2017 PLP 431 (YLRN)

MUHAMMAD SALEEM JASSAR, J.

Through listed application under section 417(2), Cr.P.C. (M.A. No.4649/ 2016), the appellant has sought special leave to appeal from the order of acquittal by means of judgment dated 29.11.2016 passed by learned 1st Civil Judge and Judicial Magistrate, Kashmore (hereinafter to be referred as learned trial Court) in Criminal Direct Complaint Case No.317/ 2015) re Gul Hassan v. Mushtaque Ahmed and another, whereby the learned trial Court after full-dressed trial and having heard to either side acquitted the respondent from the charge which is being impugned through instant appeal against the acquittal by leave of the Court.

2. In brief, the facts of the case are that complainant filed Direct Complaint on 08.01.2016 stating therein that accused Mushtaque Ahmed had borrowed Rs.500,000/- from him, which he had credited to him by way of Rs.300,000/- through cheque and Rs.200,000/- in cash. After some time complainant demanded back his amount from the accused, who promised to return after some time and on 01.01.2016 complainant along with witnesses, namely, Ranjhan Ali and Amjad Hussain went to house of accused, where he met accused Mushtaque Ahmed and Zaheer Abbas. He demanded his outstanding money, to which accused persons promises to return on 04.1.2016 and on said date i.e. 04.1.2016 complainant along with witnesses went at the house of accused situated in WAPDA Colony Guddu and again demanded back his outstanding amount, on which accused Mushtaque Ahmed become annoyed, took out pistols and pointed towards the complainant party and also gave them kicks and fist blows, complainant raised cries. The witnesses intervened and rescued the complainant, whereafter the persons threatened the complainant that in case he again demanded his amount, he will be killed. Complainant approached police, who refused to register the FIR, hence complainant filed direct complaint.

3. After recording statement under section 200, Cr.P.C. and holding preliminary enquiry the complaint was brought on record and B.Ws. were issued against the accused. Accused/respondent Mushtaque Ahmed on service of B.Ws. appeared before the trial court, while co-accused Zaheer Abbas after completion of necessary formalities was declared proclaimed offender.

4. At the time of trial, the appellant/complainant Gul Hassan examined himself at Ex.6 on 25.10.2016 and has reproduced the version given by him in his statement under section 200, Cr.P.C. In his cross-examination he admitted that respondent/accused Mushtaque is known to him since 14 years and during that period no money transaction was made between them or before the present incident. He has further admitted that respondent/accused is brother of his wife in his cross-examination. He has deposed in following terms. "I knew accused Mushtaque prior to filing this complaint. I know him from employment in TPS Guddu more than (14) years. There was no money transaction between us prior to this incident. It is correct that accused is brother of my wife. It is correct that there were criminal cases between us prior to this case. The Ranjhan and Amjad were also witnesses in these cases. It is correct that criminal case was instituted regarding incident of robbery against present accused. It is correct that present accused was acquitted in that case. It is correct to suggest that accused party had filed a criminal case against me. Voluntarily says that it was false case. It is correct that sister of accused Mushtaque namely Mst. Noor Jehan had filed a civil suit regarding recovery of Rs.5,00,000/- against me, which is pending before the Court of Honourable Senior Civil Judge, Kashmore. I do not remember whether the civil suit of recovery was filed prior to filing this direct complaint. My witness Ranjhan is inhabitant of Kashmore town while Amjad resides in TPS Colony Guddu, who is my nephew. It is correct that security personals are deployed at main gates of Guddu Colony. Both the witnesses arrived at my house jointly in the evening time prior to leaving my house."

5. PW-2 Ranjhan, who is son-in -law of the appellant, was also examined before the trial Court on 08.11.2016 at Ex.7, whereby he has deposed different from his father-in-law, the appellant. He has deposed in his chief in line as deposed by the appellant, while in his cross-examination he has deposed in following terms: "The sister of accused Mushtaque was married with the complainant. It is correct that accused persons are residing at T.P.S. Colony Guddu so also the complainant as well as Amjad. There is distance of about one k.m. or 1-1/2 km between the house of complainant and house of Amjad and also same distance between house of complainant and accused persons. The payment was made at about 12.00 noon. There was no other person in the room except us. It is correct that denomination of currency notes is not mentioned by me. I do not remember the cheque number issued by the complainant but cheque was issued belonging to the complainant. I do not remember the account number of complainant.

6. Thereafter, the side of complainant/prosecution was closed vide their statement at Ex.8. The statement of respondent/accused was recorded under section 342, Cr.P.C. at Ex.9, in which he denied the allegations leveled against him. The respondent did not lead any evidence in his defence nor he examined himself on oath in terms of section 340(2), Cr.P.C. However, in his statement, he has taken specific plea that he has been involved in the case due to enmity over matrimonial affairs and he claimed himself to be innocent and prayed for justice.

7. Perusal of memo of complaint followed by the statement under section 200, Cr.P.C. shows that no proper date and time of the offence have been given by the appellant, however, in order to fill the lacunas left by him in his earlier statement he has deposed before the trial Court that on 15.3.2015 he had handed over cheque of Rs.250,000 and cash amount Rs.200,000 to the respondent/ accused on 17.3.2015 and had also deposited cheque of Rs.40,000 in the account of accused Mushtaque in UBL Guddu branch. The accused persons used to demand Rs.10,

000. On 10.4.2015 he again deposited Rs. 10,000 in the account of accused Mushtaque and such deposit slips were produced by him during trial. All these facts have not been uttered in his complaint as well as statement under section 200, Cr.P.C. Even the appellant/ complainant has failed to mention the proper date of offence, on which date they went to the house of respondent for making demand of their outstanding and such alleged incident took place.

8. The learned trial Court after recording evidence of complainant and his witness and having heard to either side has acquitted the respondent from the charge vide impugned judgment dated 29.11.2016 by extending him benefit of doubt.

9. Mr. Abdul Rahman Bhutto, learned Counsel for the appellant/ complainant, criticized the impugned judgment and argued that the appellant by producing sufficient material viz. documentary as well as oral evidence at trial was able to prove the charge against the respondent/accused, but the learned trial Court did not assess the same properly. He further contended that the evidence of complainant was fully corroborated and supported by his witness Ranjhan Ali, but even then the learned trial Court on the minor lapses, defect and lacunas acquitted the respondent by extending him benefit of doubt, resulting in complete failure of justice.

10. Mr. Khadim Hussain Khooharo, learned D.P.G. already on notice has supported the impugned judgment and has stated that there is no illegality in the acquittal order, hence the same does not require interference by this court.

11. I have heard arguments of learned Counsel for the parties and with their able assistance perused entire record material as well as made available before me.

12. The learned trial Court while discussing the material aspects of the case and proper assessment of the evidence has concluded the judgment in following words:

"The version of complainant, though supported by his witness Amjad Ali, who is son in law of complainant as admitted by him and enmity over the matrimonial affair is admitted by complainant and his witness. Therefore, the evidence of interested witness shall be considered carefully. It was daytime incident and non-arrival of neighbouring persons at the time of occurrence also makes the case doubtful. Further, the evidence of eye-witnesses, which is not found in consonance with the attending circumstances of case and without independent corro-boration, could not be relied upon. In the instant case there is no independent witness of the incident nor is the medical evidence produced to corroborate the version of complainant, rendering the case of complainant unfit for conviction. In these circumstances I am of the opinion that complainant has failed to prove its charge against accused Mushtaque Ahmed, beyond the shadow of reasonable doubt and the point is answered as doubtful."

13. The perusal of depositions/ evidence adduced by the witnesses of appellant side during trial reveals that they are well-known to each other and had been on strained relations due to matrimonial dispute and in order to account for their matrimonial settlement instant case has been booked up against the respondent only to exert illegal pressure upon him and to water his thrust of anger on account of family dispute. The learned trial Court while recording the reasons for acquittal of the respondent had taken into consideration important incriminating evidence and all aspects of the case. It is well-settled principle of law that accused after acquittal from the criminal charge enjoys/earns double presumption of innocence, one before the trial of the case and second after his acquittal. The superior Courts do not interfere unless the impugned order/ judgment is arbitrary, capricious, fanciful and against the record. The enmity and strained relationship on account of earlier litigation is admitted by the witnesses in their cross-examination, which is continue part of the whole statement rather more important than the examination-in-chief. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Sikandar v. Mamaraz Khan reported as PLD 1985 Supreme Court 11, has held and given some of the important and constantly followed principles can be clearly visualized from the cited case and the other case-laws on the question of setting aside an acquittal order in following terms:-- (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence. (1) PLD 1980 SC 317 (2) PLD 1981 SC 286 (3) 1981 SCMR 95 (4) 1981 SCMR 415 (5) 1981 SCMR 474 (6) PLD 1951 FC 107 (7) PLD 1960 SC 286 (8) PLD 1964 SC 422 (9) PLD 1966 SC 424 (10) PLD 1969 SC 293 (11) PLD 1973 SC 469 (12) PLD 1975 SC 227 (13) PLD 1976 SC 234 (14) PLD 1977 SC 4 (15) PLD 1977 SC 529 (2) The acquitted will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. (3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The court would not interfere with acquittal merely on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous." In the case of the State v. Abdul Khaliq reported as PLD 2011 Supreme Court 554, the Hon'ble Supreme Court has held as under:

"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 showing 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. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law or of fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities."

14. The learned trial Court has rightly held that nothing is available on record to prove the main ingredient of section 420, P.P.C. to the effect that accused dishonestly induced the complainant for delivery of cash amount to him. Learned Counsel for the appellant has not been able to point out any piece of evidence which could persuade this Court to hold that the findings of fact recorded by the learned trial Court are against the evidence brought on record, the impugned judgment is neither perverse, nor arbitrary and nor against the evidence on record.

15. In the light of above discussion and citations, I am of the considered view that the impugned judgment of acquittal passed by the learned trial Court and reasons therein are not perverse, neither artificial nor ridiculous. There can be no two opinions that once an accused is acquitted of the charge by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for interference with the same, which are wanting in this case. For all these reasons, I do not see any compelling reason to interfere with the well-reasoned judgment of acquittal passed by learned trial Court. Accordingly, leave to appeal from the order of learned trial Court is refused and impugned judgment dated 29.11.2016 being speaking is hereby maintained.

2. In the circumstances, no case for interference is made out. Consequently the appeal against acquittal is dismissed in limine. JK/G-7/Sindh Bail granted.