IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal
Acquittal Appeal No.S- 38 of 2010
Appellant/Complainant : Mir Muhammad through
Syed Jaffer Ali Shah, Advocate
Respondent : Jhamandas
through Mr. Niazuddin Memon
Advocate
The
State through Mr. Aftab Ahmed Shar,
Additional Prosecutor General
Date of hearing : 15.03.2019
Date of decision
: 15.03.2019
JUDGMENT
IRSHAD ALI
SHAH, J.- The appellant/complainant by way of instant
Criminal Acquittal Appeal has impugned judgment dated 30.3.2010, passed by
learned Family Judge and Judicial Magistrate Khairpur;
whereby the private respondent has been acquitted of the offence for which he was
charged.
2. The facts of the case are well
narrated in FIR of the present case, which reads as under;
“Complaint
is that; I have Meharn Medical Store which is
situated at main gate of Civil Hospital Khairpur, it
is being run by me since 1976. In the year 1989 Jhamandas
s/o Topandas by caste Hindu r/o Piryaloi,
came to me and asked to make him partner in Mehran
Medical Store. I gave partnership to Jhamandas in Mehran Medical Store in presence of nekmards
Abdul Shakoor Shaikh and Zulfiqar Ali and it was decided that from the profit of
store the joint business will be expanded. I trusted Jhamandas
and gave him partnership in Mehran Medical Store and then
we took Date gardens on lease and then opened Tawakal
Commission Shop at Agha Qadirdad
Date Market Sukkur. Entire business was under supervision of Jhamandas. After sometime we felt need of a person to run Mehran Medical Store. We employed Aritmal
Hindu R/o Luqman to run Mehran
Medical Store and such document was reduced in writing, on such document Jhamandas put his signature being witness and therein Jhamandas disclosed him to be owner of Mehran
Medical Store. Thereafter our joint
business was carried on. The same was being supervised by Jhamandas.
Sometime back I kept on asking Jhamandas to settle
the accounts; he kept me on hollow hopes. Lastly we were served with the notices
issued by Income Tax Authorities against Mehran
Medical Store and Tawakal Commission shop of Agha Qadirdad Khan Date Market
Sukkur, wherein Jhamandas S/o Topandas
Hindu was shown to be owner. After receipt of the notices I along with witnesses
Abdul Shakoor Shaikh and Zulfiqar Ali Shaikh went to Jhamandas and enquired from him about the change of
ownership of shops and asked him for settlement of accounts, he replied that he
is the owner of shops and business and there is no need for settlement of
accounts. Thereafter I kept approaching Jhamandas for
settlement of accounts of the joint business as well as return of ownership of
the Shop through concerned nekmards of community and neighbourers, but Jhamandas did
not pay any heed, and I then sent telegrams to higher officials for justice
that Jhamandas fraudulently and after getting
partnership in shops and business has committed embezzlement of Crores of Rupees and has injured my trust malafidely and has got the ownership of both the shops
changed from my name into his name and has committed fraud, and has usurped
rupees one Crore of my share. I am submitting
herewith the copies of accounts of partnership. I am complainant, justice be
done.”
3. On
investigation, the private respondent was reported upon by the police before
the Court having jurisdiction. The private respondent denied the charge and
prosecution to prove it examined appellant/complainant and his witnesses and
then closed the side.
4. On
evaluation of the evidence so produced by the prosecution, learned trial Court
acquitted the private respondent of the offence for which he was charged by way
of impugned judgment, as stated above.
5. It
is contended by learned counsel of the appellant/complainant that learned trial
Court has acquitted the private respondent of the charge without lawful
justification and without taking the evidence of the appellant/complainant into
consideration. By contending so, he sought for adequate action against the
private respondent.
6. Learned
Additional PG for the State and learned counsel for the complainant have sought
for the dismissal of the instant Criminal Acquittal Appeal by contending that
the private respondent has been acquitted of the charge by learned trial Court
through well-reasoned judgment.
7. I
have considered the above arguments and perused the record.
8. No actual date of the incident
is disclosed, the alleged forgery commenced from 1989 but its FIR has been
lodged in year 2004 with delay of about 15 years, such delay having not been
explained properly could not be lost sight of. In that situation, no much
reliance could be placed upon such FIR, as it reflects consultation and
deliberation.
9. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it
has been observed by the Hon’ble Apex Court that;
“Delay
of two hours in lodging the FIR in the particular circumstances of the case had
assumed great significance as the same could be attributed to consultation,
taking instructions and calculatedly preparing the report keeping the names of
the accused open for roping in such persons whom ultimately the prosecution
might wish to implicate”.
10.
The 161 Cr.P.C statements of the P.Ws as per record
have been recorded on 14.07.2004. It was with delay of more than 02 months to
FIR. In that situation, no much reliance could be placed on the evidence of the
witnesses which the prosecution has produced before learned trial Court.
11. In case of Abdul
Khaliq vs. the State (1996 SCMR 1553), it has
been observed by Hon’ble
Court that;
“----S.161---Late recording of
statements of the prosecution witnesses under section 161 Cr.P.C.
Reduces its value to nil unless delay is plausibly explained.”
12. It
has been stated by the appellant/complainant that the agreement with the
private respondent was verbal. When, where and at what time it was entered
into? It is not made known by the appellant/complainant, which appears to be
strange. Mere disclosure of year of the verbal agreement is not enough to make
a conclusion that such agreement was actually entered upon. The appellant/complainant
during course of his cross-examination was fair enough to admit that “he
is not owner of the shop and it was constructed on a public plot, Mehran Medical Store at present is in his possession, that
the photocopy of accounts Register which he had produced before the Court is
not bearing the signature of the private respondent and he has not produced
ownership documents of Tawakal Commission shop”.
In presence of such admissions, learned trial Court was right to record
acquittal of the private respondent by extending him benefit of doubt.
13. In
case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it has been held
by the Hon’ble Apex Court that;
“The scope of interference in appeal against
acquittal is most narrow and limited, because in an acquittal the presumption
of innocence is significantly added to the cardinal rule of criminal
jurisprudence, that an accused shall be presumed to be innocent until proved
guilty; in other words, the presumption of innocence is doubled. The courts
shall be very slow in interfering with such an acquittal judgment, unless it is
shown to be perverse, passed in gross violation of law, suffering from the
errors of grave misreading or non-reading of the evidence; such judgments
should not be lightly interfered and heavy burden lies on the prosecution to
rebut the presumption of innocence which the accused has earned and attained on
account of his acquittal. Interference in a judgment of acquittal is rare and
the prosecution must show that there are glaring errors of law and fact
committed by the Court in arriving at the decision, which would result into
grave miscarriage of justice; the acquittal judgment is perfunctory or wholly
artificial or a shocking conclusion has been drawn. Judgment of acquittal
should not be interjected until the findings are perverse, arbitrary,
foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the
reappraisal of the evidence a different conclusion could possibly be arrived
at, the factual conclusions should not be upset, except when palpably perverse,
suffering from serious and material factual
infirmities”.
14. Nothing
has been bought on record by the appellant/complainant which may suggest that
the impugned judgment is passed in arbitrary or cursory manner which may justify
making interference with it, by this Court by way of instant Criminal Acquittal
Appeal; it fails and is dismissed accordingly.
Judge