2005 P Cr (PLP)

Art. 129, illustration (g)

Withholding of evidence

If a best piece of evidence available with a party was withheld, then it would be presumed that said party had some sinister motive behind it for withholding said piece of evidence and in such situation a presumption under illustration (g) to Art. 129 of Qanun-e-Shahadat, 1984 could fairly be drawn that had the said piece of evidence been brought on record, same would have been unfavourable to said party. (d) Criminal trial

Benefit of doubt

Onus to prove

Principle

Accused had only to show a dent having been created in the case of prosecution and that he was entitled to benefit of even a single doubt found in the evidence of prosecution and that he had not to show that its case suffered from more than one doubt

Except in cases where by means of special enactment onus to prove innocence had been placed upon accused, ordinarily under general law, it was the duty of prosecution to establish its case independently without any shadow of doubt. Muhammad Ashraf Khan for Appellant. Said Rehman, Mir Salam, Aziz-ur-Rehman, Fazl-ur-Rehman and Shafi-ur-Rehman, residents of Gandi Sahib Khan, Naurang, District Lakki Marwat, respondents were acquitted vide order, dated 13-5-2004 of learned Judicial Magistrate, Lakki Marwat, in case F. I. R. No. 146, dated 24-4-2001 registered at Police Station, Naurang for offences under sections 506/337-A(i)/148/149, P.P.C.

2. Brief facts of the case according to F.I.R. lodged by appellant Hameed-ur-Rehman are, that on 23-4-2001 at about 21-30 hours, appellant along with his friends Khalil-ur-Rehman and Hazrat Gul of his village, was present in the Baithak of one Aman Gul in the limits of Gandi Sahib Khan. In the meanwhile, his co-villagers Saeed-ur-Rehman, Mir Salam, Aziz-ur-Rehman and Fazl-ur-Rehman forcibly entered into the Baithak. They caught hold of the complainant and started beating him with the butts of their respective weapons with which he received injuries on both sides of his face. Motive leading to the occurrence was stated to be dispute over landed property.

3. On completion of usual investigation, challan against the respondents was put in Court for trial where the prosecution examined Dr. Naimatullah (P.W.1), Usman Ghani S.H.O. (P.W.2), Mir Ahmad Khan, A.-S.I. (P.W.3) and Hameed-ur-Rehman complainant (P.W.4). Accused were also examined under section 342, Cr.P.C. They repudiated the prosecution allegations and professed innocence. They neither appeared as their own witnesses on, oath as required under section 340(2), Cr.P.C. nor produced any evidence in defence.

4. After considering the material available on record and hearing the parties counsel, learned trial Court acquitted the respondents by extending them the benefit of doubt through the judgment impugned.

5. Mr. Muhammad Ashraf Khan, Advocate appearing on behalf of the appellant bitterly criticized the impugned judgment and contended that the impugned order is perverse and the reasonings of the trial Court are artificial vis-a-vis the evidence on record; that complainant being injured witness, his sole testimony was sufficient to base conviction and that no reason is forthcoming as to why the respondents should have been falsely and maliciously implicated by the complainant.

6. Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a 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 trial Court after proper analysis on record. 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. The ordinary scope of appeal against acquittal of accused-respondent is considerably narrow and limited as observed in Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Raja and 3 others PLD 2004 Pesh. 1.

7. Having heard the submissions of learned counsel for the parties in the light of material available on file, I find that the prosecution has not been able to prove its case satisfactorily against the accused respondent and there is no show of misreading and non-reading of evidence on the part of the learned trial Court rendering the impugned judgment as unsustainable. The evidence has been appreciated in right direction and no illegality or infirmity has been pointed out in the judgment of acquittal. The learned trial Judge has advanced valid and cogent reasons for passing an order of acquittal. It may be pertinently mentioned here that P.Ws. Khalil-ur-Rehman son of Fazi-ur-Rehman and Hazrat Gul son of Amal Gul alleged to have seen the occurrence and extricated the complainant from the hands of the accused-respondents, have not been produced at the trial which has made the prosecution case doubtful. It is settled principle of law and if a best piece of evidence available with a party is withheld, then it is presumed that the said party has some sinister motive behind it for withholding the said piece of evidence. In such situation a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the said piece of evidence been brought on the record, it would have been unfavourable to the said party. In the present case, the best piece of evidences was the evidence of P.Ws. Khalil-ur-Rehman and Hazrat Gul, who were private and independent witnesses. Their evidence has been withheld by the prosecution without assigning any cogent reason, therefore, the presumption under illustration (g) of Article 129 of Qanun -e-Shahadat Order, 1984 can be drawn against the prosecution. Non -examination of private witnesses in the circumstances of the present case is fatal to the prosecution case. It needs no reiteration that for safe administration of criminal justice, an accused has only to show a dent having created in the case of the prosecution and that he is entitled to benefit of even a single doubt found in the evidence of the prosecution and that he has not to show that its case suffers from more than one doubt. There is no cavil with the proposition of law that except in the cases where by a means of special enactment onus to prove the guilt or otherwise has been placed upon the accused, ordinarily under general law, it is the duty of the prosecution to establish its case independently without any shadow of doubt.

8. Outcome of the above discussion is that acquittal of respondents does not suffer from any illegality so as to call for my interference in the impugned judgment. The learned trial Court has advanced valid and cogent reasons for passing a finding of acquittal in favour of respondents and I see no reason to disturb the same. The appeal fails which is hereby dismissed in limine and the impugned judgment of acquittal is maintained. H.B.T./255/P Appeal dismissed.