Khursheed Ahmed (Appellant) VS The State & others (Respondent)

Criminal Acquittal Appeal No.120 of 2008

Date Order with Signature of the Judge

For hearing of case.

26th May, 2017.

None present for the appellant.

Ms. Rahat Ahsan, Deputy Prosecutor General, Sindh

Ms. Nahid A. Shahid, Advocate for respondents 2 & 3.

SYED

MUHAMMAD FAROOQ SHAH, J.:- Despite repeated calls neither the appellant nor his counsel have shown their appearance before this Court.

2.Perusal of the record reflects that appellant being dissatisfied with the acquittal order under section 249-A Cr.P.C. in favour of respondents 2 & 3 approached this Court by filing the instant appeal.

3.Learned counsel for the respondents 2 & 3 present in court submits that the instant appeal against the acquittal of respondents is subjudice since its institution i.e. 24.06.2008. She supported the impugned order dated 28.05.2008, whereby accused/respondents 2 & 3 were acquitted from the charge of FIR No. 251/2007 under section 506-B/420/ 467/468/471 PPC registered with Police Station Ferozabad, Karachi. She submitted that there is no illegality, gross irregularity in the impugned order which does not warrant any interference.

4.Learned Deputy Prosecutor General, Sindh also supported the impugned order and argued that prima facie the impugned order is well reasoned and elaborate which does not invite any interference by this court.

5.Deliberate and intentional absence of appellant and his counsel shows that perhaps they are interested to linger on the case just to drag the respondents 2 and 3 in this case. Even other-wise perusal of record shows that there are civil litigations pending between the parties over property.

6.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 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, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order 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/S FAHIM AFZAL (1998 SCMR 1281) and JEHANGIR V/S AMINULLAH AND OTHERS (2010 SCMR 491). It is settled principle of law as held in the 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.

7.There is hardly any improbability or infirmity in the impugned order of acquittal recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained. I therefore, dismiss this Criminal Acquittal Appeal having no merits for consideration.

*Aamir/PS*

J U D G E