ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Acquittal Appeal No.S-93 of 2019

DATE                          ORDER WITH SIGNATURE OF JUDGE

01. For orders on office objection

02. For orders on M.A.No.5936/2020 (E/A)

03. For hearing of main case.

04.05.2020.

Mr.Imdad Ali Mashori, Advocate for the appellant.             

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IRSHAD ALI SHAH, J.- The appellant by way of instant Criminal Acquittal Appeal has impugned judgment dated 21.11.2019, passed by learned Special Judge Anti-Corruption (Provincial), Larkana, whereby the respondents have been acquitted of the offence, for which they were charged.  Surprisingly, the State is not made party in the instant Criminal Acquittal Appeal without any legal justification.

2.                    It is case of prosecution that; Mst.Anwar Khatoon who is said to be mother of the appellant was having landed property (as is detailed in FIR) in Deh Karam Ali Gopang, Taluka Miro Khan (now Sijawal), District Qamber-Shahdadkot, the same on the basis of forged and fraudulent gift entry was transferred and sold by the respondents in collusion with each other, for that they were booked and reported upon by police.

3.                    At trial, the private respondents did not plead guilty to the charge and the prosecution to prove it, examined in all eight witnesses including the appellant and then closed the side.

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

5.                    On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the respondents of the charge by way of impugned judgment.

6.                    It is contended by learned counsel for appellant that the learned trial Court has recorded acquittal of the respondents on the basis of improper appreciation of the evidence; otherwise the prosecution has been able to prove its case against them beyond shadow of doubt by way of cogent evidence. By contending so, he sought for admission of the instant criminal acquittal appeal for its regular hearing for further action against the respondents.

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

8.                    The FIR of the incident has been lodged with delay of about 34 years; such delay has not been explained plausibly, same as such could not be overlooked; PWs Muhammad Paryal and Farman Ali have been given up by the prosecution.  The inference which could be drawn of their non examination would be that they were not going to support the case of prosecution. The issue of gift allegedly made by Mst.Anwar Khatoon being legal or unlawful could only be resolved by the Civil Court. The litigation between the parties on civil side is said to be pending before the Civil Court having jurisdiction. In absence of finding of Civil Court on gift entry being forged or illegal, the criminal proceedings launched against the respondents by way of FIR at the instance of appellant obviously was contrary to mandate contained by Section 195 (1) (c) Cr.PC, which lays down that no Court shall take cognizance for certain offences relating to documents except on complaint in writing of the Court which declares document to be false or forged. In these circumstances, the learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt by making following observation;

“The material and evidence brought on record does not connect the accused with the alleged offence and the evidence is inconsistent which cannot be relied upon safely and no conviction can be awarded on the basis of such evidence to the accused”.

9.                    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”.

10.                  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 interference with it by this Court by way of instant criminal acquittal appeal; it is dismissed in limine together with listed application.

                                                                                                J U D G E