2015 PLP 2102 (YLR)

MUHAMMAD YOUNIS THAHEEM, J.

This appeal under Section 417(2-A), Cr.P.C. is directed against the judgment dated 22-7-2010 of the learned Additional Sessions Judge-I, Bannu, whereby Ali Pur, Gul Rawaz Khan, Muhammad Ismail, Jalil-ur-Rehman and Habibullah respondents-accused, have been acquitted of the charge leveled against them in case FIR No. 11 dated 21-2-2009 under section 302/364/ 148/149, P.P.C. registered in Police Station Township, District, Bannu.

2. Brief facts of the case as mentioned in the Murasila based FIR referred to above are that on 21-2-2009 at 18:10 hrs complainant Rehmat Ullah lodged the report on the spot to the effect that on that day of occurrence, he along with his deceased brother Asmat Ullah were cutting Barseen in their field, situated at Kotka Behram Shah, when at 15:30 hrs, Muhammad Ismail son of Jalil-ur-Rehman, Aman Ullah son of Ali Pur, Naimat Ullah son of Ghafoor Khan, Habib Ullah son of Ali Pur, Gul Rawaz alias Tarakayee son of Khan Sardar, Jalil-ur-Rehman son of Gul Rudas alias Jamedar duly armed with Kalashnikovs while Muhammad Ismail duly armed with shot gun came there and caught hold of his brother Asmat Ullah for the purpose of abduction and taking him away towards Qamari Kalah. On this he made hue and cry at which villagers attracted towards the spot and chased the accused. When the accused saw the CHIGHA party, they started firing at his brother Asmat Ullah with the intention to commit his Qatl-i-Amd as a result his brother Asmat Ullah was hit and died on the spot. The accused decamped from the spot. Motive for the offence was stated that scuffle had taken place between his brother Asmat Ullah and Muhammad Ismail a few days prior to the stated occurrence. He charged all the accused for the commission of the offence as mentioned in the FIR.

3. Initially accused Habib Ullah, Gul Rawaz Khan, Ali Pur and Jalil Ur Rehman were arrested soon after the commission of offence, however, accused Muhammad Ismail, Aman Ullah and Naimat Ullah absconded and did not surrender before the police during the investigation. As such, Challan was put in the Court for the trial of the arrested accused, whereas Challan under section 512, Cr.P.C. was submitted against absconding co-accused namely, Muhammad Ismail, Aman Ullah and Naimat Ullah. On submission of challan the accused were summoned whereas NBWA was issued against the absconding co-accused. On 8-6-2009 statement of Ghulam Rabbani ASI Police Station Township was recorded as SW-1 and proceedings against accused Muhammad Ismail, Aman Ullah and Naimat Ullah under section 512, Cr.P.C. were initiated and the prosecution was allowed to produce its evidence in their absentia. Requirements of section 265-C, Cr.P.C. was complied with in respect of accused produced in custody. The accused were formally charge-sheeted, wherein they did not confess their guilt and claimed trial. Prosecution in order to prove guilt against the accused/respondents produced and examined as many as ten witnesses. On close of prosecution evidence, statement of accused under section 342 Cr.P.C was recorded, wherein they denied the allegations leveled in the charge sheet and professed innocence. They neither wished to be examined on oath nor opted to produce defense evidence. Learned trial court after hearing learned counsel for the parties acquitted the accused/ respondent, vide impugned judgment herein.

4. Learned counsel for appellant argued with vehemence that through evidence prosecution has proved its case, one of the accused has confessed his role for commission of offence, strong motive and abscondance of other accused is other supporting evidence and if there are minor contradictions, those are very negligible and learned trial court had wrongly disbelieved the cogent and confidence inspiring evidence and had given much weight to minor discrepancies. The delay naturally occurred had sufficiently been explained. The subsequent trial of absconding accused and their acquittal and non-challenging of those judgments have no adverse effect upon the instant appeal and upon its adjudication.

5. Learned counsel for respondent argued that the prosecution has miserably failed to prove his case against the respondent, as two eye-witnesses have been abandoned, while one eye-witness produced, whose evidence did not support prosecution version. He went on to say that learned Judicial Magistrate, who recorded confessional statement of one of the accused has not been examined, hence, such confessional statement has no sanctity at all. He further added that the prosecution has further failed to prove mode and manner of occurrence, as no blood stained earth or even an empty recovered from the spot. He lastly argued that the learned trial Court has rightly extended benefit of doubt in favour of accused/ respondents. He concluded that after securing acquittal from the learned trial Court, the accused/ respondents earned double presumption of innocence, hence, this appeal is liable to be dismissed.

6. We have heard and considered the submissions of learned counsel for the appellant and gone through the judgment impugned herein.

7. The facts and evidence on record gone through and analyzed it from all angles. The complainant has levelled charges against many member of the same family and has introduced a CHIGHA party. No one amongst the CHIGHA party has been produced as witness for the prosecution and two witnesses who as per prosecution case were shown the members of CHIGHA party were not produced rather were abandoned which created doubt. So the legal effect of abandoning eye-witnesses goes against the prosecution. The other question for determination was that at the spot no blood stained earth and empties were recovered, which further widen the gap and lastly the only supporting evidence which could have brought on record according to the manner as law has provided, was confession made by the accused Ismail before Judicial Magistrate, which statement was apparently inculpatory in nature, but prosecution did not bother to produce the Judicial Magistrate for recording his statement in order to prove confessional statement. This caused a huge blow upon the prosecution case.

8. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and held the accused for acquittal. It is 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 judicial mind is sufficient for acquittal of the accused. Reliance is placed on "Tariq Pervaz v. The State" (1995 SCMR 1345). The same principle has been reiterated by Hon'ble Supreme Court in "Muhammad Akram's case" (2009 SCMR 230). Besides, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reference in this regard can be made to "Faryad Ali's case (2008 SCMR 1086) .

9. It is manifest from the record that case of other co-accused Amanullah, who was previously absconding was arrested and on conclusion of trial was acquitted by the learned trial court, which judgment of acquittal was neither challenged by the present appellant nor by the State and has attained finality. As co-accused Amanullah having same role, evidence recorded in his case was disbelieved and his judgment of acquittal has attained finality, hence, the present appellant also deserves alike treatment. Reliance is placed on case titled "Sabir Hussain v. State" (2014 SCMR 494) "Gul Habib v. Zamarud Khan and another" (2014 YLR 1136) "Muhammad Iqbal and others v. The State and others" (2015 YLR 476 Lahore).

10. So in wake of above doubtful and mysterious circumstances it is held that judgment of the learned trial court is based on correct and lawful appreciation of evidence and visualizes no illegality.

9. It is 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 the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondent/accused by extending him benefit of doubt, after proper appraisal of evidence for which no exception can be taken. In this respect the Hon'ble Supreme Court in case titled "Ghulam Sikandar and another v.. Mamraz Khan and others" (PLD 1985 SC 11) has firmly laid down principle of law, which was upheld by the Hon'ble Supreme Court in various pronouncements including "Dr. Israrul-Haq v. Muhammad Fayyaz and another" (2007 SCMR 1427) and "Abdul Mateen v. Sahib Khan and others" (PLD 2006 SC 538).

10. For the reasons discussed above, the instant appeal is dismissed. HBT/178/P Appeal dismissed.