IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S-41 of 2021.

Appellant: Sui Southern Gas Company, Regional Office Golimar Road Sukkur through its Ex. Engineer Riaz Ahmed son of Sukhio Khan, bycaste Abbassi.

Through Mr. Muhammad Faruq Jatoi, Advocate.

Respondents: None present for the respondents.

The State Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

Date of hearing& Judgment: 11.01.2022

J U D G M E N T

AMJAD ALI SAHITO, J-.Being aggrieved and dissatisfied with the impugned judgment dated 01.04.2021, passed by learned Sessions Judge, Sukkur in Sessions case No. 496/2016 Re: State Vs. Amanullah and others under sections 379, 462-C SSGC Act bearing crime No. 08 of 2016 registered at Police Station Patni, District Sukkur whereby the respondents were acquitted from the charge, the appellant has preferred this appeal.

2. The Concisely, the facts of the prosecution case, reported in FIR bearing crime No. 08/2016 at Police Station Patni, District Sukkur lodged on 01.03.2016 complainant Riaz Ahmed Abbassi, Engineer in SSGCL, alleging therein that on 24.02.2016, a team of SSGCL went at Patni for necessary maintenance and checking of illegal connections of SSGC, the team informed the complainant through phone that they on checking the line, found illegal connections of residents who are committing theft of sui gas. On such information complainant Riaz Ahmed accompanied with Deputy Manager Ziauddin and Deputy Manager Ghulam Hyder Bhutto and arrived at Patni, where the team pointed out illegal connections of gas from sui gas pipe lines of residents namely: Habibullah son of Muhammad Din Dhandhan, Amanullah son of Din Muhammad Chano, Bilal son of Noor Muhammad Malik, Mangat Ali Malik, Mujahid Ali son of Ghulam Akber Dhandhan, Ameer Ali Dhandhan, Ghulam Rasool Chano through red pipe. After checking they returned back to Sub-Zonal office Rohri then complainant receive letter No. SSGC 4694 dated 01.03.2016 and lodged FIR on behalf of state.

3. The learned trial after observing all formalities and recording evidence of the complainant party as well as statements of accused, acquitted the respondents through the impugned judgment.

4. Learned counsel for the appellant/complainant submits that though all the witnesses have supported the case but the learned trial Court has erroneously acquitted the respondents without appreciating their corroborative evidence. He prayed for setting aside the impugned judgment so also awarding conviction and sentence to the respondents.

5. Learned Deputy Prosecutor General have supported the impugned judgment. Since this criminal Acquittal Appeal has not been brought on regular file and no notice was issued to respondents hence they couldn’t appear to contest the criminal acquittal appeal.

6. I have heard learned counsels for the parties and have gone through the evidence as well as impugned judgment available on record. The criterion of interference in the judgment against acquittal is not the same as against the cases involving a conviction. The scope of interference in an appeal against acquittal is narrow and limited for the reasons that 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.

7. From perusal of material brought on record, it appears that complainant Riaz Ahmed has lodged FIR and recorded evidence before trial Court wherein he deposed that his team was on checking of illegal connections and look after maintenance work.On 24.02.2016 and he was informed by the team that illegal connections were found in the residence of accused Amanullah, Habibullah, Ghulam Rasool, Bilawal, Mujahid and Mangat Ali. Accordingly he arrived at place of occurrence where found illegal connections and returned back to his office and narrated such facts to Sub-Zonal Manager Rohri from whom received letter dated 01.03.2016, then went to P.S Patni and lodged FIR. Investigating Officer visited the place of vardat on 02.03.2016 on his pointation in presence of mashirs Ziauddin and Ghulam Hyder, collected seven rubber pipes about 3/3 ½ feet in length.

8. From the evidence of complainant, eye witnesses it transpires that on receiving information from maintenance team on cell phone by the complainant about the theft of sui gas, arrived at the place of occurrence where they have seen accused Habibullah, Amanullah,
Bilawal, Mangat Ali, Mujahid Ali, Ameer Ali and Ghulam Rasool who were committing theft from direct distribution pipe line of Sui Gas was supplied from direct service line. Admittedly I.O did not associate any private person on the way or at the place of occurrence to attest the incident. Investigating Officer not collected particulars of residences of accused and he also did not obtain record of rights in order to verify said residences, if belonged to the accused. The distance of the houses disclosed by the complainant Riaz Ahmed and PW Ziauddin, Deputy Manager SSGCL Rohri are different and creates serious doubt in the authentication of the incident. Admittedly pipes recovered from the place of occurrence were not sealed and the same were produced in the evidence of complainant Riaz Ahmed but he was unable to recognize that which pipe was used for committing the theft of gas for the house of which accused. In view of above the prosecution evidence is doubtful as it is found contradictory and inconsistency on material particulars without being corroborated by independent evidence, which creates reasonable doubt.

9. I have also carefully perused the record of the case with the able assistance of learned Deputy Prosecutor General, Sindh and have no hesitation to observe that impugned judgment is speaking one and elaborate which does not suffer from any illegality, gross irregularity, infirmity, hence, it does not require any interference by this Court. It is settled law that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the cases of TARIQ PERVEZ Vs. THE STATE (1995 SCMR 1345), MUHAMMAD SAEED Vs. THE STATE (2008 P.Cr.L.J. 1752), GHULAM MURTAZA Vs. THE STATE(2010 P.Cr.L.J. 461), MOHAMMAD MANSHA Vs. THE STATE (2018 SCMR 772).

10. 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 the 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, and arbitrary in nature or based on a misreading, non-appraisal of evidence or is artificial, arbitrary and lead to a gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference in the judgment of acquittal gives rise to a strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order/Judgment 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 Vs. FAHIM AFZAL (1998 SCMR 1281) and JEHANGIR Vs. AMINULLAH AND OTHERS (2010 SCMR 491). It is also a settled principle of law as held in a 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.

11. Suffice it to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which is based on sound and cogent reasons that do not warrant any interference by this Court. The appellant has miserably failed to establish extraordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial Court may be interfered with by this court.

12. This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings. Consequently, the instant Criminal Acquittal Appeal is dismissed.

13. These are the reasons of my short order dated 11.01.2022 whereby the instant Criminal Acquittal Appeal was dismissed.

JUDGE

Irfan/PA

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Acquittal Appeal No.S-41 of 2021.

Appellant: The Prosecutor General Criminal Prosecutor Service, Department Govt. of Sindh, Karachi.

Through Mr. Aftab Ahmed Shar, Additional Prosecutor General.

Respondent: Habibullah son of Karim Bux Lund.

Date of hearing: 10-02-2020.

Date of Judgment: 10-02-2020.

J U D G M E N T

AMJAD ALI SAHITO, J-. Being aggrieved and dissatisfied with the impugned judgment dated 18-07-2019, passed by learned1^st Additional Sessions Judge/MCTC Naushehro Feroze in Sessions Case No. 850/2014 Re. The State Vs. Habibullah Lund, offence u/s 23(i) (a), Sindh Arms Act, 2013, Crime No. 66/2014 registered at police Station Mithianiwhereby the respondent was acquitted of the charge.

2. The brief facts of the prosecution case are that on 29-10-2014 complainant SIP/SHO Din Muhammad Leghari lodged the FIR alleging therein that on the said date he along with his subordinate staff namely Aijaz Ali, PC Amir Bux, PC Mehar Ali and DPC Muhammad Saleh left Police Station vide entry No. 09 at 1350 hours in Government vehicle for investigating of Crime No. 64/2014, offence u/s 302, 337H(ii), 147, 148, 149, 504 PPC. The private mashirs namely Ghulam Rasool Lund and Abdul Khalid Lund were also accompanied with them. When they reached near village Dittal Lund, where they received spy information that accused Habibullah Lund wanted in the above rcime was going by the road side to his village Bhorti. On receipt of such information, they proceed towards the pointed place and reached at link road Bhorti near Mango garden of Abdul Haque Bhurt, where at about 1530 hours they apprehended the said persons. On enquiry, the said persons disclosed his name as Habibullah son of Karim Bux bycaste Lund r/o village Dittal Lumd Taluka Kandiaro. During his personal search one 30 bore pistol along with five live bullets in its magazine was recovered from his possession, to which accused disclosed that he used the same in commission of murder of Khan Muhammad. Such pistol, magazine and bullets were sealed at the spot, then such mashirnama was prepared at the spot in presence of above mashirs. Then accused and case property were brought to police station, where complainant has registered the FIR against the accused on behalf of the state.

3. The learned trial after observing all formalities and recording evidence of the complainant party as well as statements of accused, acquitted the respondent through the impugned judgment.

4. Learned Additional Prosecutor General for the Statesubmits that though all the witnesses have supported the case but the learned trial Court has erroneously acquitted the respondent without appreciating their corroborative evidence. He prayed for setting aside the impugned judgment so also awarding conviction and sentence to the respondent.

5. I have heard learned Deputy Prosecutor General, Sindh representing the State and have gone through the evidence as well as impugned judgment available on record. The criterion of interference in the judgment against acquittal is not the same as against the cases involving a conviction. The scope of interference in an appeal against acquittal is narrow and limited for the reasons that 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.

6. From perusal of material brought on record, it appears that complainant in the FIR has disclosed that both the private mashirs along with them, when they left police station for investigation of main crime No. 64/2014 while he during the cross examination, the complainant SIP Din Muhammad has deposed that on 29-10-2014 he sent WPC Sikandar who went to Mithiani Town from where brought both the private mashirs at police station. Complainant during his cross examination has deposed that Munshi prepared mashirnama of arrest and recovery on the spot at his dictation while mashir Ghulam Rasool has deposed during his cross examination that memof of arrest and recovery was prepared by SHO Din Muhammad Leghari. It is also surprising to note that the complainant SIP Din Muhammad has not deposed anywhere as to whether he has sent the recovered pistol to Forensic Science Laboratory in order to know its working condition, even the FSL report has not been produced during the trial before the trial Court, which single thing creates uncertainty in the prosecution case. In view of above the prosecution evidence is doubtful as it is found contradictory and inconsistency on material particulars without being corroborated by independent evidence, which creates reasonable doubt.

7. I have also carefully perused the record of the caseand have no hesitation to observe that impugned judgment is speaking one and elaborate which does not suffer from any illegality, gross irregularity, infirmity, hence, it does not require any interference by this Court. It is settled law that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the cases of TARIQ PERVEZ v. THE STATE(1995 SCMR 1345), MUHAMMAD SAEED v. THE STATE (2008 P.Cr.L.J. 1752), GHULAM MURTAZA v. THE STATE (2010 P.Cr.L.J. 461), MOHAMMAD MANSHA v. THE STATE (2018 SCMR 772).

8. 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 the 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, and arbitrary in nature or based on a misreading, non-appraisal of evidence or is artificial, arbitrary and lead to a gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference in the judgment of acquittal gives rise to a strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order/Judgment 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. AMINULLAH AND OTHERS (2010 SCMR 491).It is also a settled principle of law as held in a 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.

9. Suffice it to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which is based on sound and cogent reasons that do not warrant any interference by this Court. The appellant has miserably failed to establish extraordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial Court may be interfered with by this court.

10. This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings. Consequently, the instant Criminal Acquittal Appeal is dismissed.

JUDGE

Nasim/P.A