Mst. Tehmina Hayat Mirza VS Ch. Aftab Ahmad etc.

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

Crl. Appeal. No. 340 of 2022

Tehmina Hayat Mirza Vs.

Ch. Aftab Ahmad, etc.

Appellant by : M/s Malik Zahoor Ahmed Awan and Ali Hussain Bhatti, Advocates.

Respondents by : Mr. Samar Naveed Malik, Advocate for Respondents No. 1 and 2.

Mr. M. Waqas Haral, DDPP.

Date of Hearing : 15-09-2026.

SHAHRUKH ARJUMAND, J.-

1.The appellant [Mst. Tehmina Hayat Mirza] (“Appellant”) has assailed Judgment dated 13.9.2022 (“Impugned Judgment”) passed by the learned Sessions Judge (West), Islamabad (“Appellate Court”) whereby Judgment dated 13.7.2022 passed by learned Judicial Magistrate, West, Islamabad (“Trial Court”) was set aside and respondents No.1 and 2 have been acquitted of the charge in FIR No.476/2020 dated 08.10.2020 registered for the offences under Section 408/34, PPC with Police Station Industrial Area, Islamabad.

2.Brief facts, as set out in the memorandum of appeal, are that on 08.10.2020, appellant lodged FIR No.476/2020 under Sections 408/34, PPC, alleging that she had employed Aftab Ahmad as a driver, who had

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been working with her for about ten years and subsequently employed his son namely Muhammad Mubashar Aftab for business purposes. It was alleged that on 15.12.2017, the appellant withdrew US$40,000 from her bank account and handed over the said amount to respondent No.2 for onward deposit in account of one Israr, who was then in Dubai. The amount was allegedly handed over in presence of witnesses, but when the appellant demanded a receipt, she came to know that the amount had been misappropriated by respondent No.2 in connivance with respondent No.1 and another person. It was further alleged that respondent No.1 subsequently undertook to return the amount, but failed to do so. After completion of investigation, report under Section 173, Cr.P.C. was submitted before the learned Trial Court. Charge under Sections 408/34, PPC was framed against respondents No.1 and 2, to which they pleaded not guilty and claimed trial. The prosecution produced six witnesses in support of its case. Upon conclusion of the trial, the Trial Court convicted respondents No.1 and 2 and sentenced each of them to three years’ rigorous imprisonment along with a fine of Rs.50,000/-, and in default thereof, to undergo further three months’ simple imprisonment. Aggrieved thereof, the respondents preferred an appeal before the Appellate Court while appellant also preferred criminal revision. The appeal preferred by respondents was allowed vide Impugned Judgment dated 13.9.2022, whereby the judgment of the Trial Court was set aside and the respondents were acquitted. However, the revision preferred by appellant was dismissed declaring it infructuous. Hence, the instant appeal against acquittal.

3.Learned counsel for the appellant contends that the Impugned Judgment is contrary to evidence available on record and is based on improper appreciation thereof. He submits that prosecution witnesses remained consistent on material particulars and their testimony was not materially shaken during cross-examination. He further submits that respondents, in their statements recorded under Section 342, Cr.P.C, admitted their employment and entrustment of amount, while the documentary evidence produced by prosecution also corroborated its case.

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Learned counsel contends that the Appellate Court failed to properly appreciate the ocular as well as documentary evidence and extended benefit of doubt to respondents on basis of minor discrepancies and irrelevant considerations. He, therefore, submits that the Impugned Judgment is not sustainable and prays that the acquittal of respondents No.1 and 2 be set aside and the matter be decided in accordance with law.

4.Conversely, learned counsel for respondent No.1 & 2 contends that the Impugned Judgment is based on proper appreciation of evidence and material available on record and calls for no interference. He submits that the prosecution failed to establish the charge beyond reasonable doubt and that the Trial Court has rightly extended the benefit of doubt to respondent No.1 & 2.

5.Learned DDPP adopts the submissions of learned counsel for appellant and prays for acceptance of the instant appeal.

6.Arguments heard and record perused with the able assistance of learned counsel for the parties.

7.The principal question requiring determination is whether the learned Appellate Court, while setting aside the conviction recorded by the Trial Court, committed any misreading or non-reading of material evidence or arrived at a conclusion which could be termed perverse, arbitrary or wholly unreasonable so as to warrant interference by this Court in an appeal against acquittal?

8.At the outset, it is necessary to bear in mind the settled distinction between an appeal against conviction and an appeal against acquittal. An accused is presumed innocent unless his guilt is established in accordance with law. Once a competent Court records an acquittal after appreciation of the evidence, the presumption of innocence is further strengthened, giving rise to the well-known doctrine of “double presumption of innocence”. The Appellate Court, though competent to reappraise the evidence, exercises such jurisdiction with greater caution where the judgment under challenge is one of acquittal. Interference is warranted

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only where the judgment is found to be perverse, arbitrary, capricious, and fanciful, based upon gross misreading or non-reading of material evidence, or otherwise results in miscarriage of justice.

9.The Supreme Court of Pakistan in Muhammad Mansha Kousar vs. Muhammad Asghar and others, 2003 SCMR 477 has held that the presumption of innocence is doubled after an accused has been acquitted by a competent Court and that such finding cannot ordinarily be disturbed unless the judgment suffers from perversity, misreading, non-reading of evidence or an error of jurisdiction.

10.Likewise, in Ghulam Sikandar and another v. Mamaraz Khan and others, PLD 1985 SC 11 the Supreme Court of Pakistan explained the principle of double presumption of innocence and held that where two reasonable conclusions can be drawn from the evidence, the view favoring acquittal is to be preferred. The said principle has consistently been followed in subsequent jurisprudence, including The State and others v. Abdul Khaliq and others, PLD 2011 SC 554 and The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others, 2021 SCMR 873.

11.In the present case, I find that the Appellate Court did not merely substitute its own opinion for that of the Trial Court without assigning reasons. Rather, it undertook a detailed and independent appraisal of the prosecution evidence and identified specific circumstances which, according to it, created reasonable doubt regarding the prosecution case. The Impugned Judgment, therefore, cannot be characterized as perfunctory, arbitrary or based upon non-reading of evidence.

12.The first material aspect considered by the learned Appellate Court relates to the status of appellant and the alleged entrustment. The prosecution case proceeded on the assertion that the appellant had employed respondent No.2 and had entrusted to him US$40,000 for onward deposit in the account of Israr Ahmad. However, the evidence brought on record did not satisfactorily establish the appellant's legal or

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business connection with the company in whose affairs respondent No.1 was allegedly employed. The Appellate Court noticed that the complainant was not associated with the business of the company and that Aftab Ahmad was an employee of the company rather than her personal servant. This aspect assumed significance because the prosecution was required to establish the foundational facts constituting the offence under Section 408, PPC, including the requisite relationship and entrustment.

13.The learned Appellate Court further noticed a significant omission concerning the alleged withdrawal of US$40,000. Although the prosecution alleged that the appellant had withdrawn the amount from her HBL foreign currency account and thereafter handed it over to respondent No.2, no bank statement establishing such withdrawal was produced. In a case where the entire prosecution allegation revolves around entrustment of a substantial amount of US$40,000, the absence of primary banking evidence was a circumstance legitimately taken into consideration by the learned Appellate Court. Such omission could not be brushed aside as a mere technical defect, particularly when the alleged withdrawal constituted the very source of the amount said to have been entrusted.

14.Equally material is the uncertainty surrounding the destination and manner of the alleged transaction. According to the prosecution version, the amount was entrusted to respondent No.2 for deposit in the account of Israr Ahmad, who was residing in Dubai. During cross-examination, however, the complainant stated that Israr Ahmad did not have a dollar account. The prosecution did not establish either the number of any alleged dollar account or a rupee account into which the amount, after conversion, was to be deposited. Nor was any convincing documentary evidence produced showing the proposed or attempted transfer of the amount to the alleged recipient.

15.The Appellate Court was, therefore, justified in holding that the prosecution had failed to establish through cogent evidence the transaction which constituted the foundation of the allegation of misappropriation.

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16.Another circumstance rightly noticed by the learned Appellate Court was the unexplained delay in lodging the FIR. The alleged entrustment took place on 15.12.2017, whereas the FIR was registered on 08.10.2020, after a period of almost three years. The prosecution did not furnish a plausible explanation for such substantial delay. The learned Appellate Court considered this circumstance together with the fact that, according to the prosecution evidence, Aftab Ahmad continued to work even for several months after the alleged occurrence. If the complainant had discovered that US$40,000 entrusted for a specific purpose had been misappropriated, the continued employment of the alleged principal participant, coupled with the considerable delay in setting the criminal law into motion, was a circumstance which could legitimately be considered while assessing the credibility of the prosecution version.

17.The learned Appellate Court also identified a material discrepancy between the initial version and the subsequent testimony regarding the presence of Aftab Ahmad at the time of the alleged entrustment. Whereas his presence was not mentioned in the complaint/FIR when the amount was allegedly handed over to respondent No.2, PW-2 subsequently stated that both Aftab Ahmad and respondent No.2 were present at the time of delivery. The learned Appellate Court treated this subsequent introduction as an improvement intended to connect Aftab Ahmad with the occurrence.

18.I find no illegality in such appraisal. The presence of Aftab Ahmad at the time of entrustment was not an inconsequential detail. It had a direct bearing upon the prosecution allegation of common intention and his alleged participation in the transaction. The Appellate Court was thus justified in examining the contradiction between the earliest version and the evidence subsequently brought before the Trial Court.

19.The Appellate Court also examined the documentary evidence produced by the prosecution. The attendance sheets and salary documents were produced only in marked form and their originals were not brought on record during investigation. The complainant was neither the author nor

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signatory of those documents. Likewise, the prosecution failed to produce the relevant Board Resolution or authority of the company. PW-5 admitted that no Board Resolution or authority of the company had been supplied to him during investigation. The investigating officer also admitted that the relevant bank transaction had not been verified and that the legal status of the company had not been established. Similarly, the witness from the exchange company did not produce any authority letter or service card establishing his status. These were not matters wholly extraneous to the prosecution case. Rather, they related to the very circumstances relied upon by the prosecution to establish the employment relationship, authority and alleged business transaction.

20.I have independently examined the above aspects of the prosecution case. The learned Appellate Court did not discard the prosecution evidence merely on account of insignificant discrepancies or technical omissions. The doubts noticed by it arise from the core features of the case, namely, the status and relationship of the parties, proof of withdrawal of US$40,000, proof of its actual entrustment, the intended destination of the amount, the unexplained delay in reporting the matter, the contradiction concerning the presence of Aftab Ahmad at the time of entrustment and the inadequacy of documentary corroboration regarding the alleged employment/business relationship.

21.It is a settled principle that benefit of doubt is not dependent upon the existence of any particular number of circumstances. Even a single circumstance creating reasonable doubt in the prosecution case is sufficient to entitle an accused to its benefit. Here, the Appellate Court found several circumstances which, when considered cumulatively, rendered the prosecution case unsafe for sustaining a conviction.

22.I am conscious that this Court, in an appeal against acquittal, is competent to reappraise the entire evidence. However, the mere possibility of taking another view of the evidence does not constitute a sufficient ground for interfering with an acquittal. The question is whether the view

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taken by the learned Appellate Court is so unreasonable, perverse or contrary to the record that it warrants interference.

23.Applying the principles held in cases of Ghulam Sikandar and another and Abdul Khaliq and others(Supra), I am satisfied that the Appellate Court has given cogent and legally sustainable reasons for extending the benefit of doubt to respondents No.1 and 2. Its findings are based upon the evidence available on record and do not suffer from any material misreading or non-reading of evidence. The reasons assigned by the Appellate Court cannot be characterized as fanciful, speculative, arbitrary or perverse.

24.The appellant has failed to identify any material piece of evidence which has been ignored by the Appellate Court or any finding which is demonstrably contrary to the record. On the contrary, the Impugned Judgment reflects conscious consideration of the material evidence and the deficiencies appearing therein. The view taken by the Appellate Court is, at the very least, a reasonable and possible view of the evidence. In such circumstances, interference merely because another view may also be possible would be contrary to the settled principles governing an appeal against acquittal.

25.In view of above, instant appeal against acquittal being devoid of merit is DISMISSED and the Impugned Judgment dated 13.9.2022 is hereby upheld.

(SHAHRUKH ARJUMAND)

JUDGE

Tanveer Ahmed/*