IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acq. Appeal No. S-111 of 2022

Appellant		The State Through
		Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing		10-05-2023
Date of order		10-05-2023

J U D G M E N T

Zulfiqar Ali Sangi, J. Through instant Criminal Acquittal Appeal, the State has assailed the judgment dated 19.05.2022, passed by the learned Special Judge Anti-Corruption (Provincial), Larkana in Special Case No. 04/2021 (Re. State Vs. Sajid Ali), for offence punishable Under Sections 161 P.P.C r/w Section 5(2) Act-II of 1947, registered at P.S. A.C.E Larkana, whereby respondent/accused Sajid Ali Sheikh was acquitted.

2. Precisely, the facts leading to disposal of instant criminal acquittal appeal are that on 14.7.2021 Circle Officer ACE Larkana lodged FIR of complainant PC-2128 Ali Zeb Abro alleging therein that he is Police Constable and posted at 15 Base-III Larkana, whereas accused Sajid Ali Shaikh is posted as WHC and is most corrupt person and he is demanding bribe from him time to time and is also issuing threats if he would not give bribe he will prepare a fake report and get him discharged from service as such complainant promised him for payment of Rs.10,000/- therefore, the trap proceedings were initiated against him and F.I.R was lodged.

3. After registration of FIR, the trap was arranged and applicant/accused was caught raid handed over and tainted money of Rs.10,000/- was recovered from the possession of accused in presence of mashirs and Judicial Magistrate. After usual investigation and recording evidence of complainant Ali Zeb and P.Ws Ashique Ali and Riaz Ali u/s 161 Cr.P.C, the accused was challaned before the Court. The case papers were supplied to the accused such receipt was obtained from him. Formal charge against accused was framed, to which he pleaded not guilty and claimed to be tried vide his plea.

4. In order to establish accusation against the respondent/ accused, the prosecution examined as many as four witnesses, who produced certain documents and items in support of their evidence. Thereafter, the learned DPP for the State closed it’s side.

5. The statement of accused u/s 342 Cr.P.C was recorded, wherein accused pleaded his innocence and stated that he is innocent and he has been arrested outside the 15 Base-III Office and Motorcycle shown in this case is not related to him, it is foisted upon him. Nothing has been recovered from him and tainted money is foisted upon him. He further submitted that Circle Officer has forced him to give relief to the complainant but he has been vehemently refused therefore, they have been managed trap and involved him in this false case. Prior to this no complaint is against him by any police official posted at Base-III Larkana. He prayed for justice.

6. The learned trial Court after hearing the Counsel for the parties and evaluation of the evidence acquitted the respondent/accused, which has been challenged by the learned D.P.G. on behalf of State by preferring the instant criminal acquittal appeal.

7. Per learned D.P.G, the impugned judgment is result of non-reading and misreading of evidence of prosecution witnesses, whereby all prosecution witnesses remained consistent and proved the charge without shadow of doubt; that the learned trial court while passing the impugned judgment has ignored the mandatory provisions of Section 4 of the Act-II of 1947 providing statutory preemption of guilt which had never been rebutted by the accused/respondent; that while acquitting the accused/respondent, the learned trial court has overlooked statutory significance of trap proceedings provided under Rule 11(2) of Sindh Enquiries & Anti-Corruption Rules, 1993. Learned D.P.G. further submits that the accused/respondent was apprehended on spot along with tainted money which were secured through proper mashirnama during raid, supervise by the learned Judicial Magistrate, but the learned trial court has ignored such evidence; that no ill-will against the prosecution witnesses either was alleged or pleaded by the accused/respondent during the trial, hence there was no question of his false implication; that there was sufficient material on record to convict the respondent/accused but learned trial Court acquitted him on flimsy grounds; that the accused prima facie has committed the offence; that no major contradiction is available in the evidence of prosecution witnesses; that the judgment passed by the learned trial Court is not based on cogent reasons; that the complainant and his witnesses have fully supported the case. He lastly submits that the acquittal of the respondent/accused by way of impugned judgment requires interference by this Court and the same may be set aside.

8. I have heard the learned D.P.G. and perused the material available on the record.

9. The perusal of impugned judgment reflects that the learned trial Court has mainly acquitted the respondent/accused on the following reasons:

"The careful perusal of evidence available on record it appears that tainted money of Rs.10,000/- were recovered by the Investigation Officer from possession of accused in presence of mashirs and Civil Judge & Judicial Magistrate but the evidence of mashir, Judicial Magistrate and I.O is quite different. The mashir and Magistrate have stated that tainted money was recovered from right side of shirt of accused while Investigation Officer stated that tainted money was recovered from left side pocket of shirt of accused. The recovered tainted currency notes were not sealed after the trap. Complainant has stated that mashirnama No.2 was prepared the shop of juice and I.O did not ask shopkeeper to act as mashir. The Investigation Officer has not recorded statement of any person from juice shop. Mashirs Ashique Ali Phull and Riaz Ali Narejo are police constables serving in Anticorruption police and District Police and no independent mashir was associated by the Investigation Officer in trap proceedings. The I.O has not produced his departure and arrival entries in this case. Investigation Officer has admitted that he has not seen while passing of tainted money by the complainant to the accused. The signature of complainant Ali Zaib is not mentioned on mashirnama No.2. The complainant and accused were working at same place in police department and complainant has admitted that he has not made report against accused to their high-ups. There are material contradictions in evidence of prosecution witnesses produced by the prosecution in the trial. In these circumstances, it appears that prosecution side has failed to prove its case against the accused beyond any reasonable doubt.

10. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Supreme Court in the cases of State Versus Abdul Khaliq and others (PLD 2011 SC 554), wherein the Hon’ble Supreme Court has held as under:-

“From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited because 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. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

11. Based upon the above discussion, I am of the humble view that the learned trial Court has rightly acquitted the respondent/accused by way of impugned judgment which even otherwise does not suffer from any illegality to be interfered with by this Court by way of instant Criminal Acquittal Appeal, the same fails and is dismissed in limine together with listed application.

J U D G E

Abdul Salam/P.A