HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No.602 of 2018
Appellant : Mehmood Ahmed son of Wali Ahmed
Through Mr. Muhammad Saleem Khan,
Advocate.
Respondent No.1 : Qamar Ahmed Khan son of Saeed-ur-Rehman.
Absent.
Respondent No.2. : The State Through Ms. Rubina Qadir,
Deputy Prosecutor General.
Date of hearings : 09.05.2019
Date of Judgment : 09.05.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Captioned Appeal is directed against the Judgment dated 10.9.2018, recorded by learned VI-Civil Judge & Judicial Magistrate, Malir, Karachi in case Crime No.309/2017 under Sections 420, 448, 506(b) read with section 34 PPC at P.S. Sachal, Karachi, whereby the learned trial Court after full dressed trial acquitted the respondent No.1 by giving him benefit of doubt.
2. Facts of the case in nutshell are that in the year 2010 accused sold out plot No.R-19 situated at Peeli Bheet Society Scheme 33, Karachi to Mehmood Ahmed by complainant of the instant case. On 16.4.2017 at about 1900 hours, when complainant visited the said plot and found that locks were broken and a family was residing inside the plot in-question. When complainant/ attorney asked about the possession of plot then accused became angry and companion of the accused issued murderous threats on the force of weapon.
3. Heard the learned counsel for appellant, learned D.P.G representing the State and have also carefully perused the material available on record.
4. Learned counsel representing the appellant at the very outset submits that the impugned judgment is not sustainable under the law as there was sufficient ocular and documentary evidence available on record against the accused persons but the trial Court brushed aside the same. More particularly, the statement of prosecution witnesses recorded under Section 161 CrPC. He further submits that the accused has committed fraud and cheating with the complainant party, therefore, present FIR was lodged and the witnesses of the complainant party in their evidence have supported the complainant’s case but the learned trial Court did not appreciate their evidence and passed the impugned judgment in a hurriedly manner. He further submits that the learned trial Court has failed to apply his judicial mind that all the receipts of payments, title documents, as well as registered power of attorney executed by accused in favour of the complainant towards the sale of the said property were in possession of the complainant but the accused obtained the duplicate title document fraudulently from the society and sold out the said property again to one Mst. Rizwana Sheikh and subsequently, leased out in her favour by the society. He further submits that in view of the facts and circumstances as well as evidence and documents on record, the complainant of the case has made out his case for action/ punishment against the respondent but the learned trial Court illegally acquitted the accused, therefore, this appeal may be allowed and accused may be convicted.
5. Conversely, learned DPG by making a request for upholding the impugned judgment submits that there is no gross illegality irregularity or infirmity in the impugned judgment as there are sufficient reasons and grounds which creates reasonable benefit of doubt in favour of the accused. Learned DPG further submits that no convincing evidence has brought by the prosecution on record to award conviction to the accused.
6. It appears from the record that the alleged incident of cheating/ forgery was committed by the accused on 16.4.2017 but the FIR has been lodged on 22.6.2017 after the delay of about two months which has not been satisfactorily explained. It appears from the record that the case and claim of the appellant has been mentioned in ground ‘C’ of the memo of appeal for the sake of convenience it would be proper to reproduce the said ground which reads as under:
“That the trial Judge has failed to apply his valuable mind that all the receipts of payment, title documents as well as registered power of attorney executed by the accused in favour of the complainant towards the sale of the said property were in possession of the complainant but the accused obtained duplicate the title documents fraudulently from the society and sold out the same again to one Rizwana Sheikh and subsequently leased out in her favour by the society.”
7. After perusal of the above ground, it reveals that it is the case of double allotment made by the society but no person of the society has been nominated as accused in this case nor Mst. Rizwana has been made accused in this case. As per record, parties involved in this case are claiming their ownership with regard to subject plot through title documents and it is yet to be determined by the competent civil court, who is actual owner of the subject plot. Nothing on record that the respondent/ accused has put Mst. Rizwana Sheikh into possession by force. Besides this it is admitted by the counsel for the appellant that a civil suit bearing No.734/2017 filed by appellant against Qamar Ahmed Khan has been filed for declaration, cancellation of documents, possession and mesne profit in the court of I-Senior Civil Judge, Malir, Karachi, which is pending adjudication, thus it appears that the civil litigation has been converted into criminal litigation and the case with regard to title of the property still pending before the Senior Civil Judge. Under these circumstances, no criminal case is made out. Besides I have gone through the impugned judgment, the learned trial Court in its judgment has elaborately considered all the aspects of the case. During the course of arguments, I have specifically asked the question from learned counsel for appellant to point out any illegality or irregularity in the impugned judgment, however, he has failed to point out the same. Learned counsel for appellant could not show the specific part of the judgment where the learned trial Court has committed any gross illegality and the trial Court has rightly given the benefit of doubt to the accused and acquitted him.
8. It is not out of context to make here necessary clarification that appeal against acquittal has distinctive feature and approach to deal with appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in latter case. Order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and led to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice, is not enough for interference. Suffice is to say that an order/ judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. Reliance in this respect may conveniently be leased on 1998 P.Cr.LJ 1576, 1985 P.Cr.LJ 2973, 1991 SCMR 2220, 1993 SCMR 28, 1985 P.Cr.LJ 457, PLD 1966 Supreme Court 424. While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts whereby accused were exonerated from the commission of crime as held by the Apex Court in 1998 SCMR 1281. In 1977 P.Cr.LJ 477, it was held that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
9. Whatever mentioned above, more particularly in light of case law referred to above, I reached at the irresistible conclusion that the appellant has miserably failed to prove his case against the accused persons beyond shadow of reasonable doubt, therefore, no interference in the impugned judgment is required by Court.
Resultantly, the instant Criminal Acquittal Appeal, being devoid of any merit is hereby dismissed along with listed applications.
JUDGE
asim/pa