1/8/24, 3:09 PM 2023 P Cr

2023 P Cr. L J 693

[Peshawar]
Before Abdul Shakoor and Shakeel Ahmad, JJ
JUMA KHAN---Appellant
Versus
ZARIF and another---Respondents
Criminal Appeal No. 144-P of 2022, decided on 19th September, 2022.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 311, 353, 109 & 34---Criminal Procedure Code (V of 1898), S.265-k---
Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd,
assault or criminal force to deter public servant from discharge of his duty,
abetment, common intention---Power of court to acquit accused at any stage---
Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused
was charged for committing murder of the son of complainant by firing at the
behest of co-accused persons---Motive as set out in the crime report was that sister
of accused had come after his deceased son to contract marriage with deceased---
Record showed that in the crime report lodged at the instance of complainant, it
was alleged by him that murder of his son was committed by the accused at the
behest of his co-accused persons---On the face of the record, it was found that the
prosecution had not placed on record any evidence to prove or show that the
accused/respondent, who was not present on the crime scene, aided, abetted or
facilitated the principal accused in his act of committing the crime, except, the oral
allegation of the complainant party, however, that allegation was not based on legal
evidence, but, was based upon presumption---Prosecution was duty bound to bring
on record some tangible material to connect the accused/respondent reasonably
with the offence of abetment---Law did not allow to presume anything in favour of
the prosecution in the absence of any legal and conclusive evidence in support of
the charge levelled against him---Abetment could be committed only when there
was positive evidence of either instigation or conspiracy or intentional aid---If none
of those three elements were available, then abetment did not stand proven---In the
present case, mere bald allegation was not sufficient evidence to prove the fact that
the accused/respondent either abeted or conspired or intentionally aided in the
crime---Hence, the elements of abetment or instigation as contemplated in S. 109,
P.P.C., was lacking---Even otherwise, the principal accused who was charged for
committing murder of the son of the complainant had already been acquitted on the
basis of compromise and nothing would be achieved, if accused/respondent was put
to a full dressed trial---Circumstances established that no illegality, irregularity or
jurisdictional defect was found in the impugned judgment, calling for interference--
-Appeal against acquittal being bereft of merits was dismissed in limine.
(b) Criminal Procedure Code (V of 1898)---
----S. 265-K---Power of court to acquit accused at any stage---Scope---Court had
got ample power to acquit the accused even if witnesses were not examined---

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Provisions of S. 265-K, Cr.P.C., were meant to prevent the rigorous of a protracted

trial, if it was apparent from the record that there was no probability of the accused
being convicted of the offence and further proceedings if allowed to continue
would be an abuse of the process of the court.
Mubarak Zeb for Appellant.
Malik Akhtar Hussain, A.A.G. for the State.
Date of hearing: 19th September, 2022.
JUDGMENT
SHAKEEL AHMAD, J.---The complainant being aggrieved by the judgment
dated 06th March 2019 of the learned Sessions Judge, Charsadda in Sessions Case
No. 134/SC, whereby the accused/ respondent was acquitted under section 265-K,
Cr.P.C, has preferred this appeal, on the following facts and grounds.
2. The complainant, who is father of the deceased namely Muhammad Ayaz
lodged a report to Sajeed Gul Khan ASI on the crime scene, alleging that his son
Muhammad Ayaz had been brought in custody from District Jail, Mardan for
producing him in the Court of Tehsil Tangi. He and his son Yousaf had come there
to see him. The police took him out of judicial lock of the Courts in their presence
and were taking him to the judicial Magistrate, when they reached to the spot, in
the meanwhile, accused Aziz-ur-Rehman son of Ghani-ur-Rehman took out his
pistol and fired at him due to which he was hit and died on the spot. The accused
Aziz-ur-Rehman was arrested by the police along with weapon of offence, on the
spot. It was alleged by him that accused Aziz-ur-Rehman has committed murder of
his son at the behest of Nawaz son of Gulab resident of Sra Shah and Zareef son of
Imtiaz Khan resident of Berlin. The motive as set out in the crime report is that
sister of accused Aziz-ur-Rehman had come after his deceased son to contract
marriage with him. Besides him, the occurrence was witnessed by his son namely
Yousaf and police party present on the spot, hence, the ibid FIR.
3. After arrest, the accused/respondent was put to trial. He was acquitted under
section 265-K, Cr.P.C. by the learned trial court vide impugned judgment dated
15.12.2021. Being aggrieved of the same, the appellant/complainant has preferred
the instant appeal.
4. It was argued by the learned counsel for the appellant that the accused has
been acquitted under section 265-K, Cr.P.C. before framing of the charge that too
without affording the complainant party to prove its case through evidence. He next
contended that the principal accused was acquitted on the basis of compromise
between the parties and not on merit, therefore, the benefit of the said judgment
cannot be extended to him, and concluded his arguments by saying that acquittal
order of the accused/respondent was pre-mature and liable to be set aside and case
be remanded back to the court below for decision afresh after recording pro and
contra evidence.
5. We have heard arguments of learned counsel for the appellant/complainant
and perused the record appended with the appeal.

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6. Having gone through the record, we find that the crime report was lodged at
the instance of Juma Khan, it was alleged by him that murder of his son was
committed by the accused Aziz- ur-Rehman at the behest of his co-accused Nawaz
and Zareef. On the face of the record, we find that the prosecution has not placed
on record any evidence to prove or show that the accused/respondent, who was not
present on the crime scene, aided, abetted or facilitated the principal accused Aziz-
ur Rehman in his act of committing the crime, except, the oral allegation of the
compliant party, however, this allegation is not based on legal evidence, but, is
based upon presumption. It is the duty of the prosecution to bring on record some
tangible material to connect the accused/respondent reasonably with the offence of
abetment, law does not allow to presume anything in favour of the prosecution in
the absence of any legal and conclusive evidence in support of the charge levelled
against him. Section 109, P.P.C. contemplates offence of abetment and the word
abetment is defined therein in the explanation to mean as under;
"An act or offence is said to be committed in consequence of abetment, when it
is committed in consequence of the instigation or in pursuance of the
conspiracy, or with the aid, which constitutes the abetment."
7. It is, therefore, clear that abetment can be committed only when there is
positive evidence of either instigation or conspiracy or intentional aid. If none of
these three elements stated above is available, then abetment does not stand proven.
In the instant case, mere bald allegation is not sufficient evidence to prove the fact
that the accused/respondent either abeted or conspired or intentionally aided in the
crime.
8. For the discussion made hereinabove, we are of the view, that elements of
abetment or instigation as contemplated in section 109, P.P.C. is lacking.
9. Adverting to other questions, it appears from perusal of section 265-K, Cr.P.C.
that the court has got ample power to acquit the accused even if witnesses are not
examined. Provisions of section 265-K, Cr.P.C. are meant to prevent the rigorous of
a protracted trial, when it is apparent from the record that there is no probability of
the accused being convicted of the offence and further proceedings if allowed to
continue would be an abuse of the process of the court.
10. Even otherwise, the principal accused who is charged for committing murder
of the son of the complainant has already been acquitted on the basis of
compromise, and as discussed in the preceding paras nothing would be achieved, if
accused/respondent is put to a full dressed trial.
11. Since it is an appeal against acquittal, we have kept in our minds, the
principles that govern the scope of interference by this Court. Acquittal are not
lightly displaced, and this Court will have to see, whether acquittal is passed on
wrong assumption of facts, or proceed on a perverse process of reasoning.
12. We have gone through the impugned judgment and found no illegality,
irregularity or jurisdictional defect in it, calling for interference.
13. For what has been discussed hereinabove, this appeal, being bereft of merits,
is hereby dismissed in limine.

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JK/280/P Appeal dismissed.

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