Sadaqat Ali Vs The State and others

Judsment Sheet

PrsruwaR Hrcn Counr. ABsortA,nAD BENCH

JUDICIAL DEPARTMENT

Criminal Aooeal No, 149-N2024

Sadaqat Ali...(Appellant)

@u The State and others...(Respondents) Present: Mr. Astaghfirullah Khan, Advocate, for the appellant.

Respondents are not represented being a motion case.

Date of hearing :05.03.2025

JUDGMENT

SADIO ALI, l.- The appellant has filed the instant appeal under section 417 (2-A) of the Criminal Procedure Code 1898, against the order/judgment of acquittal dated 23.09.2024 passed by the learned Additional Sessions Judge-V/GBV Court, Abbottabad, whereby, he has acquitted the d accused/respondent No. I to 4 from the charges leveled against them.

2 Respondents have faced trial lna

criminal case registered against them and other co- accused vide FIR No. 418 dated 18.07.2022 under

sections 304/34 PPC at Police Station Nawanshehr, District Abbottabad. As per prosecution story, Waqas Safdar (deceased then injured) reported the matter to the local police that on the day of occurrence, he was at his residence when he heard cries coming from outside. Upon stepping out, he saw accused Zubair, Mohsin, Mudassar, Ztrlnora:l:, and Riasat were scuffling with his brother namely Sadaqat. He intervened to apartlisolate his brother from the accused but accused Mohsin struck him with wooden stick (baste), resultantly, he received injuries. Simultaneously, accused Mudassar and Zulrnorain restrained him while accused Zubair gave stab blows at right side of his abdomen due to which he fell down at the surface, nonetheless, accused Riasat gave kicks and fists blows to him. Hearing the $/ commotion, Nasir, Zulfiqar, Qasim Khan, resident of locality rushed to the scene and witnessed the occurrence. The motive of occurrence was stated to be the dispute over land. Later on, Waqas Safdar succumbed to his injuries and passed away.

3 Upon arrest of accused and after

completion of investigation, complete challan was

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submitted against accused/respondents No. I to 4, However, the accused Mudassar remained a fugitive from the law and was therefore proceeded against under Section 512 Cr.P.C. Charge was framed against accused/respondents No. I to 4, to which they pleaded "not guilty" and claimed trial. The prosecution produced their evidence against the accused, who accordingly examined as many as sixteen (17) witnesses and thereafter statement of the present accused/respondents were recorded under section 342 Cr.P.C. On conclusion of proceedings in the trial the present accused/respondents were acquitted ofthe charges levelled against the, whereas, accused Mudassar was declared as proclaimed offender by the leamed Additional Sessions Judge- d V/GBV Court, Abbottabad vide the impugned order/ judgment dated23.09.2024. Feeling aggrieved of the aforesaid order/judgment of acquittal, the appellant has filed the instant appeal before this Court.

4 Arguments of leamed counsel appearing on behalf of appellant were heard in detail and the record perused with his able assistance.

! A perusal of the record reveals that, in the instant case, the prosecution primarily relied on the statements of PW-09 Muhammad Mobeen and PW-10 Sadaqat Ali, who are eyewitnesses to the occurrence, along with other circumstantial and corroborative evidence. When PW-10 Sadaqat Ali appeared in the witness box, he stated that on the day of the incident, he was removing clay from his under-construction house and transporting it to the field using a pushcart. During this process, a portion of the clay fell into the field of the accused Riasat.

This led to a quarrel, as Riasat, along with Zubait, Mohsin, Mudassar, and Zulnorain, arrived at the scene and started an altercation with him. Upon his cries for help, his brother, Waqas Safdar (deceased), d/ reached the spot. However, it is noteworthy that the FIR does not mention that the occurence took place due to the falling of clay. Furthermore, PW-10 contradicted his own testimony during cross- examination by initially claiming that the under- construction house belonged to him, whereas later, he stated that the house actually belonged to hrs brother, PW-09 Muhammad Mobeen. Thrs

inconsistency casts doubt on the credibility of his statement. Additionally, the investigating officer failed to mention the said house in the site plan (Ex.

PW-l1/7), further weakening the prosecution's case.

As per the prosecution's own version, the altercation initially began with PW-10 Sadaqat Ali. PW-10 himself admitted that he was being beaten for about 5 to 7 minutes. However, despite this prolonged altercation, he did not sustain any injuries, nor was he attacked with a churri (knife), even though the accused Zubair was allegedly armed with churri (knife) which would show that the occurrence has not occurred in the mode and manner as alleged in the report. Notably, PW-10 was not even medically examined, raising fuither doubts about the veracity d/ of prosecution claim.

6 Another aspect ofthe instant case is that Nasir and Zulfiqar, who were specifically named by the complainant (deceased) as witnesses, were not produced before the court. These individuals were among the best available witnesses for the prosecution, yet their absence raises serious concems regarding the completeness and reliability of the

prosecution's case. The failure to present these key witnesses deprives the court of crucial firsthand testimony, which could have either substantiated or contradicted the prosecution's narrative. This omission creates a significant gap in the chain of evidence and raises doubts about the credibility of the allegations. Moreover, this becomes even more questionable ln light of the fact that PW-09 Muhammad Mobeen and PW-10 Sadaqat Ali, rn their cross-examinations, admiued that Nasir and Zdfiqar are their close relatives. Despite this close relationship, these witnesses were neither produced before the court nor examined in support of the prosecution's case.

7 The record also shows that both PW-09 d/ Muhammad Mobeen and PW-10 Sadaqat Ali have provided inconsistent statements regarding how the deceased, who was initially injured, was transported to the hospital. PW-09 stated that the deceased/injured was shifted to the hospital in a white-colored Suzuki Carry, whereas PW-10 claimed that the deceased/injured was taken to the hospital in a Suzuki pickup and in the midway was

shifted to Suzuki Carry from the place ofoccurrence.

This contradiction in their testimonies raises serious concems about the reliability and credibility of ther statements. The mode of transportation used to shift an injured person is a crucial detail that witaesses are unlikely to forget, especially in such a grave situation. These inconsistencies indicate a lack of coherence in the prosecution's version of events, suggesting either faulty memory, exaggeration, or possible fabrication of facts. Such discrepancies weaken the overall prosecution case, as they cast doubt on the accuracy and ruthfulness of the witnesses' testimonies.

8 Apart from the above, PW-10 also

d stated that he took the deceased again, who was initially injured, to the hospital on the moming of 17.07.2022. He further mentioned that he was accompanied by his brother Basharat, during thrs process. However, despite Basharat being a crucial witness to the transportation of the injured to the hospital, the prosecution failed to produce him as a witness. The absence of Basharat's testimony raises

significant concerns regarding the completeness and reliability of the prosecution's case.

9 It is an undeniable fact lhat the deceased, after receiving medical treatment, retumed home and even appeared for the post of Class-IV test on 16.07.2022 from 09:00 AM to 12:00 PM. This indicates that he was stable and did not suffer from a serious injury. Notably, the doctors had referred him to orthopedic and general surgery, but he did not comply with the referral and instead returned home, spent the night there. A person with a life-threatening injury would not have been allowed by medical officers to leave the hospital after treatment, nor would they have been physically capable of appearing for an exam tn such a condition which suggests that the injury was not o/ fatal. Furthermore, no medical documents regarding his initial treatment are available in the record, nor has any medical officer provided any statement confirming the severity of the injury. Moreover, the circumstances surrounding the later surgery remain a mystery' The medical officer, while recording his statement in court as PW-5, admitted during cross-examination that he could not confirm when the laparotomy ofthe deceased was performed. However, he later contradicted himself

by stating that the laparotomy had already been conducted by Surgical "C" IJnit and that he had obtained the relevant notes at the time of the postmortem examination. This inconsistency indicates that PW-5, the medical officer, only conducted the postmortem and based his findings on the notes provided by the Surgical "C" Unit rather than firsthand knowledge of the procedure. Furthermore, the investigating officer failed to record the statement of the medical officer who actually performed the laparotomy.

Additionally, that medical offtcer was not produced before the court to verifu the notes relied upon by PW-

5.This significant omission raises doubts about the authenticity and accuracy of the medical findings, as the direct testimony of the surgeon who performed the d/ procedure would have been crucial in establishing the actual medical condition of the deceased. The absence of such vital evidence further weakens the prosecution's case.

10.Another damaging aspect of the

prosecution's case is that the weapon of offense, i.e', the knife (chuni), was allegedly recovered based on the accused Zubair's pointation from the field. However, the prosecution witnesses, who were expected to support

this claim, neither mentioned nor testified about this recovery during their statements. This omissron significantly weakens the prosecution's case, as the absence of corroborating witness testimony casts serious doubts on the authenticity and credibility ofthe alleged recovery.

11.It is settled since long that for giving benefit to an accused, it is not essential that there should be many grounds for the same, even a single doubt is sufficient to extend its benefit to an accused person. In the case of uBashir Muhammd Khan u/s The Slate" reported as 2WL2!!!, the Hon'ble Apex Court has held that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused c makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable;

trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt.

Similarly, in the case of d Mehmood alias Khaloo v/s The State" reported as 2,922_-W, the Hon'ble Apex Court has reiterated the same

rational by observing that in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. In the case of "Muhammad Mansha v/s The State" reported as 2@ SCMR 772, the Hon'ble Apex Court has also held that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of 0[ the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In the case of "Tario Pervaiz. v/s The State" reported as /$ SCMR 1345, the Hon'ble Apex Court has held that the concept of benefit of doubt to an accused person rs deep-rooted in our country. For giving him benefit of

doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. Reliance in this behalf can be made up on the cases of Tariq Pervez v, The State (1995 SCMR 1345 ). Ghulam Oadir and 2 others v. The State (2008 SCMR 1221). Muhammad Akram v. The State 0009 SCMR 230 and Muhammad Zaman v. The State 014 scMR 749.

12.It is settled law that before the trial an accused is presumed to be innocent unless proven guilty and once an accused succeeds to eam an acquittal order d then double presumption is attached to his innocence and as such while hearing an appeal against acquittal, the appellate Court cannot disturb, or reverse or set- aside such an acquittal order unless the same is found to be perverse, shocking, artificial and over and above suffering from jurisdictional defect or non-reading of evidence or misreading of evidence. The above yardstick if applied to the present case, we found that the impugned acquittal order is neither peryerse nor artificial nor suffering from misreading or non-reading

of evidence. It is also settled law that while hearing of appeal, if on re-appraisal of evidence, a contrary view is spelling-out even this is not sufficient for interference in the acquittal order unless it is established that none of the ground of acquittal finds support from the record and evidence available on file. In the case of "lehansir v/s Aminullah & others" reported x 2010 SCMR 491, the Hon'ble Apex Court has held that there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-seuled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion c reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere ln exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage ofjustice and for no other purpose. The view taken by this Court in Ghulam Sikundar v. Khan PLD 1985 SC 11

is well-known that in an appeal against acquittal this

Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings ofCourt acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave IS granted only for the re- appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference ofapproach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent;

and two that again after the trial a Court below confirmed the assumption of ifirocence. This will not carry the second presumption and will also thus lose the c first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally. In the case of "Mst. Anwar Bepum vs. Akhtar Hussain alias Kaka and 2 others" reported as 2017 1710 , the Hon'ble Apex Court has held that in criminal cases every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. Very strong and cogent reasons are required to dislodge such

presumption. The reasons given by the leamed High Court, in paras 9 and 11 of the impugned judgment, have not been found by us to be arbitrary, fanciful or capricious warranting interference by this Court.

Similarly, in the case of "The state v/s Bashar" reported as PLD 1997 S.C 408, the Hon'ble Apex Court has held that an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeals, the superior Courts generally do not interfere with unless they find that miscarriage ofjustice has taken place. The factum that there can be a contrary view on re-appraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to justify interference with the acquittal judgment.

13.For the afore-stated reasons, the instant appeal is found meritless and the same is accordingly dismissed.

Announced Dt. 0s.03.2025 GE Tahir Saleem*

.IU d (D.B) Hon'ble Mr. Justice Muhammad Faheem llali Hon'ble Mr. Juslice Sadiq Ali