2017 P Cr. L J 1446
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
REGIONAL ELECTION COMMISSIONER, NASEERABAD AT DERA MURAD
JAMALI ---Appellant
Versus
TARIQ MAGSI ---Respondent
Criminal Acquittal Appeal No.(s) 128 of 2015, decided on 21st March, 2017.
(a) Representation of the People Act (LXXXV of 1976) ---
----Ss. 78(3)(d), 82 & 94---Penal Code (XLV of 1860), Ss. 199, 200 & 471---Corrupt practice,
false statement made in declaration, using as true such declaration know ing it to be false, using
as genuine a forged document ---Fake educational degree, determination of ---Regional Election
Commission being complainant/appellant filed a direct complaint against respondent with the
allegation that respondent filed his nomination papers with forged educational degrees ---Inquiry
under S. 200, Cr.P.C. was conducted by the Judicial Magistrate, wherein it was found that the
degree obtained by the respondent was fake and bogus ---On the basis of said report, charge was
framed against the respondent to which he pleaded not guilty and claimed trial ---During trial,
respondent moved application under S. 265- K, Cr.P.C. for his acquittal, which was accepted ---
Validity ---Record showed that complainant failed to specifically mention as to whic h degree
(Matric, F.A, B.A) was fake ---Complainant was under legal obligation to prove the factum of
genuineness or otherwise of the degrees by producing the witnesses or representatives of the
college/university which had allegedly issued the same ---Compl ainant failed to produce any
witness from any college/University who could have testified the genuineness or otherwise of the
degree ---Circumstances showed that complainant wanted to get the respondent convicted and
sentenced without legally and properly proving the charge against him ---Circumstances
established that complainant had failed to prove guilt of the respondent to the hilt ---No illegality,
irregularity, misreading and non- reading could be pointed out by the appellant/complainant in
the judgment passed by the Trial Court, thus appeal was dismissed in circumstances.
(b) Criminal trial ---
----Benefit of doubt ---Scope ---Series of dents and doubts were not required in prosecution case
for giving benefit of doubt; if a single doubt was created accused would be entitled to the benefit
of doubt, not as a matter of grace and concession but as a matter of right.
Muhammad Akram v. The State 2009 SCMR 230 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 417--- Appeal against acquittal--- Presumption--- Double presumption of innocence was
earned by the accused in case of his acquittal ---Findings of acquittal could not be set aside unless
it was proved that the findings arrived at by the Trial Court while acquitting the accused were
based on misreading, non- reading of evidence or the acquittal was perverse, shocking, artificial
and ridiculous.
Haji Paio Khan v. Sher Baiz and others 2009 SCMR 803 rel.
(d) Criminal Procedure Code(V of 1898) ---
----Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Parameters ---
Different parameters were available to deal with an appeal against acquittal and an appeal against
conviction---Appreciation of evidence, in appeal against conviction was done strictly and in
appeal against acquittal such rigid method of appreciation of evidence was not to be applied.
Muhammad Rasheed for Appellant.
Shams -ul-Rehman Rind and Zulfiqar Ali Jhakrani for Respondent.
Date of hearing: 27th Febnruary, 2016.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the judgment
dated 04th August 2015 passed by the learned Additional Sessions Judge, Jhal Magsi at
Gandhawa, whereby the respondent was acquitted of the charge under section 78(3)(D) read with
sections 82 and 94 of the Representation of the People Act, 1976 and sections 199, 200 and 471,
P.P.C.
2. Precise facts relevant for disposal or instant appeal are that the Regional Election
Commissioner (RFC), Naseerabad at Dera Murad Jamali filed a direct complaint under the above
mentioned Sections agai nst respondent in the court of Sessions Judge. Naseerabad at Dera Murad
Jamali. Later on the complaint was transferred to the file of learned Additional Sessions Judge,
Jhal Magsi at Ghandawa. It was alleged in the complaint that respondent filed his nomination
papers for contesting General Election, 2013 from the constituency PB -23 and declared as
successful candidate. It was further alleged that the Educational Degrees annexed with his
nomination papers were found forged hence the complaint. On filing com plaint inquiry under
section 200, Cr.P.C. was conducted by Judicial Magistrate Jhal Magsi wherein it was found that
the degree obtained by Nawabzada Tariq Magsi (respondent) was fake and bogus.
3. On the basis of above report on 26.05.2015 charge was frame d against the respondent to
which he pleaded not guilty and claimed trial. Complainant was examined as CW -1 who
produced the complaint as Ex.P/C -1-A. It seems from the record that on 21.04.2015 the
respondent moved an application under section 265- K, Cr.P.C. for his acquittal. The learned trial
court after hearing the parties vide order dated 04.08.2015 accepted the application and acquitted
the appellant of the charge.
5(sic.) Learned counsel for the appellant argued that there is/was overwhelming evidence
connecting the private respondent with the commission of offence but the learned trial court
illegally acquitted him of the charge. Learned counsel stressed that the trial court failed to take
into consideration that the respondent obtained two bogus F.A Certificates from different
Educational Boards. His B.A Degree was obtained on the basis of one of the certificates but this
aspect of the case escaped notice of the trial court. CW -1 corroborated the prosecution version
whereas the defence failed to creat e any dent in his statement but even then the trial court
illegally, unlawfully and without any justifiable reason acquitted the respondent of the charge. It
was maintained that while acquitting the respondent the trial court failed to record any cogent
reason.
On the other hand learned counsel for the respondent strenuously opposed the appeal and
argued that the complainant failed to prove guilt of the respondent to the hilt, as such the trial
court had no option but to acquit the private respondent of the charge. It was maintained that the
complainant was under legal obligation to prove the factum of genuineness or otherwise of the
degree by producing the witnesses or representative of the University which had allegedly issued
the decree but the complaina nt failed to produce a single witness rather the complainant himself
when appeared before the trial court only got exhibited the complaint. Learned counsel
emphatically argued that under Qanun -e-Shahadat Order a procedure has been provided for
proving genuineness or otherwise of the documents but the complainant without resorting to the
legal course, wants that only on the basis of allegation leveled by him the respondent may be
convicted which is neither aim nor object of the law. The trial court after proper appraisal of
material available on record and attending all the legal as well as factual aspects of the case
passed a very exhaustive and well reasoned judgment. No illegality or irregularity, misreading
and non- reading could be pointed out by the lear ned counsel for the appellant in the judgment
impugned warranting interference by this court.
6. We have considered the arguments put forth by the learned counsel for parties and
perused the record of case with their assistance. It may be noted that in the instant case the
complainant filed complaint against the respondent alleging therein that respondent filed his
nomination papers for contesting General Election, 2013 from the constituency PB -32 and was
declared a successful candidate. It was further alle ged that the Educational Degrees annexed with
his nomination papers were found forged. It may further be observed that the complainant failed
to specifically mentioned that which degree (Matric, F.A, and B.A) was forged. Even in the
memo of appeal in ground 'C' the complainant/respondent states "the respondent/accused has
obtained two bogus F.A. Certificates of two separate boards and the respondent had obtained his
B.A. Decree through the above said F.A Certificate" it means that even the complainant himse lf
is not sure that which of the degree of respondent is fake and bogus. We are in respectful
agreement with the learned counsel for respondent that the complainant was under legal
obligation to prove the factum of genuineness or otherwise of the degrees b y producing the
witnesses or representative of the College/University which had allegedly issued the decree but
the complainant failed to produce a single witness from any college/University who could have
testified the genuineness or otherwise of the degr ee but the complainant even when himself
appeared before the trial court only got exhibited the complaint. We are afraid that the
complainant who is Regional Election Commissioner how wants conviction and sentence of the
respondent without legally and properly proving the charge against him. It may not be irrelevant
that Qanun- e-Shahadat Order provides a procedure provided for proving genuineness or
otherwise of the documents but the complainant without resorting to the legal course, wants that
only on the basis of allegation leveled by him the respondent may be convicted which is neither
aim nor object of the law. Under these circumstances we have no hesitation is our mind to hold
that the complainant failed to prove guilt of the respondent to the hilt, as such the trial court had
no option but to acquit the private respondent of the charge. The trial court after proper appraisal
of material available on record and attending all the legal as well as factual aspects of the case
passed a very exhaustive and well reasoned judgment. No illegality or irregularity, misreading
and non- reading could be pointed out by the learned counsel for the appellant in the judgment
impugned warranting interference by this court.
Needless to mention here that the defence is not required to create a series of dents and
doubts in prosecution case but for giving the benefit of doubt if a single doubt is created even
then the defence is entitled to the benefit of doubt not as a matter of grace and concession but as
a matter o f right. Reliance can be placed on the judgment titled as Muhammad Akram v. The
State reported in 2009 SCMR 230.
9. It may be observed that after gaining acquittal a double presumption of innocence was
earned by the private respondent and the superior cour ts have always been reluctant to set aside
findings of acquittal unless it is proved that the findings arrived at by the trial court while
acquitting the accused are based on misreading, non -reading of evidence or the acquittal is
perverse, shocking, artif icial and ridiculous. In the instant case no illegality, irregularity,
misreading, non- reading of evidence or that the findings arrived at by the trial court are perverse,
shocking, artificial and ridiculous could be pointed out. Conversely perusal of reco rd as well as
the impugned judgment reveals that the learned trial court after proper appraisal of evidence and
attending all the legal as well as factual aspects of the case passed a well reasoned judgment
which is not open to any exception. Even on reappraisal of evidence we could not form a
contrary view to that of the trial court. Reliance can be placed on the judgment titled as Haji Paio
Khan v. Sher Biaz and others reported in 2009 SCMR page 803. Relevant observations there
from are reproduced herein below: -
"It needs no reiteration that when an accused person is acquitted from the charge by a
Court of competent Jurisdiction then, double presumption of innocence is attached to its
order, with which the superior Courts do not interfere unless the impugned order is
arbitrary, capricious, fanciful and against the record".
10. It may further be added that the standards of assessing evidence in appeal against
Acquittal and that of appeal against conviction are quite different. Appraisal of evidence, in
appeal against conviction is done strictly and in appeal against acquittal such rigid method of
appraisal is not be applied as there is already finding of acquittal given by the trial court after
proper analysis of evidence on record.
For the foregoing reasons, we are of the considered opinion that the complainant failed to bring
home the charge against the respondent beyond reasonable doubt, thus the trial court has rightly
acquitted the respondent of the charge. No case for interference in the impugned judgment is
made out, therefore, the appeal being meritless is dismissed.
JK/65/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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