IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 41 of 2006

 

 

           

 

Appellant/Complainant :      Hafiz Waheedullah (died)

Mr. A.R Faruq Pirzada, Advocate for legal heirs of the appellant/complainant

 

Respondent                      :     Mst. Rukhsana and Muhammad

Anwer, through Mr. Dareshani Ali Hyder ‘Ada’ Advocate

                                                           

The State through Syed Sardar Ali Shah, Deputy Prosecutor General

                                                           

Date of hearing               :       11.03.2019          

Date of decision             :       11.03.2019                             

 

JUDGMENT

 

IRSHAD ALI SHAH, J.- The appellant/complainant (now has died) by way of instant Criminal Acquittal Appeal has impugned judgment dated 07.08.2006, passed by learned 3rd Civil Judge and Judicial Magistrate Sukkur, whereby he has acquitted private respondents Mst. Rukhsana and Muhammad Anwer, for the offence for which they were charged. 

2.                 The facts in brief necessary for disposal of instant criminal acquittal appeal are that Mst. Rukhsana in collusion with absconding accused Akber Hussain and Kazim Ali being employee of Hira Public School Sukkur misappropriated an amount  of Rs.13,32,889/- which was collected by them from the students as Tuition fee and then misappropriated the same. On being asked of such misappropriation Mst. Rukhsana undertook to repay the misappropriated amount on her part in easy installments and then asked her husband Muhammad Anwar to stand guarantee. A cheque was also issued in favour of appellant/complainant as Token of return of money allegedly misappropriated by Mst. Rukhsana but it was bounced. In these circumstances, the appellant/complainant lodged FIR of the incident with police and on investigation, Mst. Rukhsana and Muhammad Anwar were challaned by the police to face trial for the above said offence.

3.                 At trial, Mst Rukhsana and Muhammad Anwer did not plead guilty to charge and the prosecution to prove it, examined PW-1 appellant/complainant Hafiz Waheedaullah (Ex.5), he produced FIR of the present case, his application which he moved with ASP (City) Sukkur, Stamp paper, application of Mst. Rukhsana, copy of letter, fee collection register, account file, another application of Mst. Rukhsana, copy of petition filed by Mst. Rukhsana and Muhammad Anwar before this Court seeking protection from harassment, cheque, deposit receipt and memo of bank; PW-2 Masroor Javed (Ex.6); PW-3 Matloob Akhtar (Ex.7); PW-4 Abdul Rauf Mughal (Ex.8), he produced memo of place of incident, memo of recovery of cheque, copy of account book, and fees card and memo of arrest of accused; PW-5 Afzal Waheed (Ex.9); PW-6 SIO Qalander Bux (Ex.11), he produced copy of his letter addressed to Manager MCB Sukkur, reply of Bank to his letter addressed to Commissioner Income Tax, his reply, copy of roznamchas; PW-7 Masroor Javed (Ex.12); PW-8 ASI Ghazanfar Ali Bhutto (Ex.13) and then closed the side.

4.                 The private respondent Mst. Rukhsana and Muhammad Anwar in their statements recorded u/s 342 Cr.P C denied the prosecutions’ allegation by pleading innocence, they examined themselves on oath and then closed the side by producing certain documents in their defence.

5.                 On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents Mst. Rukhsana and Muhammad Anwar of the offence for which they were charged by way of impugned judgment, as stated above.

6.                 It is contended by learned counsel of the appellant/complainant that the prosecution has been able to prove its case against the private respondents beyond shadow of doubt by producing cogent evidence which has not been considered by learned trial Court it is true prospect without lawful justification. By contending so, he sought for adequate action against the private respondents Mst. Rukhsana and Muhammad Anwar. In support of his contention, he has relied upon cases of  Mian Rashid Ahmed vs. Syed Azeem Shah and others (1991 SCMR 94) (ii) Rana Fazal Elahi vs. The State (2006 P.Cr.LJ 390) and (iii) Shoukat Ali vs. District Police Officer, Burewala and others (2007 P.Cr.LJ 997) and (iv) Syed Hassan Raza vs. Deedar Hussain Shah and others (PLD 2008 Karachi 305),

7.                 Learned D.P.G for the State and learned counsel for the private respondents by supporting the impugned judgment have sought for dismissal of the instant criminal acquittal appeal. In support of their contentions, they relied upon cases of  Ch.Riasat Ali and another vs. The State (1970 P.Cr.LJ 445), (ii) Tarique Pervez vs. The State (1995 SCMR 1345)), (iii) Shahbaz Khan vs. The  State ( NLR 2002 Criminal 156), (iv) Shah Muhammad vs. Nawab Din (2006 MLD 823) 

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

9.                 The FIR of the incident has been lodged with delay of about six months; such delay could not be overlooked. Nothing has been brought on record which may suggest that private respondent Mst. Rukhsana was authorized in writing to collect the tuition fees and then to keep the same with her. No student or their parent has been examined by the prosecution to prove that the tuition fees were actually deposited by them with private respondent Mst. Rukhsana. Private respondents Mst.Rukhsana and Muhammad Anwer apparently have been involved in this case on the basis of their extra judicial confession and statement of undertaking and cheque, the signature whereof as per them were obtained by the complainant party through police by keeping them under duress. In these circumstances, learned trial Court was right to record acquittal of private respondent Mst. Rukhsana and Muhammad Anwar by making the following observation;

“The defence counsel has also pointed out that the Hira Public School is registered but complainant present the record on insufficient /invalid ledger or register, such documents cannot be relied, from going through the account record at Ex.5-G, which does not show the title but amount mentioned in simple papers and there are different hand writings, which clearly creating doubt, the documents produced at Ex.No.5-G appears name of Mst. Rukhsana w/o Muhammad Anwar fee collecting clerk, Anwar UDC Income Tax Department Sukkur, what is the necessity to mention the full name of Anwar, his designation and address of department in the amount record. It shows the malafide on the part of prosecution, the undertaking do not show the date of signature, it is very strange that the undertaking showing the different signature of accused Anwar, which highly creates doubt. Moreover the application to ASP City at Ex.No.5-B does not show the amount of cheque, its date or about its dishonours, on the contrary firstly it was written with type and again some line were enhanced with pencil, it appears major doubt about the prosecution version. From going through the cheque and bank certificate there are two contrary certificates issued by bank concerned at Ex.No.5-J(i) and(ii) which also creates doubt. PW-2 Masoor Jawed teacher of Hira Public School at Ex.No.6 has stated that he is Vice Principal at Hira Public School and he also deposed the same pattern as deposed by the complainant PW-1, he admitted that keys were kept with Akbar Zaidi, in his cross-examination he stated that he has not disclosed in his statement regarding cheque. I am going through his statement, which is also admitted the same position, it is very surprising that he is eyewitness and has stated that it is fact that I have not seen the cheque while giving or taking. He further deposed that he does not know whether there is dispute between complainant and accused over property. He stated that he has signed only one memo but from going through the mashirnama place of incident at Ex.No.8-A, mashirnama of cheque, account books at Ex.8-B and mashirnama of arrest of accused persons at Ex.No.8-C showing the signature, name and address of this mashir/P.W Masoor Jawed but he in his cross-examination has denied about the papers, therefore, his evidence is also became unreliable from each corner.”

 

10.              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”.

 

   

 

11.              The case law which is relied upon by learned counsel for the appellant/complainant is on distinguishable facts and circumstances. In case of Mian Rasheed Ahmed (supra). Accused was awarded death penalty by learned trial Court. He on appeal was acquitted by Honourable High Court. On filing of acquittal appeal, the acquittal of the accused was set aside and he was awarded imprisonment for life for having committed an offence u/s 302(b) PPC. In the instant case no murder has taken place. In case of Khawaja Fazal Elahi (supra). Accused by way of filing an appeal impugned his conviction which was awarded to him by learned trial Court. In the instant case, no conviction is awarded to any of the private respondents. In case of Shoukat Ali (supra) quashment of FIR was sought for, it was declined. In the instant matter, no FIR is sought to be quashed. In case of Syed Hassan Raza (supra) learned trial Magistrate refused to accept the recommendation of the police for disposal of the case under ‘B’ class. In the instant matter no case is recommended by the police to be disposed of under ‘B’ class.

 

12.              In view of the facts and reasons discussed above, it could be concluded safely that the impugned judgment is not calling for any interference by this Court by way of instant criminal acquittal appeal. It is dismissed accordingly.

                                                                                                                                                                                Judge

 

 

 

ARBROHI