JUDGMENT
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Criminal Acquittal Appeal No. S- 55 of 2022
Before:
Mr.
Justice Amjad Ali Sahito.
For hearing of main case.
19.04.2022
Mr. Faiz Muhammad Brohi, Advocate for Appellant.
-.-.-.-.-.-.-.-.-
Appellant/Complainant
Anwar son of Bahadur bycaste Ujjan has challenged the Judgment dated 15.03.2022
passed by learned Additional Sessions Judge-II Naushehro Feroze in Sessions
Case No. 53 of 2020 arising out of crime No. 108/2019 registered at Police
Station Tharu Shah, through which respondents/accused Nos. 1 and 2 have been acquitted by extending benefit doubt
under section 265-H(i) Cr.P.C.
2. The facts in brief necessary for disposal of instant acquittal
appeal are that complainant Anwar Ujjan lodged FIR with PS Tharu Shah on
20.07.2019 at 1500 hours alleging that on 07.03.2019 he along with his brother
Peer Bux and other family members were available in the house, it was 1.00 pm,
accused Zameer, Bisharat armed with pistols, Bahar, Abbass and three unknown
persons having lathies forcibly entered in his house, used abusive language and
issued murderous threats on which brother of complainant namely Peer Bux made
resistance, accused Zameer caused butt blows of pistol to him on his head and
right arm. Complainant party raised cries which attracted to Haroon who came
there, accused Bisharat caused butt blow of pistol to Pir Bux on his leg,
accused Bahar Solangi caused lathi blow to Pir Bux on his right hand and
accused Abbass Ujjan caused lathi blow to Pir Bux on his right shoulder,
thereafter, complainant and witnesses Haroon rescued Pir Bux, accused Zameer
robbed cash of Rs.30,000/-, one pair of ear rings valued at Rs.90,000/-, thereafter
accused run away by making aerial firing and issued threats of murder.
Complainant brought his injured brother Pir Bux at PS Tharu Shah, wherefrom
obtained letter for treatment, injured pir Bux got treatment from Civil
Hospital Tharu Shah, wherefrom he was referred to civil Hospital Nawabshah.
Complainant filed application before Sessions Judge Naushehro Feroze and after
seeking directions 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 SIP
Gul Muhammad at Exh.03 who produced mashirnama of visiting place of vardat and
attested copy of entry No.12 dated 20.07.2019 at Exh.03-B. PW-2 PC Makhdoom
Nisar (mashir of visiting place of vardat) at Exh.5 he produced memo of
application U/S 22-A B Cr.P.C, true copy of order dated 17.07.2019, statement
dated 20.07.2019. PW-4 eye witness Muhammad Haroon at Exh.06 he produced mashirnama of examining
the injuries. PW-5 HC Shoukat Ali (author of FIR) at Exh.07, he produced
attested copy of entry No.11. PW-06 Muhib Ali (I.O) was examined at Exh.08.
PW07 Dr. Riaz Hussain Medical officer at Exh.9 he produced letter No. 216 dated
07.03.2019, Provisional Medical Certificate dated 08.03.2019, expert opinion
and final Medical Certificate dated 06.04.2019. PW-08 Peer Bux (eye witness/injured) was examined at exh.10.
PW-09 WHC Nawab Khan Dahri was examined at Exh.11. 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 07.03.2019 complainant Anwar along with his brother Peer
Bux and other family members were available in the house, it was 1.00 pm,
accused Zameer, Bisharat armed with pistols, Bahar, Abbass and three unknown
persons having lathies forcibly entered in his house, used abusive language and
issued murderous threats on which brother of complainant namely Peer Bux made
resistance, accused Zameer caused butt blows of pistol to him on his head and
right arm. Complainant party raised cries which attracted to Haroon who came
there, accused Bisharat caused butt blow of pistol to Pir Bux on his leg,
accused Bahar Solangi caused lathi blow to Pir Bux on his right hand and
accused Abbass Ujjan caused lathi blow to Pir Bux on his right shoulder,
thereafter, complainant and witnesses Haroon rescued Pir Bux, accused Zameer
robbed cash of Rs.30,000/-, one pair of ear rings valued at Rs.90,000/-,
thereafter accused run away by making aerial firing and issued threats of
murder. Complainant brought his injured brother Pir Bux at PS Tharu Shah,
wherefrom obtained letter for treatment, injured Pir Bux got treatment from
Civil Hospital Tharu Shah, wherefrom injured was referred to civil Hospital
Nawabshah and then after filing of an application for registration of FIR, got
orders and lodged FIR.
10. From perusal of record and proceedings it reveals that admittedly
there is delay of about four months and 12 days in lodging of FIR without
plausible explanation. After registration of FIR, the investigation was
conducted and I.O of the case recommended the case for disposal in ‘B’ class.
Complainant Anwar Ujjan has deposed in his evidence that injured was admitted
in hospital for five days but the injured has not supported his evidence while
recording his evidence. Complainant has deposed in his evidence that amount of
Rs. 30,000/- and pair of ear rings were lying in red colour iron box but it is
surprising to note that said iron box was neither part of investigation nor the
same was produced in the Court. From the record it also reflects that
complainant Anwar Ujjan and injured Pir Bux were not known to the present
accused Zameer and Bisharat prior to present incident then they have introduced
their names with their parentage name in the FIR as well as statement U/S 161
Cr.P.C. 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