Law: Criminal Procedure Code (V of 1898)

Section: 417

  (a) Criminal Procedure Code, (1 of 1898), S. 417 Appeal against acquittal --Order of acquittal not to be set aside on grounds appreciation of evidence alone-- Trial Court found t4i have rightly appreciated evidence. Findings haled on evidence and conclusion drawn about innocence of accused, sound and not perverse or foolish resulting in miscarriage of justice-Appeal dismissed. (b) Identification---- Accused identification in light of torch-- Not a sufficient piece of evidence. (c) Identification--Accused's identification by his voice-Always doubtful. Date of hearing : 27th February 1970.   JUDGMENT SHER BAHADUR KHAN, J.--This is a State appeal under section 417, Criminal Procedure Code against the order dated 30th September passed by Agha Muhammad. Ali Shah, Magistrate 1st Class empowered under section 30, Cr. P. C., Haripur, whereby he acquitted Fazal Ahmad anal Ali Ahmad son of Karam Elahi, residents of village Dobatuli, Police Station Khanpur, Tehsil Haripur, District Hazara, of the charge under section 3(17/34, P. P. Code. 2. The brief facts leading to the appeal are that during the night 22-7-1965 the two brothers Dildar Hussain Shah (P. W. 4) and Hubdar Hussain Shah (P. W. 5) were sleeping in the court yard of their baithak in their home village Dobandi. It was at about 11-30 p.m. that on the barking of a dog Dildar Hussain Shah got up and saw two persons standing near him. He enquired of them as to who they were. On this enquiry, Ali Ahmad respondent lit his torch which he had with him at that time and said, "he is Dildar Hussaiu kill hint". The torch light was thrown on the face (if Dildar Hussain Shah, who placed his hand on his forehead with the palm of the hand facing outside and he remained lying on the cot. Fazal Ahmad then fired at him with his pistol and hit him on the palm of his left hand, as; to result of which his left little finger was chopped off. He raised an alarm. ()n the report of the firearm and the alarm, his brother Hubdar Hussain Shah (P, W. 5) also got up who had a torch with him and threw the light at the respondents while they were still in the courtyard. Hubdar Hussain Shah also identified the two…