THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Acquittal Appeal No.D-21 of 2012

Before:

Mr. Justice Shamsuddin Abbasi

Mr. Justice Amjad Ali Sahito

Appellant: Paras Ali S/O Malikdad alias Muhammad Safar Aghani through Mr. Safdar Ali G. Bhutto, Advocate.

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

Date of hearing: 18.10.2022.

Date of Judgment: 25.10.2022.

J U D G M E N T

AMJAD ALI SAHITO, J-. Being aggrieved and dissatisfied with the Judgment dated 12.03.2012 recorded in favour of the respondents/accused No.1, 3, 4, 5, & 7 by the learned VII-Additional Sessions Judge, Larkana in Sessions Case No. 220/2003 arising out of FIR No.75/2002 for the offence under sections 302, 324, 148 & 149 PPC registered at Police Station Mahota, 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 acquittal appeal are that on 12.11.2002 complainant lodged report with Mahota Police Station that about a year ago, accused persons namely Ghazi Chandio, Imtiaz-Oshaq and others trespassed in his house and committed theft of buffalo, such case was registered against the accused by the father of the complainant, which is pending before the concerned Court; the accused sent messages for withdrawing said case but in denial of the said reply accused party attacked upon the complainant party with deadly weapons and murdered father and brother of the complainant, who lodged instant FIR.

3. After completing the investigation, Investigation Officer submitted the challan and after completion of all the legal formalities, the trial court framed the charge against the accused/respondents No.1 to 7, 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 14 P.Ws at Ex.32 to Ex.45-B 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. All accused, except accused Altaf appeared as their own defence witnesses and their statements were recorded under section 340(ii) Cr.P.C. at Ex.55 to 60 respectively. The accused also examined seven defence witnesses at Ex.61 to 67 respectively.

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 12.03.2012. The acquittal recorded by the learned trial Court has been impugned by appellant Paras Ali Aghani 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 order passed by the learned trial Court is illegal and result of misreading and non reading; 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 P.G 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 incident has occurred in two parts. First part of the incident had occurred near protective band of Dadu Canal, in which deceased Malikdad and Tanveer were killed and P.W-2 Sabir and P.W-6 Raza Ali were injured. In second part of the incident P.W-3 Darya Khan, P.W-4 Nazim Hussain, P.W-5 Amir and P.W-7 Mst. Mehnaz received injuries. The ocular evidence of first part of the incident was furnished by complainant Paras, injured Sabir and injured Raza Ali. The ocular account of second part of the incident was furnished by complainant Paras, injured Darya Khan, injured Nazim Hussain, injured Aamir, injured Raza Ali and injured Mehnaz P.Ws-1 to 7 respectively. P.W-3 Darya Khan has received injuries in second part of the incident and he has deposed that accused Liaquat Ali (absconding) and Muhammad Rafique fired with their pistols, which hit on his left wrist and right shoulder. He has deposed that accused Gulshan (absconding) fired upon Amir, accused Hazar Khan fired upon Nazim Hussain and accused Angan (absconding) fired upon Mst. Mehnaz, but his statement is belied by other witnesses of second part of the incident. This P.W (Darya Khan) has stated that accused Hazar Khan fired upon Nazim Hussain, but injured Amir P.W-5 has stated that accused Hazar Khan fired upon Mst. Mehnaz while injured witness Nazim Hussain is admittedly a blind man and he stated that he was informed by Darya Khan that he received injury by firing of Hazar Khan. P.W-3 Darya Khan was also examined under section 174 Cr.P.C by Magistrate during investigation and in his statement recorded under section 164 Cr.P.C. he has not levelled any specific allegation against any accused except accused Angan. He simply stated that accused entered into the house of Raza Ali and started firing and escaped away while raising slogans and fire of accused Angan hit to his daughter Mst. Mehnaz. He has not attributed any specific role to any accused except accused Angan in his 164 Cr.P.C. statement recorded before the Magistrate, but during trial he made improvement in his earlier statement and implicated all accused persons with specific role. P.W-5 Amir, who is an eye-witness of second part of the incident has contradicted and stated that fire of Hazar Khan hit to Mst. Mehnaz. He has not stated that fire of Hazar Khan hit to Nazim Hussain. From the above discussion, it appears that some witnesses of first and second part of the incident have made dishonest improvements in order to strengthen the prosecution case, which makes their credibility highly doubtful. 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 appeal merits no consideration and is dismissed.

J U D G E

Manzoor