RAHAM DIAZ Versus State
ASSADULLAH KHAN CHAMKANI, J.--- This appeal is directed against the judgment/order dated 08.09.2012, passed by learned Additional Sessions Judge Takht-e-Nasrati, Karak whereby invoking the provisions of section 265-K, Cr.P.C., he acquitted respondent/accused Sultan Farid of the charge levelled against him in case FIR No.190, dated 22.11.2005, registered under sections 324/34, P.P.C. at Police Station Takht-e-Nasrati Karak.
2. The prosecution case as unfolded in the FIR is that on 22.11.2005 at about 0750 hours, Raham Diyaz complainant, reported to local police, in injured condition, that on the fateful day he was cutting reeds in the field near his house while his father was standing near him, when in the meantime, Abdul Ghafoor, Wisal Farooq and Farid Sultan, duly armed with Topaks came there, out of whom, accused Abdul Ghafoor commanded to kill, as a result, co-accused Wisal Farooq and accused/respondent Farid Sultan opened fire at him. Resultantly, he was hit with the fire shots of Farid Sultan. After the occurrence, the accused decamped from the spot. Motive behind the occurrence is stated to be a previous blood feud.
3. Initially challan was submitted against co-accused Abdul Ghafoor and Wisal Farooq, who were, later on, acquitted on the basis of compromise by the trial Court vide order dated 01.10.2007. On arrest of the accused/respondent and completion of investigation, challan was submitted against him before the trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. In order to prove the guilt of respondent/accused, prosecution examined as many as nine witnesses and in the meantime, application under section 265-K, Cr.P.C. was filed by the respondent/accused for his acquittal. The learned trial Court, after hearing both sides, accepted the application and by invoking the provisions of section 265-K, Cr.P.C. acquitted the respondent-accused. Hence, this appeal.
4. Learned counsel for the appellant argued that the accused/respondent is directly charged for effective firing on the complainant in a day light occurrence and he has proved his stance by producing cogent and confidence inspiring evidence corroborated by medical and circumstantial evidence; that some nine PWs had been examined and only one PW was yet to be examined, but the learned trial Court haphazardly over sighting this aspect of the case, by invoking the provisions of section 265-K, Cr.P.C. acquitted the respondent-accused, which order is against the law and the principles of criminal administration of justice, hence, is liable to be reversed.
5. Conversely, learned counsel for the respondent/accused argued that material evidence of the prosecution has already been recorded on the basis of which the prosecution has failed to bring home the guilt of the respondent/accused, therefore, recording of statement Khan Malook the only left over PW, whose evidence is formal in nature, would serve no useful purpose for the prosecution, as such the learned trial Court has rightly acquitted the respondent/accused by invoking the provisions of section 265-K, Cr.P.C. which empowers the trial Court to acquit the accused at any stage of the proceedings, if the Court considers that there is no probability of accused being convicted of the offence, hence, sought dismissal of the instant appeal.
6. I have heard the arguments of the learned counsel for the parties and have perused the record with their valuable assistance.
7. It appears from the contents of FIR that the role of effective firing with .12 bore double barrel weapon has been attributed to respondent/accused. The site plan Exh.PB has been prepared on the pointation of the injured complainant wherein the presence of respondent/accused has been shown at point No.3 while the complainant-injured has been shown at point No.1. The distance inter-se the two points has been given 70 paces which come to more than 140 feet. Medical Officer Zafrullah (PW.2), while examining the injured complainant, observed two entrance wounds of 1/4 " x 1/4" on back of left thigh and left side pubic area and two exit wounds of 1/3" 1/3" on the person of the injured. The weapon allegedly assigned to respondent/accused and used in the commission of offence is .12 bore shot gun. According to Modi's Medical Jurisprudence and Toxicology at a distance of twelve feet the charge of shot spread widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter, but without causing blackening, scorching or tattooing of the surrounding skin. This scattering of shot depends upon the size of the gun, the load/charge, of the gun powder, the distance of the gun from the body and location of the wound. As the distance increases, the damage caused by single pellet diminishes, until at about 30 feet, it is only capable of penetrating the clothes and skin of the victim and even he would need no surgery or stay in the hospital. A shot gun is not like a rifle or pistol. Its fires shell contain several small round projectiles, called shot. At a distance of more than 50 feet the pellet would not likely embed in skin and muscles. Thus, keeping in juxtaposition, the reference and observation in the Modi's Jurisprudence, with the distance of 70 paces much more than 50 feet inter-se the accused/respondent and the complainant as well as the weapon i.e. .12 bore shot gun, penetration of pellets in the body of the victim‑complainant does not appeal to mind, which cast serious doubt in the prosecution case.
8. Injured complainant has been examined as PW.9. In his examination in chief he reiterated the contents of his report. In his cross-examination he deposed that accused/respondent Farid Sultan had fired two shots with which he was hit. He has charged three accused in his initial report, out of whom .12 bore shot gun has specifically been attributed to respondent-accused to have used the same in commission of the offence. The other two accused, already acquitted on the basis of compromise have not been assigned .12 bore shot gun. It appears from the record that two kinds of empties have been recovered from the spot i.e. 7.62 bore and .12 bore shot gun, which have been sent to the FSL for chemical analysis. This stance of the complainant is contradicted by the FSL report, according to which the .12 bore empties have been fired from different weapons. This aspect of the case also create serious doubt about the veracity and credibility of the victim complainant. Moreso, previous enmity has been alleged by the complainant with the accused. At the time and place of incident the presence of father of the complainant has also been shown but he has not been made target by the accused, which seems very strange because keeping in view the norms of the society particularly in this part of the country, the assailants in such circumstances would hardly take a risk to spare such close relation of the victim so as to stand witness against them.
9. True that in hurt cases, statement of injured witnesses, supported by medical evidence, is sufficient for recording conviction, provided it rings true and is trustworthy, in view of its intrinsic worth. Mere stamp of injuries on the person of a witness would not be a proof of the fact that whatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught. Absolute certainty is seldom in forming an opinion qua guilt or innocence of a person. The Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party. It is an often quoted phrase regarding appreciation of evidence substantially in criminal justice that man may tell lie but the circumstances will never. Thus, every human narration is always susceptible to be checked on the touchstone of circumstances as well as with reference to a normal human conduct. In the present case the ocular account furnished by injured complainant is inconsistent and incompatible with other circumstances of the occurrence.
10. As regard the argument of learned counsel for the appellant that the learned trial Court ought to have recorded the evidence before passing the impugned order, section 265-K, Cr.P.C. does not express terms lay down any condition for recording statements of all or any of the specific PWs as witnesses. It only refers to the hearing of the accused and the prosecutor. By enacting sections 249-A and 265-K, Cr.P.C. the legislature in its wisdom has not left the question of recording evidence as a condition before taking action under either of the provisions. Expression "at any stage of the case" used in both the provisions is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance, or it could be a middle stage after taking cognizance, or it could be a middle stage after recording some proceedings and/or even, it could be later stage as well. Reference can be made to case titled, "Muhammad Sharif v. The State" (PLD 1999 SC 1063) . While dilating upon the mandates of section 249-A, Cr.P.C. which is identical to section 265-K, Cr.P.C. the honourable apex Court in case titled, Zahoor ud Din v. Khushi Muhammad and 6 others" (1998 SCMR 1840) , observed the following:-
"We approve the views taken by the various High Courts on the true scope of section 249-A, Cr.P.C., that there is no impediment in the way of the Trial Court to acquit the accused at any stage of the case after or prior to the framing of charge. Towards this end, the Trial Court is free to look into the police papers, other material and the legal aspect of the case as is the case in hand. The exercise of this power is, however, subject to the conditions (i) that the Trial Court should afford an opportunity to the Prosecutor, and in a complaint case, to the complainant, before recording an order of acquittal (ii) that the Magistrate, for reasons to be recorded, considers that "the charge against the accused is groundless" or that "there is no probability of the accused being convicted of any offence". The learned trial Judge in the instant case has being of the opinion that by making a sole, offence of cheating is not made out and that the Corporation has to seek its remedy of demolition under section 274 of the Act if any building has been erected on the area. The learned trial Judge further held in paras. 18 and 19 that on the basis of facts no offence of cheating or forgery has been made out and that there is no "probability of the accused being convicted of any offence". The other conditions laid down above were also satisfied before recording the order of acquittal of the respondents under section 249-A.
11. From the bare reading of section 265-K, Cr.P.C. and deriving wisdom from the judgments of the apex Court, it can be safely held that the Court has ample power to acquit accused even if the witnesses are not examined. Provisions of section 265-K, Cr.P.C. are meant to prevent the rigours of a prolonged trial when it is apparent from the record whether there is no probability of the accused being convicted of the offence. Burden of proof is on the prosecution and where evidence available with it, if at all be accepted, the same would not be able to establish the charge against the accused in the light of required standard of law, record of further evidence would waste public time and serve no public interest rather on the contrary such futile exercise would prove to be further scandalous to the accused person, who equally deserve justice and fair treatment in all respect.
12. Thus, taking the case in hand at the touch stone of the above mentioned principles, the material evidence of the prosecution has been recorded which is shaky, scanty, full of material contradictions and discrepancies, thus, in the circumstances, the learned trial Court was justified to acquit the respondent-accused by invoking the provisions of section 265-K, Cr.P.C. to which no exception can be taken.
13. It is well settled principle that after earning acquittal, the accused has double presumption of innocence at his credit and until and unless obtrusive mistake has been committed by the learned trial Court, apparent on the record, the same should not be interfered. There is no glaring mistake or misreading or non-reading of evidence committed by the learned trial Court floating on the record, compelling this Court to interfere in the impugned order. Learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned order which may warrant interference by this Court in its appellate jurisdiction. Resultantly, this appeal being without any substance stands dismissed.
HBT/152/P Appeal dismissed.