KHADIM HUSSAIN M . SHAIKH, J.---This criminal acquittal appeal is directed against the judgment dated 19.04.2019, passed by the learned 3rd Additional Sessions Judge, Dadu, in Sessions Case No.181 of 2018, re-State v. Gulsher and others, emanating from Crime No.11 of 2018, registered at Police Station Thariri Mohabat, for offence under Section 395, whereby the respondents, namely, 1)
Gul Sher son of Sachal Chandio, 2) Iqbal son of Muhammad Uris Chandio, 3) Inayat alias Inayatullah son of Bahadur Chandio and 4) Guhram son of Sohail Chandio have been acquitted of the charge.
2. Briefly the facts of the case are that the respondents, namely, 1) Gul Sher son of Sachal Chandio, 2) Iqbal son of Muhammad Uris Chandio, 3) Inayat alias Inayatullah son of Bahadur Chandio and 4) Guhram son of Sachal Chandio were sent up with the challan to face their trial for offence under Section 395, P.P.C, in the aforementioned Sessions Case.
3. After completing the formalities, a formal charge was framed against the above-named accused [`respondents'], to which they pleaded 'not guilty' and claimed to be tried.
4. At the trial, the prosecution examined PW-1 complainant Wadal Gorar ('the appellant') at Ex.12, who produced FIR at Ex.12-A, P.W-2 Abdul Hameed at Ex.13; P.W-3 mashir Sultan Ali at Ex.14, who produced memo of wardat, memo of arrest of accused Gul Sher and memo of recovery at Ex.14-A to 14-C. Learned A.D.P.P for the State vide statement at Ex.15 gave up P.W Abdul Sattar and P.W A.S.I.
Fida Hussain at Ex.16, who produced attested copies of entries Nos.7 and 10 at Ex.16-A and 16-B then the prosecution closed its side vide statement at Ex.17. After closure of prosecution side, statements of respondents were recorded under Section 342, Cr.P.C, wherein they denied the prosecution allegations and claimed to have been falsely implicated due to enmity with the complainant.
5. At the conclusion of trial and after hearing the parties' Counsel, the learned trial Court has acquitted the respondents of the charge, extending them benefit of doubt vide impugned judgment dated 19.04.2019.
6. Having felt aggrieved by the said judgment, the appellant Wadal Gorar has preferred the present acquittal appeal.
7. It is, inter alia, contended by the learned Counsel for the appellant that the learned trial Court has not properly appreciated the evidence brought on record; that the prosecution has proved its case against the respondents beyond reasonable doubt; and, that the impugned judgment passed by the learned trial Court is illegal. He, therefore, prays that the appeal may be allowed and the respondents may be convicted.
8. Learned Additional Prosecutor General has supported the impugned judgment, contending that the learned trial. Court has based acquittal in favour of the respondents after evaluating the evidence brought on the record and prays for dismissal of the instant acquittal appeal.
9. I have considered the submissions of learned Counsel for the appellant, learned Additional Prosecutor General for the State and have gone through the impugned judgment, passed by the learned trial Court.
10. From a perusal of the record, it would be seen that the complainant in his evidence has deposed that his house is consisting of one hall, two rooms and corridor, while P.W Abdul Hameed has stated in his cross-examination that in the house of complainant there is cattle pan and one room in lower portion of house while on the upper portion of the house there are two rooms, one hall and one corridor; P.W-1 appellant Wadal in his FIR has stated that accused had taken away one Seiko-5 wrist watch, two little size and two large size watches, but he has not mentioned the color and company of the wrist watches P.W Abdul Hameed has stated in his examination-in-chief that on 13.03.2016 he along with his relative Abdul Sattar with their families went to visit the house of his cousin Wadal while he in his cross-examination has stated that he and his relative Abdul Sattar had come to the house of complainant one day prior to incident at sun set time in order to attend marriage ceremony of their other relative Aijaz and after attending such ceremony they came to the house of complainant. The complainant and P.W Abdul Hameed in their depositions have not stated that a ladder was taken away by the culprits at the time of incident, but the I.O. has allegedly recovered some ladder on the pointation of accused Gul Sher but that was not produced before the court as the case property; mashir Sultan Ali in his evidence has deposed that police had secured locks from the place of wardhat while according to contents of memo of inspection of wardhat, the complainant had produced three broken locks of the house before police; P.W A.S.I.
Fida Hussain has deposed that on 20.03.2018 taken out accused Gul Sher from the police lockup in presence of mashirs Sultan All and Mehboob and they went towards the house of accused Gul Sher vide entry No.7 at 1220 hours and reached there at 1240 hours and accused Gul Sher had taken them near his house and led recovery of Boski color cloth, three broken locks, one Nokia mobile phone, golden color wrist watch and one ladder of bance while P.W mashir Sultan Ahmed in his examination-in-chief has deposed that on 20.03.2018, S.H.O. had called him, his brother Wadal and Mehboob on phone to come at the Police Station as the police had recovered some articles including Boski cloth, one wrist watch, one Nokia mobile phone, hence they went to the Police Station Thariri Mohbat, while according to the memo of recovery, the accused was interrogated by the Investigating Officer in presence of private mashirs Sultan Ali and Mehboob and agreed to produce the robbed articles hidden by him outside of his house in the heap of Pilal. Investigating officer has admitted that he has not produced the property before any Magistrate for conducting identification through the complainant; P.W Sultan Ali has stated that he does not know who is owner of said heap palal, where from the alleged recovery was shown to have been effected, he further stated that the place of recovery is situated at thickly populated area of village Thariri Muhabbat, but no independent person was called by the Investigating Officer; that both the mashirs are close relatives of the complainant; P.W mashir Sultan Ali is brother of P.W complainant; the alleged recovery is doubtful as the alleged place of recovery war not in exclusive possession of respondent: P.W complainant Wadal Gorar in his FIR has stated that accused were identified on the source of solar light, but in the mashirnama of inspection of place of wardhat Ex.14-A, availability of solar light is not mentioned. P.W complainant Wadal Gorar in his cross-examination, has admitted that accused Iqbal is his hari, who purchased tractor and got Rs.100,000/- as loan from him, and he did not return the said amount to him but this fact is not mentioned in the FIR which even otherwise proves that there is dispute between the appellant and the respondents over Harap and money allegedly borrowed by respondent Iqbal from the appellant.
10. The above material and glaring contradictions, dishonest and deliberate improvements and admissions adverse to the prosecution case made by the P. Ws during the trial rendered the prosecution case doubtful. The learned trial Court after appreciating the evidence brought on the record, has acquitted the respondents, extending them benefit of doubt on failure of the prosecution to prove its case against them beyond reasonable doubt. It needs no reiteration that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for reference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. A perusal of the impugned acquittal judgment would reveal that the same is apt to the facts and circumstances of the case, which suffering from no illegality or any infirmity and/or misreading or non-reading of the evidence, does not call for any interference and this criminal acquittal appeal deserves to be dismissed. Above are the reasons of short order announced by me on 25.10.2019, whereby the instant criminal acquittal appeal was dismissed.