2022 P Cr (PLP)

AFTAB AHMED GORAR, J.

Through this Criminal Revision Application filed under sections 435 and 439, Cr.P.C. applicant has called in question the judgment dated 04.03.2011 passed by the learned Special Judge, Special Court (Offences in Banks) Karachi in Case No. 56 of 2008 arising out of FIR No. 76/2008 under sections 409/420/467/471/477-A/34, P.P.C. registered with Police Station FIA CC Karachi whereby the respondents/accused acquitted under section 245(1), Cr.P.C.

2. Learned Assistant Attorney General appearing for the State/applicant submitted that impugned order passed by the learned trial court is liable to be set aside mainly on the ground that learned trial court did not consider all the aspects of the case and the law on it while recording the impugned order and same is the result of misreading and non-reading of evidence. He prayed for conviction of accused persons but he did not specifically point out any illegality, gross-irregularity or infirmity committed by the trial Court while recording the impugned order.

3. Conversely, learned counsel representing the respondents supported the impugned order and submitted that the impugned judgment is well-reasoned and speaking one and there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the trial Court, which does not warrant any interference by this Court as the trial Court in its judgment 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 respondent beyond the reasonable shadow of doubt.

4. We have heard the learned counsel for the parties and perused the record.

5. Perusal of the impugned order reveals that the trial court after scrutinizing the whole evidence and the documents, came to the conclusion which is as under:- "Point No.3. I have already discussed in point No.2 that accused namely Syed Masood Abbas, Syed Wajahat Ali, Tasleem Ahmed and Arif-ur-Rehman are the bankers and according to PWs no any infirmity or allegation is found against them as they had only opened the account of their customers in which the transaction was made by account holders therefore, I find not a single irregularity or illegality committed by the accused, and the PWs are silent against them at the time of their depositions. For establishing section 477-A, P.P.C. the prosecution shall alleged a general intent to defraud without naming any particular person intended to be defrauded, any particular sum of money intended to be the subject of fraud on particular day on which the offence was committed. The first set of accused are the directors of company and they are not employee of Messrs KKI therefore, the said offence cannot committed by them the PWs have not adduced regarding the falsification of account but there is simple allegation in FIR, which cannot be termed as testimony therefore, I feel that prosecution has not set up such point. It is also allegation against the accused regarding maintaining Benami accounts opened in Pakistan by person/employee of Messrs KKI, secretly and illegally to conceal their remittances but prosecution has not examined any witness to prove the accused Nos. 1 to 3 had owned such Bendmi accounts or made transactions. Although the details of Benami accounts in FIR has been shown but Pws examined in this regard have frankly deposed that AOF, and SS Cards of the bank do not bear their signature and those were not opened by them. therefore, in such state of affairs the prosecution is found un-successful to discharge its burden in respect of falsification of Benami account. PWs namely Syed Mubeen, Muhammad Furqan, Shahid, Asif Maqbool have deposed that their statements under section 161, Cr.P.C. were recorded by first I.O./PW G. A. Jatoi whereas PW-Khaliq-u-Zaman in his evidence has adduced that he has recorded the statements under section 161, Cr.P.C. of the above Pws but his signature is not appearing on their statements. Therefore, there is presumption regarding substituting the statements of above PWs during the investigation as the PWs have said that they have never appeared before I.O/PW-Khaliq-u- Zaman nor he has recorded their evidence hence I also find that FIA has conducted improper investigation, which made the case suspicious. In case reported in 1997 SCMR page 25 where the Hon'ble Court has held that where evidence creates doubt about the truthfulness of the prosecution story, its benefit has to be given to the accused without any reservation. In this case prosecution has not produced any inspiring evidence or adequate material against the accused but on the other hand the examined private Pws who are independent have not attached the accused with the crime, it is interesting to note that as per challan of the case more than 100 witnesses were cited out of which the prosecution has only examined 42 PWs form which except two I.0s, the remaining witnesses have not spoken against the accused which demonstrated that prosecution has miserably failed to discharge its burden and set up the case beyond reasonable doubt against the accused, therefore in view of above discussion this point is answered as doubtful."

6. Further more PW-1 complainant Ghulam Asghar Jatoi admitted in his cross-examination that "it is correct that no compliant from any quarter either from bank or from the account holders was received in respect of accounts which are subject matter in this case." Further, PW-4 Khuwaja Muddasir Ahmed admitted in his cross-examination that "it is correct to suggest that our company never received any request form Messrs K.K.I. for preparation of any website or domain including click pk.com. PW-5 Shuja-ud-Din who was accounts manager of Messrs Inspedium Corporation stated that he does not know the domain upon the above website whoever, he had renewed such website. PW-6 who was supervisor of Saima Trade Center admitted in his cross-examination that FIA team had not seized any article or property on instance of any body. Reading of above observations made by the trial court clearly shows that trial court after threshing out the entire evidence and material available before it found material contradictions amongst the deposition of witnesses which depict from perusal of the judgment. The trial court while relying upon the case law laid down by the Hon'ble Supreme-Court extended the benefit of doubt to the accused/respondent and recorded the acquittal order under section 245(1), Cr.P.C.

7. The concept of benefit of doubt to an accused person is deep routed in our country. The prosecution is duty bound to prove its case beyond the shadow of reasonable doubt and if any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story. It is settled law that benefit of doubt would go to the accused, regardless of fact whether he had taken such plea or not. If need arises, reliance may conveniently be placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Akram's case 2009 SCMR 230 and Faryad Ali's case 2008 SCMR 1086 and the case of Muhammad Mansha v. The State (2018 SCMR 772).

8. It may not be out of place to mention here that 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 Aminullah and others (2010 SCMR 491). It is settled principle of law as held in the 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. 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 Revision Application is dismissed. SA/S-53/Sindh Revision dismissed.