2010 PLP 1877 (MLD)

ATTAULLAH KHAN, J.

Alain Khan complainant has filed this appeal against the judgment dated 15-7-2010 passed by the learned Additional Sessions Judge Tank whereby the accused/respondents Nos. 2 and 3 were acquitted of the charge in case F.I.R. No. 111 dated 14-8-2005 of Police Station Mullazi under section 324/337-F(v)/ 337-A(i)/34, P.P.C.

2. Learned counsel for the appellant argued that the guilt of the accused/respondents was proved through the ocular evidence and the trial Court has not taken into consideration the evidence on file and thus the impugned older of acquittal is not based on correct legal footings. He argued that medical evidence also supports the prosecution version.

3. I have examined the available record of the case and considered the arguments of the learned counsel for the appellant.

4. In this case, the statements of P.Ws. 3, 4 and 5, namely, Alam Khan complainant, Fazal Rahman and Muhammad Ali are relevant as they are the alleged eye-witnesses. The statement of P.W. Dr. Muhammad Iqbal is also material to be considered in this case.

5. I would first discuss the argument that the medical evidence corroborates the ocular account.

6. In the F.I.R. the accused are charged for causing injuries to the complainant Alam Khan and attempting at the life of Fazal Rahman. The injury on the person of the complainant was attributed to Roohullah who fired at him, while the role of first of firing was also assigned to Sarwar Jan. The Medico-Legal Report of complainant Alam Khan is Exh.P.W.1/1 while that of Fazal Rahman is Exh.P.W.1/2. While appearing as P.W. Doctor Muhammad Iqbal mentioned swelling on the left arm of Fazal Rahman caused with blunt weapon. It means that it is not fire-arm injury. P.W.4 Fazal Rahman in his Court statement has stated that he was fired at by one of the accused, but the medical report negates this fact because according to the Doctor, the injury caused to Fazal Rahman was blunt in nature and not fire-arm injury.

7. Another glaring contradiction is that the place of occurrence is at a distance of three kilometers from the house of the complainant. According to him, he along with P.W.3. attracted to the spot on hearing hue and cry of their uncle. It is again unbelievable that, person at a distance of three kilometers would have heard hue and cry. This suggests that both the witnesses were not present on the spot at the time of2 occurrence.

8. P.W.4 Alam Khan has stated that Muhammad Ali P.W.5 attracted to the spot after the occurrence. This Muhammad Ali in his Court statement has stated that when he reached the spot, he saw the accused Roohullah duly armed and fired at his brother and uncle which hit them, but in cross-examination he has stated that he is not the eye-witness of the occurrence. So these are material contradictions which results in uprooting the prosecution case.

9. Another discrepancy in the prosecution case is that P.Ws. 4 and 5 have stated that the place of occurrence is a thoroughfare, while the site plan shows no thoroughfare. It again suggests the absence of both the above mentioned P.Ws.

10. In view of my discussion, the presence of eye-witnesses is not proved on the spot beyond any reasonable doubt. The medical evidence contradicts the ocular version. The material discrepancies mentioned above do not support the prosecution case.

11. Further, once an accused is acquitted by a competent Court of law by facing the agonies of protracted trial, then he earns the presumption of double innocence, which cannot be disturbed slightly, unless it is proved that the impugned order of acquittal is patently illegal, perverse, fanciful and has resulted grave miscarriage of justice.

12. Learned counsel for the appellant has miserably failed to point out any such thing in the impugned judgment of acquittal which is based on correct appraisal of evidence brought on record and thus it merits to be upheld.

13. Consequently, I find no substance in this appeal which is accordingly dismissed in limine. H.B.T./270/P Appeal dismissed.