State vs Riaz

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

Cr.A. No.208-P/2001 Date of hearing...19.02.2015

State Vs Riaz

Appellant(s) by Mr. Rab Nawaz Khan AAG, Respondent(s) by Nemo in attendance despite service.

ABDUL LATIF KHAN, J:- This appeal has been preferred against the judgment dated 11.06.2001, passed by learned Judge, Special Court, Swabi, whereby the respondent Riaz charged in case FIR No.411 dated 06.05.2000, u/s 302/324/34 PPC, P.S. Kalu Khan, was acquitted of the charges leveled against him.

2.As per prosecution case, the

complainant Arshad Zaman(PW.9) alongwith Sajjad Ali, Fazle Yazdan, Hazrat Aman and Sarfaraz Khan were coming from the hujra of Noor Jamal when in the meanwhile respondent alongwith co-accused opened fire at them as a result of which Sajjad Ali & Fazle Yazdan got hit and died on the spot whereas

complainant and PWs escaped unhurt.

Consequently on the basis of his report a case vide FIR mentioned above was registered against accused.

3.After completion of investigation challan against accused was submitted in the trial Court where proceedings u/s 512 Cr.PC were initiated against absconding co-accused Salim & Alamgir in the light of statement of SW.1 Khairuz Zaman IHC and after framing of formal charge against respondent, the prosecution in order to prove its case examined 11 witnesses. At conclusion of trial, the learned trial Court vide impugned judgment acquitted the respondent Riaz from the charges leveled against him hence the instant Criminal appeal has been preferred against the same order by State through Advocate General, KPK, Peshawar.

Arguments heard and record perused.

4.Admittedly it is a night occurrence allegedly taken place at 00.40 hours so identification of respondent alongwith co-accused was not possible at such a dark time though the

complainant disclose about identification of accused in the light of bulb but neither the said bulb has been taken into possession by the I.O, nor produced to him by the complainant. Besides, the site plan is also silent about installation of any bulb which creates doubt about the identity of actual culprit at the time of occurrence by the complainant.

5.The respondent has also not been given any specific role of firing nor type of weapon used by him, is mentioned by the complainant in his report. Admittedly indiscriminate firing was made at the complainant party but no specific role to any of the accused has been assigned as to with whose fire shots, the deceased Sajjad was hit and with whose fire shots deceased Alamgir were hit and whose fire shots went in the air which creates doubt in the prosecution case.

6.During spot inspection five empties of 7.62 bore were recovered whereas at the time of arrest of respondent from his house a 303 bore rifle and a shotgun were recovered for which separate case u/s 13 A.O, was registered meaning that no crime weapon used in the commission of offence

has been recovered from possession of respondent Riaz.

7.It is also very strange to observe that the respondent was arrested after three hours of the occurrence which is not appealable to a prudent mind that a person involved in commission of double murder, leaving the complainant and witnesses alive, is sleeping in his house being well aware of the consequences of commission of offence that he was seen by the complainant and eye witnesses who will definitely charge him for commission of offence but even then he was so brave to stay/ sleep in his house. He was either out of his mind or very brave person that inspite of commission of double murder he was enjoying a good sleep in his house which is not appealable to a prudent mind. Admittedly he was awoken from the sleep by police party who being shocked inquired from police about their arrival to his house to which they narrated about his involvement in the commission of offence. Besides, respondent remained in police custody but he has made no

confession before the competent Court which could connect him with the commission of offence.

8.Record reveals that on the application of respondent, an inquiry was conducted by Crime Branch wherein the respondent was found innocent by Inquiry Officer after recording statements of many persons including elders and other peoples of the area who deposed about the innocence of respondent and his false involvement at the behest of one Ali Rehman (a practicing lawyer) who was not in good terms with the respondent due to some family dispute and on his behest the respondent was substituted with another accused by name of ‘Qasim’ which is also evident from the said inquiry, creating doubt about involvement of respondent in the commission of offence.

9.Except the above contradictions and loop holes in the prosecution case, there are many other loop holes in the prosecution evidence mentioning of which would be wastage of time as the referred contradictions are sufficient for creating doubt in the prosecution case.

10.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. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused.

11.It is also a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. While Court sitting in appeal against acquittal must be 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. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the

respondent/accused by extending him benefit of doubt, after proper appraisal of evidence for which no exception can be taken.

12.For what has been observed above, the instant criminal appeal being devoid of merit is dismissed.

Announced.

Dt.19.02.2015.

JUDGE

JUDGE

“A.Qayum”