MUHAMMAD ISHAQUE vs SARDAR ALI and another

ORDER

' This judgment will dispose of Criminal Appeal No,15 of 2004 preferred under section 417(2-A), Cr.P.C. By Muhammad Ishaq appellant, challenging the judgment and order, dated 13-1-2004 recorded by learned Judicial Magistrate-II, Lakki Marwat whereby accused-respondent Sardar Ali son of Mohibullah Khan, resident of Haqdad Abad, Lakki Marwat charged for offences under section 379/34, P.P.C. Was acquitted on account of extension of benefit of doubt.

2. The prosecution story as disclosed by complainant Muhammad Ishaq in brief is, that on 16-10- 2001 his two cows did not return home from grazing from the herd of one Jehangir Khan, a cow- boy, therefore, the respondent with his co-accused Samiullah alias Khano (minor) were suspected by the complainant and the discussion aimed at reaching a clue of the cows failed with them.

Resultantly, on 21-10-2001 the matter was reported at Police Post, Lakki City which was recorded in Mad No,7 against unknown persons and inquiry under section 156(2), Cr.P.C. Was initiated by the local police. On 10-12-2001 the complainant nominated the respondent with his co-accused and on the supplementary statement of the complainant F.I.R. No,422, dated 10-12-2001 was registered at Police Station Lakki Marwat under section 379/34, P.P.C. Complete challan under section 173, Cr.P.C.

Was submitted on 12-4-2002 and after the process under section 241-A, Cr.P.C. Formal charge was framed against the respondent alongwith his minor co-accused Samiullah on 15-4-2003. On 19-4- 2003 the case file was returned to the prosecution for resubmission with an amended challan under section 173, Cr.P.C. Against the respondent for the reasons that his co-accused Samiullah being minor was to be tried separately under the Juvenile Justice system Ordinance, 2000 and therefore, fresh report under section 173, Cr.P.C. Against the respondent was separated and fresh formal charge was framed against him on 25-9-2003.

3. The prosecution in order to prove its case, examined four witnesses namely Akhto Jan, A.S.-I.

(P.W.1), Shabbir Hussain, S.-I. (P.W.2), Nazif Shah, D.S.P. (P.W.3) and Muhammad Ishaq complainant (P.W.4). The respondent was examined under section 342, Cr.P.C. He denied the prosecution allegations and claimed to have been falsely charged. He neither produced defence evidence nor appeared as his own witness on oath.

4. At the conclusion of trial, the learned trial Court acquitted the respondent per his judgment, dated 13-1-2004 and observed.

"The whole prosecution evidence are based upon hearsay. There is no eye-witness who could see the accused at the time of commission of theft. Complainant has not disclosed source of information. Despite of house search the case property is not recovered from accused. P.W.3 has alleged that before Arbitrator the accused had admitted commission of theft but the said Arbitrator is not produced in evidence by prosecution for the reason to be best known to them. It is true that in theft cases direct evidences are rarely found and offence is usually proved on strength of circumstantial evidence. In the present case, there is no strong circumstantial evidence to convince the Court. Accused cannot be convicted on mere allegation of complainant. For aforementioned- reason, while giving benefit of doubt; accused is hereby acquitted from all charges levelled against him."

5. Criticizing the impugned judgment, Mr. Abdul Aziz Khan Dalokhel, Advocate for the appellant contended with vehemence that the judgment passed by the trial Court is perverse and the reasoning of the trial Court are artificial, vis-a-vis the evidence on record. The grounds on which trial Court proceeded to acquit the respondent are- not supportable from evidence on record and the acquittal of the respondent is not sustainable in law.

6. Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis on record. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of respondent is considerably narrow and limited, as held in Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCM R 635.

7. Having heard the arguments in the light of material available on file, I find that the acquittal of respondent does not suffer from any illegality so as to call for my interference with the impugned judgment. According to golden principle of benefit of doubt, one substantial doubt is enough to acquit the accused. The evidence in this case is highly discrepant and full of infirmities and as such has created a genuine doubt in my mind regarding involvement of respondent in the commission of crime. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favor of the respondent and I see no legal justification to disturb the same. Resultantly, the appeal fails which is hereby dismissed in limine and the impugned judgment of acquittal is maintained.