PLJ 2013 Cr.C (Peshawar) 616 (DB)
[Bannu Bench Bannu]
[Bannu Bench Bannu]
Present: Nisar
Hussain Khan and Rooh-ul-Amin Khan, JJ.
MEHMOOD
KHAN--Appellant
versus
SAADULLAH &
3 others--Respondents
Crl. A. No. 10-B
of 2008, decided on 11.3.2013.
Administration
of Justice--
----Principle--Prosecution
is bound to prove its case beyond any shadow of doubt--If any reasonable doubt
arises in the prosecution case, the benefit of the same must be extended to the
accused not as a grace or concession, but as a matter of right. [P. 621] A
Criminal
Justice--
----Principle--It
is also well embedded principle of criminal justice that there is no need of so
many doubts in the prosecution case, rather any
reasonable doubt arising out of the prosecution evidence, pricking the
judicious mind is sufficient for acquittal of the accused. [P. 621] B
Double
presumption of innocence--
----Acquittal--It
is also a settled taw that after earning the acquittal from the trial Court,
double presumption of innocence is acquired by an accused--The Court sitting in
appeal against acquittal always remains slow in reversing the judgment of
acquittal, unless it is found to be arbitrary, fanciful and capricious on the
face of it or is the result of bare misreading or non-reading of any material
evidence. [P. 621] C
2003
SCMR 477, PLD 2009 SC 53 & PLD 2007 SC 637, ref.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
417--Appeal against acquittal--No such infirmity has been found in the impugned
judgment--Trial Court has rightly acquitted the respondents/accused by extending
them benefit of doubt, after proper appraisal of evidence for which no
exception can be taken--In the light of principles laid down by the apex Court
in the above cited judgments, we see no illegality committed by the trial
Court, while acquitting the respondents with cogent reasons, therefore, the
appeal has no merits and is dismissed being without any substance. [P. 622] D & E
Mr. Salimullah
Khan Ranazai, Advocate for Appellant.
Muhammad Rasheed
Khan Dirmakhel, Advocate for Respondents.
Mr. Ahmad Farooq
Khattak, AAG for State.
Date of hearing:
11.3.2013.
Judgment
Rooh-ul-Amin
Khan, J.--Through this appeal, appellant-complainant has challenged the
judgment of acquittal, recorded by learned Additional Sessions Judge-III,
Bannu, dated 25.9.2008, in case F.I.R No. 40, dated 17.03.2007, registered
under Section 302/34, PPC, at Police Station Kakki, District Bannu.
2. The resume of the facts forming the
background of instant appeal is that on 17.03.2007 at 00:55 hours, complainant
Mehmood Khan brought his father, Dil Nawaz Khan, in injured condition to the
District Headquarter Hospital, Bannu, and reported the matter that on the
fateful night, he alongwith his other family members were asleep, at their
house. On the knocking of door, he alongwith his father went out side the door,
where Fariq Khan requested his father for administering injection to an ailing
female family member at his house. Thus complainant and his father, accompanied
him and went to his hose, where on entering into their house, Fariq Khan
ordered his sons Saadullah and Hameedullah alias Guli, to kill. Complainant,
due to fear, fled away from the door side, while his father climbed over the
roof, through ladder. Both the accused fired at his father, with their
respective fire-arms. As a result of which, he was hit and fell at the roof.
Complainant informed his cousins and thereby he brought down his injured father
from residential room of the house of Fariq Khan and shifted him to the District Headquarter Hospital,
Bannu for treatment. Motive for the occurrence is that two months before,
altercation had taken place between his cousin Shafqatullah and accused. The
report was recorded in shape of murasila (Ex: PW 3/1) and sent to the Police
Station though constable Muhammad Akram No. 134, for registration of the above
mentioned F.I.R. The Injured Dil Nawaz could not survived
and succumbed to his injuries on the same date in the hospital and his
dead-body was sent to the mortuary for post-mortem examination. IO prepared
site-plan, secured blood stained earth from the place of deceased, an electric
bulb and a ladder, recovered and took into possession a Kalashnikov alongwith a
magazine containing 4 live cartridges and 2 empties of 7.62 bore from accused
Hameedullah alias Guli. (at which a separate F.I.R No.
41, dated 17.03.2007 under Section 13 A.O was registered). He also took into
possession blood stained garments of deceased. He sent blood-stained articles
and empties to FSL and arrested the accused.
3. On completion of investigation, the accused/respondents
were indicted, wherein they did not plead guilty and claimed trial. Prosecution
in order to prove its case against the accused produced as many as 11 witnesses
and closed its evidence. Accused in their statement under Section 342, Cr.P.C.
professed their innocence and termed the prosecution case, as concocted and
frivolous. Accused disclosed that, in fact, on the night of occurrence the
deceased had climbed over the roof top of our house for illicit purpose. The
deceased was of questionable character who was fired
at by somebody from outside of their house. He disclosed the facts to the
police but he being an illiterate person was asked to thumb impress
a report in the shape of case F.I.R # 39 implicating his son Hamidullah
(appellant) in the case. This real fact was concealed by the complainant,
however, S.H.O Muhammad Ismail and other PWs. in their cross-examination
recorded in case F.I.R No. 41, have admitted it correct. They did not wish to
produce defence evidence, nor opted to be examined on oath.
4. After hearing pro and contra arguments the
learned Additional Sessions Judge-III, Bannu, vide its judgment dated
25.09.2008, acquitted all the accused by extending benefit of doubt in their
favour. Hence, this appeal.
5. Learned counsel for appellant contends that
the prosecution has proved its case against the respondents through
trustworthy, reliable and cogent evidence; that both the parties are
co-villagers and there is no chance of mis-identification; that prosecution has
successfully established the fact that complainant and his deceased father had
been called by the accused to their house, on the pretext of administering
injection to one of the female family member and thereafter they brutally
killed him; that deceased being an old and aged infirm man hardly could move,
thus the allegations of trespassing into the house of accused are unpersuasive;
the defence taken by respondents in cross case F.I.R No. 39, is not believable;
that crime weapon, Kalashnikov recovered from accused Hamidullah and empties
recovered from the spot, have been sent to fire-arm expert for analysis, whose
report is in positive, fully support and corroborate the version of
prosecution. He maintained that injuries on the person of
deceased also corroborates the recovered crime weapon. His last attack
on the judgment was that the learned trial Court has erred in law while
acquitting the accused/respondents by extending benefit of doubt in their
favour.
6. Conversely, Learned counsel for
accused/respondents while defending the judgment of the trial Court vividly
argued that prosecution has miserably failed to prove its case against the
respondents, as prosecution case is pregnant with contradictions and doubts;
that the deceased had tried to enter the house of respondents by climbing over
the wall at the mid night and was fired at by some unknown person, by
considering him as thief. If the prosecution version that the complainant was
present with his father is considered to be correct, then he was also at the
mercy of respondents, but was not fired at, which fact leads to the conclusion
that in fact, he was not present at the time of alleged occurrence and has been
procured by the prosecution later on as witness of the occurrence; that the
length of the ladder has been shown as 6« feet, while the roof was at a height
of 8 feet; that from medical evidence, it seems job of one person, while the
complainant has charged three persons, which creates serious doubt in
prosecution case; that there are major contradictions and improvements in the
statements of PWs, hence, respondents have rightly been acquitted by the
learned trial Court.
7. Having heard the counsel for the parties,
record perused, which reveals that as per prosecution case Fariq Khan commanded
his sons Saadullah and Hamidullah to kill, the complainant and his father and
in obedience of the order both his sons made firing with their Kalashnikovs at
the deceased and complainant, as a result of which deceased got hit and
sustained injuries, who succumbed to the same in the hospital. According to
injury sheet and PM report, the deceased received single fire-arm entry wound
at the back side of right lumber region near the L-3 & L-4 and exit wound
on the back side on left scapula. Whereas I.O. During investigation did not
observe any bullet marks on the wall or in the line of firing and has allegedly
recovered two empties and a Kalashnikov from accused Hamidullah. Report of
fire-arm expert (Ex:PZ) received, which shows that
both empties have been fired by one and the same Kalashnikov. In the instant
case, respondent Fariq was charged for Lalkara and the two respondents,
Hamidullah and Saadullah have been charged for indiscriminate firing at the
deceased, while the recovery from the spot, fire-arm expert report, injury on the
person of deceased and medical evidence suggest that it is possibly the job of
one person.
8. According to prosecution version, complainant
and his father were called from their house for administering injection to
ailing female family member of respondents and on entering into the house of
respondents, Fariq Khan directed his sons respondents Hamidullah and Saadullah
to kill, them, at which both of them made indiscriminate firing. Despite the
fact that both, complainant and deceased were at the same position and were on
the mercy of respondents, but father was hit, while son was kept free who
escaped unhurt. The story alleged by the prosecution is not appealable to the
prudent mind. The statement of complainant is thus not confident inspiring and
leads us to the conclusion that he has been procured later on, to strengthen
the prosecution case.
9. Admittedly the occurrence has taken place at
mid night over the roof top of the house of respondent, thus presence of
deceased at such odd hours of night on roof top is not free of doubt.
Visibility of deceased on the roof top form Courtyard of the house; non
recovery of blood from ladder or roof; presence of son/complainant with father;
delay in F.I.R prick the prudent mind and leads one to the conclusion that the
occurrence has not taken place in the manner as narrated by the complainant.
Rather deceased had climbed over the roof top of respondents for the reason
best known to him, and after getting injury by fire-arm, complainant has been
procured for lodging the F.I.R and, therefore, a delay of 1 hour and 25 minutes
occurred in reporting the matter to local police.
10. The prosecution has badly failed to prove the
alleged recovery of Kalashnikov from possession of Hamidullah. As par version
of Muhammad Ismail Khan S.H.O (PW-6), the blood stained earth and bulb from he
spot, Kalashnikov and 2 empties of 7.62 bore were recovered from Hamidullah in
presence of one Dil Nawaz alias Seth, but prosecution failed to produce said
Dil Nawaz alias Seth before the Court, thus inference could easily be drawn
that had he appeared before the Court, he would have not supported the alleged
recoveries. In case of Iltaf Hussain Vs. the
State" (1996 SCMR 167), the Hon'ble Supreme Court in similar situation was
pleased to observe:
"We have serious doubt about
the prosecution version and as such, have been persuaded to interfere in the
case because there was no credible account of the incident available on record.
Muhammad Anwar was cited by the prosecution to establish its case but during
trial, after recording evidence of Police officials, in routine, the
prosecution stated that Muhammad Anwar had been won over and as such, he was
given up. We do not find any explanation whatsoever for dropping him from the
list of witnesses in the given situation. He was, undoubtedly, the most
important witness who, according to prosecution, attested the recovery. A mere
declaration of the prosecutor would not be enough to abandon such a witness.
He, off the cuff, said that the witness was won over. There is nothing to show
that the witness had been won over as he did not appear before the Court. If
the witness, after appearance, did not support the prosecution, he could be
declared hostile and subjected to cross-examination by the prosecutor to find
out the truth. This procedure was not adopted for the reasons best known to the
prosecution. The prosecution was under duty to prove its case beyond any shadow
of doubt on the basis of best possible evidence. The best evidence, in our
view, was not produced by withholding Muhammad Anwar. An adverse inference
could, therefore, be drawn that, in case, Muhammad Anwar was produced, he would
not have supported the prosecution story under illustration (g) to Article 129
of the Qanun-e-Shahadat Order, 1984."
The motive
alleged by the complainant that previously abusive altercation had taken place
between his cousin, namely Shafqatullah and accused
have also remained unproved. Shafqatullah has not appeared before the Court to
support the stance of the complainant.
11. It is cardinal principle of administration of
criminal justice that prosecution is bound to prove its case beyond any shadow
of doubt. If any reasonable doubt arises in the prosecution case, the benefit
of the same must be extended to the accused not as a grace or concession, but
as a matter of right. Likewise, it is also well embedded principle of criminal
justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the
prosecution evidence, pricking the judicious mind is sufficient for acquittal
of the accused.
12. It is also a settled law that after earning
the acquittal from the trial Court, double presumption of innocence is acquired
by an accused. The Court sitting in appeal against acquittal always
remains slow in reversing the judgment of acquittal, unless it is found to be
arbitrary, fanciful and capricious on the face of it or is the result of
bare misreading or non-reading of any material evidence. In case titled
"Muhammad Mansha Kousar Versus Muhammad Asghar and others", (2003
SCMR 447), the apex Court observe:
"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"
Similar view was
reiterated by the apex Court in case titled "Muhammad Tasaweer Vs Hafiz
Zulkarnain and 2 others" (PLD 2009 SC 53), in the following words:
"Needless
to emphasize that when an accused person is acquitted from the charge by a
Court of competent jurisdiction then, double presumption of innocence is
attached to its order, with which the superior Courts do not interfere unless
the impugned order is arbitrary, capricious, fanciful and against the
record."
The principle of criminal petition against conviction and against
acquittal are enunciated in case title "Abdul Majeed Vs Mulazim
Hussain and other" (PLD 2007 SC 637) as follows:
"It is also a settled law that
there are different parameters/ principles prescribed by this Court with regard
to decide the criminal petitions against conviction end criminal petitions
against acquittal. The impugned judgment with regard to acquittal should be
either perverse, arbitrary or without any sustainable reasons, as law laid down
by this Court in Ghulam Sakindar's Case PLD 1985 SC 11."
In the instant
case, no such infirmity has been found in the impugned judgment. The learned
trial Court has rightly acquitted the respondents/accused by extending them
benefit of doubt, after proper appraisal of evidence for which no exception can
be taken.
13. In the light of principles laid down by the
apex Court in the above cited judgments, we see no illegality committed by the
learned trial Court, while acquitting the respondents with cogent reasons,
therefore, the appeal has no merits and is dismissed being without any
substance.
(A.S.) Appeal
dismissed
