THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S-142of 2019

Mr.Muhammad Iqbal Memon, advocate for the appellant.

Mr. Muhammad Ayaz Shaikh, Advocate for respondents.

Mr. Imran Mobeen Khan, Assistant Prosecutor General.

Date of hearing 25.04.2022

J U D G M E N T

ARSHAD HUSSAIN KHAN, J- Through instant Criminal Acquittal Appeal, the appellant/complainant has assailed the judgment dated 26-07-2019, passed by the learned Judicial Magistrate-I, Bhirya City, in Crl. Case No.230 of 2018, arisen out of F.I.R. No.24/2016, registered under Sections 452, 506/2, 337H(ii), 504, 427, 114, 147, 148, 149 P.P.C.at P.S. Bhirya City, whereby the respondents Nos. 3 to 5 were acquitted of the charge by extending them the benefit of doubt.

2. Briefly stated the facts of the case are that the appellant/complainant had entered into a contract of his guava orchard with Ahsan Ali Memon and prior to this contract the said orchard was given to respondent Ghulam Fareed to which he got annoyed. On 24-03-2016 at 09:00 a.m the appellant/complainant himself, his brothers Irfan, Nadeem and other family members were available in the house; accused persons including said Ghulam Fareed with weapons entered into the house beaten complainant party, abused them and made aerial firing in order to create harassment. On fire shots relatives of complainant party came there who rescued them. Accused persons went away while extending threats of murder that if the complainant did not withdraw the contract of his orchard he will face consequences. Thereafter complainant appeared at Police Station and lodged such FIR.

3. After usual investigation, police submitted the report under Section 173 Cr.P.C (challan). The accused was charged formally, to which they pleaded not guilty and claimed to be tried.

4. During trial respondent No. 2-Ghulam Fareed expired and proceedings against him were abated on 12.09.2018.

5. At the trial, Prosecution in order to substantiate the charge against the respondents/accused examined as many as five witnesses, who produced relevant documents in their depositions. Thereafter, the statements of accused were recorded, wherein they denied the allegations leveled against them. They neither examined themselves on oath nor produced any witness in their defense. On the assessment of the evidence on record, learned trial court acquitted the accused persons under section 245(i), Cr.P.C, vide impugned judgment. Aggrieved by the same, the complainant has preferred this Criminal Acquittal Appeal.

6. Heard the learned counsel for appellant, respondents and learned Assistant Prosecutor General and perused the material available on the record.

7. Learned counsel for appellant has mainly contended that learned trial court while passing the impugned judgment has failed to comply with the directions of learned this court as well as lower appellate court in letter and spirit as the examination-in-chief of the complainant and his witnesses have not been re-recorded they were only put to cross-examination, as such committed grave illegality. It is contended that trial court initially convicted the accused persons and thereafter the accused persons filed the appeal before learned Sessions Judge, Naushehro Feroze, whereby the learned Sessions Judge remanded the case with specific directions for framing the charge afresh, determine the age of accused Mehboob. After remand of the case, learned trial court without compliance with the directions only got the medical certificate of accused Mehboob and acquitted the accused; that the appellant challenged the said judgment before this Court in Acquittal Appeal No.S-83/2017, which was remanded by this Court and after full-dressed trial, the accused was acquitted on 26.07.2019; that learned trial court has not appreciated the evidence of the P.Ws. who have fully implicated the respondents with the commission of alleged offence; that the role of accused/respondents is clear from the contents of FIR, ocular evidence is very clear that the accused have committed the alleged offence; that the impugned judgment passed by the trial court is without applying its judicious mind and has not appreciated material available on the record; that the evidence produced by the appellant before the learned trial court was enough to connect the respondents No.3 to 5 with commission of offence whereas learned trial court did not consider the same for the conviction of respondents and it is fit case for conviction but learned trial court has failed to consider the same, which is sheer injustice with the appellant.

8. Learned counsel for respondents supported the impugned judgment and submitted that complainant has falsely involved theaccused/respondents in the commission of alleged offence due to enmity over contract of guava garden. He has submitted that learned trial court has rightly acquitted them, therefore, instant Crl. Acquittal appeal is liable to be dismissed.

9. Learned Assistant Prosecutor General has also supported the impugned judgment. He has submitted that the complainants/appellant has failed to prove the home guilt against accused persons as his witnesses have not corroborated his version as mentioned in the complaint/FIR. He contends that evidence of the complainant and the PWs is contradictory and there are huge discrepancies in their evidence. He has submitted that learned trial court has rightly acquitted the respondents. He has lastly prayed for dismissal of instant Crl. Acquittal appeal.

10. Learned trial court while deciding point No.1as not proved on account of insufficient evidence, has observed that “evidence of complainant is not trustworthy at all, being self-contradictory and full of smart enhancement. The complainant has frequently changed his stances so also suit the changing environment and situation. The Prosecutor’s evidence is not supported by any independent corroborative evidence. The documents produced by the prosecution itself weaken the prosecution case”.

11. The material on record approves the assessment of learned trial Court; hence, the Prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. It is well settled principle of law that for basing conviction against an accused there should be strong evidence before the trial court and if the doubt, even slightest, arises in the prudent mind as to the guilt of the accused, benefit of the same has to be extended in favour of the accused.

12. In so far as the contention of learned counsel for the appellant with regard to non-compliance of the directions of this Court as well as learned appellate court for re-recording of examination-in-chief of the complainant and his witnesses is concerned, a perusal of the impugned judgment shows that learned trial court while passing the judgment has taken care of the directions of this Court as well as learned lower appellate Court and in this regard the relevant portion of judgment is re-produced as under;

“In compliance of judgment passed by Honourable High Court of Sindh Bench at Sukkur, on 12.09.2018 fresh charge was framed against accused Manzoor Ahmed, Zaffar Ali and Mehboob and their pleas were also recorded. On 26.03.2019 the learned ADPP filed statement in which learned ADPP adopted the same examination-in-chief of the complainant and his witnesses, learned counsel for complainant raised no objection on the said statement of learned ADPP, then cross-examination of witnesses recorded”.

When the above fact was confronted with the appellant’s counsel that the counsel for complainant before the learned trial court himself extended No Objection for examination-in-chief of the complainant and his witnesses already recorded then how he can raise such objections at this stage to which counsel fails to give a plausible explanation and he simply states that he was not counsel for the complainant at the trial stage he, however, submits that it was the duty of the trial court to apply proper judicious mind.

13. In the circumstances, I do not find any merit in the arguments of learned counsel for the appellant. The learned trial court has recorded the reasons for its order of acquittal, which are based on the evidence on record and the conclusion drawn by the learned trial court as to the innocence of accused persons is appropriate.

14. The extraordinary remedy of an appeal against an acquittal is different from an appeal against the order of conviction and sentence because presumption of double innocence of the accused is attached to the order of acquittal. Thus, on the examination of the order of acquittal as a whole, credence is accorded to the findings of the subordinate court whereby the accused had been exonerated from the charge of commission of the offence. Therefore, to reverse an order of acquittal, it must be shown that the acquittal order is unreasonable, perverse and manifestly wrong. The order of acquittal passed by the trial court, which is based on correct appreciation of the evidence will not warrant interference in appeal. The Honourable Supreme Court while dealing with the appeal against acquittal has been pleased to lay down the principle in the case of Muhammad Shafi Vs. Muhammad Raza& another reported in [2008 SCMR 329] as under:-

“An accused is presumed to be innocent in law and if after regular trial he is acquitted, he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are, therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference.”

15. In view of above reasons, the impugned acquittal Judgment does not suffer from any illegally or infirmity and misreading or non-reading of evidence leading to miscarriage of justice; therefore, the same is not open for interference by the High Court under section 417 (2) Cr.P.C. This criminal acquittal appeal, therefore, stands dismissed accordingly alongwith listed applications.

JUDGE

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