IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acq. Appeal No. S-37 of 2023

Appellant		Ashiq Hussain Janwari
		Through Mr. Razi Khan Nabi Bux R. Chandio, advocate

Date of hearing		17-05-2023
Date of Judgment		17-05-2023

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant Criminal Acquittal Appeal, the appellant/complainant Ashiq Hussain has assailed the judgment dated 28.04.2023, passed by the learned I-Additional Sessions Judge, Mehar in Sessions Case No. 26/2023 (Ashique Hussain Janwari Vs. Altaf and others), for offence punishable Under Sections 395, 506/2, 452 P.P.C, whereby respondents/accused Altaf Janwari and others were acquitted.

2. Brief facts of the case are that the complainant filed direct complaint wherein he stated that he was married with daughter of proposed accused Nos. 1 and 5 as well as sister of proposed accused Nos. 2 to 4 and the relation of complainant and his wife remained in crucial stages of life due to intervention of accused. It is further alleged in the complaint that on 27.07.2022 the applicant along with his wife were present in the house at about 1.30 P.M accused arrived at the house of applicant, the proposed accused NO:2 duly armed with Spanner and proposed accused Nos. 3 and 4 duly armed with Pistols, all accused on the show of weapons locked the applicant inside Otak/Bethak and thereafter in connivance with the wife of applicant they taken away One Nose ring, 2. Hasri, 3. Gold Tikka, 4. Two rings of gents, 5. One Locket, 6. One Necklace of child, 7. Two Bangles, 8. Three ladies rings, 9. Three nose pins, 10. One Vivo SI Mobile Phone. 11. One Oppo A-5 Mobile, 12. Two stones of Neelam from the house. It is further alleged in the complaint that two relatives of complainant namely, 1. Deedar S/o Khamesso Khan Janwari and Fayaz S/o Niaz Hussain Janwari came there, while the proposed accused were hiding the Gold and other mentioned articles in a bag. Thereafter, all accused went away while taking the wife of applicant with them. Subsequently he approached the accused for returning of the Golden ornaments and other articles but all in vain and on contrary they issued threats of dire-consequences to applicant, hence the complainant filed the complaint.

3. The statement of complainant under section 200 Cr.P.C was recorded by the Court on 24-11-2022. The matter was referred to learned Civil Judge and J.M-II, Mehar for holding P.E. After the report of Magistrate and statements, the complaint in hand was brought on regular file vide order dated 21.12.2022.

4. The requisite papers/copies of the memo of complaint and statements supplied to the accused. The charge against accused, 1. Altaf s/o Juman Janwari, 2. Mujahid S/o Altaf Janwari, 3. Sagar s/o Altaf Janwari, 4. Sarang S/o Altaf Janwari and Mst; Najma W/o Altaf Janwari was framed to which they pleaded not guilty and claimed trial.

5. In order to prove its case, the complainant Ashique Hussain examined himself, he produced direct complaint No: 86/2022. The complainant examined his witness Fayaz Hussain and thereafter the learned advocate for complainant closed the side.

6. The statements of accused U/S 342 Cr.P.C were recorded, wherein they denied the allegations leveled by complainant against them. Accused stated in their statements that the complainant got registered false case against them due to family dispute, he maltreated his wife who is mother of eight children and also he had not been providing maintenance to his wife and children, hence his wife filed the suit for maintenance in Family Court. However neither the accused examined themselves on oath nor produced any witness in their defence.

7. The learned trial Court after hearing the Counsel for the parties and evaluation of the evidence acquitted the respondents/accused vide impugned judgment, which has been assailed before this court by the appellant/complainant by preferring the instant criminal acquittal appeal.

8. Learned counsel for the appellant/complainant submits that the impugned judgment is result of misreading and non-reading of evidence adduced at the trial and the trial court has erred both on law and facts and the impugned judgment has been passed in a hasty manner by not appreciating the facts and circumstances of the case in proper way; that the prosecution case is fully supported by the evidence of Complainant and P.Ws on material points. He further submits that the version of complainant and eye witness have gone un-shattered and was consistent and corroborative to each other to the extent of commission of offence by accused/respondents No.1 to 5. He further submits that respondents No.1 to 5 with their common object duly armed with deadly weapons had committed offence but learned trial Judge has miserably failed to consider the same fact; that learned trial Judge while passing impugned judgment has not recorded the cogent reasons for acquitting accused/respondents No.1 to 5. He lastly submits that the acquittal of the respondents/accused by way of impugned judgment requires interference by this Court and the same may be set aside.

9. Heard learned counsel for appellant/complainant and perused the material made available on the record.

10. Learned counsel was put on notice as to the maintainability of instant criminal acquittal appeal.

11. Be that as it may, admittedly the acquittal of the private respondents was recorded by the learned trial Court on direct complaint. As per sub-section (2) of Section 417 Cr.P.C, such acquittal was ought to have been impugned by way of filing acquittal appeal after seeking special leave to appeal, which was to be sought within sixty days of order of acquittal as is prescribed by sub-section (3) of Section 417 Cr.P.C. In the instant matter, application for special leave to appeal has not been filed by the appellant and without such application the acquittal appeal is not maintainable. However, in the interest of justice entire material available in the file is perused. No illegality or infirmity is found in the impugned Judgment.

12. Based upon the above discussion, I am of the humble view that the learned trial Court has rightly acquitted the respondents/accused by way of impugned judgment which even otherwise does not suffer from any illegality to be interfered with by this Court by way of instant Criminal Acquittal Appeal, the same fails and is dismissed in limine.

J U D G E

Abdul Salam/P.A