2017 P Cr (PLP)

SYED MUHAMMAD FAROOQ SHAH, J.

Captioned appeal has been directed against the judgment dated 05.6.2013, pronounced in Sessions Case No.35 of 2012 in Crime No.314/2011 under sections 334/337A(i), 504, P.P.C. by learned IVth Additional Sessions Judge Karachi-East on 05.6.2013, whereby the accused/respondents Nos.1 to 3 were acquitted under section 265-H, Cr.P.C.

2. Succinct facts as narrated in the aforesaid FIR are that on 29.8.2011 at about 1130 hours the accused persons maltreated complainant Munawar Ali and his son Moazam Ali with kicks and punches and also broken tooth of the complainant while his son received internal injuries on his head, back and chest and accused have also used abusive language against the complainant party. On completion of usual investigation three accused person were charge sheeted. Charge was framed under sections 337 A(1)/334/504/34, P.P.C. To substantiate its case, the prosecution examined three witnesses whose ocular account has elaborately been discussed in the impugned judgment. The evidence of MLO who issued ML Certificate of complainant has also been considered by the trial court while recording the impugned judgment.

3. Heard arguments. Perused the record.

4. Learned counsel for the complainant/appellant submitted that there was sufficient evidence adduced by the prosecution to award conviction to the accused persons but the trial court did not consider the same due to which impugned judgment has been delivered which is result of non-reading and misreading of evidence.

5. Conversely, learned Assistant Prosecutor General, Sindh while reading pages 8, 9 and 10 of the judgment submits that judgment is speaking one, elaborate and does not require any interference. However, learned counsel for the accused submitted that appellant has miserably failed to point out any irregularity, miscarriage of justice, misreading/non-reading of evidence or that the impugned judgment is contrary, capricious and fanciful. Learned counsel submits that he has already filed detailed objection on this appeal by annexing material documentary evidence. It is submitted that there are material contradictions amongst the deposition of prosecution witnesses. It is further submitted that the appellant did not disclose the fact of cross/counter case No. 1054/2011, 330/2011 under sections 336/ 337-A(1)/504/427, P.P.C. of Police Station Shah Faisal Colony of same incident, whereby the complainant party was implicated in commission of offences though PW-6 Badar Shakeel, the Investigating Officer stated during his evidence that "It is correct that accused persons have also lodged FIR of the same incident" He further deposed that "It is correct to suggest that the FIR was lodged on the basis of report No.16 dated 29.8.2011."

6. Learned counsel for the-respondents/accused submits that in cross/counter cases lodged by the accused persons the compromise was affected and such fact is admitted by the complainant in his evidence that he was nominated in FIR No.330/2011 registered at Police Station Shah Faisal Colony, wherein respondent No.1 alleged aggression against him. PW-2 Moazam Ali has also admitted his implication in the aforesaid FIR lodged by the accused persons; medical account of the evidence has also been narrated in the aforesaid objections wherein the Investigating Officer stated that the complainant disclosed him about pain in teeth. PW-4 ASI Abdul Rehman categorically, stated that Munawar Ali (Complainant) had no broken teeth at the time of recording of entry No.17 and stated that he was working as laboratory Supervisor in Civil Hospital. He has further admitted that complainant did not produce his broken tooth during investigation.

7. The objections filed by the counsel for accused/respondents show material contradictions and the motive of involvement of accused person/respondents in this case. In such view of the matter, the prosecution has failed to prove his case beyond shadow of doubt and by considering material contradictions amongst evidence of prosecution witnesses, the trial court has correctly reached at conclusion that prosecution has failed to prove its case. Captioned judgment dated 03.3.2014 delivered in FIR No.330/2011 lodged by the accused Tariq Javed/respondent No.1 shows that there are counter allegations and accused Tariq Javed deposed that due to intervention of his elders, he had amicably settled the dispute and made a request for acquittal of complainant Munawar Ali and his son Moazam Ali from the charge of the case. Hence the complainant and his son were acquitted by the trial court on 03.3.2014.

8. Keeping in view the aforementioned peculiar facts and circumstances of the case I have no hesitation to observe that impugned judgment is speaking one, elaborate does not suffer from any illegality, gross irregularity, infirmity; hence does not require any interference.

9. It is settled principle of law that accused are entitled to benefit of doubt not as a matter of grace and concession but as a matter of right. It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the latter case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse and arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime as held, by the Apex Court in the case of Muhammad Ijaz Ahmad v. Fahim Afzal (1998 SCMR 1281) and Jehangir v. Aminullah and others (2010 SCMR 491). It is settled principle of law as held in the plethora of case law that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

10. There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons do not warrant any interference by this Court and is accordingly maintained.

11. After hearing the learned counsel for the parties, by a short order announced in the court today, instant appeal was dismissed. Above are the reasons for the said short order. ZC/M-86/Sindh Appeal dismissed.