HIGH COURT OF SINDH AT KARACHI
Criminal AcquittalAppeal No.286 of 2016
Appellant : Mst. Rubina Saeed
through Mr. Manzoor Ahmed Bhutta, Advocate.
Respondents No.1 & 2 : Muhammad Imran & Muhammad
Siddiqui are present.
Respondent No.3 : The State through Mr. Muntazir Mehdi
Deputy Prosecutor General, Sindh.
Date of hearing : 27.03.2018
Date of Judgment : 27.03.2018
J U D G M E N T
Abdul Maalik Gaddi, J.– This criminal acquittal appeal has been filed by the appellant against the judgment of the learned Judicial Magistrate-VI, Karachi (East), dated 15.06.2016 in Case No.941 of 2015 relating to Crime No.165/2015 registered at police station K.I.A., Karachi, under Section 380/34 PPC, whereby the learned trial Court after full dressed trial, acquitted the respondents No.1 and 2 under Section 245(i), Cr.P.C.
2. According to the prosecution case, on 31.05.2012 to 18.06.2012, respondents No.1 and 2 committed theft of dower furniture, 12 tola gold ornaments, nikahnama, CNIC, property papers from House No.202, Gali No.5, Sector 8/B, Bilal Colony, KIA, Karachi. Hence, this case.
3. Trial Court framed the charge against the accused/respondents No.1 and 2 at Ex.3-A, to which accused pleaded not guilty and claimed to be tried.
4. At trial, prosecution examined the following witnesses:-
(i) PW-1/Complainant Rubina Saeed at Ex.4, who produced copy of FIR and memo of inspection at Ex.4/A and Ex.4/B;
(ii) PW-2/I.O ASI namely Moazzam Kazmi at Ex.5, who produced copy of memo of arrest at Ex.5/A;
(iii) PW-3 Muhammad Younus at Ex.6;
(iv) PW Ibrahim was given up by prosecution vide statement at Ex.7;
These witnesses were cross examined by the counsel for respondents No.1 and 2/accused. Thereafter, learned ADPP for State closed the prosecution side vide statement at Ex.8.
5. Statements of respondents No.1 and 2/accused were recorded under Section 342, Cr.P.C. at Exs.9 and 10, in which they denied the allegations as levelled by the prosecution and stated that they are innocent and have been falsely involved in this case by complainant; that nothing was recovered from them. However, respondents No.1 and 2/Accused neither examine themselves on oath nor led any evidence in their defence.
6. It reveals from the record that this criminal acquittal appeal was filed on 14.07.2016. Today this appeal is fixed for hearing, hence, I have heard the parties at length and perused the record with their able assistance.
7. Mr. Manzoor Ahmed Bhutta, learned counsel for the appellant contended that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the respondents No.1 and 2 are not supportable from evidence on record. Per learned counsel, the prosecution has successfully proved its case beyond any reasonable doubt as the complainant and his witnesses have fully supported its case; that the accused/respondents No.1 and 2 should be awarded exemplary punishment as they do not deserve any concession. He further submitted that the said respondents have been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which respondents could be acquitted. Therefore, under these circumstances, he was of the view that this appeal may be allowed by setting aside the impugned judgment.
8. Conversely, Mr. Muntazir Mehdi, learned Deputy Prosecutor General, Sindh assisted by respondents No.1 and 2, while supporting the impugned judgment, submits that the impugned judgment has been passed by the trial Court after due consideration all the documents and evidence available on record.
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. It is an admitted fact that the incident took place in between 31.05.2012 to 18.06.2012, but FIR has been registered on 15.03.2015, after the delay of about thirty three (33) months. Since there is delay of about thirty three (33) months, therefore, on this ground, false implication of the respondents No.1 and 2 with due deliberation and consultation could not be ruled out. It appears from the record that it is the case of unseen incident and nothing was recovered from the respondents No.1 and 2. I have also gone through the evidence available on record alongwith the impugned judgment with the able assistance of the learned counsel for the parties and found number of contradictions as well as lacunas and lapses in between the statements of prosecution witnesses, which are material and fatal to the prosecution case. These aspects have already been highlighted by the learned trial Court in its judgment of acquittal. For the sake of convenience, it would be appropriate to reproduce the relevant portion of the impugned judgment, which reads as under:-
“In the instant case prosecution has pressed its case on simple oral evidence and for which they produced as many as three witnesses. It is the case of prosecution accused persons stole Dower Furniture, 12 Tola Gold Ornaments, Nikahnama, CNIC, Property Papers. During evidence none of the prosecution witnesses has deposed that he has actually seen the present accused persons while stealing the alleged stolen articles. Further accused persons remained in police remand for sufficient time but no recovery of alleged articles were affected from the accused persons. In my opinion prosecution has failed to bring home guilt of the accused persons.”
During the course of arguments, I have specifically asked the question from the learned counsel for the appellant to point out/show any piece of evidence, which is not supportable from the evidence on record, no satisfactory answer was available with him. Perusal of record shows that the trial Court rightly acquitted the respondents No.1 and 2 through impugned judgment, which is neither perverse nor arbitrary. So far the appeal against acquittal is concerned after acquittal respondents No.1 and 2 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 were number of infirmities and impugned judgment of acquittal in my considered view does 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.”
11. 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.286 of 2016 is without merits and the same is dismissed.
JUDGE
Faizan A. Rathore/PA*