Delay of more than 10 hours in reporting a criminal case

 PLJ 2021 Cr.C. (Quetta) 642 (DB)

Present: Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ.

Mst. SABIHA--Appellant

versus

Dr. AKBAR and 2 others--Respondents

Crl. Acq. A. No. 397 of 2015, decided on 1.7.2019.

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

----Ss. 417(2) & 249-A--Appeal against acquittal--It is an admitted fact that complainant has reported matter with police with delay of more than 10 hours without any plausible explanation, under such circumstances consultation and deliberation on part of complainant cannot be ruled out--Since FIR is always treated to be a corner stone of prosecution case to establish guilt against culprits involved in crime and it has got a very significant role to play--Any doubt in lodging of FIR and commencement of investigation gives rise to a benefit in favor of accused and FIR lodged after inquiry loses its evidentiary value--Held: It is settled principle of law that conviction must be based on unimpeachable evidence with certainty of guilt and any doubt arising in prosecution case must be credited in account of accused--When an accused person is acquitted from charge by a Court of competent jurisdiction, double presumption of innocence is attached to his acquittal order, with which appellate Courts do not interfere unless impugned order is arbitrary, capricious, fanciful and against record--Judicial Magistrate has a power under Section 249-A, Cr.P.C. to acquit accused person at any stage of case, if he founds that charge is groundless or that there is no probability of accused being convicted of any offence--Appeal was dismissed.           [Pp. 644, 645 & 646] A, B, C, D & E

2008 SCMR 6, 2004 SCMR 1185, 2003 SCMR 477 & PLD 2009 SC 102.

Mr. H. Shakil Ahmed, Advocate for Appellant.

Mr. Behlul Kasi, Advocate for Respondents Nos.1 and 2.

Mr. Abdul Latif Kakar, Additional Prosecutor General for State.

Date of hearing: 25.6.2019.

Judgment

Abdul Hameed Baloch, J.--This acquittal appeal is directed against the order dated 26.11.2015 (“impugned order”) passed by the learned Judicial Magistrate-III, Quetta (“trial Court”), whereby the private respondents were acquitted of the charge.

2. Brief facts of the case are that FIR No. 117 of 2013 was lodged with Police Station Sariab Quetta, under Sections 337-AD, Qisas and Diyat and 34, P.P.C. on the report of the appellant/complainant, who alleged that on the stated date, at about 2:15 a.m., at Railway Housing Society Quetta, the private respondent have beaten her and her sisters with sticks, due to which they sustained injuries on different parts of their body. Resultantly, the referred FIR was registered.

3. After formal investigation and submission of challan, the charge was framed and read over to the private respondents, to which they pleaded not guilty. During trial, when four prosecution witnesses were examined, the private respondents filed an application under Section 249-A, Cr.P.C. The trial Court after hearing both the parties decided the same and acquitted the private respondents of the charge. Hence this appeal.

4. Learned counsel for the appellant contended that the impugned order is not sustainable as it is suffering from many illegalities and irregularities; that the trial Court has failed to appreciate the facts and circumstances of the case, as well as the evidence led by the prosecution; that there was no occasion for the trial Court to have acquitted the respondent prematurely on basis of an application filed under Section 249-A, Cr.P.C., which has caused serious prejudice to the prosecution case; that if the prosecution had been allowed to produce all the intended witnesses, it would have resulted into conviction of the respondent, as they were fully involved in the commission of the offence; that the trial Court has not been able to apply its mind judiciously to the facts and circumstances of the case. He finally urged that the impugned judgment which is not only contrary to the facts, law and natural justice but also based upon non-reading and misreading of the material available on record, deserves to be set aside and respondents are liable to be punished in accordance with law.

5. Learned counsel for the private respondents strongly opposed the contention of the learned counsel for the appellant and contended that the complainant with mala fide intention and ulterior motive has made a false case against the private respondents to disgrace them in the society; that the trial Court has rightly passed a well reasoned order after appreciating the material available on record in its true perspective. He therefore urged for dismissal of the appeal.

6. Learned DPG also supported the order, passed by the trial Court and prayed for dismissal of the appeal.

7. We have heard the learned counsel for the appellant, learned counsel for the private respondents, learned DPG and have perused the available record with their able assistance. Perusal of the prosecution case reveals that there are glaring contradictions in the statements of prosecution witnesses, medical evidence followed by false implication of the private respondents in the instant case. It is an admitted fact that the complainant has reported the matter with police with delay of more than 10 hours without any plausible explanation, under such circumstances the consultation and deliberation on the part of the complainant cannot be ruled out. The Hon’able Apex Court in the case of Akhtar Ali v. State 2008 SCMR 6 held that the delay of 10/11 hours in making FIR not explained leads to inference that the occurrence was un-witnessed.

8. The perusal of record further reveals that the FIR was got registered on 29.7.2013 at about 11:40 p.m. by the complainant but during cross-examination PW-2 Nouroz Khan stated that his statement was recorded at about 6:00 p.m. at home and PW-3 during cross-examination also narrated that her statement was recorded at 4:30 p.m. at home. This part of the prosecution manifests that the statements of PW-2 and PW-3 were recorded prior to lodging of FIR, meaning thereby that the investigation was conducted prior to lodging of FIR. Since the FIR is always treated to be a corner stone of the prosecution case to establish the guilt against the culprits involved in the crime and it has got a very significant role to play. Any doubt in lodging of FIR and commencement of investigation gives rise to a benefit in favor of accused and the FIR lodged after inquiry loses its evidentiary value. In this regard reliance is placed on case of Iftikhar Hussain v. State 2004 SCMR 1185.

9. The statement of complainant and eye-witnesses are also contradictory to medical evidence. According to the statements of the complainant and eye-witnesses, the complainant received injuries on her person and her finger got fractured, but according to PW-4 Medico-legal Officer, no fracture was caused. MLC does not reveal of any sign of injury on the body of the complainant. It is settled principle of law that conviction must be based on unimpeachable evidence with certainty of guilt and any doubt arising in the prosecution case must be credited in the account of the accused.

10. Even otherwise, when an accused person is acquitted from the charge by a Court of competent jurisdiction, double presumption of innocence is attached to his acquittal order, with which the appellate Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by the Hon’ble Supreme Court of Pakistan in Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 “that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading non-reading of evidence.... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”.

11. Without prejudice to above, the Judicial Magistrate has a power under Section 249-A, Cr.P.C. to acquit accused person at any stage of the case, if he founds that the charge is groundless or that there is no probability of the accused being convicted of any offence. Reliance in this regard is placed in the case of Ajmeel Khan v. Abdur Rahim (PLD 2009 SC 102).

In view of the above reasons, we are of the considered opinion that the impugned order being unexceptional, does not warrant any interference by this Court, in result whereof the appeal being devoid of any force, is dismissed.

(A.A.K.)          Appeal dismissed