2015 P Cr. L J 465
[Balochistan]
Before Muhammad Noor Meskanzai and Mu hammad Kamran Khan Mulakhail, JJ
ROZI KHAN---Appellant
Versus
MUHAMMAD ASIF and another---Respondents
Criminal Acquittal Appeal No. 12 of 2014, decided on 30th June, 2014.
Penal Code (XLV of 1860)---
----Ss. 337-A(ii), 337-F(i)(ii) & 34---Criminal Procedure Code (V of 1898), S. 417(2-A)---
Causing Shajjah-i-Mudihah, Damiyah, Badiah and common intention---Appeal against acquittal-
--Reappraisal of evidence---Accused and his real brother, were nominated towards commission of the offence; and allegation of offence under S. 34, P.P.C. was also levelled against them to
establish the factum of sharing common intenti on---Testimony of injured witnesses, when read
in conjunction with medical evidence, however, altogether portrayed a different picture in
respect of the occurrence---Glaring contradict ion existed between the ocular and medical
testimony---Accused, could not be held responsible for causing injuries, or the occurrence had not been stated in the manner, as it was committed---Sufficient doubt was created in respect of
affixing the vicarious liability of injuries caused to the complainant---Principle of "falsus in uno
falsus in omnibus", which was part of the Eng lish Law, was not recognized by the criminal legal
system of Pakistan, due to comple xities of tribal system in the society, as possi bility of false
implication could not be ruled out---Accused would carry double presum ption of innocence in
case of acquittal; first one, which contemplated that accused was presumed to be innocent till
proved guilty and secondly after securing the acqui ttal, he would acquire legal vested right
beyond the presumptions, because after a complete trial, court would reach to the conclusion,
and would acquit accused---Courts were normally reluctant to interfere with the verdict of acquittal, unless it was proved on record that the verdict of acquittal was perverse, artificial, fanciful, fictitious or based upon no n-reading of evidence, particul arly, or if the acquittal was
rendered against the settled law---Impugned judg ment, whereby accused was acquitted of the
charge, was unexceptional, and di d not warrant any interference.
Muhammad Usman Yousafzai for Appellant.
Date of hearing: 12th June, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This Criminal Acquittal Appeal is
directed against the judgme nt dated 19-12-2013 ("impugned judgment") passed by the learned
Sessions Judge (Ad hoc) Quetta ("trial Court"), whereby the respondent was acquitted of the
charge.
2. Precisely the facts of the case are that the complainant Rozi Khan ("appellant") lodged an FIR
No.19 of 2011 under sections 324 and 34, of the Pakistan Penal Code, 1860 ("P.P.C.") with
Levies Thana Hanna, averring therein that on 19-7-2011 at 6-30 a.m., accused Muhammad Arif, while quarreling with his younger brother made firi ng upon him with his o fficial pistol, which
resulted into causing injury to his younger brother, whereas accused Muhammad Asif
("respondent") also assau lted the complainant and hi s brother with a knife.
3. After registration of the FIR the challan of the case was submitted before the learned trial
Court. Thereafter, charge was framed against th e respondents and read over to them to which
they did not plead guilty and claimed trial. The pr osecution in order to s ubstantiate the charge
against them produced as many as six witnesses. On completion of the prosecution's evidence,
respondents were examined under section 342, Cr.P .C, wherein they once again professed their
innocence but did not opt to enter in their defense nor produced a ny defense witness. The learned
trial court on conclusion of the trial acquitted the respondent viz. M uhammad Asif by extending
benefit of doubt in his favour, whereas the co-accused Muhammad Arif was convicted and
sentenced in the following terms:--
"The injuries to victim Rozi Khan were decl ared to be Shajjah-i-Mudihah and Jurh Ghyar
jaifah Damiyah, the accused Muhammad Arif is thus convicted under section 337-A(ii)
and sentenced to imprisonment for 2 years and Harsh (sic.) of Rs.5,000. He has furthed
(sic.) been convicted under section 337-F(i) and sentence R.I. for 6 months and Daman of
Rs.5,000. The injuries to victim Naseem has been declared Jurh Ghyr-mutalahima,
therefore, the accused Muhammad Arif is also convicted under section 337-F(ii) and
sentenced for imprisonment of one (1) year and Daman of Rs.10,000. The amount of
Ursh and Daman shall be paid to th e victim Rozi Khan and Naseem."
4. Mr. Muhammad Usman Yousafzai, learned counsel for the appellant conte nded that the ocular
evidence is fully corroborated by the medical and circumstantial evidence, which was sufficient
to prove the charge against respondent No.1 but the learned court has acquitted him by
misreading and non-reading of the evidence availa ble on record. He contended that all the
prosecution witnesses have nomin ated respondent No.1 with a specific role and there is no
contradiction whatsoever in their statements and medical evidence, therefore, there was no
occasion for the learned trial court to acquit the re spondent of the charge, despite the fact that on
basis of same evidence the principal accused Mu hammad Arif was convicted. He added that the
blood stained clothes and empties of the crime we re recovered from the place of occurrence. The
promptly lodged FIR and statements of witne sses recorded under section 161, Cr.P.C. followed
by their deposition on oath before the court lead towards the guilt of the acquitted respondent. He
maintained that the respondent a nd convicted accused are real br others, therefore, question of
sharing common intention cannot be ruled out, which has wrongly di sbelieved on basis of flimsy
benefit of doubt. He finally urge d for setting aside the impugned judgment up to the extent of
acquittal of the respondent and prayed for reco rding conviction against him in the same manner
as recorded against the principal accused.
5. We have heard the learned c ounsel and also gone through the record. The peru sal of record
shows that respondent and his real brother i. e. principal accused were nominated towards
commission of the offence and section 34, P.P.C. was also levelled against them to establish the
factum of sharing common intention but the te stimony of injured witnesses, when read in
conjunction with medical evidence, the same altoge ther portrays a different picture in respect of
the occurrence, whereas the appellant in hi s court statement stated as follows:--
Now, when adverting to the medical evidence a nd the deposition of P.W .7 viz Dr. Ali Mardan,
the Medico-Legal Officer of the Sandeman Pr ovincial Hospital, Quetta, who produced the
Medico Legal Certificate ("MLC") as Exh.P/7-A wherein the alleged injuries caused to the
appellant states as follows:--
"(i) Lacerated wound on occipital regi on of head size 6 cm bone exposed.
(ii) Lacerated wound on right elbow joint 3 cm bone exposed
(iii) Bruise on back of chest 7 cm.
(iv) Entrance of bullet on ante rior side of right thigh.
(v) Entrance of bullet on lateral si de of left thing (sic) (thigh)"
The Medico-Legal Officer opined that he had no ted a lacerated wound on the person of injured
appellant on his occipital region of head size 6 cm bone exposed (without explaining the right or
left side) and another lacerated wound on right el bow joint with 3 cm bone exposed. The relevant
part of ocular testimony as reproduc ed herein above states that th e said injuries were caused by
means of knife. The glaring c ontradiction between the ocular and medical testimony can be
noted, that the principles of Medical Jurisprudence do not s upport the narration that how the
allegedly used knife could cause lacerated wound instead of incised wound. In order to better
understand the controversy, it would be advantag eous to reproduce the de finition of lacerated
and incised wounds as provided at pages Nos. 416 and 426 in th e "Principle and Practice of
Medical Jurisprudence a nd Toxicology" authored by the renowned jurists Mr. Manoj H. Parekh
and S. P. Singh Parmer, 2008 Edition publishe d by DWIVEDI & Company Allahabad India,
which states as follows:--
"Lacerated wounds:
Lacerated wounds are tears or splits produced by blows from blunt objects and missiles, by
violent falls on hard projecting surfaces, by machinery and railway accidents, by the wheels of a
vehicle causing a grinding compression by their we ight resulting in a vulsion of the skin."
Incised wounds: An incised wound is produced by sharp cutting instru ment such as a knife, razor, scissors, sword,
Gandasa (chopper), axe, hatchet, scythe, kookri or any object such as a broken piece of glass or
metal which has a sharp cutting pointed or linear edge and are mostly intentionally inflicted. The
cutting edge of a knife may be completely or pa rtly sharp and party blunt and the other edge may
blunt, serrated scalloped or hollow, all thes e variations effect the shape of wound."
Therefore, keeping in view the referred to defi nition and well settled principles of the medical
jurisprudence, the respondent Muhammad Asif cannot be held re sponsible for causing the said
injuries or the occurrence has not been stated in the manner, as it was committed. The sufficient
doubt was created in respect of affixing the vicarious liability of injuries caused to the appellant.
The principle of "Falsus in Uno Falsus in Omnibus " is a part of the English law, which is not
recognized by the Criminal Legal System of our coun try, due to complexities of tribal system in
our society the possibility of false implication ca nnot be ruled out, theref ore, the Hon'ble apex
Court when dealing with such an ambiguous eviden ce has held that "it is not necessary that the
injured witness is always telling the whole truth" th erefore, principles of 'Falsus in Uno Falsus in
Omnibus' has not been approved for reliance and r ecording the conviction on basis of such type
of evidence.
6. The Hon'ble apex Court has also laid down cert ain principles, while d ealing with the appeals
against acquittals; therefore, k eeping in view the principle of benefit of doubt as derived from
Islamic Jurisprudence of Criminal Justice System, it has been held that in case of acquittal the
respondent/accused carries double pr esumption of innocence. The first one, which contemplates
that accused is presumed to be innocent ti ll proven guilty and secondly after securing the
acquittal, he acquires a legal vest ed right beyond the presumptions because after a complete trial
the court reaches to the conclusi on and acquits the a ccused. Thus, on basi s of said analogy the
courts are normally reluctant to interfere with the verdict of acquitt al unless it is proved on
record that the verdict of acquitt al is perverse, artifi cial, fanciful, ficti tious or based upon non-
reading and misreading of eviden ce, particularly or if the ac quittal was rendered against the
dictum laid down by the Hon'ble apex Court.
Thus, in view of the above discussion we ar e of the considered view that the impugned
judgment, whereby the respondent was acquitted of the charge is unexceptional and does not
warrant any interference by this court.
Therefore, the appeal is dismissed in limine.
HBT/12/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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