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