Abdur Rehman Zahid Versus State

Muhammad Faheem Wali, J .--- At a trial held by learned Sessions Judge, Haripur in case FIR No. 334 dated 19.05.2016 registered under Section 324 P.P.C read with Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Kot Najibullah District Haripur, accused-respondent namely, Waqar Hussain Shah son of Muhammad Shah, has been acquitted, therefore, the appellant, being aggrieved of the ibid judgment, has filed the instant appeal against his acquittal.

2.As per prosecution story, elucidated in first information report (Ex.PA), on 19.05.2016 at 11:30 hours complainant /appellant namely, Abdur Rehman Zahid (PW-06) while lodging report in injured condition to Ghazi Khan, SI (PW-11) in the emergency Ward of DHQ Hospital Haripur alleged that he and the accused-respondent was having a dispute over property, which was statedly resolved through the local police and possession of the land had been statedly handed over to him. The complainant further averred in the report that the accused-respondent and his sisters were regularly hurling abuses to him, however, on the fateful day at 11:00 hours he was present in his field when in the meanwhile the accused-respondent had opened firing upon him (complainant) from the plot of his (accused-respondent) boundary wall, as a result of which, he sustained injuries on his stomach and right thigh. The occurrence was stated to have also been witnessed by Imran Khan (PW-07), his father namely, Ashiq Hussain and others present at the spot, besides him. Motive for the crime was stated to have been constituted owing to land dispute, hence, the FIR ibid.

3.On conclusion of investigation, challan was submitted before the learned trial court. Formal charge was framed against the accused-respondent, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution produced fifteen (15) witnesses, whereafter accused was examined under Section 342 Cr.P.C, wherein he denied the allegation and professed innocence, however, he neither opted to be examined on oath nor produced evidence in his defence. At the conclusion of trial, learned trial Judge acquitted the accused-respondent vide impugned judgment. Aggrieved from judgment of learned trial court, appellant has filed the instant appeal.

4.I have heard arguments of learned counsel for the parties as well as learned Assistant Advocate General and gone through the record with their valuable assistance.

5.Perusal of record reveals that the complainant while lodging report specifically charged the accused-respondent for attempting at his life. The occurrence was stated to have been witnessed by Muhammad Imran (PW-07) and others present at the spot besides father of the complainant namely, Ashiq Hussain, who died later on, thus, the important witnesses in this case will be the complainant, who appeared in the witness box as PW-06, and Muhammad Imran, who appeared in the witness box as PW-07, therefore, in order to reach at a just conclusion this court deems it appropriate to re-assess the testimonies of both these witnesses.

6.The complainant / appellant (PW-06) while lodging report alleged to have been fired at by the accused-respondent from the boundary wall of his plot and the occurrence was stated to have been witnessed by his father and PW Imran, beside other people present at the spot, however, while appearing in the witness box he almost changed the story by deposing that on the fateful day and time he along with his father and PW Imran were present at their plot, adjacent to the plot of accused-respondent, and meanwhile the accused-respondent had opened firing from the boundary wall of his plot. Besides, when questioned about the date and time of possession of the plot in dispute, he deposed that he did not remember the exact date and time when they got possession of the plot through police. The witness in one line stated that he had moved an application before the police for taking possession of the said plot, while, in the second line he stated that he had moved an application to Deputy Commissioner, however, when asked about production of such application or its photostat copy, he sought sufficient time but could not produce the same so as to affirm that whether the same was addressed to Police or to Deputy Commissioner. Beside other reasons advanced by learned trial court, even the above omissions, makes the case of accused-respondent as doubtful.

7.So far as the ocular account furnished by the other witness namely, Muhammad Imran (PW-07) is concerned, suffice it to say that no doubt during the course of his examination-in-chief he narrated almost the same story as disclosed by the complainant in his initial report, however, during his cross-examination while explaining the reason of his presence at the spot he disclosed that father of the complainant had called him to the place of occurrence to discuss the matter of plotting but the prosecution has failed to bring on record any documentary proof in this respect. Another intriguing aspect of the matter is that this witness though admitted in his cross-examination their sittings with the accused-respondent regarding the plotting many times prior to the occurrence, however, when questioned he had shown his ignorance about Khasra number of the plot etc, which creates reasonable doubt as how it is possible that a person who attended a plot dispute many times but will not be aware of the Khasra number of that plot. The witness further twisted the story by deposing that it had wrongly been mentioned in his statement that firing was made by the accused, if so then how he could be charged for firing at the complainant. For the first time this witness stated that the injured was shifted to hospital in a Rickshaw as this fact was neither mentioned by the complainant in his report nor in his court statement. Furthermore, he also stated that injured was in his lap when he was being shifted to the hospital and his clothes were smeared with blood but when asked about handing over of his clothes to the I.O, his reply was in negative, meaning thereby that his clothes were not smeared with blood, otherwise the I.O might have taken into possession the same. The ibid glaring omissions and contradictions as well as exaggeration also makes his presence doubtful at the crime spot.

8.So far as recovery of crime weapon i.e 12 bore shotgun allegedly recovered at the pointation of accused-respondent and its positive report by the FSL are concerned, suffice it to say that the crime empty of 12-bore was allegedly recovered from the spot on 19.05.2016 while weapon of offence i.e 12-bore rifle was statedly recovered on 15.02.2017 and both these articles were sent to FSL jointly on 17.02.2017, thus, in view of the dictum laid down by Hon'ble Supreme Court of Pakistan in the case of "Muhammad Amin v. State" reported as 2019 SCMR 2057 the positive report of such belated recovery and its delayed sending to FSL lost its efficacy and, thus, have rightly been disbelieved by the learned trial court.

9.Apart from the above, as the complainant / appellant was already in strained relations with the accused-respondent, thus, in our society implicating an enemy with mala fide intention cannot be ruled out of consideration. Although the prosecution has tried its level best to prove the charge against the accused-respondent by producing sufficient evidence, but keeping in view the above discussed glaring omissions and contradictions the learned trial court while acquitting the accused-respondent has committed no illegality or irregularity, calling for interference of this court.

10.For what has been discussed above, this court feels no hesitation to hold that the learned trial court has rightly acquitted the accused-respondent, to which no exception could be taken by this court. Resultantly, this appeal, being bereft of any merit, is hereby dismissed.

JK/135/P Appeal dismissed.