1968 P Cr (PLP)

SHER BAHADUR KHAN, J.-By his order dated the 30th of May 1964, Captain Usman Ali Isani, C. S. P., Sub-Divisional Magistrate, Kasur, acquitted the respondent; Muhammad Yousuf, of the charge under section 448, P. P. C. This is an appeal under section 417, Cr, P. C. filed by the State against the order of acquittal.

2. The short facts are these: House No. IV-7 R-55, situated in Bazar Dalgaran, Kasur City, was transferred in favour of Muhammad Ashiq. The lower portion of this property is a shop which is in occupation of one Sanaullah, while the upper storey was in possession of the respondent, Muhammad Yousaf. There was litigation between Muhammad Ashiq and Muhammad Yousuf respondent before the Rent Controller and eventually an ejectment order was passed against the respondent.

3. To cut the matter short, on the 7th of November 1962, Rahim Bakhsh Bailiff (P. W. 7), took out ejectment warrant against Muhammad Yousaf for his ejectment from the property in dispute. He went to the spot to deliver the possession of the disputed house to Muhammad Ashiq P. W. Muhammad Hussain (P. W, 10), 6lember, Union Committee, Khuda Bakhsh Lam bardar (P. W. 3) and Muhammad Din Bailiff (P. W. 2) were present at that time. Muhammad Din was also armed with an attachment warrant against Muhammad Yousaf respondent, for the recovery of the costs of the litigation.

4. It is prosecution case that the actual possession by breaking open the locks of the house was given to the complainant on the 7th of. November 1962, at 4 p.m., and that some of the belongings in the house were attached by Muhammad Din Bailiff and the same were given on Superdari to Muhammad Ashiq, while the remaining articles were given to Sanaullah by Rahim Bakhsh Bailiff on Superdari. The respondent, it was alleged, on the next day at evening time, broke open the locks and trespassed into the room. On this the complainant lodged the F. I. R. with the Ilaqa Police and consequently the respondent was challaned.

5. The prosecution in support of its case examined Muhammad Ashiq (P. W. i), Muhammad Din, Bailiff (P. W. 2), Khuda Bakhsh (P. W. 3), Mr. Muhammad Ashraf, Civil Judge (P. W. 5), Rahim Bakhsh Bailiff (P. W. 7) and Muhammad Hussain, Member, Union Committee (P. W. 10). The sum total of the evidence of these witnesses was to the effect that physical possession of the property in dispute was given to Muhammad Ashiq complainant on the 7th of November 1962, by breaking open the locks on the doors of the staircase and the room, and that later the respondent opened those looks which were put on by the Bailiff with the keys Exhs. P. 1 and P. 2 and trespassed into the house.

6. The learned Magistrate in the penultimate paragraph of his judgment has observed as " ..I feel grave doubts if the complainant was actually physically put in possession of the disputed house. The 2 D. Ws. tendered have stated that the Bailiffs came to the spot and merely carried out the procedure on paper. That the accused was not present and no one broke his locks as alleged."

7. In determining the question as to whether in an appeal under section 417, Cr. P. C. the order of acquittal in the present case is one which should be set aside, we have to bear in mind f that it cannot be said that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact f, except in cases in which the lower Court has 'obstinately blundered', or has through incompetence, stupidity or perversity reached such 'distorted conclusions as to produce a positive' miscarriage of justice', or has in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. It was so held in Sheo Swarup and others v. King-Emperor A FR 1934 P C

227. In similar circumstances their Lordships of the Supreme Court in Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PL D 1964 SC 422 held: "In the case of reversal of an acquittal by the trial Judge, supported unanimously by the assessors, it is desirable that the Court should bear in mind that the full facts and circum stances of a case are laid open before a trial Court and there by coma within the comprehension of that Court including a jury or assessors, sitting as part of the Court far more throughly and completely than it is ever possible on the basis of a written record canvassed to advantage or disadvantage by learned counsel is a Court of appeal. The trial Court being close to the scene of the occurrence and familiar with the ways and practices of the people involved, enjoyes a marked advantage in the formation of a complete and balanced picture of the incident or incidents which go into the making of the prosecution case as presented by witnesses of the locality. It also enjoys another advantage of a priceless character for such appreciation namely that the witnesses do not merely appear before it to give that evidence,, which through repetition before the Police authorities and the committing Court they may be thought to be well schooled in, but also that which they give under the probing stresses of cross-examination. In setting aside an acquittal in a case which rested wholly on direct evidence of witnesses, as much importance must be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. Of course a view of the facts or the conclusion therein formed by a trial Judge or even by a jury is not binding on a Court of appeal in Pakistan. A verdict by a jury may be reversed by the High Court on a reference. Equally, a conclusion by a Judge may be reversed even where it has led to an acquittal. But where the Judge has read the evidence fairly, and has formulated grounds of doubt which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings."

8. In view of the above dictum of their Lordships of the Supreme Court, we find no difficulty in the present case in coming to the conclusion that the findings of the learned Magistrate cannot be even absured much less stupid or to have produced positive miscarriage of justice. The learned Magistrate took pain in coming to the conclusion at which he reached and in passing the order of acquittal he rightly observed that the material witness in the case, namely, Akbar Ali Blacksmith, who broke open the locks of the disputed house was not produced. Secondly, Sanaullah, who is a tenant of the complainant and is in occupation of the shop downstairs the house in dispute was also not produced. This Sanaullah, according to Rahim Bakhsh, P. W. was made Superdar of certain belongings of the respondent that were found in the house. Again it was also on the record that the locks Exhs. P. 3 and P. 4, which were put by the bailiff on the house were produced by the respondent. The keys of the locks were also produced by the complainant. Now, if the respondent had trespassed into the house, there was no reason as to why he should have kept the locks Exhs. P. 3 and P. 4 intact and should not have destroyed this important piece of evidence which appeared against him There was again no reason as to why the keys of the locks should have been produced by the complainant. It is the prosecution case that the respondent had also procured duplicate keys and had opened the locks with them. Nothing was said about those keys.

9. In view of the above, we are of the firm opinion that due to the infirmities in the prosecution case, as pointed out by the learned Magistrate, it was doubtful to say that physical possession was handed over to the complainant. This being the position, we find no reason to interfere with the order of acquittal passed by the learned Magistrate. The appeal with these words is dismissed. The respondent should be discharged of his bail bond. Appeal dismissed.