2023 PLP 342 (MLD)

AFTAB AHMED GORAR, J.

The appellant being dissatisfied with the judgment dated 25.05.2018, whereby the learned VIIth Judicial Magistrate Karachi East has acquitted the Respondents Nos.2 to 4 in Criminal Case No.3421/2015 arising out of Crime No.508/2015 registered under sections 107, 206, 406, 417, 420, 427 read with section 34, P.P.C. with a prayer to set aside the impugned judgment and convict the accused/Respondents Nos.2 to 4.

2. Learned Counsel for the appellant while reiterating the facts and grounds mentioned in the memo of instant appeal, argued that the learned Judge of trial Court while passing the impugned judgment did not go through the evidence. He further argued that the learned trial Court without applying his judicial mind acquitted the respondents Nos.2 to 4, therefore prayed that the impugned judgment may be set aside and respondents Nos.2 to 4 may be convicted. He further submits that the Respondents Nos.2 to 4 cheated and induced the appellant as Respondent No.4 received the amount and Respondent No.2 was witness and was present at the time of execution of document while Respondent No.3 was co-sharer in the property, hence they all were involved in the commission of the present crime. He lastly prayed for set aside the impugned judgment.

3. On the other hand, learned Additional Prosecutor General Sindh submits that the impugned judgment is well reasoned as well as speaking one and there is hardly any improbability or infirmity in the impugned judgment and it does not warrant any interference by this Court as the trial Court in its reasons has thoroughly thrashed the evidence of prosecution aside and reached at the conclusion that the prosecution has miserably failed to prove the charge against the Respondents Nos.2 to 4 beyond any reasonable doubt, hence he prayed for dismissal of the Appeal.

4. I have heard the learned Counsel for the parties, have minutely perused the evidence and have also gone through the record.

5. Perusal of the impugned judgment reveals that after examining the entire evidence adduced by the witnesses as well as documentary evidence, it becomes crystal clear that no element of fraud inducement and false representation on the part of the Respondents Nos.2 to 4 which falls under section 420, P.P.C. as the element of cheating is not manifest from the evidences of the Appellant and witness because the evidence shows that neither they executed any agreement with the Appellant nor they received the amount as beneficiary, hence no transaction was taken place by the Respondents Nos.2 to

4. Moreover, it is admitted position that the amount as alleged has been given to the absconder accused Zubair under written agreement which is on record, hence no criminal breach of trust against the Respondents Nos.2 to 4 has been proven by the Appellant. So also no cogent evidence available which connect the Respondents Nos.2 to 4 in the commission of aforesaid offences.

6. After going through the record with the assistance of the learned counsel for the parties, I have no hesitation to observe that the impugned judgment is speaking one and elaborate which does not suffer from any illegality, gross irregularity, infirmity whereas the facts discussed above creates serious doubts in prudent mind and it is settled principle of law that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused that would entitle the accused such benefit not as a matter of grace and concession but as a matter of right. So also it is by now well settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Reliance in this regard is placed on the cases of Tariq Pervez v. The State 1995 SCMR 1345, Muhammad Saeed v. The State 2008 PCr.LJ 1752, Ghulam Mustaza v. The State 2010 PCr.LJ 461 and Zulfiqar Ali v. The State 2019 SCMR 1315.

7. 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 later case. Order of acquittal can only be interfered with, if it is found 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 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 lower Court whereby accused were exonerated from the commission of crime held by the apex Court in the cases of Muhammad Ijaz Ahmad v. Fahim Afzal (1998 SCMR 1281), Jehangir v. Aminullah and others (2010 SCMR 491) and Khuyrram v. The State and others (2019 SCMR 1317).

8. From the facts discussed above, 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. 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.

9. This a Criminal 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. JK/M-132/Sindh Appeal dismissed.