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