JUDGMENT
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Criminal Acquittal Appeal No. S- 10 of 2022
Before:
Mr.JusticeAmjad
Ali Sahito.
For hearing of main case.
14.04.2022
Mr. Illahi Bakhsh Maitlo,
Advocate for Appellant.
-.-.-.-.-.-.-.-.-
Appellant/Complainant
Mst. Shami wife of Muhammad Yakoob
Buriror has challenged the Judgment dated 18.01.2022 passed by 2nd
Judicial Magistrate Rohri in criminal case No. 275/2019 arising out of
crime No. 43/2019 registered at Police Station Dubbar, through which
respondents/accused Nos. 2 and 3 have
been acquitted by extending benefit doubt under section 245(i) Cr.P.C.
2. The facts in brief
necessary for disposal of instant acquittal appeal are that on 01.09.2019
complainant Mst. Shami lodged FIR at Police Station alleging that on 30.06.2019
she along with her father Ghulam Ali and daughter Zakia were available in their
house. Usually after having meal they went to sleep, electricity bulbs were on,
it was 2330 hours on the noise they woke up and saw and identified accused
Irshad son of Yar Muhammad with gun 2. Ayaz son of Arz Muhammad with pistol and
two unknown persons were having lathies who
were committing theft from their house, they gave hakal, upon which
accused Irshad and Ayaz caused butt blows to Mst. Zakia, Thereafter complainant
party raised cries which attracted to neighbourers and villagers, on their
arrival, all accused after scaling over the wall went away. Thereafter
complainant party found that two pairs of jhumaks, one Taveez made of gold
weighing one tola and 10 un-sewed clothes were missing and stolen by the
accused. Mst. Zakia daughter of complainant sustained injuries over her right
eye, one on her head and she had sustained simple blows and she was bleeding. Ultimately
complainant brought her daughter to PS, after obtaining letter and getting
treatment went to house and approached to nekmards for return of stolen
property but they kept on hollow hopes and ultimately refused, then complainant
went to PS and lodged FIR.
3.
After investigation, Investigation Officer submitted the challan and after
completion of all the legal formalities the trial court framed the charge
against the accused to which they pleaded ‘not guilty’ and claimed to be tried.
4. At the trial, the prosecution examined PW-1 Dr.
Shahjahan who produced police letter, X-ray, PMLC report and final MLC. PW-02
Mst. Shami was examined at Exh.04, who produced FIR. PW-03 injured witness Mst.
Zakia was examined at Exh.05. PW-04 Mashir Sohbat Ali was examined at Exh.06
who produced memo of site inspection and memo of arrest. PW-06 ASI Rab Nawaz
was examined at Exh.08 who produced entry No.02. Thereafter, prosecution closed its side.
5. Trial Court recorded statements of accused under
section 342 Cr.PC wherein they denied the prosecution allegations, claimed their
false implication in the case.
6. After assessment of evidence learned trial court
has passed the above impugned judgment which is assailed before this Court
through instant criminal acquittal appeal.
7. Learned counsel for the
appellant contended that all the witnesses have fully supported case of
prosecution but their evidence was not appreciated by the learned trial court;
that there are minor contradictions in the evidence of witnesses and on the
basis of minor contradictions, accused were acquitted; that learned trial court
has committed illegality while acquitting the respondents and there was huge
evidence for conviction of respondents.
8. Learned Additional Prosecutor General
on behalf of State supports the impugned judgment.
9. The case of prosecution is that on 30.06.2019 complainant Mst. Shami along with her father Ghulam
Ali and daughter Zakia were available in their house, after having meal they
went to sleep, electricity bulbs were on, it was 2330 hours on the noise they
woke up and saw and identified accused Irshad son of Yar Muhammad with gun 2.
Ayaz son of Arz Muhammad with pistol and two unknown persons were having
lathies who were committing theft from
their house, they gave hakal, upon which accused Irshad and Ayaz caused butt
blows to Mst. Zakia, Thereafter complainant party raised cries which attracted
to neighbourers and villagers, on their arrival, all accused after scaling over
the wall went away. Thereafter complainant party found that two pairs of
jhumaks, one Taveez made of gold weighing one tola and 10 un-sewed clothes were
missing and stolen by the accused. Mst. Zakia daughter of complainant sustained
injuries over her right eye, one on her head and she had sustained simple blows
on her person and was bleeding. Ultimately complainant after getting letter,
treatment came to her house, approached to nekmards and then lodged FIR.
10. From perusal
of record and proceedings it reveals that complainant Mst. Shami narrated in
FIR that accused Ayaz and Irshad caused butt blows to her daughter Mst. Zakia,
they raised cries on which neighbourers and villagers rushed there but
complainant in her deposition made improvement and stated that accused Irshad
caused gun butt blow to her daughter which hit on her head and accused Ayaz
caused pistol butt blow to her duahgter which hit her on her right eye brow.
Whereas PW-4 Suhbat Ali contradicted the version of complainant and injured by
deposing that no one received injury in the incident. FIR shows that bleeding
was oozing from injuries sustained by injured Mst. Zakia whereas PW-01 Dr.
Shahjahan in her cross examination deposed that there was no bleeding seen from
the injuries. Further more, PW-02 complainant Mst. Shami deposed in her
examination in chief that electric bulbs were on in their house but from
perusal of memo of site inspection produced at Exh.06-A, reflects that I.O had
not mentioned any bulb in the mashirnama of site inspection. Another major
contradiction which was noted by the trial Court that PW-02 complainant Mst.
Shami in her examination in chief that co‑villagers rushed from village,
accused fled away climbing the wall and she after admitting her daughter found
that accused persons committed theft of gold ornaments and 10 un-sewed clothes
from their house whereas complainant Mst. Shami has neither in her deposition
or in FIR stated that when accused persons were running from her house climbing
the wall, they had something in their hands or they thrown something out of her
house but as per common sense accused persons can put gold in their pocket but
how they hide 10 ladies cloths with them. Thus there are many contradictions in the statements of PWs examined by the trial.
11.
I have considered the above arguments and
perused the record. From perusal of judgment passed by the trial Court it
appears that the same is speaking one and does not suffer from any interference
by this Court. In these circumstances, the learned trial Court obviously was right to record
acquittal of the private respondents by extending them benefit of doubt and
such acquittal is not found to have been recorded in arbitrary or cursory
manner, which may call for interference by this Court.
In
case of The State and others vs. Abdul Khaliq and
others (PLD 2011 SC-554), it is held 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 criinal 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”.
12. I am fully satisfied with appraisal of
evidence done by the learned trial Court and I am of the view that while
evaluating the evidence, the difference is to be maintained in appeal from
conviction and acquittal appeal and in the latter case, interference is to be made
only when there is gross misreading of evidence resulting in miscarriage of
justice. Learned counsel for the appellant failed to disclose any misreading
and non-reading of evidence. In the case of Muhammad Zafar and another v.
Rustam and others (2017 SCMR 1639), the Hon’ble Supreme Court of
Pakistan has held that:-
“We have
examined the record and the reasons recorded by the learned appellate court for
acquittal of respondent No.2 and for not interfering with the acquittal of
respondents No.3 to 5 are borne out from the record. No misreading of evidence
could be pointed out by the learned counsel for the complainant/appellant and
learned Additional prosecutor General for the State, which would have resulted
into grave miscarriage of justice. The learned courts below have given valid
and convincing reasons for the acquittal of respondents Nos. 2 to 5 which
reasons have not been found by us to be arbitrary, capricious of fanciful
warranting interference by this Court. Even otherwise this Court is always slow
in interfering in the acquittal of accused because it is well settled law that
in criminal trial every person is innocent unless proven guilty and upon
acquittal by a court of competent jurisdiction such presumption doubles. As a
sequel of the above discussion, this appeal is without any merit and the same
is hereby dismissed”
13. In view of facts and
reasons discussed above, the instant Criminal Acquittal appeal is dismissed in limine.
J
U D G E
Irfan/PA