TALIB Versus State
KHADIM HUSSAIN M. SHAIKH, J .---This Criminal Acquittal Appeal is directed against Judgment dated 26.10.2017, passed by the learned Judicial Magistrate, Khipro in Criminal Case No.04 of 2017, re:Talib v. Mukhtiar and others, emanating from direct complaint No.15 of 2016, for the offences under sections 337-A(i), 337-L(ii), 506(ii), 504, 147, 148 and 149, P.P.C. whereby respondents Mukhtiar, Qurban, Hassan, Talib, Juman alias Jumoon and Sher Ali ["the respondents"] have been acquitted of the charge.
2. Briefly the facts giving rise to the filing of the instant Criminal Acquittal Appeal are that on 24.08.2016 son of complainant namely Zakir son of Talib ["the appellant"] went along-with his she-goats for grazing purpose, when he reached at Malik Tanka suddenly eight persons namely Mukhtiar holding hatchet, Qurban holding pistol, Sher Ali holding hatchet, Hassan, Talib and Juman and two unknown persons holding lathies in their hands riding on camels came there and started beating the appellant's son Zakir, who sustaining injuries fell down and on the force of weapons the respondents snatched Rs.5000/- cash, original CNIC and a mobile phone from him and forcibly drove away 13 she-goats, while issuing threats that they would come again to commit his murder; Haleem son of Muhammad Dars who was present there. brought injured Zakir to his house and thereafter injured Zakir was brought at P.S. Khipro and after getting letter for his treatment, the injured was shifted to Taluka Hospital Khipro and from where he was referred to LUMHS Hyderabad. The appellant appeared at P.S, Khipro to lodge report, but that was declined, hence he approached the concerned Court and then his FIR was lodged at P.S. Khipro which after investigation was cancelled, whereafter the appellant filed the subject direct Complaint.
3. The statement of the appellant was recorded under section 200, Cr.P.C. and preliminary inquiry was conducted and after P.E the complaint was brought on the regular file and the process was issued against the respondents. After completing the formalities, the learned Trial Court framed charge against the respondents, to which they plead not guilty and claimed their trial. Thereafter, the appellant examined himself as PW-1; injured Zakir as PW-2; and, witness Haleem as PW-3. Then the learned counsel for the appellant closed his side. The statements of the respondents as required under section 342, Cr.P.C. were recorded, wherein they denying the allegations levelled against them by the appellant, professed their innocence. They neither opted to examine themselves on oath nor did they produce any witness in their defence.
4. At the conclusion of the trial and after hearing the parties' counsel, the learned Trial Court has acquitted the respondents of the charge vide impugned judgment dated 26.10.2017.
5. Having felt aggrieved by the aforesaid acquittal judgment, the appellant has filed this criminal acquittal appeal. 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. 06.12.2019, when as an indulgence, the matter was adjourned. Record reflects that this Criminal Acquittal Appeal is pending since 06.11.2017 without any progress and after filing of this Criminal Acquittal Appeal, the appellant has not taken any interest in proceeding with the matter. Hence I proceed to decide the instant Criminal Acquittal Appeal on the basis of material available on the record.
6. The learned Assistant Prosecutor General has argued that the impugned Judgment dated 16.10.2017, rendered by the learned Trial Court is well reasoned and based on proper appraisal of evidence; and, that while passing the impugned acquittal judgment the learned Trial Court has not committed any illegality. She prays that this Acquittal Appeal may be dismissed.
7. I have considered the submissions of learned Assistant Prosecutor General and have gone through the material brought on record.
8. From a perusal of the record it would be seen that prior to this direct complaint, the appellant had lodged FIR being Crime No. 123 of 2016 at PS Khipro for offences under sections 506(2), 504, 147, 148 and 149, P.P.C. on 05.10.2016, showing the incident of causing injuries by accused Qurban Rajer and others to complainant's son Zakir on 24.09.2016; a copy of the said FIR filed as annexure-B available at page-21 does not reveal that 13 she-goats were taken away by the respondents and so also it does not show robbery of cash amount of Rs.5000/-, mobile phone and original CNIC from injured Zakir, that FIR was disposed of under 'C' class after investigation; whereafter the appellant filed the subject direct complaint wherein he has narrated totally different story of the incident which runs counter to the story narrated in the aforesaid FIR as in the subject direct complaint, the appellant has stated that complainant's son injured Zakir was robbed of Q-mobile, cash amount of Rs.5000/, original CNIC; and, 13 she-goats were forcibly taken away by the respondents from him; MLO, who allegedly examined injured Zakir was not examined by the appellant and even medico-legal certificate was also not produced in evidence; and, thus no medical evidence was brought on the record to substantiate the allegations of injuries allegedly sustained by injured Zakir. The Appellant Talib, who is admittedly not eye-witness of the occurrence, had earlier lodged the FIR at the narration of alleged eye-witness Haleem and injured Zakir and so also subsequent direct complaint, therefore, his evidence is hearsay evidence; in the FIR, the incident was shown to have taken place on 24.09.2016, while FIR was lodged on 05.10.2016 and whereas in the subject direct complaint and in the evidence of PWs including the appellant the incident is shown to have taken place on 24.08.2016; PW-1 complainant has stated that "PW-3 eye-witness Haleem brought his son to me while PW Haleem in his cross-examination he has stated that "I handed over injured to Rustam and Lalo and left from there." The appellant has stated that "about one month later I received my cattle back, and she-goats recovered to Zakir, and, whereas PW-2 Zakir has stated that "I received 13 she-goats from forest; in his cross-examination, he has stated that "after two months of the incident I received cattle from forest," and, whereas PW-3 Haleem in his cross-examination has stated that "about 7/8 days after this incident injured Zakir received his she-goats," this fact regarding receiving back she-goats by injured Zakir is nowhere mentioned in the FIR lodged on 05.10.2016 after 40 days of the incident. Apart from the above discrepancies and material and glaring contradictions fatal to the prosecution case, rendering it doubtful, there are many other material infirmities in the prosecution case, which need not to be discussed here just to save the space.
9. The principles for appreciation of evidence in appeals against the acquittal are now well settled in case of Yar Muhammad and 3 others v. The State (1992 SCMR 96), wherein the Hon'be apex Court of Pakistan has observed that:
"Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".
10. The learned trial Court by considering the aforesaid aspects of the case came to the conclusion that the appellant has failed to prove his case against the respondents beyond a reasonable doubt and such a conclusion arrived at by the learned trial Court based on appreciation of evidence, suffering from no illegality or infirmity or perversity or even any jurisdictional defect, does not call for any interference in exercise of jurisdiction under 417, Cr.P.C. In such view of the matter. the instant criminal acquittal appeal being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 30-01-2020 whereby instant Criminal Acquittal Appeal was dismissed.
JK/T-9/Sindh Appeal dismissed.