THE HIGH COURT OF SINDH AT KARACHI

Spl. Criminal Anti-Terrorism Acquittal Appeal No. 18 of 2022

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Amjad Ali Sahito

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Appellant : The State through Prosecutor General Sindh through Mr. Ali Haider Saleem Addl. P.G

Respondents : Nemo

Date of Hearing : 06.12.2023

Date of decision : 06.12.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Prosecutor General Sindh has filed this appeal against respondents/accused Dr. Zulfiqar Ali Mirza and others. It appears that respondents/accused were tried by learned Judge, Anti-Terrorism Court No.I, Karachi in Special Case No.A-218 of 2015. After regular trial, vide judgment dated 05.08.2021, respondents/accused were acquitted.

2. Brief facts leading to the filing of instant Acquittal Appeal are that on 03.05.2015 at 1230 hours, complainant Imtiaz Ali lodged FIR No. 157/2015 for offences under Sections 423/ 395/ 506(2)/ 147/ 148/ 149/ 427/ 337-H-ii PPC read with Section 7 of ATA 1997 at PS Badin, wherein he alleged that he was Vice President of Traders Association Sindh, having business of seed and fertilizer at Quaid-e-Azam Road, Badin and was supporter of PPP, due to political affiliation accused Dr. Zulfiqar Ali Mirza was annoyed and threatened him. On 03.05.2015 at 1030 hours, when he was present at his shop, it is alleged that accused Dr. Zulfiqar Ali Mirza along with co-accused and other 50/60 armed persons committed dacoity of Rs.37,00,000/- and damaged his shop. Thereafter, accused went away after making aerial firing. Hence, he lodged the aforesaid FIR against them. After usual investigation, challan was submitted against respondents/accused under the above referred sections.

3. Trial Court framed charge against the respondents/accused, to which they pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined ten witnesses. Thereafter, prosecution side was closed.

5. Trial Court recorded statement of respondents/accused under Section 342 Cr.P.C. Respondents/accused claimed their false implication in the case. Respondents/accused neither examined themselves on oath under section 340(2) Cr.PC to disprove the prosecution allegations nor led any evidence in their defence.

6. Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 05.08.2021 acquitted the respondents/accused, hence this acquittal appeal is filed.

7. The facts of the case in detail as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 05.08.2021 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Mr. Ali Haider Saleem Addl. P.G argued that trial Court failed to appreciate the evidence according to settled principles of law; that though five prosecution witnesses have not supported the case prosecution but respondents/accused were identified in the identification parade conducted before the concerned Magistrate, inpsite of that trial acquitted respondents/accused on minor contradictions. He prayed for allowing this acquittal appeal.

9. We have carefully re-examined entire prosecution evidence available on record with the assistance of Addl. P.G. It appears that trial Court acquitted the respondents/accused vide judgment dated 05.08.2021 mainly for the following reasons:

“25. The prosecution to prove its case has examined in all ten witnesses in the present case, out of them five witnesses namely Imtiaz Memon (complainant), Qazi Imtiaz Ali (Ex-10), Mola Bux Malah (Ex-11), Nisar Ahmed Memon (Ex-12) and Abdul Latif Mughal (Ex-14) are private and independent witnesses, however, they have not supported the case of prosecution nor implicated any of the accused to be culprit of present offence. So far as the point of identification parade is concerned, it has not been held in accordance with law. On this point the complainant has contracted the evidence learned Judicial Magistrate on the point of number of dummies. Not only this, but it is strange to note that learned Judicial Magistrate shown his ability to identify the accused, produced berfore him at the time of identification parade. Moreover, Dr. Shahzad Mallah (Ex-13) while recording his evidence has deposed that he did not examine any injured being Medico Legal Officer at Civil Hospital Badin. The remaining witnesses are police officials, but they have also not supported the case of prosecution. The I.O while recording his evidence did not depose about taking away amount of Rs.37,00,000/- from the shop of the complainant nor said amount has been recovered from any of accused, therefore, presence of accused persons at alleged place of incident became doubtful, as none of the prosecution witnesses has assigned specific role of any accused in the alleged incident.”

10. Record reflects that trial Court appreciated the entire evidence carefully and finally reached to the conclusion that the prosecution had utterly failed to establish the guilt of respondents/accused beyond reasonable doubt. The gist of the evidence reveals that five prosecution witnesses namely complainant P.Ws Qazi Imtiaz Ali, Mola Bux Malah, Nisar Ahmed Memon and Abdul Latif Mughal who were private and independent witnesses have not supported the case of prosecution and did not implicate any of the accused to be culprit of the alleged offence. So far as identification parade is concerned, complainant contradicted the Judicial Magistrate on point of number of dummies. Trial Court has rightly observed that there were material contradictions in the evidence of prosecution witnesses. Addl. P.G could not controvert those infirmities in prosecution case. It is a well-settled proposition of law that in an appeal against acquittal, the Court would not ordinarily interfere and would instead give due weight and consideration to the findings of the Court acquitting the accused which carries a double presumption of innocence, i.e. the initial presumption that an accused is innocent until found guilty, which is then fortified by a second presumption once the Court below confirms the assumption of innocence, which cannot be displaced lightly. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 SC 554) the Apex Court, while considering numerous pronouncements held that 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, or suffering from the errors of grave misreading or non-reading of the evidence. Such judgments should not be lightly interfered with and a 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 Apex 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. 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, and the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities.

11. The impugned judgment passed by learned trial Court is neither perverse nor speculative, but it is based upon sound reasons, which requires no interference by this court.

12. For the above stated reasons, there is no merit in the appeal against acquittal. Finding of the innocence recorded against the respondents/accused by the trial Court are based upon sound reasons which require no interference at all. As such, instant Acquittal Appeal is without merit and the same is dismissed.

J U D G E

J U D G E