SYED MUHAMMAD FAROOQ SHAH, J.---By invoking the jurisdiction of this court under section 417(1), Cr.P.C., the appellant/Complainant Abdul Rasheed has directed the captioned appeal against judgment of acquittal pronounced by the learned VIth Additional Sessions Judge, larkana on 31.10.2017, whereby the accused/Respondents were acquitted. Case against absconding accused Amanullah alias Comrade was kept on dormant file till his arrest and produced before the Court or otherwise.
2. Prosecution story in nutshell is that on 12.02.2012 at 1500 hours, Complainant Abdul Rasheed Sheikh lodged FIR No. 20/ 2012 at Police Station Darri, District Larkana, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, narrating therein that on 25.01.2012, he was available at his house along with his brother Abdul Ghaffar and his son Farooq Rasheed. Both gates of his house were opened and electric bulbs were glowing, all of sudden seven accused persons entered into his house, whose faces were opened and they were identified as 1. Farhan Ali son of Liaquat Ali Memon,
2. Ghulam Rasool son of Muhammad Mashooq Gopang, 3.
Bhaigyo son of Ghulam Ryder Chandio,
4. Imtiaz Ali son of Habibullah Khuhawar, 5.Amanullah alias Comrade son of Ali Nawaz Panhwar,
6. Aijaz Ali son of Wazir Ali Memon and Fayyaz Hussain son of Muhammad Bux Bhutto, having pistols in their folds; snatched keys of cupboard on gun point, robbed
7. gold ornaments worth of Rs. 3309000/-, cash Rs. 18000/- and Q Mobile phone and then went away. Thereafter, the complainant went to his nekmard Tarique Nazir Sheikh, who was out of station. On his arrival, the complainant narrated the facts to him and on his advice lodged the FIR to the above facts on 12.02.2012.
3. On completion of usual investigation, conducted by the concerned police, the final report under Section 173, Cr.P.C., submitted before the concerned magistrate was duly accepted, wherein accused Farhan Ali, Aijaz Ali, Fayaz Hussain, Ghulam Rasool, Bhagyo and lmtiaz were shown in custody while name of the accused Amanullah alias Comrade appeared in column of charge sheet to be absconder and NBWs issued by the trial court against him could not be executed, as such, after completing all Codal formalities, he was declared proclaimed offender. Formal charge was framed against the accused/Respondents for an offence punishable under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance. 1979, to which accused pleaded not guilty and claimed to be tried.
4. To prove acquisition of charge, the prosecution examined all material witnesses and on closure of prosecution evidence, statements of the accused persons were recorded by the trial Court under Section 342, Cr.P.C., in which the accused persons professed their innocence. The trial Court, in a detail judgment, acquitted the accused/Respondents by extending them benefit of doubt.
5. We have considered worthy arguments advanced by learned Counsel for the parties at length and have also carefully perused the impugned judgment, beside other necessary material available on the record.
6. Mr. Zahid Hussain Chandio, learned advocate representing the appellant, at the very outset, contends that there is nothing on record to show that the complainant party had any motive to falsely implicate the accused/Respondents in the commission of offence nor the learned counsel representing the accused/ Respondents had put any single question regarding enmity in between the parties; more particularly, prosecution witnesses as well as eye-witnesses have fully supported the case of the prosecution. Next argued that minor contradictions in the prosecution case were not material for acquittal of the Respondents. Learned Counsel argued that the accused/ Respondents have neither challenged the investigation of the case nor put any question to the complainant as well as eye-witnesses in their defense. Learned Counsel further contended that recovery has been affected from all the Respondents/ accused persons, which is not disputed and that, the judgment pronounced by the learned trial Court is on the point of contradictions in between the PWs; more particularly, learned trial Court has miserably failed to correctly appreciate and evaluate the evidence available on record. Per learned Counsel, the evidence adduced at the trial was sufficient to warrant conviction and therefore, the conclusion of the trial judge for recording acquittal of Respondents/accused is erroneous and based on misreading of evidence.
To sum up his arguments, learned Counsel representing the appellant/complainant contended that the trial Court judgment suffered from glaring defects and infirmities, therefore, the impugned judgment recorded by the trial Court may be set-aside and Respondents/accused be convicted accordingly.
7. A perusal of record reflects that there is delay of 18 days in lodging of FIR and in this regard no plausible reason or sufficient cause has been furnished by the prosecution, hence lodgment of FIR after consultation and deliberation cannot be brushed aside. Eye-witnesses of the alleged occurrence are close relatives of the complainant as such they are interested, setup and hostile to the accused. Apparently there are major/material contradictions in the evidence of complainant and witnesses examined by the prosecution at the trial. Neither the acquittal is based on evidence leading to miscarriage of justice nor the impugned judgment is based upon surmises, suppositions and conjectures and the acquittal is result of reasons, which appeal to a prudent mind. It is settled principle of, law that extraordinary remedy of an appeal against acquittal is quite different from an appeal directed against the findings of conviction and sentences. The appellate jurisdiction under Section 417 Code of Criminal Procedure can be exercised by this Court if gross injustice has been done in the administration of criminal justice as the scope of appeal against acquittal is considerably limited because presumption of double innocence of the accused is attached to the acquittal.
8. On the other hand, Learned Deputy Prosecutor General, Sindh, present in Court, waived notice and has fully supported the impugned judgment of acquittal and argued that the impugned judgment does not suffer from any illegality, gross irregularity or infirmity; hence the learned trial Court has rightly acquitted the accused/Respondents.
9. To properly assess and evaluate the impugned judgment, it shall be advantageous to reproduce the penultimate paragraph of the impugned judgment as under:-- "I have given my anxious thoughts towards the submissions of the counsel for the parties and have carefully gone through the entire evidence adduced at the trial as well as material placed on record. Perusal of evidence reveals that there are major contradictions between the evidence of complainant and eye-witnesses as complainant Abdul Rasheed in his cross-examination stated that he as well as other family members including PWs had no introduction with the accused persons, while eye-witness Farooque Rasheed in his cross-examination stated that the accused persons belonging to Larkana City, therefore, he knew them and another eye-witness Abdul Ghafar in his cross-examination stated that accused persons were not known to him prior to this incident. Moreover, the complainant in his cross-examination stated that Chowkidar of their nemard informed about absence of nekmard while eye-witness Farooque Rasheed in his cross- examination stated that they went to office of nekmard where they enquired from the clerk about their nekmard. Furthermore the 1.0. Wazeer Ahmed Bhutto in his cross-examination admitted that the case property was not sealed by hint. Even otherwise robbed articles were not identified as provided under Article 22 of Qanun-e-Shahadat Order, 1984 and receipt of the gold ornaments submitted by the complainant in his evidence do not show the name of purchaser which is also admitted by the complainant in his cross-examination. It is also pertinent to mention here that apart front the aforesaid contradictions, there is also long delay in lodgment of FIR as the alleged incident is said to have taken place on 25.01.2012 while FIR was got register on 12.02.2012 after about the delay of 18 days and no satisfactory explanation has been furnished by the complainant for such a long delay as to why he got register the FIR with delay of 18 days. Reliance in this regard is placed on case law reported in 1995 SCMR 1345 and 2016 Cr.P.L.J page 231 wherein it was held that five hours delay in lodgment of FIR by offering explanation which is not convincing would be fatal for prosecution case. In these circumstances, I am of the considered view. that the prosecution has failed to prove the charge against the present accused beyond the shadow of reasonable doubt and benefit of doubt is always extended in favour of the accused. In this regard reliance is placed on case law reported in 2017 YLR page 204. 1, therefore. answer point under discussion as doubtful"
10. It is not out of context to mention that the allegations levelled in the FIR lodged by the complainant/appellant after consultation with good man (nek murd) after 18 days of the alleged occurrence could not be substantiated or established through evidence. Suffice it to say that the prosecution has miserably failed to establish the charge against the respondents/accused, therefore, the trial Court by passing a speaking and elaborate impugned judgment, recorded the acquittal of accused, which does not warrant any interference by this Court.
11. It is settled proposition of law that extraordinary 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 Code of Criminal Procedure can be exercised by this Court if gross injustice has been done in the administration of criminal justice, more particularly, wherein, findings given by 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. Order of acquittal passed by trial Court which is based on correct appreciation of evidence would not warrant interference in appeal. 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. Suffice is to say that the order of acquittal passed by the trial Court being balanced and well-reasoned, would hardly call for interference of the appellate Court in appeal and similarly this Court cannot 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. Moreso, the learned trial court has rightly extended benefit of doubt, in peculiar facts and circumstances of the case in favour of the accused as it is settled principle of law that a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused; entitle him to such benefit not as a matter of grace but as a matter of right; more particularly conviction cannot be based on high probabilities and suspicion cannot take the place of proof, therefore, the acquittal recorded by the learned trial, Court after proper appraisal of evidence is in accordance with law.
12. Whatever mentioned above, we reached at the irresistible conclusion that the learned trial court after thrashing grain from chaff has correctly reached at the conclusion that the prosecution has failed to bring home the charge against the Respondents beyond reasonable doubt and the defense succeeded to create serious doubt and dents in the prosecution case; thus the trial court rightly acquitted the Respondents of the charge. Suffice it to say that no case of interference in the impugned judgment is made out. We therefore, keeping in mind consistent view of the Superior Courts reached at the irresistible conclusion that the instant appeal against the impugned judgment is having no merits for consideration is hereby dismissed in limine.