JAM ATHAR KAMAL JUNEJO Versus State
ABDUL MAALIK GADDI, J .---Captioned appeal is directed against the Judgment dated 26.07.2017, recorded by learned 2nd Civil Judge and Judicial Magistrate Thatta, in case Crime No.01/2017, under sections 377 and 506/2, P.P.C. registered with P.S. Gharo, whereby the learned trial Court after full dressed trial, perusing the evidence and documents on record, extended the benefit of doubt, acquitted the Respondent No.2 (accused namely Yasir) under section 245-(i), Cr.P.C.
2. The allegation against accused is that on 23.12.2016, he took the victim Muhammad Saqib in his Car towards his Buffalo Farm situated about 0.5 K.M. away from Police Station, where the accused forcibly committed sodomy with victim Muhammad Saqib and thereafter shows him pistol, issue threats that, if he told this incident to anyone he will kill him.
3. The trial Court framed the charge against the accused at Ex.2 to which he did not plead guilty and claimed to be tried vide his plea at Ex.2/A.
At trial prosecution examined the following witnesses.
A) Jam Athar Kamal (Complainant of the case) at Ex.03 who produced his arrival entry at Police Station at Ex.03/A, attested copy of letter issue by SIP Gharu of his son at Ex.3/B and Notice to Respondent issue by District Judge Thatta in Cr. Misc. Application No. Nil of 2016 at Ex.3/C, FIR at Ex.3/D and Prepared the Mashirnama of Place of Incident at Ex.3/E and 3/F along with application for medical checkup of victim at Ex.3/G.
B) PW-Muhammad Saqib (Victim) at Ex.4
C) PW-Dr. Nadeem Ishtiyaq at Ex.5 who produced a letter written to chemical examiner at Ex.5/A, Report of Medico Legal Certificate at Ex.5/B, Report of Chemical Examiner at Ex.5/C and Medico Legal Certificate at Ex.5/D
D) PW-Saeed Ahmed at Ex.6.
E) PW-Habibullah at Ex.7, who produced entry report at Ex.7/A, detail of property at Ex.7/B, entries and medical legal certificate and specimen signature of Allah Dad Baloch at Ex.7/C to 7/G and Application under section 540, Cr.P.C. at Ex.8.
F) PW-Dr. Allah Dad at Ex.9, he produced letter and medico legal certificate at Ex.9/A, Ex.9/B respectively and Chemical Examiner Report at Ex.9/C.
4. These witnesses were cross-examined by the counsel for accused. Thereafter, learned Assistant District Public Prosecutor Thatta has closed his side vide Statement at Ex.10.
5. Statement of accused was recorded under section 342, Cr.P.C. at Ex.11 in which he denied the allegations as levelled by the Complainant and stated that he is innocent and he has been falsely involved in this case by Complainant as his step brother who dragged him in this case and Complainant is friend and business partner of his step brother against whom there was a dispute against him over property. Accused neither examined himself on oath nor led any evidence in his defence.
6. Heard the learned counsel for the Appellant, learned APG representing the state and have also carefully perused the material on record.
7. Learned counsel representing the Complainant/Appellant, at the very outset, submits that the impugned Judgment is not sustainable under the law as there was sufficient ocular and medical evidence available on record against the accused person, but the trial Court brushed aside the same, more particularly, the statement of victim Muhammad Saqib was recorded in which he implicated the accused.
8. Conversely, learned APG by making a prayer for upholding the impugned Judgment, submits that there is no gross illegality, irregularity, or infirmity in the impugned Judgment as there are sufficient reasons and grounds, which creates reasonable benefit of doubt in favour of the accused. Learned APG further submits that no convincing evidence has been brought by the prosecution on record to award conviction to the accused person.
9. After hearing the parties' advocate and on perusal of documents and evidence on record, I have come to the conclusion that prosecution has failed to prove its case against the accused for the reasons that Complainant admitted that time of incident is not mentioned in FIR. It is also admitted that the registration number of vehicle (Mehran Car) is not mentioned in which accused took victim Mohammad Saqib. It is also admitted in deposition of victim that the accused took him in his Mehran Car from shop of video game but neither Complainant nor I.O. enquired from shop keeper about alleged incident and how it is possible that no one heard his hue and cries as it was evening time. The material Witness PW- Dr. Nadeem Ishtiyaq who examined victim Mohammad Saqib admitted in his cross-examination that from provisional, final and chemical report it was observed that sodomy was not proved. As per provisional Medico Legal Certificate of victim Mohammad Saqib at Ex.05/B it was observed as under:-
1. No any injury on body.
2. No blood sustain in clothes.
3. No any redness on Anal Carnal.
4. No any Laceration on Anal Carnal.
5. No any swelling or tears on Anal Camel.
As per opinion of Dr. Nadeem Ishtiyaq in his provisional Medical Certificate "act of sodomy was not done" as per final Medical Certificate of victim Mohammad Saqib it is noted that "Human Sperm not detected in Article No.3 (Anal Swab)". Another material witness PW-Dr. Allah Dad was examined by the trial Court. Dr. Allah Dad conducted medical of accused Yasir but he only form his opinion that "Accused is able to perform intercourse" which is not conclusive prove to make accused guilty. As far as act of sodomy is concerned same is not proved through medically however circumstantial evidence also creates some doubts and for which benefit must go to accused. Victim in his statement deposed that "accused forcibly took him in his white color Mehran Car towards his buffalo farm" but in FIR is not mention that victim was forcefully taken in Car by accused. As per medical report of victim no mark of injury seen in his body and no blood sustain on the clothes. I have also noted that Complainant in application before Sessions Judge nominated three accused but in FIR he only nominated present accused.
10. All this aspect of the case create serious doubt in the prosecution case and its benefit must go in favour of the accused.
11. It is not out of context to make here necessary clarification that appeal against acquittal has distinctive feature and approach to deal with appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in latter case. Order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and led to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting in justice, 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. Reliance in this respect may conveniently be pleased on 1998 PCr.LJ 1576, 1985 PCr.LJ 2973, 1991 SCMR 2220, 1993 SCMR 28, 1985 PCr.LJ 457, PLD 1966 Supreme Court 424. 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 1998 SCMR 1281. In 1977 PCr.LJ 477, it was held 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 the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice. During the course of arguments I have specifically asked the question from learned counsel for Appellant to point out any illegality or show any piece of evidence which is not supportable from record, he was no answer with him.
12. Whatever mentioned above, more particularly in light of case law referred to above, I reached at the irresistible conclusion that the appellant has miserably failed to prove his case against the accused beyond shadow of doubt, therefore, no interference in the impugned Judgment is required by this Court, as it is well reasoned and of course a speaking one.
Resultantly, the instant Criminal Acquittal Appeal, being devoid of any merit, hereby dismissed.
MH/J-10/Sindh Appeal dismissed.