KHADIM HUSSAIN M. SHAIKH, J. Through the captioned criminal acquittal appeal, appellant Shams-ur-Rehman son of Firdous Khan, has called in question judgment dated 06.02.2019, passed by the learned VIIIth Judicial Magistrate Malir, Karachi in Criminal Case No.68 of 2018, re-The State v. Muhammad Saeed and another, emanating from FIR No.113 of 2018 for offence under sections 380 and 34, P.P.C. registered at Police Station Malir City, Karachi, whereby respondent No.1 Mst.
Nazeer Gul and respondent No.2 Saeed Khan ["the respondents"] have been acquitted of the charge.
2. Briefly, the facts of the case are that complainant Shams-ur-Rehman ["the appellant"] had lodged his FIR No.113 of 2018 on 08.05.2018 at Police Station Malir City for offence under sections 380 and 34, P.P.C: complaining therein that on 05.05.2018 between 1240 to 1250 hours, when the complainant came for hearing of the case in Court of VIth Judicial Magistrate Malir carrying his bag which contained cash of Rs.50,000/-, original documents of his car Registration No.BC-2396, maker Potohar, Model 1991, his and his wife's original passports, five files of cases, his original driving license, one sunglass and other documents. The appellant allegedly, leaving the above bag outside the Court, went in the Court for hearing purpose, but due to strike the hearing of the case was adjourned. At about 1250 hours, when he came out, he found his bag missing to which he moved an application to the VIth Judicial Magistrate Malir. Then the appellant ultimately lodged the subject FIR at Police Station Malir City, Karachi. After usual investigation, the final report under section 173, Cr.P.C., was submitted, whereupon the learned trial Court took cognizance.
3. After completing the formalities a formal charge was framed against the respondents, to which they pleaded not guilty' and claimed their trial. To prove its case, the prosecution examined in all four P.Ws including the appellant and then closed its side. Then the statements under section 342, Cr.P.C. of the respondents were recorded, wherein they denying the prosecution allegations pleaded their innocence and false implication on account of their recorded enmity with the appellant. They neither examined themselves on oath nor did they examine any person as their defence witness. At the conclusion of trial, on evaluation of the evidence and hearing the learned counsel for the parties, the learned trial Court recorded acquittal of the respondents of the charge by way of impugned acquittal judgment dated 06.02.2019 as discussed in paragraph-1 [supra] Having felt aggrieved by the said acquittal judgment, the appellant has preferred this appeal.
4. The learned counsel for the appellant has mainly contended that the learned trial Court has recorded acquittal of the respondents on the basis of improper appreciation of evidence; and, that the prosecution had been able to prove its case against the respondents beyond a shadow of doubt by adducing evidence of four P.Ws and producing documentary evidence. The learned counsel prays that this criminal acquittal appeal May be allowed and respondents may be convicted.
5. The learned advocate for the respondents has mainly contended that there is recorded enmity between the appellant and the respondents, respondent No.1 Mst. Nazeer Gul, is sister-in-law of the appellant being real sister of his wife and whereas respondent No.2 Saeed Khan is husband of respondent No.1 Mst. Nazeer Gul; that the parties are already tagged in civil litigation and such cases are pending before the Courts of competent jurisdiction; that the learned trial Court after appreciating the evidence brought on the record has acquitted the respondents of the charge; and, that there is no illegality in the acquittal judgment passed by the learned trial Court.
6. The learned Additional Prosecutor General, supporting the impugned acquittal judgment, has also prayed for dismissal of the instant criminal acquittal appeal contending that the learned trial court after appreciating evidence brought on the record has passed the impugned acquittal judgment, which per learned Additional Prosecutor General does no suffer from any illegality.
7. I have considered the submissions of the learned counsel for the parties and have gone through the material brought on the record.
8. The principles for appreciation of evidence in appeal against the acquittal are now well settled, for, an accused is presumed to be innocent and if after trial, he is acquitted, he earns double presumption of innocence and acquittal judgment or order normally does not call for any interference unless it is found arbitrary, capricious, fanciful, artificial, shocking and ridiculous and while evaluating the evidence, difference is to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference is to be made only when there is none reading and gross mis-reading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision can be given except that the accused is guilty. Reliance in this context is placed on the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96). The Hon'be Apex Court of Pakistan has observed that: "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".
In the case of Muhammad Shaft v. Muhammad Raw and another (2008 SCMR 329), the Hon'ble Supreme Court of Pakistan has held that: "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant inteference. The petition having no merit is dismissed and leave is refused."
In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sbbharo (1993 SCMR 585), the Horeble Supreme Court of Pakistan has held that: "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."
In the case of Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549), the Hon'ble Supreme Court has held that: "It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others, 2003 SCMR 477 "that the law relating to re-appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence js double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non-reading of evidence ...... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."
In the case of State and others v. Abdul Khaliq and others (PLD 2011 SC 554), Hon'ble Supreme Court has held that:- "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 shown 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. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory of wholly artificial or a shocking conclusion has been drawn. Moreover, in a number of dictums of this Court, it has been categorically laid down that such judgment 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".
9. From a perusal of the record, it would be seen that none had seen the respondents committing the alleged theft of bag of the appellant; the parties, who are related in that respondent No.1 Mst.
Nazeer Gul is admittedly sister-in-law of the appellant being real sister of his wife and whereas respondent No.2 Saeed Khan is husband of respondent No.1 Mst. Nazeer Gul, are already tagged in litigation and such cases between them are admittedly pending in various Courts; the incident was shown to have taken place on 05.05.2018 between 1240 hours to 1250 hours and whereas the FIR was lodged on 08.05.2018 at 1120 hours i.e. after three days without plausible explanation thereof, which in the wake of previous hostility between the parties being fatal to the prosecution case could not be ignored; the incident was shown to have taken place in the Court premises of Vlth Judicial Magistrate Malir, but no independent person was cited as a witness; the appellant claimed to have seen the respondents in CCTV recording, but CCTV recording was not collected during the evidence as was admitted by the Investigating Officer in his evidence by stating that he had not issued any memo of receiving CCTV recording nor was it seized on the spot; no date or time was mentioned in the memo of arrest of the respondents and seizure of the alleged bag nor any independent person was cited as a mashir from the locality; neither any one among the Court staff was examined by the prosecution nor was even the statement under section 161, Cr.P.C. of any of the staff member of the Court was recorded; Apart from the above material discrepancies and infirmities in the prosecution case, rendering it doubtful, there are many other material contradictions, infirmities, dishonest improvements and admissions of the PWs made during the trial, which need not to be discussed here just to save the time and space. Under these circumstances, I am of the considered view that the learned trial Court was right in acquitting the respondents, extending them benefit of doubt on failure of the prosecution to prove its case against them beyond the reasonable doubt. It is reiterated that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. A perusal of the impugned acquittal judgment would reveal that the same is apt to the facts and circumstances of the case, which suffering from no illegality or any infirmity and/or misreading or non-reading of the evidence, does not call for any interference. The learned counsel for the appellant has also not been able to point out any illegality or misreading or non-reading of the evidence, committed by the learned trial Court, while passing the impugned acquittal judgment. These are the reasons of short order announced by me on 19.08.2020, whereby the instant criminal acquittal appeal was dismissed.