ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acquittal Appeal No.S-23 of 2021

Date	Order with signature of Judge

Appellant: Saleem Akhtar Abro through

Mr. Shoaib Naz Khaskheli,

Advocate

State: Through Syed Sardar Ali Shah,

DPG

Date of hearing: 27.09.2021

Dated of order: 27.09.2021

O R D E R

Zulfiqar Ali Sangi, J: This Criminal Acquittal Appeal has been filed by the Appellant against the judgment dated 08.02.2021, passed by learned Judicial Magistrate-II, (MTMC), Khairpur, whereby Respondents No.1 & 2 have been acquitted of the charges, hence this appeal.

2. As per FIR, the allegation against the Respondent No.2 is that he borrowed Rs.200,000/- from the appellant (Complainant) and in this regard Respondent No.2 issued a cheque in respect of such amount, which was subsequently dishonored from the bank; besides further alleged that Respondent No.2 & 3 became surety for assurance of payment of car, which was purchased by the nephew of Respondent No.2 from the appellant (complainant).

3. Learned counsel for the Appellant/Complainant, at the very outset submits that the impugned judgment passed by learned trial Court is illegal, unlawful and void; that learned trial Court did not consider the evidence as regards to the Respondent/accused during his cross-examination did not challenge the issuance of cheque and signature on it; that no any question put by the Counsel for the Respondent from Appellant (complainant) regarding the signature and issuance of cheque; that on the day of final arguments, counsel for the appellant was preoccupied before this Court, which fact also not considered by the trial Court and decided the matter one sided without given proper opportunity of hearing to the appellant; that impugned judgment is based on presumption and assumption so also on surmises and conjectures; that learned trial Court did not apply its judicial mind while passing the impugned judgment. In the last, he submits that impugned judgment passed by learned trial Court may be set-aside and respondents may be convicted.

4. Learned DPG representing the State argued that the learned trial Court has rightly passed the impugned judgment by considering the material available on record hence requires no any interference by this Court.

5. Heard arguments. Record perused.

6. Perusal of record shows that 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. This is a case of fulfillment of contractual obligations of business and not issuance of cheques dishonestly, therefore, trial court has correctly reached at the conclusion that ingredients of section 489-F PPC are missing in the case.

7. 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 later case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, 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/S FAHIM AFZAL(1998 SCMR 1281) and JEHANGIR V/S AMINULLAH 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.

8. There is hardly any improbability or infirmity in the impugned judgments of acquittal recorded by the learned trial court, which being based on sound and cogent reasons do not warrant any interference by this Court and is accordingly maintained.

9. This Criminal Acquittal Appeal is decided in the above terms.

Faisal Mumtaz/PS JUDGE