2015 PLP 2268 (YLR)

By means of instant appeal filed in terms of section 417(2-A) of Cr.P.C., Muhammad Azam-appellant has challenged the legality of order dated 1-12-2011 passed by the learned Additional Sessions Judge, Depalpur whereby respondents Nos.1 and 2 were acquitted in case FIR No.224-2010 dated 11-8-2010, registered under offences 452, 337-A(iii), 34, P.P.C., later on Section 302, P.P.C., was added at Police Station, Mandi Ahmadabad, District, Okara.

2. Tersely the facts described in FIR lodged on the complaint (Exh.PA) of complainant are that on 4-8-2010 at about 11:30 a.m. accused Zaki Shan armed with hammer, Umair Ahmad equipped with sota and Mst. Nadra alias Nazran came at the house of complainant and started using the abusive language against complainant and his family whereupon brother of complainant namely Muhammad Ahmad deceased had opened the door of his house in order to stop the accused persons but Mst. Nadra alias Nazran came inside the house and with the help of her co-accused dragged Muhammad Ahmad from the house and made a lalkara upon which, accused-Zaki Shan gave a hammer blow which landed on the right side of forehead of Muhammad Ahmad-deceased, who fell down in an injured condition whereas accused persons had escaped from the place of occurrence while extending severe threats. The deceased was succumbed to the injury in the hospital.

3. The motive described is that prior to alleged occurrence, hot words were exchanged among Zaki Shan, Muhammad Umair and deceased-Muhammad Ahmad on teasing the daughter of his neighbourers from accused side.

4. The learned counsel for the appellant contends that the impugned judgment to the extent of respondents Nos.1 and 2 is against the law and facts and not sustainable in the eyes of law; that prosecution has proved its case beyond any shadow of doubt, as medical evidence and ocular account are in line.

5. Arguments advanced by learned counsel for the appellant have been heard cautiously by us.

6. As per prosecution version, the occurrence had taken place on 4-8-2010 at about 11:30 a.m. when allegedly the accused persons namely Zaki Shan, Umair Ahmad (respondent No.1) and Mst. Nadra alias Nazran (respondent No.2) came to the house of complainant's brother namely Muhammad Ahmad, accused Zaki Shan was armed with hammer while Umair Ahmad (respondent No.1) was equipped with sota, all accused persons abused the complainant and his family members, Mst. Nadra alias Nazran (respondent No.2) pulled out Muhammad Ahmad from his house in the street with the help of her sons namely Zaki Shan and Umair Ahmad (respondent No.2) whereas Mst. Nadra alias Nazran (respondent No.2) made a lalkara that Muhammad Ahmad be given a lesson for exchanging hot words with them, upon which co-accused Zaki Shan gave hammer blow on the right side of forehead of Muhammad Ahmad and he fell down due to injury. The accused thereafter by extending threats decamped from the place of occurrence. The injured was shifted to Tehsil Headquarter Hospital, Depalpur in an injured condition, however, as per complaint (Exh.PA) presented by Muhammad Azam-complainant (PW-1) on 11-8-2010 with a delay of eight days for which no confidence inspiring explanation was rendered and this fact alone is fatal to the prosecution case and let irresistible conclusion that delay can be attributed to consultation for nominating the accused. It is noticed that no overt act is attributed to respondents Nos.1 and 2 except proverbial lalkara to respondent No.2 and the role attributed to respondent No.1 was that he caught hold of deceased in his Japha. Testimonies of Muhammad Azam-complainant (PW-1), Aman Ullah (PW-2) and Muhammad Ahmad (PW-3) regarding proverbial "lalkara" are not consistent about the exact words of lalkara. The role attributed to respondent No.2 of having raised a lalkara has not been proved by the prosecution. There is no evidence on record to show that she had come there with the pre-determined intention of causing death of Muhammad Ahmad-deceased or she has shared any such common intention.

7. As regard Umair Ahmad respondent No.1, it is noted that no specific role of caught hold of deceased in his "Japha" was attributed to respondent No.1 in the complaint (Exh.PA). The learned trial court had not recorded an order of acquittal on the ground that Umair Ahmad did not take part in the occurrence but proceeded on the basis that there is material improvement in the testimony of the prosecution witnesses. At this juncture, it is pertinent to point out that this Court is unable to see any common intention shared by respondent No.1 at the time of occurrence and no overt act was attributed to him and it was only his presence at the time of occurrence. The evidence led and the story alleged for the afore-referred reasons is not free from doubt.

8. It is settled principle of criminal law that prosecution remains under heavy burden to bring the guilt home of the accused beyond any shadow of doubt whereas in the instant case, prosecution has failed to prove the charge against the accused-respondents Nos.1 and 2 beyond any reasonable doubt, therefore, learned trial court has rightly recorded the acquittal in favour of the accused-respondents Nos.1 and 2 by giving them benefit of doubt. This Court has never desired to interfere in the order of acquittal unless it is arbitrary, capricious, fanciful and against the record. Reliance is placed upon "Haji Paio Khan v. Sher Biaz and others" (2009 SCMR 803).

9. In the above circumstances, we do not find any perversity of the reasons, illegality in the impugned judgment or misreading of evidence leading to miscarriage of justice to be interfered with in exercise of jurisdiction under section 417(2-A) of Cr. P.C.

10. Resultantly, the appeal is dismissed in limine having no force. HBT/M-397/L Appeal dismissed.