THE HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No.666 of 2019
Appellant : Shahid son of Naseeruddin
Through Mr. Afaq Yousuf, Advocate;
Respondent No.1 : The State Through Mr. Muhammad Iqbal Awan,
Deputy Prosecutor General, Sindh
Respondent No.2 : Mohammad Nouman son of Mohammad Muslim
(None present)
Respondent No.3 : Mohammad Jibran son of Mohammad Muslim
(None present)
Date of hearing : 18.11.2020
Date of Order : 18.11.2020
Judgment
Abdul Maalik Gaddi, J. - Through this Appeal, filed under Section 417 CrPC, the appellant Shahid son of Naseeruddin has sought the indulgence of this Court to set at naught the judgments dated 29.8.2019 and 02.9.2019 passed by the learned Civil Judge and Judicial Magistrate/ Consumer Protection Court, Karachi (East) in Criminal Case No.487/2018 arising out of FIR No.24/2018 lodged by the complainant against the private respondents under Sections 392/506-B/504/34 PPC at PS Landhi, Karachi, whereby the Presiding Officer of learned trial Court after full dressed trial acquitted the accused/ private respondents Mohammad Nouman and Mohammad Jibran of the charge by recording the following findings. For the sake of convenience, it would be proper to reproduce the same as under:
“2. As a sequel of above, the discussion in point # 1 & 2 the accused 1) Muhammad Nouman son of Muhammad Muslim, & 2) Jibran Muslim son of Muhammad Muslim are acquitted under section 245(1) CrPC for the offence u/s 392/506-B/504/34 PPC. The both accused are present in Court on bail, hence their bail bonds are cancelled and surety is discharged. All the pending applications (if any) shall be deemed to be disposed of accordingly.
Before parting with above, in the light of discussion above, the complainant has initiated false, frivolous and vexatious litigation against 1) Muhammad Nouman son of Muhammad Muslim, & 2) Jibran Muslim son of Muhammad Muslim, therefore, I am of the opinion that the accusation against these accused persons is false, frivolous and vexatious, so that the complainant is to be served with separate show cause notice u/s 250 as why the compensation should not be paid to both the accused persons. Today the complainant is also present in Court, therefore, the office is directed to issue show cause notice u/s 250 CrPC to complainant accordingly.”
2. Briefly stated facts of the case are that on 06.12.2017 at 10:15 p.m. in front of the House No.39, Area 36/D, Landhi No.5, Karachi, the accused Muhammad Nouman son of Muhammad Muslim and Jibran Muslim son of Muhammad Muslim, along with two other unknown persons came on motorcycles and robbed wallet containing cash Rs.12,000/- and copies of CNICs and thereafter issued threats and misbehaved with complainant. Therefore, FIR of the incident was lodged.
3. After completion of investigation, the accused/ respondents were put on trial where the provisions of Section 265-C CrPC were complied with and the accused/ respondents were finally charge sheeted. However, they professed innocence and claimed trial.
4. The prosecution in order to prove its case against the accused/ respondents produced and examined five witnesses including Complainant, PW Muhammad Danial (supporting witness/ brother of complainant), Muhammad Shahid (supporting witness), PW ASI Malik Abdul Rehman, PW SIP Abdul Rasheed. These witnesses have been cross-examined by the defence counsel. Thereafter, learned ADPP for the State closed the side vide statement at Exh.08.
5. On evaluating the materials brought on record, the learned trial Judge found the accused/ respondents not guilty to the charge and thus acquitted them through the impugned judgment which is now under challenge by the complainant/ appellant through the appeal in hand.
6. Learned counsel for appellant argued, with great vehemence, that the impugned judgment of acquittal in favour of the accused/ respondents is not based on correct legal premises on the following grounds:-
(i) Firstly accused/ respondents are nominated in FIR with specific allegation that on the relevant date and time, respondents along with two other unknown persons came on motorcycle and robbed wallet containing cash Rs.12,000/- and copies of CNIC and thereafter issued threat and misbehaved with complainant;
(ii) Secondly, that the prosecution case was duly proved through ocular, circumstantial and recoveries, therefore, the respondents were not entitled to outright acquittal;
(iii) Thirdly, the learned trial Court did not consider the case and claim of the appellant in its true perspective and case weighed to the version of the accused/ respondents without assigning any valid reason;
(iv) Fourthly, that the impugned judgment of acquittal is based on surmises and conjectures and non-existing acts which is, therefore, liable to be set-aside and accused/ respondents be convicted and sentenced according to law;
(v) Fifthly, the learned trial Court while acquitting the accused/ respondents has also issued show cause notice to the complainant under Section 250 CrPC and thereafter vide order dated 02.9.2019 directed to pay Rs.10,000/- to each accused as compensation on account of false, frivolous and vexatious litigation against them and according to him, these proceedings were initiated on the basis of wrong assumption, therefore, the said order is passed against the complainant without any valid reason. Thus, the same is liable to be set-aside.
7. Learned DPG though supported the acquittal order passed by the trial Court, but he has not supported the order dated 02.9.2019 and submitted that the said order in the circumstances of the case was unwarranted under the law.
8. I have carefully scrutinized the entire record of the case with the valuable assistance of learned counsel for parties in the light of their arguments advanced at the bar.
9. Perusal of record indicates that there are material contradictions in the statement of prosecution witnesses and despite of the fact that incident took place in a populated area, but no independent person of the locality has been cited to witness the event. The whole case of the prosecution is based upon the interested witnesses. FIR was also delayed by few days, which has not been plausibly explained, therefore, the above facts disclose that there are material dents in the case of the prosecution and its evidence was full of doubt.
10. During the course of arguments, learned Counsel for the appellant could not show specific part of the impugned judgment, wherein the learned trial Court has committed any gross illegality, as the ocular and documentary evidence is not favoring to the appellant. Evidence on record on behalf of appellant has also been found contradictory with each other and these contradictions have been elaborately discussed by the learned trial Court in the impugned judgment. No any independent witness was produced to prove the case only appellant/complainant and his son came forward those are found interested witnesses. Perusal of record reflects that appellant/complainant and respondent No.2 are uncle and nephew in relation and there is only property dispute on which appellant tried to make it criminal case. The circumstances as evidenced in the case have created serious doubt as to the truthfulness of the prosecution case. It is settled principle of law that where there is slightest doubt, its benefit of doubt always goes to an accused. When all these facts, lacunas and contradictions highlighted above were confronted to learned Counsel for appellant for reply, he has no plausible answer with him.
11. It is not out of context to make here necessary clarification that appeal against acquittal has distinctive feature and approach to deal with appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in latter case. Judgment/Order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and led to gross miscarriage of justice. Mere technicalities in a criminal trial without resulting injustice, is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. Reliance in this respect may conveniently be placed on 1998 P.Cr.L.J 1576, 1985 P.Cr.L.J 2973, 1991 SCMR 2220, 1993 SCMR 28, 1985 P.Cr.L.J 457 and PLD 1966 Supreme Court 424. While examining the facts in the judgment of acquittal, substantial weight should be given to the findings of the lower Courts whereby accused were exonerated from the commission of crime as held by the Apex Court in 1998 SCMR 1281. In 1977 P.Cr.L.J 477, it was held that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
12. Whatever mentioned above, more particularly, in light of case law referred to above, I reached at the irresistible conclusion that the appellant has miserably failed to prove his case against private respondents beyond shadow of reasonable doubt, therefore, no interference in the impugned judgment is required by this Court, as it is well reasoned and of course a speaking one, only to the extent of acquittal of respondents.
13. As regards the application under Section 250 CrPC in this case, it would be conducive to reproduce the said Section, which reads as under:
“250. False, frivolous or vexatious accusations. If in any case instituted upon complaint or upon information given to a police-officer or to a Magistrate, one or more person is or are accused before a Magistrate of any offence triable by a Magistrate, and the Magistrate by whom the case is heard acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount not exceeding one hundred thousand rupees, or, if the Magistrate is a Magistrate of the third class, not exceeding two thousand five hundred rupees, as he may determine, be paid by such complainant or informant to the accused or to each or any of them.”
14. In view of the above paragraph, it is noted that what the law contemplates under Sub-section 1 of Section 250 CrPC is that when the Magistrate makes an order of acquittal and is of the opinion that the accusation is false and either frivolous or vexatious, he/ she by his/ her order of acquittal may call upon complainant forthwith to show cause as to why he/ she should not pay compensation to the accused.
15. Under Subsection 2 of Section 250 CrPC, the Magistrate shall record and consider any cause which the complainant may show and if he is satisfied that the accusation was false, he may direct that the compensation should be paid and for that purpose, he has to record his reasons for passing it.
16. The law evidently contemplates, firstly, the Magistrate at the time when he makes up his mind to acquit the accused, should also be of the opinion that the case is false one and that it is a case he should proceed further for the purpose of awarding compensation and secondly, that when cause is shown by the complainant, he has to take that cause into consideration and then on consideration of the cause, he has to ask himself again as to whether the case is really a false one and at the same time either frivolous or vexatious and if he still sticks to that opinion, then he can under the law make an order regarding compensation.
17. In the case in hand, the order of the Magistrate reflects that he merely stated in his order that cause shown by the complainant is unsatisfactory; however, did not take into account the cause of the complainant properly, which he was bound to do under the law. Instead of considering the stance taken by the complainant, the Magistrate has adhered to the opinion which he previously formed, mainly that the case was false and vexatious one.
18. At this juncture, needless to mention here that Section 250 CrPC is a penal provision and same is required to be exercised not only with due care and caution, but in rare and exceptional cases with a view that though complainant sects the criminal machinery of law into motion but after investigation it is the Magistrate, who takes cognizance and considers the case fit for trial and only thereafter trial against accused initiates which is ended either in shape of acquittal or conviction of the accused. It is pertinent to mention here that in this matter, the Magistrate himself initially took the cognizance of the case and trial was started but on conclusion of trial he passed order dated 02.9.2019 without applying his judicial mind and thereby he contradicts himself, therefore, the order dated 02.9.2019 passed by the trial Court in a hasty manner without assigning any valid reason and is unwarranted, which requires interference of this Court, therefore, the same is hereby set-aside.
In view of the above, this Appeal stands disposed of along with listed applications in the above terms. Office is directed to send the copy of this order to the trial Court for information and compliance, if any, through any swift means.
Judge
asim/pa