2017 PLP 394 (YLRN)

RASHEED AHMED SOOMRO, J.

This criminal acquittal appeal is directed against the order dated 31.10.2015, passed by the learned Judicial Magistrate-IV, Karachi Central, whereby the Respondents/Accused were acquitted but the complainant was served, with show-cause notice as to why he should not be saddled, with fine under section 250, Cr.P.C. for the sum of Rs.40,000/-, to be paid to the accused/respondents Nos. 1 to 7.

2. Precisely, the facts of the case are that the appellant got registered his FIR No. 354/2013 at Police Station Sir Syed, Karachi-Central for offences under sections 420, 468, 34, P.P.C. on 19.09.2013 against respondents Nos. 1 to 7, stating therein that 'he is President of managing committee of Anjuman Jama Masjid Ayesha Siddiqua, ST-19, Sector 11-B, North Karachi, which is duly registered body, registered, with the Provincial Assistant Registrar, Joint Stock Companies, Govt. of Sindh, Karachi bearing Registration No. KAR. 020 dated 05.08.2013. It is further stated that some miscreants, namely, Zaifuddin, Iftikhar Mubeen, Ghulam Kibriya, Shamim Akhtar, Abdul Mabood Siddiqui and Asghar are illegally operating the Bank Account No. 982-1 at National Bank of Pakistan, North Karachi of said Masjid and are embezzling/misusing the public funds by falsely posing themselves as office bearers of the managing committee of said Mosque, while they were never remained members/office bearers of the managing committee of said Mosque. The complainant further stated in the FIR that he is the President of managing committee of the above said Mosque and he also produce proof in this regard. In this regard the appellant submitted an application at Police Station and also filed a Petition No. 752/2013 in the Court of V-Addl. Sessions Judge Karachi Central and on the basis of judicial order; his statement was recorded at police station. Appellant's complaint was against above named accused persons for posing/ impersonating themselves as members/ office bearers of managing committee of the Mosque, illegally collecting funds, embezzling the public funds and illegally withdrawing money from the account of the said Mosque. 3 After usual investigation, the charge sheet was submitted under section 512 Cr.P.C. before the learned trial Court under section 420/468/34, P.P.C.

4. The learned trial Court, after going through the material available on record, invoked the powers under section 249(A), Cr.P.C. and acquitted the respondents' Nos. 1 to 7 of the alleged charged offence.

5. Mr. Muhammad Nazir Tanoli, the learned counsel for the appellant has contended that the impugned order is bad both in law and facts; therefore, the same is liable to be set aside. Learned counsel further contended that the impugned order is illegal, arbitrary, capricious, fanciful and unwarranted under the law, as the appellant/complainant has not been given any opportunity to produce his evidence despite the fact that on the date of passing the order dated 31.03.2015, the appellant/ complainant was very much present before the trial Court along with his witnesses and the relevant documentary evidence but the learned trial Court refused to record their evidence and has passed an arbitrary order allowing the application under section 249-A, Cr.P.C., without considering the arguments of appellant's counsel and by ignoring the material available on record. Thus the impugned order has not been passed on merits. Learned counsel further contended that under the law, acquittal in terms of section 249-A, Cr.P.C. is not the acquittal but only a discharge of the case and it is totally weird and afterthought. He argued that it is undeniable fact that the learned trial court failed to give ample opportunity to the prosecution and the appellant to produce the evidence before it and to prove the guilt of accused/ respondents Nos. 1 to

7. The learned lower Court has illegally declined to bring complainant's evidence on the record, hence without bringing on record the material evidence, it cannot be held that the accused are innocent and that the FIR was false or frivolous or a malicious prosecution. It has been argued that the learned trial Court has failed to first hear and decide appellant's application filed under section 227, Cr.P.C. seeking amendment in the charge prior to deciding application under section 249-A, Cr.P.C. and as such, the charge cannot be held groundless, false, frivolous, vexatious or baseless. He argued that admittedly the accused/respondents Nos. 1 to 7 are not the office bearers of the Trust as President, General Secretary etc as they have failed to produce any documentary evidence to this effect. Admittedly the accused are/were not entitled to collect donations on behalf of the Trust, therefore, without recording prosecution evidence, it cannot be said that the accused are innocent. Further the learned trial Court has wrongly applied the penal provision as provided under section 250, Cr.P.C. Learned counsel further contended that the learned trial Court has failed to peruse and consider the order dated 16.2.2015, passed by the learned 1st Senior Civil Judge, Karachi Central passed on application Under Order XXXIX, Rules 1 and 2, C.P.C. in Civil Suit No. 867/2014, whereby the accused have been restrained from collecting donations and operating the Bank Account No.982-1 but despite the above order the accused collected donations upto acquittal and are still violating the lawful order of competent civil Court and as such they are committing contempt of Court. Learned counsel contended that the criminal Court has no jurisdiction to decide the question of title or civil dispute, while exercising criminal jurisdiction, which has been done in the instant case and under the law, the learned trial Court had no jurisdiction to impose the fine exceeding Rs.25,000/- but the learned trial Court has directed the appellant to pay compensation of Rs.40,000- to the accused persons, which order is in excess of jurisdiction and unwarranted under the taw. Further, the learned trial Court has wrongly framed the points for determination, without recording the evidence. He argued that the dispute is of civil nature and it was not the domain of criminal Court to discuss civil dispute, while civil litigation is pending adjudication before the competent civil Court, where interim stay is still operating against the accused/ respondents 1 to

7. Learned counsel further contended that the learned trial Court has failed to appreciate the provision of section 249-A, Cr.P.C. and passed the order discussing civil dispute, which is unwarranted under the law, while no reason with regard to section 249-A, Cr.P.C. has been given or even understood by the learned trial Court. Lastly, learned counsel prayed that the impugned order may be set aside, directing the learned trial Court to record and to examine the evidence of complainant and his witnesses and then to decide the case afresh on merits in accordance with law and equity.

6. The learned counsel for respondents Nos. 1 to 7 has argued that the learned trial Court has rightly acquitted the respondents, who are innocent and were falsely implicated in the case. Learned counsel further contended that the Mosque was established on the government land in the year 1989 and in order to look after the affairs of Mosque, the Trust was created and it was registered in the office of Sub-Registrar, New Karachi Town, in which nine persons were shown to be the trustees of Mosque and in the year 2013, the complainant gathered nine persons, formed an Anjuman and, without informing earlier managing committee, produced document for registration before the Joint Stock Companies and after formation of association (Anjuman), the appellant/complainant become its President and made false complaint against the respondents for registration of FIR against them but the police declined and thereafter, the complainant/appellant obtained orders from ex-officio Justice of Peace, Karachi Central in result whereof, the FIR was registered. While arguing the matter, learned counsel has supported the impugned order, and submits that there is no illegality, gross irregularity and infirmity in the impugned order and has prayed for dismissal of this appeal.

7. Learned D.P.G. appearing for State has also supported the impugned order and prayed for dismissal of the instant appeal.

8. 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 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 acquittal order gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. Reliance in this respect may conveniently be placed on Ali Sher v. The State reported in (1998 PCr.LJ 1576), Feroze Khan v. Fateh Khan, (1991 SCMR 2220), The State v. Izzat Noor (1985 PCr.LJ 457), Feroze Khan v. Ghulam Nabi Khan (PLD 1966 SC 424), The State through Mehmood Ahmed Butt v. Sharaf-ud-Din Sheikh and another (2013 SCMR 565) and Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803). While examining the facts shown in the acquittal order, 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 Muhammad Ijaz Ahmad v. Fahim Afzal (1998 SCMR 1281). It is settled principle of law as held in the plethora of case law, more particularly in the rulings cited above, that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect. It is also settled law that if any doubt created about guilt of accused, its benefit must go to the accused and the 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.

9. In my view there is no evidence against accused as there is no complaint from public person against accused regarding emblazing the funds of Mosque but mere personal jealousy between complainant and accused persons. Further civil litigation is pending, where the civil dispute is to be decided on the basis of evidence but no criminal liability is on the respondents. Further the appellant is not the aggrieved person, who suffered loss from the alleged embezzlement of funds.

10. As far as finding on application under section 227, Cr.P.C., no doubt the learned trial court did not touch and decide the said application. However perusal of contents of applications are distinguishable and are not attracted, looking to the contents of FIR and the proper sections have been applied by the learned trial court, while framing the charge, therefore the said application under section 227, Cr.P.C. merits no consideration and is dismissed accordingly. However the learned trial court before passing final verdict should decide all pending applications in future.

11. For the foregoing reasons and discussion, I am of the firm opinion that the appellant has miserably failed to point out any infirmity or illegality in the impugned order except that the show cause notice issued to the complainant/ appellant is unjustified, in view of the facts and circumstances of the case, I therefore maintain the impugned order however set aside the findings regarding issuance of show cause notice to the complainant/appellant being unjustified.

12. Resultantly, the instant appeal stands disposed of, with the above observations and modification. JK/Q-1/Sindh Order accordingly.