2020 P Cr (PLP)

FAHIM AHMED SIDDIQUI, J.

Through instant Criminal Acquittal Appeal, the appellant has impugned the judgment dated 12.04.2018, passed by the learned Additional Sessions Judge-IV, Hyderabad in Sessions Case No.728 of 2016, arising out of FIR No.47/2016, lodged by appellant under sections 436, 506[2], 511, 114, 337-A[iii], 337-H[2], 337-L, P.P.C. at Police Station City, Hyderabad, whereby accused/respondents Nos.1 to 4 were acquitted.

2. Allegations against the respondents Nos.1 to 4 are that on 28.04.2016, due to animosity with the appellant they duly armed with pistols forcibly entered into the Printing Press of appellant, gave him and his son Muhammad Owaiz fists and kicks blows and tried to set on fire the Printing Press of appellant. In the incident, appellant's finger of left leg/foot was broken and injuries were also caused to his son Muhammad Owaiz; thereafter, the respondents making aerial firing and extending murderous threats to the appellant went away.

3. After framing of charge, the prosecution has examined as many as seven witnesses. PW-01 complainant Muhammad Ameen was examined at Ex:03, who produced Court order dated 21.07.2016 at Ex:03/A and FIR at Ex:03/B. PW-02 Muhammad Owais at Ex:04, PW-03 Muhammad Haroon at Ex:05, PW-04 Muhammad Shahid at Ex:06, PW-05 Muhammad Javed at Ex:07, PW-06 Dr. Beldav at Ex:09, who produced police letter, provisional and final medical certificates of injured at Ex:09/A to E and PW-07 ASI Nazeer Ahmed was examined at Ex:10, memo of incident, arrest of respondent Tanveer, departure and arrival entry at Ex:10/A to C respectively. Thereafter prosecution side was closed vide Ex:11 and statements of respondents under section 342, Cr.P.C. were recorded, who claimed their innocence, however, neither examined themselves on oath nor led defense witnesses in support of their claim.

4. After observing all formalities and hearing the parties, the learned trial Court acquitted the respondents Nos.1 to 4/accused through impugned judgment.

5. The appellant being aggrieved and dissatisfied with the acquittal of respondents Nos.1 to 4 has preferred instant criminal acquittal appeal on the ground that the impugned judgment is illegal, unwarranted and not sustainable under the law and as a result of non-appreciation evidence by the learned trial Court though the prosecution has adduced corroborative evidence. The complainant prayed for setting aside the impugned judgment and conviction to the respondents Nos.1 to 4/accused.

6. On the other hand, learned counsel for the respondents Nos.1 to 4 controverted the submissions of appellant and pointed out the contradictions in the evidence of the prosecution witnesses. He contended that the impugned judgment is passed after inclusion of well reasons, which does not require any interference by this Court. Learned APG also supported the impugned judgment.

7. I have heard the arguments and have gone through the relevant record. Through the instant acquittal appeal, the appellant has questioned the acquittal judgment in favour of respondents Nos.1 to 4/accused. After meticulous examination of entire evidence, I have found some critical contradictions due to which the trial Court obliged to give its verdict in favour of the accused/ respondents Nos. 1 to

4. In the evidence, the complainant and his witnesses, are not in the one and same line, they have contradicted at various aspects of the case to each other as well as initial version taken at the time of recording FIR. In the FIR, the complainant says that the respondents were armed with pistols and caused fists and kicks blows while in his evidence, he says that the respondents gave fists, kicks and danda blows; whereas, PW Muhammad Haroon in his deposition stated that the complainant and his son Owaiz were caused fists, kicks, iron rod and lathis blows by the respondents. The contradiction is not ending at the different accounts taken by the complainant and his witnesses but still continues as the complainant says that the respondents tried to set on fire his Printing Press but he has not been supported by his witness Muhammad Shahid, who is silent on this aspect of the case, nevertheless, this witness has deposed in his examination-in-chief totally against the assertion of complainant that respondents made firing upon the press and extended threats to the complainant while complainant and his other witnesses stated aerial firing made by the respondents. Though the mashir of the visit of place of incident has no importance regarding incident in absence of any recovery from there but the mashir Muhammad Javed in his deposition denied such visit of place of incident in his presence so also his signature rather declared such memo as forged. According to the Investigating Officer, he did not find any injury on the bodies of complainant and his son Muhammad Owaiz nor he referred them to the hospital.

8. As far as, merits of the case are concerned, the learned counsel for the appellant could not point out any misreading or non-reading of the available evidence. Contrary to this, the learned counsel for respondents and APG have rightly pointed out that there are contradictions, which ultimately goes in favour of the accused.

9. It is noteworthy that in judgment of this Court the learned trial Judge has pointed out some other material contradictions in his judgment, which are sufficient to declare that the prosecution could not establish the case against the respondents Nos. 1 to 4 beyond reasonable doubt and where a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. In this regard, reliance is placed on the cases of 'Tariq Pervaiz v. The State' [1995 SCMR 1345] and 'Muhammad Akram v. The State' [2009 SCMR 230].

10. It is an important to note that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal, as presumption of double innocence is attached in the latter case. Reliance is placed on the case of 'Inayatullah Butt v. Muhammad Javed and 2 others' [PLD 2003 SC 562]. Until and unless the judgment of the 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, the Court will not exercise jurisdiction under section 417, Cr.P.C.

11. In these circumstances, I am of the opinion that the quality and standard of evidence is lacking, which is required to establish a criminal case for justifying conviction and sentence. Hence, I am of the view that the instant criminal acquittal appeal is not meritorious, as such, the same is dismissed. These are the reasons for my short order dated 10.12.2018. SA/M-86/Sindh Appeal dismissed.