THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.423 of 2016

Appellant                   :           Syed Ghayas Javed

                                                Through Mr. Malik Khushhal Khan, advocate

Respondent No.1      :          The State through Mr. Sagheer Abbasi, APG

Respondents No.2    :           None present for Shakir Mehmood

Respondent No.3      :          Judicial Magistrate-XI, Karachi South

Date of hearing         :           03.4.2018

Date of Judgment     :           03.4.2018

JUDGMENT

Abdul Maalik Gaddi, J. Through this Cr. Acquittal Appeal, the appellant has assailed the legality and propriety of the Order dated 10.11.2016 passed by the learned XIth Civil Judge & Judicial Magistrate, Karachi (South) in Cr. Case No.4271/2016 re. State vs. Shakir, arising out of FIR No.99/2016 registered under Section 39 of Electricity Act of PS KESC, whereby the learned trial Court while exercising the power under Section 249-A CrPC acquitted the accused by giving him benefit of doubt.

2. Brief facts of the case as per FIR are that on 13.7.2016 the complainant alongwith A/M Syed Zahid Ali, MIO Akhtar Ali, LMO Muhammad Kamran were busy in checking of theft of electricity committed by the owner of the IGLOO Ice Cream situated at Hazara Colony Karachi where one Shakir son of Lal Bakhsh were met with the complainant party and the complainant party served notice upon the owner of Igloo Ice Cream for checking the electricity, the complainant found that the owner of the said Igloo Ice Cream had used the electricity by plugging PCV wire from Main Electric Supply Phase and Neutral wires, it was found that the said owner has used 22.5 load of electricity in shape of theft of electricity, such pictures were captured at the spot and prepared site inspection report and with the help of staff, and such electricity was disconnected and electricity wires were recovered from the spot. Hence the complainant lodged such FIR at PS KESC.

3.       A formal charge under the said Section was framed against the accused as Exh.02, to which he pleaded not guilty and claimed to be tried.

4.       In order to prove the case, PW-1 complainant Ghayasuddin examined as Exh.4. PW-2 S. Zahid Ali examined as Exh.5. Both were cross-examined by learned counsel for the accused.

5. It reveals from the record that this Cr. Acquittal Appeal was filed on 02.12.2016 and repeatedly notices were issued against the respondent No.2 through SHO PS KESC Karachi, who vide diary dated 28.11.2017 intimated to this Court that accused was a tenant in the premises in-question and left his premises to his native village at Kohat. Under these circumstances, learned counsel for appellant was directed to assist this Court on merit of the case, as such he has been heard.

6. It is argued by learned counsel for appellant that the order passed by the learned trial Court is perverse and the reasons are artificial vis-à-vis the evidence on record, that the ground on which the trial Court proceeded to acquit the respondent No.2 are not supportable from the documents and evidence on record. He further submitted that from the bare reading of FIR, it appears that the accused had running IGLOO Ice Cream store near survey No.1505/ Hazara Colony, no electricity was supplied to the said property but the same was continuously available with illegal connection, this fact has not been considered by the trial Court and without recording evidence of all prosecution witnesses, passed impugned order dated 10.11.2016 whereby the respondent No.2 has been acquitted under Section 249-A CrPC. According to him impugned order is not speaking and no cogent justification has been mentioned in the order for acquittal. During the course of arguments, learned counsel for appellant has also reiterated the same facts and grounds which are mentioned in the memo of appeal.

7. Learned APG has not supported the impugned order and adopted the arguments of learned counsel for appellant.

8. I have given my anxious thoughts to the contentions raised at the bar and have gone through the documents and evidence so made available before me.

9. It appears from the record that FIR has been registered by complainant Syed Ghayas Javed Rizvi, Manager K-Electric, who admitted in his evidence that at the time of raid by the officials of K-Electric, several other persons were present but it is surprising to note that not a single private person has been cited in this case to witness the event. The seizure memo has been prepared in presence of officials of K-Electric. Although it has been brought in evidence that at the time of alleged raid number of private persons were available but surprisingly their services were not obtained to show the transparency.

10. I have gone through the evidence of complainant who in cross-examination has admitted that he does not know the actual person who was committed theft of electricity. He also admitted in cross-examination that FIR was registered earlier and thereafter the memo of seizure was prepared. He also admitted in cross-examination that the case property was sealed at Police Station. After going through the evidence of complainant, it reveals that the learned trial Court has rightly passed the impugned order. Learned trial Court while passing the impugned order has also highlighted all the discrepancies/ infirmities in the case of the prosecution. During the course of arguments I have specifically asked the question from the learned counsel for appellant to point out/ show any illegality or infirmity in the impugned order but he did not reply satisfactorily. However, I myself with the assistance of parties’ counsel have gone through the impugned order which is neither perverse nor arbitrary. So far the appeal against acquittal is concerned after acquittal accused has acquired double presumption of innocence, this Court would interfere only if the judgment/ order was arbitrarily, capricious or against the record. But in this case, there are number of infirmities and impugned judgment of acquittal in my considered view did not suffer from any misreading and non-reading of the evidence. As regard to the consideration warranting the interference in appeal against acquittal and an appeal against conviction principle has been laid down by the Hon’ble Supreme Court in various judgments. In case of State/ Government of Sindh through Advocate General Sindh, Karachi versus Sobharo reported as 1993 SCMR 585, Hon’ble Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

“14.   We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that 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. Reference can be made to the case of Yar Muhammad and others v. the State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

11.  For what has been discussed above, I am of the considered view that impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Hon’ble Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, this Criminal Acquittal Appeal No.423/2016 is without merits and the same is dismissed.

JUDGE

asim/pa