1998 P Cr (PLP)

Briefly stated the facts are that the appellant/complainant who was resident engineer, 150 M.W.F.B.C. Lakhra Power Station sent the matter dated 2‑4‑1996 for lodging the F.I.R. to Khanot Police Station, which was received at the Police Station Khanot on 3‑4‑1996 and the same was incorporated as F.I.R. No.5 of 1996. The allegations in the F.I.R. are that on 2‑4‑1996 at 18‑35 hours, Messrs Jehangir and Company crossed their two giant trailers from the Indus Highway without permission causing damage to 6 K.V. transmission and auxiliary system. Due to failure of 6 K.V. the supply of Unit No.2 was shut down and heavy loss was caused to WAPDA. The accused, as a result of this F.I.R. was challaned on 8‑4‑1996 in the Court of Judicial Magistrate, Kotri, under section 279, 427, P.P.C. The case proceeded against the accused in the Trial Court, which has resulted into acquittal of the accused by the impugned judgment. I have heard Mr. M.A. Lateef Malik, learned counsel for the appellant and Mr. Chaudhry Bashir Ahmed, Advocate for the State. The learned counsel for the appellant submits that there was ample evidence against the accused and prosecution proved its case against him but the learned Trial Court has illegally and wrongly acquitted him. His main contention was that the accused did not examine himself on oath as required under section 340(2), Cr.P.C., as such his refusal to examine on oath was sufficient evidence to convict him. Despite this non‑compliance of section 340(2), Cr.P.C. the Trial Court did not convict the accused, as such, this is a fit case to set aside the acquittal. The learned State Counsel has contended that there was no evidence against the accused for conviction and Trial Court has rightly acquitted him after appreciating and considering entire evidence on the record. I have considered the respective submissions of both the learned counsel: I have gone through the impugned judgment and memo of appeal, as copies of depositions have not been filed. The accused was not previously known to the complainant and the prosecution witnesses. There was no identification parade of the accused through the witnesses. The witnesses do not claim to have seen the accused driving the trailer and causing the damage. Thus, identity of the accused has not been established and proved by the prosecution on the record. The prosecution has also failed to prove the ingredients of sections 279 and 427, P.P.C. The learned Trial Court has taken into consideration the entire evidence as adduced by the prosecution and after considering all the aspects of the case has acquitted the accused on sound and cogent reasons. The finding of the acquittal of the accused is neither perverse nor illegal and I see no reason to interfere with the impugned judgment. The contention of the learned counsel for the appellant that the accused did not examine himself on oath as required under section 340(2), Cr.P.C. which was itself sufficient proof to convict him has also no force. In view of law laid down in PLD 1994 SC page

679. It is well‑established law that acquittal cannot ordinarily be interfered and due weight and considerations to the findings of the Court acquitting the accused are to be given. ??????????? In PLD 1997 SC 569, it was held by the Honourable Supreme Court that the Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused. ? Considering all the aspects of the case and the above case-law I am of the considered view that no case for interference with the acquittal of the accused has been made out by the appellant I find no merit in the appeal which is dismissed in limine. Appeal dismissed.