THE STATE through A.-G. N.-W.F.P. vs MEHMOOD KHAN and others

ORDER

' RANA BHAGWANDAS, ACTG. C.J.--- Through this petition under Article 185(3) of the Constitution, Government of N.-W.F.P. Seeks to challenge the judgment of acquittal dated 2-7-2003 passed by Peshawar High Court accepting respondents' appeal against their conviction and sentence on the charge under sections 302, 324/34, P.P. C .

2. Respondents Mehmood Khan and two others were tried on the charge of Qatl-i-Amd of deceased Noor Zaman committed on or about 29-1-2001 at about 4-00 p.m. Report of the episode was lodged by Sher Zaman the same day at 6-20 p.m. At Police Station Dargai. During the course of investigation, respondents were arrested and a kalashnikov and 10 live rounds were recovered on the pointation of respondent Muhammad Diyar Khan lying in a box from his house where he has been residing with his sons and other family members.

3. At the conclusion of trial, respondents were convicted and sentenced to life imprisonment and fine of Rs,30,000 on the charge of Qatl-i-Amd and R.I. For three years and fine of Rs,10,000 each on the charge of committing attempted Qatl-i-Amd. Prosecution case against the respondents rests upon ocular evidence of complainant Sher Zaman P.W.7 and his brother Qamar Ali P.W.8, recovery of kalashnikov from one of the respondents and securing of 24 empties of kalashnikov from the place of incidence. Respondents' appeal against their conviction and sentence came up for hearing before a Division Bench of the Peshawar High Court which was accepted through the impugned judgment. Upon discarding the evidence of two closely related witnesses and reevaluation of the record, High Court ordered acquittal of the respondents, hence this petition.

4. We have heard Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the petitioner and with his assistance examined the record as well as the impugned judgment of the High Court. Upon scanning the ocular evidence of two witnesses and the reasons and grounds which found favour with the High Court, we are firmly of the opinion that Division Bench of the High Court neither acted illegally nor arbitrarily in not relying upon alleged ocular account furnished by the witnesses. Reappraisal of evidence by High Court on the face of record neither suffers from any misreading or non-reading nor misconstruction of evidence justifying any interference by this Court. Division Bench of the High Court was indeed quite justified in not attaching any importance to recovery of weapon from one of the respondents for which valid and logical- reasons have been advanced.

5. Needless to add respondents Mehmood Khan and Muhammad Diyar Khan were aged 78 years and 80 years of age whereas the age of the complainant on his own showing was 24 years and the Qamar Ali P.W. 20 years. In view of such difference of age, it would be rather against normal human conduct that they would accompany hem for thirty minutes walk. Be that as it may, learned counsel has not been able to point out if the reasons recorded for acquittal of B respondents were fanciful, artificial and conjectural warranting any interference by this Court in the exercise of constitutional jurisdiction. It may also be pertinent to point out that ordinarily an order of acquittal doubles the initial presumption of innocence of an accused which would C be stronger in the case of verdict of acquittal recorded by a Court of Record.

6. For the foregoing reasons, we find no merit and substance in this petition which is accordingly dismissed and leave to appeal refused.