The State Vs Akbar Khan & another

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JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) Cr.A No. 115-1W016 The State through A.A.G........ ...........(Appetlant) v/s Akbar Khan & another....... (Respondents) Present: Syed Sultanat Khan, Astt: A.G,for the State (appellant).

Mr. Hazrat Rehman, ASC, for the accused/respondents No. I & 2.

Date of hearing:

SHAIIID KIIAN. J.- Impugned herein is the acquittal of Akbar Khan & Yousaf, respondents hereinafter, whereof, The State, now the appellant has called in question their ? acquittal in case of FIR No. 544 dated 05.07.20L4, U/Ss 302134 PPC, P.S, Mayar, District Dir Lower, recorded by the Court of learned Additional Sessions Judgellzafi Zila Qazi, Samar Bagh, District Dir Lower, through the impugned order/judgment dated 04.03.2016.

2.As per prosecution story, the complainant, Muhammad Zahir Shah, initially lodged the report in respect of missing of his brother, Mubarak Shah, alleging ttrerein, that

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Hon'ble Mr. Justicc Shahid Khan

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his brother was having sanitary/electrician shop in Mayar Bazar. On the fateful day i.e. on 04.07.2014, (at about 09:00 hours), he left the house for visiting his shop situated in Mayar Bazar but did not return. He was contacted time & agan on his cell phone No. 0300-9590451 but to no avail. During the course of inquiry, the ASHO, Afzal Khan made a call on the aforesaid cell number, whereby, he was informed by unknown recipienUperson regarding the presence of the dead of the deceased, Mubarak Shah, lying in a place Jb known as Wilwadboo Chinaranoo ( +trlr -r,l-rbJ, therefore, he rushed to the spot and found the dead body of the deceased (whose hands & legs were fastened with red cloth, electric cable & rope). The event was reduced into in the shape of 'Muasila' followed by the FIR registered against unknown accused at P.S concerned.

3.During the investigation, the

local police on the basis of CDR data implicated the present accused/respondents as N"rr"t Hon'blc Mr. Justico Shahid Khan

accused in the subject case for the culpable homicide ofthe deceased, Mubarak Shatt.

4.Upon arrest of the accused/ respondents followed by completion of the investigation, challan was drawn and was sent- up for trial to the learned trial Court. Accused/respondents were confronted with the statement of allegations through formal charge- sheet to which they pleaded not guilty and claimed trial.

t. To substantiate the guilt of the accused/respondents, ttre prosecution furnished its account consist of the statements of nineteen

(19)wihesses. The accused were confronted to the evidence so furnished through statements of accused within the meaning of section 342 Cr.P.C.

6.On conclusion of the trial, in view of the evidence so recorded and the assistance so rendered by the learned counsel for the accused/respondents and the learned counsel for the complainant/learned Public Prosecutor, the learned trial Court arrived at the conclusion Nawab @.B) Hon ble Mr. Justicc Muhammad Naesn Anwgr Hon'blc Mr. Justico Sh.hid Kh.n

that in view of the evidence so recorded and assistance so provided, allegations against the accused/respondents are tainted with the doubts, as such, by extending the benefit of doubt, the acquittal of the respondents/accused were recorded accordingly.

7.It obliged the appellant (State) to approach this Court through the subject criminal appeal.

8.Arguments of learned Astt: A.G for the State as well as leamed counsel for the accused/respondents have been heard at a substantial length and the record gone through with their valuable assistance.

9.There is no denial at all that the subject incident is an unseen event, as neither in the 'Murasila' nor in the FIR nobody has been cited as an eyewitress of the occurence rather the dead body of the deceased has been recovered by the local police at the spot, pursuant to information received by the ASHO concerned and that too from an unknown source.

Nawab @.B) Honble Mr. Justioc Muharmad Naccm Anwar Hon'ble Mr. Justice Shahid Khsn

10.It is also part of the record that initially the law of the land was set in motion by the complainant of the subject case, Muhammad Zahir Shah by reporting the matter to the local police vide Mad No. 15 dated 05.07.2014 in respect of missing of his brother, Mubarak Shah. In the said report, it was mentioned by the

complainant that at ttre time of missing of his brother he was having a cell phone bearing Sim No. 0300-9590451, as such, during the course of an inquiry, the ASHO, Afzal Khan when made a call on the aforesaid number, he was informed by unknown caller/recipient about the presence of the dead body of the deceased, lying at the stated spot, therefore, in such scenario, the best piece of evidence available with the prosecution was the CDR data, from which prima facie the identity of the caller could be established, however, on one hand even the mobile number of the ASHO was not mentioned in the 'Murasila' and on the other hand the CDR data in respect Nrvrb (D.B) Honblo lir. Judic. MuhrEE d N&.m An !! Holr'bl! Mr. Judic. SlEtid KlEr

of the aforesaid cell number was not obtained & secured from the concerned franchise/ company in order to establish that the ASHO concerned had in-fact made a call on the cell number of the deceased or otherwise. In this regard, the said ASHO, Muhammad Afzal Khan appeared in the witness-box as PW-l1, who for the time in his examination-in-cross has disclosed his cell number bearing No.

0347-9671577, from which, allegedly the call was made on the cell number of the deceased i.e. 0300-9590451. In the subject case, when there were two cell numbers in the field i.e.

the one which belongs to the deceased and the other from which the ASHO concerned allegedly made a call, then the prosecution was duty bound to obtain the CDR data of both these cell numbers at least to establish the identity of the unknown caller who had informed the ASHO concerned regarding the presence of the dead body of the deceased at the spot, however, no such visible efforts have been made on the part of the prosecution in Nawab @.B) tlontlo Mr. Justicc Muh8mo.d Naeem Anwar Hon'ble Mr. Jurticc Shehid Khan

the case in hand, therefore, this important piece of circumstantial evidence, in absence ofdirect or ocular evidence has neither been properly investigated nor made part of the record.

11.Other than the above, in this case the statement of the complainant i.e. brother of the deceased could not be recorded on account of his departure to abroad i.e. Saudi Arabia and as per the account of PW-4, the SHO, Haidar Zaman Khan, the AHO Afzal Khan was fiying to contact the cell number of the deceased from outside of his office and after 10/15 minutes he had made a contact with an unknown recipienUperson on his cell phone, therefore, they called the complainant to the P.S concemed and the complainant along with the ASHO Afzal Khan proceeded to the spot. As against it, as per the statement of ASHO Afzal Khan, PW-ll, he, with other police party went to the spot and recovered the dead body ofthe deceased and thereafter informed the complainant through Nrwrb (D.B) Hortl. t{r. Junic. Muhrnn.d N!!qr Ammr Ho'r'bL Mr. Judicc Shrfid Kf,rr

Muharir of the police station. Over & above, the testimony of PW-3,Hafeez-ul-Amin is not line with the version of the aforesaid PWs, who in his statement has come up with a new revelation that he along with the complainant went to the spot where they in presence of the ASHO Afzrll Khan inspected the dead body of the deceased. The PW-3 is not an ordinary witress in context of the subject case who is the nephew of the deceased as well as the complainant, who, in his testimony before the Court has disclosed a different cell number as against the one cited by the complainant in his initial report, therefore, there exist a doubt about the real cell number of the deceased, as such, in view of these glaring contradictions the learned trial Court has rightly extended the benefit of doubt to the accused/ respondents in the shape of their acquittal.

12.Likewise, the testimonies of the hostile witresses i.e. PW-7, Mst. Mohtaram Bibi and PW-12, Sher Alam are also in contrast with the version of the prosecution, Nawab @.8) Hoatle Mr. Junioe Muhammad Naean Anunr Hon'btc Mr. Justicc Shhid Kh.tr

although, they were declared hostile witresses in view of the statement of the learned counsel for the defence, however, nothing beneficial from their mouths could be extracted during the course of their cross- examinations in respect of the guilt of the accused/respondents.

13.The prosecution has also not been able to prove the alleged motive for the commission of the subject offence, which was stated to be that the deceased was allegedly

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teasing Mst. Mohtaram Bibi (PW-7) on telephone and the said fact was allegedly disclosed by the PW-7 to the accused/ respondent, Akbar Ktran, which prompted the accused/respondent to kill the deceased in the company of the other accused in their Hujra.

Here too, the prosecution could not bring on record any CDR data in respect of the alleged telephonic contacts/communication of the deceased with Mst. Mohtaram Bibi, PW-7 or for that matter the CDR record of the cell phone bearing No. 0301-3008642, which was Nanob @.B) Honble Mr. Justice Muhammad Naoom Anrvar Hon'blo Mr. Justicc Sh.hid Khstr

in the name of PW Shad Muhammad but as per prosecution's version the same was used by the accused/respondent, Akbar Khan Same was the case with the alleged retracted confessional statement recorded by the accused/respondent, Yousaf Khan.

14.Even otherwise, when the prosecution has failed to prove the case against the accused/respondents beyond reasonable doubt then the corroboratory evidence produced in the case in hand could be of no help to the prosecution. In this respect, reliance is placed on the judgment of Apex Court rendered in case tttled ulmran Ashraf & 7 others u/s The State'reported as 2Ml SCMR 42t!,wherein it has been held;

(Recovery of incriminating articles is used for the purpose of provtding cor:roboratlon to the oculrrr testimony. Oculnr evidence and recoyeries, therefore, are to be considered simultaneously in order to reach for a iust conclusion.rr In support of same ratio, further

reliance may also be placed on judgment reported NAWMruA.

N.u$ (D.B) H@th !r{r, Ju{ic. Muh.Dlld Nm Alwir Iion'bl. !r{r. Ju.tia. S}.hid XIII

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15.In view of the above, when neither any direct nor any

evidence is available on the face ofthe record, as such, the case of prosecution is full of doubt all-around; therefore, the accused/respondents have righfly been extended Ore benefit of ttre doubt through the impugned of

acquittal, which is neither perverse nor arbitrary nor whimsical.

16.It is well settled, it is not essential at all to place reliance on multiple doubts coupled with multiple grounds to extend the benefit of doubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaizu/s The State" reportr,d as 1995 SCMR 1315, the Apex Court has held as under;-

That the cotrcept of benefit of doubt to an accused pcrron ir deep-rooted ln our country. f,'or giving him benefit of doubt, it is not necessrrT that there should be many circumstances creating doubts. If Mr.

Hor'bl. ffi. Ju{ico Shrf,id Kfrl

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there fu a circumgtance whlch creates reasonable doubt in s prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a mltter of grace and concession but as a matter of right.

Further reliance is placed on the case law cited as "Daniel bovd (Muslim ,, EIl

1992 SCMR De', where the following o were recorded by the Apex

Court;

Nobody is to be punished unless proved guilty on the basis of reliable or true of every doubt is to go to the accused.

This view also reflects in the

judgment of the apex Court titled as EE 2008 SCMR 1221, wherein it

was observed that-

of doubt of appticability. For the puryose of benefit of doubt to accused, more than one infirmity is not required. Single infirmity creates reasonable doubt in the mind of a reasonable and prudent person the of makes the whole case dou It

Nn".b HortL Mr. Jurioc Hor'bl. Mr. fdioc Sh.bid Khe

In support of the same rational, further reliance is placed on the judgment of the august Supreme Court of Pakistan cited Ef,] "Muhammad Zaman vs. the Stateu 0014 SCMR 749, wherein it was held that;-

Even a single doubt if found reasonable, was enough to warrant acquittal of the accused.

17.For the afore-stated reasons, the subject criminal appeal being bereft of any merits is hereby dismissed.

Date of announcement Dt. 14.06.2023

Dat e of w r it in g j udgment Dt.21.06.2023 fffrrrdl

ryit'ffi Na*aU Hon'blo Mr. Justicc Shahid Khan