Saleem Khan vs State and others
This matter arises from criminal petitions seeking leave to appeal against the judgments of the Peshawar High Court upholding the acquittal of the respondents accused of the murder of Ajmal Khan. The core legal question concerns whether the High Court erred in acquitting the respondents based on evidentiary discrepancies, including the failure to produce an injured eye-witness, contradictions between the medical report showing charring and the ocular account, and the implausibility of the purported eye-witnesses escaping uninjured despite the alleged motive. The Supreme Court held that the reasons advanced by the High Court for acquittal were sound and well-supported by the record, as the non-production of the injured witness and the glaring medical contradictions cast serious doubt on the prosecution case. The Court laid down the principle that concurrent findings of acquittal based on sound appreciation of evidence and material discrepancies in the prosecution case shall not be interfered with, and accordingly declined leave to appeal and dismissed the petitions.
- Whether leave to appeal against acquittal can be granted when the prosecution fails to produce a material injured eye-witness?
- Does a contradiction between the medical report showing charring and the ocular testimony warrant the acquittal of the accused?
- Whether concurrent findings of acquittal by the courts below are liable to be interfered with in the absence of misreading or non-reading of evidence?
ORDER
Qazi Faez Isa, J.--Ajmal Khan was murdered on 6th September , 2007 and in respect of his murder three persons were nominated, namely , Pasand Khan, Rad Ali and Khair Dil alias Raidal. Pasand Khan was arrested and tried first, and he was convicted by the learned Additional Sessions Judge, however , the appeal against his conviction was allowed by a learned Division Bench of the Peshawar High Court and he was acquitted vide judgment dated 4th February , 2011 (which is the subject of Criminal Petition No. 18-P/201 1). The other two accused, namely , Rad Ali and Khair Dil alias Raidal were tried separately after their arrest and both were acquitted by the learned Additional Sessions Judge and their acquittal was maintained in appeal by the High Court through judgment dated 12th June, 2014 (which is the subject of Criminal Petition No. 74-P/2014).
2. A number of reasons prevailed with the learned Judges in acquitting the respondents. The person who had been injured by receiving a bullet injury in the same incident, and thus establishing his presence at the crime scene and as an eye-witness, namely , Hamesh Gul, did not come forward to testify nor was summoned to do so, despite the fact that he was known and a resident of the same village in which the complainant resided, which cast a serious doubt on the prosecution case. Another ground which had prevailed with the learned Judges was that the medical report stated that the bullet injuries on the deceased showed charring of the woun ds, suggesting that he was shot at from a close range, whereas the ocular account narrated by the purported eye-witnesses contradicted this.
Moreover , the motive put forward by the Prosecution was also attracted to the purported eye-witnesses, but surprisingly they did not receive a single injury at the hands of any of the three assailants, which would further suggest that they were not present at the crime scene. The learned counsel for the complainant was not able to show that these points were contrary to the record to be able to succeed in setting aside the two impugned judgments acquitting the respondents. Consequently , leave to appeal is declined and these petition's are dismissed.