2020 P Cr (PLP)

AFTAB AHMED GORAR, J.

Through this Crl. acquittal appeal the appellant/complainant namely Allah Wadhayo Kalhoro has impugned the judgment dated 03.12.2018 passed by Additional Sessions Judge-II, Khairpur in Sessions case No.274/2017 arising out of crime No.04/2017 under section 396, P.P.C. Police Station, F.M Narejo district, Khairpur, whereby the respondent Saeed Ahmed Kalhoro was acquitted by extending benefit of doubt to them.

2. Brief facts of the prosecution case as per FIR lodged by complainant Allah Wadhayo on 19.01.2017 at 1600 hours at Police Station, F.M, Narejo stating therein that on 17.01.2017 he along with his son Mohammad Ishaque nephew Mohammad Siddique and cousin Riaz Hussain were returning to their homes from Piryaloi town by two motorcycles and when at about 2000 hours, reached near Pir Sain Dino Shah they saw on the headlights of motorcycles that live unknown accused persons stood on the road with intention to commit dacoity. They stopped complainant and controlled upon them. On resistance, one accused fired from his pistol which hit Mohammad Ishaque who raised cries fell down. Complainant party raised cries which attracted co-villagers on seeing them accused persons ran away. Complainant party went over Mohammad Ishaque found him sustaining fire arm injuries and lying dead. Thereafter, on 19.01.2017 complainant lodged FIR against the unknown persons. On 01.03.2017 and 02.03.2017 Police recorded further statements of complainant Allah Wadhayo and PW Mohammad Sadiq in which they disclosed the names of unknown accused as Saeed Ahmed son of Wazir and

2. Wazir son of Abdul Raheem by caste Kalhora and further stated that accused Saeed Ahmed made direct fire upon deceased Mohammad Sadiq and committed his murder. Hence complainant lodged the FIR. After usual investigation the charge-sheet against accused/ respondent was presented in trial Court.

3. In support of their case prosecution examined PW-1/Complainant Allah Wadhayo who produced delivery receipt of dead body at Ex.7-A, copy of FIR at Ex.7-B and further statement at Ex.7-C, PW-2 Mohammad Sadiq was examined at Ex.8 who produced further statement at Ex.8/A, PW-3/mashir Lai Bux was examined at Ex.9 who produced medical letter, memo of arrest of accused at Ex.9-A and B, PW-4 HC Niaz Ahmed was examined at Ex.10, PW-5/eye-witness Riaz Hussain Kalhoro was examined at Ex.11 who produced further statement at Ex.11 -A, PW-6 Qaimuddin was examined at Ex.12 who produced danishnama report, memo of inspection of dead body place of wardat and last worn clothes of deceased at Ex.12-A to D, PW-07 Tapada Mohsin Ali Solangi was examined at Ex.13 who produced sketch of wardat at Ex.13-A. PW-08 Dr. Inayat Ali Memon at Ex.14 who produced original Police letter at Ex.14-A and postmortem report at Ex.14-B., PW-09 SIP Abdul Sattar Mahar was examined at Ex.15 who produced entry No.20, letter of SSP Khairpur, letter of Mukhtiarkar and chemical examiner's report at Ex.15-A to D, PW-10 ASI Mohammad Ismail Khorkhani was examined at Ex.17 who produced departure entry No.14 as well as arrival entry No.19 at Ex.17A and 17-B. Thereafter, learned ADPP closed prosecution side at Ex.10, and then statement of accused was record under section 342, Cr.P.C.

4. Mr. Rehmatullah Mangnejo Advocate files on behalf of respondent Wazir Ali, taken on record.

5. Heard learned Counsel for parties and perused the record minutely.

6. Learned Counsel for appellant submits that the judgment of the trial Court is perverse, non-speaking and contrary to the evidence brought on the record therefore, it is liable to be set-aside. He further submitted that complainant and his PWs have fully supported the case of prosecution and prosecution has fully established its case for conviction learned Additional Sessions Judge, Khairpur did not give any weight and acquitted the respondent mere on presumption hence same is liable to be set-aside and conviction may be awarded to the respondent.

7. Learned Counsel for respondent supported the impugned judgment and submitted that name of respondent Wazeer Ali does not transpire in the FIR nor his role has been assigned and he has been involved in the commission of alleged offence only in further statement which is recorded later on after 45 days hence, due deliberation and consultation in this case cannot be ruled out. He further argued that respondent Wazeer Ali has been involved in this case falsely due to previous enmity though he has not committed any offence. He contended that complainant deposed in his cross-examination that they had identified the accused persons at the time of incident but did not mention their names in the FIR under advise of their nek mards. He submitted that learned trial Court has rightly acquitted the respondent. He prayed for dismissal of instant Criminal Acquittal appeal.

8. Learned DPG for the State while supporting the impugned judgment submitted that there un-explained delay of about 02 days in lodging the FIR. He further submitted that the prosecution evidence is deeply interested and no independent person of the locality was examined by the prosecution. He lastly concluded that the prosecution has failed to prove the guilt of the respondent to the hilt, as such the trial Court had no option but to acquit the respondent of the charge, therefore he prayed that instant acquittal appeal may be dismissed.

9. I have carefully considered the material available on record and have gone through the relevant papers.

10. I have heard the arguments advanced by the counsel for the parties and have scanned the material available. It is observed that the alleged incident occurred on 17.01.2017 at 2000 hours but FIR was lodged on 19.01.2017 at 1600 hours after two days delay of the incident but there is no explanation for such delay, which alone is fatal to the prosecution case. As per contents of FIR the name of respondent Wazeer Ali does not transpire and to due lack of evidence the I.O. after concrete investigation disposed of the case under 'A' Class but later on complainant and PWs implicated the respondent in their further statement which were after delay of 45 days of the incident. Furthermore, there are material contradictions in the evidence of appellant and PWs as already highlighted by learned Judge in the impugned Judgment which make the prosecution case doubtful.

11. After considering the material available in the file I have come to the conclusion that the impugned judgment passed by learned II-Additional Sessions Judge, Khairpur is based on proper appreciation of the evidence which is not fanciful. Needless to mention that when an accused person is acquitted by a Court of competent jurisdiction, then double presumption of innocence is attached to its judgment, with which the superior Courts do not interfere unless the impugned judgment appears to be vague, perverse and arbitrary or against the record. in this regard reliance can be placed upon judgment delivered by Honourable Supreme Court in case of Muhammad Aslam v. Sabir Hussain and others reported in 2009 SCMR 985, the Honourable Supreme Court has observed that: "It needs no reiteration that when an accused 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. It was observed 'by this Court in Muhammad Mansha Kausar v. Muhammad Asgar and others 2003 SCMR 477 "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-reading of evidence. Law requires that Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."

12. The learned trial Court after considering the material available on record has held that complainant and his witnesses have given contradictory evidence creating a reasonable doubt regarding their presence at spot therefore, the prosecution cannot be said able to prove beyond shadow of doubt that the accused Wazir Ali has committed the alleged offence. The trial Court has further observed in its judgment that "complainant in his cross-examination has admitted that accused Wazir had lodged FIR bearing Crime No.04/2003 for abduction against the complainant, Riaz Ali and others at Police Station F.M. Narejo and after registration of FIR by him, the accused Wazir Ali filed Constitutional Petition No.313/2017 against the complainant and SHO Police Station, F. M, Narejo before this High Court thereafter Police arrested accused Wazir and asked the complainant to disclose his name in his further statement. It proves previous enmity of the complainant party with accused Wazir Ali and his son Saeed whose names are given by the complainant party in their further statements, recorded after about 45 days".

13. In the above circumstances, I am of the view that trial Court has rightly come to the conclusion that reasonable doubt has been created in the prosecution case and its benefit has rightly been extended to the respondent, therefore, learned trial Court i.e. IInd Additional Sessions Judge was fully justified for acquitting the respondent Wazir Ali therefore, instant Criminal Acquittal appeal being devoid of merits is dismissed. SA/A-153/Sindh Appeal dismissed.