2023 PLP 52 (YLRN)

AFTAB AHMED GORAR, J.

The appellant being dissatisfied with the acquittal judgment under section 245(i), Cr.P.C. dated 03.09.2020 passed by learned XIIth Judicial Magistrate South at Karachi in Criminal case No 489/2018, FIR No. 13/2018 under sections 420/468/ 471/506-B/34, P.P.C. registered with Police Station Garden, Karachi, in favour of respondents Nos. 1 to 3 approached this Court by filing the instant Criminal Acquittal Appeal under section 417, Cr.P.C.

2. The appellant while reiterating the facts and grounds mentioned in the memo. of instant appeal argued that the learned trial Judge while passing the impugned order did not go through the material available on record and acquitted the respondents 1 to 3 on technicalities without applying his judicial mind, therefore, same may be set aside and respondents 1 to 3 may be convicted.

3. Conversely, learned D.P.G. Sindh submitted that the impugned judgment is well-reasoned and speaking one and there is hardly any improbability or infirmity in the impugned judgment and it does not warrant any interference by this Court as the trial Court in its reasons has thoroughly thrashed the evidence of prosecution side and then reached at the conclusion that the prosecution has miserably failed to prove the charge against the respondents 1 to 3 beyond the reasonable shadow of doubt.

4. It may not be out of place to mention here 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. Fahim Afzal (1998 SCMR 1281) and Jehangir v. Aminullah and others (2010 SCMR 491). It is settled principle of law as held in the plethora of case laws 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.

5. It is a known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. The evidence of the prosecution witnesses is neither trustworthy nor confidence inspiring therefore the possibility of accused being falsely implicated cannot be ruled out. Where more than one possibility appears in the case, then the possibility in favour of accused is always to be preferred for simple reason that benefit of doubt is never to be extended to the prosecution and is always given to the accused. Any room for benefit of doubt in the prosecution case will go to accused and not to prosecution. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person he convicted. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously in view of the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent. Reference can be made to (PLD 1973 SC 418 and 2011 SCMR 664).

6. The appellant could not point out any illegality and infirmity in the acquittal order. Perusal of impugned order reveals that after examining the material the trial court, by exercising powers under section 245(i), Cr.P.C. in its elaborate, well-reasoned order arrived at the conclusion that prosecution remained unsuccessful to prove the case against the respondents 1 to 3 and acquitted him. The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shill to the accused, who is not liable to prove a defence plea, if he takes one. In the absence of any positive prosecution evidence, the Respondents/ accused cannot be convicted. There is hardly any improbability or infirmity in the impugned order of acquittal recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained. Resultantly the captioned Criminal Acquittal Appeal is dismissed.

7. M.A.No.9140 of 2020 listed today also stands disposed of. JK/G-23/Sindh Appeal dismissed.