2013 PLP 2699 (YLR)

SHAH JEHAN KHAN AKHUND-ZADA, J.

Abdul Jabbar, appellant/ complainant has filed the instant appeal under section 417(2A), Cr.P.C. against the order of acquittal of Mehr Shah and others accused-respondents Nos.1 to 5 recorded by the learned Judicial Magistrate-II, Peshawar vide his judgment dated 21-11-2012 in case F.I.R. No.632 dated 21-9-2009 under sections 452/506/337-F(2)/148/149, P.P.C. registered at Police Station, Pahari Pura District Peshawar.

2. Brief facts of the prosecution case are that on 21-9-2009 at 17-00 hours Abdul Jabar complainant/ appellant made a report to the police on the spot to the effect that he along with his sons Shakeel-ur-Rehman, Arshad-ur-Rehman and Fayaz-ur-Rehman and other family members including his relatives Zahir Shah and Javed were present in his house, when at 16.30 hours someone knocked the door and on opening it Mehr Shah along with his sons Murad, Kiramat, Asif son of Zaman Shah, Sami son of Kiramat accused-respondents and Zahir Shah, Shams, Qais and Mateen absconding accused all duly armed with Pistols entered the house and started beating the complainant party with the Butts of Pistols as a result of which the complainant and his three sons sustained injuries on their persons. Motive behind the occurrence was stated to be the purchase of a house by the complainant situated at Sheikhan Jalozai on which the accused party was annoyed. Besides the complainant party the occurrence is stated to have been witnessed by Zahir Shah and Javed. The report of the appellant/complainant was recorded in the shape of murasila which was sent to the Police Station where on the basis of it case F.I.R. No.632 was registered.

3. After completion of investigation the case was sent to the learned Judicial Magistrate-II, Peshawar for trial. The trial Court after framing of charge, recording statements of the prosecution witnesses and that of the accused, vide its judgment dated 21-11-2012 acquitted accused-respondents No.1 to 5 herein hence the present appeal.

4. The learned counsel for the appellant argued that the prosecution has proved its case against the accused-respondents beyond any reasonable shadow of doubt by producing convincing evidence but the learned trial Court has failed to appreciate the evidence on record in its true perspective and that judgment of acquittal is the result of surmises and conjectures, hence the impugned judgment is liable to be set aside.

5. I have heard the learned counsel for the appellant and perused the record.

6. It is a known and settled principle of law that prosecution primarily is duty bound to establish guilt against the accused without any shadow of reasonable doubt by producing trustworthy, convincing and reliable evidence having intrinsic worth to enable the court to draw conclusion that the prosecution has succeeded in establishing accusation against the accused and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then the accused become entitled for his acquittal. The requirement of criminal law is that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created benefit of it must go to the accused and that is sufficient to discredit the prosecution story. Person charged with criminal offence is to be saddled with the liability only if prosecution has established its case against him beyond all reasonable doubts otherwise not.

7. As manifest from the report of the complainant, the occurrence has taken place at 16:30 hours in his house while it has been reported at 17:00 hours and that too to the police who arrived at the spot. According to the complainant he feels pain in his body while his sons Shakil-ur-Rehman received injury on his head, Arshad-ur-Rehman on his left eye brow and right arm and finger of right hand while Fayazur Rehman sustained injury on the back of his head. There is nothing on record to show that why the complainant after the occurrence remained in his house along with his injured sons and on arrival of police he made the report and the police took the injured to the Hospital in their vehicle. The distance between the crime venue and the Police Station is about one kilometer or less than one Kilometer as per deposition of Syed Kamal Shah S.-I. P.W.7 but even then the complainant who has not sustained any injury on his person has not shifted his injured sons to Lady Reading Hospital or taken to the Police Station. Three sons of the complainant have alleged to have been sustained injuries, but only one son namely Shakil-ur-Rehman has been produced in the trial while the other two have not been produced in support of the charge against the accused-respondents. And non-production of such material witnesses having a stamp of injury on their person, cast serious doubt on the prosecution version, because their non-production suggests that had they been produced in the witness box, they would not have supported the prosecution case. Moreover, appraisal of the evidence on record leads me to hold that occurrence has not been taken place in the mode in manner as alleged by prosecution.

8. In the wake of above discussion, I find that learned trial Court has exhaustively and properly appreciated the prosecution evidence and was justified in acquitting the accused-respondents on the basis of scanty and deficient evidence. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right.

9. It is settled law that after earning the acquittal from the trial Court, double presumption of innocence has been acquired/earned by an accused. While court sitting in appeal against acquittal is always slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence on record.

10. For the aforesaid reasons, I am of the view that the prosecution has failed to prove its case against the accused-respondents beyond any shadow of reasonable doubt and the benefit of doubt so arising in the case has thus rightly been extended to the accused-respondents by the learned trial Court. The impugned judgment therefore, requires no interference and the appeal in hand, being devoid of substance, is hereby dismissed in limine. AG/315/P Appeal dismissed.