WALI KHAN vs NASIR KHAN AND ANOTHER
This petition for leave to appeal challenged the acquittal of the respondent by the Peshawar High Court in a murder case registered under Section 302/34 of the Pakistan Penal Code 1860. The prosecution alleged that the respondent and his absconding brother waylaid the deceased, with the respondent exhorting his brother to kill the victim. The trial court had convicted the respondent under Section 304 of the Pakistan Penal Code 1860, but the High Court acquitted him, citing the improbability of a younger brother exhorting an elder brother to commit murder when both were armed, thus extending the benefit of doubt. The core legal question was whether the High Court erred in acquitting the respondent without explicitly disbelieving the eyewitnesses. The Supreme Court dismissed the petition, holding that an acquittal based on the benefit of doubt does not necessitate a finding that eyewitnesses deliberately provided false testimony. The Court affirmed that the High Court had applied its mind to the facts and that the grounds for setting aside an acquittal were not satisfied.
- Does the acquittal of an accused based on the benefit of doubt necessarily imply that the eyewitnesses provided false testimony?
- Can an appellate court acquit an accused without explicitly rejecting the testimony of eyewitnesses?
- What are the conditions required for the Supreme Court to set aside an order of acquittal?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
1. ' MUHAMMAD AFZAL ZULLAH, J.-The acquittal by the Peshawar High Court of the respondent in a case registered against him and his elder brother under section 302/34, P. P. C., has been called in question through this petition for leave to appeal.
2. ' According to the prosecution, the respondent and his co-accued who allegedly is still an absconder, waylaid Ghulam Rasul deceased a boy of 15 years of age. They were armed with guns.
3. The respondent asked the absconder to kill (MARO) Ghulam Rasul whereupon the latter fired a shot at him, resulting in his death. The motive mentioned in the F. I. R. Was that the deceased was suspected to have stolen a gun belonging to a brother of the accused. Learned counsel, however, has explained that this occurrence was also a sequel to the enmity between the families of the parties-Ohulam Rasult's father-also it is stated was murdered, by the respondent's party.
4. ' The prosecution, amongst others, relied on testimony of two eyewitnesses. The defence plea was that of denial. The learned trial Judge convicted the respondent under section 304, P. P. C and sentenced him to 10 years' rigorous imprisonment and also fine of Rs, 2,000, on a finding that the use of word 'MAW by the respondent signified that he did not intend 'killing' of the victim.
5. ' On appeal from conviction a learned Division Bench of the Peshawar High Court held that "exhortation by younger brother to the elder does not appear to be in accord with normal code of conduct, particularly when both are armed, therefore, the factor of false implication with the real culprit cannot be ruled out". Accordingly, giving him benefit of doubt the respondent was acquitted.
6. The petitioner's revision for enhancement of sentence was also dismissed.
7. ' Learned counsal has vehemently contended: that the learned Judges in the High Court, fell into error because as argued, the respondent could not be acquitted without disbelieving the eye- witnesses. He also pointed out that the testimony of the eye-witnesses was not subjected to analysis and criticism so as to discard it against the respondent.
8. We do not agree with the learned counsel that in the circumstances of this case, the respondent could not be acquitted without disbelievng the eye-witnesses. He has been extended only benefit of doubt on the question of the part attributed to him by the prosecution. It does not mean that the eye-witnesses deliberately falsely implicated him. Benefit of doubt has been extended only on account of existence of reasonable possibility and not because of rejection of the testimony of the eyewitnesses as false.
9. ' The impugned judgment shows conscious application of mind to facts of the case including the circumstance that the prosecution case is supported by ocular evidence. The considerations which weighed with the learned Judges are neither irrelevant nor insubstantial. The conditions for setting aside an acquittal are not satisfied in this case. This petition accordingly is dismissed.