HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No.270 of 2014
Appellant : Naveed Masood son of Sheikh Masood
Abdul Rehman through Mr. Ahmed Ali Ghumro, Advocate.
Respondents No.1 & 2 : None present for respondents,
Faiz-ur-Rehman & Awais Khan.
Respondents No.3 & 4 : Xth Judicial Magistrate & The State
through Mr. Zahoor Shah, Deputy
Prosecutor General, Sindh.
Date of hearing : 02.04.2019
Date of Judgment : 02.04.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Captioned acquittal appeal is directed against the judgment dated 11.08.2014 recorded by the learned Xth Civil Judge and Judicial Magistrate, Karachi (South), in Criminal Case No.2304 of 2011 (re: The State v. Faiz-ur-Rehman & another), culminating from Crime No.211 of 2011 registered at police station Defence, Karachi, under Section 420/408/34, PPC, whereby the learned trial Court after full dressed trial, acquitted the respondents under Section 245(i), Cr.P.C by giving them benefit of doubt.
2. According to the prosecution case, 01.06.2011 at about 1700 hours complainant namely Naveed Masood Ali reported the incident that his is incharge from PSO company of different patrol pumps including PSO patrol pump situated at main Korangi road, DHA, Karachi. It was further alleged that his work is to collect cash from the Almirah of pumps having key with him. On 02.06.2011 at about 1130 hours, when he reached at main Korangi roads PSO pump for collection of sell amount, he was informed by supervisor Rahim Wali and Aqeel that on 01.06.2011, one person named Owais Khan came on Mazda Truck, thereafter, he meet with the accountant Faiz-ur-Rehman, who directed to fill 28 drums of diesel, therefore, 5600 liters of diesel worth of Rs.528,000/- were filled and Rs.38,720/- were paid and same vehicle were permitted by accountant, supervisor further disclosed that this incident was also informed by supervisors to the owner of PSO, and on their instructions complainant report this incident. Hence, this FIR.
3. Trial Court framed the charge against the respondent No.1 on 02.11.2011 at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A, whereas, respondent No.2/accused was declared as proclaimed offender.
4. At trial, prosecution examined the following witnesses:-
(i) PW-1, complainant Naveed Masood Ali at Ex.3, who produced copy of FIR, ID card of accused, receipt of PSO Patrol, attendance of the employees, memo of arrest and recovery and memo of site inspection at Ex.3/A to Ex.3/6 respectively;
(ii) PW-2, Aqeel Ahmed, Manager PSO Pump/Supervisor at Ex.4;
(iii) PW-3, Ateeq-ur-Rehman, employee at patrol pump at Ex.5.
These witnesses were cross examined by the counsel for respondent No.1/accused. Thereafter, learned ADDP for State closed the prosecution side vide his statement dated 11.06.2014 at Ex.6.
5. Statements of respondent No.1/accused was recorded under Section 342, Cr.P.C. at Ex.7, in which he denied the allegations as levelled by the prosecution and stated that he is innocent and has been falsely involved in this case by complainant due to political influence. However, respondent No.1/accused neither examine himself on oath nor led any evidence in his defence.
6. It reveals from the record that this criminal acquittal appeal was filed on 26.09.2014, thereafter, notices were issued to the respondents. Record shows that respondent No.1 was served, whereas, respondent No.2 has already been declared as proclaimed offender. Today, none present on behalf of respondent No.1, however, learned Counsel for the appellant and learned Deputy Prosecutor General, Sindh have submitted that they are ready to argue the matter, as such, they have been heard.
7. Mr. Ahmed Ali Ghumro, learned counsel for the appellant contended that the impugned judgment is not sustainable under the law, as there was sufficient evidence available on record against the accused/ respondents, but the learned trial Court brushed aside the same. During the course of arguments, he has taken to me towards evidence on record and was of the view that the prosecution witnesses have supported the version of complainant, but the learned trial Court did not consider the same in its true perspective. He further submitted that trial Court has no jurisdiction to entertain this case because in this matter, the complainant is the department of Federal Government with whom, the accused/respondents have committed fraud, which is a scheduled offence. He also added that in this connection, he filed a statement dated 31.05.2012, but the learned trial Court vide order dated 20.09.2012, filed the same and proceeded the evidence. He also submitted that again on 29.01.2014, the complainant has also filed an application for transfer of the case, but the trial Court did not pay any heed to it and delivered the judgment by acquitting the respondents/accused, which is against the law and facts as well as without jurisdiction. In support of his contention, he has relied upon the case of Arshad Ali Khan v. The State reported as 2003 MLD 750.
8. Conversely, Mr. Zahoor Shah, learned Additional Prosecutor General, Sindh by making a prayer for upholding the impugned judgment submits that there is no gross irregularity, illegality and infirmity in the impugned judgment, as there are sufficient reasons and grounds, which creates reasonable benefit of doubt in favour of accused. He further submitted that no convincing evidence has been brought by the prosecution on record to award the conviction to the accused persons. As far as, the jurisdiction of trial Court is concerned, he submitted that after filing of statement by the complainant, learned trial Court has passed the order dated 20.09.2012, whereby the statement was filed and thereafter, trial Court proceeded to record the evidence, in which the complainant party has produced their evidence, thereby according to him, the complainant party has submitted the jurisdiction before the trial Court and now when the case has been decided against him, he has taken this plea, which is not warranted under the law.
9. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
10. With regard to question of jurisdiction, record reflects that initially, complainant himself got lodged FIR against the accused. If complainant was of the view that the alleged offences were committed by the accused were exclusively triable by the Special Courts, then whey he had lodged FIR against the accused instead of filing direct complaint before the competent forum. Secondly, record further reflects that on the basis of FIR lodged by the complainant, investigating officer of the case submitted charge sheet upon which trial Court took cognizance against the accused and started proceedings with the case. Though, during trial, complainant filed an application with prayer that case be transferred to Special Judge of Anti-Corruption Courts as accused is a public servant and he has caused loss to the public exchequer, but said application did not consider by the trial Court. inspite of that, complainant had not resist or raised any objection on proceedings of the trial Court. complainant has not challenged the said order before any higher forum. On the contrary, the complainant got recorded his evidence and duly participated in the trial and now when accused has been acquitted by the trial Court, he again taken the plea that trial Court had no jurisdiction or authority to proceed with the case, which is pending since 2011, eleven (11) years has been lapsed. This aspect of the case leads to a presumption that had accused been convicted by trial Court, he would not have raised the question of jurisdiction. Even otherwise, at this stage, and in such circumstances, when accused has been acquitted after facing lengthy and cumbersome trial, remanding the case to another Court on the ground of jurisdiction for de-novo trial would amounts to double jeopardy. Hence, under the aforementioned facts and peculiar circumstances of the case, at this stage, this plea is not maintainable under the law.
11. Now I come to the merits of the case. In this case, after perusing the evidence so brought on record, I have come to the conclusion that the evidence of the prosecution witnesses are contradictory on material particulars of the case. This aspect of the case has been elaborately highlighted by the trial Court in its judgment. I have also gone through the record and say that the complainant has not produced any cogent and concrete evidence before the trial Court during his evidence to prove the guilt of the respondents/accused. Appellant/complainant has not specified the specific role of the respondents/accused persons at the time of the commission of offence.
12. I have gone through the evidence on record alongwith impugned judgment with the able assistance of the parties’ Counsel and find number of contradictions in between the statements of prosecution witnesses, which are material and fatal to the prosecution case, and these contradictions have already been highlighted by the learned trial Judge in its judgment of acquittal. For the sake of convenience, it would be proper to reproduce the relevant portion of the impugned judgment, which reads as under:-
“In this case complainant, during examination in chief deposed that he came into knowledge on 02.06.2011 through supervisor Rahim Wali and other supervisor Aqeel meaning thereby he is not a eye witness of the incident. Same fact is also admitted by him during his cross examination that “it is correct to suggest that incident of FIR is not in my knowledge directly but same was told to me”, again complainant admitted that it is correct to suggest that “I have not conducted inquiry but believe the incident as usual”. Complainant lastly admitted it is correct to suggest that I have not disclosed name of persons from whom I inquired the incident.
While the evidence of supervisor Aqeel Ahmed was recorded who did not corroborate the contention of the complainant rather deposed in his examination in chief that “I received telephonic call that there is dispute of Faiz ur Rehman on 5600 liters diesel, I communicated fact to my senior Manager Rahim Wali” although said Rahim Wali was not examined by this Court, which disconnect the series of relevant facts of prosecution case.
Prosecution produce PW-3 Ateeq ur Rehman who was attendant of PSO Patrol Pump at the time of incident, PW-3, who deposed while recording of examination in chief that on demand of 5600 liters by the truck driver I went to the head cashier Sajid Tanoli and thereafter said cashier directed to provide diesel was to the person, but in this case, prosecution did not produce the said cashier Sajid Tanoli, which also create doubt.
In view of above fact and circumstances of the case, when complainant of this case is not eye witness of the incident nor the persons who informed him were produced by the prosecution. In the circumstance of the case the charge of cheating and misappropriation by the clerk could not be proved against the accused as in the circumstance of the case prosecution has to prove the details of fraud and cheating and misappropriation of amount by the accused person with corroborated piece of evidence which lacking, therefore, point No.1 decided as doubtful.”
13. From the perusal of evidence recorded by trial Court and impugned judgment, it appears that the judgment of the trial Court is based upon sound reasons. Respondents/accused were acquitted by trial Court mainly on the ground that the evidence of the prosecution witnesses on material particulars of the case is contradictory and untrustworthy. During the course of arguments, I have specifically asked the question from learned Counsel for the appellant to point out/show any piece of evidence, which is not supportable from evidence on record, no satisfactory answer was available with him. Perusal of record shows that the trial Court rightly acquitted the respondents/accused through impugned judgment, which is neither perverse nor arbitrary. So far the appeal against acquittal is concerned, after acquittal, respondents/accused have 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 was 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.”
14. 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.270 of 2014 is without merits and the same is dismissed.
JUDGE
Faizan A. Rathore/PA*