1995 P Cr (PLP)

Through this petition, the petitioner has sought leave to appeal against the order, dated 19-6-1994 passed by a learned Additional Sessions Judge, Bahawalpur whereby he acquitted the respondents of the charge under section 302/307/324/325/326/452/364/148/149, P.P.C. The prosecution story briefly stated in the complaint is that on 28-6-1990 Ashiq's son Yaqoob had a physical fight with a nephew of the petitioner namely, Khalid. The same evening Ashiq's wife had a quarrel with Ishaq. After sometime, Ashiq sent the petitioner a message that they shall be in assemblage, at 9-00 a.m. the same evening to patch up the matter. It is alleged that the petitioner got to know that the said meeting was being convened on the pretext of patch up but as a matter of fact they had designed to give beating to the petitioner party. Having come to know of this, the petitioner party did not go there. This infuriated Ashiq. The same night he alongwith other accused-respondents, having armed themselves with deadly weapons like hatchets and Sotis, entered petitioner's house and gave beating to the inmates. In consequence of this assault, Hanif, Abbas and Khalid (nephew of the petitioner) received injuries. By accident the hatchet blow which Amanat accused wanted to inflict on Khalid (nephew of the petitioner) hit Younis of the respondent's party, He fell down and ultimately succumbed to the injuries on 8-7-1990. It was further averred in the complainant that the petitioner approached the S.H.O. for registration of a case but he, instead of registering his case, registered the case against the petitioner party for the murder of Younis vide F.I.R. No.139/90 under section 324/148/149, P.P.C.

2. During the trial, the prosecution examined six witnesses including the doctor. The accused, when examined under section 342, Cr.P.C., denied the prosecution story and attributed false implication. They took up the plea that in fact they were the victims of attack as a result of which Amanat, Sadiq Masih, Yousaf Masih, Allah Ditta and Younis Masih got injured. A criminal case was registered at Police Station Yazman and after trial Yaqoob Masih was convicted for the murder of Younis.

3. The learned trial Court acquitted the accused-respondents on the following grounds: (i) That Sadiq Masih (petitioner) did not appear as a witness during the trial. All the P.W s. are related and there is no independent witness to support the prosecution case; (ii) That the motive part of the prosecution story is worthy of no credit, as neither Khalid nor Ishaq appeared to support the same. In absence of these witnesses, it is not safe to conclude that the occurrence took place as alleged by the complainant; (iii) The prosecution case that none of the accused received injuries is belied by Dr. Muhammad Sadiq (D.W.1) who deposed that Allah Ditta, Yousaf Masih, Sadiq Masih, Anwar Masih and Manno Masih were injured; and (iv) That the occurrence admittedly took place in front of the house of Sadiq Masih accused.

4. Having heard the learned counsel for the petitioner and having gone through the file, I am of the view that the finding of acquittal passed by the learned trial Court does not call for interference for following reasons: (i) The occurrence admittedly took place in front of the house of Sadiq I Masih accused. Some of the accused named above were injured and Younis Masih died. A case was registered vide F.I.R. No.139/90 and the said case ended in conviction of the petitioner side vide judgment, dated 13-2-1993. It appears that the complaint was filed as a counter-blast. The story given in the complaint that a hatchet blow aimed at Khalid, hit Younis of the respondent party, is appellant to common sense as hatchet blows are not given on head by accident; (ii) All the prosecution witnesses are related. To sustain the conviction, some independent corroboration is imperative which is lacking in this case. (iii) The non-appearance of the complainant, Khalid Masih and Ishaq Masih also casts doubt on the prosecution case as Sadiq Masih petitioner besides being a complainant is an important eye-witness and A Khalid Masih and Ishaq are the material witnesses of motive; (iv) It is a cardinal principle of criminal jurisprudence that every accused is presumed to be innocent unless proved otherwise. An accused who undergoes trial and secures a finding of acquittal, earns a double presumption of innocence and this double presumption of innocence is very difficult to rebut. The onus entirely lies on the prosecution to rebut the same. This onus, I am afraid, the prosecution has miserably failed to discharge in the facts and circumstances of this case.

5. For what has been discussed above, there is no merit in this petition, which is dismissed in limine. A.A./S-667/L Petition dismissed.