IRSHAD AHMED MEMON S/O MUHAMMAD HAROON (Appellant) VS MUHAMMAD JUMAN S/O MUHAMMAD URS & ORS (Respondent)

ORDER SHEET

THE

HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.601 of 2019

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : Irshad Ahmed Memon son of Muhammad Haroon, through Mr. Ameet Kumar, advocate

Respondent : The State through Mr. Ali Haider Saleem, Additional Prosecutor General Sindh

Date of Hearing : 20.01.2023

Date of decision : 20.01.2023

JUDGMENT

NAIMATULLAH

PHULPOTO, J.- Respondents/accused namely Muhammad Juman son of Muhammad Uris Chandio, Mashooq son of Jumman Chandio, Iqbal son of Hussain Chandio and Ghulam Rasool son of Hameer Chandio, were tried by learned Additional Sessions Judge/Model Criminal Trial Court, Thatta in Sessions Case No.399 of 2014, arising out of FIR No.66 of 2013, registered at P.S. Mirpur Bathoro, for offences under Sections 302, 392, 365, 511, 114, 337-H(2) and 34 of PPC. After regular trial, the respondents were acquitted of the charge vide judgment dated

2.Appellant/complainant Irshad Ahmed Memon, being dissatisfied with the impugned judgment has filed this criminal acquittal appeal. Notice was issued to the Prosecutor General Sindh.

3.Learned counsel for appellant/complainant mainly argued that delay in lodging of FIR has been fully explained; contradictions as pointed out by the trial Court were minor in nature and acquittal recorded by the trial Court was unwarranted and it is perverse in law.

4.Moreover, learned Additional Prosecutor General Sindh has argued that the trial Court has rightly recorded the acquittal in favour of the respondents as there was delay of four days in lodging of FIR for which no plausible explanation has been furnished. He further argued that evidence of the eyewitnesses has been found by the trial Court doubtful and there were material contradictions in the evidence of the prosecution witnesses. Lastly, it is argued that the scope of the acquittal appeal is quite narrow and limited and that the appeal is without merits.

5.After hearing the learned counsel for the parties, we have carefully perused the acquittal judgment passed by the trial Court. Learned trial Court has fully discussed each and every aspect of the case and while appreciating evidence came to the conclusion that there was delay of four days in lodging of FIR for which no plausible explanation has been furnished, in case complainant Irshad Ahmed Memon was busy in funeral ceremony, an FIR should have been lodged by PW Sarang Memon, the brother of the complainant, but it was not done. Trial Court has also mentioned that the complainant and his two brothers were the direct victims of the case but neither the complainant nor PW Sarang Memon received any injury whatsoever in the incident. Trial Court has mentioned the anomalies and weaknesses in the prosecution case made the prosecution case doubtful. Attention of the learned counsel for the appellant has been drawn to those contradictions but he could not satisfy the Court. Trial Court has rightly held that there are several circumstances in the prosecution case which have created reasonable doubt. A single doubt is sufficient for recording the acquittal. Reliance has rightly been placed on the case of Tariq Parvez vs. The State (1995 SCMR 1354).

6.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 as held in the case of The State v. Abdul Khaliq and others (PLD 2011 Supreme Court 554). Relevant portion is reproduced as under:- “From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

7.For the above stated reasons, there is no merit in the appeal against acquittal. Finding of the innocence recorded against the respondents/accused by the trial Court are based upon sound reasons which require no interference at all. As such, the appeal against acquittal is without merit and the same is dismissed.

J U D G E

J

U D G E

Gulsher/PS