SHAH KHAWAR, J.---Mst. Naseem Kausar petitioner (complainant) has filed this petition under section 417(2) of the Code of Criminal Procedure for the grant of special leave to appeal against the judgment dated 14-6-2012 passed by Mr. Sahir Islam learned Judicial Magistrate Section-30, Ferozewala District Sheikhupura whereby the accused/respondents Nos.1 to 4 were acquitted.
2. Brief facts of the case are that the complainant (P.W.3) got registered as case F.I.R. No.616/2004, under sections 457 and 380, P.P.C. At Police Station Ferozwala District, Sheikhupura contending therein that she was married to accused Akash alias Aftab but due to strained relations the marriage was dissolved. The complainant has alleged that her ex-husband/accused Akash alias Aftab, accompanied by Muhammad Razzaq and Afzal Hussain co-accused, 3-1/2 month's ago broke upon the locks of the house of the complainant. The said incident was witnessed by her brother Zafar and one Muhammad Manzoor who saw that the lock was broken and articles mentioned in the F.I.R. Were missing. The matter was investigated by the local police. The police arrested accused Akash alias Aftab and he remained behind the bars for some time whereas, accused Afzal Hussain was declared as proclaimed offender. The police after investigation declared all the accused persons as innocent. Being dissatisfied with the police investigation, the complainant filed a private complaint under sections 380 and 457, P.P.C. Which was admitted by learned Judicial Magistrate Section-30, Ferozewala District Sheikhupura.
3. The charge was framed against the accused persons to which they pleaded not guilty and prosecution witnesses were examined whereas the accused got recorded their statements under section 342 of the Code of Criminal Procedure, 1898 wherein the accused persons contended that the case has been falsely registered against them due to matrimonial animosity between the complainant and accused Akash alias Aftab.
4. Learned Judicial Magistrate Section-30, Ferozewala District Sheikhupura after evaluating evidence and other material available on record acquitted accused persons namely Akash alias Aftab, Afzaal Hussain alias Bholi, Muhammad Razzaq and Mushtaq from the charges levelled against them while extending them benefit of doubt, vide judgment dated 14-6-2012.
5. Learned counsel for the petitioner submits that the impugned judgment is against law and facts of the case and the same is based upon misreading of evidence of the prosecution hence, grave miscarriage of justice has been done. Learned counsel termed the impugned judgment as arbitrary, illegal and void ab initio and not sustainable in the eyes of law.
6. I have gone through the case of the petitioner and the judgment passed by learned Judicial Magistrate Section-30, Ferozewala, District Sheikhupura. The learned Judicial Magistrate has fully discussed the evidence led by the complainant and all relevant facts arisen out of the controversy.
The impugned order of acquittal is based upon following reasons:--
(i) The complainant appeared as P.W.3 and reiterated her version with some variation given in the complaint. P. W.1 Muhammad Manzoor is colleague of complainant whereas Zafar Naseem P.W.2 is her real brother. There is previous enmity and hostility for which corroboration from independent source becomes necessary and without the same reliance on such P.W. Is not safe.
(ii) The complainant is ex-wife of one of the accused 'namely Akash alias Aftab, their marriage has been dissolved and have admittedly a dispute over property as well as articles of dowry.
(iii) The alleged occurrence took place in daylight in a populated area and it is in the statement of P.Ws. That they witnessed the accused persons with stolen articles in open area outside the house where the alleged theft was committed and it is unbelievable that the accused would have not been seen by any other person of the locality. Moreover, stolen articles were carried away by accused persons but complainant as veil as other P.Ws. Did not make any effort to apprehend them while carrying away the stolen articles and they were not stated to be armed with weapons.
(iv) The evidence made by P.Ws. And the version narrated by them appear to be unnatural and improbable.
(v) A criminal case F.I.R. No. 616/2004 was got registered by the complainant against her ex- husband/accused namely Akash alias Aftab having allegedly stolen articles of the complainant.
The said accused was arrested and he remained on physical remand but during course of investigation no recovery whatsoever was effected from him and resultantly, he was acquitted charges levelled against him by a Court of competent jurisdiction.
7. I have carefully perused the evidence and the impugned judgment and I am of the considered view that the learned Judicial Magistrate Section-30, Ferozewala District Sheikhupura has rightly acquitted the accused persons from the charges and present petition for leave to appeal has no force. I am guided by the judgment passed by the Hon'ble Supreme Court of Pakistan in case reported as PLD 2011 SC 554 (The State and others v. Abdul Khaliq and others). From the said judgment at page 576, paragraph 16 is relevant which is reproduced herein under:-- "From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubted. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be, perverse, passed in gross violation of law, suffering from the errors of grave misreading of non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover; in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied)."
8. Adverting to the judgment, it is crystal clear that the scope of section 417(2) of the Code of Criminal Procedure, 1898 is very limited and this Court can exercise powers only in the case when findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous and this court will not interfere simply for the reasons that on the reappraisal of evidence a different conclusion could possibly be arrived at. Different conclusion should not be up set except when the order suffers from serious material infirmities. It is also recognized principle of law that the approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence to the accused is attached to the order of acquittal.
9. The impugned judgment has been passed with due evaluation and appraisal of evidence and other circumstances attached thereto i.e. Admitted enmity inter se complainant and one accused namely Akash alias Aftab being ex-spouse. Although according to complainant there is consistency in the statements recorded by complainant and other P.Ws. But that cannot be fully relied upon keeping in view the close relationship between complainant and P.Ws. And that too without corroboration by any independent witness.
10. I am in agreement with the findings made by learned Judicial Magistrate in the impugned judgment that "admittedly only close relationship between P.Ws. Does not render them unreliable or any credible but when between the parties there is previous enmity and hostility corroboration from independent source becomes necessary and without the same reliance on such P. Ws. Is not safe". Reliance is placed on the case law reported as 1969 SCM R 777 (Din Muhammad v. Crown).
Learned Judicial Magistrate has rightly examined the evidence of the P.Ws. On the touchstone of the aforementioned criteria.
11. It is bounden duty of the prosecution to prove its case beyond any shadow of doubt. According to the recognized principle of law as observed by the superior courts that accused are considered innocent unless proved otherwise by the prosecution supported by solid and confidence inspiring evidence, which lacks in the instant case. It is worth mentioned here that first time in the private complaint, complainant has alleged that accused Akash alias Aftab and Afzal Hussain alias Bholi were witnessed by the P.Ws., while carrying away stolen television and "gathri". This fact of the matter did not find mention in the F.I.R. It is also strange that the P.Ws. Did not make any effort to apprehend the accused while taking away stolen items. Moreover, no independent witness was associated to substantiate this allegation. The said version of the complainant as well as P.Ws.
Cannot be taken into consideration which makes the case of the complainant as highly doubtful.
Moreover, the previous rivalry and matrimonial dispute inter se the complainant and accused Akash alias Aftab cannot be ignored. The case in hand is full of contradictions and element of afterthought cannot be ruled out. In the impugned judgment, learned Magistrate met all four corners for arriving at a just conclusion of the matter.
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12. As a sequel to the above discussion, I am not inclined to interfere with the impugned judgment passed by the learned Magistrate Section-30, Ferozewala District Sheikhupura. The instant petition for special leave to appeal stands dismissed in limine.