2017 P Cr (PLP)

OMAR SIAL, J.

Through this Criminal Acquittal appeal, the Appellant has challenged the judgment of the learned Vth Civil Judge and Judicial Magistrate, Karachi South in Cr. Case No. 1692/2014 wherein the accused namely, Syed Mujahid Rasool son of Moazam Rasool, Syed Khurram Rasool son of Syed Moazam Rasool and Syed Rehan Rasool son of Syed Moazam Rasool were acquitted. Brief facts of the prosecution case are that on 15-1-2014 a team of K Electric headed by Mukhtar Ahmed Sheikh inspected four electric meters installed at House No. 10-B. Second Street, near DHA Office, Phase 1, Karachi and found that the occupants were bypassing the electric meters and hence involved in the theft of electricity. Accordingly, an FIR bearing number 5/2014 under section 39 of the Electricity Act, 1910 was registered at P.S. KESC in Karachi. The case was tried in the Court of the learned Vth Civil Judge and Judicial Magistrate, Karachi South. The prosecution produced three witnesses in support of its case, namely, Mukhtar Ahmed Sheikh (the complainant and manager of K-Electric), Abid Hussain and Majid Shah (both employees of K-Electric and members of the inspection team). On 18-2-2016 the learned trial court gave its judgment acquitting all accused on the ground that K-Electric had been unable to prove its case beyond reasonable doubt. Hence this acquittal appeal. This criminal acquittal appeal is at a pre-admission stage. I have heard the learned SPP for K-Electric as well as the learned APG and have also with the able assistance of both counsel perused the record submitted by the Appellant in support of his appeal. In his verbal arguments in Court, the learned SPP for K-Electric has primarily concentrated on two issues which he states amount to a non-reading or a mis-reading of evidence by the trial court. The first issue is whether or not the complainant Mukhtar Ahmed Sheikh was present at the scene when the inspection was made. In this regard he has relied upon the examination-in-chief of the said Mukhtar Ahmed Sheikh in which he states that he was present. The second issue that the learned SPP raises is that of the photographs of the wires that the prosecution alleges were being used to bypass the electricity meters. He further argued that the same have not appropriately been considered by the trial court. In support of this argument, the learned counsel has drawn my attention to copies of the photographs attached with the memo of appeal which were also produced during the trial. I observe that the learned trial court in the impugned judgment has examined both issues that the learned SPP has raised. As regards the issue of the presence or non-presence of Mukhtar Ahmed Sheikh is concerned, the learned trial court has observed that while Mukhtar Ahmed Sheikh stated in his deposition that he was present, the other prosecution witnesses, namely, Majid Shah and Abid Hussain have stated otherwise and hence doubt is created, the benefit of which must go to the accused. I have seen the statement of PW Majid Shah that he gave during his cross-examination. In his statement he very categorically says that it is correct that the "complainant was not present at the time of site inspection". Similarly, PW Abid Hussain also indicates in his examination-in -chief that Mukhtar Ahmed Sheikh was not present on the scene - "on the same day we went and informed to the manager Mukhtar Ahmed Sheikh about the incident". These statements of PW Majid Shah and PW Abid Hussain, who themselves are K-Electric employees and who themselves were members of the inspection team are in complete contradiction to the prosecution case. The Hon'ble Supreme Court in a case reported in 2014 SCMR 749 (Muhammad Zaman v. The State) has observed that "when initial presumption of innocence was strengthened on the acquittal of the accused, we would not like to interfere therewith simply because another view is equally possible." I find that the learned trial court was correct in holding that doubt had been created on the issue of whether the complainant Mukhtar Ahmed Sheikh was present on the spot or not. As regards the second issue of the photographs is concerned, the copies of the photographs attached support the learned trial court's observation that absolutely nothing in these photographs connects the accused with the offence. Very rightly, the trial court has rejected this piece of evidence produced by the prosecution in support of its case. The copies of the photographs attached with the memo of appeal do not aid the prosecution case in any manner in its prayer that this Court interferes with the finding of the trial court. While the learned SPP did not in his verbal arguments raise some of the grounds contained in the memo of appeal, yet for the sake of propriety, the same are addressed here. Most grounds raised in the memo are vague and repetitive. A ground is taken that the learned trial court has erred in stating in its judgment that there appears to be a previous dispute between the parties that is pending adjudication before the Hon'ble High Court. The Appellant's stance is that the dispute mentioned in the judgment is not pending but has been disposed off. I have perused the litigation referred too and find that this was a Petition bearing number D-291 of 2014 in which the accused had prayed that the present FIR be quashed. After granting a temporary stay on proceedings, this Court, in my opinion very rightly had dismissed the petition of the accused and had allowed the trial to proceed making it clear that it was not touching the merits of the case but that it was not inclined to interfere with the investigation. If the Appellant's contention is correct that the Petition was not pending but had been disposed off at the time of the learned trial court's judgment, even then such an issue is not material enough for this Court to interfere with the judgment of the trial court. The memo of appeal also quotes two statements made by two prosecution witnesses in their examination-in-chiefs. however, the learned SPP has not taken into account the contents of the cross examination of these witnesses and that these grounds appear to have been adequately addressed by the trial court which determined that the evidence given by these witnesses was contradictory in certain places to the prosecution case. The Hon'ble Supreme Court has taken the view in a case reported in PLD 1985 SC 11 (Ghulam Sikander v. Mamaraz Khan) that "in an appeal against acquittal, this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused." Section 417-2(A) provides that an aggrieved person may within thirty days of the acquittal order prefer an appeal against the acquittal. The learned trial court gave its judgment on 18-2-2016 and a certified copy of the same was obtained by the Appellants on 26-2-2016. This appeal therefore is also time barred by five days as the same was presented on 30-3-2016. The grounds for condonation only state that in order to do justice the Court should condone the time lapse. Be that as it may, justice should work for the prosecution and the defence alike and in the absence of cogent reasons for the delay; the ground taken by the Appellant is without much force. Had the Appellant made out a reasonably strong case for interference by this Court and given cogent reasons for the delay in filing the appeal, I might have looked at the delay more leniently. In addition to the arguments raised by the counsel, I notice from the record that the FIR has been registered after a delay of two days. The FIR is silent on the cause of delay. In the challan the prosecution has taken the position that the delay was caused because the accused promised to make payment. This claim of the prosecution is unsubstantiated by evidence and the FIR does not even indicate to such a reason. Further, PW Majid Shah states in his cross-examination that only one hour was taken in registering the FIR. The FIR itself reveals that the recovered wire etc. was not sealed on the spot but was taken back to the P.S. and sealed later. No mushirnama was made on the spot. No witnesses were cited. The alleged inspection has admittedly taken place during early evening and the K-Electric team has also admittedly entered the premises where families resided, yet no independent person has been cited as a witness and the provisions of section 103, Cr.P.C. blatantly violated. Needless to say, a double presumption of innocence also works in favour of the acquitted accused. As observed by the Hon'ble Supreme Court in a case reported in 2010 SCMR 491 (Jehangir v. Aminullah), this double presumption of innocence can only be disturbed when it is shown that "the Court below (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally." In another case reported in 2010 SCMR 222 (Haji Amanullah v. Munir Ahmed) the Hon'ble Supreme Court has observed that "if the conclusion reached by the lower Court was such that no reasonable person would conceivably reach the same and was impossible, then Appellate Court would interfere in such cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too with a view to avoid a grave miscarriage of justice and for no other purpose". In the present case, no proof has been given by the Appellant which merits interference by this Court. In view of the fact that no illegality, infirmity, misreading or non-reading of evidence could be pointed out warranting interference with the impugned judgment of acquittal, this criminal acquittal appeal is dismissed. JK/M-19/Sindh Appeal dismissed.