IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Revision Application No.S-54 of 2013.

 

 

1.      For hearing of main case.

2.      For hearing of MA No.2777/2014

 

Applicant:                 Province of Sindh, through Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh.

 

                                                Versus

 

Respondent:             Ravi Kumar son of Kanwal Mal, Hindu through Mr. Danish Ali Advocate/associate of Mr. Muhammad Ali Nappar, Advocate for respondent.

 

Date of hearing:                    28.02.2022

Date of Order:                       28.02.2022

 

 

O R D E R.

 

 

 

AMJAD ALI SAHITO, J-.Through this criminal Revision Application, Province of Sindh has impugned order dated 21.03.2013 passed by learned Additional Sessions Judge (Hudood) Sukkur in Criminal Complaint No.55 of 2011 (Sessions case No. 488 of 2011) wherein S.S.P Sukkur was directed to depute a police officer not below the rank of Inspector to see and make inquiry whether the complainant or the accused persons or their mean are in occupation of the land S.No. 255 are (04-05) acres situated at Deh Old Sukkur Tapo Old Sukkur, Taluka New Sukkur District Sukkur. Police officers concerned were further directed to make it sure that the complainant be put in possession of the land in question by removing all illegal occupants at SITE if any as the accused of criminal complaint are denying the possession the property in question as such the complainant proved himself as a owner of the property in question by producing the sale deed and form VII-B, which shows that the complainant purchased the said property from Dandoo Mal and others and proved that he is owner of the property in question. The applicant being aggrieved has filed this Criminal Revision Application.

 

2.         Per learned Assistant Advocate General Sindh submits that already competent Court has declared that Government of Sindh is owner of the property and cancelled the sale deed of the respondent as such the learned trial Court may be directed to decide the case of the parties in view of the Judgment dated 08.02.2010 passed by learned 1st Senior Civil Judge Sukkur.

 

3.         On the other hand learned counsel appearing on behalf of respondent submits that the case has been proceeded and the witnesses have been examined and now the case is fixed for Judgment. He further submits that stay is operating and the learned trial Court may be directed to pass and announce judgment in accordance with law.

 

4.         Heard learned counsel for the parties and perused the record.

 

5.         Since the case has been proceeded by the learned trial Court and almost the evidence is/ near to complete as per contentions raised by learned counsel for the respondent, therefore, learned trial Court is in good position to decide the case of the parties in accordance with law after going through the entire evidence, resultantly, this Criminal Revision Application is allowed with directions to trial Court to announce the Judgment after going through the entire evidence and hearing the counsel for the parties. The interim order passed by this Court already operating is hereby vacated and the impugned order dated 21.03.2013 in Criminal complaint No.55 of 2011 (Sessions Case No.488 of 2011 ) passed by learned Additional Sessions Judge (Hudood) Sukkur vide order dated 21.03.2013 is set aside . Till announcement of the Judgment by the trial Court the parties are directed to maintain status quo.

 

6.         The instant Criminal Revision Application is disposed in the above terms.

 

 

 

 

JUDGE

Irfan/PA

 

 

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

 

Criminal Acquittal Appeal No.S-41 of 2021.

 

Appellant:                     The Prosecutor General Criminal Prosecutor Service, Department Govt. of Sindh, Karachi.

                                      Through Mr. Aftab Ahmed Shar, Additional Prosecutor General.

Respondent:                  Habibullah son of KarimBux Lund.

 

Date of hearing:            10-02-2020.

Date of Judgment:        10-02-2020.

 

J U D G M E N T

 

 

AMJAD ALI SAHITO, J-.      Being aggrieved and dissatisfied with the impugned judgment dated 18-07-2019, passed by learned1st Additional Sessions Judge/MCTC NaushehroFeroze in Sessions Case No. 850/2014 Re. The State Vs. Habibullah Lund, offence u/s 23(i) (a), Sindh Arms Act, 2013, Crime No. 66/2014 registered at police Station Mithianiwhereby the respondent was acquitted of the charge.

2.      The brief facts of the prosecution case are that on 29-10-2014 complainant SIP/SHO Din Muhammad Leghari lodged the FIR alleging therein that on the said date he along with his subordinate staff namely Aijaz Ali, PC Amir Bux, PC Mehar Ali and DPC Muhammad Saleh left Police Station vide entry No. 09 at 1350 hours in Government vehicle for investigating of Crime No. 64/2014, offence u/s 302, 337H(ii), 147, 148, 149, 504 PPC. The private mashirs namely GhulamRasool Lund and Abdul Khalid Lund were also accompanied with them. When they reached near village Dittal Lund, where they received spy information that accused Habibullah Lund wanted in the above rcime was going by the road side to his village Bhorti.  On receipt of such information, they proceed towards the pointed place and reached at link road Bhorti near Mango garden of Abdul HaqueBhurt, where at about 1530 hours they apprehended the said persons. On enquiry, the said persons disclosed his name as Habibullah son of KarimBuxbycaste Lund r/o village DittalLumd Taluka Kandiaro. During his personal search one 30 bore pistol along with five live bullets in its magazine was recovered from his possession, to which accused disclosed that he used the same in commission of murder of Khan Muhammad. Such pistol, magazine and bullets were sealed at the spot, then such mashirnama was prepared at the spot in presence of above mashirs. Then accused and case property were brought to police station, where complainant has registered the FIR against the accused on behalf of the state.

3.     The learned trial after observing all formalities and recording evidence of the complainant party as well as statements of accused, acquitted the respondent through the impugned judgment.

4.      Learned Additional Prosecutor General for the Statesubmits that though all the witnesses have supported the case but the learned trial Court has erroneously acquitted the respondent without appreciating their corroborative evidence. He prayed for setting aside the impugned judgment so also awarding conviction and sentence to the respondent.

5.      I have heard learned Deputy Prosecutor General, Sindh representing the State and have gone through the evidence as well as impugned judgment available on record. The criterion of interference in the judgment against acquittal is not the same as against the cases involving a conviction. The scope of interference in an appeal against acquittal is narrow and limited for the reasons that 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.

6.      From perusal of material brought on record, it appears that complainant in the FIR has disclosed that both the private mashirs along with them, when they left police station for investigation of main crime No. 64/2014 while he during the cross examination, the complainant SIP Din Muhammad has deposed that on 29-10-2014 he sent WPC Sikandar who went to Mithiani Town from where brought both the private mashirs at police station. Complainant during his cross examination has deposed that Munshi prepared mashirnama of arrest and recovery on the spot at his dictation while mashirGhulamRasool has deposed during his cross examination that memof of arrest and recovery was prepared by SHO Din Muhammad Leghari. It is also surprising to note that the complainant SIP Din Muhammad has not deposed anywhere as to whether he has sent the recovered pistol to Forensic Science Laboratory in order to know its working condition, even the FSL report has not been produced during the trial before the trial Court, which single thing creates uncertainty in the prosecution case. In view of above the prosecution evidence is doubtful as it is found contradictory and inconsistency on material particulars without being corroborated by independent evidence, which creates reasonable doubt.

7.      I have also carefully perused the record of the caseand have no hesitation to observe that impugned judgment is speaking one and elaborate which does not suffer from any illegality, gross irregularity, infirmity, hence, it does not require any interference by this Court. It is settled law that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the cases of TARIQ PERVEZ v. THE STATE(1995 SCMR 1345), MUHAMMAD SAEED v. THE STATE (2008 P.Cr.L.J. 1752), GHULAM MURTAZA v. THE STATE (2010 P.Cr.L.J. 461), MOHAMMAD MANSHA v. THE STATE (2018 SCMR 772).

8.      It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because the presumption of double innocence is attached in the later case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, and arbitrary in nature or based on a misreading, non-appraisal of evidence or is artificial, arbitrary and lead to a gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference in the judgment of acquittal gives rise to a strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order/Judgment of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of MUHAMMAD IJAZ AHMAD v. FAHIM AFZAL(1998 SCMR 1281) and JEHANGIR v. AMINULLAH AND OTHERS (2010 SCMR 491).It is also a settled principle of law as held in a plethora of case law that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice. 

9.      Suffice it to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which is based on sound and cogent reasons that do not warrant any interference by this Court. The appellant has miserably failed to establish extraordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial Court may be interfered with by this court.

10.    This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings. Consequently, the instant Criminal Acquittal Appeal is dismissed.

JUDGE

Nasim/P.A