JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Crl. Acquittal Appeal.No.D-13 of 2021.

(Mushtaque Ali Vs. Najeebullah & others)

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DATE                    ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

                                                        Mr. Justice Irshad Ali Shah.

                                                                                           Mr. Justice Arbab Ali Hakro.

For hearing of main case.

24.05.2023

                    Mr. Waqar Ahmed Chandio, Advocate for the appellant.

                    The private respondents in person.

Mr. Ali Anwar Kandhro, Addl.P.G for the State

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IRSHAD ALI SHAH, J. It is alleged that the private respondents with rest of the culprits, in furtherance of their common intention attempted to commit carnal intercourse with Ashfaque Hussain and on resistance, committed his murder by causing him knife injury, for that the present case was registered. On conclusion of trial, co-accused Israr and Rizwan were convicted under Section 302(b) PPC and sentenced accordingly while the private respondents were acquitted by learned 6^th Additional Sessions Judge/MCTC, Larkana, vide judgment dated 16.02.2021, which the appellant has impugned before this Court by preferring the instant criminal acquittal appeal.

2.       It is contended by learned counsel for the appellant that learned trial Court has recorded acquittal of the private respondents without appreciating the evidence properly; therefore, their acquittal is to be examined by this Court. 

3.       The private respondents by supporting their acquittal have sought for dismissal of instant criminal acquittal appeal; in their contentions, they are supported by learned Addl.P.G for the State.

4.       Heard arguments and perused the record.

5.       The FIR of the incident has been lodged with delay of about three days; such delay having not been explained plausibly could not be overlooked. The appellant on account of his failure to support the case of prosecution was declared hostile. As per Investigation officer SIP Sartaj Ahmed, 161 Cr.PC statements of PWs Masood Ahmed and Muhammad Muslim were recorded on 08.09.2018; it was with delay of 13 days to lodgment of FIR of the incident which was lodged on 25.08.2018; no explanation to such delay has been offered. On asking, the appellant was fair enough to admit that neither he, nor his witnesses has witnessed the incident; such admission on his part prima facie suggests that the incident was unseen one. On investigation, the private respondents were let-off by the police by placing their names in Column No.2 of the charge sheet. In these circumstances, learned trial Court was right to record acquittal of the private respondents, which is not found arbitrary or cursory to be interfered with by this Court.

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

7.       In view of the facts and reasons discussed above, the instant criminal acquittal appeal fails and it is dismissed accordingly. JUDGE

JUDGE