IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

 

Crl. Acquittal Appeal No. S- 114 of 2022.

 

Appellant:                             Piyaro, through Mr. Abdul Rehman A. Bhutto, Advocate.

 

Respondents:                        Sikander Pahore and another.

 

Date of Hearing:                   10.05.2023.

Date of Judgment:                10.05.2023.

 

Judgment

 

Zulfiqar Ali Sangi, J-. This appeal against acquittal under Section 417      (2-A) of Cr.P.C is directed by complainant Piyaro son of Ishaque assailing judgment dated 22.10.2022, passed by learned 5th Additional Sessions Judge, Shikarpur in Criminal Complaint No.64/2021 re; Piyaro v. Sikander and others, whereby the learned trial Court has acquitted the accused/ respondent No.1.

 

            The facts of the case as depicted from para 2 of the impugned judgment, reads as under:

 

            “The brief facts of the complaint are that he owns agricultural land bearing survey No.324, area 07-03 acres, situated in Tapo Areja, Deh Kumbranwati, Taluka Khanpur, District Shikarpur and accused time to time tried to occupy the same hence complainant used to complain against them before nekmards. On 28.02.2021 complainant along with Habibullah son of Wali Muhammad and Jumo Khan son of Muhammad Ishaque went to look after standing wheat crop in his land. They saw and identified accused Ahmed son of Ali Muhammad, Din Muhammad, Sikander both sons of Qasim, Akhtiar son of Gulab, Ghulam Abbas, Ghulam Mustafa son of Akhtiar, Ali Muhammad, Khair Muhammad alias Khairo both sons of Ramzan, Gaji son of Nihal, Soomar son of Haji, Moran son of Ali Sher all by caste Pahore resident of village Lal Dino Pahore Taluka Khanpur, District Shikarpur, out of them Din Muhammad and Akhtiar were armed with guns and remaining had lathis in their hands, who were standing in his agricultural land. Seeing complainant coming to the land accused Din Muhammad and Akhtiar pointed their guns, extended them threats and while abusing asked them that they have occupied the land and will not allow him to enter into possession and to cultivate the same. The complainant then went to his nekmard but all in vain, hence he filed instant complaint.”

 

 

            The record reflects that after institution of complaint, the reports were called by learned trial Court from Mukhtiarkar and SHO concerned and on the basis of such reports vide order dated 10.01.2022 the trial Court took cognizance upon accused/ respondent No.1 (Sikander Pahore) and complaint was brought on regular file and pursuant to process issued against accused/ respondent No.1, he joined trial. Formal charge was framed against the accused/ respondent No.1, to which he pleaded not guilty and claimed to be tried.

 

            At trial, the complainant examined himself at Ex.5 and produced complaint and its annexures at Ex.5-A. He also examined his witness, namely, Jumo Khan at Ex.7. Mukhtiarkar was also examined. Lastly, ASI Muhammad Siddique of concerned P.S was also examined. Thereafter, the side of complainant was closed. Then, the statement of accused was recorded under Section 342, Cr.P.C, who claimed his innocence and false implication in the case; however he neither examined himself on oath nor any witness in his defence. Ultimately, the learned trial Court after hearing the parties counsel passed the impugned judgment, whereby acquitted the respondent No.1. Hence, this appeal has been filed by the complainant.

 

            Learned counsel for the appellant mainly contended that trial Court has not appreciated the evidence produced at trial according to principles of evaluating the evidence in criminal cases. He further contended that prosecution has produced trustworthy ocular testimony supported by documentary evidence before the trial Court but it has not appreciated the evidence and erroneously extended benefit of doubt in favour of accused/ respondent No.1. He further contended that the prosecution had proved its case beyond any shadow of doubt and the acquittal of the accused/ respondent has caused miscarriage of justice. He lastly contended that the impugned judgment may be set-aside and the accused/ respondent No.1 may be convicted.

 

            Careful perusal of the impugned judgment reflects that the learned trial Court inter alia found that:- 

 

(a)        Complainant has not corroborated the contents of complaint with regard to the time, date, month and year of the incident.

 

(b)        Both the complainant and PW Jumo Khan have not disclosed the names of accused except accused Din Muhammad and Akhtiar agaisnt whom the complaint has not been registered.  

 

            (c)        Both of them have failed to corroborate the availability/ presence of accused Sikander at the time and venue as disclosed in the complaint.

 

            (d)        It is brought on record that civil dispute in between both the parties was going on and the incident shown to have been taken place in the complaint was not actually occurred, but it is an outcome of civil litigation.

 

            (e)        A certified true copy of appeal No.34/2009 remained pending before the Court of 1st Additional District Judge, Shikarpur, indicates that the parties remained at variance since 2009 and their suits filed agaisnt each other were pending/ disposed of in respect of land in question, but complainant while filing instant complaint has concealed these material facts from this Court.

 

            (f)         The conduct of complainant shows that he malafidely concealed such facts from this Court in order to capture the accused persons who were enjoying luxuries of civil litigation with him to face hardship of criminal litigation as well, and in order to get the relief, which was omitted by him to ask from the civil Court in civil round of litigation.

 

 

            As such, the learned trial Court has recorded acquittal of the accused/ respondent No.1 on the basis of cumulative assessment of the above evidence brought on record by determining that complainant failed to prove case against accused, hence duly extending him the benefit of doubt the learned trial Court acquitted the accused.

 

            The infirmities observed by the trial Court have been suitably highlighted in its judgment. The observations of the trial Court on very material points seems to be proper and it has properly commented on all aspects of the case. In these circumstances, the learned trial Court has rightly come to a conclusion that the complainant could not establish the case against the respondent/ accused.

 

            When called upon to show the misreading or non reading of evidence or other infirmity afflicting the impugned judgment, particularly the points noted by the learned trial Court in the impugned judgment, the learned counsel for the appellant was found wanting and could not point out any such error or omission.

 

            It is well settled principle of law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remain slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477) the Honourable apex Court observed as under:-

 

 

            “That the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non reading of evidence… Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.

 

 

            Similar view was reiterated by the Honourable apex Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-

 

            “Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.”

 

 

            For the foregoing reasons and keeping in view the dictum laid down in the cases (supra), I, do not see any weight in the arguments advanced by learned counsel for the appellant/ complainant and do not find any illegality in the impugned judgment of acquittal, as such the acquittal appeal is hereby dismissed in limine.

 

 

                                                       Judge

 

Ansari