IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 169 of 2018

 

 

           

Appellant/Complainant :      Mumtaz Hussain Memon through

Mr. Nusrat Hussain Memon, Advocate

 

Respondent                    :       The State through Mr. Aftab Ahmed

                                                Shar, Additional Prosecutor General      

                                                           

                                                           

Date of hearing              :       18.02.2019          

Date of decision             :       18.02.2019                             

 

JUDGMENT

 

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 01.11.2018, passed by learned 3rd Civil Judge and Judicial Magistrate Sukkur,  whereby the private respondent has been acquitted of the offence, for which he was charged. 

2.                 The facts in brief necessary for disposal of instant criminal acquittal appeal as per FIR are that the private respondent was employed by the appellant/complainant in his house there from he allegedly committed theft of a briefcase containing certain articles of the appellant/complainant for that he was reported upon by the police to face trial for the above said offence.

3.                 At trial, the private respondent did not plead guilty to charge and the prosecution to prove it, examined appellant/complainant and his witnesses and then closed the side.

4.                 The private respondent during course of his examination recorded u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence. He did not examine any one in his defence or himself on oath in disproof of the prosecution allegation.

5.                 On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondent of the offence for which he was charged by way of impugned judgment, as stated above.

6.                 It is contended by learned counsel of the appellant/complainant that the prosecution has been able to prove its case against the private respondent beyond shadow of doubt by producing cogent evidence which has not been considered by learned trial Court without lawful justification. By contending so, he sought for adequate action against the private respondent.

7.                 Learned Additional P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal acquittal appeal.

8.                I have considered the above arguments and perused the record.

9.                As per FIR, the appellant/complainant found his briefcase containing his valuable articles missing and he then suspected the private respondent to be responsible for its theft. If it is believed to be so, then none has seen the private respondent committing the alleged theft of briefcase. The FIR of the incident has been lodged by the appellant/complainant with unexplained delay of about two days; it is reflecting consultation and deliberation. The private respondent as per Medical Officer Dr. Muhammad Faisal was found to be shemale (Khadro). He as per appellant/complainant was hired as female servant, which appears to be strange. As per SIO/SIP Khalil Ahmed the private respondent was arrested by him from Arain Railway crossing and on arrest from him was secured certain stolen articles under mashirnama of arrest and recovery. PW/mashir Abdul Hakeem came with different version according to him private respondent was found to have been arrested by police prior to his presence (availability) and memo of arrest and recovery was prepared by the police at police station. By stating so, PW mashir Abdul Hakeem has made the recovery of stolen articles allegedly from the private respondent to be doubtful. Mst. Rasheeda who happened to be wife of appellant/complainant is appearing to be star witness of the incident, but has not been examined by the prosecution without lawful justification. In these circumstances, learned trial Court was right to record acquittal of the private respondent by extending him benefit of doubt, such acquittal is not appearing to be arbitrary or cursory to be interfered by this Court.

10.              In case of State & ors vs. Abdul Khaliq & ors (PLD 2011 SC-554), it has been held by the Hon’ble Apex Court 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. 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. Judgment of acquittal 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”.

 

   

 

11.              In view of above, the instant Criminal Acquittal Appeal fails and is dismissed accordingly.

                                                                                Judge

 

ARBROHI