Abdul Haleem Vs The State

Jud ent Sheet

PESHAWAR HIGH COURT. ABBOTTA BAD BENCH.

JUDICIAL DEPARTMENT

Cr.A No.364-A of 20 t9

JUDGMENT

Dateofhearing ......22.04.2020........... Appellant...(Abdul Haleem) by Malik Amjad Ali, Advocate ...

llespondent ... (The State etc) ...

AHMAD ALI ,I:- Appellant, Abdul Haleem son o1' Abdul Hayee, has called in question the acquittal of accused/respondents, Saif-ur-Rehman son of Qass Malook, Qazi Malook son of Sherwan, Shikrat Khan son of Sagheer Shah and Roop Mian son of Mamar Shah, in case F.I.R No. 677 dated 06.06.2016 under Sections 302134 PPC of PS City, District Mansehra, vide impugned .judgment dated $/ 26.09.2019 of the learned Additional Sessions Judge- III, Mansehra by liling instant appeal under section 417 (2-A) Cr.P.C.

2.Brief facts of the case are that the complainant, Abdul Haleem son of Abdul Hayee, lodged the repoft to Qaim A1i Shah, IHC, Police

Station Ciry. Mansehra. tn Emergency Ward of KATH, Mansehra , who reached there on receipt of information about the occurrence. on 06.06.2016 at 18.45 hours to the effect that at 'Asar waila' he alongwith his brothers Shabbir Ahmad and Abdul Malik was proceedings towards 'Lari Adda' Mansehra, on link road behind Pakistan Hotel; r,r,hen they reached near Kohistan Service Station, a 2OD motorcar bearing registration No.401-Sindh red colour was already parked there and Saif-ur-Rehman duly armed with 30 bore pistol was standing near the car, while Qazi Malook, Shikrat Khan and Roop Mian alighted from the motorcar; Qazi Malook commanded to kill them, Saif-ur-Rehman, Shikrat Khan and Roop Mian started firing at them, AS a result, Shabbir Ahmad, his brother got injured on his head with the firing of Saif-ur-Rehman. Accused fled away from # the spot after commission of the offence. The occurrence was stated to have witnessed by the complainant, his brother Abdul Malik and other people on the spot. Motive for the offence was stated to be tamily dispute. l'he injured was succumbed to his injuries on the way when he was being shifted to

hospital. He charged the accused for ,eatl-i-Amcl, of his brother, Shabbir Ahmad. The reporl of the complainant was recorded in shape of , Murasila' (Ex.PA) by Qaim Ali Shah, IHC (pW-4) and the instanl case was rcgistcred against him vide I]-.I.R (Ex.PW 5/l).

3.After completion of investigation, complete/ supplemenlary challans were submitted by the SHO in the Court of Sessions for trial against accused/respondents, named above, who were charged for the offence under section 302134 PPC, but they pleaded not guilty and claimed 1rial. 'fhc prosecution in supporl of its case,, examined twenty one witnesses including Abdul Haleem, complainant/eyewitness (PW-19) and Abdul Malik, eyewitness (PW-20) A1ler closure of prosecution evidence, accused/ v respondents were also examined under section 342 Cr.P.C, wherein, they denied the allegations of the prosecution leveled against them in this case.

I.Iowever, they wished not to produce defence evidence or to appear on Oath as their own witnesses under section 340 (2) Cr.P.C.

4.The learned trial Cour1, after hearing thc arguments oflearned counsel for the parties, acquitted the accused/respondents vide impugned judgment/ order dated 2610912019. Hence, the present appeal.

5.Arguments of the learned counsel for the appellant-complainant heard. Record perused.

6.Admittedly, the alleged occurrence was stated to have taken place on 06.06.2016 at'Asar Waila' on link Road behind Pakistan Hotel near Kohistan Service Station Mansehra. However, the report of the occurrence uras lodged by Abdui Haleem cornplainant-cum-eyewitness (PW-l9) at 18.45 hours and the occurrence was stated to have also witnessed by his brother, Abul Malik (PW-20). In this case the exact time of occurrence was not estabiished and rn this regard the statements of the eyewitnesses and the investigation officers are contradictory and the leamed trial Court has discussed this aspect of the case ln the judgment elaborately and has rightly concluded at the ve ry outset that the time of 'I'his Court has also gone occurrence was doubtful.

through the evidence of the abovementioned eyewitnesses and the scriber of 'Murasila ', namely,

Qaim Ali Shah, IHC (PW-4) and Fida Muhammad.

investigation Olficer (PW-16). Although the alleged eyewitnesses in their statements before the Court had taken another stance to cover up the inordinate delay of more than four hours in lodging report qua the occurrence by saying that due to heavy rush of traffic on road they could not timely reach the hospital but the above explanation of the P.Ws also could not be substantiated by the police officials i.e. PW-4 and PW- 1 6 in their statements rather rhey belied this stance of the eyewitnesses. Even other.wise while keeping in view the distance between the spot and the hospital, it would hardly take half an hour to reach the hospital from the spot. Thus, the alleged delay in lodging the repofi in view of peculiar facts and circumstances gained much significance, as such, the f-actors of deliberation, consultation and preliminary t/ investigation could not be ruled out

7 . The version of the alleged eyewitnesses was that they alongwith their deceased brother, Shabbir Ahmad were proceeding towards 'Lari Adda' Mansehra, when they confronted with the accused pafty on link road behind Pakistan l-lotel, where

accused/respondent Saif-ur-Rehman duly armed with 30 bore pistol was standing near the car, while other three accused alighted from the car and they made indiscriminate firing at them on the command of co- acquitted accused Qazi Malook. The effective role of 'Qatl-i-Amd' of deceased Shabbir Ahmad was attributed to accused/respondent, Saif-ur-Rehman.

Astonishingly, despite alleged indiscriminate firing by three accused, none of the PWs tried to escape or hit with a single fire shot and they were surprisingly standing firm to watch minutely that the fire shot of Saif-ur-Rehman hit the deceased on his head, which in the ordinary course of life is impossible. It is also beyond one's comprehension as to why the accused let the alleged eyewitnesses to go safely to lodge report and stand eyewitnesses against them. The minute scrutiny of the entire evidence would lead to the obvious inference that the occuffence had not taken ft/ place in the mode and manner as alleged by the eyewitnesses. The ocular version fumished by the eyewitnesses is full of improvements and discrepancies and also does not support by the medical evidence.

8.It is settled law that once intrinsic wofth of ocnlar account is accepted and believed then the rest olthe evidence, both circr.rmstantial and corroborator-y in nature, would be required as a lnatter of caution.

Conversely, once the ocular account is disbelieved then no other evidence. even of a high degree and value, would be sufficient fbr recording conviction on a capital charge. It is also settled principle of justice that on acquittal an accused person eams trvolbld innocence. Moreover, the standard ancl principle ol appreciation ol evidence is entirelv diff'erent fi'oni that in a case of conviction. The frndings of the trial Court could only be reversed b,v this Court in its appellate.jurisdiction, w.hen the saure are fbund pervelse, fancifirl, arbitrarl, or based on misreading and non-reading of material evidence # car-rsing nriscarriage ofjustice. Reliance can be placed on 1995 SCMR 127 2015 SCMR 1142 ,20T7 SCMR 2002.2017 SCMR 2007.-and 2017 SCMR 1710.

9.In view of above discussions, it is crystal clear that the case of the prosecution is futl of doubts and the statements of the complainant/eyewitnesses are contradictory, which create serious doubts about the

u

mode and manner of the occurence and veracity of the testimony furnished by the alleged eyewitnesses As such, the iearned trial courl has rightly acquitted the accused/respondent and its judgment does not need to be interfered with by this Courl in its Appellate .i urisdiction.

10.It is well settled law that cvcn a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts.

Reliance is placed on case titled Ghulam Oadir Vs.

The State (2008 SCMR 1221), wherein, it has held that

"It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity crating reasonable doubt in the mind ofa reasonable and prudent mind regarding the truth of charge- makers the whole case doubtful.

Merely because the burden is on

V accused to prove his innocence it does not absolve the prosecution to prove ils case against the accused beyond any shadow ofdoubt in this duty does not change or vaty in the case."

Reliance is also placed on case law reported as 1992 SCMR 356 t995 SCMR 1345 1995 SCMR 1730 200;l SCNIR 215 2004 scMR 140 , 2009 scMR 230, 2$13 SCMR 192 2016 scMR 2073 2016 PSC

(Criminal) 612 2OI7 PSC Criminal !rl 2OI7 S C M Il 986 and 2019 P.Cr.L.J. 337.

11 . Accordingly, for the reasons stated hereinabove,, this Court is of the considered view that the prosecution has failed to prove its case beyond any reasonable doubt against the accused/respondents, hence, the instant appeal being devoid of substance is herebv dismis sed in limine.

.TUDO E

Anno unced.

Dt.22.04.2020.

V

JUDGE

t 14.Slllqnl,

(DB).Vt .lustke Shokeel ,4hmaclInd Mt. Justice Ahmad lli