Gul Zareen vs Hamzada

2013 M L D 157

[Peshawar]

Before Assadullah Khan Chamkani, J

GUL ZAREEN---Appellant

Versus

HAMZADA and others---Respondents

Criminal Appeal No. 40 of 2011, decided on 4th September, 2012.

(a)Penal Code (XLV of 1860)---

---Ss. 430/147/149---Criminal Procedure Code (V of 1898), S. 417---Mischief by injury to works of irrigation or by wrongfully diverting water, rioting, unlawful assembly---Appeal against acquittal--- Appreciation of evidence---Benefit of doubt---Allegation against accused persons was that they had stopped spring water by way of cement and mud, which people of complainant's village had been using for drinking purposes---Trial Court acquitted accused persons of the charge---Validity---Unexplained delay of seven days in lodging report, therefore, it could be safely held that time was consumed in deliberations and consultation---Complainant had explained that delay in lodging report was caused because the matter was being patched up locally but he failed to produce a single witness in this respect who acted as a mediator--- Complainant himself was not the eye-witness of the occurrence---Witnesses produced by the complainant had not been mentioned in the first report lodged by him and the witnesses mentioned in the first report had been abandoned by the prosecution---Spring in question was being used by people of the village but no person from said village had come forward in support of version of complainant---Trial Court had rightly extended benefit of doubt to accused person on valid and cogent reasons and their acquittal order did not call for any interference---Appeal against acquittal was dismissed, in circumstances.

(b)Criminal Procedure Code (V of 1898)---

----S. 417---Appeal against acquittal---Appreciation of evidence---Criterion---Scope---Double presumption of innocence---Scope-Criterion of appraisal of evidence in an appeal against acquittal was quite different than an appeal against conviction, because in case of appeal against acquittal, double presumption of innocence laid in favour of the accused---Even where another view was possible, the view favourable to accused was to be preferred.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 rel.

Syed Bad Shah for Appellant.

ORDER

ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 11- 4-2011 passed by learned Civil Judge/Illaqa Qazi, Chakdara, whereby the respondents Nos.1 to 3 were acquitted after having been involved in case F.I.R. No. 689 dated 29-10-2009 under sections 430/147/149, P.P.C. registered at Police Station, Ouch, on the charges that they on 29- 10-2009 at Shamvella, had stopped the spring water by way of cement and mud , which they were using for drinking purposes since 20/25 years.

2.The learned counsel for the appellant argued that the findings of the trial court are based on surmises and conjectures. He submitted that the appellant has proved his case against the respondents beyond reasonable shadow of doubt by producing reliable evidence but the learned trial court totally ignored the evidence P.Ws. 3 to 5 without any plausible reason, hence, the impugned judgment is liable to be set aside.

3.I have heard learned counsel for the appellant and perused the available record.

4.Perusal of the file would suggest that there is unexplained delay in lodging of the report for seven days as the occurrence is that of 29-10-2009 while the report has been lodged on 6-11-2009, therefore, it can be safely held that the time was consumed in deliberations and consultations, although, the complainant stated in his report that the delay has been caused as they were patching up the matter locally, but he has failed to produce a single witness as mediator in this respect. Similarly, the complainant himself is not the eye-witness of the occurrence while the other witness produced by the complainant has not been mentioned in the first report lodged by him and the witness mentioned in the first report has been abandoned by the prosecution. Furthermore, as per contents of report the spring in question was using by the village people but no person from the village had come forward in support of the version of the complainant and the Investigating Officer when examined as P.W.1 has categorically admitted that except the son and brother of the complainant, there is no disinterested witness of the occurrence.

It is the duty of the prosecution to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, its benefit must go to the accused, so, the trial court has rightly extended the benefit of doubt to the accused on valid and cogent reasons and their acquittal did not call for any interference by this court. Moreover, criterion of appraisal of evidence in an appeal against acquittal is quite different than an appeal against conviction, because in case of acquittal double presumption of innocence lies in favour of the accused. Even if another view is possible, the view favourable to the accused is to be preferred. Reliance in this regard can be placed on the case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others

1994 SCMR 1928.

Consequently, this appeal being devoid of any merit is dismissed in limine.

MWA/309/P Appeal dismissed.