IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No. D- 80 of 2013.

 

                                                            Before;

                                                               Mr. Justice Khadim Hussain Tunio,

                                                               Mr. Justice Irshad Ali Shah.

 

Appellant/complainant    :         Nawab son of Unar Khobhar, Resident of village Kundo Kobhar, Taluka Daherki, District Ghotki.

 

Through Mr. Shamsuddin Khobhar, advocate.

 

Private respondent           :         Sobharo son of Muhammad Bachal

bycaste Kobhar, Resident of village  Jumo             Khobhar, Taluka Daherki, District Ghotki.

 

                                                Through Mr. Ubedullah K.Ghoto

                                                advocate.

 

The State                               :         Through Syed Sardar Ali Shah Rizvi,

                                                            Deputy Prosecutor General.

           

Date of hearing                   :         28-04-2021.             

Date of decision                  :         28-04-2021                          

 

JUDGMENT

 

IRSHAD ALI SHAH, J.- It is alleged that the private respondent with rest of the culprits in furtherance of their common intention, not only committed murder of Sujawal by causing him fire shot injuries, but caused fire shot injury to PW Jagir with intention to commit his murder and then went away by making fires at appellant Nawab and others, for that the present case was registered.

2.         On due trial, co-accused Mushtaq Ahmed for an offence punishable u/s 302 (b) PPC was convicted and sentenced to undergo rigorous imprisonment of life and to pay compensation of Rs. 50,000/- to the legal heirs of the said deceased with benefit of section 382 (b) Cr.P.C, while the private respondent was acquitted by learned 3rd Additional Sessions Judge Mirpur Mathelo vide his judgment dated 10-10-2013.

3.         The acquittal of the private respondent is impugned by the appellant by preferring the instant Crl. Acquittal Appeal.

4.        It is contended by learned counsel for the appellant that the private respondent was vicariousably liable for commission of incident; therefore his acquittal is liable to be set-aside.

5.         Learned DPG for the State and learned counsel for the private respondent by supporting the acquittal of the private respondent, have sought for dismissal of instant Crl. Acquittal Appeal by contending that it is based on sound reasons.

6.        We have considered the above arguments and perused the record.

7.         The role attributed to the private respondent in commission of incident is only to the extent of making ineffective fires at appellant and others, which has made his involvement in commission of incident on point of vicarious liability to be doubtful, therefore, learned trial Court was right to record his acquittal by extending him benefit of doubt by making the following observation;

            “So far as involvement of accused Sobharo, is concerned, Suffice to say that on account of annoyance he has been implicated in this case by complainant party, as his father Muhammad Bachal lodged FIR bearing Crime No. 150/2005, for the offences punishable under sections 452, 324, 147, 148, 149 PPC at police station Daharki, in respect of incident dated 04-11-2005, which was took place just before half hour of incident of present case, therefore, his said plea is creating doubt in the veracity of prosecution witnesses to that extent only, because the incident of said FIR Crime No. 150/2005 had taken place about half hour before incident of present crime, therefore, it can be said that complainant has implicated him just to teach lesson Muhammad Bachal, father of accused Sobharo. It is very common in our society that along with the actual culprits, innocent person are also involved. But, in criminal administration of justice the Court has to pay a dynamic role while deciding these type of cases pertaining to heinous offences by applying judicial mind and in such like cases the Court has a duty to shift the grain from the chaff. Besides, the weapon allegedly used by accused Sobharo was recovered from him and such case was registered against him, vide FIR bearing Crime No. 171/2005, under section 13 (e) Arms Ordinance at same police station, but he was acquitted by the Court of learned Civil Judge & Judicial Magistrate Daharki. Yet, the findings of trial Court are not binding upon this Court, but in present case in order to ascertain the truth; same can be taken into consideration because the prosecution has not produced the copy of memo of recovery of said weapon in the instant case. Further, in said case it has been observed by the trial Court that alleged recovered weapon was not in sealed condition, although in report under section 173 Cr.P.C of present case, same has been shown in sealed condition. In my considered view the case to its extent has become of doubtful in nature. It is settled by the apex Court of the country that in case of doubt, its benefit must go to the accused not as matter of grace, but of right”.

8.        In case of State and others vs. Abdul Khaliq  and others (PLD 2011 SC-554), it has been observed by the Hon’ble Apex Court that;

 

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption  of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

9.        In view of above, it would be concluded safely that the acquittal of the private respondents has not been found to be cursory or arbitrary, which may justify this Court to make interference with it by way of instant criminal acquittal appeal, it is dismissed accordingly.

10.       Above are the reasons of short order dated 28-04-2021.                                                                                                                                                                                                                                                                  Judge

Judge

Nasim/P.A