THE STATE vs FAZAL AHMAD AND Anothers

SHER BAHADUR KHAN, J.--This is a State appeal under section 417, Criminal Procedure Code against the order dated 30 September passed by Agha Muhammad. Ali Shah, Magistrate 1st Class empowered under section 30, Cr. P. C., Haripur, whereby he acquitted Fazal Ahmad anal Ali Ahmad son of Karam Elahi, residents of village Dobatuli, Police Station Khanpur, Tehsil Haripur, District Hazara, of the charge under section 3(17/34, P. P. Code.

2. The brief facts leading to the appeal are that during the night 22-7-1965 the two brothers Dildar Hussain Shah (P. W. 4) and Hubdar Hussain Shah (P. W. 5) were sleeping in the court--yard of their baithak in their home village Dobandi. It was at about 11-30 p.m. That on the barking of a dog Dildar Hussain Shah got up and saw two persons standing near him. He enquired of them as to who they were. On this enquiry, Ali Ahmad respondent lit his torch which he had with him at that time and said, "he is Dildar Hussaiu kill hint". The torch light was thrown on the face (if Dildar Hussain Shah, who placed his hand on his forehead with the palm of the hand facing outside and he remained lying on the cot. Fazal Ahmad then fired at him with his pistol and hit him on the palm of his left hand, as; to result of which his left little finger was chopped off. He raised an alarm. ()n the report of the firearm and the alarm, his brother Hubdar Hussain Shah (P, W. 5) also got up who had a torch with him and threw the light at the respondents while they were still in the courtyard. Hubdar Hussain Shah also identified the two respondents in the light of his torch. The respondents decamped from the spot soon after. On the alarm raised, Mubarik Shah, Taj Hussain Shah, Gulab Shah and other villagers came to the spot.

3. The first information report was lodged by Dildar Hussain Shah (P. W. 4) himself at Police Station Khanpur at 2 a.m. On 23-7-1965. It was recorded by Fazal Dad Khan, I. H. C. (P. W. I). The distanceth between the Police Station and the spot is five miles. The injury sheet of the injured person was prepared and he was sent to the Civil Hospital, Khanpur for his medical examination. Fazal Dad Khan proceeded to the spot and prepared the site plan (Exh. P. B.). He also took into possession the torch (Exh. P. 2) produced before him by Hubdar Hussain Shah. He was relieved of the investigation by.Shaida Muhammad Khan, S. H. O. (P. W. 2) on 23-7-1965 at 9 a.m., who took into possession the little finger of Dildar Hussain Shah (Exh. P. 4) by memo. Exh. P. L.

4. On behalf of the prosecution, the two brothers Dildar Hussain Shah (P. W. 4) and Hubdar Hussain Shah (P. W. 5), appeared as eye-witnesses and gave ocular account of the tragedy from the start to the finish. Mubarik Shah, (P. W. 6) was also examined and he stated that on hearing the shot he came to the spot and on his enquiry the two respondents were charged by Dildar Hussain Shah P.

W.

5. The medical evidence showed that Dildar Hussain Shah had an irregular lacerated wound in the area of 3" x 3", which was the result of entrance and exit punctured wound, on left hand at its medial border of the palm. The little finger was completely missing from the base. There was fracture of 5th carpal bone, the tendons were cut and the muscle injured. There were also charring marks on and around the wound. Dr. Muhammad Aslam Jan (P. W. 3), who examined Dildar Hussain Shah, was of the opinion that the injury on the person of Dildar Hussain Shah denoted that it was fired front a close range within 2 to 3 feet, and there was possibility of self-infliction of this injury.

6. The case of the respondents was one, of simple denial, and they both stated that they were falsely charged and they had appeared as witnesses against the complainant, Dildar Hussain Shah, in a case under section 377, P. P. C. Which was pending in that very Court. They produced defence to show through the deposition of Munir Khan (D. W.1) and Mir Hussain Shah (D. W.2) that on hearing the report of the firearm they went to the spot and Dildar Hussain Shah informed them that he had received the bullet injury at his own hand and had not charged the respondents before them for the injury.

7. The learned Magistrate took the view as reproduced by the last paragraph of the judgment: - "A careful study of the evidence on the file would reveal the following facts: -

(I) The complainant is charged under section 377, P. P. C. And the accused in this case are P. Ws. In that case. In order to influence the P. Ws. a concocted case is very much possible:

(2) In the cross-examination the complainant has given the explanation that he was fired at by the accused who were standing at the foot side of his cot but the perusal of the site plan Exh. P. B.

Would reveal that the accused were standing at point No. 2 which is at the site of the cot.

(3) The Medical Officer has also given opinion that there was a charring mark on and around the wound and that this could be self-inflicted."

In view of all this, the learned Magistrate came to the conclusion that the case against the respondents became very doubtful, and therefore they were acquitted under section 258, Cr. P. C.

8. We have gone through the entire evidence. It was admitted that the night of the occurrence was dark. It was also admitted that the two eye-witnesses who are brothers were inimical towards the respondents inasmuch as Dildar Hussain Shah was charged under section 377, P. P. C. And the two respondents were prosecution witnesses in that case and the case was pending at the time of the occurrence. We also find that there were charring narks on and around the wound and it was admitted by Hubdar Hussain Shah (P. W. 5) that "the accused were standing at the distance of 2-3 paces from the charpoy of the complainant'". The medical evidence showed that the com-- plainant was fired at from a very close range and in the circumstances more damage should have been done to the complainant rather than the chopping of his little finger.

9. On behalf of the State, it was argued that the respondents were identified by the torch light. We are not influenced with this argument because, in our opinion, identification in the light of the torch was not considered as sufficient piece of evidence and besides there was no reason why the respondent, should have lit the torch. They knew the two brothers and also knew that they were sleeping in their house and could have killed or injured any one of them when they found then sleeping on their charpoys.

10. Further, it was argued that the respondents had talked and they, could have been identified by their voice. We are also B not impressed with this argument for the reason that identification by voice has been always held doubtful by the superior Courts.

11. Lastly, we are aware of the principle of law laid down by the superior Courts time and again that the "High Court will interfere with an order of acquitted only if the appreciation oil evidence by the trial Judge is perverse or foolish and is not correct". It is, more or less, a practice "that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words, the order of acquittal will not be setaside on the grounds o appreciation of evidence alone. But if the reasons given by the trial Judge are of speculative and artificial nature or the finding recorded by him are based on no evidence or mis-interpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice, the Court of appeal will in such a case re-examine the evidence and draw its own conclusions frost it".

We have examined the record, as earlier stated, and we have clearly formed the opinion that the learned trial Court rightly appreciated the evidence in this case, and that its findings are based on evidence and the conclusion drawn by it about the innocence of the respondents is sound and it can, by no stretch of imagination, be called perverse or foolish resulting in miscar--riage of justice.

We, therefore, are not inclined to interfere with the finding of the trial Court and dismiss the State appeal. The respondents are on bail. They arc discharged of their bail bonds.