IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-90 of 2016

Appellant/Complainant :      Nadeem Ali Abbasi  in person

Respondents                   : Through Mr.Muhammad Ismail Chandio,

Advocate for private respondents

                                                Mr.Aitbar Ali Bullo, D.P.G 

Date of hearing               :       26.11.2018          

Date of decision              :       30.11.2018                   

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 05.12.2016, passed by learned Special Judge Anti-Corruption Provincial Larkana, whereby the private respondents were acquitted of the offence for which they were charged. 

2.                As per the evidence of the appellant/complainant, Mst.Yasmeen in collusion with Bashir Ahmed, Assistant Mukhtiarkar Headquarter Larkana, managed a false entry in record of rights in respect of an area measuring to be 8168 square feet, which is situated at Deh Bakrani, Tapa Arija, for that on his application, the FIR of the incident was registered and the private respondents were challaned to face trial for the above said offence.

3.                At trial, the private respondents did not plead guilty to the charge and the prosecution to prove it, examined PW-01 appellant/complainant Nadeem Ali produced through him his application to Deputy Director, Anti Corruption Establishment Larkana, entries in village Form-II and FIR of the present case, PW-02 Manzoor Hussain, produced through him sale agreement, PW-03
Abdul Wahid, produced through him the entries in record of rights, PW-04 Syed Touheed Shah Clerk of Office of Sub Registrar, produced through him copy of registered sale deed, PW-05 Supervising Tapedar Abdul Ghafoor, PW-06 Tapedar Ali Nawaz, PW-07 Abdul Hameed Jagirani, the then Mukhtiarkar Estate Larkana, PW-08 HC Abdul Ghaffar Solangi, produced through him memo of arrest of private respondent Bashir Ahmed, PW-09 Shahid Hussain, the then Circle officer Anti Corruption Larkana, produced through him permission letter for recording of FIR, and then closed the side.

4.                The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.

5.                On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge by way of judgment, which the appellant/complainant has impugned before this Court, by way of instant Criminal Acquittal Appeal, as stated above.

6.                It is contended the appellant/complainant that the impugned judgment being self contradictory is liable to be set aside with direction to learned trial Court to re-write the same.

7.                Learned counsel for the private respondents sought for dismissal of the instant criminal acquittal appeal by contending that it is well reasoned and civil litigation between the parties is going on before the Civil Court having jurisdiction.

8.                Learned D.P.G did not support the impugned judgment.

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

10.              The FIR of the incident has been lodged with delay of eight years; such delay having not been explained properly could not be lost sight of in the circumstances of the case. No disclosure of survey number of disputed property was made by the appellant/complainant during course of his examination before learned trial Court, which appears to be significant. It was admitted by the appellant/complainant that Mst.Yasmeen (respondent No.2) is sister of his father and Civil Suit filed by her has been decreed in her favour by the Civil Court having jurisdiction. As per investigating officer, neither the names of the accused nor the details of the property were disclosed by the appellant/complainant in his application which he apparently moved with Deputy Director, Anti-Corruption Establishment Larkana for recording of his FIR. In these circumstances, the learned trial Court was right to record acquittal of the private respondents by making following observation;

“The complainant has failed to produce the documentary  proof in support of allegation on the contrary the accused have produced the certain documents in their favour.  The evidence brought on record is contradictory and it is admitted fact that there is enmity in between the parties over the landed property left by the deceased Noorullah when the above situation is come on record then it is responsibility of the prosecution to prove the charge against the accused beyond the reasonable doubt and corroborative evidence which is not available in this case”.

11.              It is settled by now that the acquittal carries with it double presumption of innocence and interference with acquittal is narrow and limited, which could only be interfered with when the judgment of the acquittal is found to be arbitrary.

12.              In case of State and others vs. Abdul Khaliq and others     (PLD 2011 SC-554), it is held by the Hon’ble 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”.

13.              Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may justify making interference with it by this Court only for purpose of re-writing.   

14.              In view of the facts and reasons discussed above, the instant criminal acquittal appeal is dismissed.

                                                                                                                                                                                          JUDGE

--