Gul Rehman vs State etc

JUDGMENT SHEET

PESHAWAR HIGH COURT D.I.KHAN BENCH

JUDICIAL DEPARTMENT

Cr Appeal No. 45-D of 2015 Date of hearing 06.10.2015 Appellant / petitioner Gul Rehman by Mr. Farooq Akhtar Advocate Respondent State and others by Mr. Adnan Ali Assistant Advocate General for State and Sh: Inamullah Khan Advocate for accused respondent

MUHAMMAD GHAZANFER KHAN J.-The

complainant/appellant, namely, Gul Rahman, through the instant appeal has assailed the judgment dated 11/5/2015 passed by the learned Additional Sessions Judge-I D.I.Khan, whereby Hidayatullah and Fatehullah have been acquitted in case FIR No.275 dated 2/5/2011 under sections 324/337-A(ii)/34 PPC of police station Cantt:

D.I.Khan.

2.According to the FIR lodged by Gul

Rahman, complainant/appellant, he was present in his house when meanwhile Hidayatullah son of Fatehullah, accused/respondent, knocked the door of his house over to which he came out. The accused asked to accompany him which he did and at about 0730 when they reached in the thoroughfare near his house, accused Fatehullah was

already standing there who fired at him with his pistol with which he was hit on left side of the cheek. Motive for the offence was given to be dispute over the street and occurrence was alleged to had been witnessed by Saif-ur- Rahman son of Fateh Muhammad and Muhammad Saeed son of Abdur Rashid, their co-villagers.

3.After arrest of accused and completion of investigation, complete challan was put in Court where the accused were summoned and formally charge sheeted, but they did not plead guilty to the charge, professed innocence and claimed trial.

4.In order to prove its case, the prosecution produced and examined eight witnesses and closed its evidence. Thereafter, statement of the accused was recorded under section 342 Cr.PC but neither they produced any evidence in defence nor opted to examine themselves on oath in terms of section 340(2)Cr.P.C.

5.The learned trial Judge on evaluating the evidence brought on record and considering the arguments of learned counsels for the parties addressed at the bar acquitted the accused of the charge leveled against them vide judgment which is now under challenge by the appellant through the appeal in hand.

6.I have carefully gone through record of the case and considered the arguments of learned counsel for the parties.

7.Perusal of record shows that the prosecution has not been able to prove its case against the accused/respondents beyond any shadow of reasonable doubt and, therefore, the impugned judgment of acquittal warrants no interference by this Court.

8.The occurrence has allegedly taken place on 2/5/2011 at 1930 hours but the matter was reported to the local police at 2130 hours in the emergency room of civil hospital. According to the medicolegal report of the complainant (Ex.PW-3/1), the time of his arrival in the hospital was 07.55 hours, i.e. within five minutes of the occurrence and the complainant has explained this delay of not reporting the matter to the police well in time that he was waiting for arrival and permission of his father.

From this it follows that the complainant has charged the accused/respondents after due consultation, deliberation and ulterior motive due to which the charge is not free from doubt.

9.According to his initial report, the

complainant/appellant was fired at by Fatehullah but he has thrown the net wide by implicating his son

Hidayatullah too in the offence and thus the charge against both the accused/respondents is an exaggerated one due to which the case of prosecution falls to the ground.

10.Moreover, there are material contradictions in the ocular testimony of the PWs, medical evidence, site plan and negative report of FSL regarding the recovered empty and pistol and all these facts when taken together proves that the complainant/appellant had charged the accused/respondents malafidely and with ulterior motive.

11.From whatever angle seen, I find that the learned trial Judge has rightly appraised the evidence brought on file while acquitting the accused/respondents through the impugned judgment which being based on correct legal footings needs no interference and is accordingly upheld.

12.Even otherwise, once an accused is

acquitted by a competent Court of law after facing the agonies of protracted trial, then he earns the presumption of double innocence which cannot be set at naught by the appellate Court slightly unless it is proved through the available evidence that the judgment of acquittal is patently illegal, perverse, fanciful, erroneous or has

resulted into grave miscarriage of justice. Learned counsel for the appellant/complainant miserably failed to pinpoint any such legal infirmity in the impugned judgment of acquittal.

13.For the reasons discussed above, I find no substance in this appeal which is hereby dismissed.

ANNOUNCED JUDGE