ABDUL FATEH vs ALI AHMED and another

FAZAL-UR-REHMAN, J.--This appeal under section 417(2)A, Cr.P.C. By Abdul Fateh is directed against the judgment of learned Sessions Judge (Ad hoc), Quetta dated 31-8-1999 whereby, he acquitted the respondent Ali Ahmed from the charge of section 324, P.P.C. And convicted him under section 337-A(iii), P.P.C.

2. Briefly stated the facts of the case are that on 11-11-1998 one Muhammad Arif lodged a report with Police Station Dalbandin alleging therein that at about 7-30 p.m. When he was going to his house alongwith his friends he saw a person lying in injured condition who disclosed to him that he had been injured by some unknown person by means of fire-arm. During the course of investigation respondent was arrested. It is stated that the respondent was identified in identification prade. After usual investigation the accused was sent up to face his trial under section 324 of the Qisas and Diyat Ordinance read with section 34 while the names of acquitted accused Ghulam Sakhi and absconding accused Nazir Ahmed were placed in column 2 of the challan.

3. On 28-4-1999 charge under section 324/34, P.P.C. Was framed against the respondent and acquitted accused Ghulam Sakhi to which they pleaded not guilty and claimed trial.

4. In support of its case the prosecution examined 9 witnesses. During trial the case was transferred to learned Sessions Judge, ad hoc, Quetta. The accused/respondent denied the allegations against him and pleaded his innocence. He has also made his statement on oath. He has, however, produced no witness.

5. After examining the evidence on record the learned Trial Judge came to the conclusion that the prosecution has not established a case under section 324, P.P.C. But a case under section 337-A(iii)

(i) Shajja Hashimah and sentenced him for a period he remained in custody and Arsh amounting to Rs,10,000 to be paid to the injured.

6. We have heard Mr. Akhtar Zaman, Advocate learned counsel for the appellant and Mr. Noor Muhammad Achakzai, learned Additional Advocate-General for State and Ali Ahmed, Respondent in person. We have also perused the record.

7. The respondent Ali Ahmed after his conviction from the trial Court did not file any appeal challenging his conviction under section 337-A(iii)(i) Shajja Hashimah, therefore, the conviction has attained finality.

8. As far section 324, P.P.C. Is concerned which has not been established against the respondent, he is now equipped with double presumption of innocence. The order of acquittal strengthens the initial presumption of innocence of the accused person, therefore, it can only be interfered by the Court of appeal if it perverse to evidence. Learned Counsel for the appellant has not been able to indicate any evidence which can bring the case within the ambit of section 324, P.P.C. Which position has even not been controverted by the learned counsel for the appellant. Keeping in view the circumstances of the case and the law as laid down while appraising evidence in appeal against acquittal, we decline to interfere with the judgment of the trial Court regarding acquittal of the accused of the charge under section 324, P.P.C.

9. According to section 337-X the Arsh may be made payable in a lump sum or in instalments spread over a period of three years from the date of the final judgment. The respondent may be released on bail if he furnishes security equal to the amount of Arsh to the satisfaction of the trial Court and payment of the said amount in 20 monthly instalments. Consequently, this appeal is dismissed.