Gul Zarin and others vs Fazal Khaliq and another
The matter arises from a petition assailing the acquittal of the respondent by the Peshawar High Court vide judgment dated 03.05.2014, which overturned his conviction for murderous assault and two counts of homicide recorded by the trial court on 10.10.2011. The core legal question revolves around whether the High Court was justified in acquitting the respondent despite ocular testimony, an injured witness, a dying declaration, and evidence of absconsion, notwithstanding the absence of an autopsy due to local custom. Granting leave to appeal, the Supreme Court held that the peculiar facts and circumstances of the case warranted a reappraisal of the prosecution evidence to prevent a miscarriage of justice. The key principle laid down is that where an appellate acquittal relies on artificial and illusory reasoning overlooking strong circumstantial and direct evidence including dying declarations and injured witnesses, the Supreme Court will grant leave for reappraisal of evidence.
- Whether the High Court was justified in acquitting the respondent in the face of an injured witness and a dying declaration?
- Does the non-performance of an autopsy due to local custom adversely affect the prosecution case where homicidal death is undisputed?
- Whether the acquittal based on artificial and illusory reasoning warrants interference and reappraisal of evidence by the Supreme Court?
ORDER
1. QAZI MUHAMMAD AMIN AHMED, J.--- Respondent was tried for murderous assault as well as on two counts of homicide by a learned Additional Sessio ns Judge at Wari, District Dir Upper; convicted on all counts, he was sentenced to imprisonment for life and ten years rigorous imprisonment respectively vide judgment dated 10.10.201 1, overturned by a Division Bench of Peshawar High Court, Mingora Bench vide impugned judgment dated 03.05.2014, vires whereof, are being assailed on the grounds that in the face of overwhelming evidence comprising of witnesses that included an injured to support a dying declaration, there was no occasion for the High Court to acquit the respondent, blamed alongside the absconding co-accused for the crime in the backdrop of a motive over immovable property , resulting into the loss of two lives; he has referred to respondent's return after absconsion, spreading over a quarter of a century with his accomplices still away from law, to finally earn acquittal.
2. The learned counsel has further argued that non-performance of autopsy on the dead, being a practice in line with local custom did not adversely reflect upon the prosecution case inasmuch as the homicidal deaths of both the deceased remained a common ground throughout; according to him, the impugned view being based upon reasons, artificial and illusory , is untenable at law and, thus, tends to result into miscarriage of justice, clamouring interference by this Court.
3. Though much water has flown under the bridge, nonetheless, the peculiar facts and circumstances of the case, despite flux of time, call for reappraisal of prosecution's evidence to secure the ends of justice. Leave is granted, inter alia, to consider the above contentions. Send for the respondent through bailable warrant in the sum of Rs.200,000/- with one surety in the like amount, returnable to the Assistant Registrar of this Court at Peshawar , to be executed through the Station House Of ficer, within a fortnight.