2013 PLP 1344 (YLR)

SHAH JEHAN KHAN AKHUNDZADA, J.

Through this single judgment, we intend to dispose of two Criminal Appeals Nos.39 and 40 of 2008 filed by the complainant/appellant Momeen Khan against the judgment dated 1-4-2008 passed by the learned Sessions Judge/Judge Juvenile Court Tank, whereby Khanzada and Akbar Zaman, accused/respondents in Criminal Appeal No.39 of 2008 and Said Badshah, accused/respondent in Criminal Appeal No.40 of 2008, were acquitted of the charge levelled against them in case F.I.R. No.40 dated 24-1-2006 of Police Station Tank registered under sections 302/324/34 P.P.C.

2. According to the first information report lodged by the complainant/appellant Momin Khan, he along with his deceased brother, namely, Jamal-ud-Din and injured father Asal Din were busy in village Kirri Haider for constructing house, when in the meanwhile Juma Khan, Khanzada, Said Badshah and Akbar Zaman, duly armed with Kalashnikovs, came there and started firing at them with which his father Asal Din and brother Jamal-ud-Din got injured, out of them, the latter succumbed to the injuries at the spot, whereafter the accused decamped from the spot. Motive for the offence was stated to be blood feud enmity between the parties.

3. On arrest of the accused/ respondents and completion of investigation, challan was put against them in the trial Court where they were summoned and formally charge-sheeted, but they professed innocence, false implication and claimed trial.

4. The prosecution, in order to prove its case against the accused/respondents, produced and examined in all nine witnesses and closed its evidence. There-after, statement of the accused/respondents were recorded under section 342, Cr.P.C, wherein they denied the allegations levelled against them in toto, however, neither they produced any evidence in defence nor opted to examine themselves on oath in terms of section 340(2), Cr.P.C.

5. The learned trial Judge on evaluating the evidence brought on record and considering the arguments of the learned counsel for the parties addressed at the bar found the accused/respondents not guilty of the charge levelled against them and thus acquitted them through the judgment which is now under challenge by the complainant/appellant through the appeal in hand.

6. Learned counsel for the appellant vehemently argued that the impugned judgment of acquittal is patently illegal, based on non-appraisal of materials and evidence brought on record and thus has resulted into great miscarriage of justice. He argued that the accused/respondents have been directly charged by the complainant in a broad-daylight occurrence supported by the ocular testimony of the injured P.W. and strong motive, therefore, the learned trial Judge has failed to appreciate the evidence in its true perspective while drawing the impugned conclusion of acquittal. He submitted that the medical evidence fully corroborates the prosecution version and, therefore, the impugned judgment of acquittal being based on wrong footings is liable to be set aside.

7. On the other hand, the learned Deputy Advocate-General representing the State assisted by the learned counsel for the accused/respondents supported the impugned findings of the learned trial Judge on almost the same grounds which prevailed therein.

8. We have carefully gone through record of the case and anxiously considered the arguments of the learned counsel for the parties.

9. Perusal of the record and appraisal of evidence on file shows that through the available evidence, the prosecution has not been able to prove its case against the accused/respondent beyond any shadow of reasonable doubt to its hilt. Per evidence on file, the star and solitary witness of the prosecution is the complainant Momin Khan, who has admittedly long standing enmity with accused/respondents, therefore. relevant law on the subject requires that his testimony is to be scrutinized with great care and caution. In his initial report, he has charged three persons for effectively firing with which his brother got hit and died on the spot, while his father Asal Din was seriously injured, however, he while appearing in the witness box as P.W.7 in his examination-in-chief, has taken a different stand by stating that at about 0900 hours, accused Jumma Khan and Khanzada duly armed with Kalashnikovs came there and started firing at them with which his father Asal Din received serious injuries, whereas his brother Jamal-ud-Din died on the spot. Hence, in his court statement, he has not charged the rest of the accused for taking any part in the commission of the offence. Hence he has totally contradicted the contents of the F.I.R. in his court statement and has put forth quite a different version of the occurrence due to which his testimony seems shaky and the same casts serious doubt on his presence on the spot at the time of occurrence and his entire testimony seems un believable and, therefore, this witness was rightly disbelieved by the trial Court.

10. Moreover, according to the complainant, just after the occurrence, 50/60 people of village Kirri Haider attracted to the spot, who all came to the hospital in two Datsuns Pick-ups and accompanied them on their return from the hospital, but the Investigating Officer has not recorded the statement of anyone amongst the aforesaid 50/60 persons. This fact has also created doubt about the veracity of assertion of the complainant and his presence on the spot at the time of occurrence. Moreover, the complainant in his examination-in-chief stated that after receiving injuries, his father was taken to the Civil Hospital Tank, but the record is silent about the availability of his injury sheet, rather his autopsy was conducted at Tank on 26-1-2006 and this fact further weakens the prosecution case. Further more, the complainant has alleged that the accused had fired 50/60 rounds and the empties were present on the spot, but the Investigating Officer has not collected the same, and in this regard Ghulam Jaffer S.H.O. (P.W.8) has stated during cross-examination before the trial Court that he has not recovered any empty during spot inspection which also makes the prosecution case doubtful. As such, on account of shaky evidence of the complainant having glaring contradictions in it and narrating different versions regarding the occurrence before the trial Court, his testimony has no veracity was rightly brushed aside by the trial Court and, therefore, the learned trial Judge has come to a correct conclusion while passing the impugned judgment of acquittal which is based on correct legal footings and needs no interference by this court.

11. Moreover, once an accused is acquitted by a competent court of law after facing the agonies of protracted trial, then he earns the presumption of double innocence which cannot be disturbed slightly by the appellate court unless it is proved through the available evidence that the order of acquittal is patently illegal, perverse, fanciful or has resulted into great miscarriage of justice in view of the dictum handed down by the honourable apex court in the case-law reported as 2004 SCMR 247(sic) and SCMR-288/496(sic). Learned counsel for the appellant failed to point out any such infirmity in the impugned judgment of acquittal which is accordingly upheld.

12. For the reasons stated above, this appeal being bereft of any meritable consideration is accordingly dismissed. HBT/102/P Appeal dismissed.