2020 P Cr (PLP)

AFTAB AHMED GORAR, J.

Heard arguments and perused the record.

2. Perusal of the record reflects that appellant being dissatisfied with the acquittal order under section 245(1) Cr.P.C. in favour of respondent No. 2 passed by the learned XXVIIIth Judicial Magistrate, Karachi-East arising out of Crime No. 129/2017 under sections 420/468/471, P.P.C. registered with Police Station New Town, Karachi has approached this Court by filing titled appeal under section 417, Cr.P.C. with a prayer to set-aside the impugned judgment dated 05.08.2019 and convict the respondent No.2 as well.

3. Learned counsel for the appellant while reiterating the facts and grounds mentioned in the memo of instant appeal, argued that the learned judge while passing the impugned judgment did not go through the evidence and material available on record and acquitted the respondent No.2 without applying his judicial mind, therefore, same may be set aside and respondent No.2 may be convicted.

4. Conversely, learned Assistant Prosecutor General, Sindh while supporting the impugned judgment, 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 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 respondent No. 2 beyond the reasonable shadow of doubt.

5. Perusal of impugned judgment reveals that after examining the entire material and evidence, the trial court observed that the prosecution has miserably and utterly failed to prove the guilt of accused beyond any reasonable doubt. Perusal of impugned judgment further reflects that the appellant, who claimed to be owner of vehicle subject matter of the case, was not a party in the proceedings before the trial court; an application under section 540, Cr.P.C. was allowed by the trial court but the appellant did not turn up. In the above background, the trial court after examining the entire evidence has rightly extended the benefit of doubt to respondent No.2. It is settled that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345), Muhammad Saeed v. The State (2008 PCr.LJ 1752), Ghulam Murtaza v. The State (2010 PCr.LJ 461). The appellant has miserably failed to establish extra ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial court may be interfered with by this court.

6. It is not out of context to make here necessary clarification 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 latter 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 also settled principle of law as held in 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.

7. Record further reflects that after filing the instant appeal, learned counsel for the appellant did not appear before the Court and sought adjournments on the one or the other pretexts. More over the appellant who was not a party before the trial court is not competent to file the instant appeal. Such conduct on the part of appellant shows that perhaps he is interested to linger on the case just to drag the respondent 2 in this case. Even otherwise, perusal of record reflects that the conduct of appellant before the trial court in proceeding the case was the same as he failed to bring the evidence on record and using delaying tactics. Suffice is to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons does not warrant any interference by this Court. This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings. Consequently, the instant Criminal Acquittal Appeal is dismissed. MH/A-40/Sindh Appeal dismissed.