IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal
Acquittal Appeal No.S- 52 of 2016
Appellant/Complainant : Muhammad Ikram Kamboh
through Mr. Shabbir
Ali Bozdar Advocate
Respondent : Muhammad Ali
Ali
through Mr. Parmanand Advocate
The State through Syed Sardar Ali Shah, Deputy
Prosecutor General
Date of hearing : 19.04.2019
Date of decision
: 19.04.2019
JUDGMENT
IRSHAD ALI
SHAH, J.- The facts in brief necessary for disposal of
instant criminal acquittal appeal are that the private respondent allegedly
issued a cheque in favour
of the appellant/complainant dishonestly, it was bounced by the bank when was
produced there for encashment and the appellant/complainant was threatened by
the private respondent of murder when he approached him for return of his
money, for that he lodged an FIR with Police, the private respondent on due
investigation was challaned by the police before 1st
Civil Judge and Judicial Magistrate Rohri to face
trial for the above said offence. At trial, the private respondent did not
plead guilty to the charge and prosecution to prove it, examined the
appellant/complainant and his witnesses and then closed the side. The private
respondent in his statement recorded u/s 342 Cr.P C
denied the prosecutions’ allegation by pleading innocence. He examined himself
on oath and his witnesses Liaquat Ali and Nadeemullah in his defence. On conclusion
of the trial, the learned trial Magistrate acquitted the private respondent
vide judgment dated 26.3.2016 which is impugned by the appellant/complainant
before this Court by way of instant Criminal Acquittal Appeal U/s 417(2)-A Cr.P.C.
3. 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 Magistrate in its true
prospect without lawful justification. By contending so, he sought for adequate
action against the private respondent.
4. Learned D.P.G for the State and
learned counsel for the private respondent by supporting the impugned judgment have
sought for dismissal of the instant criminal acquittal appeal.
5. I
have considered the above arguments and perused the record.
6. Admittedly, both the parties were
having a business transaction, the dispute if any between them was relating to
settlement of accounts. Be that as it may, the FIR of the incident was lodged
with delay of six months; such delay could not be overlooked. The 161 Cr.P.C statements of the P.Ws as per SIO/ASI Altaf Ahmed were recorded with further delay of 06 days to
FIR. In that situation, no much reliance could be placed upon the evidence of
the witnesses. No original cheque which allegedly was
bounced was secured by the police. In these circumstances, learned trial
Magistrate was right to record acquittal of the private respondent by extending
him benefit of doubt.
7. 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”.
8. In
view of the facts and reasons discussed above, instant Criminal Acquittal
Appeal fails and it is dismissed accordingly.
Judge
ARBROHI