SYED MUHAMMAD FAROOQ SHAH, J.----Two different appeals bearing No.23/2002 and Appeal No.4/2003, one by the State, through Advocate General Sindh, and the other through District Agricultural Supply Officer SASO of Sukkur region are preferred against acquittal judgment dated 12.8.2002, passed by the learned Special Judge Anti-Corruption, Sukkur in Special case N9.60/1993, arising out of Crime No.91/1988, under sections 409, 420, 465, 468 and 471, P.P.C. Read with section 5(2) Act-II of 1947, with a common prayer to set aside the impugned judgment and to convict the accused/respondent Illahi Bux Ansari.
2. Relevant facts leading to the case in hand are that on 11.12.1988 Hafiz Muhammad Chuttal Lakhan Circle Officer ACE, Sukkur registered an FIR on behalf of State, wherein he has stated that DASO, SASO, Sukkur reported that accused official Illahi Bux was posted as Storekeeper of Sale point of SASO Department Sukkur since 26.12.1987 as well as Storekeeper of Bluk Depot Sukkur. During Handing over and Taking over the charge of Bluk Depot Sukkur, accused/respondent was absconding on 16.08.1987. When Sale Point was un-sealed under the supervision of Assistant Mukhtiarkar and IInd Class Magistrate and charge was handed over to Asghar Ali, during the counting of stocks 18 Bags of Urea (Old), 20 Bags of DAP (old) and 13 Bags of NP: 23 x 23 (old) worth Rs.7,461-00 were found short besides fertilizer i.e., DAP (Old), Urea (Old) NP:23X23 (Old), SSP (Old) and NP: 23x23x21 (old) were found underweight to the tune of Rs.21,089.64. Thus, the accused committed mis-appropriation of fertilizer worth Rs.28,550.64 by making false and forged documents. After registration of above FIR investigation was carried out and charge sheet against the accused was submitted on 16.09.1993.
3. The prosecution in order to prove its case examined 4 witnesses namely P.W.1 Gordandas Assistant Director, SASO, Fertilizer, who produced certain documents, P.W.-2 Account Clerk Ghulam Sarwar P.W-3 Qaisar Mahar, and P.W-4 Hafiz Muhammad Chuttal complainant/I.O. In his statement under section 342, Cr.P.C. The accused exhibited the documents regarding handing over and taking over charge on 22.10.1988. After affording the opportunity of hearing to both the parties, the trial Judge pronounced acquittal judgment which has been impugned through the instant appeals.
4. Learned Prosecutor representing the State, submits that the evidence given by prosecution witness have not been considered by the trial Judge which is liable to be set aside. It is further submitted that respondent/accused Illahi Bux has caused loss to government by misappropriating the stock.
5. Conversely, the respondent/accused Illahi Bux submits that he is suffering the agony of lengthy trial since years together, more particularly, two different appeals have preferred against his acquittal just to cause him harassment and being an old person of 74 years he is entitled for acquittal. He has supported the impugned judgment and submits that he has not committed any offence. He further submits that whatever stocks were received by him were already short and damaged and old one which shows that he has not committed any mis-appropriation. The entry of 'charge fard' dated 26.12.1987 shows that 52 bags of Urea were old stock and damaged, DAP six bags were under weight, received from Panoakil, 08 kilogram was short vide convoy Note No.025721 dated 11.8.1982, 30 bags of DAP were damaged, NP 23 x 23, 265, NP 23 x 23 of bags of being old stock and NP 24 x 24 being old stock not saleable 10 bags SSP old and damaged not Saleable, WSB, silver old stock in shape of powder. This entry depicts that the respondent/accused has not committed any misappropriation. The respondent/accused Illahi Bux at the time of recording his statement under section 342, Cr.P.C. Produced copy of scrutiny memo. In case Crime No.91/1988 of ACE Sukkur, para 8 of which is reproduced for the sake of convenience:- "In view of the above facts and circumstances I am of the opinion that there is absolutely no case against alleged store keeper Illahi Bux Ansari and the matter may be referred to the department concerned for necessary action at their own end."
6. Hand written endorsement of one P.D.S.P dated 18.9.1990 reflects that said P.D.S.P has advised and suggested necessary action at their own end as already suggested by Mr. Noor Muhammad Solangi. Suffice it to say that the aforementioned summary memo. Of ACE Nawabshah (Ex.-9/A) available in R & Ps shows that the respondent/accused has produced handing and Taking over charge on 22.10.1988 and there is sufficient documentary evidence available on record, shows that prosecution has miserably failed to prove its case against the respondent/accused beyond any shadow of reasonable doubt. It is well settled principle of law that burden to prove the case lies upon the prosecution, even if no defence pleas taken by the accused. However, in the instant case the respondent/accused has produced sufficient documentary evidence which shows that he was exonerated from the commission of alleged offence.
7. The extra ordinary remedy of an appeal against an acquittal is quite different from an appeal preferred against the findings of conviction and sentence. Obviously, the appellate jurisdiction under section 417, Cr.P.C. Can be exercised by this Court if gross injustice has been done in the administration of criminal justice, more particularly, where findings given by the trial Court are perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by trial court are wholly artificial. Scope of appeal against acquittal of accused is considerably limited, because presumption of double innocence of the accused is attached to the order of acquittal as held in 2002 SCM R 713.
8. Order of acquittal passed by the trial court is based on correct appreciation of evidence, would not warrant interference in appeal. It is settled law that the accused earns double presumption of innocence with the acquittal; First, initially that till found guilty he has to be considered innocent; and second, that after his acquittal by trial court, further confirmed the presumption of innocence as held in 2012 PCr.LJ 1699 (FSC), 2013 YLR 223, 2011 PCr.LJ 1234. In 2013 PCr.LJ 374, it was held that appellate court would not interfere, unless misreading of evidence, violation of legal provisions, jurisdictional defect and acquittal order on face of it being contrary was established. In 2013 PCr.LJ 345 and PLJ 2009 FSC 284, the principles for the appreciation of appeal against acquittal are held to be (i) misreading of evidence, (ii) lack of consideration of material evidence, (iii) reception of evidence illegally, (iv) violation of legal provisions, (v) jurisdictional defect, (vi) reliance placed on matters extraneous to the record, (vii) material witnesses for the prosecution were not recorded,
(viii) the acquittal order on the face of it is contradictory, (ix) the order of acquittal was passed without hearing the prosecution, (x) acquittal is based upon reasons which do not appeal to reasonable mind (xi) that there are gross mis-statement appearing in the judgment under review.
9. It shall be advantageous to mention here that the appellate court by exercising its powers under section 417, Cr.P.C. Could interfere only if the order of acquittal is based on misreading, non- appraisal of evidence or/was speculative, artificial, arbitrary and foolish as held in 2008 M LD 1007.
In 2002 M LD 293 and 2000 YLR 190, the dicta laid down is that the order of acquittal passed by the trial court being balanced and well reasoned, would hardly call for interference of the High Court in appeal and similarly High Court should not disturb acquittal if main grounds on which trial court had based its acquittal order are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished.
For the foregoing reasons I reached at the irresistible conclusion that the prosecution has miserably failed to prove any case against respondent No.2, therefore, the impugned judgment delivered by the learned Special Judge A.C.E Sukkur in Special Case No.60/1993 does not suffer any illegality, gross irregularity or infirmity hence maintained. Resultantly, both Cr. Acquittal Appeals are dismissed.