IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Acquittal Appeal No.S- 25 of 2021
Appellant/complainant: Ghulam Sarwar son of Achar Bharo,
Resident of village Azmat Bharo, Taluka Ghotki and District Ghotki.
Through. Mr. Abdul Wahab
Shaikh, advocate.
Private respondents : Not
on notice.
Date of hearing
: 05-04-2021.
Date of decision : 05-04-2021.
JUDGMENT
IRSHAD ALI SHAH,
J.- The private respondent was tried allegedly
for issuing cheque worth Rs. 388,000/-,
dishoneslty in favour of the appellant. On conclusion of the trial, he was
acquitted by learned 1st Civil Judge & Judicial Magistrate
(MCTC) Mirpur Mathelo vide his judgment dated 02-02-2021, which is impugned by
the appellant before this Court by preferring the instant Acquittal Appeal.
2. It is contended by learned counsel for
the appellant that the private respondent has been acquitted by learned trial
Magistrate by way of non-speaking judgment and on basis of improper assessment
of evidence, therefore such acquittal is liable to be set-aside by this Court.
3. I have considered the above arguments
and perused the record.
4. The FIR of the incident has been lodged
with delay of about three months; such delay having not been explained
plausibly by the appellant; could not be over looked. The manager of the UBL
Bank who allegedly issued the memo as per SIO/SIP Ali Nawaz was not examined by
him. Why? No explanation to it is offered by the prosecution. The appellant is
a low paid employee (constable) of police department. How and under what
circumstances he has been able to arrange for such a huge money to extend loan?
It is really surprising. Admittedly there is business dispute between the
brother of the appellant and private respondent, such dispute could not be lost
sight of. The element of dishonesty even otherwise is lacking in the present
case. In these circumstances, learned trial Magistrate was right to record
acquittal of the private respondent by way of impugned judgment, which is not
found to be arbitrary or cursory to be interfered with by this Court under the
pretext that it is rendered by learned trial Magistrate by way of non-speaking
judgment.
5. In case of State and others vs. Abdul Khaliq
and others (PLD 2011 SC-554),
it has been observed by the Hon’ble Apex 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”.
6. In
view of the facts and reasons discussed above, instant criminal acquittal
appeal fails and it is dismissed in limine. Judge
Nasim/P.A