ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acquittal Appeal No.S-47 of 2019

Date	Order with signature of Judge

Appellant: Mansoor Hussain Bhatti

Through Mr. Zulfiqar Ali Channa,

Advocate

State: Through Mr. Khalil Ahmed Maitlo,

DPG

Date of hearing: 22.11.2021

Dated of order: 22.11.2021

O R D E R

Zulfiqar Ali Sangi, J: This Criminal Acquittal Appeal has been filed by the Appellant against the judgment dated 28.02.2019, passed by learned 3^rd Civil Judge & Judicial Magistrate, Sukkur, whereby Respondent No.2 has been acquitted of the charges.

2. As per FIR, the allegation against the Respondent is that he and co-accused Sajid Ali had sell out a vehicle bearing Registration No.ASH-755 Chassis No.SF-41005437039 Engine No.PKF-532359, which was delivered to the Appellant; however when appellant got checked vehicle documents, two pages were missing and on approach, Respondent No.2 and co-accused for repayment and such assurance was also reduced in writing but they failed, hence appellant registered the FIR.

3. Learned counsel for the Appellant/Complainant, at the very outset submits that the impugned judgment passed by learned trial Court is illegal, unlawful and void; that learned trial Court while passing the impugned judgment has not appreciated the evidence of the Appellant/Complainant and his witnesses with regard to commission of offence committed by the Respondents/accused; that the learned trial Court did not consider the evidence of complainant, which was consistent with the contents of FIR and was duly supported by the prosecution witnesses wherein respondent/accused was specifically attributed proper role of receiving amount; that impugned judgment is based on presumption and assumption so also on surmises and conjectures; that learned trial Court did not apply its judicial mind while passing the impugned judgment; that there is no major contradictions, however the minor discrepancies are not fatal to the case of appellant, even otherwise the minor discrepancies should have been ignored instead of acquitting the accused. In the last, he submits that impugned judgment passed by learned trial Court may be set-aside and respondent may be convicted.

4. Learned DPG representing the State argued that the learned trial Court has rightly passed the impugned judgment by considering each and every aspect of the case; besides deeply considered the material available on record hence left no any door for interference of this Court in the acquittal judgment.

5. Heard arguments. Record perused.

6. Perusal of record shows that appellant has miserably failed to establish extra ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial court may be interfered with by this court. This is a case of alleged cheating wherein as per allegation of Appellant, he purchased a car from Respondent No.2 through co-accused Sajid; however when he got checked some documents were missing so he returned such vehicle and demanded his payment and in this regard accused persons entered into an agreement for return of amount in ten days but they failed. From perusal of agreement, it appears that name of Respondent No.2 is not mentioned; besides appellant/complainant has stated in his examination in chief that he bought alleged vehicle from co-accused Sajid Ali and payment in this regard has also paid to him. Appellant/Complainant has also admitted in his cross-examination that there is no document in the name of accused Mukhtiar. He further stated in his cross-examination that Mukhtiar is not owner of car voluntarily said owner of car is Jan Muhammad Solangi; besides major contradictions in the statements of prosecution witnesses. For the sake of convenience, penultimate paragraph of impugned judgment is reproduced as under;-

“Prosecution has failed to connect accused Mukhtiar with the alleged offence as complainant stated during his cross-examination that there is no document in the name of accused Mukhtiar and that he didn’t know accused Mukhtiar prior to such deal. PW Muhammad Raheel also stated during his cross-examination that accused Mukhtiar’s name is not mentioned in any agreement. Moreover as per IO nothing came against accused Mukhtiar during investigation except his nomination in FIR”.

7. It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the later case. Mere disregard of 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. While examining the facts in the order 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 the case of MUHAMMAD IJAZ AHMAD V/S FAHIM AFZAL (1998 SCMR 1281) and JEHANGIR V/S AMINULLAH AND OTHERS (2010 SCMR 491). It is settled principle of law as held in the plethora of case law 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-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

8. There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons do not warrant any interference by this Court and is accordingly maintained. Resultantly, this Criminal Acquittal Appeal, being devoid of merit, is hereby dismissed.

Faisal Mumtaz/PS JUDGE