2013 P Cr (PLP)

IQBAL HAMEED-UR-REHMAN, C.J.

This is an appeal filed by Manzoor Ahmad son of Khan Zaman under section 417(2-A), Cr.P.C. challenging the acquittal of respondents Nos.1 to 3 in case F.I.R. No.32 of 2008 dated 26-8-2008, registered under sections 406, 419,420, 468 and 471, P.P.C. with Police Station Secretariat, Islamabad. Respondents Nos.1 to 3 were tried by the learned Judicial Magistrate Section 30, Islamabad who vide his judgment dated 14-12-2011, acquitted them Feeling aggrieved by the impugned judgment, the complainant/appellant has filed the instant appeal.

2. The prosecution case as it emerges from the available record is that the complainant/appellant Manzoor Ahmed reported to the police that he was serving in Secretariat. Accused Ghulam Shah was also an employee of his office, who informed the complainant that Ch. Noor Muhammad son of Deewan Ali resident of 4/11, Main Road Noorpur Basti, Sargodha had a plot, who is selling the same. After completion of transaction for a sum of Rs.12-lacs, the complainant paid the entire amount. Ch. Noor Muhammad promised to complete documents within two weeks. But when the documents were brought it came into his knowledge that in the receipt it was mentioned that amount of Rs.12-lacs was received by Ch. Noor Muhammad from the complainant as well as Ghulam Shah. The complainant further added that Agha Nasir was fully involved in using the amount. Thereafter, Noor Muhammad accused returned an amount of Rs.3-lacs to the complainant, but did not pay the remaining amount of Rs.9,00,000 despite several demands, hence on the written application of the complainant, the F.I.R. was registered.

3. After investigation, the accused were challaned and put to trial. However, during proceedings, accused Ghulam Shah was acquitted under section 249-A, Cr.P.C. and the charge was framed against other accused namely Nasir Ali and Noor Muhammad. In order to prove the guilt of the accused, the prosecution got examined as many as four witnesses. After recording of prosecution evidence, the accused were examined under section 342, Cr.P.C. who while denying the allegations levelled against them pleaded their innocence.

4. Learned counsel for the appellant contended that the learned trial Court has ignored the important material/piece of evidence available on record; that there was direct evidence of statements of the P.Ws.; that there was sufficient evidence on the record for conviction of the accused; that the learned trial Court failed to exercise its jurisdiction; that the impugned judgment is not sustainable in the eye of law; that accused/respondent No.3 who was very sharp and cunning minded person who maneuvered and changed the original text of the cancellation of agreement, but the learned trial Court totally ignored this aspect of the matter depriving the appellant from huge amount; that the impugned judgment is against the law and facts and based upon surmises and conjectures.

5. I have heard the learned counsel for the appellant and have also gone through the impugned judgment as well as documents appended with this appeal.

6. To prove the guilt of accused, the complainant/appellant himself appeared as P.W.1. Sajid Mehmood S.I. appeared as P.W.2, Shaukat Ali, Assistant Director FIA as P.W.3 and Afzal Hussain 4628/C as P.W.4. It appears that there is no independent eye-witness of the occurrence. The appellant failed to point out in the F.I.R. as well as in his evidence when he appeared in the witness box as P.W.1 that on what date and time he handed over the amount to the accused. It is also not clear that in whose presence the appellant handed over the amount to the accused persons. If the appellant had paid such huge amount, it was his duty to pay the same in presence of witnesses. The appellant in his cross-examination clearly admitted that he put his thumb-impression on the back of stamp paper of cancellation of agreement which was tendered in evidence as Exh.PB. The learned trial Court rightly came to the conclusion that since the complainant had exonerated the accused Agha Nasir Ali and the remaining evidence was not sufficient to prove the guilt of accused Agha Nasir Ali and it was also not proved that the complainant had entrusted any amount to accused Noor Muhammad as trust.

7. Undoubtedly, it is the basic and prime duty of the prosecution to prove its case against the accused persons by producing cogent, relevant, strong, convincing, unimpeachable, trustworthy and confidence-inspiring evidence to prove the charge. At the same time, the benefit of doubt if any always go to the accused persons. The learned trial Court after discussing the entire evidence rightly acquitted the accused.

8. In view of above, I am not inclined to give any weight to the statements of the witnesses. The prosecution has failed to prove its case beyond any shadow of reasonable doubt and the learned trial Judge has rightly acquitted the accused persons giving them benefit of doubt.

9. Now adverting to legal aspect of the case, it is settled law that when an accused is acquitted from a case after regular trial, he enjoys double presumption of innocence. In cases of acquittal, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice. There is quite difference between appraisement of evidence in the appeal against conviction, and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is to be made strictly and in the appeal against acquittal the said method of appraisement is not to be applied as there is already findings of acquittal recorded by the Court of competent jurisdiction after proper analysis of evidence made or done according to law. In the appeal of acquittal, interference is warranted only when it appears that there has been gross misreading or non-reading of evidence which amounts to miscarriage of justice.

10. In the case in hand, learned counsel for the appellant has miserably failed to point out that the conclusion drawn by the learned trial Court after appreciating the evidence on record is shocking, alarming, artificial and suffering from error of jurisdiction, legal or factual error, or any particular or specific misreading and non-reading of evidence, Rather, the impugned judgment is based on detailed appreciation of prosecution evidence, convincing and plausible reasons for acquittal of the accused persons.

11. For what has been discussed above, I find no justification to summon the respondents in this appeal. Consequently, appeal in hand being devoid of merits is dismissed in limine. C.M. No.1-A of 2012

12. This application has been filed for special leave to appeal. It appears that this application has been filed inadvertently as the instant appeal has arisen out of the F.I.R. and not private complaint, therefore, there was no need to file the instant application, hence the same is disposed of accordingly. MWA/135/ISL. Appeal dismissed.