Mst. NAWSHOD BIBI vs SHERIN KHAN and 4 others

' SYED AFSAR SHAH, J.---This criminal appeal calls in question the judgment dated 6-12-2012, handed down by the learned Judicial Magistrate-I, Takht-e-Nasrati, Karak, whereby the respondents, who were charged under sections 337-F(ii)/452/354/34, P.P.C., were acquitted.

2. I have heard arguments of learned counsel for the appellant and gone through the record available on file.

3. It appears from the record, available on file that on 21-6-2003, Mst. Naushad Bibi made a report in Police Station Takht-e-Nasrati, which was recorded in Daily Diary No,

4. In the said report, it was alleged by the appellant/complainant that she was raising construction in her house, when at about 10.00 hours curtain hanging between her house and the house of Sherin Khan fell down due to windstorm, that due to the falling of curtain Sherin Khan came and made queries and after exchange of hot words, he again came there along with his sons and thrashed her, due to which she sustained injuries on her left thigh. The matter was reported in the Police Station concerned and at the same time, the complainant also filed a separate complaint in the court of Illaqa Magistrate. During the proceedings, in the case of the police report, respondent filed an application under section 249-A, Cr.P.C., which was allowed and they were acquitted on the ground that another complaint filed by the appellant/complainant was also pending adjudication in the same court, therefore, they cannot be treated twice for the same offence. The order of the learned Magistrate was challenged by the complainant in this court and on 7-9-2012, the appeal was allowed, the impugned order of the learned Magistrate dated 30-6-2008 was set aside, resultantly, the case was remitted back to the trial Court with the direction for staying police report case and to proceed with the private complaint filed by the complainant and to decide the same in accordance with law. After remission of the case to the trial Court, it was on 27-11-2012, when learned counsel for the parties placed reliance on the evidence already recorded, where after on 6-12-2012, the Magistrate after dismissing of the complaint acquitted the respondents/ accused from the charges. The judgment, so handed down by the learned Magistrate has been assailed by the complainant, through the instant criminal appeal, which has been filed under section 417(2-A) of the Code of Criminal Procedure.

4. According to section 417(2-A), Cr.P.C., if the 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 appeal to the High Court, as in the instant case, where the acquittal of the respondents/accused is passed in the case filed upon a complaint. While going through the record one could reach to an irresistible conclusion that the appellant has filed no such application for the grant of special leave to appeal from the order herein impugned.

5. So far as, the merits of the case is concerned, admittedly and as is evident from the record, initially the appellant made a report in the Police Station concerned, which was recorded in Daily Diary No, 4, dated 21-6-2003. In the said report, the appellant/complainant has levelled the allegation of beating, but later on when she filed a complaint in the court of Illaqa Magistrate, there she charged the accused for dragging her to the public, outraging her modesty and also for beating. The report of the occurrence in Police Station was made on 21-6-2003, whereas the complaint, which is altogether with the different version has been filed on 26-3-2004, after a delay of about eight months of the report made to the police. As per version of the complainant, the police has not recorded her report as per her narration and it was in this background that she filed a separate complaint. However, it is in the cross-examination of the complainant that at the time of the report in the Police Station she was accompanied by her son Muhammad Zia and appearing as P.W.3, the said Muhammad Zia has stated that he was not present with his mother in the Police Station and here the question arises that how she was left all alone in the Police Station and her son was waiting her in the Bazar of Takht-e-Nasrati. This version of the prosecution in the circumstances is repellent to the common sense. Again as per version of the prosecution the complainant was beaten by the respondents/ accused in as much as her modesty was outraged.

At the time of occurrence the labourers and even the son of the complainant were present, but none of them tried to go for separation or for that matter to intervene. The beating of the mother and even outraging her modesty in the presence of her son and non-interference on his part in the episode is yet another factor, which gives a serious jolt to the story of the prosecution.

6. Moreover, while going through the evidence adduced by the prosecution one could safely say that it is pregnant with doubts and inconsistencies. The principle attracted to the appeals against acquittal is laid down by the apex Court, in the case of "Ghulam Sikandar and another v. Mumraiz Khan and others" (PLD 1985 SC 11). Again double presumption of innocence is attached to the order of acquittal passed by the court of competent jurisdiction, and in which respect reference can be made to case-law "Haji Paio Khan v. Sher Biaz and others" (2009 SCM R 803). Moreover, findings of acquittal neither can be reversed nor upset except when the judgment is perverse, shocking and suffering from error of jurisdiction or misreading or non-reading of evidence. Wisdom can be derived from a case-law "Muhammad Aslam v. Sabir Hussain and others" 2009 SCM R 985.

6. In the present case, after going through the judgment herein impugned, I do not propose to draw a conclusion different from what the learned Judicial Magistrate has drawn and hence, I do not feel hesitant to uphold acquittal of the accused/respondents, resultantly, the same is maintained and the appeal is dismissed, in limine.