2022 PLP 160 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

This criminal acquittal appeal is directed against the judgment dated 29.01.2020, passed by the Judge, Consumer Protection Court/Judicial Magistrate, Shikarpur, in Criminal Case No.20 of 2019, re-Syed Nasir Hussain Shah v. Mst. Nasreen Bibi and another, being outcome of direct complaint for offence under sections 380, 34, P.P.C., whereby the respondents, namely, 1) Mst. Nasreen Bibi alias Kashmir wife of Syed Qaim Ali Shah and 2) Mst. Rida Fatima daughter of Syed Qaim Ali Shah, have been acquitted of the charge.

2. Briefly the facts of the case are that appellant Syed Nasir Hussain Shah filed complaint, mainly stating therein that accused Mst.Rida Fatima is his second wife, whereas accused Mst. Nasreen Bibi is his mother-in-law and they both were residing with the appellant in his house; on 13.08.2017 the appellant and his first wife went to Karachi in connection with some urgent work and returned back on 26.05.2017 and the appellant found outer door of his house locked; he broken the lock, entered into the house and found that his closet (Almirah) was lying open and accused persons had taken away gold ornaments i.e. 04 bangles, Paso, Nose Pin, Tikka, ear-rings (Jhumka), gold garland, which belonged to his first wife as well as his documents of car and cash amount of Rs.160000/- (Rupees one lac sixty thousand) and duplicate of CNIC lying therein. The appellant then went to police station for lodging FIR against the accused, but the same was not registered, hence he filed direct complaint.

3. After preliminary enquiry, the complaint was brought on record and the accused ('the respondents') appeared and after furnishing surety joined trial.

4. After completing the formalities, a formal charge was framed against the above-named respondents, to which they pleaded 'not guilty' and claimed to be tried.

5. At the trial, the complainant ('the appellant') examined himself at Ex.6; PW-2 Syed Ali Nawaz Shah at Ex.7 and PW-3 Syed Qamar Zaman Shah at Ex.8. After closure of complainant's side, the statements of the respondents were recorded under section 342, Cr.P.C, wherein they denying the allegations professed innocent and false implication in this case.

6. At the conclusion of trial and after hearing the parties' Counsel, the learned trial Court acquitted the respondents of the charge extending them benefit of doubt vide impugned judgment dated 29.01.2020.

7. Having felt aggrieved by the said judgment, the appellant has preferred the present criminal acquittal appeal.

8. It is, inter alia, contended by the learned Counsel for the appellant that the learned trial Court has not properly appreciated the evidence brought on record; and, that the impugned judgment passed by the learned trial Court is illegal. The learned Counsel prays that the appeal may be allowed and the respondents may be convicted.

9. I have considered the submissions of learned Counsel for the appellant and have gone through the material brought on record.

10. The principles for appreciation of evidence in appeals against the acquittal are now well settled. In the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96), the Hon'be Apex Court of Pakistan has observed that:- "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417 Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice". In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that: "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."

11. From a perusal of the record, it would be seen that this criminal acquittal appeal directed against the impugned acquittal judgment dated 29.01.2020 passed by the learned trial Court in the subject Criminal Case based on the Direct Complaint, has been filed without seeking special leave to appeal under the provisions of section 417(2), Cr.P.C, which is not maintainable on this score alone; admittedly the alleged incident is an unseen incident as nobody had seen the respondents committing the alleged theft; the appellant has not produced any evidence worth consideration, which could even remotely suggest that he had purchased alleged ornaments of gold and were lying in the house; the appellant in his cross-examination has admitted that he does not know as to at what time accused persons committed the theft; no one had seen the incident; it is correct to suggest that I have not produced any receipt of golden ornaments; it is correct to suggest that I have not mentioned the description of documents, which were stolen by the accused persons. Admittedly, prior to the present complaint, an FIR was lodged by respondent Mst. Nasreen Bibi against appellant Nasir Hussain Shah regarding abduction of respondent No.2 Mst. Rida Fatima, and, thus, there was dispute between the parties over the abduction of respondent Mst. Rida Fatima and the appellant's false claim regarding Mst.Rida Fatima to be his wife; respondents Mst. Nasreen Bibi and her daughter Mst. Rida Fatima even on own showing of the appellant are residing in the house wherefrom the alleged theft is shown to have been committed by them; the appellant has not produced any evidence worth consideration to show that Mst. Rida Fatima is his legally wedded wife. It appears that by filing the subject Direct Complaint and then this criminal acquittal appeal, the appellant has been attempting to put pressure upon both the lady respondents who belong to Syed Family and are widow and orphan respectively, to have some undue advantage. Under these circumstances, I am of the considered view that the appellant had miserably failed to prove his case against the lady respondents and the subject theft case launched by the appellant against the lady respondents Mst. Nasreen Bibi alias Kashmir widow of late Qaim Ali Shah and Mst.Rida Fatima daughter of late Qaim Ali Shah is outcome of malice on the part of the appellant. The learned trial Court has rightly acquitted respondents Mst. Nasreen Bibi alias Kashmir and Mst. Rida Fatima of the charges imputed against them. It needs no reiteration that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. A perusal of the impugned acquittal judgment would reveal that the same is apt to the facts and circumstances of the case, which suffering from no illegality or any infirmity or misreading or non-reading of the evidence, does not call for any interference. Reliance in this context is placed on case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), wherein the Hon'ble Supreme Court of Pakistan has held that:- "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."

12. In view of what has been stated above, this criminal acquittal appeal is dismissed. SA/N-22/Sindh Appeal dismissed.