2015 PLP 27 (YLR)

ROOH-UL-AMIN KHAN, J.

Complainant (appellant herein), being aggrieved from the judgment/order of the learned trial Court dated 29-9-2011, whereby accused (respondents herein), have been acquitted of the charge in case F.I.R No.126, dated 6-6-2009, registered under Sections 336/34 P.P.C., at Police Station Takht-e-Nasrati Karak, by way of filing instant appeal has assailed the findings of the trial Court.

2. Case of the prosecution is that on the fateful day, to see his land known as "Koza-Gandi" complainant Ashraf Khan, early in the morning, along with his nephew Zafar Iqbal went there. At 07.00 hours, accused Ahmad Nawaz, Zafar Iqbal, Abdul Qadir, duly armed with Topaks and spades, came there and told him to leave the land as the same belongs to them. On refusal of the complainant, accused Zafar Iqbal and Abdul Qadir, thrashed him with their spades, as a result, he sustained injuries. The occurrence is stated to have witnessed by his nephew Zafar Iqbal, who at the time of incident was cutting grass there at the spot. Motive as alleged by the complainant was dispute over the same land. The report of the complainant was reduced into writing in the shape of D.D. No.5 dated 6-6-2009 in Takht-e-Nasrati Bazaar, on the basis of which F.I.R mentioned above has been registered.

3. On completion of investigation, challan was submitted against the respondents before the trial Court, where they were charged to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined five witnesses. After closure of the prosecution evidence, respondents were examined under section 342, Cr.P.C. wherein they denied the prosecution allegations and professed their innocence. However, they declined to be examined on oath or to produce evidence in defence. On conclusion of trial, the learned trial Court, vide impugned judgment/order, acquit them of the charge, hence, this appeal.

4. Before dilating upon the merits of the case, I deem it appropriate to mention here that during pendency of the instant appeal, respondent No.3 Ahmad Nawaz did not turn up, who reportedly proceeded abroad, hence, non-bailable warrant of arrest has been issued against him while the case is taken up in his absentia.

5. I have given my anxious consideration to the respective arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.

6. As manifest from the contents of report of the complainant, the occurrence has taken place on 6-6-2009 at 07.00 a.m. which has been reported by him at 08.40 a.m. in Takht-e-Nasrati Bazaar to Samad Khan A.S.-I. (P.W.4) i.e. after a delay of 01 hours and 40 minutes. No explanation, much less plausible one, qua delay has been furnished by the complainant neither in his report nor in his Court statement. Specific motive i.e. a land dispute has been alleged by the complainant in his report. Admittedly, motive is always considered as a double edge weapon which cuts both ways and it can be used by the accused to take revenge and at the same time can be a tool used by the complainant for false charge, as well. Thus, keeping in view the inordinate delay in lodging report coupled with motive, it could safely be held that the time inter se the alleged incident and report, has been consumed by the complainant in deliberations and consultations. Moreover, the incident has been reported at 8.40 a.m. while the time of examination of the complainant in his medico legal report is also 8.30 a.m. The factum of examination of the injured at 8.30 a.m. has also been confirmed by Dr. Shakirullah who was examined as P.W.1, which means that the injured complainant had been examined 10 minutes prior to his report. Samad Khan ASI, who incorporated the report of the complainant in daily diary, recorded his statement as P.W.3. According to him, first the report of the complainant was incorporated in D.D. and then he was taken to Civil Hospital Takht-e-Nasrati. Similar is the statement of Zafar Iqbal, nephew of the complainant, who recorded his statement as P.W.4. From the above evidence, regarding the same question of fact, there are two versions, one furnished by the medical Officer while the other furnished by the complainant, P.W.4 Samad Khan A.S.-I. and Zafar Iqbal (P.W.3), which of the two versions, is correct is shrouded mystery, however, it cast serious doubt about the veracity and credibility of the injured complainant. Moreover, to bring in line his case with other circumstances of the case and to exaggerate the charge, the complainant has made certain dishonest improvements in his Court statement, which circumstances have never been disclosed by him during his report. These dishonest improvements seem to be deliberate and intentional. Improvements made by eye-witness in order to strengthen his case, would lose its credibility and evidentiary value; and when a witness makes a contradictory statement or improvement changing his version, if found to be deliberate and dishonest, would cause serious doubt in his veracity. It is admitted by the complainant in his statement that after receipt of injury on his left eye, blood was oozing from his wound. Similarly, Zafar Iqbal, the alleged eye-witness, who was examined as P.W.3, confirmed the factum of oozing blood from the wound of the complainant and he accompanied him till hospital. P.W.3 stated in his statement that he took the complainant for lodging report in his motorcar and then to the hospital and at that time, blood was oozing from his wound over his eye. But it seems so strange that neither any blood from the spot nor from the motorcar of P.W.3 nor the bloodstained clothes of the complainant has been secured by the Investigating Officer through recovery memo to substantiate the version of the complainant. Similarly, neither any spades nor the allegedly used in the commission of offence has been recovered either from the direct or indirect possession of the respondents. P.W.4 who has also furnished the ocular account of the incident has not established his presence at the spot with the complainant. Had he been present there, he must have attracted towards the respondents, at the time, the complainant was being thrashed by them with spades, but so is not the case herein. The conduct of P.W.3, who is real nephew of the complainant, is also against the natural conduct of human behaviour particularly against the norms of our society because it does not appeal to mind that a real uncle would be beaten by accused and a nephew present there on the spot will just become a silent spectator without any effort to rescue him from the clutches of the accused what to speak about his assault over the accused. Besides, P.W.4 is closely related with the complainant. Both complainant and P.W.4 are interested and inimical towards the accused. Both have tried to improve their version by making dishonest improvements. They have contradicted each other on material points. Allegation of attack and causing injury on the person of the complainant is not proved through cogent and confidence inspiring evidence. From the peculiar facts and circumstances of the case, it is proved that the occurrence has not taken place in the mode and manner as alleged by the complainant and P.W.4. The complainant and P.W.4 have concealed the actual facts and have not come with clean hands. It is settled principle of natural justice that those who seek equity must do equity.

7. According to the prosecution case, the complainant has sustained an injury described as Peri-orbitial hematoma on left side eye 2"X 2" 1/2" with sub-conjectival haemorrhage. To this effect statement of Dr. Shakir Ulllah M.O. Civil Hospital Takht-e-Nasrati has been recorded as P.W.1. During cross-examination, he admitted it correct that he had not found any disfigurement of complainant's eye, therefore, has not mentioned the same in his discharge slip, however, limbial perforation with iris prolepses is mentioned in his report, which means that it was serious/grievous injury to the eye ball. He admitted it correct that he has not mentioned in his report that the patient has lost eye sight. It is pertinent to mention here that according to statement of the Medical Officer, the patient was referred to Ophthalmologist but his report is not available on file nor he has been examined by the prosecution being an Expert. The complainant in his statement before the Court has disclosed that some 7/8 months, prior to the present occurrence, he had undergone surgery of his left eye and thereafter he had installed lens in the same eye. P.W.2 Zafar Iqbal, the alleged eyewitness, also affirmed that some 7/8 months prior to the present incident, the complainant got lens in his left eye in "Al-Shifa Hospital Kohat". Similarly, this fact has been disclosed by the Investigating Officer before the Court in his statement in the following words:-- "It was told to me by the people that the complainant had gone an operation of his eye. I was told that once prior to the occurrence the complainant had operated his eye through doctor". It is worth to mention here that, according to medical terminology and ophthomology "periorbital hematoma" is also known as a black eye, or a shiner, refers to bruising of the tissue under the skin around the eye. In the majority of cases, the injury would not be to the eye itself, but rather to the face. It is called a "black eye" because the bluish-dark colour of the surrounding tissue's bruising, caused by capillaries (tiny blood vessels) under the skin that have burst and leaked blood under the skin. Sometimes the area puffs up a lot and vision may blur temporarily, while the iris is a thin, colour diaphragm that is situated anterior to the lens, thus periorbital hematoma is some thing different from iris prolapsed, which always caused after surgery. In the instant case as observed above the appellant as well as Investigating Officer and alleged eyewitness have candidly conceded that the complainant-appellant prior to the alleged occurrence had under gone for an iris surgical management. In this eventuality Itlaf-I-Salahiyyat-i-udw, would not be attributed to have been done by the act of the respondent. From the above statements, it is evident that the complainant has failed to prove loss of his eye in the alleged incident. Section 336 P.P.C. provides punishment for "Itlaf-i-Salahiyyat-i-udw while section 335, P.P.C. stipulate the conditions and definition of "Itlaf-i-Salahiyyat-i-udw", according to which, "Itlaf-i-Salahiyyat-i-udw" is permanent impairment of the functioning, power or capacity of an organ of the body or permanent disfigurement. In the instant case, the concerned and authorized Medical Officer i.e. Ophthalmologist has not been consulted and the complainant has failed to prove destruction or permanent impairment of the functioning, power or capacity of his eye due to alleged incident. Thus, section 336, P.P.C. is not applicable, keeping in view the above mentioned facts and circumstances of the case.

8. The prosecution is always bound to prove its case beyond any shadow of doubt. Complainant bearing stamp of injury only indicates his presence at the relevant time of incident, but it is not a guarantee of his truthfulness. General rule of appreciation of evidence in criminal jurisprudence is that want of interest or absence of enmity does not stamp statement of a particular witness with presumption of truth and that much depends on intrinsic value of statement of a witness. Real test is as to whether statement of witness is in consonance with probabilities, whether it fits in with other evidence and whether it inspires confidence in mind. No doubt, in hurt cases, statement of injured witness, supported by medical evidence, is sufficient for recording conviction, provided it rings true and is trustworthy, in view of its intrinsic worth. Mere stamp of injuries on the person of a witness would not be a proof of the fact that whatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable, character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught. Absolute certainty is seldom in forming an opinion qua guilt or innocence of a person. The Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party.

9. Moreso, this is appeal against acquittal and standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. Marked difference exists between appraisal of evidence in appeal against conviction and in appeal against acquittal. Appraisal of evidence, in appeal against conviction is done strictly and in appeal against acquittal such rigid method of appraisal is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. Scope of appeal against acquittal of accused is considerably narrow and limited. Unless the judgment of acquittal is perverse, completely illegal and on perusal of evidence, no other decision could be given except that accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. High Court is always slow in exercise of jurisdiction under section 417, Cr.P.C. unless it finds that gross injustice had been done in administration of criminal justice. It is settled law that the appellate Court while dealing with acquittal order had to exercise jurisdiction cautiously because the acquitted accused enjoys double presumption of innocence, the one available to him before conclusion of the trial and the second after the verdict of acquittal in his favour. While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondents/accused by extending him benefit of doubt, after proper appraisal of evidence to which no exception can be taken.

10. Resultantly, this appeal being without any substance stands dismissed. HBT/609/P Appeal dismissed.