2022 P Cr (PLP)

KHADIM HUSSAIN M. SHAIKH, J.

This Criminal Acquittal Appeal is directed against the judgment dated 31-12-2016, passed by the learned Judicial Magistrate-V Hyderabad in Criminal case No.786 of 2016, re: State v. Muhammad Yousuf, emanating from FIR No.128 of 2016, registered at Police Station, A-Section Latifabad for the offences under sections 452, 506(2), 337-A(i), 337-A(iv), 337-F(i), 337-L(2), P.P.C. whereby respondent Muhammad Yousuf has been acquitted of the charge, extending him benefit of doubt.

2. The brief facts of the case are that on 06-06-2016, appellant Muhammad Naeem Khan, had lodged an FIR being Crime No. 128 of 2016, at Police Station A-Section Latifabad, for offences under sections 452, 506(2), 337-A(i), 337-A(iv), 337-F(i), 337-L(2), P.P.C, against accused Muhammad Yousuf and six unknown persons. Accused/ respondent Muhammad Yousuf was arrested and after usual investigation was sent-up with the challan to face his trial. After completing all the requirements, a formal charge was framed against accused Muhammad Yousuf at Exh:2 on 23-07-2016 to which he pleaded not guilty and claimed his trial at Exh:2/A. At the trial, the prosecution examined PW-1 complainant Muhammad Naeem Khan at Exh:3, who produced FIR at Exh:3/A; PW-2 Waseem-ur-Rehman at Exh:4, who produced memo of injuries and memo of visit to the place of incident at Exh:4/A, and Exh:4/B; PW-3 Muhammad Kamran at Exh:5; PW-4 Muhammad Jameel at Exh:6; PW-5 Mst: Perveen at Exh:7; PW-6 Abdul Rauf at Exh:8; PW-7 Muhammad Azam at Exh:9, who produced memo of arrest of accused at Exh:9/A; PW-8 Dr. Imtiaz Ahmed at Exh:10, who produced police letter, photo copy of provisional medico legal as well as final MLC of the complainant and injured Muhammad Jamil at Exh:10/A to Exh:10E: PW-9 ASI Shabran Khan, the I.O. of the case at Exh:11, PW-10 lady Dr. Samina at Exh:13, who produced the carbon copy of police letter at Exh:13/A, final MLC of Mst: Perveen at Exh:13/B and then the prosecution closed its side vide statement at Exh:

14. The statement of accused Muhammad Yousuf under section 342, Cr.P.C. was recorded wherein he denying all the allegations, professed his innocence. He also examined himself on oath under the provisions of section 340(2), Cr.P.C. at Exh:16 and produced application at Exh:16/A, and then the accused closed his side vide his statement at Exh:17.

3. At the conclusion of the trial and after hearing the parties counsel, the learned Trial Court acquitted the accused/respondent of the charge extending him benefit of doubt vide impugned judgment dated 13-12-2016 as discussed supra.

4. Having felt aggrieved by the aforesaid acquittal judgment, complainant/appellant Muhammad Naeem Khan has filed this criminal acquittal appeal.

5. None is present for the appellant. There is also no intimation, although the name of learned counsel for the appellant has appeared in the daily cause list. Same was the position on the last date of hearing viz. 25-09-2018, when the matter as a last chance was adjourned, despite that none is present for the appellant to address the arguments on his behalf.

6. It is, inter alia, contended by the learned Deputy Prosecutor General that the learned Trial Court after appreciating the evidence brought on record had come to the conclusion that the prosecution has failed to prove its case against the respondent beyond a reasonable doubt, and, therefore extending him the benefit of doubt, the learned Trial Court has acquitted the respondent of the charge; that the impugned acquittal judgment is based on the evidence brought on record, which suffers from no illegality or mis-reading or non-reading of evidence. The learned Deputy Prosecutor General Sindh, therefore, prays for dismissal of this criminal acquittal appeal.

7. I have considered the submissions of learned Deputy Prosecutor General, Sindh and have gone through the material brought on record.

8. From a perusal of the record it would be seen that although the incident was shown to have taken place in a thickly populated area, but no independent person cited as witness or mashir; the parties are already tagged in litigation due to their dispute over the share in the immoveable property and such suits are pending adjudication before the Civil Court; wife of accused namely Mst. Farhat Ara had also moved an application bearing Cr. M.A. No. 1337 of 2016, before the learned Sessions Judge/Ex-Officio Justice of Peace, Hyderabad and she also filed Direct Complaint against the appellant and PWs Muhammad Jamil and others regarding the incident, which had taken place on the same date and at the same time, wherein she alleged forcible occupation of their house; maltreatment to her husband, the present respondent; and, issuing threats of murder to them, but the police had declined to register their case; there are material contradictions in the evidence led by the prosecution and improvements in the evidence in as much as that the complainant PW-1 in his FIR has stated that accused Muhammad Yousuf had a pistol and other had dandas; accused Muhammad Yousuf pointed his pistol on the brother of the complainant; issued threats for murder and for vacating the house; and other accused started maltreating his other family members, and whereas in his deposition, he has stated that accused Muhammad Yousuf and other accused were having pistol in their hands; as soon as they entered in the house, they started maltreating the complainant's son Muhammad Kamran, who raised cries, to which, the accused caused butt blows to his son, due to which bone of his nose was fractured and they maltreated the complainant's brother and wife namely Muhammad Jamil and Mst. Perveen respectively. The complainant has not deposed about inspecting the place of incident on his pointation and preparation of mashirnama of the place of incident and memo of injuries of any of the injured persons and whereas PWs Muhammad Jamil, Muhammad Kamran and Mst. Parveen, who claim themselves to be the eye-witnesses, have not assigned any specific role to the respondent Muhammad Yousuf PW Mst. Perveen has deposed that accused Muhammad Yousuf and six other people maltreated her husband, her brother-in-law and her son namely Kamran and caused injuries to them with dandas, due to which bone nose of her husband was broken; PWs Wasim-ur-Rehman, Abdul Rauf and Muhammad Azam have not assigned any specific role to the respondent of causing injuries to the complainant and PWs; moreover the complainant and the PWs have admitted the pendency of two Civil suits, filed by Mst. Farhat Ara wife of the present respondent, demanding her share in the immoveable property; the complainant has deposed that accused came from the second portion of the house where his daughter is residing and the accused is his son-in-law; PW Muhammad Kamran has admitted that prior to lodging of the subject FIR, accused Muhammad Yousuf along with his wife were residing in the house No. 270 Block-F Unit No:8 Latifabad Hyderabad where the complainant resides; and, PW-9 ASI Shabran Khan has not produced station diary regarding the first information recorded at Police Station. Under the circumstances of the case in hand, the incident seems to be the outcome of free fight between the parties, but the police had painted only one side picture and did not lodge the report of the accused party, which also adversely reflects upon the Investigating Officer, who was obliged to have ascertained as to who was the aggressor and as to who was aggressed upon, but he did not do so; and, no incriminating article whatsoever was recovered from the respondent. In view of all the above factors and from my own independent evaluation of the evidence brought on record by the prosecution, I am of the considered view that the prosecution had failed to prove its case against the respondent beyond a reasonable doubt, and, the impugned judgment rendered by the learned Trial Court, acquitting the accused/respondent extending him benefit of doubt, suffering from no illegality or misreading or non-reading of the evidence, does not call for any interference in exercise of jurisdiction under section 417(2), Cr.P.C. Accordingly, this acquittal appeal being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 16-10-2018, whereby this appeal was dismissed. SA/M-67/Sindh Appeal dismisse