P L D 1984 PESHAWAR 230 (PLP)

ABDUL KHALIQ KHAN, J.‑The State being aggrieved by judgment dated 18th of January. 1978 of the learned Sessions Judge, Abhottabad in Sessions Case No. 14/8 of 1977 by which Abdul Aziz, Shaukat and Abdul Hamid, respondents were acquitted of the charge under section 302/34, P. P. C: for murder of Abdur Rafiq, has filed this acquittal appeal.

2. The prosecution story as stated in the F.

1. R. Exh. P. A. lodged by Mst. Zuhra Jan widow of Abdul Momin resident of Dheri Sikanderpur, Police Station Haripur is to the effect that 3/4 months prior to the occurrence, the deceased was employed by the first informant on monthly pay of Rs. 100, On the day of occurrence, the deceased was plucking fruit from the plum tree when there appeared the three accused named, above, armed with guns. No sooner they reached near Abdur Rafiq, Abdul Aziz fired the first shot with which he (Abdur Rafiq) was hit and injured. Thereafter, Shaukat fired and then Abdul Azix fired for the second time. Abdur Rafiq was bit and expired instantaneously. Abdul Hamid accused prompted his companions to finish him so that he is not able to give statement against them. The motive of the offence was reported to be previous enmity between the families of the informant and the accused.

3. After recording the report, Amanullah Khan S. 1. (P. W. 8), then S. H. O. Police Station Haripur started for the scene of occurrence at a distance of nearly one mile. He reached the spot and found the dead body of Abdur Rafiq lying there. He prepared the injury sheet Exh. P. W. 1/2 and inquest report Exh. P. W. 1/3 and sent the dead body to the local mortuary for post‑mortem examination under the escort of Shamroz F. C. (P. W. 3). He inspected the spot and prepared the site plan Exh. P. B. at the pointation of the P. Ws. He took into possession basket containing plums, Exh. P. W. 8/1 vide Exh. P. W. 4/2. He also recovered blood‑stained earth from the scene of occurrence.

4. On the same day, a S. B. shot‑gun Exh. P. 25 cartridges Exh. P. 7, a bandolier Exh. P. 8 and 4 empties of .12 bore Exh. P. 9 alongwith a copy of licence Exh. P. 10 were recovered from the house of Abdul Hamid accused and taken into possession vide Memo. Exh. P. W. 5/1.

5. Shamroz F. C. (P. W. 3) referred to above, on his return from the mortuary, handed over to 1/O the clothes of the deceased consisting of shirt Exh. P. 1, 'Shalwar', Exh. P. 2, Jacket Exh. P. 3, all blood‑stained alongwith a parcel Exh. P. 4, containing pellets. He took them into his possession vide Memo. Exh. P. W. 3/1. The blood‑stained articles were sent for examination of the expect. The report of the Chemical Examiner is Exh. P. W. 8/3 and that of the Serologist Exh. P. W. 8/4.

6. Dr. Saeed, Medical Officer, Civil Hospital, Haripur conducted post‑mortem examination on the dead body of the deceased at 4‑45 p.m. on 9‑6‑1976 and found the following :‑ "External Examination.‑‑Firearm entrance wound 1' X 3,/4' going deep 1' behind the right anterior superior iliac spine fracturing the breast of the iliac bone. (2) Numerous small firearm wounds each 1/8' x 1/8' on the front of right abdomen in an area of 6' x 6'. (3) Numerous firearm wounds each I/4' x 11/4' on low Pack lower part of chest on back and upper part of hips in an area of 10' x 10'. (4) Numerous small firearm wounds 1/8'x 1/8' each on the outer surface of right upper arm in an area of 2 x 2 2 below the top of shoulder. A pellet weighing 5 grains lodged in muscle on the front of upper arm in the middle 3f.below the apex of the arpit taken out. (5) Firearm entrance wound on the front of lower part of right chest 1/4' x 1/4' going deep 2' to the right of mid‑line of the body and 6' below the nipple. (6) Lacerated wound caused by firearm 3' behind the lower part (louble) of the right ear and 2f above the top of right shoulder. A missile long 3 at its widest part and weighing 36 grains found lodged deep in the muscle of the right neck, 4f below the neck recovered. (7) A firearm entrance wound and going deep on left temple 1' in front of upper part of the left ear. (8) A firearm exit wound 2' x 2' and 4' behind the upper part of right ear and 6/ above the top of right shoulder. On internal examination he found the scalp, skull injured. Left temporal bone and right portion of occipital bone in the upper part fractured. Membrance and brain was found injured."

7. On completion of the investigation, challan was put in Court against the accused. They were formally charged which they denied and claimed trial.

8. The prosecution produced Mat. Zuhra Jan (P. W. 6) and Farman (P. W. 7) who gave ocular account of the occurrence. It also got examined the doctor, who had conducted the post‑mortem examination and Amanullah Khan (P. W. 8) who had not only recorded the F. I. R. but also carried out the investigation. Other witnesses were also examined but their evidence is more or less of formal nature.

9. The learned trial Court taking into consideration, the evidence adduced before it, acquitted the respondents named above by the impugned judgment and consequently the State has filed this acquittal appeal on the grounds mentioned in the memorandum of appeal.

10. Having admitted the appeal for hearing on 28‑6‑1979 on the ground that the evidence required re‑appraisal, bailable warrants earn in the sum of Rs. 10,00 with two sureties each, were issued against the respondents. Despite efforts, except for Abdul Hamid, the service of the co‑accused could not be effected. On 10‑7‑1983, the statement of Said Khan A. S. I. was recorded in this connection. According to him, Abdul Aziz and Shaukat, the co‑accused have disappeared from their village and that there was no possibility in the near future of their arrest. The Court therefore, passed an order that as the said acquitted accused were avoiding service, therefore, perpetual warrants of arrest be issued against them. However, the case against respondent No. 3 be heard separately. Consequently, in the present appeal under section 417, Cr. P. C. we are concerned with State Appeal against the acquitted namely, Abdul Hamid.

11. Before we discuss the merits of the case, brief reference to the general principles which are always taken into consideration while dealing with the acquittal appeals appear necessary. In that respect it will be useful to refer to the observations of a D. B. in the case State v. Amir Ali and others (P L D 1967 Kar. 440). "We must keep in mind the basic doctrine of the Privy Council reported in A I R 1934 P C 227(2) in this connection. This finding has been followed with approval by our Supreme Court thereafter. In deciding an appeal against acquittal what is to be borne in mind is :‑ (1) The views of the trial Judge as to the credibility of the witnesses. (2) The presumption of innocence in favour of an accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial. (3) Right of an accused person to the benefit of any doubt. (4) The slowness of appellate' Court in disturbing the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses." In setting aside an acquittal in a case, which rested wholly on direct evidence of witnesses as much importance is to be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person. Of course, a view of facts or the conclusion therein formed by the trial Court is not binding on Court of appeal. Equally, a conclusion by a Judge may be reversed where it has led to acquittal. But where he has read the evidence fairly and has formulated grounds of doubt, which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of benefit of the doubt in reversing his findings P L D 1964 S C 422.

13. Having dealt with the general principles of law applicable to appeal under section 417, Cr. P. C. we may now take up for consideration the evidence, to connect the accused with the commission of the crime.

14. We have already referred to the F.I.R. Exh. P. A. which was lodged within an hour after the occurrence wherein though Abdul Hamid, the accused before us, is stated to have prompted his companions to finish the deceased but as far as this document is concerned, there is nothing to show that any action was taken on his direction. It has been categorically admitted by Mst. Zuhra Jan in her cross‑examination that out of the accused Hamid did not fire. Similarly Farman the other eye‑witness has not attributed any active role to the accused before us. Let it be made clear that we will not express any opinion with regard to the part attributed to the other acquitted accused as it has to be reappraised when the appeal against them is to be heard after their arrest.

15. As far as the charge of Lalkara is concerned, it has been held in Abdul Aziz v. Bashir Ahmad (P L D 1966 S C 658), that :‑‑ "Mere raising `Lalkara' of the accused person in a case of murder was not sufficiently incriminating so as to constitute the basis of conviction for abatement." This position was no doubt elaborated in Chiragh Din's case (P L D 1967 S C 340), where it was observed by their Lordships that the precedent case is not to be read as laying down that Lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. That question must be decided by the trial Court on an appreciation of all the facts including the degree of interest in the crime possessed by the person who shouted the Lalkara, and the part he played in the background of the affair. There are circumstances in which mere presence at the scene of the crime is a sufficient overt act to support a conviction by the application of section 114, P. P. C. Shouting of a Lalkara may, in such circumstances, have effect as a further overt act of abetment. It is not possible, without a full appreciation of the evidence relating to the background of a crime and its actual commission, to say that proof of a person shouting a Lalkara, is not enough to constitute a reasonable ground for thinking that he has been guilty of abetment of such crime.

16. In the instant case as put forth at the earliest, no active role has been r attributed to the present acquitted accused. Even it was not alleged that his prompting resulted in any further action. The subsequent improvement in Court statements in this connection would be of no help to the prosecution. On the other hand, as the law is, the accused starts with a double presumption in his favour. Firstly, that there is a view that it is for toe prosecution to make out its case and until it does so beyond reasonable doubt, accused must be presumed to be innocent and secondly, the accused having succeeded in securing an acquittal from the Court, the appellate Court will not interfere until the appellant shows conclusively that the inference of guilt was irresistible. No such inference, however, can be drawn, on the basis of available evidence.

17. Stress was laid by the learned Assistant Advocate‑General on section 34, P. P. C. It was urged that in the facts and circumstances of the case, common intention of the present respondent with the co‑accused to finish the deceased is apparent, therefore, he was liable for murder as his co‑accused. We are not impressed by this argument for the reason that evidence to implicate the accused before us lacks consistency. We have noted above, that the accused was charged in the F. I. R. to have prompted his co‑accused to do away with the victim so that he does not remain alive to give evidence against them. However, there is nothing in the report to show that any action was taken on his `command'. The improvement made in Court statements will bring no change, but would make their testimony unreliable. We are not unconscious of the fact, that there is a tendency in this part of the country to include innocent alongwith the guilty when making charge, especially in cases arising out of blood‑fued and another general ground is the tendency of persons to ascribe the principal part in an offence to the person/persons who are actually guilty and minor part to their innocent relatives as observed in Khaista Khan v. Emperor (P L D 1935 Pesh. 35).

18. Keeping in view the evidence and the law on the point, we are of the view that the prosecution has failed to prove to our satisfaction that the acquitted accused before ‑us was guilty of the commission of the offence. It may also be necessary to state that the said accused has no direct enmity with the opposite party, no doubt, be is relation to the other accused Therefore, if he could be charged for a hand in the murder, there are equal chances that be has been roped in because of his relationship with the co‑accused. The prosecution has further failed to prove that the grounds on which the trial Court had based acquittal of the present accused were unreasonable, unsound or manifestly wrong.

19. In result of the above discussion, we do not find any force in the appeal by the State against Abdul Hamid, acquitted accused and therefore will order its dismissal. M. Z. M. Appeal dismissed.