IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acq. Appeal No. S-96 of 2021

1. For orders on office objection at flag `A`

2. For orders on MA No.4604/2021

3. For hearing of main case

Date of hearing: 27.09.2021

Dated of decision: 27.09.2021

Mr. Gulzar Ali Gilal, Advocate for the appellant

O R D E R

Zulfiqar Ali Sangi, J. – Instant Criminal Acquittal Appeal is filed against the judgment dated 07.08.2021, passed by learned Judge Anti-Corruption (Provincial) Sukkur Division, in Direct Complaint No.120/2015, whereby the learned trial Court has acquitted the respondent No.1/accused Gul Hassan of the charge.

2. It is alleged that accused Gul Hassan while serving as a Sindhi Language Teacher (BPS-15) in Education & Literacy Department got enrolled himself as an Advocate and despite enrolment as an Advocate, he continued to receive the salary from the Government which caused heavy loss to the Government Exchequer, hence the complainant moved an application to Sindh Bar Council which suspended the enrolment of the accused and complainant also filed the direct complaint before the Anti-Corruption Court Sukkur.

3. Learned trial court after conducting preliminary enquiry in the direct complainant brought the same on regular file and then framed charge against the accused, who pleaded not guilty and claimed to be tried.

4. In order to substantiate his case complainant Syed Faseeh Hyder Shah examined himself as PW-1 at Ex.4, who produced corrigendum dated 02.05.2003, joining report of accused as SLT, medical fitness certificate, office order dated 28.02.2003, pay slip, copy of criminal miscellaneous application u/s 133 Cr.P.C filed by accused against complainant, copy of application us/ 22-A Cr.P.C filed by accused against complainant, list of members of District Bar Association Khairpur, copy of application given by complainant to Sindh Bar Council, Circular of Sindh Bar Council, Agenda of meeting of Executive Committee of Sindh Bar Council, date of collection Form of Sindh Bar Council, letter for verification of service of accused, copy of application given by complainant to Deputy Director Anticorruption Establishment, office order dated 03.12.2005 of EDO Karachi, memo of complaint, statement u/s 200 Cr.P.C and photo copy of CNIC at Ex.4-A to 4-S respectively. PW-2 Amanullah Solangi was examined at Ex.5, who produced statement u/s 202 Cr.P.C along with photo copy of his CNIC at Ex.5-A & 5-B respectively, PW-3 Rahat Ali was examined at Ex.6, who produced statement u/s 202 Cr.P.C along with photo copy of his CNIC at Exh.6-A and 6-B respectively. Thereafter the learned counsel for the complainant closed his side under statement dated 15.06.2021 at Ex.07.

5. Statement of accused under Section 342, Cr.P.C was recorded at Ex.8, in which the accused has denied the allegations leveled against him and claimed to be innocent. However, he did not produce any evidence in his defence nor examined himself on oath.

6. After hearing the learned counsel for the parties, learned trial Court acquitted the accused of the charge, hence, this Criminal Acquittal Appeal.

7. Learned counsel for the appellant/complainant has contended that the impugned judgment passed by the learned trial Court is illegal, unlawful and against the principle of justice; that this is the case of complete misreading and non-reading of evidence; that the learned trial Court has failed to appreciate the version of the complainant supported by other witnesses; that the complainant has fully proved his case against the accused. He prayed for converting acquittal of the respondent into conviction.

8. I have heard the learned Counsel for the appellant/complainant, and perused the material available on the record.

9. 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. It appears that the charge against the respondent/accused was of cheating, deceiving and forgery but complainant and witnesses have failed to prove the said allegations against the accused/respondent by producing sound and cogent evidence as it does not appear from their evidence as to who was deceived by the accused or which document was falsely or fraudulently made by the accused, therefore, the trial court has correctly reached at the conclusion that ingredients of section 420, 465, 468 PPC are missing in the case.

10. 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 latter case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, and arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. 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. Fahim Afzal (1998 SCMR 1281) and Jehangir v. Amanullah 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.

11. 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 does not warrant any interference by this Court and is accordingly maintained and the instant appeal is dismissed along with pending application.

JUDGE

Suleman Khan/PA