ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Acquittal Appeal No.S-02 of 2020.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
For hearing of main case.
Mr. Muhammad Afzal Jagirani, advocate for the appellant.
Mr. Ali Anwar Kandhro, Addl. P. G.
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Date of hearing : 17.12.2020.
Date of decision : 17.12.2020.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J- Through instant Criminal Acquittal Appeal, appellant/complainant Fayaz Hussain has assailed the judgment dated 24.12.2019, passed by the learned Special Judge Anti-Corruption (Prov), Larkana, in Direct Complaint No.08/2018, under sections 409, 477-A, 34 PPC r/w Section 5(2), Act-II of 1947, whereby the respondents No.1 to 4 were acquitted of the charge by extending them benefit of doubt.
2. Brief facts of the prosecution case as disclosed in the impugned judgment as per complaint are as under :
"Complainant came to know that the XEN Provincial Highways Division Larkana Mr. Ayaz Ali Shah has been transferred on 01.10.2015, thereafter on 06.10.2015 the above named accused who are clerks of Provincial Highways Division Larkana in collusion with each other have prepared bogus bills of Rs.117000/- in favour of M/S Masood Ahmed Kalhoro in respect of work i.e. supply of liveries/sewing IC charge on ADP No.1740 and submitted bogus bill under No.1244 dated.0610.2015 and obtained token No.004471, dated.06.10.2015 from Treasury office and had forwarded the same bill to District Accounts Office Larkana for its payment as such the complainant being responsible citizen moved an application on 07.10.2015 to the District Accounts Office Larkana and its copy endorsed to Deputy Commissioner Larkana informed about the facts and requesting therein for stoppage of the payment of such bogus bill, on which the accused called complainant in their office on 11.11.2015 at about 12-30 noon, where they directed the complainant to withdraw his applications moved against them and on refusal they exchanged hard words and used abusive language with the complainant and also extended threats of dire consequences and of murder in presence of persons namely Riaz Hussain son of Nabi Bux and Muhammad Babrak Solangi and the said persons intervened and rescued the complainant, thereafter complainant approached to the concerned SHO Civil Lines for registration of his FIR, but the influence of accused persons, they refused to register FIR of the complainant. Thereafter complainant filed an application under section 22-A-6 Cr.P.C before the Honourable Sessions Judge, Larkana who has been pleased to disposed off the application with observations that, applicant may file direct complaint before Anti-Corruption Court or applicant may file similar complaint before Anti-Corruption authorities against the proposed accused, so that after proper enquiry/proceedings action could be taken against them. The complainant approached the Deputy Director Anti-Corruption Establishment Larkana and filed application for registration of FIR on 18.11.2015 which was subsequently transferred to the Circle Officer Anti-Corruption Larkana, but no avail, thereafter, complainant submitted application to the Commissioner Larkana Division Larkana on 09.12.2015 and thereafter complainant moved an application to the Provincial Ombudsman (mohatasib) Sindh at Karachi, but all in vain. It is alleged that accused persons had also obtained so many bogus bills of similar amount without base in past in the names of M/S Muhammad Bux Mangnejo, 2)Moomal Construction Co & M/S S.M.Z Construction Co and sustained heavy financial loss to the Government Ex-chequer, while adopting managed procedure and violating the SPPRA Rule. The accused persons committed fraud and forgery and liable to be prosecuted under the law and bring this complaint on regular file, hence this direct complaint."
3. Learned trial Court after holding the P.E brought the Direct Complaint on record. Trial Court framed charge against the respondents/accused at Ex-2. Respondents/accused pleaded not guilty and claimed to be tried. At the trial applicant/complainant examined himself at Ex-4 and other witnesses. Thereafter, side of the complainant was closed.
4. Trial Court recorded statements of the accused/respondents under section 342, Cr.P.C, in which they claimed false implication in this case and denied the prosecution allegations. Respondents/accused declined to examine themselves on oath as required under section 340(2) Cr.P.C. Respondents/accused did not lead any evidence in their defense.
5. Trial Court after hearing learned counsel for the parties and assessment of the evidence, recorded acquittal in favour of the respondents as stated above.
6. Learned advocate for the appellant/complainant mainly contended that the trial Court failed to appreciate the evidence according to the settled principle of law; and acquitted respondents on minor contradictions; it is further submitted that judgment of the trial Court is based on speculations and prayed for allowing appeal against acquittal.
7. Mr. Ali Anwar Kandhro, learned Addl. P. G argued that trial Court had appreciated evidence properly; found material contradictions in Prosecution evidence and assigned sound reasons for acquittal of the respondents. Learned Addl. P. G supported the impugned judgment and prayed for dismissal of the acquittal appeal.
8. After hearing the learned counsel for the parties, I have perused the impugned judgment minutely.
9. It appears that trial Court has acquitted the respondents/accused mainly for the following reasons :
"I have considered the arguments of learned counsel for the parties and also gone through the evidence brought on record. According to complainant he came to know that the XEN Provincial Highways Division Larkana Mr. Ayaz Ali Shah has been transferred on 01.10.2015, thereafter on 06.10.2015 the above-named accused who are clerks of Provincial Highways Division Larkana in collusion with each other have prepared bogus bills of Rs.117000/- in favour of M/S Masood Ahmed Kalhoro in respect of work i.e. supply of Liveries/sewing IC charge on ADP No.1740 and submitted bogus bill under No.1244 dated: 06.10.2015 for its payment as such the complainant being responsible citizen moved an application on 07.10.2015 to the District Accounts Office Larkana and its copy endorsed to Deputy Commissioner Larkana and informed about the facts and requesting therein for stoppage of the payment. Perusal of evidence reveals that there are material contradictions in evidence of complainant and witnesses. Complainant himself admitted that he had moved application to the Anticorruption Establishment and Circle Officer after due enquiry recommended that matter may be closed because no any loss has been caused to the government by the accused as the bill was not passed by the Treasury Office. Witness Riaz Hussain has stated that father and brothers of complainant are contractors of Provincial Highways Larkana and further admitted that FIR bearing Crime No.5/2014 of P.S Civil Line Larkana was registered against him, and he himself admitted that accused Zahid Ali and Yar Muhammad were witness and mashir in that FIR. Witness Ayaz Ali Shah admitted that he remained Executive Engineer Highways Larkana and he had sent bills for Uniform to Treasury Office Larkana and further admitted that due to non-availability of funds same were not passed and such payment was not made from government amount/any government head and bill was prepared by him being DDO. It is pertinent to mention here that accused are Clerks in Provincial Highways Larkana and they were not DDO and DDO powers were with Executive Engineer Ayaz Ali Shah who has been examined as witness and not joined him as accused by the complainant reason best known to him. Witness Ayaz Ali Shah has stated that on 26.12.2014 he was posted as Executive Engineer Provincial Highways Larkana and transferred on 6.11.2015 and not on 1.10.2015. It further reveals that complainant has admitted that an FIR bearing Crime No.5/2014 was registered against him and accused Zahid Ali and Yar Muhammad are witnesses of the case. The complainant examined himself and witness Riaz Hussain and given up the other one being unnecessary. It is clear from Illustration (g) of Art. 129 of Qanun-e-Shahadat, 1984, that such witness which was given up would have been un-favoured to the complainant. Reliance is placed on 2010 SCMR (Supreme Court of Pakistan) 846. The documents produced by the accused in their statement recorded u/s 342 Cr.P.C shows that Executive Engineer Provincial Highways Division Larkana had made report for lodging the FIR against complainant and Enquiry report on application made by complainant Fayaz Hussain Jatoi conducted by Circle Officers Anticorruption Establishment Larkana had recommended to close the matter. The complainant during his examination in chief has not produced, Exhibited his complaint and statement u/s 200 Cr.P.C. The complainant has not examined the person through whom he came to know that accused persons have submitted bill amounting to Rs.117000/-. The witness Syed Ayaz Ali Shah falsified the case of complainant by stating that bill was prepared by him being DDO and not prepared by the accused persons. The claim of complainant is disproved after examination of witness Syed Ayaz Ali Shah. The evidence produced by the complainant is contradictory on some material points therefore, false implication of accused cannot be ruled out. It has been held in 2015 P.Cr.L.J 1096 that:
“(c) Criminal trial---Benefit of doubt----Scope---while extending benefit of doubt to an accused, it was not necessary that there should be many circumstances which would create doubts---lf a single circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to award such benefit, not as a matter of grace and concession, but as a matter of right.”
The complainant has miserably failed to prove the charge against the accused persons. The complainant has failed to produce reasonable evidence or proof against the accused to connect them with the alleged offence and evidence brought on record is inconsistent and cannot be relied upon safely and no conviction can be awarded to the accused on such evidence, hence I decide this point as doubtful."
10. In the present case, the trial Court has rightly appreciated the evidence. The trial Court has rightly noted material contradictions in the evidence of the complainant and his witnesses. It is the matter of the record that appellant/complainant himself admitted that he had moved an application to the Anti-Corruption Establishment and Circle Officer. Enquiry was closed as no loss was caused to the Government exchequer, by the respondents/accused. Witness Riaz admitted before the trial Court that father and brothers of the complainant are Contractors of Provincial Highways Larkana and further admitted that FIR bearing Crime No.5/2014 of Police Station Civil Lines Larkana was registered against the complainant and admitted that accused Zahid Ali and Yar Muhammad were witnesses and mashirs in that case. Respondents/accused in their statements recorded under section 342, Cr.P.C produced a copy of FIR lodged against the appellant/complainant and enquiry report conducted on the application made by complainant Fayaz Hussain that Anti-Corruption Establishment had made enquiry and recommended for closure of the matter.
11. 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. In this regard reliance may be placed upon the case of The State and others v. Abdul Khaliq and others reported as (PLD 2011 Supreme Court 554).
12. In these circumstances, the trial Court was justified to observe that appellant/complainant failed to produce tangible evidence against the respondents/accused.
13. For the above stated reasons, instant acquittal appeal merits no consideration and the same is dismissed.
Judge