HUSSAIN BAKHSH vs MUREED KHAN and 5 others

' MUHAMMAD ALAM KHAN, J.--- The appellant, Hussain Bakhsh, has filed this appeal against the judgment, dated 27-10-2006 passed by the learned Additional Sessions Judge-IV, D.I. Khan vide which the accused/respondents Nos.1 to 5 herein, were acquitted of the charge brought against them in case F.I.R. No,241 dated 18- 8-2006 under sections 324/382/148/149, P.P.C. Registered at Police Station Gomal University, D.I.

Khan.

2. The prosecution story as narrated by the complainant/appellant Hussain Bakhsh in his first report is to the affect that he along with his nephew named Muhammad Iqbal was present in the Baithak at Digar Vela when in the meanwhile accused Murid, Tanveer, armed with kalashnikovs, Kousar armed with .12 bore shotgun, Mubashir, Sibtain and Abid armed with Dandas, co-villagers, came there and called them not to be spared followed by simultaneous firing at them with their respective weapons while the other accused armed with Dandas gave them Danda blows with which the complainant and his nephew Muhammad Iqbal sustained injuries, whereafter the accused while decamping from the spot took his licensed .12 bore shotgun with twenty-five cartridges. Except oral altercation, no other previous enmity was stated to be between the parties and the occurrence was alleged to be witnessed by Imam Bakhsh, Hanif and other co-villagers.

3. After their arrest, completion of investigation and requisite formalities, the accused/respondents were put on trial but they did not plead guilt to the charge and professed innocence. Thus, the prosecution in order to prove its charge against the accused/respondents produced and examined twelve witnesses, whereafter their statements under section 342, Cr.P.C. Were recorded, however, neither they opted to be examined on oath in self-defence under the provisions of section 340(2), Cr.P.C. Nor produced any defence evidence. The learned trial Judge after evaluating the evidence brought on record found the accused/ respondents not guilty of the charge and by extending the benefit of doubt acquitted them vide judgment impugned herein.

4. I have hard learned counsel for the parties and examined the entire record of the case.

5. Perusal of the record makes it crystal clear that the case of the prosecution is full of doubts and inherent defects due to which it had not been able to prove its case against the accused/respondents beyond any shadow of reasonable doubt and thus, the learned trial Judge had no option but to acquit the accused/respondents of the charge levelled against them. The basic foundation of the prosecution case is the lodging of the First Information Report and it is not proved on record as to who had lodged the same. Hussain Bakhsh appearing as P. W.10 has stated in his Court statement that he had lodged the F.I.R. (Exh.P.A./1) in the emergency room of the Civil Hospital, but he is negated by the injured Muhammad Iqbal appearing as P.W.11 who in examination-in-chief has stated that he had made report about the occurrence in the emergency room of the Civil Hospital. Astonishingly these two P.Ws. Are further negated by Imam Bakhsh while appearing as P. W.12 who in examination-in-chief has stated that the injured were taken first to the hospital where he and P.W. Hussain Bakhsh had lodged the report about the occurrence. Thus, on this material point, the case of the prosecution is shattered and has no legs to stand. The prosecution case further becomes doubtful and unbelievable when P.Ws. Iqbal and Hussain Bakhsh stated in Court that they were first taken to the police station and then to the hospital but neither any report was lodged in the police station nor even their injury sheets were prepared there and thus, after due deliberation and consultation the report was made in the emergency room of the Civil Hospital which too was delayed by about 3/4 hours. This narration of P.Ws.10 and 11 is also not supported by Imam Bakhsh (P.W.12) who claims himself to be the eye-witness of the occurrence by stating that first the two injured were taken to the hospital. The version of the complainant/appellant Hussain Bakhsh is also not supported by the medical evidence, according to which the injuries sustained by him and P.W. Muhammad Iqbal were shown to have been caused by blunt means and not by fire-arms as alleged.

6. The case of the prosecution was very poorly investigated due to which it also falls to the ground.

The site plan Exh.P.B. Indicates Points Nos.8, 11 and 12 about which the Investigating Officer Gul Sher Khan, Sub-Inspector appearing as P.W.1 was ignorant as to how he had mentioned the same. The site plan is further doubtful as its perusal shows that it was prepared on the following day of occurrence while the recovery memo. Exh.P.C. Shows that it was prepared on the day of incident and there is no mention that on whose pointation it was prepared. Thus, the prosecution story is not corroborated with the site plan and recovery memo. As an empty of .30 bore pistol was recovered instead of .12 bore shotgun as alleged by the complainant. From the place of injured Muhammad Iqbal P.W. No blood was recovered though he alleged to have sustained fire-arms injuries and also due to club blows. Besides, the empties recovered from the spot were not sent to F.S.L. To establish as to whether these were fired from one or different weapons. Furthermore, there is no mention on record about the bloodstained clothes of the injured as to whether these were taken into possession and sent to F.S.L. To match the same with the blood recovered from the spot.

According to the report Exh.P.A., the accused while decamping from the spot had also taken away one .12 bore shot gun of the complainant Hussain Bakhsh but he and other eye-witnesses had remained mum in their Court statements in this behalf. From this follows that much improvements have been made by the complainant and other eye-witnesses which were initially not mentioned in their statements under section 161, Cr.P.C. But subsequently disclosed in their Court statements.

Furthermore, no motive either by the complainant oral the other eye-witnesses of the occurrence has been given except the oral altercation.

7. From whatever angle I see, the prosecution case is full of doubts and dents due to which it had failed to prove the guilt of the accused/respondents in the commission of the crime. The learned trial Judge had, therefore, rightly acquitted them to which no exception can be taken by this Court.

Besides, once an accused is acquitted by a Court of competent jurisdiction after due trial, then he earns the presumption of double innocence and unless strong and exceptional grounds exist for interference in the order of acquittal, it cannot be disturbed easily which are lacking in the case in hand.

8. Consequently, I find no substance in this appeal which is hereby dismissed.