ZAHIR KHAN Versus AZAD KHAN Nemo
This criminal appeal challenges the acquittal judgment passed by the trial court in a case involving charges of attempt to commit murder and abduction for Zina. The appellant and his counsel remained persistently absent despite multiple notices, and reports indicated the respondent was untraceable and had migrated abroad. Upon reviewing the evidence, the court observed that the ocular account of the prosecution witnesses contained major inconsistencies and contradictions, with the complainant's deposition differing substantially from the initial FIR. Furthermore, crucial material evidence, including DNA/semen matching reports and recovery of the alleged crime weapon or abductee, did not support the prosecution's case. The court held that the trial court's judgment of acquittal was based on plausible reasons and proper appreciation of evidence, and was neither perverse nor illegal. Consequently, finding no merit in the appeal, the court dismissed it in limine and maintained the acquittal.
- Whether an appeal against acquittal can be dismissed in limine when the appellant and counsel persistently fail to appear?
- Does an acquittal judgment based on plausible reasons and correct appreciation of evidence warrant interference by the appellate court?
- What is the evidentiary value of major contradictions between an initial FIR and the deposition of the complainant during trial?
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
Impugned acquittal judgment has been recorded and pronounced on 19.04.2005, by the learned Additional Sessions Judge/District Qazi Matta, Swat. The appeal has not been admitted as yet and cannot be lingered on for indefinite period. Learned State Counsel by supporting the impugned judgment contended that the same is elaborate, speaking one and does not require interference of this Court.
2. The case has been called time and again but neither the appellant nor his counsel are called in attendance despite issuance of notices. Same was the position earlier on 23.01.2019 and 04.10.2018. It is now 01:20 P.M. Deliberate and wilful absence of the appellant and his counsel since morning shows that perhaps he has lost interest to contest the captioned appeal preferred against the acquittal of the respondent No.1.
3. On institution of appeal, pre-admission notices fallowed by coercive process in shape of BW's/NBW's repeatedly issued against the respondent since almost 10/11 years could not be executed with plausible reasons and cause explained by the process serving agency. In terms of earlier Order dated 23.01.2019 Bakhat Zada, SHO, P.S. Matta, District Swat has appeared and submitted report, stated that respondent Azad Khan is not at all traceable. However, his father namely Sarnazeb Khan and his brother Shrafat Ali got recorded their statements; father of the said respondent stated that respondent is not traceable for last 10/11 years and undertook to produce him before the local police station or the Court as and when available. In this regard, the SHO also recorded the statement of notable of vicinity. Coercive process issued for today, to procure the attendance of respondent No.1 Azad Khan returned unexecuted along with statement of two notable of the locality that respondent Azad Khan had migrated abroad. Anyhow, hectic efforts adopted by the concerned police to arrest the respondent could not be succeeded.
4. Story of the prosecution case as narrated by Zahir Khan the complainant/ appellant in the FIR, lodged on 26.02.2002 is that on eventful day, he went outside of the house in adjacent garden for making call of nature, suddenly some unknown culprits fired upon him with attempt to cause his murder. Bullets of firearm hit on his left hand and back. He lodged report against unknown accused and stated that he was having no enmity with anyone. Lateron, on 13.03.2002 and 09.02.2003 Shazola Khan, Mst. Wala wife of Shazola, Salahuddin son of Shahzola, Khan Bacha son of Sazan Khan, Bakhshad son of Sazan held responsible the respondent Azad Khan for causing injury to the complainant Zahir Khan and they had also nominated him in abduction of Mst. Razia with intention to commit Zina with her. Shazola Khan, father of Mst. Razia had also moved an application to Inspector General of Police, Khyber Pakhtunkhwa, forwarded to DSP, CIA, on the basis of which section 11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had also been added in the FIR. The accused had been arrested. Record reflects that neither Mst. Razia nor any crime weapon had been recovered from the accused/respondent; moreso, the respondent/accused Azad Khan did not admit the commission of offence. To confirm the commission of Zina, sperm of respondent Azad Khan and trouser (Shalwar) of alleged abductee having semen were dispatched to the laboratory; it was reported that the same are not matching.
5. We have considered worthy submissions advanced by the learned counsel representing the State and with his able assistance, the evidence as well as impugned judgment has carefully been perused.
6. Ocular account of prosecution witnesses seems to be inconsistent rather contradictory, as the complainant/PW-1 did not support the contents of the FIR. While narrating a different story in his deposition, the complainant stated that he found the respondent Azad Khan and Mst. Razia while committing Zina outside of his house and as soon as he tried to caught hold the respondent Azad Khan, he made firing upon him and after inflicting bullet injuries to him, by leaving trouser (Shalwar) of Mst. Razia, he made his escape-good along with Mst. Razia and such incident had also witnessed by PW Salahuddin and Zuhaib further stated that the police had not recorded his statement in verbatim and that Mst. Razia could not be recovered. However, in cross-examination, he clarified that it was night incident and he had proceeded to the police station along with Khanzada Wazeer, Bakhshah and Bacha Khan. He had emphatically denied the story as narrated in the FIR. Further stated in cross-examination that he had lodged the report (Exh.PA/1) and before the Court he involved the respondent Azad Khan in commission of offence charged with; further stated that he had seen Mst. Razia undressed; she had gone along with respondent Azad Khan while holding his hand. In the last of cross-examination, he has admitted that the story which he narrated before the Court did not transpire in the FIR.
7. While scanning the remaining material prosecution evidence, it transpires that the deposition of PW-2 Mst. Wala wife of Shazola is hearsay evidence about the incident, disclosed to her by his son PW Salahuddin Khan. PW-3 Salahuddin stated that at 11:00 A.M, on commotion, he along with complainant Zahir Khan went outside of their house and found Mst. Razia and respondent Azad Khan standing there and when complainant tried to catch hold the respondent Azad Khan, he fired upon the complainant. By stating so, PW-3 Salahuddin did not support the contention of the complainant. Evidence of PW-4 Shahzola Khan is also hearsay, as he was informed about the incident by his house imamates. PW-13 Akhtar Ali claiming to be the husband of alleged abductee Mst. Razia, involved the respondent Azad Khan in abduction of Mst. Razia but admitted that he himself had not seen her abduction. PW-16 Noor Ali Khan, DSP had conducted the investigation, stated that the semen obtained from respondent Azad Khan and semen available on trouser (Shalwar) of Mst. Razia were not matching as per report of Center for applied Molecular Biology at Lahore; despite such fact he added the section 11 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the FIR, lodged by the complainant. In cross-examination, he admitted that in her application, PW-4 Shazola involved unknown culprits in making firing, causing injury to complainant and abduction of Mst. Razia. He had also admitted the contradictions in between the application (Exh.PW16/1), FIR and statements recorded under section 164 Cr.P.C; further admitted that during custody of respondent Azad Khan neither he made confession nor abductee or ammunition had been recovered. Stated in cross; that trouser (Shalwar) of Mst. Razia was not recovered from the place of occurrence but it was handed over to him by Mst. Majeena. In the last of cross-examination, investigation officer has admitted that:
8. Suffice it to say that the prosecution has miserably failed to prove charge against the accused/respondent. Impugned judgment is based upon plausible reasons, recorded after scanning and evaluating the evidence adduced by the prosecution. Neither findings of the trial Court are perverse, illegal, leading to miscarriage of justice nor artificial. On the contrary, the impugned judgment is based on correct appreciation of evidence, after reproducing and scanning the prosecution evidence elaborately, therefore, the impugned judgment does not warrant any interference by this Court. The prosecution story consists on different versions, appears to be fabricated after consultation or delibera-tion; more particularly, the investigation officer, DSP Noor Ali Khan did not support the prosecution case/ charge.
Whatever mentioned above, we reached at the irresistible conclusion that the prosecution has failed to prove any case against the respondent. The impugned judgment is hereby maintained. Resultantly, the captioned appeal preferred by the complainant against acquittal of the respondent is dismissed in limine, having no merits for consideration.
JK/18/FSC Appeal dismissed.