ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acq. Appeal No.S-60 of 2021

Date	Order with signature of Judge

1. For orders on office objection at flag `A`

2. For hearing of main case

Date of hearing: 29.10.2021

Dated of decision: 29.10.2021

Mr. Khalil Ahmed Maitlo, Deputy Prosecutor General

O R D E R

Zulfiqar Ali Sangi, J:- None present for the appellant. I have heard learned DPG and perused the record.

2. This criminal acquittal appeal has been filed against the judgment dated 04.05.2021 passed by learned 1^st Civil Judge & Judicial Magistrate (MCTC) Kandiaro, whereby learned trial court after giving due consideration to the evidence recorded before him acquitted the accused. Learned trial court has given weight to the evidence discussed in paragraph 12, 13, 14 and 15, which are reproduced as under: -

“12. After careful perusal of evidence and the record. Admittedly, the incident alleged to have been taken place on 02.08.2020, while the instant FIR registered on 15.08.2020, with the delay of 13 days. Although both the accused nominated in the FIR and as per contention of the complainant as mentioned in the FIR that, he identified both the accused on the spot during committing robbery from him at his house along with two other unknown co-accused persons. Thus silence of the complainant and registration of FIR with the delay of 13 days is without cogent reason and it could not be believed that, the complainant remained silent despite knowing the accused persons for such a long period. Hence, keeping in view such circumstances and the delay in registration of FIR create serious doubt in the presumption story.

13. Apart from that, it is amazing allegation that, the complainant and his both brothers got up and saw the accused persons inside their house but despite of noticing the accused persons they did not resist and the accused persons succeeded to take away the robbed motorcycle and the complainant as well as his brothers could not chase them, neither , informed the police soon after the incident, which is against normal prudence. It is also amazing allegation that while sleeping keys of motorcycle, cash amount and two mobile phones were lying in the pocket of complainant and it was taken from his pocket by the accused persons. Thus, the overall evidence of complainant and his brother is not appealable to a prudent mind that in fact they have seen the accused persons and the incident took place in a manner as deposed by them.

14. The prosecution also relied upon the recovery of mobile phone from possession of accused Syed Farhan Ali Shah. Perusal of record shows that no specification of alleged robbed Nokia Mobile phone mentioned in the FIR, neither deposed in evidence by the complainant, the alleged recovery is general in nature which can be easily manipulated and foisted. No IMEI number of the alleged robbed mobile phone mentioned in the FIR, which is allegedly recovered from the possession of accused to ascertain that in fact the robbed mobile phone was recovered from the possession of accused. Moreover, it is amazing that the police party arrested the accused in main stop and also both the brothers of the complainant also reached their by chance which is also against the natural prudence. No one from the locality cited as mashir of recovery and arrest despite that the accused was arrested from public place i.e bus stop. Apart from that the accused remained in police custody remand but neither any other robbed articles recovered on his pointation neither any clue with regard to the alleged stolen articles came on record no even name of the other two unknown accused persons came on record. Thus the alleged recovery of the Nokia mobile without its specification mentioned in the FIR, and the alleged recovery without witnessing by any independent witness of the locality could not be believed.

15. Moreover, prosecution has failed to examine second co-eye witness namely Syed Azfar Ali Shah of the alleged incident, who is cited in FIR as an eye witness of alleged incident. It is held in case law reported in 2017 P.Cr.L.J Note 114 (Lahore Multan) authored by Hon’ble Justice Syed Muhammad Kazim Raza Shamsi, and Asjad Javaid Gural JJ that:

“Prosecution had another important witness to testify the recovery memo being member of raiding party but the said witness was withheld by prosecution---presumption under Art. 129 (g) of Qanun-e-Shahadat, 1984 would be that had the said witness been produced by the prosecution in the witness box, he would have not supported prosecution version qua the factum of recovery from possession of accused.”

3. This is an acquittal appeal and accused were acquitted by giving benefit of doubt. An order of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. It is settled principle of law as held in the 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.

4. No extra ordinary reasons and circumstances are available, whereby the acquittal judgment recorded by the trial court may be interfered with by this court. Learned DPG has also supported the impugned judgment. There appears no improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which is based on sound as well as cogent reasons and does not warrant any interference by this Court. The trial court has correctly passed the impugned judgment which is accordingly maintained and the instant appeal is dismissed.

JUDGE

Suleman Khan/PA