1992 PLP 1868 (MLD)

Muhammad Zahoorul Haq for Respondent No.3. Date of hearing: 8th April, 1992. The State has riled this appeal under section 417, Cr.P.C. against the judgment passed by the learned trial Magistrate dated 1‑11‑1987 whereby he acquitted the respondents from the charge under section 325/452/506, P.P.C.

2. Briefly the facts giving rise to the present case are that on 7‑6‑1987 at 2‑30/3‑00 p.m. Abdur Rahim, Abdul Waheed and Muhammad Siddique respondents trespassed into the house of A l Khaliq complainant and inflicted injuries on his person, besides that they t reatened him to murder. On the statement of the complainant F.I.R. Exh. P was registered by Muhammad Sharif S.I. Police Station Mustafabad, Lahore. Muhammad Nawaz S.I. (P.W.3) investigated the case. After investigation, the challan was submitted in the Court.

3. The learned Law Officer appearing on behalf of the State has vehemently contended that the judgment recorded by the learned trial Court does not fulfil the requirements of section 367, Cr.P.C. hence the case may be remanded to the learned trial Court for re‑writing the judgment. He also submitted that the appraisal of the evidence by the learned trial Court is not in accordance with law as he has disbelieved erroneously the complainant whose evidence is being fortified by the medico‑legal report and this illegal approach has resulted into miscarriage of justice, so the appeal be accepted and the respondents be punished in accordance with law.

4. The learned counsel appearing for respondents Nos. 1 and 2 submitted that there is no independent corroboration of the prosecution version because the eye‑witnesses have not supported the prosecution version. He further submitted that the appeal may not be accepted only on the technical ground that the judgment was not written in accordance with law under the provisions of section 367, Cr.P.C. as the learned trial Magistrate has given some reasons whereby he came to the conclusion that the prosecution has failed to prove its case beyond any reasonable doubt. He placed reliance on the following observations of their Lordships of the Supreme Court reported in Yar Muhammad and 3 others v. The State 1992 SCMR 96:‑ "Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C."

5. The learned counsel for respondent No.3 submitted that there is admitted background of enmity between the complainant and the respondents. The solitary evidence of the complainant which is not being corroborated by the other independent evidence should not be accepted in the circumstances of the case. He further urged that the complainant has suppressed the first medico‑legal report as mentioned in the F.I.R. and instead procured a second medico‑legal report after twenty‑two hours which is dubious in character and no conviction can be maintained on this medical evidence. In the end, he submitted that the F.I.R. was lodged after preliminary investigation, deliberation and the Radiologist has not been produced in the Court to prove the fracture of the ribs, hence the case, if at all, is made out that falls under section 323, P.P.C. and not under section 325, P.P.C., so in the background of the admitted enmity, the learned trial Court rightly disbelieved the prosecution evidence and mere non‑compliance of section 367, Cr.P.C. per se would not be sufficient to upset the judgment of the learned trial Court, if on the overall assessment of the evidence, this Court finds that substantial justice has been done.

6. I have heard the learned counsel for the parties at length and perused the record with their able assistance.

7. Respectfully following the observations of their Lordships of the Supreme Court, I find in the present case the appraisal of the evidence has not resulted into miscarriage of justice and there is substance in the defence plea that uncorroborative testimony of the complainant should not be believed in view of the background of enmity admitted by the complainant himself. The appraisal and the assessment of the evidence by the learned trial Court is not open to any serious objection. This appeal has no merits, hence dismissed. N.H.Q./S‑116/L Appeal dismissed.