AFTAB AHMED GORAR, J.---The appellant being dissatisfied with the acquittal order dated 21.12.201 1, recorde d under Section 265-H(i), Cr.P.C. in favour of respondent No.1 by the learned IVth Additional Sessions Judge Karachi East in Sessions Case No. 455 of 2011 arising out of FIR No. 02/201 1 under section 320, P.P.C. registered with Police Station Ferozabad, Karachi, has approached this Court by filing titled appeal under Section 417(2), Cr.P.C. with a prayer to set aside the impugned judgment and convict the accused/Respondent No. 1.
2. Learned counsel for the appellant while reiterating the facts and grounds mentioned in the memo of instant appeal, argued that the learned Judge while passing the impugned judgment did not go through the evidence and material available on record and acquitted the respondent No.1 without applying his judicial mind, therefore, same may be set aside and respondent No. 2 may be convicted.
3. Conversely , learned counsel for the respondent No.1 while supporting the impugned judgment, submitted that the impugned judgment is well- reasoned and speaking one and there is hardly any improbability or infirmity in the impugned judgment and it does not warrant any interference by this Court as the trial Court in its reasons has thoroughly thrashed the evidence of prosecution side and then reached at the conclusion that the prosecution has miserably failed to prove the charge against the respondents beyond the reasonable shadow of doubt. To support his contentions Mr. Rizvi placed reliance upon the cases of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315 ), Muhammad Fazil v. Bashir Ahmed and another (2009 SCMR 1382 ) and the case of Mst. Anwar Begum v.
Akhtar Hussain "Kaka" and 2 others (2017 SCMR 1710 ).
4. Learned Additional Prosecutor General Sindh while adopting the arguments of learned counsel for respondent.
No.1 submitted that the impugned order is speaking one and has been passed after examining the entire record/evidence.
5. I have heard the learned counsel for the parties and perused the record.
6. Perusal of the impugned judgment reveals that after examining the entire evidence, the benefit of doubt has been extended to the accused/ respondent No.1 by observing that the complainant and his witnesses have nowhere deposed that due to rash and negligent driving on the part of accused an accident had taken place and since there is no any direct evidence of rash and negligent driving on the part of accused therefore the prosecution has failed to establish its case against the accused. The perusal of evidence available on record shows that there is no any authentic oral as well as documentary evidence produced by the prosecution to connect the accused with the commission of this offence and in the end the trial court held that the evidence brought on record suffers from material deficiencies, procedural lapses and lack of corroboration amongst the PWs lacking material connection to prove actus rea and mens rea of the present accused and extended benefit of doubt. I have also carefully perused the record of the case with the able assistance of counsel for the parties and have no hesitation to observe that impugned judgment is speaking one and elaborate which does not suffer from any illegality , gross irregularity , infirmity , hence does not require any interference by this Court. It is settled that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345 ), Muhammad Saeed v. The State (2008 PCr.LJ 1752) and Ghulam Murtaza v . The State (2010 PCr .LJ 461) .
7. It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the later case . Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non- appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such do order . While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereb y accused were exonerated from the commission of crime as held by the apex Court in the case of Muhammad ljaz Ahmad v. Fahim Afzal (1998 SCMR 1281 ) and Jehangir v.
Aminullah and others (2010 SCMR 491). It is also settled principle of law as held in plethora of case law that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
8. Suffice is to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons does not warrant any interference by this Court. The appellant has miserably failed to establish extra-ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial court may be interfered with by this court. The case law cited by the counsel for the appellant are distinguished to facts and circumstances of the present case.
9. Trial Court has assigned sound reasons for acquittal of respondent Ghulam Shabbir . View taken by the trial Court is a possible view, structured in evidence available on record and as such not open to any legitimate exception. It is by now well settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility , resulting into miscarriage of justice, freedom cannot be recalled. Reliance in this respect is placed upon the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315 ) wherein it is held as follows "2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses' presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to Messrs Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however , given up by the complaina nt. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility , resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed."
9. Under these circumstances, I am of the considered opinion that prosecution has failed to prove guilt of the respondents, as such the trial Court had no option but to acquit the private respondent No.1 of the charge. The trial Court after proper appraisal of material available on record and attending all the legal as well as factual aspects of the case passed a very exhaustive and well-reasoned judgment. Learned couns el for the appellant/complainant has not been able to point out any illegality or irregularity , misreading and non-read ing or serious flaw or infirmity in the impugned judgment warranting interference by this Court. This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings. Consequently , the instant Criminal Acquittal Appeal is dismissed.