Sp.Crl.Acquittal Appeal No.02 of 2009
Date Order with Signature of the Judge
For hearing of main case.
Heard on 13th December, 2017.
Mr. Iqbal M. Khurram, Advocate for the appellant.
Mr. Abdul Qayum Abbasi, Advocate for respondent No.4.
Mr. Muhammad Javed K.K. Assistant Attorney General.
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AFTAB AHMED GORAR, J.:- The appellant being dissatisfied with the acquittal order under section 265-K Cr.P.C. in favour of respondents approached this Court by filing the instant appeal.
2. Perusal of record reveals that order impugned herein was passed on 15.10.2008 while the appeal was presented before this Court on 15.01.2009 after about three months of passing the order, therefore, on 1st November 2017 learned counsel for the appellant was directed to satisfy the Court as to the maintainability of instant appeal being time barred. Today, learned counsel for the appellant/Customs Department argued that department had received the copy of order in December 2008 and after approval the appeal was filed, therefore delay in filing the instant appeal may be condoned.
3. Learned counsel for the respondents submitted that impugned order was passed by the trial court in presence of Special Prosecutor representing the customs department. He further submitted that the trial court after examining the material available before it observed that investigating agency/investigating officer deliberately and by adopting corrupt practices provided shelter to the culprits involved in this case and rightly acquitted the respondents. He next argued that appellant has also not filed the certified copy of impugned judgment, which is mandatory required under section 419 Cr.P.C. To support his contentions he has relied upon the cases reported in 1997 P.Cr.L.J. 1181 and PLJ 1980 Cr.Cases (Karachi) 347.
4. Learned Assistant Attorney General while adopting the arguments of learned counsel for the respondents, submitted that impugned order is well reasoned and elaborate which does not invite any interference by this Court.
5. I have heard the learned counsel for the parties and perused the record.
6. In the first place, it may not be out of place to mention here that an appeal against acquittal has distinctive features and 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 settled principle of law as held in the plethora of case laws 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.
7. It seems that appellant had not filed certified true copy of order impugned herein as required under section 419 Cr.P.C. and learned counsel for the appellant has failed to satisfy the court as to how the instant appeal can be considered in absence of certified copy of the impugned order. Besides above, the reason explained by learned counsel for the appellant for delay in filing the appeal is also not sufficient and plausible and the same is not acceptable by the Court as the impugned order was passed in presence of Special Prosecutor, Customs. It appears that perhaps the appellant is interested to linger on the case just to drag the respondents in this case. Even otherwise, perusal of impugned judgment reveals that after thoroughly examining the material, the trial court in its elaborate, well-reasoned order arrived at the conclusion that prosecution remained unsuccessful to prove the case against respondents and acquitted the respondents. There is hardly any improbability or infirmity in the impugned order 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. I therefore, dismiss this Criminal Acquittal Appeal having no merits for consideration.
8. The matter does not end here as the perusal of impugned order reflects that the trial court while acquitting the respondents had also ordered for sending the copy of said order to the Chairman NAB, Chairman FBR, Member Customs FBR and Collector of Customs Export, for necessary action against the custom officials who provided shelter to the culprits involved in this fiscal fraud. There is nothing on the record as to the compliance of above directions of trial court nor it was brought to the knowledge of the Court that what action had been taken by the department against its officials and this is the main reason that customs department remained silent for about three months to save its officials involved in this case. Consequently, office is directed to send the copies of this order as well as impugned order to the Chairman NAB, Chairman FBR, Member Customs FBR and Collector of Customs Export as ordered by the trial court with directions to submit compliance report through MIT-II of this Court within a period of one month.
9. On 13th December, 2017 after hearing the learned counsel for the parties, by a short order the instant appeal was dismissed and above are the reasons for the said short order.
*Aamir/PS* J U D G E