2017 PLP 2 (YLRN)

SYED MUHAMMAD FAROOQ SHAH, J.

Being aggrieved and dis-satisfied with the impugned judgment dated 23.7.2011 delivered by the learned Sessions Judge Karachi-South in Session Case No.318/2006 (FIR No. 147/2004 under section 420/468/471/34, P.P.C., P.S. Baloch Colony, Karachi) whereby lady accused Rifat Sultana was convicted under sections 419 and 468, P.P.C. and being mother of two babies in her lap, she was released under section 5 of the Probation of Offenders Act subject to her execution of PR bond of Rs.50,000/= with surety of like amount and further she was required not to commit offence and to keep the peace and be of good character during the period of payroll, extending to two years and further to appear and receive sentence if called upon. She was also required to appear before the Probation Officer in compliance of the above. However co-accused Inayatullah and Ishtiaque were acquitted under section 265-H(1), Cr.P.C., the Court did not pass any order against absconders namely Sajid Abbas son of M. Hanif and Muhammad Ashfaq son of M. Nazeer and co-accused Mst. Sarwar Khanum, wife of Inayatullah had died during proceedings.

2. Through -the instant Cr. Acquittal appeal instituted under section 417-A, the appellant being complainant of aforementioned case has prayed to set-aside the impugned judgment and convict the respondent accused. Now the point needs consideration is that one of the lady accused has already been convicted by awarding her sentence as mentioned supra, therefore, the learned counsel for the appellant was put on notice to satisfy this Court as to the maintainability of the instant appeal as the appeal under section 417-A can only be filed against the acquittal judgments. Learned counsel is found unable to make proper reply of the query made by this Court, however, conversely learned prosecutor submitted that, if at all, the appellant being complainant can seek enhancement of awarded conviction/ sentence if he is being found not satisfied to the impugned judgment mentioned above. Insofar as the acquittal of rest of the co-accused is concerned, there is no iota of sufficient evidence brought on the record by the prosecution to connect them in commission of the offence.

3. Perusal of record shows that 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. The impugned judgment appears to be well reasoned, speaking one and I found no occasion to set-aside the same.

4. 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 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 acquiltal, 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 settled principle of law as held in the 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.

5. 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 do not warrant any interference by this Court and is accordingly maintained.

6. After hearing the learned counsel for the parties, by a short order dated 21.03.2016 instant appeal was dismissed. Above are the reasons for the said short order. HBT/R-6/Sindh Appeal dismissed.