JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

 

Criminal Acquittal Appeal No.S-125 of 2021

 

 

Appellant:                      PirBakhsh son of SohrabChachar

Through Mr.Sanwal Khan Chachar Advocate.

 

 

                             Versus                         

 

Respondents :               Imam Bakhsh and 05 others

Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

 

 

 

Date of hearing:            24.02.2022.

Date of Judgment:        24.02.2022.

 

 

 

J U D G M E N T

 

 

AMJAD ALI SAHITO, J-.Being aggrieved and dissatisfied with the judgment dated 13.10.2021,recorded under Section 245-(1) Cr.P.C in favour of the respondents Nos. 1to6by the learned Civil Judge & Judicial Magistrate-I Ubauroin criminal case No. 221/2021 arising out of FIR No.106/2020 for offences under sections 337-U, 147, 148, 149, 504 PPC registered at PSUbauro, District Ghotkiwhereby the respondents1 to 6 were acquitted from the charge.

2.      The facts in brief necessary for disposal of instant acquittal appeal are that there was annoyance between the parties over agricultural land. On 10.08.2020 complainant was present inside his otaq,  in the meantime at 4.00 pm accusedpersons namely: Imam Bakhsh, Rafique Ahmed, Naseer Ahmed, Sajjad, Muhammad Ghazi and Ali Nawaz having sticks/lathies trespassed in the otaq of complainant and challenging him abused him, accused Rafique Ahmed caused fist blows to complainant on his face with the result his upper lip got injured and tooth was broken while the remaining accused maltreated complainant by causing kicks and fist blows. Then complainant raised cries which attracted to his sons Mir Hassan and Gaji who intervened and gave holy names to accused then accused went away while abusing, ultimately complainant was brought at Police Post KamooShaheed from where he obtained letter for medical examination and after medical treatment lodged FIR.

3.      After completing the 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.      The charge was framed against respondents/accused by the trial Court, to which they pleaded not guilty and claimed to be tried.

5.      At the trial, in order to establish accusation against the accused, the prosecution examined pw-1 Medical Officer Dr. Nisar Ahmed at Exh.09 who produced letter for treatment and medical certificate of injured. PW-2 complainant PirBakhsh at Exh.10 who produced FIR. PW-3 mashirGaji Khan at Exh.11 who produced mashirnama of injuries, mashirnama of site inspection and mashirnama of arrest of accused Imam Bakhsh and Rafique.PW-4 Investigating officer ASI FaizullahKosh at Exh.13 who produced entry No.25. PW-5 HC LalBakhshChachar was examined at Exh.14 who produced entry No.07. Thereafter learned State counsel closed its side.

6.      Trial Court recorded statements of the respondents/accused were recorded under Section 342 Cr.P.C, wherein they denied the prosecution allegations leveled against them. However, neither they examined themselves on oath nor led defense evidence.

7.      After assessment of evidence learned trial court has passed the above impugned judgment which is assailed before this Court through instant criminal acquittal appeal.

8.       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.

9.      Learned D. P.G by supporting the impugned Judgment submits that complainant could not prove his case hence the learned trial Court has rightly passed the Judgment and acquitted the respondents/accused.

 

10.    The case of prosecution is that on 10.08.2020 complainant was present inside his otaq,  in the meantime at 4.00 pm accused persons namely: Imam Bakhsh, Rafique Ahmed, Naseer Ahmed, Sajjad, Muhammad Ghazi and Ali Nawaz having sticks/lathies trespassed in the otaq of complainant and after challenging abused him, accused Rafique Ahmed caused fist blows to complainant on his face with the result his upper lip got injured and tooth was broken while the remaining accused maltreated complainant by causing kicks and fist blows. Then complainant raised cries which attracted to his sons Mir Hassan and Gaji who intervened and gave holy names to accused then accused went away while abusing, ultimately complainant was brought at Police Post KamooShaheed and after getting letter and medical treatment lodged FIR

11.    From perusal of judgment passed by the trial Court it reveals that complainant PirBakhshChachar in his cross examination deposed that P.Ws came after the accused had maltreated him and further stated that PWs have not seen the accused while maltreating him but on the contrary PW Gaji in his examination-in-chief/ evidence recorded at Exh.11 deposed that he and his brother PW Mir Hassan went inside otaq and saw accused were fighting with their father/complainant. Complainant has deposed that he was sitting in the room of his otaq while PW Gaji deposed in his cross that complainant was present in the courtyard of his otaq. Complainant has deposed in his examination in chief that he was admitted in hospital for 07 days while PW Medical Officer Dr. Nisar Ahmed deposed in his cross examination that injured remained in hospital for 2/3 hours and complainant/injured was discharged on the same day at 10.30 pm. Complainant deposed in his evidence that about 15/20 villagers gathered at the place of incident while PW Gaji denied the version of complainant by saying that no one came from the villagers at the place of incident. From the evidence of complainant it has come on record that complainant himself has admitted that the accused are his brothers and nephews and complainant also admitted his enmity with accused persons over the partititon of landed property and even the police failed to secure blood stained clothes, broken tooth was secured by police or produced by the complainant. It is also evident from perusal of record that complainant at the time of getting letter for treatment did not disclose to police that his tooth was broken or even the memo of injuries also does not disclose that whether took of complainant was broken. Medical Officer who was examined before trial Court has admitted in his evidence that he has not collected Dental Expert opinion nor the same was produced before trial Court. There are many contradictions in the statements of  PWs examined by the trial Court and no independent witness was cited to corroborate the circumstances has been examined.

12.       Ihave 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 criminal 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”.

 

13.              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”

 

14.             In view of facts and reasons discussed above, the instant Criminal Acquittal appeal is dismissed.

 

 

                                                                            J U D G E

Irfan/PA

 


 

 

 

14.    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”

 

15.    The sequel of the above discussion is that I am satisfied with the appreciation of evidence evaluated by the learned trial Court while recording acquittal of the respondents/accused persons by extending the benefit of the doubt, which does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed accordingly.

16.    These of reasons of my short order announced in earlier part of the day whereby the instant acquittal was dismissed.

 

 

JUDGE

                                               

Irfan/PA