' Appellant Mst. Khatoon is aggrieved by the judgment dated 29-9-1992 passed by learned IInd Additional Sessions Judge, Mirpurkhas acquitting the respondents in Case No,162 of 1990 arising out of a private complaint lodged by her.
2. Appellant's case in brief is that she along with her sons Masroor Ahmed and others and her husband Muhammad Ibrahim resides at Ayoob Nagar, Mirpurkhas. Respondents Nos.1 and 2 own and run an engineering foundry under the name "Majeed Engineering and Foundry Works" at a short distance from her house. On 8-4-1989 at about 2-00 a.m. Respondents Nos.1 and 2 visited her house, called at the door and took her son Masroor Ahmed with them, to their workshop. P.W.
Masroor Ahmed returned home at about 3-00 a.m. In injured condition and bleeding from his wounds. He informed his mother that he had been assaulted by respondents 1 and 2 and handed over to a police party going in a police mobile with the allegation that he was indulging in theft in the workshop of the respondents. According to the appellant the injured was taken to Civil Hospital, Mirpurkhas where he was examined by Dr. Ranomal Medical Officer on duty at 3-45 a.m. And admitted in the hospital. The appellant then rushed to Town Police Station to lodge her report when her report was not registered and she was asked to visit Police Station at 8-00 a.m. On her second visit to Police Station her report was recorded at 10-00 a.m. As non-cognizable report in the Station Diary.
3. Medical Officer on examination of the injured found the following injuries on his person:
(1) Lacerated wound 4. c.m. x 05 c.m. Muscle deep vertical edges irregular with slight swelling around, on right temporo-parietal region of skull.
(2) Burise 8 c.m. x 4 c.m. Redish in colour on mid of lower area of back.
(3) Burise 4 c.m. x 2 c.m. Redish in colour on left side of back blow scapular region.
(4) Burise 6 c.m. x 3 c.m. Redish in colour on later oposterior side of left thigh ' In the opinion of the doctor all the injuries appeared to have been caused by hard and blunt substance and were fresh. Nature of injuries was reserved in the first instance for want of X-Rays and observation etc. Which were subsequently certified to be simple in nature.
4. As local police did not register the case of the appellant against the respondents, she filed private complaint before the Joint Civil Judge and First Class Magistrate on 11-7-1990 against the respondents alleging commission of offences under sections 364, 307 and 323, P.P.C. Her complaint was sent to the Sessions Judge who entrusted it to an Additional Sessions Judge for disposal according to law. After holding a preliminary enquiry into the matter process was issued against the respondents for offences under sections 147, 364, 323, 149, P.P.C.
5. In support of her case appellant examined herself Exh.14, her son Masroor Ahmed Exh.17 and Dr. Ranomal Exh.19 whereafter she closed her side.
6. In their respective statements respondents denied the allegations against them and alleged that the witnesses were interested and inimical towards them. They stated that on 8-9-1989 at 1-00 a.m. P.W. Masroor Ahmed and his brother had attempted to commit theft in their Workshop. Both of them were apprehended and handed over to Police Patrolling Party. They urged that the present complaint was filed just to save Masroor Ahmed and others from the theft case. They however, neither examined themselves on oath nor led any other evidence.
7. On assessm ent of the evidence on record learned trial Court came to the conclusion that in view of medical evidence Masroor Ahmed had sustained injuries on his person but be did not find the respondents guilty of the charge as solitary word of Masroor Ahmed did not inspire confidence in view of strained relations between the parties. Consequently he acquitted the respondents by the impugned judgment which has been challenged in this appeal.
8. At the hearing appellant's husband Muhammad Ibrahim who is a public servant and well versed with the facts of the case placed the view point of the appellant while the respondents were represented by Mr. Ghulam Muhammad Shad, Advocate. Learned Assistant Advocate-General appeared on behalf of State.
9. Upon a careful analysis of the evidence on record I am of the considered view that acquittal of the respondents is based on proper appreciation of evidence adduced before the trial Court which is neither contrary to facts nor perverse. Sole witness in support of the case before the trial Court was P.W. Masroor Ahmed implicated the respondents by stating that at about 2-00 a.m. He was taken away from his house by respondents Sabir Ahmed and Jabir Ahmed to their Workshop whereas the remaining respondents were found standing near a mosque. Without naming either of the respondents he generally alleged that they started causing injuries to him with iron rods and gave him kicks and fists blows with a threat that they shall kill him. According to this witness, in the meanwhile a Police Mobile happened to pass by the workshop whereupon he was entrusted to the Police party with the allegation that he was a thief. On his own showing he was taken to Town Police Station and let off after about 5 minutes thereby meaning to say that Police did not find any truth in the version of the respondents. When questioned as to why did he accompany respondents Nos.1 and 2, he explained that they told him to accompany them to Divisional Superintendent Railways at Karachi for getting him a job as they had talked to the Divisional Superintendent for doing the needful. During his cross-examination he admitted that he did not tell his mother that the respondents had taken him to the workshop on the pretext that they shall take him to Divisional Superintendent Railways, Karachi.
10. In the face of highly strained and inimical relations between the parties inasmuch as Muhammad Ibrahim husband of the appellant had moved a number of complaints to the Municipal Authorities at Mirpurkhas and high-ups for demolition/removal of the workshop of the respondents as it emitted foul smell and was a source of permanent nuisance to the neighbourers and filing of a civil suit by respondent No,1 against Municipal Authorities as well as Muhammad Ibrahim, it is hardly believable that his son Masroor Ahmed would accompany respondents 1 and 2 at odd hours of night. It is strange to observe that according to the appellant herself Masroor Ahmed was fast asleep when there was a knock at the door and she went to attend the call.
According to her respondents Nos.1 and 2 told her that her son Mubeen had gone to commit theft to their workshop and run away. She spontaneously denied the allegation of theft and told them that Mubeen was sleeping in the house. In spite of this hostile exchange of words, on respondents' asking to call Masroor Ahmed she awakened her son who went out in company of respondents 1 and 2 whereas respondents 3 to 7 were seen by her standing near a mosque at a short distance.
Appellant's version to this effect on the face of it appears to be absurd and improbable. In case the respondents were annoyed with the husband of the appellant for lodging a number of complaints for elimination of their source of livelihood, it is difficult to believe that they would arrange for a job in Railways for his son. Alleged visit to appellant's house at 2-00 a.m. In the night without any prior appointment on the face of it smacks of some thing unusual and foul which cannot be safely accepted on the face of it. Injuries found on the person of Masroor Ahmed appear to be consistent with the opinion of Dr. Ranomal who has opined that these could be caused by fall on hard and rough ground. In his view the same could be self-suffered as well. Since this statement of the medical expert was not challenged, it would be fatal to the case of the appellant who should thank her stars.
11. Mr. Muhammad Ibrahim appearing for the appellant vehemently contended that local police had registered counter-complaint lodged by respondent Sabir Ahmed against the sons of the appellant nearly two hours before recording her report on the next day at 9-55 a.m. With a mala fide and ulterior motive in order to spoil her case. Be that as it may, appellant neither summoned the police record nor the Officer who recorded these reports before the trial Court and indeed no attempt was made to show that local police acted in total disregard of their statutory duties or in a manner contrary to actual facts. Her application before this Court for recording additional evidence was dismissed by a Division Bench of this Court long back which order has attained finally. There is thus no substance in the point urged at this stage.
12. As regards the powers of the Appellate Court it has been consistently held by the Superior Courts that in exercising the power conferred by the Criminal Procedure Code and before reaching its conclusions upon fact, High Court should and will always give proper weight and consideration to such matters as--
(i) the views of the trial Judge as to the credibility of the witnesses;
(ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;
(iii) the right of the accused to the benefit of any doubt; and
(iv) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had advantage of seeing the witness.
13. Indeed no limitations are laid down in law on the appellate powers of the High Court against the orders of acquittal, but as a matter of prudence and established practice now, the High Court will not interfere with an order of acquittal, if the evidence supports the view formed by the trial Court, although a contrary view may also be possible from that evidence. Re-examination of the whole evidence and to draw its own conclusions therefrom would become necessary for the Appellate Court, if the reasons given by the trial Judge in rejecting the prosecution evidence are of a speculative and artificial nature, or the findings recorded are based on no evidence or misinterpretation of evidence resulting in miscarriage of justice.
14. It is no doubt true that in an appeal against acquittal the whole case is open before the High Court in the same manner as in an appeal from a conviction and in both cases the High Court must make up its own mind as to the guilt or innocence of the accused person but there is this difference that the Court of appeal must in a case in which an acquittal is sought to be set aside remember that the presumption of innocence of The accused person has, if anything, been made stronger by the fact of the acquittal by the trial Court and this presumption is not to be lightly rebutted.
15. In the recent case of Muhammad Asghar v. The State PLD 1994 SC 301 Honourable Supreme Court observed that it has been the consistent view of this Court that there is double presumption of innocence in favour of an accused person who has secured acquittal; one, that every accused shall be presumed to be innocent unless proved to be guilty and the other that a competent Court of law has adjudged him not guilty. The mere fact that the appellate or revisional Court forms a different opinion on the appraisal of evidence than that arrived at by the trial Court will not justify setting aside the order of acquittal.
16. In the light of above discussion and case-law on the subject I see no merit in this appeal which is accordingly dismissed.