2016 PLP 203 (MLD)

RAJA SHAHID MEHMOOD ABBASI, J.

This criminal appeal has been directed against the judgment dated 30.3.2013 passed by the learned Judicial Magistrate Section 30 Attock, whereby he acquitted respondents No.1 to 3 in case FIR No.152 dated 22.6.2008 registered under sections 337-F (iii), 337-F (vi), 324, 148, 149, P.P.C. at Police Station Sadar Attock on account of extending benefit of doubt.

2. The prosecution story as disclosed by complainant in brief is that on 22.6.2008 he was on way to his house Dhoke Bolianwal, when he reached near the house of Haji Mehram Khan accused Ashiq son of Zaman made lalkara that today complainant will not go alive. Accused Ashiq and Gulzar fired upon the complainant with the intention to commit murder and at 5.15 p.m. accused Ashraf Khan armed with 8 MM rifle fired upon Asad Khan which hit on his back and accused Mazhar Khan armed with rifle fired upon Muqarrab Khan which hit on his right arm, hence instant FIR.

3. The prosecution in order to prove its case examined PW.1 Ahmad Khan, PW.2 Doctor Syed Irfan Ali Raza, PW.3 Rafaqat Khan, PW.4 Rehmat Khan, PW.5 Assad Khan, PW.6 Muqarrab Khan, PW.7 Khaliq Dad, PW.8 Ghulam Fareed, PW.9 Doctor Ijaz Hussain Khan Radiologist, PW.10 Tanveer Azam SI and PW.11 Najab Ali ASI. The respondents were examined under section 342 Cr.P.C. They denied the allegations and claimed to have been falsely charged. They neither produced defence evidence nor appeared as their own witness on oath.

4. In support of this appeal, it has been argued by the learned counsel for the appellant that sufficient incriminating evidence was available on the record so as to establish culpability of respondents No.1 to 3 and therefore, the learned trial court was not justified in acquitting the said respondents.

5. Conversely, learned counsel for the respondents has converted the arguments advanced by the learned counsel for the appellant and supported the impugned judgment. He submitted that learned trial court has properly appreciated each and every aspect of the case and prosecution has miserably failed to prove its case beyond any shadow of doubt and rightly sketchy, dented and dishonestly improved evidence was discarded by learned trial court while extending the relief of acquittal to the respondents-accused.

6. At the very outset, it would be worthwhile to mention here that out of three respondents arrayed in this appeal as respondents No.1 to 3, respondent No.1 namely Ashraf Khan has died during the pendency of this appeal thus to his extent the appeal stands abated.

7. After hearing the learned counsel for the appellant and going through the impugned judgment passed by the learned trial court I have observed that allegations against accused- respondents Ashiq Khan and Gulzar Ahmad were that they fired upon complainant with intention to commit murder. PW.4 (complainant) deposed that he did not receive even a scratch on his person. Complainant was not medically examined and MLC of the complaint was not prepared. No other role is attributed to the said accused. Incriminating evidence is also not available on the file against the said accused in order to connect them with the commission of offence. The reasons given by the learned trial for acquittal of accused are borne out from the record. The trial court has rightly concluded the alleged occurrence as doubtful and rightly extended the benefit of doubt to the accused- respondents and acquitted them from the charges, otherwise it is the principle of law that prosecution remained under burdened to bring the guilt to its hilt by adducing inspiring confidence, trustworthy and sure footed evidence. It has been held by the Supreme Court of Pakistan that the considerations of interference in an appeal against acquittal and in appeal against conviction is altogether different. Reliance is placed on Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549). Double innocence is attached to an order of acquittal as held in Haji Paio Khan v. Sher Biaz and others (2009 SCMR 803). Interference in the appeal against acquittal was made only when it appeared that there had misreading of the evidence which amounted to miscarriage of justice; otherwise scope of appeal against acquittal was considerably narrow and limited. In an appeal against acquittal the Hon'ble Supreme Court would not ,on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction. This difference of approach is mainly conditioned by the fact that the acquittal carried with it the two well accepted presumptions, one initial, that till found guilty, the accused is innocent and two that again after the trial a Court below confirmed the assumption of innocence. Reliance is placed on cases titled as Muhammad Usman and 2 others v. The State (1992 SCMR 489) and The State v. Muhammad Sharif and others (1995 SCMR 635). I am not at all persuaded that there is any infirmity or illegality so as to call for any interference with the impugned judgment. One substantial doubt is sufficient to acquit the accused. In the case in hand, I do not find any legitimate exception to interfere in the well reasoned impugned judgment passed by the trial court granting acquittal of the accused. Furthermore the impugned judgment does not suffer from any non-reading or misreading of the evidence produced by the complainant appellant on the record. For the foregoing reasons, I find no force in instant appeal which is accordingly dismissed. SL/R-42/L Appeal dismissed.