JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.D-13 of 2015

Before;

                                                                          Mr. Justice Zafar Ahmed Rajput

                                                                          Mr. Justice Irshad Ali Shah

 

Appellant:                            Mst. Mehna Begum w/o Leemon Khan bycaste Khandhro, R/O Mithan Faqir, Taluka Kotdiji, District Khairpur.

 

                                                Through Mr. Achar Khan Gabole, advocate.

 

The State:                              Through Mr. Aftab Ahmed Shar, Additional Prosecutor General.

 

Private Respondents:        1. Jhandal s/o Ghulam Shabbir @ Shaboo  Kandhro.

 

                                                2. Nazim son of Pir Dino Kandhro. (Absconder).

 

                                                3. Mushtaque son of Ghulam Shabbir @ Shaboo Kandhro (Expired).

 

                                                All three resident of village Mithan Fakir, Taluka Kotdiji, District Khairpur.

 

Date of Hearing:                 15-03-2023

Date of Judgment:              15-03-2023

 

J U D G M E N T

 IRSHAD ALI SHAH, J. The facts in brief necessary for disposal of instant appeal are that accused Jhandal, Nazim and Mushtaque with rest of the culprits allegedly after having formed an unlawful assembly and in prosecution of their common object committed murder of Khawand Dino by causing him fire shot injuries and then went away while making aerial firing for create harassment, for that the present case was registered. On conclusion of trial, they (accused Jhandal, Nazim and Mushtaque) were acquitted by learned Ist Additional Sessions Judge Khairpur vide Judgment dated                24-01-2015, which is impugned by the appellant before this Court by preferring the instant Crl. Acquittal Appeal.

2.         It is contended by learned counsel for the appellant that the acquittal of accused Jhandal, Nazim and Mushtque is based on improper assessment of evidence, therefore it is liable to be set aside; which is opposed by learned APG for the State by supporting the impugned judgment contended that the acquittal of the accused is based on proper assessment of evidence.

3.         Heard arguments and perused the record.

4.         The deceased as per FIR was done to death near to his house. It was stated by the appellant during course of her examination that at the time of incident she being present in her house was chitchatting with others, if it is believed to be so, then it prima-facie suggests that she is not an actual eyewitness to the incident. It was further stated by her that the accused after committing the incident slaughtered a cattle, cooked it and then took the diner; such activities on the accused in the incident like present nature could not be expected, who normally preferred to escape good, soon after the incident.  The FIR of the incident has been lodged with the delay of about 20 hours, such delay having not been explained plausibly, could not be over looked. It is reflecting consultation and deliberation. Surprisingly the appellant disowned the contents of her FIR impliedly by stating that her RTI on it was obtained by the police without reading the contents whereof. The PWs are appearing to be chance witnesses. The parties admittedly are inimical with each other. The deceased was also having a criminal record. In these circumstances, learned trial Court was right to record acquittal of the accused Jhandal, Nazim and Mushtaque by extending them benefit of doubt, such acquittal is not found to be arbitrary or cursory to be interfered with by this Court.  

5.         In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it has been 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”.

 

6.         In view of the facts and reasons discussed above, the instant Crl. Acquittal Appeal fails and it is dismissed accordingly.

 

 

  J U D G E

           

                                                                        J U D G E

 

 

 

Nasim/P.A