IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acq. Appeal No. S-77 of 2021

Appellant: Shakeel Ahmed Malik, through

Mr. Kashif Hussain Shaikh, Advocate

Respondent: Muhammad Azam and others, through

Mr. Alam Sher Bozdar, Advocate

State: Through Mr. Khalil Ahmed Maitlo,

Deputy Prosecutor General

Date of hearing: 06.12.2021

Dated of decision: 06.12.2021

JUDGMENT

Zulfiqar Ali Sangi, J. – Through instant Criminal Acquittal Appeal, appellant/complainant Shakeel Ahmed Malik, has impugned the judgment dated 21.06.2021, passed by learned Judicial Magistrate, Daharki, whereby the learned trial Court has acquitted the respondents/accused of the charge.

2. Complainant filed a direct complaint u/s 200 Cr.P.C which was later on brought on record. As per complaint, on 26.03.2020 at 1200 hours the respondents allegedly kidnapped the complainant from T-chowk Daharki and took him in their car to their office where three unknown person were also available. Accused Azam told the complainant that he has paid illegal gratification of Rs.100,000/- to Cybercrime Wing and on his instigation co-accused beaten him. On cries witnesses Muhammad Saleem and Shabbir came there and rescued him. It is also alleged that video of such maltreatment was also recorded by the accused. Accused Agan snatched mobile phone and cash Rs.12800/- from the complainant. Accused also threatened him that if he made any complaint against them to anyone, the video recorded by them, will be uploaded on social media and then they went away. On failure to get registered FIR, complainant filed the direct complaint.

3. Learned counsel for the appellant/complainant has contended that the impugned judgment passed by the learned trial Court is illegal, unlawful and against the principle of justice; that this is the case of complete misreading and non-reading of evidence; that the learned trial Court has failed to appreciate the version of the complainant supported by other witnesses; that the complainant has fully proved his case against the accused. He prayed for converting acquittal of the respondents into conviction.

4. On the other hand, learned Counsel for the respondents/accused has contended that the respondents are innocent and have falsely been implicated by the complainant in this case; that the appellant/complainant has miserably failed to establish its case against the respondents/accused and learned trial court has rightly acquitted the respondents/accused. He prayed that instant acquittal appeal may be dismissed.

5. Learned DPG representing the State, while adopting the arguments of learned counsel for the respondents/accused, argued that the learned trial court has rightly passed the impugned judgment with sound reasons by considering entire material available on record, hence requires no any interference by this Court.

6. I have heard learned Counsel for the appellant/ complainant, learned counsel for respondents/accused, as well as learned DPG and perused the material available on record.

7. Perusal of record shows that the 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. It appears that the complainant and witnesses have failed to prove allegation against the respondents/accused by producing sound and cogent evidence. The impugned judgment has been passed by the learned trial court with solid reasons. For the sake of convenience, relevant para of the impugned judgment is reproduced as under:-

“11. The burden of proof lies upon the shoulder of the person who alleged anything. In this case too, the burden lies upon the prosecution to prove its case. Perusal of record shows that the complainant has alleged that on 26.03.2020 at 1200 hours he was coming back to his home after purchasing grocery in the meanwhile the accused kidnapped him in a yellow color care and took him to the office of accused where he was maltreated, where witnesses namely Saleem and Shabir Ahmed came on the cries of complainant and saved him from the accused. While, his witness Muhammad Saleem has stated in his statement that he was available at T-chowk where accused came and beat the complainant. These statements of both complainant and witness makes the place of incident doubtful, for the complainant stated that he was beaten in the office of accused while witness Muhammad Saleem stated that the complainant was beaten at T-chowk. Said witness also alleged that he recorded movie of the incident, but same hs not been produced by him before this court. He further stated that he made phone called to Shabir Ahmed who also came thereon the spot, which means Shabir Ahmed is eye witness of the incident, but he has not been produced before this court for recording his evidence. Therefore, presumption as provided in Article 1299(g) of Qanoon-e-Shahadat, Order may be taken that had said witnesses been come to this court, he would have deposed against the complainant. Though the complainant alleged that a mobile phone was robbed from him but he did not produced any SIM number or IMEI number of the set, even he did not disclosed its model or receipts even pack of mobile, which also make the robbery doubtful. It is alleged that witnesses, who are close relatives/friends of complainant, were present when the complainant was kidnapped and it has not alleged that they were armed with weapons but still the witnesses did not resist which is also unnatural. It is alleged that accused beat the complainant with kicks and fist but no medical referral letter or prescription of any medical officer has been produced. In such discordance it cannot safely be held that the prosecution has proved its case beyond shadow of reasonable doubt, hence, he points No.1, is replied as doubtful.”

8. It reflects from the above findings of the trial court that appellant/complainant has failed to bring on record reliable, trustworthy and confidence-inspiring evidence to prove his case. Therefore, the trial court has rightly observed that the prosecution has failed to prove its case beyond reasonable doubt.

9. 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 latter case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, and 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. Fahim Afzal (1998 SCMR 1281) and Jehangir v. Amanullah and others (2010 SCMR 491). 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.

10. 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 and the instant appeal is dismissed.

JUDGE

Suleman Khan/PA