2002 P Cr (PLP)

Date of hearing: 1st November, 2001. The judgment, dated 1‑11‑1994 passed by Illaqa Magistrate, Rabwa has been challenged by which learned Magistrate has acquitted respondents Nos.1 to 12 in a private complaint filed on 7‑6‑1992 by the petitioner, under sections 365/452 and 148/149, P.P.C.

2. The brief facts narrated in the private complaint are that the complainant was in his house about 8/9 days before filing of private complaint, when at 12‑00 midnight, Siddique armed with double‑barrel gun, Sher armed with hatchet, Azhar, Ashraf, Saqlain, Ihsan, Riaz, Ramzan and Haq Nawaz armed with Sotas, War armed with pistol, Ahmad Nawaz armed with gun .12 bore, and Amir Abdullah armed with gun entered into the four‑walls of the Haveli of the complainant by force. Siddique raised Lalkara to teach lesson to the complainant for filing of cases, whereupon Amir Abdullah, Ramzan and Ahmad Nawaz caught hold of the complainant and took him out of the house. The accused threatened the complainant and kept him in illegal custody. On hue and cry of the complainant Allah Ditta and Muhammad attracted to the spot and witnessed the occurrence.

3. The motive alleged in the private complaint is that the petitioner has occupied some Government land and the respondents Nos.1 to 12 wanted the possession of said land and they were already involved in the litigation with the complainant.

4. The preliminary evidence was recorded by the learned Magistrate who, summoned the respondents Nos. 1 to 12 for facing of trial. The charge was framed against respondents Nos. 1 to 12 on 13‑1‑1993 under sections 365/452/148/149, P.P.C. which was denied by them and they claimed to be tried.

5. The complainant in order to prove the guilt of respondents Nos. 1 to 12 appeared as P. W.1 and supported the facts narrated in the F. I. R. Allah Ditta (P.W.2) and Muhammad Bakhsh (P.W.3) also supported him and claimed that they had witnessed the occurrence.

6. On the completion of evidence of the complainant, respondent/accused in their statements denied the allegations and claimed that they have been involved in. this case falsely by the complainant to pressurize them for not pursuing the civil litigations. After hearing the arguments of both the parties the learned trial Magistrate acquitted all the respondents Nos. 1 to 12 in the private complaint through his impugned judgment.

7. Learned counsel for the petitioner contends that sufficient evidence was available on record but the learned Magistrate has acquitted all the respondents without any reason. The judgment is not supported by the evidence on record and is based on surmises and conjectures. The three witnesses produced before the Court were sufficient to connect the respondents Nos. 1 to 12 with the commission of crime. There are no material discrepancies in the statements of three witnesses, hence, the judgment may be set aside and respondents Nos. 1 to 12 may be convicted under the relevant provisions.

8. I have heard the learned counsel for the petitioner at length and also perused the record carefully. Allah Bakhsh the petitioner who is complainant of the case and appeared as P.W.1 has shown that 12 persons armed with different arms including fire‑arms had entered into the house and he was taken out from the house by them. In order to support his statement he produced Allah Ditta and Muhammad Bakhsh as P.W.2 and P.W.3 respectively. During the cross‑examination P.W.1 has admitted that Allah Ditta and Muhammad Bakhsh P.Ws. are not residents of the village of the complainant where the occurrence had taken place. They are residents of other village which is about 2 miles away from the place of occurrence. The petitioner has also admitted during the cross examination that both these P.Ws. are brother‑in‑law and are closely related with him. It has also been admitted by P.W.1 during the cross examination that Amir Abdullah one of the accused had got lodged F.I. R. No.23 of 1992 against him and Amir Abdullah and Jafar are the witnesses against the complainant/petitioner. It is also admitted that Ramzan respondent is brother of the complainant of case F.I.R. No.23 of 1992 registered against P.W.1 Allah Bakhsh. It is also admitted that the other accused Haq Nawaz and Riaz are. very close relatives of the complainant of abovesaid case registered against the petitioner. It is also admitted by the petitioner that the accused/respondents Nos.1 to 12 were armed with different fire‑arms but they did not use these weapons during the occurrence. However, it is stated by P.W.1 that he was given Sota blows but he did not appear before the doctor for his medical examination. Allah Ditta P.W.2 and Muhammad Bakhsh P.W.3 are not residents of the place of occurrence. They are residents of another village. They have admitted that they are brother‑in‑laws of the complainant. P.W.2 Allah Ditta has stated that he did not know that whether the complainant received any injury or not? Similarly Muhammad Bakhsh P.W.3 has stated in his statement that they reached the spot after the occurrence. It seems that the complainant has widened his net in order to involve 12 persons in an occurrence in which no injury has been received by the complainant and there is nothing on record to corroborate his statement. Admittedly the complainant is inimical to the accused persons due to the criminal and civil litigation pending between the 'parties. His statement has, rightly been discarded by the learned trial Court. Statements of P.W.2 Allah Ditta and P.W.3 Muhammad Bakhsh are of no help for the complainant as they are not the witnesses of the locality and they are very closely related with the complainant and they cannot be considered as disinterested persons. I am not inclined to give any weight to the statements of these witnesses. The complainant has failed to prove the case and the learned trial Judge has rightly acquitted the accused/respondents Nos. 1 to 12 in this case. The assessment of evidence in appeal against acquittal is different than the appeal against conviction. The consistent view of the superior Courts is that appraisal of evidence in appeal against acquittal is different than the appeal against conviction.

9. I am fortified of the view taken by the august Supreme Court in a case titled as The State v. Muhammad Sharif and 3 others 1995 SCMR

635. The relevant portion is reproduced as under for ready reference:‑‑ "There is marked difference between appraisement of evidence in the appeal against conviction, and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the Court or Courts below after proper analysis of evidence made or done according to law. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. In an appeal against acquittal, Supreme Court could not, on principle, ordinarily interfere and instead would give due weight and consideration to the " findings of the Court acquitting the accused: This approach is slightly different from that in an appeal against conviction in which leave is granted only for reappraisement of evidence, which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused." I am also fortified of the view taken by the august Supreme Court in a case reported as Muhammad Aslam v. The State PLD 1992 SC 254, in which the august Supreme Court has held that standard and mode of appreciation of evidence in cases where acquittal was sought to be set aside was different than the appreciation in those cases where conviction was sought to be set aside. The august Supreme Court of Pakistan has also held that in an appeal against acquittal ordinarily Courts will not interfere and will give due weight and consideration to the findings of Court acquitting the accused and the approach is slightly different than that appeal against conviction. This case has been reported as Muhammad Usman and 2 others v. The State 1992 SCMR

489. Similar view has been taken by the august Supreme Court in a case reported in 1998 SCMR 1281 titled as Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others, that while examining defects in the order of acquittal, substantial weight should be given to the findings of trial Courts whereby accused were exonerated from commission of the crime and appeal against conviction would be different and distinguishable from appeal against acquittal and will be considered in different manner. 10: Due to the abovesaid reasons and after considering the law, I am of the view that the complainant has failed to make out a case for interference in the judgment passed by the learned trial Court by which the respondents Nos. 1 to 12 have been acquitted. This petition is dismissed. J.A.M./A-359/L Petition dismissed.