1999 PLP 335 (MLD)

Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795 ref. (c) Penal Code (XLV of 1860)

S. 452/325/326/147/148

Criminal Procedure Code (V of 1898), S.417- Appeal against acquittal

Conviction could be recorded in the case because it was very difficult to discard the testimony of the injured witnesses who were, admittedly, present at the time of occurrence and substitution of real culprits was a rare phenomenon, but if other view could also possibly be taken and which had, in fact, been taken, might be by showing leniency, then the order did no', call for interference

Injuries on the person of one accused had not beer explained

Two independent witnesses although cited were not produced- Possibility of exaggerating number of accused could not be ruled out

Order of acquittal might not look very fair and just, yet it had sanctity attached to it and the view taken by Trial Court could not be treated as totally perverse or not sustainable

Appeal against acquittal of accused by Trial Court was dismissed in circumstances. Said Ahmad v. Zammured Hussain and 4 others 1981 SCMR 795; Shah Nawaz v. Lal Khan and 2 others 1972 SCMR 286; PLD 1960 Lah. 48; AIR 1936 PC 239 and Lal Khan and another v. The State 1976 PCr.LJ 1437 ref. Khawaja Shaukat Ali with Akhtar Masud Kh. for the State. A.K. Dogar for Respondents. Date of hearing: 1st August, 1997. Through this appeal order of acquittal passed -by Mr. Muhammad Aslam Magistrate 1st Class Sargodha has been challenged. 'Respondents Nos. 1 to 8 were sent up to face trial in case F.I.R. No.6 of 1989 registered with Police Station Jhal Chakkian District Sargodha under section 452/325/326/147/148, P.P.C. on 9th of January, 1989. The learned Magistrate on conclusion of the trial acquitted all the accused persons vide his judgment dated 11-2-1992. The grounds assigned by the learned Magistrate for acquitting the accused respondents as incorporated in the judgment are that Muhammad Siddiq Awan and Yar Muhammad Chowkidar were named as witnesses in the F.I.R Both were independent because they were not related to any of the party. The prosecution did not examine either of them and they were given up on the ground of having been won over by the accused. The remaining witnesses were all interested because admittedly there was party faction in the village. Both the parties belong to rival factions; that there are material discrepancies in the statements made by the witnesses. As such taking stock of all these facts the learned Magistrate by extending benefit of doubt acquitted all the accused persons.

2. The learned counsel for the State assisted by the learned counsel for the complainant has argued that the occurrence has taken place in the house of the injured persons and all the injured persons supported the prosecution version, therefore, order of acquittal is not sustainable in the eyes of law. Non -examination of two aforesaid witnesses named in the F.I.R. is not fatal to the prosecution case because normally independent witnesses do not turn up to support the prosecution version on account of the pressure exerted by accused persons who in the instant case happened to be quite influential.

3. In reply the learned counsel for the respondents has argued with vehemence that even injured witnesses may not always come forward with true version of incident. In support of his contention reliance has been placed on the judgment delivered by the Hon'ble Supreme Court cited as "Said Ahmed v. Zammured Hussain and 4 others" (1981 SCMR 795) wherein injured witnesses has supported prosecution case but their statements were not corroborated by the independent witnesses. Their testimony was not relied upon and benefit of doubt was extended to the accused. According to the learned counsel this citation covers the present case on all fours. If it is shown that there is enmity in between the parties then their statements have to be corroborated by independent witnesses. In the present case not only independent witnesses were present but they were quoted in the F.I.R. and were subsequently cited in report under section 173, Cr.P.C. None of the two witnesses were produced. The law as has been laid down in "Shah Nawaz v. Lal Khan and two others" (1972 SCMR 286) as well as in PLD 1960 Lah. 48, a D.B. case, wherein reliance has been placed on a judgment of Privy Council reported as AIR 1936 PC 239, requires the prosecution to examine all the witnesses cited in the calendar and withholding any of such witness would mean that he was not to support the prosecution version. It has further been argued that one of the accused namely Sher Muhammad has been injured and he received injuries on his head, back and other parts of the body. No prosecution witness has stated anything as to how and in what manner these injuries were sustained by the accused. The fact of injuries on person of Sher Muhammad has been admitted by Dost Muhammad P.W.1 and also by the Investigating Officer who appeared as P.W.5. Basing his argument on these facts he placed reliance on "Lal Khan and another v. The State" (1976 PCr.LJ 1437) and submits that the present case appears to be of free fight and in that-event the order of acquittal should not be interfered with. Lastly it has been argued that if in a given case two views can possibly be taken then the view taken by the learned trial Court of acquitting the accused should not be interfered with.

4. I have gone through the record with the help of the learned counsel for the parties. The learned trial Magistrate has, assigned various reasons justifying acquittal of the respondents. Although I am not in agreement with the lean trial Magistrate especially when he pointed out discrepancies in the statements witness which are not of that significant as observed by him yet keeping in the principle that if two views are possible of the case and the view taken by the trial Court can be justified on the basis of facts or on principle of law then the order of acquittal is not interfered with. The contention raised by the learned counsel for the respondents with regard to non-production of two independent witnesses and also the fact that one of the accused person was injured during the incident and no explanation tendered by the P.Ws. is not devoid of force. The authority cited by him i.e. 1981 SCMR 795 is applicable to the facts and circumstances of the present case. In the cited case there were injured witnesses yet their lordships observed that mere injury on the person of the witness does not prove that he has come forward with whole truth. If the statement is not supported by the independent witnesses especially when witnesses were available and were cited then benefit of doubt may be extended to the accused person. Main reliance has been placed on this authority. It has been add-ed that if out of the grounds assigned by the trial Court some of them can be sustained then order of acquittal should not be set aside. May be in the present case, conviction could be recorded because it is very difficult to discard the testimony of injured witnesses who were admittedly present at the time of occurrence and substitution of real culprits in a rare phenomena, but if other view can also possibly be taken and that view has in fact been taken, may be by showing leniency, then the order does not call for interference. Taking into account the fact that injuries on person of Sher Mohammad accused have not been explained, two independent witnesses although cited were not produced and that possibility of exaggerating number of accused cannot be ruled out. The order of acquittal may not look very fair and just yet it has sanctity attached to it. The view taken by the trial Court cannot be treated as totally perverse or not sustainable. The prosecution case suffered from some weaknesses relying on which the learned Magistrate ordered the acquittal of the respondents. As argued by the learned counsel for the respondents the possibility of free fight or aggression by the complainant party cannot be totally ruled out Once an order of acquittal is passed in favour of accused there arises strong presumption of innocence in his favour. On account of this principle the order of acquittal is not very lightly interfered with especially when the occurrence took place about 8-1/2 years ago.

5. As a result of the above discussion I am not inclined to allow this I appeal. The same foals and is hereby dismissed. N.H.Q/S-139/L Appeal dismissed.