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