2013 PLP 1483 (YLR)

MALIK MANZOOR HUSSAIN, J.

Present is an appeal against acquittal of accused Muhammad Adil son of Wazir Gul charged in case F.I.R. No. 321 dated 6-6-1999 under sections 302/324/34, P.P.C. registered at Police Station Hangu. The appellant has assailed the judgment dated 3-5-2010 passed by the learned Additional Sessions Judge-I, Hangu.

2. Concisely, the facts of the case as stated by complainant Gul Bat Khan are that on the day of occurrence he was present in the house along with other inmates. In the meanwhile, the children of the family informed him that the accused party is extracting and removing stones from their landed property. He along with his sons Umat Khan (deceased), Mian Khan (deceased), his grandson Muhammad Zahir (appellant) and Abdul Aziz came out of their house, whereupon the accused Waseel Khan, Wazir Gul, Hawaldar (acquitted accused) and Adil present respondent No.2 were standing there, duly armed with Kalashnikovs, they started indiscriminate firing. Resultantly, Umat Khan and Mian Khan were hit and died on the spot while Zahir was injured. Motive as mentioned in the F.I.R. is dispute over the property. Respondent No.2 along with other nominated accused were charged for the commission of offence.

3. The proceedings against the accused were initiated on 11-5-2009 and the prosecution in order to prove its case examined P.W.Muhammad Zahir, the present appellant, P.W.2 Abdul Aziz, P.W.3 Ghani Khan, SI, P.W.4 Siyal Shah, P.W.5 Nasrullah, P.W.6, Investigating Officer Javed Khan (R) DSP-P.W.7 Capt. Dr.Habeeb Khan/ Medical Officer and P.W.8 Gul Bat Khan (complainant). Statement of accused-respondent No.3 was recorded under section 324, Cr.P.C. wherein beside other facts it was categorically stated by respondent No.2 (acquitted accused) that he was of 11 years of age at the time of occurrence. This Court while hearing present appeal on 23-6-2010 observed that:-- "according to the statement of P.W.1 and P.W.2 the accused-respondent was at the age of 11 years at the time of occurrence. Thus in view of section 83 of P.P.C., what legal position would emerge, we would like to hear the Advocate-General before passing an order. Notice be issued to the learned Advocate-General." Today, we have heard the case with the valuable assistance of learned Advocate-General as well as the learned counsel for the appellant. The learned Advocate-General at the very outset contended that as per record the accused-respondent was though 11 years of age at the time of occurrence but the basic thing to see is as to whether the culprit incapable of forming of possession necessary mens rea for an offence or whether he has attained maturity of understanding to judge the nature and the consequences of his conduct. When this court inquired from the learned counsel for the appellant about the fact as to whether any material on the record is available on the file regarding establishment of understanding or maturity of the accused-respondent, he was unable to show us any record or any effort from the prosecution in this regard. Section 83 PPC is reproduced here. "

83. Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion." From the above section of law it is clear that the offence committed by a child below 12 years of age, cannot be termed as an offence until there is a proof or observation regarding sufficient maturity of understanding.

4. Since we are sitting in appellate jurisdiction, it is in the interest of justice to see the merits of the case also, as the same have been discussed by the learned trial Court. It is noticed that the complainant as well as the Medical Officers who were also examined during the trial of acquitted co-accused Hawaldar Khan, were not produced during the trial of present accused-respondent as the Medical Officer was not traceable and the complainant died during the trial. From the available record it is an established fact that on the similar charge co-accused Hawaldar Khan who was facing the trial was acquitted on the statements of the mother and wife of present appellant. The statements of Mst.Bibi Gula and the wife of present appellant Mst.Khail Begum were recorded in the trial Court wherein they declared the co-accused Hawaldar Khan as innocent. This fact is available in the statement of P.W.1 Muhammad Zahir, the present appellant. He further states that he is unable to say as to with whom shot or firing he was hit and also he categorically stated that he cannot say as to with whom firing he was injured. Being the injured witness he can be attributed the role of star witness but unfortunately he was unable to prove his case even with regard to his own injury. Similarly, from the statement of Investigating Officer it transpired that no empties were recovered from the place where the presence of accused-respondent is attributed which shows that no fire was effected from the spot where the presence of accused-respondent was shown. It is also noticed by trial Court that empties recovered from the spot were not sent to the FSL to establish the fact whether these empties were fired from one and the same weapon or from different weapon. The Investigating Officer also stated during the trial that the accused was at the age of 12 years at the time of occurrence and he has not collected the alleged stones or the material which were attributed to the accused party being extracted from the land of complainant. He has also not shown in the site plan the disputed property which was the motive for the offence. None of P.Ws. including the appellant specifically charged the present accused-respondent for attempting to murder or the injury of appellant.

5. An Appellate Court has full power to review the evidence and to reach the conclusion as to whether an order of acquittal on the basis of such evidence should be reversed. The paramount consideration of the Court is to ensure the prevention of miscarriage of justice. It is well-settled that view taken by the trial Court in case of acquittal of the accused, if not perverse and the reasons of acquittal are not ridiculous, ordinarily this court should not interfere. The Appellate Court can interfere where it is established that there is misreading of evidence, lack of consideration of material evidence, violation of legal provisions or reliance on matters extraneous to the record and the order of acquittal was passed without hearing the prosecution. Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be possible. In this regard reference can be made to PLD 2009 SC 53 and 1983 SCMR 1992.

6. After perusal and scanning of entire evidence, we have reached to a conclusion that the trial Court has rightly acquitted the accused-respondent No.2 and no case of any misreading or non-reading of evidence is made out. If a simple circumstance creates reasonable doubt, then that accused would be entitled to such benefit, not as a matter of grace and concession, but as a matter of right. As a result of above discussion, the impugned judgment does not require any interference. The appeal in hand being devoid of any merit, is dismissed. HBT/171/P Appeal dismissed.