1996 P Cr (PLP)

S. 439

Penal Code (XLV of 1860), Ss.307 & 326

Revision against acquittal

Scope

Interference under S.439, Cr.P.C, with an order of acquittal can only be made if it is manifestly wrong, perverse, based on misreading of evidence or on the view which no Judicial Officer would take, or non interference with it will result in miscarriage of justice

Mere fact that the Appellate Court has formed a different opinion on the appraisal of evidence than that arrived at by the Trial Court will not justify setting aside the order of acquittal. Aftab Ahmed Bajwa for Petitioner. Through this revision petition under section 439-A, Cr.P.C., the petitioner seeks setting aside of the order, dated 7-3-1995 passed by the learned Additional Sessions Judge, Lahore whereby the appeal was accepted and the conviction and sentence awarded to Channa, accused was recalled.

2. Briefly stated the facts of the case are that Dulla got a case registered on 17-8-1991 that he was proceeding from his house for duty and when reached on the main road, respondent was found standing and an exchange of abuse took place between the complainant and respondent; in the meantime the brothers of Saleem and Billa also came there and the Saleem gave a hatchet blow to complainant while the respondent gave a Chhuri blow which hit on the abdomen of the complainant; on alarm raised, P.Ws: attracted to the place of occurrence and through their intervention, the complainant was rescued. The motive was registration of a criminal case for the abduction of daughter of the complainant in which the present respondent, Yaseen and Ismail were accused.

3. The prosecution in all examined six P.Ws. including Dulla (P.W.I) complainant, and Anwer Masih (P.W.2) and Gaman Masih (P.W.3) as the eye witnesses. P.W.4 was police official while Dr. Saqib appeared as P.W.5. P.W.6 was also a police official. Three witnesses were examined in defence according to whom no occurrence had taken place.

4. At the end of trial, Yasin and Saleem were acquitted while respondent was convicted under section 307, P.P.C. and sentenced to undergo three years' R.I. with a fine of Rs.5,000 and in default of payment of fine to suffer S.I. for four months. The respondent was also convicted under section 326, P.P.C. and sentenced to three years' R.I. and a fine of Rs.5,000 and in default of fine to suffer four months' S.I. Both the sentences were ordered to run concurrently. This was vide judgment, dated 17-10-1993. In appeal, the learned Additional Sessions Judge set aside the judgment of conviction and acquitted the respondent by giving him the benefit of doubt vide judgment, dated 7-3-1995.

5. In support of the petition, it was argued that the learned Appellate Court has erred in not appreciating that there was no delay on the part of P.Ws. for cross-examination but due to absence of counsel of the accused, respondent; the case against respondent was established beyond any doubt and that the prosecution story finds corroboration from medical evidence.

6. The learned Appellate Court after going through the record and evidence of witnesses held that recording of examination-in-chief after a period of two years has prejudiced the fair trial and that the, doctor who took the X-rays film and prepared the X-ray report was not produced as a witness by the prosecution which cast doubt about the authenticity of the occurrence and truthfulness of the evidence of P.Ws. The recovery of Chhuri was also not proved by the prosecution. The motive was also not held to be proved through independent witnesses.

7. Learned counsel for the petitioner was unable to point out that the order of acquittal, in this case was misreading or non-reading of evidence so as to term it as perverse as to occasion of miscarriage of justice. The learned Appellate Court has advanced cogent reasons which influenced it to conclude that the evidence produced was insufficient for the conviction of the accused. Even otherwise, it has been a consistent view of this Court and the Honourable Supreme Court of Pakistan that there is a double presumption of innocence in favour of an accused person who has secured acquittal. The first is that every accused shall be presumed to be innocent unless proved to be otherwise and the second is that a competent Court of law has adjudged him as not guilty. Interference under section 439, Cr.P.C. can only be made if the order of the Court below is manifestly wrong, perverse or is based on the view of evidence which no Judicial Officer would take or the Court has misread the evidence or that non-interference will result into miscarriage of justice. The mere fact that the Appellate Court forms a different opinion on the appraisal of evidence than that arrived at by the trial Court will not justify setting aside the order of acquittal. In view of what has been discussed above, I do not find any ground to interfere with the order of learned Additional Sessions Judge. The petition fails and is hereby dismissed in limine. N.H.Q./M-2648/L Revision dismissed.