2005 P Cr (PLP)

IJAZ‑UL‑HASSAN KHAN, J.‑‑‑ State through Advocate -General, N.‑W.F.P. Peshawar has filed instant Criminal Appeal No.64 of 1999 challenging the judgment, dated 22‑9‑1999 passed by learned Sessions Judge/Special Judge, Bannu whereby respondent Faqir Muhammad Ahmad Khan son of Saadullah Khan, resident of Mohallah Akbari, Bannu City, accused of having in furtherance of his common intention with his brother Faqir Muhammad Tahir (since dead) committed Qatal‑i‑Amd of Muhammad Ibrar by firing and attempted murder of Muhammad Nazir complainant and. Muhammad Tahir Khan, was extended benefit of doubt and acquitted of the charge.

2. The prosecution story in brief is that on the day of occurrence i.e. 17‑1‑1998 Muhammad Nazir Khan complainant along with his nephews Muhammad Ibrar Khan and Muhammad Tahir Khan were on the way to their house. When at about 17‑10 hours they reached near the venue of occurrence i.e. Government Girls High School No.1, Muhammad Tahir Faqir armed with kalashnikov and Faqir Muhammad Khan armed with .30 bore pistol, emerged from southern wall of the School and started firing at them, as a result of which Muhammad Ibrar got seriously injured whereas complainant and Muhammad Tahir escaped unhurt. The motive leading to the incident was stated to be previous enmity between the two families.

3. I.H.C. Rukhsar Ali Shah (P.W.3) recorded the report of the complainant in D.H.Q. Hospital Bannu, in the shape of Murasila and dispatched the same to the police station, where it was incorporated into F.I.R. by I.H.C. Ghulam Farid Khan (P.W.7). A.S.‑I. Damsaz Khan (P.W.9) on receipt of copy of F.I.R., proceeded to the spot and on reaching' there, prepared site‑plan (Exh.P.B.) at the instance of complainant and eye‑witness with all its foot notes and sketches. He took into possession blood through cotton vide memo. Exh.P.R. He also took into, possession shirt, Shalwar and coat blood‑stained produced by complainant. On 1‑12‑1998 he arrested accused Faqir Muhammad Tahir and initiated proceedings under section 204, Cr.P.C. against co‑accused Faqir Muhammad Tahir. After finalization of the investigation, Inspector Muhammad Nazif Shah (P.W.2) submitted challan against the accused in Court.

4. At trial, the prosecution in order to prove its case produced ten witnesses in all. The eye‑witness account of the incident has been furnished by complainant Muhammad Nazir and Tahir Wasim P.Ws. As the condition of injured Muhammad Ibrar was precarious, he was referred to Peshawar for treatment. Unfortunately, he could not survive and expired in the hospital. Dr. Mureed Abbas, who was then posted in Khyber Medical College, Peshawar (P.W.10) on 19‑1‑1998 at 9‑00 a.m. conducted post‑mortem examination on the dead body of deceased and found the following:‑‑ (1) Fire‑arm entry wound on right side of face 1 x .7 c.m. in size, 5 c.m. from angle of mouth, 5 c.m. from right eye. (2) Fire‑arm exit wound on left back of skull 3 x 2 c.m. in size, 7 c.m. above and behind the left ear, 8 c.m. from mid line. (3) Fire‑arm gutter wound on back of left fore‑arm 4 x 5 c.m. in size, 7 c.m. below elbow joint. 14 c.m. above wrist joint. Cranium and spinal cord. Skull membranes, brain injured. Muscles, Bones and joints. Skull fractured. Maxilla fractured. Remarks. In the opinion of doctor, the deceased died due to injury to brain, m6nages and corresponding blood vessels. Probable time between death and post‑mortem. Nine/ten hours.

5. On close of the prosecution evidence, accused was examined under section 342, Cr.P.C. He denied the prosecution allegations and professed innocence. He appeared as his own witness on oath as required under section 340(2), Cr.P.C. but did not produce any evidence in defence.

6. The learned trial Judge upon consideration of the material available before him, proceeded to hold that prosecution has not been able to prove its case against the accused‑respondent beyond any shadow of doubt and acquitted him by extending benefit of doubt.

7. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate- General for the State assisted by Mr. Abdul Latif Khan Baloch, Advocate for the complainant bitterly criticized the impugned judgment and attempted to argue that prosecution case was fully proved from the ocular account furnished by the complainant and P.W. Tahir Wasim corroborated by circumstantial and medical evidence and motive and as such, the, learned trial Judge had no justification to disbelieve the prosecution version and pass a finding of acquittal in favour of the respondent.

8. As against that Mr. Sanaullah Khan Gandapur, Advocate for the respondent supported the impugned judgment and maintained that there are material discrepancies and contradictions in the statements of prosecution witnesses; that medical evidence is in complete negation of the ocular account and that motive being double‑edged weapon, it can be used to falsely implicate the accused as well.

9. To convict a person on capital charge, evidence should be of high quality and good standards which is not available in this case. The l prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction. The judgment returned by the trial Court is a fair judgment based on proper', just and legal appreciation of the evidence on record. Appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. The evidence of the prosecution has been fairly and properly appreciated to secure the ends of justice. It needs no reiteration that standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis on record. The ordinary scope of appeal against acquittal of respondent is considerably narrow and limited, as held in Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCMR 635.

10. We have perused the judgment of the learned trial Judge in the light of material on record. It does not appeal to us that the judgment recorded by the trial Court whereby he acquitted the respondent of the charge of murder and attempted murder is not based on sound reasons and is artificial, ridiculous, based on misreading of evidence and thus leading to miscarriage of justice. These are the basic grounds on which the acquittal order can be set aside as the law stands settled in this regard. Mirza Noor Hussain v. Farooq and 3 others 1993 SCMR

305. Trial Court judgment having been supported by sound reasons, no legal error was found in it after scanning the evidence. Unless the judgment by the trial Court is perverse, completely illegal and on perusal of the evidence, no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. The High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction, the High Court is always slow unless it follows that gross injustice has been done in the administration of criminal justice as held in Yar Muhammad and 3 others v. The State 1992 SCMR 96.

12. For what has been stated above, we are of the firm view that prosecution has not been able to prove its case against the respondent beyond any reasonable doubt and the learned trial Court has rightly extended benefit of doubt to the respondent and acquitted him of the charges. There is no substance in the instant appeal which is hereby dismissed. The impugned judgment is maintained. H.B.T./309/P Appeal against acquittal dismissed.