2017 PLP 291 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned criminal acquittal appeal, appellant Imtiaz Ahmed has impugned Judgment dated 13.08.2015, passed by the Court of learned II Civil Judge and Judicial Magistrate, Mirwah, in criminal case No.94 of 2014, Re: The State v. Allah Bachai and others, whereby respondents were acquitted from the charge.

2. Relevant facts spelt out from FIR are that on 29.10.2013, at 7.30 p.m., accused Dhani Bux, Muhammad Hassan, Saleem and Haleem, duly armed with pistols and knives entered into the house of complainant, which is situated at first floor of the building with the connivance of Mst. Allah Bachai, house maid of the complainant. Accused opened the locks and taken away 12 gold bangles worth Rs.300,000/-, 2 Nokia Phone worth Rs.5000/- and issued serious threats not to disclose the incident to anybody.

3. At the first instance police did not lodge FIR, whereupon appellant approached the Justice of Peace through criminal misc. application for lodgment of FIR which was dismissed. Subsequently, appellant filed cr. misc. application before this Court, which was allowed vide order dated 18.04.2014, hence FIR was lodged on 25.04.2014.

4. Formal charge was framed against the respondents, to which they pleaded not guilty and claimed trial.

5. Prosecution in support of its case examined complainant Imtiaz Ahmed as Exh:3, who produced FIR as Ex:3/A and certified copy of order passed in Cr. Misc. Apl. No.S-220 of 2014 by the High Court as Exh:3/B. I.O. Rab Nawaz Maganhar was examined as Exh:4, who produced the mashirnama of place of incident as Exh:4/A, PW Kaleemullah as Exh:5, mashir Ghlam Nabi was given-up Exh:6, mashir Mumtaz Ali as Exh:

7. Learned ADPP for the State closed the side of the prosecution vide statement as Ex:8.

6. Statements of accused persons under section 342, Cr.P.C. were recorded at Exh:9 to 13 respectively, wherein they denied the allegations leveled against them and stated that PWs are close relatives of the complainant so that they have deposed against them. However, they neither opt to record their statements on oath under section 340(2), Cr.P.C nor examined any witness in their defence.

7. After hearing the arguments of the parties, learned trial Court acquitted the respondents from the charge vide impugned judgment.

8. Learned counsel for the appellant contended that learned trial court has not appreciated the evidence adduced by the appellant which was supported by eye-witness Kaleemullah and committed a gross illegality while acquitting the respondents; that main accused Mst. Allah Bachai was working as maid in the house of appellant and she with the help of co-accused, committed the alleged offence of robbing valuable articles from the house of applicant; that there was no previous enmity between the parties as such there was no need to falsely implicate accused persons in case, hence impugned judgment is liable to be set aside.

9. Learned APG supported the impugned judgment and submitted that no witness from locality has been examined by the appellant, whereas PW Kaleemullah is a chance witnesses; that the house of appellant is situated at first floor and surrounded by hotels and shops; that enmity of the parties is reflected from the cross-examination of appellant as Mst. Allah Bachai filed a criminal misc. application against applicant regarding causing of harassment prior to the lodgment of instant FIR.

10. Perusal of material available on record and consideration of arguments advanced by learned counsel for the parties emanate that applicant admitted in his cross that accused Mst. Allah Bachai remained in employment of appellant for about 08 years and during such period neither she had committed any theft in his house nor any such complaint was lodged against her in past. Complainant in his cross-examination has admitted that prior to instant FIR, accused Mst. Allah Bachai filed a harassment petition against him before the Court of learned Sessions Judge, Khairpur, and she also moved a complaint to the Ombudsman, Government of Sindh. He admitted that Mst. Allah Bachai held demonstration against him, which was published in Daily Ibrat and Sindh Express News. He also admitted that he was implicated as accused in Crime No.08 of 2014 lodged at Police Station Mirwah; however, he was acquitted form the charge. He also admitted that place of incident is situated at first floor of the house and on the ground floor of his house, there are shops and Hotels of different people near to the building where his house is situated.

11. The star witness namely Kaleemullah has deposed in his evidence that he saw accused persons while coming out of the house of the complainant. He admitted that complainant informed him that 12 gold bangles were taken away by the accused persons. He admitted that he himself had not witnessed the incident and he alone was attracted on cries of the complainant.

12. Admittedly, from the perusal of the iota of evidence adduced by the appellant, it has established that appellant is disputed with accused Mst. Allah Bachai which is reflected from the proceedings filed earlier. Conversely, appellant's house is located on the first floor of the building which is situated in populated area and surrounded by hotels and shops, as such availability of public at the time of occurrence could not be ruled out, but on cries of appellant none from the vicinity was attracted which otherwise has negated the allegations leveled by the appellant in FIR. While PW Kaleemullah is a chance witness who admittedly did not witness the incident and seen accused coming out from the building. It was not difficult for appellant to raise cries and follow the culprits with the help of public but he had not done so which has created serious doubt regarding the occurrence of the alleged incident. Undeniably, no documentary proof or other supportive evidence was produced before the Investigating Officer that he had owned 12 gold bangles worth Rs.300,000/. Appellant has failed to adduce any tangible evidence to substantiate the charge against accused. The iota of evidence adduced by complainant does not inspire confidence and same could not be believed, which apparently was lodged only to settle his account of rivalry against accused Mst. Allah Bachai who had lodged harassment petition and held demonstration against the appellant. It is well settled that a slightest iota of doubt is sufficient to acquit the accused irrespective of the sensitivity of offence. Indeed, complainant has not only concealed the material facts from the Court, but has made misstatement and glaring contradictions, which has created serious doubt about the occurrence of the alleged offence.

13. It is also settled proposition of law that after acquittal of accused from the charge, he enjoys double presumption of innocence and difference of opinion regarding appreciation of evidence is not a valid ground for interference in the verdict of acquittal. In the case of Liaquat Ali v. Sabrullah 2010 YLR 1083(b), the honourable Supreme Court has observed as follows:- "Section

417. Acquittal always carries double presumption of innocence in favour of accused. Principle of appreciation of evidence in appeal against acquittal is altogether different from that of appeal against conviction. Courts are always reluctant to interfere in the judgment of acquittal, unless the same is shown to be perverse, ridiculous and shocking, or trial Court had failed to consider any material evidence having direct bearing on the case. Possibility of another view from the evidence on record is not sufficient to disturb the finding of acquittal arrived at by trial Court, provided both the conclusions are equally and probate".

14. Considering the above facts and circumstances, I am of the view that learned trial court while passing the impugned judgment has not committed any illegality or material irregularity, hence it does not call for any interference by this Court, and same is maintained. Consequently, instant criminal acquittal appeal stands dismissed being devoid of any legal substance. SL/I-8/Sindh Appeal dismissed.