2023 PLP 7 (YLRN)

SALAHUDDIN PANHWAR, J.

Through this criminal acquittal appeal, appellant has assailed the judgment dated 02.04.2022, passed by the learned Civil Judge and Judicial Magistrate-VII, Hyderabad, in Direct Complaint No.745 of 2016, where after full-fledged trial, private respondents were acquitted of tie charge.

2. Concisely facts of the case are that complainant was tenant of the accused Waseem Unar, situated @ Gulab Siyal Mohalla adjacent Meetha Ram, on 14-10-2015 @ 06:30 pm; complainant arrived near his house, where he saw that his wife was standing alone outside his house, when complainant asked her, in which she disclosed that suddenly accused every one Waseem Unar,

2. Shahzain Unar,

3. Farhan Unar,

4. Irfan Unar

5. Raheel alias Kaloo

6. Mst. Shahida,

7. Mst. Shazia

8. Mst, Zahida

9. Ali Akbar along with other gunda type persons forcibly and illegally entered into the house of the complainant duly armed with pistols, while coming they started abusive language and calling by bed name and said that where is her husband spare him alive, meanwhile they started torture and issued threats of dire consequences, the accused Mst. Shazia, along with her husband Waseem Unar, his sister in law namely Mst. Shahida and Mst. Zahida forcibly pushed out/evicted from her house, while co-accused Waseem and Raheel Unar pointed pistol upon the temple of complainant, saying so that they would kill him, if he could not leave the house, afterwards Farhan Unar Put the lock in door of complainant, without any reason, thereafter they hold the articles of complainant were lying in his house, hence this Direct Complainant was registered.

3. Per learned counsel for appellant, the learned trial Judge has passed the impugned judgment and acquitted the private respondents of the charge only on flimsy grounds and without considering/ evaluating the evidence brought on record by prosecution; that the prosecution witnesses have fully supported the complainant's version; that the defence taken before the trial Court by the respondents was based on mala fide and not believable as they have failed to produce any document to prove any previous dispute between them and the complainant; that the evidence of prosecution witnesses was very much corroborative with each other and the medical evidence was also in consistence; hence, the impugned judgment is liable to be set aside and the respondents may be convicted in accordance with law.

4. Heard learned counsel for the appellant and perused the record. As regard the contention of learned counsel for the appellant that prosecution witnesses have fully supported the complainant's version and the defence taken before the trial Court by the respondents was based on mala fide and not believable as they have failed to produce any document to prove any previous dispute between them and the complainant and that the evidence of prosecution witnesses was very much corroborative with each other as well as the medical evidence was also in consistence with the ocular version; hence, the impugned judgment is liable to be set aside and the respondents may be convicted in accordance with law; needless to mention that in criminal administration of justice while hearing acquittal appeal Court has to examine very consciously whether the judgment of acquittal is perverse, shocking and contrary to law. While keeping such principle in mind I have examined the impugned judgment as well as other record, which reveals that this is a case which is filled with contradictions and the prosecution witnesses are not supporting each other on ocular/material points. While passing the impugned judgment, the learned trial Court in relevant paragraphs 14 and 15 of the impugned judgment, observed that? "

14. Moreover, the complainant deposed in his examination in chief that he hired a premises on rent from accused Waseem Unar, who's wife is relative of his wife; which happens to be the place of incident. The complainant had also admitted that he had not produced any document/agreement showing his tenancy in the said premises, whereas the complainant has neither produced any document nor did he bring any concrete evidence to show his possession over the disputed premises. The fact of possession of the said house is important question of fact which is alleged by the complainant therefore, he was required to prove the same as this is relevant fact and connected to the fact in issue but the complainant failed to bring anything on record to prove his legal possession as well as tenancy. Consequently the allegation of the complainant about his presence at the rented premises is doubtful as he failed to prove his presence at the spot. It is pertinent to mention here that during trial, learned counsel for the complainant has moved an application under section 164, Cr.P.C. for recording statement of PW/namely Abdul Rasheed son of Haji Muhammad, which was dismissed by learned P.O. of Consumer Court Hyderabad vide order dated 16-09-2021. It appears that he was not eye-witness in this case, but complainant wants to give new twist in the case.

15. It is admitted fact that Complainant party and accused persons have already lodged criminal cases as well as IDs complaints against each other, on account of rented premises/ old dispute therefore; their evidence requires independent corroboration which is lacking in the present case. The incident was witnessed by some people of mohallah but they were not arraigned as witnesses nor did complainant move any application for calling them during the preliminarily enquiry or trail. The sole evidence of complainant and his friend against the accused cannot be relied upon, when enmity is admitted at all hands. The possibility of concoction and manipulation of actually story cannot be ruled out. The evidence of complainant and his witness is not truthful and therefore, the same cannot be relied upon to convict the accused since reasonable doubt is already created in respect of truthfulness of the complainant's story".

5. Perusal of above, reflects that trial Court has referred different portions of facts brought on record in shape of evidence of prosecution witnesses and the statements of the respondents and which are sufficient whereby private respondents were acquitted. Furthermore, it is also a well-settled law that after getting acquittal from the trial Court, a double presumption of innocence is earned by the accused. The Court sitting in appeal against acquittal, always remain slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the case of Muhammad Mansha Kousar v. Muhammad Asghar and others (2003 SCMR 477), the Honourable Apex Court observed as under:- " That the law relating to a 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 findings 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, non-reading of evidence... Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible".

6. Similar view was taken by the Honourable Apex Court in the case of Muhammad Tasaweer v. Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:- " Needless to emphasize that when an accused person is acquitted from the charge by a court of competent jurisdiction then, the 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."

7. The upshot of the above discussion is that the impugned judgment is based on proper and cogent reasoning as well as appraisal of the evidence which the prosecution could be able to bring on record and thus, it does not call for any interference by this Court. Even otherwise, it is reiterated that the acquittal recorded by the Court of competent jurisdiction, would not be disturbed until there is any misreading or non-reading of the evidence or improper assessment of the record resulting in miscarriage of justice, which, as elaborated above, has not been noticed here. Consequently, the instant appeal against acquittal is dismissed in limine. JK/S-62/Sindh Appeal dismissed.