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 thathe 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

 

ARBROHI