ARIF ALI SHAH Versus MUHAMMAD TARIQ
ORDER
AFTAB AHMED GORAR, J.--- The appellant being dissatisfied with the acquittal judgment dated 26.07.2017, recorded under section 265-H(i), Cr.P.C. in favour of respondents 1 to 3 by the learned XIIth Assistant Sessions Judge Karachi West in Sessions Case No. 1335 of 2016 arising out of FIR No. 267/2016 under sections 337-A(i)/ 337-F(i)/337-L(2) and 324, P.P.C. registered with Police Station Peerabad, Karachi, has approached this Court, by filing titled appeal under section 417, Cr.P.C. read with section 561-A, Cr.P.C. with a prayer to set aside the impugned judgment and convict the accused/ Respondents 1 to 3.
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 respondents 1 to 3 without applying his judicial mind, therefore, same may be set aside and respondents 1 to 3 may be convicted. He argued that the respondents with active role trying to usurp the money of complainant and harassing the complainant. To support his contentions he has relied upon the case of Khalil Ahmed Soomro and others v. The State (PLD 2017 SC 730).
3. Conversely, learned counsel for the respondents 1 to 3 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.
4. Learned Additional Prosecutor General, Sindh while adopting the arguments of learned counsel for respondents 1 to 3 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 record shows that there is admitted enmity between the parties over money transaction and in this background possibility cannot be ruled out that the case is outcome of that enmity, which creates serious doubt, therefore, the trial court after examining the entire evidence had come to the conclusion that prosecution has miserably failed to prove the charge against accused beyond any reasonable shadow 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), 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 an order. While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of Muhammad Ijaz 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 judgment of the trial Court does not appear to be speculative or perverse. Moreover, the scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of the innocence is significantly added to the cordinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty. In other words, the presumption of innocence is doubled as held by the Honourable Supreme Court of Pakistan in the case of The State v. Abdul Khalique and others PLD 2011 SC 554. The relevant para is reproduced hereunder:-
"16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas, of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:
Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul -Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat Ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175). Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).
From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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 or wholly artificial or a shocking conclusion has been drawn. Moreover, in 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 (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals."
9. For the above stated circumstances, the findings recorded by the trial court that the prosecution has miserably failed to prove the guilt of accused beyond any reasonable shadow of doubt is neither perverse, arbitrary nor speculative. As such, there is no merit in the appeal against acquittal. Acquittal recorded by trial Court in favour of respondents 1 to 3 is based upon sound reasons, which require no interference at all. 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. This is a Criminal Acquittal Appeal and I cannot lose sight of the doctrine of double innocence, which is attached to such proceedings.
10. After hearing the learned counsel for the parties, by a short order dated 02.03.2020 instant appeal was dismissed. Above are the reasons for the said short order.
JK/A-67/Sindh Appeal dismissed.