2005 PLP 128 (YLR)

Muhammad Sharif Chaudhry, D.A.-G. for the State. Respondent No.2 in person present. Date of hearing: 26th October, 2004. The present appeal is directed against the judgment dated 14-7-2004 passed by Mr. Muhammad Ayub Khan, learned Judge, Anti-Terrorism Court, D.I.Khan whereby appellants Aftab son of Amir Khan and Khial Muhammad son of Gut Muhammad, both residents of village Maghzai, Tehsil and District Tank were convicted under section 392/34, P.P.C. and sentenced to undergo ten years R.I. each plus fine of Rs.12,000 each or in default of payment of fine, to additional seven years S.I. On further conviction under section 7(d) of the Anti-Terrorism Act, 1997, the appellants were also sentenced to ten years R.I. with fine of Rs.12,000 each or in. default whereof, to undergo further seven years S.I. Both the sentences were ordered to run concurrently.

2. The prosecution story in brief is, that on 16-10-2002 at 'Digarvela' complainant Gut Zamir son of Fazal Mir, co-villager Gohar Ayub son of Nawab Khan was coming to Tank in his Datsun bearing registration No. 1365-KTC. Amanulah was driving the Datsun. When they reached near Adda ' Pukk' Aftab son of Amir and Shahzad son of Sheikh Sheraz, duly armed with Kalashnikov appeared there and gave signal to the driver to stop the vehicle. Aftab aimed his Kalashnikov at the driver and got him alighted from the Datsun. In the meanwhile, Noor Rehman and Khial Muhammad and others duly armed with Kalashnikovs also emerged from the nearby jungle and facilitated the commission of offence. Aftab appellant sat on the driver seat and drove the vehicle towards Kirri Haider. A Chigha party chased the culprits but in vain. Having failed in his effort trace the vehicle, complainant reported matter to the police on the following and a case was registered against appellants and others vide F.I.R. No dated 17-10-2002 under section 382 P.P.C. read with section 7(h) of the Anti Terrorism Act, 1997.

3. After completion of usual investigation, challan against the appellants was submitted in the Court of leas Judge, Anti-Terrorism Court, D.I. Khan where appellants were formally charged They pleaded not guilty to the charge claimed trial. The prosecution in order to prove its case against the appellant examined ten witnesses in all. Appellant their statements under section 342, Cr.P.C denied the prosecution allegations professed innocence and stated to have falsely been charged. They, however neither examined themselves on Oath as required under section 340(2), Cr.P.C. nor produced any evidence in defence.

4. At the conclusion of the trial, trial Court found the prosecution case against the appellants to have been proved beyond reasonable doubt and thus, the appellants were convicted and sentenced as mentioned and detailed above.

5. Arguing the case on behalf of appellants, Mr. Saif-ur-Rehman Khan, Advocate maintained that there was unexplained inordinate delay in lodging of the report; that not a single person from amongst the members of the 'Chigha' party has been produced to support the prosecution case and that the star witnesses of the prosecution have clearly stated that the appellants were not previously known to them and their names were disclosed to them by the co-villagers. On the basis of these submissions, learned counsel maintained that prosecution has not been able to prove its case against the appellants and they have been illegally convicted. He also stated that keeping in view the innocence of the appellants, complainant Gul Zamir has entered into compromise with the appellants and is no more interested in their prosecution. He also placed on record affidavit duly sworn in by the complainant.

6. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State maintained that the prosecution has collected adequate evidence connecting the appellants with the commission of crime and that affidavit now produced cannot be taken into consideration at this stage because the offence is not compoundable.

7. There should be no dispute with the proposition when an accused person is charged with an offence then the entire onus has to be discharged by the prosecution and it is obligatory that the offence should be proved beyond any reasonable doubt. The onus never shifts to the defence.

8. Perusal of the record would reveal that in this case Gul Zamir complainant, owner and Amanullah, driver of the vehicle, when subjected to the test of cross examination, clearly stated that the accused were not previously known to them and their names were told to them by the co villagers present at the spot. They also stated that at the relevant time, faces of the accused persons were muffled. This admission of the star witnesses is sufficient to exonerate the appellants of the charge particularly in the circumstances when complainant has also sworn in an affidavit regarding innocence of the appellants. Though the offence is not compoundable but the compromise has always been considered a redeeming feature.

9. For reasons discussed above, I accept the appeal, set aside the impugned judgment of conviction and sentence and acquit the appellants of the charge leveled against them. The appellants are in jail. They shall be set free forthwith if not required in any other case. H.B.T./261/P Appeal allowed.