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Criminal Acquittal Appeal No. 21 of 1987, decided on 18th March, 1987.

‑‑‑Ss. 504, 506, 323 & 379‑‑Criminal Procedure Code (V of 1898), S. 417‑ Appeal against acquittal‑‑No circumstantial evidence existing to support oral evidence of complainant and prosecution witness‑‑Neither complainant nor prosecution witness sent to medical officer nor any medical certificate produced in proof of presence of injuries on their persons‑‑Allegation of theft against accused appearing to be concocted‑ Magistrate who had occasion to watch demeanour of witnesses found that there were contradictions in their evidence on material points which had gone to the root of the case and that their evidence was tainted with enmity with accused and was that of partisan witnesses‑‑Magistrate gave cogent reasons for his findings and rightly decided to disbelieve their evidence‑ Judgment of Magistrate unexceptionable and appropriate‑‑Interference declined in order of acquittal, in circumstances.

State v. Ghulam Mustafa 1986 P Cr. L J 1283 rel.

Shamshuddin Soomro for Appellant.

Nemo for Respondents.

Date of hearing: 16th March, 1987.

This appeal under subsection (2) of section 417, Cr.P.C. is directed against the acquittal of respondents Nos. 1 to 4 by Civil Judge and F.C.M. Tando Allahyar in a case under sections 504, 506, 323 and 379, P.P.C. filed on a direct complaint by the applicant:

2. Briefly stated the facts of the complainant's case are that he was a student of Xth Class in Government High School, Tando Allahyar. The respondents used to tease him. On 15-3‑1984 when the complainant was sitting at the hotel of Ghulam Muhammad Lohar, respondent Majid came there and showed him a photo of the complainant alongwith one Bahar. The complainant protested on the taking of the photo without his knowledge and permission. It is further alleged that when the complainant and P.W. Baharo came out of the hotel all the 4 respondents assaulted and gave fists and kicks blows to the complainant and P.W. Bahar. The watch of the complainant also dropped during the scuffle which was picked up by respondent Hanif at the instance of respondent Majid. Respondent Ashraf snatched the towel from the shoulder of complainant and gave it to Sadiq. All the four respondents then made their escape good.

3. The complainant went to police station to lodge F.I.R. but the police refused to take down the same. Hence he filed direct complaint in the Court. A charge was f rarned against the respondents Nos. 1 to 4 by the learned Magistrate to which they pleaded not guilty and claimed to be tried. At the trial the complainant examined himself, P.W. Dhani Bux, and P.W. Bahar and closed his side. In their statements u/s 342, Cr.P.C. respondents Nos. 1 to 4 have denied the allegations and have alleged that they have been implicated in this case on account of enmity; in that respondent Hanif was a Tonga driver of the respondent at Rs.500 per month; he was removed from the service and his dues were not paid. On his insistence this false complaint has been filed against him.

4. The learned trial Court after taking into consideration the evidence so adduced came to the conclusion that the complainant has failed to prove the guilt of the accused beyond reasonable doubt. The learned Magistrate, therefore, acquitted the respondents by giving them benefit of doubt.

5. Before we proceed to examine the order of the learned Magistrate it may be pointed out that this is an acquittal order and the principles on which an appeal against it is to be decided are quite different from the principles on which an appeal against a conviction is to be considered. I had dealt with this legal proposition in the case of State v. Ghulam Mustafa reported in 1986 P Cr. L J 1283 it will be useful to reproduce the relevant passage from the said decision which is as under:‑

"Before we embark. upon the appreciation of submissions made by the counsel of the parties it will be appropriate to have a bird's eye‑view of the law as to acquittal appeals, laid down by the Superior Courts. In this connection, first of all, we would place reliance on the leading case as to the consideration which should be kept in view by Courts while deciding the acquittal appeals. It is the one reported in A I R 1934 PC 227. It has been held as under:‑

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 conclusion 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 view of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, the 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 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 by same principle in a ruling reported in P L D 1964 SC 42'.2 which may be 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 come 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 convassed 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 such 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 the 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 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 PCr.LJ 891. 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 has 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 benefits of doubt, the presumption of the innocence in his favour is also strengthened and not weakened by the acquittal:"

It would, therefore, appear that in deciding an acquittal appeal which rests wholly on direct evidence of witnesses, importance must be to the presumption of innocence in favour of the 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 not preverse or wholly illogical or unreasonable there is a clear risk of departure from the, principles enumerated above in reversing his findings. It is maxim of English that it is better that ten guilty men should escape than one innocent man should suffer:'

6. Admittedly there is no circumstantial evidence to support the oral evidence of the complainant P.W. Bahar and Dhani Bux. Neither complainant Muhammad Afzal nor P.W. Bahar were sent to the medical officer nor any medical certificate has been produced, in proof of the presence of injuries on their persons. No other evidence has been produced, circumstantial or otherwise to support oral word of complainant and P:Ws. Bahar and Dhani Bux about the injury. The allegation of the theft of watch and towel on the face of it appears to be concocted. The Magistrate who had the occasion to watch demeanour of the witnesses found that there were contradictions in their evidence on material points which had gone to the root of the case. He has further held that their evidence was tainted with enmity with the respondents and was interested inter se and, therefore, that of partisan witnesses. He has given cogent reasons for his findings. He, therefore, rightly decided to disbelieve their evidence. Keeping the above mentioned golden principles in view we do not find any scope for interfering with the acquittal of the respondents. On the contrary we find that the judgment of the learned Magistrate is unexceptionable and appropriate.

These are the reasons for which we dismissed the appeal of the applicant by our short order, dated 16‑3‑1987.

M.Y.H./M‑185/K Appeal dismissed.

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