IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acq. Appeal No. S-113 of 2018

Appellant: Mst. Pathani Khatoon, through

Mr. Shabbir Ali Bozdar, Advocate

Respondent: Samiullah, through

Mr. Abdul Hameed Sangi, Advocate

State: Through Mr. Zulfiqar Ali Jatoi

Additional Prosecutor General

Date of hearing: 14.01.2022

Dated of decision: 14.01.2022

JUDGMENT

Zulfiqar Ali Sangi, J. – Through instant Criminal Acquittal Appeal, appellant/complainant Mst. Pathani Khatoon, has impugned the judgment dated 15.08.2018, passed by learned Civil Judge & Judicial Magistrate, Khairpur, in Criminal Case No.182/2017 Re-“State vs. Samiullah Faiz” whereby the learned trial Court has acquitted the respondent/accused of the charge.

2. It is alleged that the respondent Samiullah had issued a cheque of Rs.500,000/- to appellant in respect of purchasing of her share in a bungalow in which the respondent was co-sharer but the said cheque was dishonoured.

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 appellant/complainant supported by other witnesses; that the appellant/complainant has fully proved her case against the accused. She prayed for converting acquittal of the respondent into conviction.

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

5. Learned APG 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 respondent/accused, as well as learned APG 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 respondent/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:-

“15. Record further reflects that complainant also failed to bring on record any proof which shows that she has sold out her alleged share in the said alleged bungalow to accused and on the basis of said alleged transaction; accused had issued the cheque in question to her. The offence under which accused has charged is section 489-F PPC. However, section 489-F PPC is about the dishonest issuance of a cheque by a person towards the repayment of a loan or fulfillment of an obligation which is dishonoured on presentation. In the present case, prosecution has miserably failed to produce any proof with regard to alleged sale transaction to justify the issuance of cheque and in absence of proof of such transaction or justification the accused can hardly be held to be guilty of offence u/s 489-F PPC as discussed above.”

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 her case. Therefore, the trial court has rightly acquitted the respondent/accused.

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