IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Revision Application No.S- 05 of 2021.

Appellant: Akhtiar Ali son of Abdul Rahim alias Rahim BuxMirani.

The State Through Mr.Siraj Ali Khan, Additional Prosecutor General.

Date of hearing: 13.01.2022

Date of Order: 13.01.2022

Mr. Amanullah G. Malik, Advocate for Applicant/surety.

Mr. Siraj Ali Khan, Additional P.G.

O R D E R.

AMJAD ALI SAHITO, J-.This Criminal Revision application is directed against the order dated 21.12.2020 passed by learned Additional Sessions Judge, Ubaurowhereby he has imposed full amount of fine of Rs. 300,000/- upon the applicant/surety in Sessions case No. 08/2014 Re-State Vs. Ali Asghar and others bearing Crime No. 55/2013 registered at Police Station Dad Leghariunder section 302, 34 PPC.

2.            Brief facts leading to the filing of above revision are that accused Abdul Ghafoor Mahar was granted bail and was directed to furnish his solvent surety in the sum of Rs. 300,000/- and PR bond in the like amount. Applicant Akhtiar Ali stood surety for him and executed surety bond to produce the accused before the Court on each and every date of hearing. In case of failure surety was directed to pay fine amount of Rs. 300,000/- in breach of surety bond. Accused Abdul Ghafoor Mahar during pendency of case did not appear before the Court and jumped away and such bail was forfeited. NBW against accused and notice to applicant/surety was ordered to be issued by the trial Court. The notice upon surety was served and he was given sufficient time by the trial Court to produce accused but he failed to produce accused and stated that he is poor person and stood surety for accused on humanitarian grounds.

3. Learned counsel for the applicant/surety mainly argued that the surety is poor person and he stood surety for accused on humanitarian grounds and is unable to deposit the amount as the surety has no source of income except the land involved in this case. He further argued that the procedure adopted by the learned trial Court while imposing the fine is against the provisions of section 514 Cr.P.C.

4. Learned Additional Prosecutor General argued that accused remained absent in trial Court and notice U/s 514 Cr.P.C was issued upon the surety and it was served him which is evidence from perusal of impugned order. It has also been argued by learned Additional P.G that proper procedure as contained in section 514 Cr.P.C has been adopted in this case.

5.                        In order to properly appreciate the arguments of learned counsel for the parties section 514 Cr.P.C is re-produced as under:

514.     Procedure of forfeiture bond. (1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Magistrate of the first class, or when the bond is for appearance before a Court, to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.

(2)        If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead.

(3)        Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorize the attachment and sale of any movable property belonging to such person without such limits, when endorsed by the [District Officer (Revenue)] within the local limits of whose jurisdiction such property is found.

(4)        If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the Court which issued the warrant, to imprisonment in the civil jail for a term which may extend to six months.

(5)        The Court may at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.

(6)        Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(7)        When any person who has furnished security under section 107 or section 118…..is convicted of an offence the commission of which constitutes a breach of the conditions of this bond, or of a bond executed in lieu of his bond under section 514-B, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety, or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved. `

6.              From the perusal of the order of the trial Court dated 21.12.2020 it transpires that applicant stood surety for accused Abdul Ghafoor Mahar in the sum of Rs. 300,000/- and PR bond in the like amount and accused Abdul Ghafoor Mahar remained absent for which applicant/surety was duty bound to produce the accused on each and every date of hearing. Surety has failed to disclose cogent reason for not producing the accused before trial Court. It is very much clear that trial Court has adopted the procedure as provided U/s 514 Cr.P.C. As regards to contentions of learned defence counsel that entire surety amount has been forfeited and no lenient view has been taken by the trial Court. On this point, Honourable Supreme Court of Pakistan in the case of SaeedAkhtar v. The State (2009 SCMR 834) has been pleased to observe as under;

“It has been held by this Court on various occasions that no lenient view should be taken and entire amount of the bail bond should be recovered as an amount of penalty. In this regard reference may be made to ZeeshanKazmi v. The State PLD 1997 Sc 267, it was observed:--

“It has now become common that the accused persons involved in heinous offences, if succeed, in obtaining bail, jump the bail bonds. To check the above tendency and to provide deterrent special provisions have been enacted and/or are being enacted in the special statutes prescribing the minimum amount of bail bond …..Keeping in view the above bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedented continuous steep inflationary tendency resulting in the loss of money value, the Courts should not show any undue leniency while forfeiting bail bond amount. Their approach should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances……”

For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave refused. 

7.                        Once an accused person jumps bail bond, entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances. In this case surety has not brought any mitigating circumstances. Approach of the trial Court appears to be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds.  Order of learned trial Court is based upon sound reasons and did not require interfere.

8.                        For the foregoing reasons I do not find merit in this revision application which is 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 KarimBux 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 NaushehroFeroze 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 GhulamRasool 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 HaqueBhurt, where at about 1530 hours they apprehended the said persons. On enquiry, the said persons disclosed his name as Habibullah son of KarimBuxbycaste Lund r/o village DittalLumd 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 mashirGhulamRasool 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