Mst. SABRAN BIBI vs FALAK SHER etc
This criminal appeal was filed by the appellant, Mst. Sabran Bibi, challenging the acquittal of Respondents No. 1 to 3 by the Magistrate 1st Class, Sahiwal, under Section 249-A of the Code of Criminal Procedure 1898. The prosecution case arose from an FIR registered under Section 338-B of the Pakistan Penal Code 1860, alleging that the respondents beat the pregnant appellant, causing a miscarriage. The High Court observed that there was an unexplained four-month delay in lodging the FIR, and that civil litigation was pending between the parties, suggesting an attempt to pressurize the accused. Furthermore, the prosecution witnesses provided contradictory statements and failed to attribute specific roles or injuries to the accused, while the medical certificate relied upon by the appellant was never exhibited during the trial. The High Court held that once an accused is acquitted, they enjoy a double presumption of innocence, which can only be displaced by strong and just proof. Finding no perversity in the trial court's order, the High Court dismissed the appeal.
- What is the legal effect of an unexplained four-month delay in registering an FIR on the prosecution's case?
- Can an appellate court set aside an acquittal order based on a medical certificate that was never exhibited during the trial?
- What standard of proof is required to overturn an acquittal order passed by a competent trial court under Section 249-A of the Code of Criminal Procedure 1898?
- Section 338-B, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 249-A, Code of Criminal Procedure 1898
ORDER
Through this criminal appeal Mst. Sabran Bibi wife of Nasir Ahmad has assailed acquittal order dated 8.7.2009 of Respondents No, 1 to 3 passed by Magistrate 1st Class, Sahiwal.
2. Brief story of the prosecution is that at the complaint of Mst. Sabran Bibi, present appellant, case FIR No,449/08 was got registered on 1.12.2008 under Section 338-B of PPC against Respondents No,1 to 3. After investigation of the case report under Section 173 Cr.P.C. was submitted before the learned Illaqa Magistrate Respondent No,l. It is alleged in the FIR that the accused persons gave her beating with kicks and fist blows. She was pregnant and due to violence her miscarriage was caused. The prosecution story as narrated in the FIR this occurrence took place on 21.8.2008 while FIR was got registered on 1.12.2008 with unexplained delay of four months.
3. The respondents/accused filed an application under Section 249-A of Cr.P.0 of their acquittal before the learned trial Court.
4. During the trial complainant Mst. Sabran Bibi appeared herself as PW-1 and in her statement she repeated the contents, of the FIR. During examination-in-chief she admitted that exchange of harsh words and abuses happened between both the parties. She did not attribute role to any of the accused resulting into specific injury. During cross-examination she admitted that civil cases regarding the civil dispute between her husband and one of the accused Falak Sher are pending.
During further cross-examination some material contributions came to the surface out of the mouth of PW-1. Muhammad Amin son of Mian Sultan appeared as PW-2. He also did not attribute any specific role to any of the accused: Rather he contradicted the statement of the complainant and stated that Falak Sher accused gave below of stick which does not hit the complainant.
Basharat Ali son of Muhammad Amir appeared as PW-3. He also deposed contradictory statement with the complainant version, He only stated that he saw the complainant and the accused while fighting. Where-after the complainant lady was shifted to hospital. He also could not attribute the specific role to any of the accused' esulting miscarriage with specific injury.
5. Learned counsel for the petitioner contended that the learned-- trial Court ignored the findings of the learned trial Court that medico-legal report is not supporting the' prosecution version.
Learned counsel submitted that it is incorrect findings of the learned trial Court. The medico-legal report fully supports the version of the appellant. Annexure-C, MLC No, 1524 of Gynae Unit D.H.Q.
Hospital Sahiwal is issued by Dr. Robina Zaib dated 29.8.2008. It is observed in the report that:-- "incomplete miscarriage following fight, blows and kicks."
6. After perusal of the impugned judgment and decree dated 8.7.2009 passed by learned Magistrate 1st Class, Sahiwal and after hearing the learned counsel for the appellant I am of the opinion that order passed by learned Magistrate is well reasoned, convincing and based on cogent reasons. First of all the occurrence took place on 21.8.2008 while the FIR was got registered on 1:12.2008. The learned trial Court observed that not a single day is explained such a long delay in lodging the FIR give rise to suspicion and false implication cannot be ruled out. It is also observed by the learned trial Court that civil litigation is pending between Falak Sher, one of the accused with the husband of the petitioner. This may be an admission on the part of the complainant to convert the civil litigation into criminal litigation just to pressurize Falak Sher. The certificate produced by the learned counsel for the appellant is not exhibited during the trial, it should have been placed in examination-in-chief by the Prosecutor when the prosecution evidence was being recorded. The filing of this criminal appeal is of no use for the appellant. Learned counsel for the appellant has not appended even the application submitted by him under Section 249-A of Cr.P.C. and he has not even appended the statements of PWs and other documents which were brought on record during the trial. Once the accused respondents are acquitted by the ,competent trial Court the presumption of double innocence is available to the accused respondents. For convicting the acquitted accused there need strong and just proof to set aside the findings of the acquittal. The impugned order is neither perverse, capricious nor fanciful. This appeal against acquittal is dismissed.