IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acq. Appeal No.S-22 of 2021
Appellant/Complainant: Ghulam Munawar Soomro
Through Mr. Abid Hussain Qadri, Advocate
Date of hearing: 19.04.2023
Date of decision: 19.04.2023
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JUDGMENT
ZULFIQAR ALI SANGI, J.:- This acquittal appeal is directed against Judgment dated 12.02.2021, passed by learned Sessions / Special Judge for Gas Utility Court, Larkana in Special Case No.05/2020 (Re. The State v/s. Sajjad Ali Bhutto) emanating from F.I.R No.27/2020 for offence punishable under sections 15, 17, 24 Gas Theft Control and Recovery Act, 2016 registered at Police Station Market, whereby he had acquitted the accused/respondent of charge by extending him benefit of doubt.
2. The facts necessary for disposal of instant acquittal appeal as per F.I.R. are that appellant/complainant on 12.02.2020 received spy information that accused Sajjad Ali Bhutto is committing theft of gas for his tea hotel, he raided the spot alongwith his technical team and on their inspection it transpired that the gas is being stolen in the said hotel by affixing rubber pipe with clip in line of commercial meter bearing No.2562381000 in the name of Shoukat Ali, but same was disconnected due to non payment, they apprehended the accused on spot, seized the articles, removed illegal connection, repaired the gas line, captured photographs and registered instant F.I.R.
3. After completing trial and hearing learned counsel for the respective parties, the trial Court acquitted the accused by extending him benefit of doubt vide impugned judgment. Hence, this acquittal appeal.
4. Heard learned counsel for the appellant and gone through the material available on record.
5. Learned counsel for the appellant mainly contended that the learned Trial Court has not appreciated the evidence in its prospective manner and contradictions so pointed out in the impugned judgment are not of such standard to acquit the accused. Learned counsel further contended that the learned Trial Court has not appreciated the evidence according to principles of evaluating the evidence in criminal cases and has erroneously extended benefit of doubt in favour of accused/respondent. He further contended that the prosecution had proved its case beyond the shadow of reasonable doubt and the acquittal of the accused/respondent has caused miscarriage of justice. He lastly contended that the impugned judgment passed by the learned Trial Court may be set-aside and instant Criminal Acquittal Appeal may be allowed.
6. I have perused the impugned judgment and other material available on the record. The learned Trial Court has properly commented on all aspects of the case and has rightly come to a conclusion that the prosecution could not establish the case against the respondents/accused beyond shadow of doubt for which following reasons are given in the impugned judgment:
“The prosecution during trial in all examined four P.Ws viz. complainant Deputy Manager Ghulam Munwar, eyewitness Engineer Mehboob Ali, mashir PC Khalil Ahmed and I.O ASI Ali Bux as PW-01 to PW-04 at Ex.03 to 06, who while recording evidence have no doubt supported the case of prosecution on point of happening of incident on the date, time and place introduced in FIR that present accused was running tea hotel where allegedly theft of gas for commercial use was being committed and on point of conducting investigation by I.O, but the case of prosecution from initial stage of registration of FIR is itself ambiguous as the FIR reflects that complainant on arrival verified that theft of gas was being committed from disconnected commercial meter appearing in the name of one Shoukat Ali and accused during trial has taken plea that he being servant was only preparing tea and hotel belongs to said Shoukat, but unfortunately he has not been challaned in the case as an accused to face the trial, it seems that either I.O appears to be inefficient or he was personally interested to facilitate the actual accused, even during trial Law Officer did not care to move an application to join him as accused and also no substantial proof is brought on record to show that accused Sajjad Ali was running the hotel in capacity of its owner and also further story of FIR creates doubt on prosecution case as on the one hand it is stated in FIR that accused on arrival of complainant party escaped away while on other hand in its end his arrest has been shown which is very questionable. So for loss amount of Rs.1,00,000/- out of Rs.7,35,800/- deposited by present accused is concerned for which he has given clarification that it was provided/arranged by said Shoukat Ali being owner of hotel to deposit in the Court at bail stage, however as per affidavit of accused Sajjad Ali it was deposited under protest, therefore without further lengthy discuss, I have been satisfied that the case of prosecution has become highly doubtful, even for extending benefit of doubt there is well settled law of Hon’ble Superior Courts that; “where single circumstance creates doubt in prudent mind its’ benefit has to be given to the accused not as matter of grace but as matter or right”, reliance is placed on PLD 2003 Karachi-606 (e), on similar point there is case law of Honourable Supreme Court of Pakistan reported in 2009 SCMR-230 (b & c) and 2014 SCMR-749 (e), therefore the Point No.1 is not proved.”
7. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Honourable Supreme Court in case of State Versus Abdul Khaliq and others (PLD 2011 SC-554), wherein the Hon’ble Supreme Court has held as under:-
From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.
8. In view of the foregoing, it reveals that the impugned judgment is well founded and well-reasoned, based on proper appraisal of the evidence thus it calls for no interference by this Court. Even otherwise, it is re-iterated that the acquittal recorded by the Court of competent jurisdiction, would not be disturbed until and unless misreading or non-reading of the evidence resulting into miscarriage of justice is found, which has not been noticed. Consequently, there seems to be no substance in the present acquittal appeal, it is accordingly dismissed.
JUDGE
Manzoor