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Criminal Appeal No. 1670 and Criminal Acquittal Appeal No. 222 of 1986, decided on 16th June, 1987.

‑‑‑Ss. 417(2) &249‑A‑‑Penal Code (XLV of 1860), S. 506‑‑Appeal against order of acquittal which rested wholly on direct evidence of witnesses‑ Importance, held, must be given to the view of trial Judge as to credibility of witnesses, to presumption of innocence in favour of accused and to rule which ran through criminal jurisprudence as a golden thread that benefit of every doubt must go to accused person‑‑High Court must be slow at disturbing a finding of act: arrived at by a Court which had advantage of watching demeanour of witnesses particularly in an appeal against acquittal‑‑Where a judge had formulated grounds of doubt which were not perverse or wholly illogical or unreasonable there was a clear risk of departure from said principle in reversing his findings‑‑Maxim that it was better that ten guilty men should escape than one innocent man should suffer was equally recognised by Islamic jurisprudence.

Sheo Swarup v. King Emperor A I R 1934 PC 227; Abdul Majid v. Supdt. and R.L.A. P L D 1964 SC 422; State v. Abdullah 1979 P Cr. L J 891 and State v. Mustafa Abbas 1986 P Cr. L J 1283 rel.

‑‑‑S. 417(2)‑‑Penal Code (XLV of 1860), S. 506‑‑Appeal against acquittal‑‑Direct complaint‑‑Trial Court taking a clear view that there was no probability of accused being convicted for any offence and coming to conclusion, by giving reasons that charge was groundless‑‑Possibility of complainant having filed direct complaint falsely in order to frighten and cow down accused party not ruled out‑‑No circumstantial evidence whatsoever available in case‑‑Only allegation of ineffective firing made against accused‑‑'No injury sustained by anyone from either side‑‑No gunshot marks were found on walls of house or any other object and no empty cartridges found at scene of offence‑‑Occurrence taking place on a dark night and assailants could not be identified‑‑Claim of complainant that he identified two accused not believable‑‑Interference declined by High Court with finding of acquittal recorded by Trial Court, in circumstances.

‑‑‑Enmity‑‑Double‑edged sword‑‑Cutting both sides.

Raja Riaz for Appellant.

Mohammad Ashraf Qazi for Respondents Nos. 1 and 2.

A.A. Mohammad Ali, Addl. A.‑G., Sind for the State.

Date of hearing: 8th June, 1987.

‑‑This Criminal Acquittal Appeal under section 417(2), Cr.P.C: has been filed against the order of Additional City Magistrate V11‑West Karachi dated 9‑9‑1986 whereby he acquitted by respondents Muhammad Yousaf and Muhammad Younus under section 249‑A, Cr.P.C.

A direct complaint was filed by appellant Haji Abdul Majeed under section 506‑B, P.P.C. against the above‑named respondents. It was alleged therein that the appellant had taken lease of agricultural land measuring 105 acres from one Mohammad Sadiq. The land was situated in Deh‑Abad Taluka Tando Muhammad Khan, District Hyderabad and was adjacent to the land owned by the father of the respondents named above. Father of the respondents was also interested in getting this very piece of land on lease but could not succeed. He, therefore, started harassing the appellant in different ways in order to compel him to give up the lease. On 3‑12‑1985 at about Isha prayers time the two respondents at the instance of their father alongwith some Goondas whose names were not known to the appellant came in a car to the house of the appellant. They gave a call to the appellant and started firing gun shots and declaring that they would not spare him. This was witnessed by many people of the Mohallah. The respondents then ran way. Neither number of the car could be noted due to darkness nor the Goondas could be identified. The appellant did not file F.I.R. as he had come to know that the respondents had already managed with the police. He, therefore, made an application to the Martial Law Authorities which was forwarded to the S.H.O., Gulberg Police Station whereupon case under section 506‑B, P.P.C. was registered against both the respondents. The police recorded the statement of the complainant and his witnesses who supported the complainant's case. However, in spite of that the police disposed of the case as false in 'B' Class. Hence the direct complaint.

After holding the Preliminary Enquiry the case was brought on file. Charge was framed against‑ the respondents under section 506‑B, P.P.C. on 10‑7‑1986 to which both of them pleaded not guilty and claimed to be tried. An application under section 249‑A, Cr.P.C. was given by the defence counsel praying for acquittal of the respondents. The notice of this application was given to the other side. Both the parties filed their written arguments as well as orally argued the case.

The learned Magistrate thereafter acquitted the respondents under section 249‑A, Cr.P.C. as shown above.

We have also heard the arguments of Mr. Raja Riaz Ahmad for the appellant and Mr. M.A. Kazi for the respondents Nos.1 and 2 and Mr. A.A. Mohammad Ali, Additional A.‑G. for the State.

Before we proceed further it will be appropriate. to have a brief resume of the law as to the acquittal appeals laid down by the Superior Courts. In this connection, first of all we would place reliance on the leading case of A I R 1934 P C 227 Sheo Swarup v King Emperor as to the considerations, which should be kept in view by the Court while deciding such appeals wherein it was observed as follows:‑

"Sections 417, 418 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusions that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusion upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses:"

The Supreme Court of Pakistan had also, while deciding an acquittal appeal, reiterated the same principle in a ruling reported in Abdul Majid v. Supdt. & R.L.A. P L D 1954 SC 422 which maybe reproduced as under:‑

"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 circumstances of a case are laid open before a trial Court and thereby some within the comprehension of that Court including a jury of assessors, thoroughly and completely that is ever possible on the basis of a written record canvassed to advantage or disadvantage by learned counsel in 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, enjoys 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 of 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."

A Division Bench of this Court, while dealing with an Acquittal Appeal referred to the above principle in a ruling reported in 1979 P Cr. L J 891 State v. Abdullah. It will be useful to reproduce the same:‑

However, while dealing with the acquittal appeals the High Court has to keep the following factors in view namely that the trial Court had an opportunity of seeing the witnesses and that its opinion as to the credibility of witnesses deserves to be kept into consideration and also the slowness of the High Court in displacing findings of innocence. The High Court has also to be cautious that while the accused has obtained the benefit of doubt, the presumption of innocence in his favour is also strengthened and not weakened by the acquittal:

The latest ruling of this Court on this point is 1986 P Cr. L J 1283 State v. Mustafa Abbas (D.B.) in which one of us had participated and had expressed the same views.

It would, therefore, appear that in deciding an acquittal appeal which rests wholly on direct evidence of witnesses, importance must be given, to the views of the trial Judge as to the credibility of witnesses, to the presumption of innocence in favour of accused and 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. The High Court must be slow at disturbing a finding of fact arrived at by a Court which had the advantage of watching the demeanour of witnesses particularly in an appeal against an acquittal.

Where a Judge has formulated grounds of doubt which are no perverse of wholly illogical or unreasonable there is a clear risk of departure from the principle enumerated above a reversing his findings. It is maxim of English law that it is better that ten guilty men should escape than one innocent man should suffer. This principle is equally recognised by Islamic Jurisprudence.

Now we come to the merits of the case. The best witnesses of the complainant in this case were, (1) complainant Haji Abdul Majeed himself, (2) P.W. Sadaqat Ali who was a neighbour of the complainant and (3) P.W. Asghar Ali. The complainant was examined immediately after the filing of the complaint under section 200, Cr.P.C. while the other two witnesses were examined in Preliminary Enquiry under section 202, Cr.P.C. The learned Magistrate had decided to disbelieve the evidence of the complainant and his two witnesses as the same were wrought with material contradictions vis‑a‑vis the complaint and the statements of the complainant and these witnesses. He has pointed out that the complainant had stated in the beginning of the complaint that he did not go to lodge the report at the police station, due to the fear of the respondents, whereas in the last two lines of this para which have been written subsequently in the handwriting of his counsel he stated that he did not go to lodge the report at the police station because he had come to know that the respondents had managed with the police and that the police would not lodge his F.I.R. P.Ws. Sadaqat Ali and Asghar Ali have stated that the respondents had given threats to the appellant that it would not be good for him if he had gone to the police to lodge the F.I.R. The learned Magistrate has expressed the view that in case the respondents had managed with the police, they would not have given threat to deter the complainant from going to the police.

It was contended that the accused can be acquitted u/s 249‑A at any time.

Reliance was placed on the case of Din Muhammad v. Muhammad Sharif and another reported in PLD 1979 Baghdadul‑Jadid 12 where Rustam S. Sidhwa, J. held as follows:‑‑

"The words of the section enable the Magistrate to deal with such an application at any time, irrespective of whether the charge has been framed or riot. Nothing in this section will prevent the Magistrate, where the charge has not been framed by him or where the charge has been framed but no material evidence recorded, from acquitting the accused:'

The learned Magistrate has been of the clear view that there was no probability of the respondents being convicted for any offence. He therefore, held that the charge was groundless. He has enumerated his reasons for reaching the above conclusion as follows:‑‑

"(1) That the case has already been investigated by the police as a result of which the accused were released u/s 169, Cr.P.C.

(2) That the S.D.M. Liaquatabad, after being satisfied with the police investigation accorded, his approval to the issue of "B" Class Summary on the basis; of which a case u/s 182, P.P.C. has been registered against the complainant.

(3) That there is contradiction in between the complaint, the statement of the complainant recorded u/s 206 and that of his statement of witnesses recorded under section 202, Cr.P.C., as discussed above.

(4) That in case if the complainant had any apprehension that the accused had managed with the police, he should have filed the complaint in the Court, instead of making application to Martial Law Authorities. But he did not do so. But instead of that has filed the present complaint now. This shows that the present complaint has been filed by him in order to save himself from the action which has been instituted against the complainant:' These reasons to say the least, are quite sound convincing and logical.

It may be further pointed out that there is enmity in the background which is admitted by the complainant himself. Enmity is a double‑edged sword which cuts both ways. The possibility of the complainant having filed this direct complaint falsely in order to frighten and cow‑down the respondent party also cannot be ruled out. It is said that human being can speak lie but the circumstances do not speak lie. This is a case in which there is no circumstantial evidence whatsoever. There is an allegation of ineffective firing made against the respondents. No injury whatsoever has been sustained by anyone from either side. No gunshot marks were found on the walls of the house or any other object. No empty cartridges were found at the scene of offence. Admittedly it was a dark night and goondas were not identified nor even the number of the car could be noted although the same is always visible in the back light. In these circumstances the claim of the appellant that he had identified the two respondents is not believable. Moreover, now a days the law and order situation in the mofussil has deteriorated and the possibility of some dacoits having come and fired gunshots to frighten the appellant party cannot be ruled out. It also cannot be ruled out that the appellant might have suspected that the respondents' father might have sent his sons or some body else in order to frighten the appellant to leave the land and under that misconception he might have filed this complaint.

Hence we are of the clear view that there is no scope for interfering with the finding of acquittal recorded in favour of the respondents by the learned trial Court. These are the reasons for which we decided to dismiss this acquittal appeal by our short order, dated 8‑ 6‑ 1987.

M.Y.H./A‑101./k Appeal dismissed.

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