2014 PLP 1136 (YLR)

SYED AFSAR SHAH, J.

This criminal appeal under section 417 (2-A), Cr.P.C. is directed against the judgment dated 7-10-2003, passed by learned Additional Sessions Judge, Karak, whereby respondent Zamrud Khan was acquitted of the charge.

2. It so happened that, on 16-2-1988 at about 1700 hours, Gul Habib alias Masta Gul, the complainant made a report to Muhammad Ishaq S.H.O, Police Station Sabir Abad, in the bazaar of Sabir Abad, to the effect that on the day of occurrence at about 1415 hours, he was on way to his home, after making the payment of house-hold articles to Nasir Khan, a shop-keeper in the Mandi of Arab Gul, when in the meanwhile Saifullah his son and Zaman Khan his nephew, already present in the said Mandi, were also proceeding to their houses on their motorbike and were ahead of him that when they reached at the place of occurrence at about 1630 hours, from the front side accused/ respondent Zamrud Khan and co-accused Wazir Badshah, duly armed, started firing at Saifullah, while co-accused Khiyal Badshah, duly armed, started firing at Zaman Khan, due to which they were hit and fell on the ground; that the accused after commission of the offence bolted away towards their houses; that when he (complainant) reached near the victims, Saifullah and Zaman Khan, they have succumbed to their injuries. The occurrence in addition to the complainant Gul Habib is stated to have been witnessed by P.Ws., Falak Niaz and Yousaf Khan, who were also present at the venue of Wardaat. Motive behind the offence as stated by the complainant, was previous blood-feud enmity between the parties.

3. Above is the narration of complainant Gul Habib, which he made to Muhammad Ishaq S.H.O of Police Station concerned, in the shape of murasila Exh.PA. After recording report of the complainant, it was read over and explained to him, who after admitting it to be correct signed the same in token of its correctness, whereafter the S.H.O. Muhammad Ishaq inspected the bodies of both the deceased, prepared its injury sheets along with inquest reports and referred the dead-bodies for post mortem examination to Civil Hospital Sabir Abad under the escort of constables Abdur Rauf No. 363 and Naseeb Khan No.365.

4. Investigation was started in the case and on its conclusion challan was submitted against the respondent/accused to the court of learned Additional Sessions Judge, Karak, who on conclusion of the trial acquitted him, vide judgment herein impugned.

5. Arguments heard and record perused.

6. It appears from the F.I.R. Exh.PA that in this case the occurrence took place on 16-2-1988 at about 1630 hours, whereas the report has been lodged on the same day at about 1700 hours. Gul Habib alias Masta Gul (P.W.7) is the complainant of the present accused and he has charged the respondent/accused Zamrud Khan alongwith his co-accused Wazir Badshah and Khiyal Badshah, already acquitted for the murder of deceased Saifullah and Zaman Khan.

7. Admittedly and as is evident from the record, both the co-accused Wazir Badshah and Khiyal Badshah were convicted and sentenced to imprisonment for life on two counts by the learned Sessions Judge, Karak, vide judgment dated 19-9-1989. The said judgment was assailed in this Court and on 10-6-1990, their appeal was allowed, resultantly, they were acquitted of the charges. The judgment of this court was challenged by the complainant in the Hon'ble Supreme Court through criminal petition but the same was dismissed on 12-4-1993. In the circumstances the Court will have to see the role of the respondent/ accused Zamrud Khan with those whose acquittal has been maintained up to the apex Court.

8. It appears from the F.I.R that as per version of the complainant .accused/ respondent Zamrud Khan and Wazir Badshah have made firing on the deceased Saifullah, whereas due to the firing of Khiyal Badshah deceased Zaman Khan was hit and died. From the above narration of the complainant Gul Habib, one could safely say that the role of respondent/ accused Zarruud Khan is very much at par with accused. Wazir Badshah, who was initially convicted by the trial Court but in appeal to this Court, he was acquitted and the criminal petition filed by the complainant against the said acquittal was dismissed by the august Supreme Court. This being the position, we are clear in mind that the judgment herein impugned is not open to any interference. If any authority is needed, reference can be made to the case "Rehmat alias Rehma Masih v. The State" (1995 SCMR 733).

9. It is evident from the record that respondent/accused Zamrud Khan remained absconder for a sufficient long time, but there are plethora of judgments of the august Supreme Court that the same per se is not proof of the guilt of an accused person and in which respect wisdom can also be drawn from the case "Rasool Muhammad v. Asal Muhammad and 3 others" (1995 SCMR 1373), Again reference can be made to case "Murad Khan and another v. The State" (2003 PCr.LJ 1295) [Peshawar], where it has been held that in the absence of any other corroborative evidence, evidences of abscondence, even if found convincing would not be sufficient by itself to warrant conviction of accused on a charge of murder. Abscondence in the present case, though is for a very long time, but the same could not be a substitute for real evidence. Reliance may be placed on the case, Mir Mat Khan v. The State (2002 PCr.LJ 1914) [Peshawar].

10. Again, as held by the apex Court in a case of "Mst. Jallan v. Muhammad Riaz and others" (PLD 2003 SC 644) that: Once an accused had earned acquittal in his favour, he enjoyed double presumption of innocence and the Court while examining the case of such accused must be very careful and cautious in interfering with the acquittal order and normally should not set aside the same merely for the reason that some other view was also possible

interference, however, could be made in exercise of powers conferred upon the Court under S.417, Cr.P.C., if it was proved that the Court whose judgment was under scrutiny had misread such evidence. In the present case, after having gone though the judgment herein impugned, we do not propose to draw a conclusion different from what the learned trial Court has drawn and hence, we do not feel hesitant to uphold the acquittal of the accused/respondent, resultantly, the same is maintained and accordingly dismiss the appeal. HBT/463/P Appeal dismissed.