ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acquittal Appeal No. S –  171 of 2017

 

Date                                       Order with Signature of Hon’ble Judge

 

For hearing of main case

 

29.03.2019

            Mr. Mujahid Hussain Phulpoto Advocate for the Appellant

Mr. Shafi Muhammad Mahar, Deputy Prosecutor General

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Irshad Ali Shah, J;-. The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 12.09.2017 passed by learned 3rd Civil Judge and Judicial Magistrate Khairpur, whereby he has acquitted the private respondent of the offence  for which he was charged.

2.                    It is alleged that the private respondent dishonestly issued cheques in favour of the appellant/complainant on account of purchase of buffaloes from him, those when were presented before the concerned Bank were dishonoured, for that the instant case was registered against the private respondent and he on usual investigation was challaned by the police to face trial for the above said offence before the Court of law.

 

3.                    At trial, the private respondent denied the charge and prosecution to prove it examined appellant/complainant and his witnesses and then closed its side.

4.                    The private respondent during the course of his examination u/s 342 Cr.P.C denied the prosecution allegations by pleading innocence, by stating that the cheques were stolen and he has been involved in this case falsely by the complainant in order to satisfy his matrimonial dispute with him, he did not examine anyone in defence or himself on oath, but produced certain documents to prove their innocence.

5.                    On evaluation of evidence, so produced by the prosecution, the private respondent was acquitted of the offence for which he was charged by learned trial Court, such acquittal is impugned by the appellant/complainant before this Court by way of instant Criminal Acquittal Appeal, as stated above.

6.                    It is contended by learned counsel for the appellant/complainant that the prosecution was able to prove its case against the private respondent beyond shadow of doubt through cogent evidence, yet the private respondent has been acquitted of the offence for which he was charged by the learned trial Court without lawful justification. By contending so, he sought for adequate action against the private respondents.

7.                    Learned Additional PG for the State has sought for the dismissal of instant Criminal Acquittal Appeal by contending that the impugned judgment is well reasoned.

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

9.                    The FIR of the incident has been lodged with delay of more than two months, such delay could not be overlooked.

10.                  In case of Mehmood Ahmed and others vs. the State and another (1995 SCMR-127), it has been observed by the Hon’ble Apex Court that;

“Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.      

11.                  As per appellant/complainant the cheques were issued in his favour by the private respondent on account of purchase of buffaloes from him. Nothing has been brought on record which may suggest that the buffaloes were actually sold by the appellant/complainant to the private respondent. If it is believed to be so, then it was a contractual obligation. In these circumstances, learned trial Court was right to record acquittal of the private respondent

12.              In case of State and others vs. Abdul Khaliq and others (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”.

 

13.              No justification is available which may call for making interference with the impugned judgment, consequently instant Criminal Acquittal Appeal fails and it is dismissed accordingly.

 

 

Judge

 

 

ARBROHI