akhtiar and Altaf Hussain went to the land bearing survey No.3, situated in deh Nao Goth, as such at about 02.00 p.m. they saw and identified accused Abdul Qadir, Ghulam Nabi having pistols accompanying unknown accused; out of them accused Abdul Qadir picked out match box from his pocket and set the wheat crop on fire. The complainant party made cries and thereafter the accused persons escaped away. the flaming attracted villagers and visitors at Dargah Sadaruddin Shah, they came running there. The complainant with the help of other persons extinguished the fire; however the fire was spread upto one Jireb land. Thereafter, the complainant returned to village and after consultation with his brothers, he went to police-station and lodged F.I.R to the above effect.

 

3.         On completion of usual investigation the police submitted challan against accused Abdul Qadir by showing co-accused Ghulam Nabi as absconding. After supplying copies of necessary papers to the accused Abdul Qadir the learned trial Court framed the charge against him, to which he pleaded not guilty and claimed to be tried. At trial, the prosecution examined complainant/ appellant Nazir Ahmed at Ex.6, he produced copy of F.I.R. PW Altaf Hussain was examined at Ex.7. PW/ Mashir Shaman at Ex.8, he produced mashirnama of site inspection and arrest of accused. Investigation officer of the case ASI Muhammad Khan was examined at Ex.9, he produced roznamcha entry. However, co-accused Ghulam Nabi was arrested and brought before the Court with supplementary challan to face the charges, as such the amended charge was framed at Ex.10 and again accused persons pleaded not guilty and claimed trial. The complainant filed a statement adopting the earlier evidence recorded before framing of amended charge and thereafter, the prosecution side was closed by the learned prosecutor vide his statement at Ex.11. The statements of accused were recorded under Section 342, Cr.P.C. at Ex.12 and 13, respectively, wherein they denied allegations of prosecution and stated that complainant has falsely implicated them due to dispute over inherited property.

 

4.         After hearing learned counsel for the respective parties, the trial Court acquitted the respondents No.1 and 2 by extending them the benefit of the doubt in their favour vide impugned judgment. Hence, this acquittal appeal.

 

5.         Heard learned counsel for appellant and learned D.P.G. and gone through the impugned judgment.

 

6.         Learned counsel for appellant mainly contended that F.I.R was promptly lodged without loss of time, therefore, question of false implication of accused does not arise; that the accused persons were nominated in F.I.R with specific role of setting the wheat crop on fire and version of the complainant was fully established by him and his witnesses through their evidence; that no any material contradiction appeared in evidence of witnesses and they were unanimously on each and every material point. Learned counsel further contended that trial Court has not appreciated the evidence according to principles of evaluating the evidence in criminal cases. He further contended that prosecution has produced trustworthy evidence in the trial Court but the learned trial Court has not appreciated the evidence and erroneously extended benefit of doubt in favour of accused/ respondents No.1 and 2. He further contended that the prosecution had proved case beyond any shadow of doubt and the acquittal of the accused/ respondents has caused miscarriage of justice. He lastly contended that the impugned judgment may be set-aside and the accused/ respondents may be convicted.

 

7.         On the other hand learned D.P.G. supported the impugned judgment and contended that the learned trial Court rightly extended benefit of doubt in favour of accused/ respondents No.1 & 2. He further submitted that the impugned judgment is based on the detailed discussion of the evidence produced by the prosecution. He lastly, submitted that acquittal appeal may be dismissed.

 

8.         From a careful perusal of impugned judgment and other material, it is found that the contradictions observed by the trial Court have been suitably highlighted in its judgment. The observations of the trial Court on very material point with regard to happening of the alleged incident seems to be proper. The learned trial Court has also properly commented on all aspects of the case. In these circumstances, the learned trial Court has rightly come to a conclusion that the prosecution could not establish the case against the respondents/ accused.

 

9.         I have heard the learned counsel for appellant at great length and called upon him to satisfy about any infirmity in the impugned judgment. However, he could not show any substance and has not been able to point out any material piece of evidence or any other crucial point or any misreading or non-reading of any material evidence, which has not been considered or discussed by the learned trial Court in the impugned judgment.  As such, no case has been made out against respondents/ accused for interference in their acquittal.

 

10.       It is also a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remain slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477) the Honourable apex Court observed as under:-

 

            “That the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non reading of evidence… Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.

 

 

            Similar view was reiterated by the Honourable apex Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-

 

            “Needless to emphasize 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.”

 

 

11.       The upshot of above discussion is that, the impugned judgment is well founded and well-reasoned, based on proper appraisal of the evidence and thus it calls for no interference by this Court. Even otherwise, it re-iterated that the acquittal recorded by the Court of competent jurisdiction, would not be disturbed until there is any misreading or non-reading of the evidence resulting into miscarriage of justice, which, as elaborated above, has not been noticed here. Consequently, there appears no substance at all in the present appeal, which was accordingly dismissed in limine.

 

 

                                                        Judge

Ansari