IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Revision Application No.S- 05
of 2021.
Appellant: Akhtiar Ali son of Abdul
Rahim alias Rahim BuxMirani.
The
State Through
Mr.Siraj Ali Khan, Additional Prosecutor General.
Date of hearing: 13.01.2022
Date of Order: 13.01.2022
Mr. Amanullah G. Malik, Advocate for Applicant/surety.
Mr. Siraj Ali Khan, Additional P.G.
O R D E R.
AMJAD
ALI SAHITO, J-.This Criminal Revision application is directed against the order dated 21.12.2020
passed by learned Additional Sessions Judge, Ubaurowhereby he has imposed full
amount of fine of Rs. 300,000/- upon the applicant/surety in Sessions case
No. 08/2014 Re-State Vs. Ali Asghar and others bearing Crime No. 55/2013
registered at Police Station Dad Leghariunder section 302, 34 PPC.
2. Brief
facts leading to the filing of above revision are that accused Abdul Ghafoor
Mahar was granted bail and was directed to furnish his solvent surety in the
sum of Rs. 300,000/- and PR bond in the like amount. Applicant Akhtiar Ali stood surety for him
and executed surety bond to produce the accused before the Court on each and
every date of hearing. In case of failure surety was directed to pay fine
amount of Rs. 300,000/- in breach of surety bond. Accused Abdul Ghafoor Mahar
during pendency of case did not appear before the Court and jumped away and such
bail was forfeited. NBW against accused and notice to applicant/surety was ordered
to be issued by the trial Court. The notice upon surety was served and he was
given sufficient time by the trial Court to produce accused but he failed to
produce accused and stated that he is poor person and stood surety for accused
on humanitarian grounds.
3. Learned counsel for the
applicant/surety mainly argued that the surety is poor person and he stood
surety for accused on humanitarian grounds and is unable to deposit the amount
as the surety has no source of income except the land involved in this case. He
further argued that the procedure adopted by the learned trial Court while
imposing the fine is against the provisions of section 514 Cr.P.C.
4. Learned Additional Prosecutor General argued
that accused remained absent in trial Court and notice U/s 514 Cr.P.C was
issued upon the surety and it was served him which is evidence from perusal of impugned
order. It has also been argued by learned Additional P.G that proper procedure
as contained in section 514 Cr.P.C has been adopted in this case.
5. In
order to properly appreciate the arguments of learned counsel for the parties
section 514 Cr.P.C is re-produced as under:
514. Procedure of
forfeiture bond. (1) Whenever it is proved to the satisfaction of
the Court by which a bond under this Code has been taken, or of the Court of a
Magistrate of the first class, or when the bond is for appearance before a
Court, to the satisfaction of such Court, that such bond has been
forfeited, the Court shall record the grounds of such proof, and may call upon
any person bound by such bond to pay the penalty thereof, or to show cause why
it should not be paid.
(2) If
sufficient cause is not shown and the penalty is not paid, the Court may
proceed to recover the same by issuing a warrant for the attachment and sale of
the movable property belonging to such person or his estate if he be dead.
(3) Such
warrant may be executed within the local limits of the jurisdiction of the
Court which issued it; and it shall authorize the attachment and sale of any
movable property belonging to such person without such limits, when endorsed by
the [District Officer (Revenue)] within the local limits of whose jurisdiction
such property is found.
(4) If
such penalty is not paid and cannot be recovered by such attachment and sale,
the person so bound shall be liable, by order of the Court which issued the
warrant, to imprisonment in the civil jail for a term which may extend to six
months.
(5) The
Court may at its discretion, remit any portion of the penalty mentioned and
enforce payment in part only.
(6) Where
a surety to a bond dies before the bond is forfeited, his estate shall be
discharged from all liability in respect of the bond.
(7) When
any person who has furnished security under section 107 or section 118…..is
convicted of an offence the commission of which constitutes a breach of the
conditions of this bond, or of a bond executed in lieu of his bond under
section 514-B, a certified copy of the judgment of the Court by which he was
convicted of such offence may be used as evidence in proceedings under this
section against his surety, or sureties, and, if such certified copy is so
used, the Court shall presume that such offence was committed by him unless the
contrary is proved. `
6. From
the perusal of the order of the trial Court dated 21.12.2020 it transpires that
applicant stood surety for accused Abdul Ghafoor Mahar in the sum of Rs. 300,000/-
and PR bond in the like amount and accused Abdul Ghafoor Mahar remained absent for
which applicant/surety was duty bound to
produce the accused on each and every date of hearing. Surety has failed to
disclose cogent reason for not producing the accused before trial Court. It is very much clear
that trial Court has adopted the procedure as provided U/s 514 Cr.P.C. As
regards to contentions of learned defence counsel that entire surety amount has
been forfeited and no lenient view has been taken by the trial Court. On this
point, Honourable Supreme Court of Pakistan in the case of
SaeedAkhtar v. The State (2009 SCMR 834) has been pleased to observe as under;
“It has been held by this Court on various
occasions that no lenient view should be taken and entire amount of the bail
bond should be recovered as an amount of penalty. In this regard reference may
be made to ZeeshanKazmi v. The State PLD 1997 Sc 267, it was observed:--
“It has now become common that the accused
persons involved in heinous offences, if succeed, in obtaining bail, jump the
bail bonds. To check the above tendency and to provide deterrent special
provisions have been enacted and/or are being enacted in the special statutes
prescribing the minimum amount of bail bond …..Keeping in view the above bleak
scenario which has emerged, with the passage of time on account of the lack of
respect of the rule of law, and because of the unprecedented continuous steep
inflationary tendency resulting in the loss of money value, the Courts should
not show any undue leniency while forfeiting bail bond amount. Their approach
should be dynamic and progressive-oriented with the desire to discourage the
accused persons to jump bail bonds. There is no legal requirement that full
bail bond amount should not be forfeited, on the contrary, once an accused
person jumps bail bond, the entire surety amount becomes liable to be forfeited
in the absence of any mitigating circumstances……”
For the foregoing reasons, we do not find any
merit in this petition which is dismissed and leave refused.
7. Once
an accused person jumps bail bond, entire surety amount becomes liable to be
forfeited in the absence of any mitigating circumstances. In this case surety
has not brought any mitigating circumstances. Approach of the trial Court
appears to be dynamic and progressive-oriented with the desire to discourage
the accused persons to jump bail bonds. Order of learned trial Court
is based upon sound reasons and did not require interfere.
8. For
the foregoing reasons I do not find merit in this revision application which is
dismissed.
JUDGE
Irfan/PA
IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR.
Criminal
Acquittal Appeal No.S-41 of 2021.
Appellant: The Prosecutor General
Criminal Prosecutor Service, Department Govt. of Sindh, Karachi.
Through
Mr. Aftab Ahmed Shar, Additional Prosecutor General.
Respondent: Habibullah son of KarimBux
Lund.
Date of hearing: 10-02-2020.
Date of Judgment: 10-02-2020.
J U D G M E N T
AMJAD ALI SAHITO, J-. Being aggrieved and dissatisfied with the impugned
judgment dated 18-07-2019, passed by learned1st Additional Sessions
Judge/MCTC NaushehroFeroze in Sessions Case No. 850/2014 Re. The State Vs.
Habibullah Lund, offence u/s 23(i) (a), Sindh Arms Act, 2013, Crime No. 66/2014
registered at police Station Mithianiwhereby the respondent was acquitted of the
charge.
2. The brief facts of the prosecution case
are that on 29-10-2014 complainant SIP/SHO Din Muhammad Leghari lodged the FIR
alleging therein that on the said date he along with his subordinate staff
namely Aijaz Ali, PC Amir Bux, PC Mehar Ali and DPC Muhammad Saleh left Police
Station vide entry No. 09 at 1350 hours in Government vehicle for investigating
of Crime No. 64/2014, offence u/s 302, 337H(ii), 147, 148, 149, 504 PPC. The
private mashirs namely GhulamRasool Lund and Abdul Khalid Lund were also
accompanied with them. When they reached near village Dittal Lund, where they
received spy information that accused Habibullah Lund wanted in the above rcime
was going by the road side to his village Bhorti. On receipt of such information, they proceed
towards the pointed place and reached at link road Bhorti near Mango garden of
Abdul HaqueBhurt, where at about 1530 hours they apprehended the said persons.
On enquiry, the said persons disclosed his name as Habibullah son of
KarimBuxbycaste Lund r/o village DittalLumd Taluka Kandiaro. During his personal
search one 30 bore pistol along with five live bullets in its magazine was
recovered from his possession, to which accused disclosed that he used the same
in commission of murder of Khan Muhammad. Such pistol, magazine and bullets
were sealed at the spot, then such mashirnama was prepared at the spot in
presence of above mashirs. Then accused and case property were brought to
police station, where complainant has registered the FIR against the accused on
behalf of the state.
3. The learned trial after observing all
formalities and recording evidence of the complainant party as well as
statements of accused, acquitted the respondent through the impugned judgment.
4. Learned Additional
Prosecutor General for the Statesubmits that though all the witnesses have
supported the case but the learned trial Court has erroneously acquitted the
respondent without appreciating their corroborative evidence. He prayed for
setting aside the impugned judgment so also awarding conviction and sentence to
the respondent.
5. I have heard learned Deputy Prosecutor
General, Sindh representing the State and have gone through the evidence as
well as impugned judgment available on record. The criterion of interference in
the judgment against acquittal is not the same as against the cases involving a
conviction. The scope of interference in
an appeal against acquittal is narrow and limited for the reasons that 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.
6. From perusal of
material brought on record, it appears that complainant in the FIR has disclosed
that both the private mashirs along with them, when they left police station
for investigation of main crime No. 64/2014 while he during the cross
examination, the complainant SIP Din Muhammad has deposed that on 29-10-2014 he
sent WPC Sikandar who went to Mithiani Town from where brought both the private
mashirs at police station. Complainant during his cross examination has deposed
that Munshi prepared mashirnama of arrest and recovery on the spot at his
dictation while mashirGhulamRasool has deposed during his cross examination
that memof of arrest and recovery was prepared by SHO Din Muhammad Leghari. It
is also surprising to note that the complainant SIP Din Muhammad has not
deposed anywhere as to whether he has sent the recovered pistol to Forensic
Science Laboratory in order to know its working condition, even the FSL report
has not been produced during the trial before the trial Court, which single
thing creates uncertainty in the prosecution case. In view of above the
prosecution evidence is doubtful as it is found contradictory and inconsistency
on material particulars without being corroborated by independent evidence,
which creates reasonable doubt.
7. I have also carefully perused the record
of the caseand have no hesitation to observe that impugned judgment is speaking
one and elaborate which does not suffer from any illegality, gross
irregularity, infirmity, hence, it does not require any interference by this
Court. It is settled law that if a simple
circumstance creates reasonable doubt in a prudent mind about the guilt of the
accused, then he will be entitled to such benefit not as a matter of grace and
concession but as a matter of right. Reliance in this regard is placed on the
cases of TARIQ PERVEZ v. THE STATE(1995
SCMR 1345), MUHAMMAD SAEED v. THE STATE
(2008 P.Cr.L.J. 1752), GHULAM MURTAZA v.
THE STATE (2010 P.Cr.L.J. 461), MOHAMMAD MANSHA v. THE STATE (2018 SCMR 772).
8. 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 the presumption of double innocence is attached in
the later 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 a misreading, non-appraisal of evidence or
is artificial, arbitrary and lead to a gross
miscarriage of justice. Mere disregard of technicalities in a criminal trial
without resulting injustice is not enough for interference in the judgment of acquittal gives rise to a strong presumption of innocence rather double
presumption of innocence is attached to such an order. While examining the
facts in the order/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 the case of MUHAMMAD IJAZ AHMAD v. FAHIM
AFZAL(1998 SCMR 1281) and JEHANGIR v. AMINULLAH
AND OTHERS (2010 SCMR 491).It is also a settled principle of law as held in a 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.
9. Suffice it to say that there is hardly any
improbability or infirmity in the impugned judgment of acquittal recorded by
the learned trial Court, which is based
on sound and cogent reasons that do not
warrant any interference by this Court. The appellant has
miserably failed to establish extraordinary
reasons and circumstances, whereby the acquittal judgment recorded by the trial
Court may be interfered with by this court.
10. This is a Criminal Acquittal Appeal and I cannot
lose sight of the doctrine of double innocence, which is attached to such
proceedings. Consequently, the instant Criminal Acquittal Appeal is dismissed.
JUDGE
Nasim/P.A