2019 PLP 103 (YLRN)

RASHEED AHMED SOOMRO, J.

Instant Criminal Acquittal Appeal is directed against the judgment dated 19.02.2009, passed by II-Civil Judge and Judicial Magistrate, Mirpur Mathelo in criminal case No. 52 of 2005, arising out of crime No. 20 of 2005 registered at P.S. B-Section, Mirpur for offences under sections 337A(i), 337F(i), 337H(2), 148, 149, 504, P.P.C., whereby the respondents were acquitted of the charge.

2. Facts leading to disposal of this appeal are that on 23.5.2005 at about 9.45 p.m., near village Wango adjacent to railway crossing situated in Deh Jahan Khan Unar, respondents/accused formed an unlawful assembly by arming themselves with weapons and committed rioting, abused the complainant party and caused injuries to complainant Muhammad Aslam and PW Muhammad Ali. It is further alleged in the FIR that accused Imran made aerial firing in order to create harassment. Resultantly, above FIR was lodged on same day at 2320 hours.

3. Charge was framed against the respondents, to which they pleaded not guilty and claimed trial. Thereafter, prosecution led evidence of prosecution witnesses and recorded statement of accused in terms of section 342, Cr.P.C. and after hearing the parties vide impugned judgment acquitted the respondents of the charge.

4. Learned counsel for appellant argued that there was sufficient evidence connecting the private respondents with the commission of offence, but the learned trial court illegally acquitted them of the charge; that the trial court failed to take into consideration that the offence is of heinous nature; that respondent failed to create any dent in the prosecution case but even then the trial court illegally, unlawfully and without any justifiable reason acquitted them of the charge and while acquitting the respondents the trial court failed to record any cogent reason.

5. On the other hand, learned DPG for the State supported the impugned judgment.

6. I have considered the arguments put forth by the learned counsel for appellant as well as learned DPG for the State so also perused the record of case. Apparently, as per contents of FIR, both injured, namely, Muhammad Aslam and Muhammad Ali received injuries on 23.05.2005 at 9.15 p.m., but surprisingly, PW/Dr. Meer Hassan Kolachi (Exh.11), deposed that both injured appeared before him on 23.05.2005 at about 7.30 p.m., whereas, perusal of medico-legal certificate of injured Muhammad Aslam reflects his arrival at hospital at 7.30 p.m., and arrival of second injured Muhammad Ali is shown as 9.30 p.m., and no explanation has been furnished in this regard by both the injured persons as to how they arrived at hospital for their medical examination, treatment and certificate before alleged incident, when in the FIR it is alleged that first injured appeared at P.S and after registration of FIR, they were referred to hospital. This was extremely fatal to the prosecution case.

7. Moreover, the evidence of complainant is not supported by injured and there are glaring contradictions in evidence of both complainant and injured on material points. It has also come on record that complainant and accused persons are also on longstanding inimical terms with each other and in this regard several cases are registered against each other in different courts, therefore, in presence of admitted enmity between the parties, evidence of PWs should have been corroborated by evidence of independent persons, which is lacking in this case. Even otherwise, it is settled principle of law that evidence of highly interested and partisan witnesses should be corroborated by any direct or indirect independent evidence, but herein in this case all the PWs are closely related to each other being interested witnesses, which could not be relied upon safely being trustworthy evidence.

8. Under these circumstances, I am of the considered opinion that prosecution has failed to prove guilt of the respondents, as such the trial court had no option but to acquit the private respondents of the charge. The trial court after proper appraisal of material available on record and attending all the legal as well as factual aspects of the case passed a very exhaustive and well-reasoned judgment. No illegality or irregularity, misreading and non-reading could be pointed out by the learned counsel for the appellant in the judgment impugned warranting interference by this court.

9. In case of Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803) the Hon'ble Supreme Court of Pakistan has observed as under: "It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent Jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record".

10. For the foregoing reasons, I am of the considered view that no case for interference in the impugned judgment is made out, therefore, instant Crl. Acquittal Appeal No.S-50 of 2009 being meritless is dismissed. SA/M-177/Sindh Appeal dismissed.