2013 PLP 1627 (MLD)

SARDAR ABDUL HAMEED KHAN, J.

This is an appeal against the acquittal order passed by Judicial Magistrate Muzaffarabad on 17-9-2005, whereby the accused respondents Nos. 1 to 6 were acquitted of the offences under sections 427 and 436 APC. The precise facts giving rise to the instant appeal are that on 23-9-2003, Muhammad Reaz was murdered in a quarrel and the heirs of deceased alleged that Muhammad Siddique murdered Muhammad Reaz. On this, Muhammad Ilyas, Ejaz, Shahzad son of Sain Ali Afsar residents of Mang, Umar Khan, Abdul Hafeez son of Muhammad Bashir, Rafaqat son of Muhammad Iqbal residents of Kumhar Bandi, Mst. Rukhsana wife of Abdul Qadeer, resident of Mang Umar Khan attacked the house of complainant/appellant and set on fire the house of appellant. In this occurrence, all the articles like Cloths, Ornaments, furniture etc. worth Rs.2 lac and currency notes amounting to Rs.30,000 were burnt/ destroyed. Shaheen Bibi, Gulshan Bibi and others witnessed the occurrence. On this report an F.I.R. was registered on 23-9-2003 under sections 436/427 APC. After completion of investigation, the Police submitted the Challan before the trial Court. After recording the evidence of the prosecution, the accused persons were put to examination under section 342, Cr.P.C. The accused respondents produced defence evidence and after hearing the parties, the learned Civil Judge/Judicial Magistrate Muzaffarabad acquitted the accused by extending them the benefit of doubt for want of proof. Feeling aggrieved by the impugned order, the appellant filed the instant appeal, wherein it is averred that the statements of prosecution witnesses have been misread by the trial Court and without appreciating the evidence in a legal fashion, the trial Court rejected the evidence of prosecution which is bad in law. It is further added that the trial Court has not applied its judicial mind, whereas the prosecution brought guilt home to the accused persons and the impugned order is nullity in the eyes of law. It is further averred that the impugned order is a telegraphic order, which cannot be termed as judicial order. Moreover, the trial Court has failed to understand difference between prosecution evidence and defence evidence. It is further added that accused respondents No. 4 and 5 were proceeded under section 512 Cr.P.C., but the trail Court unlawfully and erroneously acquitted these accused too. Thus, the impugned order is totally illegal, which is liable to be set aside. It is further mentioned that in the light of record and evidence, the prosecution has proved this case beyond shadow of any reasonable doubt, thus, by accepting the appeal, the accused/respondents may be awarded legal sentence for the commission of above said offences. Raja Sadaqat Hussain Advocate learned counsel for accused respondents argued the case on 28-5-2013, whereas the learned counsel for appellants filed written arguments. We have heard the learned counsel for the parties. The learned counsel for the appellant through his written arguments has reiterated the facts and grounds of the case as narrated in the memo of appeal. The learned counsel in the light of evidence lead by the prosecution has submitted that the prosecution has proved its case by ocular version by producing the prosecution witnesses named; Nazia complainant, Saima Bibi, Sohail Tariq, Muhammad Tanveer, Adeel, Muhammad Rafique, Raja Muhammad Munir, Shaheen Bibi, Gulshan Bibi, Bashir Khan, Bashir son of Sikandar, Sardar Bashir SHO and Patwari Shakeel Ahmed and Muhammad Sultan Inspector Police and the documentary evidence in shape of recovery memo and other evidence. He further argued that the defence evidence produced by the accused persons also supports the version of the prosecution. It has been vehemently argued by the learned counsel for appellant that the impugned acquittal order passed by the learned trial Court in the light of submissions merits vacation and the accused respondents are entitled to legal punishment. The learned A.A.-G. has supported the arguments of the learned counsel for appellant and stated that the respondents Nos. 4 and 5 after due service have not appeared before the Court, thus, they do not deserve any concession by the Court. Raja Sadaqat Hussain Advocate learned counsel for respondents Nos. 1 to 3 and 6 argued that all of the prosecution witnesses have stated in the Court that they have not seen any one while setting on fire the house of complainant party. It was added that the case is false and frivolous, which has been fabricated in retaliation of murder of Muhammad Reaz. The contents of F.I.R. are totally fake and after-thought. It has been forcefully argued by the learned counsel for accused/respondents that the prosecution cannot succeed to prove its case, by increasing the number of witnesses, but the cases are decided on the strength of evidence lead in the case. It is further argued that the trial Court has very rightly dismissed the case of prosecution for want of proof and by extending the benefit of doubt to the accused/ respondents. It is lastly argued that the impugned order has been passed lawfully, which does not merit any interference by this Court. After hearing the learned counsel for the parties, going through the contents of the F.I.R., grounds raised in the appeal and the impugned order of the trial Court. It transpires that the order of acquittal of trial Court does not warrants any interference by this Court for the following reasons:-- (1) That the learned trial Court has appreciated the evidence of all the prosecution witnesses as well as of the defence witnesses in a legal fashion and keeping in view of facts and circumstances of the so called occurrence. It is further added that the crime instrument i.e. packet of match is recovered after 4 months, which is planted one. The witnesses have deposed that they have not seen the accused themselves, setting the house on fire etc., whereas, the defence evidence supports the version of the accused persons. It is settled law that once a person is acquitted of the charge by a competent Court of law then he is entitled to double presumption of innocence. Our this view, is fortified by 2011 SCR 324 and 2009 SCR 470 which reads as under:-- 2011 SCR 324 (g) Acquittal

The acquittal order passed in favour of an accused has double presumption of innocence. 2009 SCR 470 (c) Acquittal of accused

Once an accused is acquitted by trial Court

Double presumption of innocence rests in him

Which cannot be recalled by finding fault in shape of minor discrepancies and irrelevant contradictions in prosecution evidence." It is opined by the trial Court that witnesses are interested and related to the complainant party. Moreover, during the investigation, some of the accused persons were discharged by the police under section 169, Cr.P.C. It is further added that the respondents Nos. 4 and 5 have not been served upon and did not appear before the Court and statement of Process Server has also been taken down by the Court and proper order to the extent of these accused respondents is still to be passed. There is no quarrel on the proposition that a favouring order can be passed against the absent accused persons as in the case of other accused, it is found that the prosecution failed to prove its case and the same is the case with these two accused persons, hence no more discussion is needed. In view of what has been stated above, finding no force in this appeal, the acquittal order recorded by the trial Court is upheld and the appeal of appellant is hereby dismissed. HBT/56/HC(AJ&K) Appeal dismissed.