2009 PLP 362 (MLD)

MUHAMMAD ALAM KHAN, J.

This is an appeal against acquittal filed by the State under section 7(1) of the Suppression "f Terrorist Activities Act against the judgment, dated 8-2-2001 passed by the learned Judge, Special Court Tank, whereby Khalwat Khan, accused/respondent herein, was acquitted of the charge brought against him in case F.I.R. No.112, dated 4-8-1998 of police station Mullazai registered under section 302/34, P.P.C.

2. The prosecution story as narrated by the complainant Attaullah Khan in his first information report lodged on 4-8-1998 at 1930 hours is to the affect that on the fateful day at `Peshin Qaza Vela' he along with his brother Pasham Khan were returning home from the lands situated in village Pai when at about `Peshin Qaza Vela' Khalwat Khan armed with China made ten shot rifle, his son Noor Ali alias Noori, and Karam armed with Kalashnikovs were present there. Of whom Khalwat Khan opened firing at Pasham Khan with which he was hit and fell on the ground. Accused Noor Ali and Karam also fired whereafter the accused decamped from the spot. The injured was taken to the hospital but he died in the way. Motive for the offence was stated to be dispute over the lands.

3. After completion of investigation and arrest of the accused/respondent, complete challan was put against him in the Court where he was summoned but he did not plead guilty to the charge, professed innocence and claimed trial.

4. The prosecution in order to prove its case against the accused examined eight witnesses, whereafter statement of the accused/ respondent was recorded under section 342, Cr.P.C. However, neither he wished to produce defence evidence, nor opted to examine himself on oath under section 340(2), Cr.P.C. The learned trial Judge after evaluating the evidence brought on record and hearing pro and contra arguments of learned counsel for the parties, came to the conclusion that the prosecution had not been able to prove its case against the accused/respondent and thus by extending him the benefit of doubt acquitted him of the charge levelled against him vide judgment impugned herein.

5. We have carefully scanned the record in the light of the valuable arguments advanced at the bar.

6. Perusal of the record reveals that the prosecution case rests on the solitary statement of the complainant Attaullah Khan who had claimed himself to be present on the spot at the time of occurrence. He is the real brother of deceased Pasham Khan and thus falls in the category of `interested witness' and, as such, his testimony has to be scrutinized with great care and caution. Report of the occurrence was lodged on 4-8-1998 at `Peshin Qaza Vela' and this time in the month of August probably falls at 4-00 p.m. while the matter was reported at 7-30 p.m. the distance between the spot and the police station is thirteen kilometers which could be easily covered within thirty minutes. Thus, there is an inordinate delay in lodging the report which has not been plausibly explained by the complainant and in consequence the element of consultation or manipulation for false charge of the accused/respondent cannot be ruled out altogether from consideration.

7. The version of the complainant that Ghaffar, Ghulam Nabi and Shamsuddin had brought a cot from his house whereafter the deceased was taken to the police station for lodging the report further suggests that the F.I.R. was lodged after consultation and deliberation. According to the complainant his brother Naseebullah P.W. was also present on the spot before they rushed to the police station for making the report is negated by the said Naseebullah, who has stated that he came to know about the death of his brother in police station Tank.

8. The stance of the complainant that they had taken lunch before the occurrence is further not supported by the post-mortem report of the deceased Pasham Khan, according to which he was empty stomach during his autopsy. His veracity further becomes doubtful when numerous peoples were attracted to the spot soon after the occurrence and no independent witness therefrom was cited in the case, so much so that even the recovery memos (Exh.PC), (Exh.P.W.7/1) and (Exh. P. W.7/2) bear the signatures of one Fateh Khan IHC due to which the Investigation Officer had not complied with the mandatory provisions of section 103, Cr.P.C. Two empties of 7.62 bore were recovered from the spot and sealed it into a parcel, but no efforts were made to examine the same through an Arms Expert to opine that whether these were fired from one or difference firearms.

9. The ocular account of the complainant is further not supported from the statements of independent witnesses, namely, Saleemuddin, Saif-ur-Rahman, Abdul Ghaffar, Khuda Bakhsh, Malik Muhammad Saeed and Rafiullah, recorded by the Investigation Officer, who have categorically stated that the accused/respondent at the time of occurrence was present on duty in Kundi Flour Mills and not, on the scene of occurrence. In such state of affairs, the Investigation Officer had declared the accused/respondent innocent in the occurrence.

10. In view of the facts and circumstances discussed above, we are firm in our view that the prosecution had not been able to prove its case against the accused/respondent beyond any shadow of reasonable doubt and, therefore, the learned trial Judge has rightly appraised the evidence brought on record and acquitted the accused/respondent through the impugned judgment.

11. Besides, once an accused is acquitted of a charge by a competent Court of law after proper appraisal of evidence available on record, then he earns the presumption of double innocence and such order of acquittal cannot be disturbed by a Court of appeal unless very strong and exceptional grounds exists for interference therein which are lacking in the case in hand.

12. Consequently, we do not find any substance in this appeal against acquittal which is hereby dismissed. H.B.T./8/P Appeal dismissed.