Syed Afzal Haider, J.--Through this petition for special leave to appeal, Ghulam Nabi seeks to challenge judgment dated 21.07.2005 delivered by learned Judicial Magistrate 1st Class, Mandi Bahauddin whereby respondent Muhammad Ashraf was acquitted in a private Complaint No, 10- H/2002 lodged before him under Section 11 of the Offence of Qazaf (Enforcement of Hudood)
Ordinance, 1979.
2. It has been stated by complainant in his private complaint dated 15.01.2002 that he is a poor wage earner and respondent/accused Muhammad Ashraf, an influential person, was in the habit of exacting uncompensated labour, wangar from poor people. The complainant refused to oblige whereupon the respondent, in order to dishonour and defame the complainant and members of his family, got a crime report registered as F.I.R. No, 53/98 dated 23.01.1998 under Section 10 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with police station Saddar Mandi Bahauddin against him complainant and members of his family for abduction and commission of Zina with Mst. Shah Begum wife of Muhammad Akbar, sister-in-law of respondent. The respondent, it is further stated, repeatedly levelled allegations in public against the complainant and his family members. These allegations caused damage to the reputation of complainant and his family. It is also stated in the complaint that the respondent, realizing that no case was made out against the complainant, produced Mst. Shah Begum, the alleged abductee before the local police, and also submitted her affidavit alongwith his.own affidavit to the effect that the allegations levelled by him against the complainant and his family members were false. The complainant also disclosed that during investigation the complainant and members of his family were found innocent by the local police so the F.1.R was proposed to be cancelled and learned Illaqa Magistrate agreed with the discharge report. Lastly it was urged that local police did not register a case against the respondent even after repeated requests of the complainant so the instant complaint under Qazaf law, was filed in the Court.
3. The learned trial Court framed charge against the accused/respondent under Section 11 of Offence of Qazaf (Enforcement of Hudood) Ordinance, 1979. The accused did not plead guilty and claimed to be tried. The trial Court after completing codal formalities of the trial returned a verdict of not guilty and acquitted him of the charge. Hence the present petition for special leave to appeal as mentioned in the opening Paragraph of this Judgment.
4. Learned counsel for the petitioner, seeking special leave to appeal, contended as follows:--
(i) That respondent had filed an affidavit admitting that the case lodged by him against the petitioner was false;
(ii) That the police, as a result of investigation found the petitioner innocent and a discharge report was prepared on 26.06.1999; and (iii)The petitioner was discharged as the learned Magistrate had agreed with the discharge report of the police.
5. We have gone through the record. Evidence placed on record has been perused. Relevant portions of the impugned judgment particularly Paragraph 10 onward, have also been scanned.
Points raised by the learned counsel for the petitioner have been noted.
6. Attention of learned counsel for the petitioner was invited to the following facts and he was asked to explain these points:--
(i) Inexplicable delay of almost three years in moving the complaint;
(ii) The findings of the learned trial Court as contained in Paragraph 11 of the impugned judgment that the complainant admitted that respondent Muhammad Ashraf did not level allegations of illicit relationship specifically against the complainant; (iii)The findings of learned trial Court vide Paragraph 14 of the impugned judgment, that P.W.2, during his cross-examination submitted that the respondent Muhammad Ashraf made no statement, except F.I.R, before local police alleging Zina to the complainant; and (iv)That the entire evidence was duly considered in an elaborate judgment spread over 19 pages.
There was nothing which was not assessed by the learned trial Court.
7. The law is settled that in order to disturb an order of acquittal, the impugned judgment must be shown to be fanciful, arbitrary and shocking in nature. In a recent case, Muhammad Azam and others Versus The State reported as 2009 SCM R 1232 (September issue of SCMR), it has been held as follows:-- "It is cardinal principle of criminal jurisprudence, which has been settled since decades by this apex Court of the country that when an accused is acquitted of the charge, he can be brought into barriers of jail when the findings of the learned Court acquitting the accused are proved to be perverse, arbitrary, whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, based on misreading of material evidence, on inadmissible evidence, on a view not possible to gather from the evidence on the record, highly conjectural, or based on surmises unwarranted in law. It is also settled that an accused, who has been acquitted is credited with two advantages, one that is available to him of his innocence at the pre-trial stage and the other which is earned by him on the basis of the judgment of acquittal from a Court of Competent jurisdiction".
This observation was based upon an analysis of 22 reported precedents. The details may be seen in the said judgment.
8.Learned counsel for the petitioner has not been able to persuade us to interfere in the impugned judgment which is neither fanciful nor arbitrary. The mere fact that another opinion is possible according to the contentions of the learned counsel, is not enough to issue notice to respondent.
9. In view of what has been Stated above Criminal P.S.L.A No, 36/L of 2005 fails. Leave is refused.