(Criminal Appeal No. 31/2019 stand abated/fails).
The captioned appeal has been directed against the judgment dated 11.12.2018 passed by Additional Tehsil Criminal Court No. 1, Kotli, whereby, the said Court acquitted the accused- respondent from the charges.
2. Summarized facts of the case in hand are that vide F.I.R No. 53/2017 dated 24.2.2017, a case under Sections 3/4 and 14 of the Prohibition (Enforcement of Hadd) Act, 1985 was registered at Police Station City Kotli, against the accused/respondent, on the complaint of Ayaz Mumtaz ASI, Officer Chowki Sarsawa. After completion of investigation, respondent/accused was found guilty, therefore he was sent to face trial before the Additional Tehsil Criminal Court No. 1, Kotli. Accused/respondent was examined under Section 242, Cr.P.C. on 23.03.2017. He pleaded not guilty, whereupon, the prosecution was ordered to lead evidence in support of their version. The prosecution produced 08 witnesses and got recorded their statements before the trial Court. After completion of evidence of the prosecution, the accused-respondent was examined under Section 342, Cr.P.C., who once again pleaded not guilty and he recorded his statement on oath under Section 340(2), Cr.P.C. along with two other witnesses. The learned trial Court (Additional Tehsil Criminal Court, Kotli) after hearing arguments of the parties, vide impugned judgment dated 11.12.2018 acquitted the accused-respondent from the charges, hence, this acquittal appeal.
3. During pendency of appeal, the respondent initially remained present before the Court, however, later on he was absent before the Court, therefore, bailable warrant was issued against him, upon which process server/serving constable reported that the respondent was died on 08.12.2012. In this regard, the statement of brother of accused/respondent-Mazhar Hussain S/o Muhammad Shafi is part of file whereas statement of Constable Zulfiqar Ali IHC, Chowki Police Sarsawa has also been recorded before the Court. In such like situation, the appeal against the accused/respondent shall be abated. Under Section 431, Cr.P.C. every appeal under Section 411-A sub-section (2), or Section 417 shall finally abate on the death of the accused.
4. Furthermore, there was no probability of the conviction of the accused-respondent. The scrutiny of the record suggested that the learned trial Court arrived at right conclusion and did not commit any illegality while recording the acquittal order in favour of the acquitted/respondent. It is well settled law by now that in criminal cases every accused is innocent unless proven guilty and upon acquittal by the Court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such double presumption of innocence. Acquittal order recorded by the trial Court bases on cogent reasons and not perverse would not be interfered.
Appellate Court should not lightly interfere with judgment of acquittal unless it arrives at a definite conclusion that evidence has not been properly analyzed and the Court below acted on surmises and conjectures.
5. It is settled and trite proposition of law that prosecution is burdened with heavy responsibility to prove its case against accused without any shadow of doubt, if a single circumstance appears therein which creates doubt in the mind of prudent person its benefit is necessarily to be given to the accused not as a matter of grace but as a matter of right. My this view is supported by the case laws reported as (2023 P.Cr.LJ 331) "Abdul Majeed vs. State" and [2023 YLR 321] titled "Lal Bux vs. State".
6. Finding of acquittal 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 mis-reading or non-reading of evidence. This view finds support from 2009 SCMR 985.
7. Leaving aside the factual aspects qua propriety of the decision impugned as the accused/respondent has passed away, consequently after his death the criminal appeal has already stood abated by operative of law i.e. 431, Cr.P.C. which reads as infra:
431. Abatement of appeal.
Every appeal under 411-A sub-section (2) or Section 417, Cr.P.C. shall finally abate on the death of the accused, and every appeal under this chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Appeal fails as abated.
8. Corporal consequences of a conviction wither away with the death of the convict, however, financial liability or fine consequent upon conviction which shifts upon the estate of deceased and would certainly require the appellate Court to decide the appeal on its merit as in the event of its failure, the liability is to exacted from the assets devolving upon the legal heirs.[1]
9. No such like eventuality arises in the instant criminal lis. Decision impugned merits no interference, even otherwise, for dislodging the double presumption of innocence acquired by the accused there must be cogent grounds to attract the conscious of Court qua asking for its reversal.
(Underlining for emphasizes)
10. In light of what has been stated above, the impugned acquittal order of the trial Court dated 11.12.2018 is maintained and the appeal filed by the appellant/State is bereft of merit, Appeal fails as abated.
1. 2020 SCMR 359.