IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-78 of 2016

Appellant/Complainant :      Muhammad Rafique Panhyar,

Through Mr.Safdar Ali Ghouri, Advocate                     

Respondents                  :       Through Mr.Faiz Muhammad Larik,

Advocate for private respondent

The State through Mr.Raja Imtiaz Ali Solangi, A.P.G

Date of hearing               :       26.10.2018          

Date of decision              :       26.10.2018                   

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 18.10.2016, passed by learned Sessions Judge, Kashmore @ Kandhkot, in Criminal Appeal No.22/2016 “Re. Ghulam Shabir Panhyar Vs. the State“ whereby he set-aside the conviction and sentence,  recorded against the private respondent by learned 1^st Civil Judge and Judicial Magistrate, Kashmore, in Criminal Case No.313/2016 “Re. The State Vs. Ghulam Rasool and others” by way of judgment dated 28.09.2016.

2.                The facts in brief necessary for disposal of instant criminal acquittal appeal are that the private respondent obtained rupees Twenty One Lacs from the appellant/complainant as loan, which he returned to him by way of cheque. It was bounced by the bank. On being approached for return of his money, the private respondent with rest of the culprits threatened the appellant/complainant of murder, for that the instant case was registered.     On trial, excepting the private respondent, the rest of the culprits were acquitted by learned trial Magistrate, their acquittal was maintained even by this Court vide order dated 07.11.2016, passed in Criminal Acquittal Appeal No.S-77 of 2016. On appeal, so preferred by the private respondent against him conviction, he too was acquitted by learned Appellate Court vide judgment dated 18.10.2016, such acquittal of the private respondent, the appellant/complainant has impugned before this Court by way of instant Criminal Acquittal Appeal, as stated above.

3.                At trial, the private respondent with rest of the culprits did not plead guilty to the charge, and the prosecution to prove it, examined PW-01 appellant/complainant Muhammad Rafiq, produced through him FIR of the present case and cheque allegedly bounced, PW-02 Khadim Hussain, PW-03 HC Illahi Bux, PW-04 ASI/SIO Faiz Muhammad, through him were produced memo of place of incident and copy of application addressed to Manager, KASB Bank, PW-05 Mashir PC Muhammad Masood and then closed the side.  

4.                The private respondent with rest of the culprits in their statements recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocent by stating that they have been involved in this case falsely by the complainant party. They did not examine themselves on oath in disproof of the prosecution allegation nor led any evidence in their defense.

5.                On evaluation of evidence so produced by the prosecution, the learned trial Magistrate acquitted all the accused excepting the private respondent, he on appeal was acquitted by learned Appellate Court, as stated above.

6.                It is contended by learned counsel of the appellant/complainant that the private respondent has been acquitted by learned Appellate Court without lawful justification. By contending so, he sought for adequate action against the private respondent.

7.                Learned counsel for the private respondent and learned A.P.G have sought for dismissal of the instant criminal acquittal appeal by contending that the private respondent has been acquitted by learned Appellate Court with lawful justification.

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

9.                The FIR of the incident has been lodged with delay of two days even after issuance of direction by learned Ex-Officio Justice of Peace; such delay could not be lost sight of. The cheque which is said to have been bounced by the Bank has been issued on behalf of “DAWN and COMPANY". It is not established by the appellant/ complainant that what kind of relationship, the private respondent has got with above said company. The Manager of Bank, who allegedly bounced the cheque has not been examined by the prosecution. PW Bashir Ahmed has been given up by the prosecution without any lawful justification. The inference which could be drawn of his non-examination would be that he was not going to support the case of prosecution. The very case on investigation was found to be false and recommended to be cancelled by the police under false “B” class. In these circumstances, the learned appellate Court was right to record acquittal of the private respondent by extending him benefit of doubt by setting aside the conviction and sentence which was awarded to him by learned trial Magistrate.

10.              In case of State and others vs. Abdul Khaliq and others     (PLD 2011 SC-554), it is has been observed 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.              Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned Appellate Court in arbitrary or cursory manner, which may call for any interference by this Court.  

12.              In view of facts and reasons discussed above, the instant Criminal Acquittal appeal is dismissed.

                                                                                               J U D G E