2026 PLP 987 (SCMR)

MUHAMMAD HASHIM KHAN KAKAR, J.

This petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the impugned judgment dated 21.03.2025, passed by the High Court of Sindh, Bench at Sukkur, whereby the appeal preferred by the respondent No. 2/complainant was allowed and the matter was remanded to the Trial Court.

2. Briefly stated facts of the case are that on October 1, 2016, a commercial transaction was initiated between the complainant and the petitioner for the procurement of two hundred cartons of cigarettes, in pursuance of which the pecuniary consideration amounting to Rs.4,400,000/- was deposited into the personal bank account of the petitioner. Upon the failure of petitioner to deliver the stipulated goods and after providing successive but hollow assurances, he purportedly issued a cheque of United Bank Limited, bearing No. 65928788, of Rs. 4,400,000 /-intended to discharge his subsisting financial liability; however, the said cheque was subsequently dishonored upon presentation for encashment, thereby leading to the registration of FIR.

3. The petitioner was acquitted by the Trial Court vide judgment dated 21.03.2023. Feeling aggrieved from the judgment of Trial Court, the respondent No. 2/ complainant preferred appeal before the High Court which was allowed vide judgment dated 21.03.2025 whereby the matter was remanded to the Trial Court with directions to record statements of three witnesses as court witnesses, to obtain expert opinion regarding signatures and to decide the matter afresh after recording fresh statement of accused and hearing both the parties. The judgment of the High Court is impugned before us.

4. Having heard the learned counsel for the respective parties and having meticulously perused the entire record with their able assistance, we have incorporated and addressed the submissions and contentions raised during the course of arguments throughout the ensuing discussion and analysis within this judgment, thereby avoiding unnecessary repetition.

5. We have observed that the High Court, through the impugned judgment, has proceeded to set aside the findings of the Trial Court based on a dual foundation: firstly, the failure to adjudicate upon and determine the veracity of the signatures and thumb impressions purportedly belonging to the petitioner on certain contested documents; and secondly, the procedural omission of the Trial Court to record the testimony of material witnesses i.e. Hunain Gul, Muhammad Haris, and Imtiaz Ali in terms of section 540 of the Code of Criminal Procedure, 1898 ( the Code ).

6. The High Court, while hearing the appeal against acquittal of the petitioner proceeded to set aside the judgment of Trial Court and remanded the case with certain directions, therefore, it is incumbent upon this Court to delineate the established principles of law governing appeals against acquittal and the exercise of power of remand under sections 423 and 428 of the Code before evaluating the application of relevant statutory provisions to the peculiar facts of the instant case. The criteria of interference in the judgment against acquittal are not the same, as against cases involving a conviction. In this regard, the settled principles of law have been developed progressively. When this matter reached Privy Council, it was held in case of Sheo Swarup1 that in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. This principle was further refined with the passage of time and this Court in the case of Ghulam Sikandar2 formulated certain guidelines which were discussed in the case of Abdul Khaliq3 whereby this Court while discussing previous relevant judgments on this point proceeded to hold that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. So far as the scope of remand in a criminal case is concerned, this Court discussed the considerations to be kept in view while dealing with remand of a criminal case in the case of Abdul Rashid4 and held that where the prosecution witnesses are affected by partisanship or their evidence gives rise to doubts of a reasonable character, or there are circumstances which do not support the prosecution case, and may lend support to the defence case, so as to render the defence version a possible one, there to remand the case for a retrial may amount merely to presenting a doubtful prosecution case before a Court of first instance of another opinion. The said principles were also reaffirmed by this Court in the cases of Abdur Rashid Khondkar5 and Haji Muhammad Jee

6. Upon a holistic review of the settled principles established from the cases referred above, it can safely be concluded that the scope of interference in an appeal against acquittal is narrow, predicated on the double presumption of innocence where the initial presumption is significantly fortified by the judicial finding of the trial court. Such an acquittal cannot be lightly interjected unless the impugned judgment is demonstrably perverse, arbitrary, or suffers from a shocking misreading of evidence that results in a grave miscarriage of justice. Furthermore, while sections 423 and 428 of the Code confer the power of remand, such discretion must be exercised with extreme caution and only upon the clear dictates of justice, ensuring that it does not serve to merely provide the prosecution a second opportunity to strengthen a doubtful case. Applying these principles regarding appeal against acquittal and remand of criminal cases laid down in the light of detailed discussion above, we do not think that the High Court was correct in ordering the remand of the case while deciding the appeal against acquittal for the reasons discussed in the succeeding paras.

7. So far as the finding of the High Court qua determination as to thumb impression and signatures of the petitioner on certain documents is concerned, the record shows that such finding of High Court is result of misreading of the record. The High Court has observed that the evidentiary aspect concerning signatures and fingerprints was left unaddressed by the Trial Court without seeking expert opinion in terms of Article 59 of Qanune-Shahadat, 1984 ( the Qanun-e-Shahadat ), however the record shows that the said aspect has not only been properly addressed by the Trial Court but also adequately discussed with reasons in its judgment. The Trial Court while exercising such powers sent the disputed Affidavit/Halfnama (Ex.03/A) to NADRA for automated fingerprints identification system (AFIS) to determine if the LTI embossed on it belonged to petitioner whereupon the NADRA authority reported that the thumb impression was having poor quality, hence could not be determined. Similarly, while exercising powers under Article 84 of the Qanun-e-Shahadat, the Trial Court compared the signatures of Khaizan (PW-2) at evidence recorded before court at Ex.04 and upon disputed Affidavit/Halfnama (Ex.03/A) with his alleged signatures on memo of seeing cheque and other documents which were found totally different. Article 84 of the Qanun-e-Shahadat empowers the courts to visually compare the disputed signatures in order to ascertain whether the same are that of the person by whom it purports to have been written or made.7

8. So far as the omission to record ocular testimony of certain witnesses is concerned, the High Court concluded that failure to record their statements deprived the Trial Court of potentially crucial testimony, thereby limiting its ability to make an informed and just decision. In this regard, the High Court referred to section 540 of the Code emphasizing that failure to exercise such power, where warranted, results in an incomplete and deficient trial. We have gone through the record in depth and observed that in order to prove its case, the prosecution examined as many as four witnesses and closed its evidence through statement of ADPP for the State at Ex.No.07. It has not been asserted before us that the evidence of the said three witnesses i.e. Hunain Gul, Muhammad Haris, and Imtiaz Ali is new one which emerged after passing of judgment by the Trial Court meaning thereby that the said evidence was always available to be presented before the Trial Court at the time of trial. Similarly, we have observed that no effort was made by prosecution to present such evidence before the Trial Court despite of its availability and having ample opportunity. In addition to this, the Trial Court while appreciating the evidence discussed the lacuna of non-production of the said three witnesses by prosecution during the proceedings of trial. In order to appreciate this contention involving exercise of powers under section 540 of the Code, it would be appropriate and advantageous to reproduce the section:

540. Power to summon material witness or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. A plain reading of the provisions quoted hereinabove shows that widest possible powers have been conferred on a court for summoning a witness or recalling and re-examining a witness already examined. Apparently, the discretion vested in a court appears to be unrestricted nevertheless such power being in the nature of public trust can only be exercised if such evidence appears to be essential to the just decision of the case and not to fill in the lacuna in a case owing to gross negligence, inefficiency, carelessness and recklessness of a party. In the case of Dildar8, this Court while interpreting the said provision held that these provisions are not to be utilized at the appellate stage to cure the inherent infirmities or fill up a lacuna in the prosecution case. It is well-settled by now that such powers are to be exercised only where the additional evidence was either not available at the trial or the party concerned was prevented from producing it either by circumstances beyond its control or by reason of misunderstanding or mistake. Similarly, in the case of Painda Gul9 this Court while discussing the power of a court under section 540 of the Code emphasized that this discretionary power of such amplitude has to be exercised with caution and circumspection in accord with provisions of the Code and general principles of criminal law. Justice Zafar Hussain Mirza, J. (as his lordship then was) writing for the Bench laid down that the Court must guard against the exploitation of this power by parties who had ample opportunity to produce evidence within their knowledge and must not put one of the parties in a position of advantage vis-a-vis the other. Similarly, in the case of Muhammad Naeem10, this Court held that the court cannot allow one of the parties to fill lacunas in their evidence or extend a second chance to a party to improve their case or the quality of the evidence tendered by them. The same view has also been followed by this Court in its recent judgment in the case of Waseem Hassan Khan11, In the case in hand, the prosecution had ample opportunity to produce the said proposed witnesses and failure to produce such witnesses amounts to sheer negligence and carelessness on the part of the prosecution.

9. In view of the above discussion this petition is converted into an appeal and allowed. Resultantly, the impugned judgment of High Court is set aside and the judgment of Trial Court is restored. JK/M-9/SC Appeal allowed. 1 Sheo Swarup and others v. King Emperor (AIR 1934 PC 227). 2 Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11). 3 The State v. Abdul Khaliq (PLD 2011 SC 554). 4 Abdur Rashid v. The State (PLD 1962 SC 249). 5 Abdur Rashid Khondkar v. Chandu Matbar (PLD 1964 SC 795). 6 Haji Muhammad Jee v. Muhammad Ibrahim Shouq ( 1988 SCMR 1691). 7 Muhammad Samiullah v. The State (2022 SCMR 998). 8 Dildar v. The State (PLD 2001 SC 384). 9 Painda Gul v. State (1987 SCMR 886). 10 Muhammad Naeem v. State (PLD 2019 SC 669). 11 Waseem Hassan Khan v. The State (2025 SCP 405).