2021 PLP 55 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

This criminal acquittal appeal is directed against the judgment dated 14.02.2020, passed by the Civil Judge and Judicial Magistrate-I/MTMC, Dadu, in Case No.34 of 2020, re-The State v. Mohammad Ali Pario and others, emanating from Crime No.75 of 2019 registered at Police Station Sita Road, for offences under sections 382, 504, 147, 148, 149, P.P.C., whereby the respondents, namely, 1) Muhammad Ali son of Allah Bux Pario, 2) Sadaqat Ali son of Muhammad Ali Pario, 3) Pir Bux son of Dhani Bux Pario, 4) Muhammad Dawood, 5) Muhammad Waris, 6) Shahnawaz, 7) Mour, 8) Riaz, and 9) Muhammad Farooque, all sons of Naseeruddin Solangi, have been acquitted of the charge.

2. Briefly the facts of the case are that the accused, namely, 1) Muhammad Ali son of Allah Bux Pario, 2) Sadaqat Ali son of Muhammad Ali Pario, 3) Pir Bux son of Dhani Bux Pario, 4) Muhammad Dawood, 5) Muhammad Waris 6) Shahnawaz, 7) Mour, 8) Riaz, and 9) Muhammad Farooque, all sons of Naseeruddin Solangi, were sent up with the challan to face their trial for offence under Sections 382, 504, 147, 148. 149, P.P.C. in the subject FIR.

3. After completing the formalities, a formal charge was framed against the above-named accused ('the respondents'), to which they pleaded 'not guilty' and claimed to be tried.

4. At the trial, the prosecution examined PW-1 complainant Abdul Shakoor ('the appellant') at Ex.3, who produced Court order, statement and FIR at Exs.3/A to 3/C respectively; PW-2 Malang at Ex.4; PW-3 mashir Abdul Rehman at Ex.5, who produced memo of inspection at Ex.5/A; and, PW-4 ASI Muneer at Ex.6. After closure of prosecution side, statements of the respondents were recorded under section 342, Cr.P.C., wherein they denied the prosecution allegations and professed their innocence.

5. At the conclusion of trial and after hearing the parties' Counsel, the learned trial Court acquitted the respondents of the charge, extending them benefit of doubt vide impugned judgment dated 14.02.2020.

6. Having felt aggrieved by the said acquittal judgment, the appellant has preferred the present appeal.

7. None is present for the appellant. There is also no intimation, although the names of learned Counsel for the appellant have appeared in the daily cause-list. Same was the position on the last date of hearing viz., 14.05.2020, when as an indulgence the matter was adjourned for today's date requiring the learned Counsel for the appellant to come prepared, else an appropriate order would be passed, but to no avail. I, therefore, proceed to decide this criminal acquittal appeal on merits in the wake of material available on record.

8. Learned Additional Prosecutor General has mainly contended that the evidence led by the prosecution was full of contradictions; that the FIR was lodged with the delay of 26 days without proper explanation thereof; and, that the learned trial Court after evaluating the evidence has acquitted the respondents extending them benefit of doubt; and, that there is no illegality in the impugned judgment dated 14.02.2020. Learned Additional P.G. prays for dismissal of this criminal acquittal appeal.

9. I have considered the submissions of learned Additional Prosecutor General and have gone through the material brought on record.

10. The principles for appreciation of evidence in appeals against the acquittal are now well settled. In the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96), the Hon'be Apex Court of Pakistan has observed that:- "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice". In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that: "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."

11. From a perusal of the record, it would be seen that the incident is shown to have taken place on 10.11.2019, at 12.00 noon and whereas the FIR was lodged on 04.12.2019, at 2000 hours and such inordinate delay in lodgment of the FIR has not been plausibly explained by the prosecution; after the investigation, investigating officer recommended the case for its disposal under class "C"; PW-3 complainant Abdul Shakoor in his FIR has stated that accused Muhammad Ali, armed with pistol, Sadaqat armed with 'Danda', Muhammad Dawood, Muhammad Waris, Shahnawaz, Mour, Riaz and Muhammad Farooque, all armed with lathies, and accused Pir Bux armed with repeater, arrived at his land and forcibly took away the paddy crop of Rs.130,000/-; thereafter he filed an application under sections 22-A and 82-B, Cr.P.C, before the learned Sessions Judge, Dadu, but in his examination-in-chief he has stated that on 10.11.2019 he along with PW Malang were available at his land when accused Muhammad All along with other accused arrived there and took away his paddy crop of worth Rs.130,000/-, but that fact is not mentioned in the FIR; PW-2 Malang has stated that he was standing at his land when he saw that the police had arrived and thrashing was in process and accused Muhammad Ali's party took away the paddy from the land; He did not speak about availability of complainant at the time of incident; he went on to say that police did not record his statement under section 161, Cr.P.C; the complainant has further admitted that "It is correct that I have not produced any document in evidence regarding ownership of disputed land before this Court. It is correct to suggest that the alleged disputed land has been named with accused Muhammad Ali and others in revenue department and I have challenged their ownership before the revenue authorities;" Complainant Abdul Shakoor and PW Malang have stated that the crop was cultivated by one Rano being farmer of the complainant; PW-2 Malang has stated that Rano was not available at the land during the incident, which rather negates the version of the complainant regarding Rano's cultivating the subject land with paddy crop, more particularly when Rano was neither cited as witness nor was examined by the prosecution at trial; complainant has stated that accused Muhammad Ali, armed with pistol, Sadaqat armed with 'Danda', Muhammad Dawood, Muhammad Waris, Shahnawaz, Mour, Riaz and Muhammad Farooque, all armed with lathies, and accused Pir Bux armed with repeater, arrived at his land and whereas PW-2 Malang did not state a single word about the rest of the accused except accused Muhammad Ali; the complainant has stated that accused Muhammad Ali had abused him, but PW-2 Malang has not stated so; the enmity between the parties over the landed property is even admitted in the FIR. The learned trial Court after appreciating the evidence had come to the conclusion that the prosecution has failed to prove its case against the respondents beyond a reasonable doubt. Such a conclusion arrived at by the learned trial Court suffering from no illegality or misreading or non-reading of evidence or any perversity does not call for any interference in the instant criminal acquittal appeal under the provisions of section 417, Cr.P.C. In such view of the matter, this criminal acquittal appeal being devoid of merit is dismissed. JK/A-120/Sindh Appeal dismissed.