2003 P Cr (PLP)

2. Facts, briefly stated, are that Muhammad Hanif (P.W.6) alongwith his deceased brother Wajid Khan were proceeding to their house but when reached the scene of crime they noticed the presence of Sahib Din, Jehanzeb the two respondents and their convicted co‑accused Muhammad Younas present in front of their house all armed with Topaks and when the complainant party went ahead few steps they were tired at by the accused named above. Deceased who was then injured and so was the complainant they were both rushed to Liaqat Memorial Hospital, Kohat when Wajid succumbed to the injuries while Muhammad Hanif survived and made the report in the Casualty Ward which was recorded by Nazim Khan the then Additional S.H.O. of Police Station Jangal Khel (P.W.10). At the trial of the present two respondents two eye‑witnesses have appeared, they are Muhammad Hanif complainant (P.W.6) and Mst. Zainab (P.W.7). Autopsy on the dead body of deceased Wajid was conducted by Dr. Gulbahar (P.W.9) who had found one fire‑arm entry wound on the left side of the forehead, another entry wound on the left side on the base of the neck with corresponding exit. In the opinion of the doctor time between injury and death was 10 minutes while time between post mortem was about three hours. A metalic foreign body was also recovered from the skull of the deceased. Same doctor examined Muhammad Hanif at 6 p.m. and found in all four fire‑arm entry wounds, two on the left elbow‑joint and two on the back of the right chest. He also found a greasy elongated fire‑arm wound skin deep on the back of left abdomen. The duration of the injury was within two hours.

3. Learned trial Judge after the evidence of the prosecution was recorded and after accused were examined under section 342, Cr.P.C. came to the conclusion that the prosecution has failed to prove the charge against the two respondents and has acquitted them, therefore, this appeal.

4. It is argued on behalf of the respondents that evidence of the prosecution is inconsistent as to the time of occurrence, that there is doubt about the time of making the report, that Muhammad Hanif P.W. who has though received fire‑arm injuries might be present on the spot but has not spoken the truth and he has exaggerated the number of accused. It is argued in support of the acquittal that Mst. Zainab a Pardah‑observing lady living in a different locality giving reasons for her presence for purchase of medicines with background of enmity with the Accused, she was a typical hostile chance witness and, therefore, her evidence should be excluded from consideration. It is argued that once a Court of competent jurisdiction has acquitted the respondents there will be double presumption of innocence in favour of the accused, the first that every accused is presumed to be innocent unless proved guilty and the second that the learned trial Judge has come to the conclusion that accused‑respondents are not culprits of the case, therefore, even if the Appellate Court intends to take different view of evidence, it shall not set at naught the right accrued to the two respondents.

5. Learned counsel appearing for the appellant and learned Deputy Advocate‑General, however argued that the case of the prosecution oil the statement of Muhammad Hanif complainant injured stands proved and even if for sake of arguments the statement of Mst. Zainab is excluded the testimony of Muhammad Hanif finds corroboration from the medical evidence, from the site plan and from abscondence of the two respondent` including the motive. It is argued that the crime has taken place at 5‑15 p.m. reported by injured complainant in the emergency room of LMH, Kohat at 6 p.m. and Dr. Gulbahar having examined the injured at 6 p.m., would decisively prove that the report was promptly made by injured person and there is no element of outside tutoring. It is argued that mere previous enmity should not be always a legal ground to discard the testimony of ii witness involved in enmity if his presence cannot be disputed.

6. We are conscious of the fact that rules for appraisal of evidence in appeal against conviction and in appeal against acquittal are totally different. We are also conscious that once acquittal recorded should not be set aside unless the, lower Court has recorded and has reached at: unreasonable conclusion.

7. True that it is the principles of Criminal Jurisprudence that let the hundred guilty be acquitted than to convict one innocent and so is the rule of Islamic Administration of Criminal Justice. Such principles is a rule of caution and is not rule of law. It does not mean that a person who is proved to be guilty shall not be convicted but it means that a person against whom there are doubts should not be convicted. The presumption of innocence before the conclusion of the trial is to afford all possible opportunities to the accused to defend his case with an assurance that the trial Judge is not biased against him and that until the termination of the trial he shall be considered innocent, however, such consideration would change when the evidence brought on record is convincing and it rings true. The moment the trial Judge forms an opinion on the basis of evidence that the prosecution has proved the charge, the first presumption of innocence disappears. Second presumption of innocence i.e. obtaining an order of acquittal from the trial Judge does not absolve the accused‑respondent because his acquittal is always open to challenge when a statutory right vas given to tile State to file appeal against acquittal under section

417. Cr.P.C. By induction of section 417(2‑A). Cr.P.C. such a right has been now given even to the complainant. The statutory right of filing an appeal against acquittal shall not be frustrated by holding that acquittal once recorded should never be disturbed because it always remains open if the appellate Judge comes to the conclusion that the trial has terminated into acquittal on the basis of misreading of evidence or non‑reading of evidence or conclusion arrived at by the trial Judge is erroneous it is against the facts and record, it can reverse order of acquittal.

8. Where the Criminal Jurisprudence is to protect the right of accused it also protects the right of prosecution. The phrase that let hundred guilty be acquitted and not a single innocent be convicted should not be interpreted that even those against whom case has been proved they shall on the basis of rule referred to above shall be let off by extending benefit of doubt but its object is that an innocent person should not be convicted. The stress is more on non‑conviction of an innocent person. Where in a case more than one accused are charged and where Court on the basis of evidence can sift the grain froth the chaff it can regally on the same evidence convict jointly tried one accused and can acquit the other. It is there When the cardinal principle of Criminal Jurisprudence that an innocent person should not be convicted, is pressed into service.

9. Reverting to the facts of this case and without being prejudiced from the judgment of conviction recorded by the trial Judge in case of co- accused Muhammad Younas whose Appeal bearing No.39 of 2000 has been dismissed today, on the appraisal of evidence in the case of the two respondents our conclusion is that there was no distinction between the case of Muhammad Younas and the two respondents.

10. All the three accused were similarly charged with similar role. The two respondents are charged by Muhammad Hanif who himself has sustained fire‑arm injuries including the vital part of the body and locale of the injuries would suggest that they could not be self‑inflicted. It could not be denied by learned counsel for the defence that Muhammad Hanif injured complainant was not present. His only submission was that complainant has exaggerated the number of accused.

11. In the preceding paras. we have mentioned the number of tire‑arm injuries and their locale in case of the deceased as well its the complainant. The total comes to minimum of seven fire shots for which three persons were charged. Therefore, one cannot say that number of injuries does not commensurate with the number of accused charged.

12. The statement of Mst. Zainab does not inspire confidence because she is a Pardah‑observing lady residing in a different Mohallah and on her own admission she happened to be present on the scene of crime as she wanted to purchase medicines, no medical prescription has been taken into possession during investigation. Even her presence at the time of firing is not admitted by injured Muhammad Hanif who stated that she came after the occurrence. We, therefore, out of abundant cautions would keep out of consideration her statement. Muhammad Hanif having sustained fire‑arm injuries was available in the hospital within 45 minutes where at 6 p.m. he was examined by the doctor and at the same time his report was recorded by Nazim Khan (P.W.10). Taking of two injured from the scene of crime by arranging vehicle and then their arrival in the hospital within 45 minutes is quite reasonable time and therefore, the F.I.R. was promptly lodged. Mere previous enmity should not be a ground to discard the testimony out-rightly. Single witness who has sustained fire‑arm injuries who has made the report within 45 minutes of the occurrence, whose testimony is corroborated by medical evidence as to number of shot` received and the direction of injuries from back and when such medical evidence is confirmed by site plan where accused are shown at points 5, 6 and 7 towards the South of points 1 and 2 the places of deceased and complainant who were proceeding towards the North, such statement of complainant which finds sufficient corroboration from motive and additional corroboration from abscondence of the two accused respondents is sufficient for recording the judgment of conviction instead of acquittal against the respondents. The charge of murder as well as attempted murder is proved against the two respondents. This appeal is, therefore, allowed. The judgment of acquittal dated 3‑6‑1996 is set aside. The respondents who are present in Court are taken into custody. They on found guilty of murder charge of deceased Wajid Khan are convicted under section 302/34, P.P.C. to life imprisonment each and shall pay Rs.50,000 each as compensation to the legal heirs of deceased. They are also convicted and sentenced under section 324/34, P.P.C. to seven years' R.I. each with a fine of Rs.20,000 each payable as Daman to the injured complainant Muhammad Hanif. The compensation amount in both the cases shall be recoverable as arrears of land revenue. The sentences awarded on two different counts shall run concurrently with benefit of section 382‑B, Cr.P.C. These are the reasons for our short order of even date. N.H.Q./702/P Order accordingly.