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2013 M L D 157

[Peshawar]

Before Assadullah Khan Chamkani, J

GUL ZAREEN---Appellant

Versus

HAMZADA and others---Respondents

Criminal Appeal No. 40 of 2011, decided on 4th September, 2012.

(a) Penal Code (XLV of 1860)---

---Ss. 430/147/149---Criminal Procedure Code (V of 1898), S. 417---Mischief by injury to
works of irrigation or by wrongfully diverting water, rioting, unlawful assembly---Appeal
against acquittal--- Appreciation of evidence---Benefit of doubt---Allegation against accused
persons was that they had stopped spring water by way of cement and mud, which people of
complainant's village had been using for drinking purposes---Trial Court acquitted accused
persons of the charge---Validity---Unexplained delay of seven days in lodging report, therefore,
it could be safely held that time was consumed in deliberations and consultation---Complainant
had explained that delay in lodging report was caused because the matter was being patched up
locally but he failed to produce a single witness in this respect who acted as a mediator---
Complainant himself was not the eye-witness of the occurrence---Witnesses produced by the
complainant had not been mentioned in the first report lodged by him and the witnesses
mentioned in the first report had been abandoned by the prosecution---Spring in question was
being used by people of the village but no person from said village had come forward in support
of version of complainant---Trial Court had rightly extended benefit of doubt to accused person
on valid and cogent reasons and their acquittal order did not call for any interference---Appeal
against acquittal was dismissed, in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S. 417---Appeal against acquittal---Appreciation of evidence---Criterion---Scope---Double
presumption of innocence---Scope-Criterion of appraisal of evidence in an appeal against
acquittal was quite different than an appeal against conviction, because in case of appeal against
acquittal, double presumption of innocence laid in favour of the accused---Even where another
view was possible, the view favourable to accused was to be preferred.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 rel.

Syed Bad Shah for Appellant.

ORDER

ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 11-
4-2011 passed by learned Civil J udge/Illaqa Qazi, Chakdara, whereby the respondents Nos.1 to 3
were acquitted after having been involved in case F.I.R. No. 689 dated 29-10-2009 under
sections 430/147/149, P.P.C. registered at Police Station, Ouch, on the charges that they on 29-
10-2009 at Shamvella, had stopped the spring water by way of cement and mud , which they
were using for drinking purposes since 20/25 years.

2. The learned counsel for the appellant argued that the findings of the trial court are based
on surmises and conjectures. He submitted that the appellant has proved his case against the
respondents beyond reasonable shadow of doubt by producing reliable evidence but the learned
trial court totally ignored the evidence P.Ws. 3 to 5 without any plausible reason, hence, the
impugned judgment is liable to be set aside.

3. I have heard learned counsel for the appellant and perused the available record.

4. Perusal of the file would suggest that there is unexplained delay in lodging of the
report for seven days as the occurrence is that of 29-10-2009 while the report has been lodged on
6-11-2009, therefore, it can be safely held that the time was consumed in deliberations and
consultations, although, the complainant stated in his report that the delay has been caused as
they were patching up the matter locally, but he has failed to produce a single witness as
mediator in this respect. Similarly, the complainant himself is not the eye-witness of the
occurrence while the other witness produced by the complainant has not been mentioned in the
first report lodged by him and the witness mentioned in the first report has been abandoned by
the prosecution. Furthermore, as per contents of report the spring in question was using by the
village people but no person from the village had come forward in support of the version of the
complainant and the Investigating Officer when examined as P.W.1 has categorically admitted
that except the son and brother of the complainant, there is no disinterested witness of the
occurrence.

It is the duty of the prosecution to prove its case beyond any reasonable doubt and if any
single and slightest doubt is created, its benefit must go to the accused, so, the trial court has
rightly extended the benefit of doubt to the accused on valid and cogent reasons and their
acquittal did not call for any interference by this court. Moreover, criterion of appraisal of
evidence in an appeal against acquittal is quite different than an appeal against conviction,
because in case of acquittal double presumption of innocence lies in favour of the accused. Even
if another view is possible, the view favourable to the accused is to be preferred. Reliance in this
regard can be placed on the case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others
1994 SCMR 1928.

Consequently, this appeal being devoid of any merit is dismissed in limine.

MWA/309/P Appeal dismissed.