2020 P Cr (PLP)

RAJA SAJJAD AHMAD KHAN, J.

Above titled appeal has been directed against the judgment of Additional Tehsil Court of Criminal Jurisdiction, Thorar dated 30.01.2019, whereby accused respondents Nos.1 to 5 were acquitted of the charge.

2. The facts briefly stated are that complainant lodged a written report before Police Station, Thorar, wherein it is averred that he was resident of Narrkola Kot and was employee of health centre therein. On 09.11.2016 at about 9.00 a.m. he was present in his house and was coming towards his duty, as he reached at mettle road where Saeed son of Ishaq, Zareef son of Said Akbar who were already present there attacked upon him while other accused Asim son of Ishaq, Tasleem son of Arshad, Ahsan son of Irshad, and Zaheen son of Said Akbar also came there one after other and started beating him with kicks and fists and caused injuries at his right, left hand, left shoulder and other parts of his body. The complainant saved his life by running away from that place. Motive was that accused murdered the complainant's mother and case against them was subjudice before competent Court, because of which they threatened him to withdraw from that case.

3. The Police entered in the book as report No.18 on 10.11.2015 and referred the complainant to Basic Health Unit, Thorar for his medical examination. The doctor opined that injuries caused to complainant are Ghair-e-jaifa Damia with blunt weapon. The Police opined that the offences under section 337-F(1), A.P.C. allegedly committed is non-cognizable offence, therefore, submitted complaint before Tehsil Court of Criminal Jurisdiction, Thorar on 29.11.2016. 3(sic.) On filing of the complaint the accused respondents were summoned by the trial Court. They were examined under section 242, Cr.P.C. on 27.09.2019 but they denied the crime and pleaded not guilty. Upon which the prosecution was directed to produce evidence in support of its case. The prosecution examined only three witnesses in all. Thereafter, the accused-respondents were examined under section 342, Cr.P.C. on 25.09.2018, again they denied the guilt and agreed to produce evidence in defense.

4. The trial Court, after conclusion of the trial and hearing arguments of prosecution and defense counsel, acquitted the accused respondents of the charge by extending them benefit of doubt vide impugned judgment dated 30.01.2019 hence, this appeal.

5. The learned counsel for the complainant-appellant and Additional Advocate General appearing on behalf of the State, vehemently argued that the acquitted respondents Nos.1 to 6 were involved in the heinous offence and the prosecution proved the case against them by cogent and convincing evidence but the trial Court failed to appreciate the evidence of the prosecution in its true perspective and wrongly acquitted them of the charge. The learned counsel finally submitted that by accepting the appeal, the acquitted respondents may be punished in accordance with law.

6. On the other hand, the accused respondents personally appeared before the Court defended the impugned judgment on all counts and prayed for dismissal of appeal.

7. I have heard the arguments of the learned counsel for the parties and perused the impugned judgment in light of the record made available.

8. A perusal of record reveals that accused respondents committed the offence under section 337-F(i), A.P.C. and as the offence was non-cognizable, hence the Police entered a report in Roznamcha and injured complainant was referred to BHU, Thorar, for medical examination. After obtaining medical report filed a case in shape of "complaint", before the trial court and the trial Court after conclusion of the trial, acquitted the respondents of charge for want of proof. It may be observed that in non-cognizable case a specific procedure of registration of case and investigation has been prescribed in section 155, Cr.P.C. It is useful to reproduce the section 155, Cr.P.C.:-

155. Information in non-cognizable cases. (1) When information is given to an officer in-charge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the [Magistrate]. Section 155(2) imposes a restriction on the investigation of non-cognizable offences, which read as under:- "(2) Investigation into non-cognizable cases:

No Police Officer shall investigate a non-cognizable case without the order of magistrate of the first or second class having power to try such case for send the same for trial to the Court of Session. Section 190, Cr.P.C. contains a scheme under which the Court take cognizance of a complaint. The complaint has been defined in section 4(h) of the Cr.P.C. which read as under:- "(h) Complaint.

`Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under section Code, that some person whether known or known has committed an offence, but it does not include the report of a police officer."

8. In the instant case the Police violated the mandatory Provision of section 155, Cr.P.C. and investigated the case and filed a complaint before trial Court which was illegal and complaint was liable to be dismissed on this sole ground. Reliance can be placed on 1996 PCr.LJ 735 and 2018 MLD 205.

10. Even otherwise from perusal of evidence reveals that prosecution examined three witnesses, P.W complainant, P.W Doctor and P.W SHO Police Station, Thorar. P.W doctor admitted during cross-examination that the injuries of complainant could be result of falling or due to result of motor-bike accident while the defense witnesses namely Zahid Hussain and Ishtiaq Khan also admitted in their statement that suddenly a heavy sound of falling came there and they saw a person while falling from the motorbike who was coming to Thorar from Nurr and on hearing the sound they rushed towards it. They rescued him and carried him in a vehicle going towards Thorar. Neither the complainant was beaten by accused nor was anyone of the accused present at the place of occurrence. I have gone through the evidence of the prosecution and arrived at the conclusion that in the present case, the prosecution has failed to prove its case against the accused-respondents beyond reasonable doubt and it is settled law benefit of slightest doubt must go in favour of accused.

11. It will not be out of place to mention here that it was enjoined upon the prosecution to prove its case against the accused -respondents beyond shadow of doubt but the prosecution failed to do so and it is celebrated principle of law that benefit of a slightest doubt arising in the prosecution case must go to the accused. Therefore, the trial Court has correctly appreciated the evidence and the argument of the learned State Counsel regarding non-appreciation of evidence is not well reasoned.

12. It is also pertinent to mention here that after the acquittal an accused enjoys double presumption of innocence and the acquittal order is not interfered with until and unless it is found perverse and illegal. This view is fortified from a case reported as Asia Bibi and 5 others v. Ghazanfar Ali and 3 others (2005 PCr.LJ 415), wherein it was observed as under:- "The acquittal carries double presumption of innocence. One is initial that till found guilty accused persons are innocent and second is that Court of law having jurisdiction records order of acquittal. In such circumstances this Court would interfere only if it is proved from the record that the order of acquittal is perverse and the reasons in support of the same are artificial and ridiculous."

13. In the light of above detailed discussion, I do not find any misreading/non-reading of the evidence or legal infirmity in the impugned judgment and the conclusion drawn by the trial Court is neither perverse nor shocking. It is based on material available on the record. Thus, the trial Court has rightly dismissed the private complainant and acquitted the accused-respondents of the charge by extending them benefit of doubt vide its judgment dated 12.05.2016, which is maintained. Resultantly, finding no force in these appeals, these are hereby dismissed. Appeal dismissed. SA/65/HC(AJ&K) Appeal dismissed.