2018 PLP 290 (YLRN)

MALIK HAQ NAWAZ, J.

Since both these appeals have arisen out of one and the same matter, therefore, these are being disposed of through this single judgment.

2. The FIR of the instant case was lodged by one ASI Abdul Majeed (examined as PW-2), the gist of the same is as under:- "The brief facts giving rise to the instant case are that on 24.12.2011 at about 7:30 p.m. the accused namely

1. Qari Asif son of Saeed Khan,

2. Arif Mehmood son of Muhammad Yousaf,

3. Shah Raees son of Nusrat Wali,

4. Jahangir son of Abdullah,

5. Muzaffar son of Hashmat Ullah alias Tota,

6. Suhail Ahmad son of Ain Ullah,

7. Nasrullah,

8. Farman sons of Aman Ullah,

9. Arslan son of Sher Afghan resident of Eidi Muhallah Gilgit and other rioters in furtherance of their common object opened fire on a motorcycle rider namely Sabir Ali son of Sadiq Ali who was coming from bazaar area to Jutial side and the bullet hit the leg of above named person and after that the rioters dragged the complainant namely ASI Abdul Majeed Police Station Airport Gilgit inside the mob and beaten the complainant with fists and butts and also snatched the government/official 30 bore pistol bearing No. 32066296 along with magazine and 14 live cartridges."

3. Initially the FIR No. 354/2011 was registered under Sections 324/341/ 392/148/149/353/186, P.P.C. read with sections 6/7 ATA, 1997. The investigation of the case was conducted by a Joint Investigation Team and challan of the said case was submitted in the Court of Anti-Terrorism No. 1 Gilgit. The Judge Anti Terrorism Court No. 1 transferred the case under section 23 of ATA, 1997 to the Court of learned Sessions Judge Gilgit, who entrusted the same to the learned Additional Sessions Judge, Gilgit for disposal.

4. The learned Addl. Sessions Judge Gilgit framed charge of the accused on 05.06.2014 and PWs were summoned for evidence. The prosecution examined 17 PWs in order to prove the case and after adducing 17 PWs the learned District Public Prosecutor got record his closing statement on 15.12.2015. The case was fixed for the statements of accused under section 342, Cr.P.C, which were recorded on 18.12.2015. However, the respondents/accused did not opt to be examined under section 340(2), Cr.P.C. in disproof of charges. The case was posted to 21.12.2015 for arguments and on the same day after hearing the arguments, the respondents/accused were acquitted from the charges levelled against them.

5. It is pertinent to mention here that, while acquitting the accused/ respondents from the charges the learned trial Court imposed compensation/arsh worth Rs. 1577771/- of amputated leg in the light of section 337-R, P.P.C. and the notification bearing No. SRO 679(1)2011 dated 01.07.2011, as per the rates prevailing for the year 2011/2012.

6. The State/complainant both feeling aggrieved from the above judgments have filed Cr. Appeals bearing Nos. 6/2016 and 7/2016 against the said judgment.

7. The learned Dy. Advocate General and learned counsel for the complainant vehemently contended that the order/judgment of trial Court is against the facts and law and lacks the judicial wisdom. The learned Dy. Advocate General and the learned counsel for complainant forcefully argued that all the respondents/accused were nominated in the FIR and weapon of offence a .30 bore pistol was recovered from one of the accused/respondent namely Nasrullah and a separate FIR was registered against him under section 13A. O (XX) 1965. Per learned Dy. A.G, the mob consisting of 60/70 people snatched 30 bore pistol bearing No. 32066296 along with 14 live cartridges from the complainant after thrashing him and giving him sound beating. The learned Dy. Advocate General, further submitted that the approach of trial Court in appreciation of evidence has been absolutely defective and against the norms of justice. There is complete mis-reading/non-reading of evidence and the trial Court completely ignored the statement of injured Sabir Ali (examined as PW-5) and the statement of ASI Abdul Majeed (examined as PW-2) in the trial Court, which are natural and quite in line with the story set forth by the prosecution. The learned Dy. Advocate General prays that the respondents/ accused be convicted and sent to judicial lockup to meet the ends of justice.

8. On the other hand the learned counsel for the respondents/accused vehemently controverted the arguments advanced by the learned counsel for the State/complainant and submitted that complainant/injured of the instant occurrence was examined by the police after 1 year of the occurrence and he even did not bother to appear before the police for such a long time. His statement under section 161, Cr.P.C, was recorded on telephone and admissibility of the same was also doubtful. The learned defence counsel further submitted that even in Court statement the said PW failed to attribute any specific role to any of the respondents/accused, nor he uttered a single word about the identity of any of the accused/respondent. The learned counsel further argued that the statement of complainant (FIR lodger) examined in Court as PW-2 on 23.06.2014, has given a fatal blow to the prosecution and negated the whole story as he even did not support the version of FIR. The learned counsel lastly argued that the prosecution case is full of doubt and the respondents/ accused have been acquitted after proper appreciation of evidence and prayed that acquittal of the respondents be maintained.

9. We have heard the learned counsel for both the parties at length and perused the record with their able assistance.

10. The FIR of this incident was lodged by (PW-2) ASI Abdul Majeed, who though named the present respondents in the FIR but during course of cross-examination admitted that there were 60/70 persons present over there and he admitted that he could not tell the name of the person, who tutored the name of accused to him. This PW took a complete somersault of the story narrated in the FIR.

11. There remains statement of injured Sabir Ali (examined as PW-5) in the trial Court. The statement of injured is full of material contradiction/ improvements, to which he was duly confronted. The presence of an injured witness is established because of the stamp of injuries on his person but whatever he stated about the salient features of the case cannot be accepted as gospel truth. The statement of an injured witness, who intentionally and deliberately improves upon his earlier statements could not and should not be believed, when the same is otherwise contradicted from host of the circumstances of the case.

12. The trial Court, while acquitting the respondents/accused has awarded compensation to the injured Sabir Ali in the light of notification referred supra. Section 337-R, P.P.C. is reproduced as under:- 337-R. Arsh of organs in pairs. The arsh for causing itlaf of organs found in a human body in pairs shall be equivalent to the value of diyat and if itlaf is caused to one of such organs the amount of arsh shall be one-half of the diyat.

13. It was held by the apex Court of Gilgit-Baltistan in a judgment reported in 2012 GBLR 10 (The State v. Muhammad Azam and 2 others) wherein it was held:--

30. In consequence to the above discussion, we hold that subject to the exceptional cases referred above, State is under legal obligation to pay compensation or Diyat as the case may be under the principle of state responsibility. The failure of the official agencies of Government in tracing out the criminal cases is gross negligence of the state functionaries, and consequently, in the light of principle of state responsibility in all untraced cases, this is liability of the Government to make payment of Diyat as compensation to the legal heirs of deceased and to the victim in hurt cases, in accordance with law, The Government in all untraced murder and hurt cases either of sectarian nature or as a result of terrorism or, otherwise without any distinction, in the light of principle of State responsibility, must pay diyat/compensation to the aggrieved person/victim within six months. 19(sic.) In the light of concept of State Sovereignty and responsibility of State Government in Islam, the question regarding payment of Diyat/Compensation by the State, as its liability to the citizens in peculiar circumstances as mentioned herein above has been answered accordingly. The Criminal petition filed by the State against the judgment of Chief Court under challenge is dismissed.

14. There is a vast difference between an appeal against acquittal and an appeal against conviction. The initial presumption of innocence is multiplied, when an accused earns acquittal from a Court of competent jurisdiction and the appellate Courts are always slow in reversing the findings of acquittal, unless and until, there had been a gross misreading/non-reading of evidence, which caused miscarriage of justice. The benefit of doubt is decade tested principle of criminal justice and as said by the Holy Prophet Hazrat Muhammad (peace be upon him) that it is better to acquit 100 guilty instead of punishing one innocent. The wisdom is drawn from a judgment reported in 2003 PCr.LJ 1847, the relevant portion is reproduced as under:- (f) Penal Code (XLV of 1860)....

S. 302(a)..... Appreciation of evidence.... Benefit of doubt... Rule of prudence.... Rule of benefit of doubt which was described as golden rule, was essentially the rule of prudence which could not be ignored while dispensing the justice according to law

Such rule was based on maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted"

Said rule occupied a pivotal place in Islamic Law and was enforced vigorously in view of saying of Holy Prophet (p.b.u.h) that "mistake of Qazi in releasing a criminal was better than his mistake in punishing an innocent". (p.1862) G

15. In view of above detailed discussion, we are of the view that no infirmity exists in the impugned judgment of trial Court, therefore, we dismiss both the appeals bearing Cr. Appeal No. 6/ 2016 and Cr. Appeal No. 7/2016, however the compensation awarded to the injured/victim Sabir Ali son of Sadiq Ali, resident of Gangi, Tehsil Rondu, District Skardu is maintained. We direct the Government of Gilgit-Baltistan to make necessary arrangements for payment to the above named victim immediately in the light of the judgment of Supreme Appellate Court Gilgit-Baltistan referred supra.

16. In view of above discussion both Criminal Appeals bearing Nos.06/2016 and 07/2016 are disposed of accordingly. HBT/172/GB Appeal dismissed.