Hafiz Shahid Nadeem Kahloon, J. This judgment will dispose of P.S.L.A. No.02 of 2014 filed by Osama the petitioner, under Section 417(2) Cr.P.C. Against judgment dated 14.10.2013 passed by the learned Judicial Magistrate, Murree, District Rawalpindi whereby respondents No.1 to 3 were acquitted in the private complaint filed under Sections 379, 427, 354, 452/34 PPC, at Police Station Murree.
2. Succinctly, the facts of the case are that the petitioner filed a private complaint before the learned Judicial Magistrate, Murree alleging therein that on 14.06.2010 at 6-00 am the respondents- accused along with six unknown assailants broke the gate of the petitioner-complainant, demolished his boundary wall and when the watchman of the petitioner-complainant tried to restrain them, the accused-respondents attacked upon him and his family and beaten them.
When his wife and daughter came to rescue watchman, the respondents-accused Fawad and Amir Gull torn their shirts, abused, beaten and outraged their modesty and also dragged them.
There-after, the respondents-accused took away the bricks, gate and Amir Gul accused extended threats of dire consequences to them.
3. Learned trial Court framed charge under Sections 379, 427, 354, 452/34 PPC against respondents-accused No.1 to 3 to which they pleaded not guilty and claimed trail.
4. After framing of charge, the prosecution produced as many as four witnesses and two CWs. The complainant himself appeared as PW-1, Muhammad Raja has appeared as PW-2, who is star witness of the case, who was also chowkidar of the petitioner, Rani wife of PW-2 also appeared as PW-3 and Mst. Rabia Bibi appeared as PW-4. Whereas Nazir Ahmad appeared as CW-1 & Rashid Ahmad as CW-2. The complainant produced the documentary evidence i.e. Documents Mark-PA and MarkPB and closed the evidence.
5. Both the accused were examined under Section 342 Cr.P.C. And in answer to the question as to why the complainant has filed this case against him and why the PWs deposed against them, they replied as under:- "A false FIR has been registered against them. They never broke the wall or gate o the complainant-petitioner nor stole any thing. These are just an allegation. In-fact the petitioner- complainant want to stop the approach road which goes to their house and regarding which civil Court Murree has already decreed the suit in their favour. Failing which the complainant made a desperate attempt by lodging a false FIR and complainant against them in order to blackmail and harass them so that they stop using the approach road. They have falsely implicated in this case and PWs have given false evidence against them. They are interested witnesses and all were personal employees of the complainant. There is no recovery at all that is why no shirt has been presented in the Court and the recovery memo is false and fictitious. They are innocent."
6. Learned trial Court after recording the evidence dismissed the complaint. Hence, the present P.S.L.A.
7. Present petition was filed before this Court on 09.01.2014 and fixed for hearing for the first time on 24.04.2014, but later on the same has been adjourning repeatedly due to non-availability of petitioner as well as his counsel. Today, learned counsel for the petitioner has appeared and advanced his arguments.
8. Learned counsel for the petitioner has stated that the respondents accused along with unknown assailants entered into the house of petitioner when women and chowkidar were available there. It is further expressed that the respondents-accused along with their co-accused broke the gate of the complainant, demolished his boundary walls and when the watchman of the complainant tried to restrain them, they attacked upon him and his family and also they beaten them. Respondents No.1 & 2 had torn the shirts of ladies, abused, beaten and outraged their modesty and also dragged them. They also took away the bricks and gate while extending threats with dire consequences. It is further argued that cognizable offence was made out and he knocked the door of the police as well as Court of competent jurisdiction, but even then grievance of the petitioner was not redressed in spite of filing of private complaint against the respondents-accused before the Court. He has further contended that the prosecution has fully established the guilt of all the three respondents- accused as well as un-known assailants beyond any shadow of doubt and that the eye witnesses have fully implicated all the respondents-accused for the commission of offence but the learned trial Court has acquitted them erroneously.
9. I have heard the arguments advanced by learned counsel for the petitioner and perused the record with his assistance.
10. Admittedly, the petitioner was not present at his house at the time of occurrence, but inmates as well as Chowkidar, his wife and daughter were available. Perusal of record shows that complainant-petitioner (PW1) had dictated the application on the story heard from his servantchowkidar present in his house at the time of occurrence. Ultimately, on the basis of said application, FIR No.660-2010 was registered under Sections 354, 379, 452, 427 & 506(ii) PPC against the respondents-accused along with unknown assailants. During the course of investigation, the police deleted Section 379 PPC and the petitioner being aggrieved filed private complaint. As per circumstances and due to his non-availability at the time of occurrence, the petitioner (PW-1) has no testimonial value as his evidence is only hearsay evidence.
11. Muhammad Raja (PW-2) is the star witness of the occurrence, who was chowkidar of the complainant. In his statement, he stated that respondents-accused No.1 & 2 along with six un- known assailants were demolishing the wall. When they were asked to refrain from demolishing the same, they started beating him. They tore out the shirts of daughter and wife of the chowkidar. PW- 2 (Chowkidar) also admitted in his cross-examination that the occurrence took place in full darkness about one and half hours prior to sunrise. He also admitted that the disputed road was fifty years old which ends in the house of the accused-respondents. It means that the petitioner- complainant and respondents-accused live in the same vicinity. There is a civil dispute regarding the passage of road and the petitioner has converted it into criminal by harassing the respondents accused. It is admitted fact that PW-4 daughter of PW-2 called the complainant-petitioner and told him about the occurrence. PW-4 admitted in her cross-examination that she does not know that who wrote the application regarding the occurrence. She also admitted that learned counsel for the complainant-petitioner visited the house of complainant on the day of occurrence. She also admitted it correct that she did not know that what happened on 14.12.2010.
11. On appraising the evidence, I came to the conclusion that statement of PW-1 (complainant) has no weight being hearsay evidence. As far as evidence of remaining PWs-2, 3 & 4 is concerned, they are the prime witnesses of this case and their statements are full of contradictions. It is admitted fact that PW-1 had dictated the said application to his counsel, whereas PW-2 stated that counsel did not visit the house of the complainant on the day of occurrence. Whereas, PW-3 stated that counsel for the complainant visited the house of the complainant. Even other-wise, the local police after lodging the FIR No.660 failed to collect the torn shirt as case property during the course of investigation.
12. PW-2 & PW-4 are the star witnesses allegedly they were beaten by the respondents-accused, but the victims did not bother to receive any medico legal report in this regard. These PWs are also taking divergent stances regarding lurking tress-pass in the house of the complainant. No recovery of weapon of offence was effected from the respondents-accused during the investigation nor specific weapon was alleged to be carried out by the respondents-accused in the private complaint. Learned trial Court after appraisal of evidence available on record rightly acquitted respondents-accused. As per above discussion, the star witnesses of the occurrence did not support the prosecution version
13. A minute and thorough perusal of the impugned judgment reveals that the learned trial Court passed well reasoned judgment while acquitting the respondents/accused. It is well settled principle of criminal administration of justice that when an accused is acquitted from a case after a protracted trial, double presumption of innocence is attached to him. This is in line with the law laid down by the Apex Court reported in Iftikhar Hussain and others v. The State (2004 SCM R 1185) as under:- "It is well settled law of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417 Cr.P.C. Are obliged to be very careful in dislodging such presumption.
Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mumraiz Khan and others (PLD 1985 SC 11) that the appellate Court seized with the acquittal appeal under section 417 Cr.P.C. Is competent to interfere in the order challenged before it provided it has been established that the trial court has disregarded the material evidence or misread such evidence or received such evidence illegally......
14. " In the case of "Haji Amanullah vs. Munir Ahmad and others (2010 SCM R 222)", the Hon'ble Supreme Court of Pakistan, at page 226 has been pleased to observe as under:- "It is well settled by now that in an appeal, the Court would not interfere with acquittal merely because reappraisal of the evidence, it comes to the conclusion different from that of the Court acquitting the accused provided both conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
15. In view of the above discussion, learned counsel for the petitioner has failed to make out a case for conviction of the respondents-accused and the judgment of the trial court is not open to any exception.
Resultantly, the instant petition being devoid of any force stands dismissed and petition for special leave to appeal is refused.