2018 PLP 973 (MLD)
SARDAR — Appellant Versus The STATE and another — Respondents
| Citation | 2018 PLP 973 (MLD) |
| Forum / Court | Peshawar |
| Bench Members | N/A |
| Parties | SARDAR — Appellant Versus The STATE and another — Respondents |
| Primary Law | Penal Code (XLV of 1860) |
Q1: What are the key laws and sections cited in 2018 PLP 973 (MLD)?
This judgment primarily cites: Penal Code (XLV of 1860) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 PLP 973 (MLD)?
The case was heard and decided by the Peshawar bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 PLP 973 (MLD) (SARDAR — Appellant Versus The STATE and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Headnotes / Summary
Ss. 302 & 34
Qatl-i-amd, common intention
Prosecution case was that accused along with co-accused duly armed came outside the house of complainant, called his brother and started firing at his brother who died on the spot
Motive for the occurrence was stated to be infuriation of the accused when they were reprimanded by the deceased on their wrong doings
Ocular account was furnished by the witnesses including complainant
Both the said witnesses, though had deposed against the accused in line with the allegations contained in the FIR, but pronounced aspect of the case was that the accused was father of two absconding accused and was an old man of seventy years
Eye-witness had stated in his cross-examination that after firing the accused fled away towards mountains
Accused was a septuagenarian, therefore, his fleeing towards the mountain for hiding after the occurrence could not be believed in view of his infirmness
Record reflected that the job of firing at the deceased was not that of the three persons as had been alleged in the FIR and deposed by the prosecution witnesses
Circumstances suggested that the complainant side had leveled an exaggerated charge so as to enrope therein the accused for his being father of the two absconded accused
Presence of accused on the spot at the time of occurrence had not been proved as per site plan
No empty of shot gun had been recovered, which weapon the accused, as per prosecution witness, was holding at the time of occurrence
Presence of accused and complainant as shown in the site plan, indicated that it was not possible for the complainant to see the accused as in between them there was a hindrance of a room
In view of the facts, circumstances of the case and age factor of the accused, prosecution had not proved its case against the accused beyond any reasonable doubt
Appeal was allowed and accused was acquitted in circumstances by setting aside convictions and sentences recorded by the Trial Court.
Judgment & Decree
LAL JAN KHATTAK, J.
This criminal appeal is directed against the judgment dated 26.07.2014 of the learned Sessions Judge, Hangu delivered in case FIR No.77 dated 14.07.2013 under section 302/34, P.P.C. of Police Station Balyamina, Hangu, whereby the appellant has been convicted and sentenced to imprisonment for life with payment of Rs.2,00,000/- as compensation payable to the legal heirs of the deceased or in default whereof to further undergo six months' S.I. Benefit under section 382-B, Cr.P.C. has been extended to him.
2. Brief facts of the case are that on 14.07.2013, Muhammad Rehman (PW-2) reported to SHO Sher Bahadar Khan (PW-1) at Ghalmina Check Post to the effect that he and his brother Babar Khan were present in their house when accused Haq Nawaz, Sher Nawaz and Sardar came duly armed out of whom accused Haq Nawaz called his brother to come out. No sooner did they come out of house, all the accused started firing at his brother with which he was hit and died on the spot. Motive for the occurrence was stated to be infuriation of the accused when they were reprimanded by the deceased on their wrong doings.
3. On arrest of the accused i.e. the present appellant, complete challan was put in court, which indicted him for the commission of offence to which he pleaded not guilty and claimed trial. Prosecution in order to prove its case examined 8 witnesses in all whereafter statement of the accused was recorded, wherein, he professed his innocence. The learned trial court, after conclusion of the trial, found the appellant guilty of the charge and while recording his conviction sentenced him as mentioned above, hence the instant appeal.
4. Arguments heard and record gone through.
5. Perusal of the case record would show that complainant of the case appeared before the court as PW-2 while one Sajid testified as PW-3. Both the witnesses though have deposed against the accused in line with the allegations contained in the case FIR (Ex.PA/1) but pronounced aspect of the case is that the appellant is father of the two absconding accused and is an old man of 70 years. It is worth to note that PW-3 has stated in his cross-examination that after firing the accused fled away towards northern mountain. As the appellant is a septuagenarian i.e. 70 years old, therefore, his fleeing towards the mountain for hiding after the occurrence is a fact, which cannot be believed keeping in view his infirmness as by then he had orbited around the sun for 70 times. Record reflects that the job of firing at the deceased is not that of the three persons as has been alleged in the FIR and deposed by the prosecution's witnesses. It appears that the complainant side has leveled an exaggerated charge so as to enrope therein the appellant for his being father of the two absconding accused, which practice is very much common in the country.
6. In addition, presence of the appellant on the spot at the time of occurrence has not been proved as per site plan (Ex.PB) wherefrom no empty of shot gun has been recovered, which weapon the appellant, as per the prosecution's witness, was holding at the time of occurrence. Moreso, in the site plan, appellant has been shown at point No.5 while the complainant at point No.1. Keeping in view both the localitions mentioned above, it was not possible for the complainant to see the appellant as in between the points there is a hindrance of a room.
7. Thorough and careful examination of the case record and keeping in view the age factor of the appellant, it can safely be ruled that the prosecution has not proved its case against the appellant beyond any reasonable doubt. It has been held umpteenth times by the superior courts that in order to record conviction of an accused, the prosecution must prove its case through worth reliable and confidence inspiring evidence, which is not the case in hand. The learned trial court has not properly appreciated the case evidence in its true perspective and has fallen in legal error to record conviction of the appellant for which its judgment is not sustainable.
8. For what has been discussed, this appeal is allowed, conviction and sentence of the appellant are set aside. He is acquitted of the charge leveled against him and be set at liberty forthwith if not required to be detained in any other case.
9. Above are the reasons of our short order of even date, which reads as under:- "For the reasons to be recorded later, this appeal is allowed, conviction and sentence of the appellant recorded by the learned Sessions Judge, Hangu vide impugned judgment dated 26.07.2014 delivered in case FIR No.77 dated 14.07.2013 under section 302/34, P.P.C. of Police Station Balyamina, Hangu are set aside. He is acquitted of the charge leveled against him and be set free forthwith if not required to be detained in any other case". JK/401/P Appeal allowed.