Criminal Acquittal Appeal Nos. 60 of 2014

Date Order with Signature of the Judge

For hearing of case.

Heard on 19^th May, 2016.

Mr. Ghulam Muhammad, Advocate for appellant

M/s. Khawaja Naveed Ahmed and Kamran Mirza,

Advocates of Respondents

Mr. Abdullah Rajput, Assistant Prosecutor General, Sindh.

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SYED MUHAMMAD FAROOQ SHAH, J.:- Appellant/Complainant Muhammad Ali, being dissatisfied with the acquittal order dated 31.10.2013, passed under Section 245(i) Cr.P.C., by 5^th Civil Judge and Judicial Magistrate, Karachi (South), in Criminal Case No. 2108/2011, approached this Court, by filing titled appeal under Section 417 Cr.P.C. with a prayer to set-aside the impugned judgment dated 31.10.2013 and convict the Respondents/accused as well.

2. Succinct allegations leveled against the Respondents/accused by the appellant are that on 24.04.2011 at about 1:30 pm. at shop No. SB-1/13/1, Daud Pota Road, Karachi, the accused persons removed the signboard from the said shop, issued threats to the Complainant and took away shoes worth of Rs.30,00,000/- (Rupees thirty lacs) from the shop.

3. Arguments heard. Record perused.

4. Learned Counsel for the appellant argued that it is an admitted fact that civil litigations are pending in between the parties but the facts of the present case are entirely different from the facts of civil litigations. Learned Counsel next argued that the learned judge while passing the impugned judgment did not go through the evidence and material available on record and acquitted the accused persons on technicalities and presumptions without applying his judicial mind.

5. Conversely, learned APG supported the impugned judgment and submitted that the impugned judgment is well-reasoned and speaking one and there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the trial Court, which does not warrant any interference by this Court as the trial Court in its reasons has thoroughly thrashed the evidence of prosecution side and then reached at the conclusion that the prosecution has miserably failed to prove the charge under Section 380/34 PPC against the Respondents beyond the reasonable shadow of doubt.

6. From perusal of evidence brought by the Complainant on record, it appears that both witnesses admitted the possession of accused Hammad and Sajjad. The Investigating Officer has also admitted that the shop was purchased by one Nawab Ferozeuddin from accused Sajjad and Hammad, therefore, after examining the entire evidence, the benefit of doubt has been extended to the accused persons. Record reflects that appellant has miserably failed to establish extra ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial court may be interfered with by this court.

7. It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the later case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice 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. 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 the case of MUHAMMAD IJAZ AHMAD V/S FAHIM AFZAL (1998 SCMR 1281) and JEHANGIR V/S AMINULLAH AND OTHERS (2010 SCMR 491). It is also settled principle of law as held in plethora of case law 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-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

8. Suffice it to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained.

9. By a short order announced today in Court, the instant appeal was dismissed and above are the reasons for the said short order.

*Faisal Mumtaz /PS* J U D G E