THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Acquittal Appeal No.D-16 of 2017

Before:

Mr. Justice Shamsuddin Abbasi

Mr. Justice Amjad Ali Sahito

Appellant: Dur Muhammad S/O Ali Muhammad Brohi through Mr. Asif Ali Abdul Razzak Soomro, Advocate.

State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Date of hearing: 26.10.2022.

Date of Judgment: 26.10.2022.

J U D G M E N T

AMJAD ALI SAHITO, J-. Being aggrieved and dissatisfied with the Judgment dated 27.05.2017 recorded in favour of the respondents/accused No.1 & 2 by the learned III-Additional Sessions Judge, Shikarpur in Sessions Case No. 302/2013 arising out of FIR No.77/2012 for the offence under sections 302, 34, 337-H(2), 148 & 149 PPC registered at Police Station Sultan Kot, Shikarpur, whereby the respondents were acquitted from the charge, hence Complainant/appellant has filed the instant Criminal Acquittal Appeal.

2. The facts in a nutshell necessary for the disposal of instant Criminal Acquittal Appeal as per the version of the complainant in the F.I.R are that there was family dispute between the parties. On 20.08.2012, complainant alongwith Pir Bux, Abdul Nabi, Noor Muhammad were going to their relatives when they crossed Sorhan Mori, they saw five persons namely Imamuddin, Abdullah both armed with T.T. Pistols, Sarwar armed with K.K and two unknown persons. Accused Imamuddin made fire upon the brother of the complainant Noor Muhammad, which hit him on chest, he fallen down and raised cries, seeing that all the accused while making aerial firing fled away. The brother of the complainant succumbed to injuries, post-mortem of the dead body was conducted and after funeral F.I.R was lodged.

3. After completing the investigation, Investigating Officer submitted the challan and after completion of all the legal formalities, the trial court framed the charge against the accused/respondents No.1 and 2, to which they pleaded ‘not guilty’ and claimed to be tried.

4. At the trial, to establish accusation against the accused, prosecution examined in all five P.Ws at Ex.18 to Ex.22/A respectively.

5. Trial Court recorded the statement of the respondents/accused under Section 342 Cr.P.C, wherein they denied the prosecution allegations leveled against them.

6. The learned trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, acquitted the respondents/accused vide judgment dated 27.05.2017. The acquittal recorded by the learned trial Court has been impugned by appellant Dur Muhammad Brohi by way of this acquittal appeal.

7. It is contended by the learned counsel for the appellant/complainant that the learned trial Court has not properly appreciated the material available on the record; that the prosecution has proved its case against the respondents beyond reasonable doubt; and, that the impugned judgement passed by the learned trial Court is illegal and result of misreading and non reading of evidence; that the learned Trial Court has committed error in facts and law while passing the impugned judgment. As there is direct evidence available on record connecting the accused with the commission of offence; that the appellant / complainant and his witnesses produced credible and unimpeachable oral evidence respecting commission of a serious offence under section 494 P.P.C particularly in preliminary statements, which is enough to prove the charge against the respondents/accused. He, therefore, prays that the appeal may be allowed and the impugned judgment may be set aside.

8. Learned Additional Prosecutor General has submitted that complainant could not prove his case hence the learned trial Court has rightly passed the Judgment and acquitted the respondents/accused.

9. We have heard the learned counsel for the appellant as well as Additional Prosecutor General for State and have gone through the material available on record.

10. The perusal of the record reveals that there are material contradictions in the evidence of the complainant and his witnesses. It appears that F.I.R is delayed about 56 hours and no plausible explanation has been furnished hence due deliberation and consultation cannot be ruled out. It is pertinent to mention here that as per version of mashir he had only signed one paper i.e. memo of site inspection, but from the perusal of record it appears that he was also witness of memo of dead body and Danishnama, which shows that such documents were prepared without the knowledge of mashir and the veracity of the said documents has become highly doubtful. Further name of the accused Ghulam Sarwar was given by the complainant much after occurrence of the incident without showing any source of information, besides the complainant has not examined the person who had disclosed the name of Ghulam Sarwar at subsequent stage which shows that the version of the complainant against accused Ghulam Sarwar was based upon hearsay evidence. Furthermore, the motive set forth by the complainant in the F.I.R that there was a family dispute has neither been supported by the oral evidence nor documentary evidence to be brought on record. Reliance in this respect is placed on a case reported as 2010 SCMR 385 (Muhammad Rafique and others v/s. The State and others). The accused persons while recording their 342 Cr.P.C. Statements have denied the allegations levelled against them and submit that they have been implicated in this case due to previous enmity, in their defence they have also examined defence witnesses which are annexed from DW-1 to DW-7.

11. We have considered the submissions of learned counsel for the appellant, learned Additional P.G and perused the record. From the 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 was right to record the acquittal of the private respondents by extending them the benefit of the doubt and such acquittal is not found to have been recorded in an 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 the 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 in a 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 findingsare 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”.

12. We are fully satisfied with the appraisal of evidence done by the learned trial Court and are of the view that while evaluating the evidence, the difference is to be maintained in an appeal from conviction and acquittal appeal and in the latter case, interference is to be made only when there is a 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”

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

J U D G E

Manzoor