Murad Ali vs Muhammad Aman

2013 Y L R 940

[Peshawar]

Before Rooh-ul-Amin Khan, J

MURAD ALI---Appellant

Versus

MUHAMMAD AMAN and others---Respondents

Criminal Appeal No.661 of 2011, decided on 14th December, 2012.

Penal Code (XLV of 1860)---

----Ss.365, 324, 353, 148 & 149---Criminal Procedure Code (V of 1898), S.417(2)---Kidnapping, attempt to commit Qatl-e-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons---Appeal against acquittal---Appreciation of evidence---Presumption---Benefit of doubt---Accused was acquitted by Trial Court on the ground that prosecution failed to prove charge---Identification parade was conducted but neither abductee nor police identified accused to be the real culprit and the same cast serious doubt on the veracity of occurrence having taken place in the mode and manner as stated by prosecution, benefit of which must go to accused---Although, Station House Officer stated that exchange of firing was made between accused and police party but neither any empty was recovered from the spot nor anybody received even a single injury and the same had cast doubt on prosecution case-- -Prosecution failed to establish its case against accused through reliable evidence---After earning acquittal from Trial Court double presumption of innocence was acquired by accused and court sitting in appeal against acquittal would remain slow in reversing judgment of acquittal, unless it was found to be arbitrary, fanciful and capricious on the fact of it---High Court declined to interfere in judgment of acquittal.

Muhammad Tasveer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 rel.

Baber Khan Yousafzai for Appellant.

ORDER

ROOH-UL-AMIN KHAN, J.---The acquitted accused-respondents and their absconding co-accused were charged in case F.I.R. No.342 dated 9-6-2010 under sections 365/324/353/148/149, P.P.C. registered against them at PS Hangu. They were tried for the offence, found innocent and acquitted by the trial Court vide its judgment dated 8-10-2011. However, the absconding co-accused Surat Ali was declared proclaimed offender and perpetual warrant of arrest was issued against him. Feeling aggrieved Murad Ali complainant has filed the instant appeal under section 417(2), Cr.P.C. challenging the validity of the impugned judgment.

2.The prosecution case is that the then S.H.O. Hangu received information that Murad Ali was abducted and was being taken away from village Lakhti Banda towards mountain known as 'Gosarh'. He along with other four police officials started chasing the accused. He found a Motor Car No.KF 312/ID left by the accused on the said road and the accused along with the abductee were going towards the mountain on foot. They started firing at the police party with intent to kill. The local police in. retaliation also made fire. Consequently the accused left the abductee and ran away towards the Jungle. The Motorcar was seized by the police and the abductee was recovered. The above mentioned case was registered against the accused on the report of Murad Ali/Appellant.

3.The prosecution in order to establish its case against the accused had examined 5 witnesses in all and closed the prosecution evidence. The accused-respon-dents were examined under section 342, Cr.P.C. wherein they denied all the allegations levelled against them by the prosecution. They neither opted to record their statements on Oath under section 340(2), Cr.P.C. nor wished to produce any evidence in their defence and then after hearing arguments of the learned counsel for both the sides, the learned trial Court vide the impugned judgment and order dated 8-10-2011 acquitted the present accused-respondents.

4.I have heard the learned counsel for the appellant at considerable length and carefully gone through the record of the case.

5.Perusal of the record shows that the statement of the abductee/appellant is replete with material contradictions, because his statement is not in line with the report made to the police. No private independent and disinterested witness was associated to support the prosecution case. The complainant has claimed to have been beaten by the accused, but not a single injury, bruise or abrasion was found on his body. The Motorcar allegedly recovered in the case does not belong to the respondents. The appellant has made deliberate improvements in his statement before the Court. Though identification parade was conducted in the case, but neither the abudctee nor the police identified the accused to be the real culprits, which casts serious doubt on the veracity of the occurrence having taken place in the mode and manner as stated by the prosecution, the benefit of which must go to the accused. Though the S.H.O. has stated that exchange of firing was made between the accused and the police party, but neither any empty was recovered from the spot nor anybody received even a single injury, which casts serious doubt on the prosecution case. I am of the view that the prosecution has miserably failed to establish its case against the accused through reliable evidence.

6.Furthermore it is by now settled law that after earning acquittal from the trial Court double presumption of innocence is acquired by an accused and the Court sitting in appeal against acquittal always remain slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it. As mentioned above, in the instant case no such infirmity has been found in the impugned judgment. The trial Court has acquitted the respondents after proper appraisal of evidence for which no exception can be taken.

For the reasons mentioned above and deriving wisdom from the judgments of the apex Court in Muhammad Tasveer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53) and Abdul Majeed v. Mulazim Hussain and others (PLD 2007 SC 637) the impugned judgment of acquittal is maintained and the appeal in hand is dismissed in limine being without any substance.

MH/57/P Appeal dismissed.