MUHAMMAD IQBAL MAHAR, J.---Instant acquittal appeal is directed against the judgment dated 01.10.2011 passed by learned Civil Judge and Judicial Magistrate Golarchi at Badin in Case No, 26/2011, arising out of FIR No, 82/ 2006, P.S, S.F. Raho, offence under sections 504, 34, P.P.C., whereby respondents-accused Nos, 1 to 5 were acquitted.
2. Precisely, prosecution case is that there was dispute between the parties over a water course.
On 03.09.2006 appellant-complainant along with Muhammad Riaz and Muhammad Shafiq went to water course. At about 1200 hours respondents Nos, 1 to 5, with lathis, came there on a Tractor and started destroying the water course. The appellant-complainant restrained them but they became annoyed and issued threats and asked him to leave the land. They abused and gave him kick and fist blows. The appellant-complainant raised cries where upon PW Muhammad Shafiq and Muhammad Riaz intervened and rescued the appellant. Thereafter respondents-accused went away. The appellant-complainant made application to irrigation authorities and an inquiry was conducted and thereafter the appellant lodged the FIR on 14.10.2006.
3. The police after usual investigation submitted final report before the Court of law. The learned Magistrate, after observing all legal formalities, framed the charge against the respondents/ accused at Ex. 2, to which they pleaded not guilty and claimed trial.
4. At the trial, prosecution examined appellant/complainant Rahmat Ali at Ex.3, who produced FIR at Ex. 3-A, PW, Muhammad Riaz at Ex. 4, PW, Muhammad Shafiq at Ex. 5, ASI, Allah Bux at Ex.6, who produced memo of place of incident at Ex. 6/A, mashir, Muhammad Rafiq at Ex. 7 and then learned ADPP closed the side of prosecution vide statement at Ex.
8. The statements of respondents/ accused were recorded as required under section 342, Cr.P.C. at Exhs. 9 to 13, in which they denied the prosecution case and claimed their innocence. The learned trial Court after hearing the arguments of learned counsel for the parties passed impugned judgment which has been assailed before this court.
5. Learned counsel for the appellant/complainant contended that the impugned judgment passed by learned trial Court is illegal, void, ab-intio in the eye of law; that the learned trial Court passed the impugned judgment in a mechanical manner; that from the careful reading of prosecution case it appears that no other opinion could be formed except to convict the respondents; that the learned trial Court failed to .appreciate evidence which is corroborative to each other; that the delay in lodging the FIR has been explained but learned trial Court did not appreciate; that the prosecution has proved its case beyond any shadow of doubt as all the PWs examined before trial Court fully supported the prosecution case and even the learned counsel for the respondents/accused have failed to shake their evidence in cross-examination; that the learned Magistrate has committed material and gross irregularity by not believing the testimony furnished by the PWs; that the learned Magistrate has acquitted the respondents/accused without giving cogent reasons in the judgment. He lastly concluded that the grounds on which the trial Court has acquitted the respondents/ accused are not supported from the evidence, therefore, he prayed for setting aside the impugned judgment.
6. Learned D.P.G appearing for the State supported the impugned judgment passed by learned Magistrate and submitted that the learned trial Court has rightly passed the judgment which does not suffer from any infirmity.
7. I have considered the arguments advanced by learned counsel for the appellant/complainant, learned D.P.G. for the State and have perused the record with their assistance.
8. Perusal of record reflects that the charge against the respondents/accused is that they being armed with lathis issued threats to the appellant/complainant and caused kick and fist blows to him but there is no material on record which shows that he sustained injuries, as there is no memo of injuries on record and nor there is medical evidence. The alleged incident occurred on 03.10.2006 but was reported at P.S. on 14.10.2006 after eleven days of the incident, which has not been explained by the appellant. The eyewitnesses are close relatives of the appellant and no person from the locality has been cited or examined by the prosecution.
9. The perusal of record further reveals that during investigation nothing was recovered from the place of wardat or from the possession of respondents/ accused which connect them with the commission of offence.
10. I have examined the evidence of all the witnesses minutely, there appear many contradictions and discrepancies, regarding date and time of incident and manner in which the incident occurred, creating serious doubt in prosecution case, which have already been highlighted by learned Magistrate in the impugned judgment and there is no sort of corroboration in the case. The evidence of B investigating officer is not helpful to the prosecution as he in his cross-examination deposed that during investigation the witnesses did not support the case of appellant, therefore he disposed of the case under NC class. The mashir supported to the extent that the investigating officer visited place of wardat and prepared mashirnama but he further deposed that the memo at Ex. 4/A is not same nor bears his signature.
11. After considering the material available in file I am of the firm view that the judgment passed by learned Magistrate is based on proper appreciation of the evidence. Learned counsel for the appellant-complainant has failed to show that the impugned judgment is fanciful. It has not been pointed out that some incriminating evidence was not taken into consideration by learned Magistrate, which has caused gross miscarriage of justice. Needless to emphasize 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 is vague, perverse and arbitrary or against the record. In this respect reliance can be placed upon case Haji Amanullah v. Munir Ahmed and others (2010 SCM R 222) wherein it has been held by honourable Apex Court as under:-- "Appellate Court would not interfere with acquittal of accused merely because on reappraisal of evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusion are reasonably possible. However, if the conclusion reached by lower Court was such that no reasonable person would conceivably reach the same and was impossible, then Appellate Court would interfere in such cases on over whelming proof resulting in conclusive and irresistible conclusion, and that too with a view to avoid grave miscarriage of justice and for no other purpose....
Important test is that the finding sought to be interfered with should be found wholly artificial, shocking and ridiculous after scrutiny".
12. For what has been discussed above I am of the view that the impugned judgment passed by learned Magistrate does not suffer from any infirmity, therefore, instant acquittal appeal being devoid of merits is dismissed in limine.