Ramesh Kumar vs The State and another

ORDER

AFTAB ARMED, GORAR, J .---Heard arguments and perused the record.

2. Perusal of the record reflects that appellant being dissatisfied with, the acquittal order recorded under section 265-K, Cr.P.C. in favour of respondent N6.2 passed by the learned IXth Additional Sessions Judge, Karachi-South in Direct Complaint No. 1087 of 2016 has approached this Court by filing titled appeal under section 417, Cr.P.C. with a prayer to set-aside the impugned order dated 18.05.2019 and convict the respondent as well.

3. 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. 2 without applying his judicial mind, therefore, same may be set aside and respondent No.2 may be convicted. To support his contentions learned counsel for the appellant has relied upon the cases of Muhammad Abdul Rauf Siddiqui v. Station House Officer Police Station Gulberg Karachi and others (2013 PCr.LJ 70) and The State and others v. Abdul Khali, and others (PLD 2011 SC 554 ).

4. Conversely , learned counsel for respondent No.2 while supporting the impugned order , submitted that the impugned order is well-reasoned and speaking one and there is hardly any improbability or infirmity in it, which does not warrant any interference by this. Court as the trial Court in its reason s, 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 respondent No.2. Learned Additional Prosecutor General Sindh while supporting the impugned order adopted the arguments of learned counsel for respondent No.2.

5. The purpose of provisions of section 265-K, Cr.P.C. is very much clear and it never prevents a court from acquitting an accused at any stage of the case; if, after hearing the prosecutio n and the accused and for the reasons to be recorded, the court considers that there is no probability of the accused being convicted of the offence alleged against them. There is no legal embargo for exercising of powers conferred under this section, but even then the Court cannot deprive the prosecution by giving an opportunity to produce tangible evidence under the garb of section 265-K, Cr.P.C., therefore, it is mandatory for the Court that such discretion must be based on reasons exercised with due care and caution with sole object to prevent fruitless trial when it is apparent from the record that there is no probability of the accused being convicted of the offence. The provisions of section 265-K, Cr.P.C. is reproduced herein: -- 265-K Cr . P. C.

Power of Court to acquit accused at any stage: "Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, if considers that there is no probability of the accused being convicted of any offence."

6. The perusal of the provision clearly indicates that the power vested under section 265-K, Cr.P.C. can be exercised by the learned trial court at any stage of the trial. The language "Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case" adequately conveys the underlying object of the provision that there exists no impe diment on the way of trial court in exercise of its powers for acquitting accused at any stage, subject to certain pre-requisites, i.e.

(i) after hearing the Prosecutor and the accused both,

(ii) the reasons must be recorded for acquitting the accused,

(iii) the trial court shall exercise its power s' only if it comes to the conclusion that there exists no probability of the accused being convict of any of fence.

(iv) Moving of formal application by the accused is not necessarily envisaged.

CO The court can exercise its power on its own motion.

7. Keeping in view the provision of section 265-K, Cr.P.C. in verbatim, I may add one thing that the law has vested a trial court with wide power , enablins it to see through the wall on its other end. It may be observed here that in view of plethora of pending cases, instead of allowing the complainant/ prosecution to produce weak, deficient, and inadmissible proposed evidence in the trial, it is high time for the trial courts to exercise such vast power vested therewith, to save precious public time, for conducting other meaning-full proceedings in some other matters pending in the courts objectively .

8. The trial court in its order impugned herein has observed that it appears that the news published in newspapers were circulated at Larkana and Shandadkot and the private complaint was filed at Karachi as such question of jurisdiction arisen. Perusal of impugned order further reveals that after examining the entire material, the trial court observed that there would be no probability of conviction of respondent No.2/ accused in near future and acquitted the accused Ramesh Lal son of B Madan Lai from the charge under section 265-K, Cr.P.C. The appellant has miserably failed to establish extra ordinary reasons and circumstances, whereby the acquittal order recorded by the trial court may be interfered with by this court.

9. 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 an 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.

10. 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. This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of doubt innocence, which is attached to such proceedings.

11. In view of the above discussion I find no merit in this Criminal Acquittal Appeal which is dismissed.