WALI ASGHAR Versus ABDUL QUDOOS
This petition for leave to appeal arises from an order passed by the Peshawar High Court acquitting respondent No.1 of a murder charge under section 302 of the Pakistan Penal Code. The prosecution alleged that the respondent, along with another, fired at and killed the deceased, Jalal Khan. The trial court convicted the respondent, but the High Court set aside the conviction, giving the respondent the benefit of the doubt due to material discrepancies in the statements of prosecution witnesses and the lack of reliable corroborating evidence. The core legal question before the Supreme Court was whether the High Court's evaluation of the evidence and its order of acquittal suffered from perversity, arbitrariness, or illegality warranting interference. The Supreme Court held that the view taken by the High Court regarding the evidence was not perverse or arbitrary, and no illegality or violation of established principles of evidence appraisement was pointed out. Consequently, the Supreme Court dismissed the petition, affirming the principle that an order of acquittal will not be lightly interfered with unless the appreciation of evidence is wholly unreasonable.
- Whether an appellate court's order of acquittal based on the benefit of the doubt warrants interference by the Supreme Court when the view taken of the evidence is not perverse or arbitrary?
- Does the presence of material discrepancies in the testimony of eyewitnesses justify setting aside a conviction in a murder trial?
- Is the Supreme Court inclined to interfere with an order of acquittal in the absence of any illegality or violation of established principles of appraising evidence?
- Section 302, Pakistan Penal Code
- Section 544-A, Code of Criminal Procedure 1898
ORDER
1. NASIM HASAN SHAH, J. ‑‑This petition is directed against the order passed by a division Bench of the Peshawar High Court in Criminal Appeal No.17 of 1981 on 21‑6‑1981 ordering the acquittal of respondent No.1 herein.
2. According to the case of the prosecution, Hazrat Noor P.W.7 was returning from the bazar after making household purchases and going towards the village alongwith his father (Jalal Khan) when Abdul Qudoos (respondent No.1 herein) alongwith Abdul Hamid (who was acquitted by the trial Court) emerged from a culvert of a Barani Nullah, armed with 'Topaks'. They fired at Jalal Khan who was hit by the shot fired by Abdul Qudoos, as a result whereof Jalal Khan was killed. The incident was witnessed besides Hazrat Noor P.W.7 by Sardar Khan P.W.8 and Munawwar Khan P.W.9. Abdul Qudoos respondent was found guilty by the trial Court and convicted under section 302, P.P.C. by its order, dated 12‑1‑1981 and sentenced to imprisonment for life and also ordered to pay Rs.5,000 as compensation to the heirs of the deceased, under section 544‑A, Cr.P.C.
3. On the appeal filed by the said respondent against his conviction and sentence the Peshawar High Court, however, gave him the benefit of doubt and ordered his acquittal vide judgment, dated 21‑6‑1981 whereby the order of the learned trial Court was set aside. Hence this petition for leave to appeal whereby the said order of acquittal is challenged.
4. The reasons given by the High Court for accepting the appeal of respondent No.1 and acquitting him are set out in the judgment as follows: ‑
5. "Hazrat Noor P.W.7, who claims to be an eye‑witness, has not been able to show the purpose for which he had accompanied his father except that he stated that he had gone with the deceased for making purchases, but the I.O. to a question stated that none of the articles purchased by the deceased were produced to him, nor he found any lying on the spot. In cross‑examination he admitted that his house is three furlongs 10 away from the Bazar of Togh Bala; that in the morning the deceased offered his morning prayers after they have taken simple tea and thereafter he went to his field and had no knowledge whether the deceased had taken break fast later on or not; that he has not been able to say how he again met the deceased when he had gone to his field for work. While in his cross‑examination he stated that he and the deceased both left together for making purchases at Togh Bala at about 9‑30a.m. It is also admitted that the occurrence took place near the Bazar but no independent witness is coming forward to support the prosecution case. Similarly, Sardar Khan and Munawar Khan's statements would show that they had gone about sunrise time to the Bazar in the month of January when hardly any shop would be open. Their presence in the Bazar till the time of occurrence also requires cogent reasons which they have not been able to furnish. As already we have referred to the statement of Hakeem Khan P.W.3 who stated that the deceased was taken to the P.S. where he identified the dead body at 3‑00 p.m. and thereafter he accompanied the body to the mortuary and Ilam Nawaz F.C. has also stated so. ? Thus, it belies the statement of I.O Said Abbas P.W.11. As such, we find that there are material discrepancies in the statements of the prosecution witnesses.
6. ???????????????????????
7. ??????????????????????? The net result of the above discussion is that the prosecution has failed to bring home the charges to the appellant beyond a reasonable doubt. Thus, accepting this appeal we set aside his conviction and acquit Abdul Qudoos appellant.
8. ???????????????????????
9. ??????????? We have heard Mr. M. Tariq Jamal, Learned counsel for the petitioner, in support of this petition for leave and Mian M. Ajmal, Assistant Advocate General, N.-W.F.P, on behalf of the state.
10. After having heard both the learned counsel, it cannot be said that the view taken by the learned Judges of the evidence and other circumstances of the case is so perverse and arbitrary that no reasonable or prudent person could take such a view. On the other ? hand, no illegality or even a violation of any established principle of appraisement of evidence in criminal cases has been pointed out. This is not therefore, a fit case for interference especially as the reversal of an order of acquittal is sought herein.
11. The upshot is that this petition fails and is dismissed hereby.
12. M.I./W‑20/S ?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.