' Through this petition for Special Leave to Appeal, the petitioner has challenged the order, dated.
18-3-1993 passed by Magistrate 1st Class, Haroonabad whereby he acquitted the respondents of the charge under section 337-A, P.P.C. On private complaint filed by petitioner/complainant.
2. Brief facts leading to the above petition are that petitioner/ complainant got the F.I.R. No,105/91 registered at Police Station Faqirwali under section 337-A, P.P.C. On the allegation that on the day and time mentioned in the F.I.R. While she was going to her own Chak, she was attacked by the respondents and given a beating in consequence of which her two teeth were broken. The said occurrence was allegedly witnessed by Muhammad Akram (her son) and also Manzoor Ahmad (her nephew). During investigation, the case was found to be false and the same was cancelled.
Not satisfied with the police investigation, the petitioner filed a private complaint in which the respondents were summoned on 24-10-1992 and the learned trial Court after trying the respondents acquitted them vide the impugned order. Main grounds which found favour with the learned trial Court in acquitting the respondents are:--
(i) that the parties are daggers-drawn on account of litigation over land,
(ii) that the witnesses are closely related to each other,
(iii) that a medical board was constituted to re-examine the injuries received by Mst. Razia and the petitioner never appeared before the said board and
(iv) that Muhammad Ismail A.S.I., C.I.A. Staff who is closely related to petitioner has been responsible for the criminal litigation which culminated in this private complaint.
3. Learned counsel for the petitioner while making the submissions, has stated that P.W.4 Muhammad Akram is son of the petitioner and therefore, he is a natural witness; that failure to produce teeth is not fatal; that enmity which forms motive part of the prosecution story stands admitted and the finding of the learned trial Court in the face of the evidence led, is arbitrary, perverse and not sustainable in law.
4. Learned counsel for the respondent/accused has defended the impugned order by making following submissions:-
(i) all the prosecution witnesses are related and inimical towards the respondents,
(ii) complainant herself states that the fight continued for one and half hour and the same was witnessed by many people but not a single independent witness has been produced,
(iii) the prosecution witnesses controvert each other on material points for instance;
(a) P.W.1 Mst. Razia states that she did not see her teeth falling down whereas P.W.2 Mansoor contradicts her by saying that one of the broken teeth was in the hand of Mst. Razia after the occurrence,
(b) P.W.5 Sadiq says that Mst. Razia petitioner (complainant) came to his house and he saw one of her broken teeth in her hand
(iv) Petitioner admits that a medical board was constituted but she never appeared before the same and it casts a doubt on her testimony,
(v) that the petitioner was granted leave to appeal against the order of acquittal on 8-11-1993 but up till now no appeal has been filed in terms of section 417(2). Reliance in this regard was placed on a judgment reported in Sardar Muhammad Akbar v. Qasim PLD 1988 Pesh.
130.
5. I have heard learned counsel for the parties as will as perused the record.
6. It is not disputed by the petitioner that the prosecution witnesses are closely related; that there is litigation pending between the parties on inheritance of land. In the background of litigation and inimical relations, the Courts have always examined with caution the testimony of interested witnesses and have generally sought corroboration from some independent source in the interest of safe administration of justice. Complainant herself admits in her statement before the trial Court that she was beaten for an hour and the incident was witnessed by general public but surprisingly not a single independent witness has supported the prosecution case. Moreover, after having been beaten for such a long time, the complainant would not have received just one or two injuries and even his son who was accompanying her namely Muhammad Akram P.W.4 did not try to protect her and did not receive any injury. It is admitted that the accused/respondents had challenged the veracity of the medico-legal report whereupon the D.C. Constituted a medical board for examination of Mst. Razia petitioner and she herself admits that she did not appear before the board despite notice. This would further make her testimony extremely doubtful.
6. The point that the petitioner should have filed a proper appeal after the leave was granted is a correct interpretation of section 417(2), Cr.P.C. Once a leave is granted, the law stipulates an option for the petitioner to file IB appeal or not.
' Section 417(2) reads as under:-- "If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
This petition therefore, has no bearing and cannot be treated as an appeal at this stage.
7. The Courts have been reluctant to interfere in an order of acquittal primarily for the reason that after an order of acquittal an accused earns double presumption of innocence and the same can only be rebutted if the judgment on the face of it appears to be perverse, arbitrary or illegal. I am, afraid, nothing has been shown from the record to indicate that the judgment suffers from any of these infirmities.
8. In view of what has been discussed above, this petition has no merit and the same is dismissed.