IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Acquittal Appeal No.S-90  of  2021

Appellant                         Fazal Muhammad Jamali, through

Mr. Abid Hussain Qadri, Advocate.

Respondents                   Abdullah Bhutto & others.

                                      Mr. Ali Anwar Kandhro, Addl. P.G.

Date of hearing      : 08.09.2022.

Date of judgment   : 08.09.2022.

O R D E R.

Naimatullah Phulpoto, J.- Respondent Abdullah son of Lal Mohammad Bhutto was tried by learned Sessions Judge, Kamber-Shahdadkot at Kamber, in Sessions Case No.228/2020, re-The State v. Abdullah Bhutto, arisen out of Crime No.35/2020, registered at Police Station Sijawal, for offence under Sections 15 of Gas Theft Control & Recovery Act, 2016 and 462-C & 427, PPC. After regular trial, vide judgment dated 30^th July, 2021 the respondent/accused was acquitted while extending benefit of doubt. Appellant Fazal Mohammad Jamali has filed this acquittal appeal against the acquittal recorded by the trial Court.

          2.       Brief facts of the prosecution case as mentioned in the second paragraph of the impugned judgment are mainly that complainant/appellant being Deputy Manager, SSGC Incharge Theft Cell Regioin Larkana had gone on 30.06.2020 at SSGC Office Mirokhan for checking gas line, where one official supplied him spy information that one Abdullah Bhutto was committing theft of sui gas with the help of one inch rubber pipe from main line of street towards his ice factory, where commercial gas meter is taken off and as per SOP he is not customer of SSGC.  On receiving such information, complainant Fazal Mohammad along with staff of SSGC Mirokhan office namely Anwar Ali Superintendent SSGC Office Mirokhan and Ali Dost Senior Helper SSGC Office Mirokhan and other technical team went at the pointed place where they saw that one rubber pipe was affixed and one generator was running with the help of above illegal rubber pipeline. They disconnected above line with help of technical team and repaired it and then returned back and informed to their high-ups through mobile phone and thereafter came at PS, where he lodged FIR against the accused.

          3.       After usual investigation challan was submitted against the respondent/accused.

          4.       Trial Court framed charge against the respondent and the respondent pleaded ‘not guilty’ and claimed to be tried. At the trial prosecution examined four witnesses; thereafter, prosecution side was closed.

          5.       Trial Court recorded statement of accused under Section 342, Cr.P.C, in which he claimed false implication in this case and denied the prosecution allegations.  Respondent/accused did not lead evidence in his defence and declined to give statement on oath.

          6.       Trial Court after hearing the learned Counsel for the parties recorded acquittal in the favour of the respondent vide judgment dated 30.7.2021.

          7.       Mr. Abid Hussain Qadri, learned advocate for the appellant/ complainant, argued that respondent has committed theft of sui gas by affixing illegal rubber pipe in the SSGC Pipeline, thereby causing huge loss to the exchequer. Prosecution had proved its case against the respondent at trial. It is further contended that the trial Court has recorded acquittal in the favour of the respondent without assigning the sound reasons and impugned judgment is perverse.  Lastly, it is submitted that acquittal may be converted into the conviction.

          8.       Mr. Ali Anwar Kandhro, learned Addl. P.G., argued that prosecution has failed to prove it’s case against the respondent/accused, because the case property of pipeline with which theft of the sui gas was committed by the respondent/accused was not produced before trial Court and nothing was recovered from the place of incident to connect the respondent/accused with the alleged offence. Lastly, it is submitted that the judgment of the trial Court is based upon sound reasons and prayed for dismissal of the acquittal appeal.

          9.       I have carefully heard learned advocate for the appellant/complainant and learned Addl. P.G. for the State, perused the depositions of the prosecution witnesses and the impugned judgment, felt no necessity to issue the notices to the respondent/accused. I have come to the conclusion that the trial Court has rightly acquitted the respondent, mainly for the reasons that there are material contradictions in the evidence of prosecution witnesses examined at trial. The complainant Fazal Mohammad deposed that on 27.6.2020 he left his office for checking of theft of Sui Gas at Mirokhan, while eye-witness Anwar Ali deposed that on 30.6.2020 complainant Fazal Mohammad came at their office at Mirokhan; complainant deposed that he reached at Mirokhan SSGC Office at about 1.00 p.m., while as per eye-witness complainant came at Mirokhan SSGC office at 1200 hours. According to I.O. complainant came at PS with letter of Chief Manager SSGC Larkana for lodgment of FIR; however, no such letter of Chief Manager SSGC, Larkana was produced by the complainant or I.O. at trial. Record also reflects that case property was not produced before the trial Court and there were contradictions in the prosecution evidence. Counsel appearing for the appellant/complainant could not satisfy the Court about the infirmities as highlighted by the trial Court in it’s judgment. In such circumstances, I have no hesitation to hold that prosecution failed to prove it’s case against the respondent/accused.

          10.     So far the appeal against the acquittal is concerned, after acquittal respondent/accused has acquired double presumption of innocence.  This Court would interfere only if the judgment was arbitrary, capricious or against the record, but in this case there were number of infirmities, as mentioned above.  Impugned judgment of acquittal, in my considered view, did not suffer from any misreading and non-reading of evidence. As regard to the consideration warranting the interference in the appeal against acquittal and an appeal against conviction, principle has been laid down by the Hon’ble Supreme Court in various judgments.  In the case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo (1993 SCMR 585), Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal.  Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

“14.     We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice.  Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

            11.       For what has been discussed above, I am of the considered view that the impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan.  Neither there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, Criminal Acquittal Appeal No.S-90 of 2021 is without merits and the same is dismissed.

                                                                                                JUDGE

Qazi Tahir PA/*