' IJAZ-UL-HASSAN KHAN, J.---The State through Advocate-General N.-W.F.P. Has filed Criminal Appeal No.139 of 1994 to call in question the judgment dated 7-12-1993 recorded by learned Additional Sessions Judge, Mardan, whereby accused-respondent Mohi-ud-Din son of Ashrafuddin, resident of Sawal Dher, District Mardan charged under section 302/34, P.P.C. Alongwith co-accused Faqir (since murdered) for committing the murder of his co-villager Afzal Khan son of Ibrahim Khan, by firing was acquitted on extending the benefit of doubt.
The crime in question is alleged to have taken place on 10-1-1990 at 21-15 hours near a place 'Mosooma' Ghari Baba Shaheed in the precincts of Police Station Katlang and the matter was reported to the police the same nigh at 22-45 hours at DHQ Hospital, Mardan by Afzal Khan victim of the assault.
2. The facts of the case in brief are that on the night of occurrence i.e. 10-1-1990 Afzal Khan alongwith his brother Inam Gul P.W. Was on the way to his house. When they reached in front of the house they found Mohi-ud-Din and Faqir of the same village standing there. Mohi-ud-Din was armed with pistol and Faqir was armed with 7 MM rifle. Both the accused persons asked the complainant and his brother to accompany them to Garhi Baba Shaheed. The latter accepted the request. When they reached near Garhi Baba Shaheed, both the 'accused persons fired one shot each with their respective weapons on account of which the complainant was hit and got injured.
After firing the accused persons bolted away from the spot. An altercation between the complainant and the accused persons on the morning of the day of occurrence was stated to be the motive leading to the incident. Inam Gul (P.W.9) was shown to have seen the occurrence.
3. S.-I. Jamshed Khan (P.W.14 on the day of occurrence i.e. 10-1-1990 at 22-45 hours was on routine 'Gasht' when he was informed that an injured person has been brought to DHQ Hospital, Mardan.
He rushed to the hospital and recorded the report (Exh.P.A./1) of injured Afzal Khan. He also prepared injury'sheet of the victim. The injured was medically examined by Dr. Abdul Wahid (P.W.5) and two exit wounds were found on his person. S.H.O. Ghulam Habib Khan (P.W.13) incorporated the contents of the 'Murasila' into F.I.R. (Exh.P.A.) P.W.13 deputed A.S.-I. Muhammad Shah Khan (P.W.12) to investigate the case. The latter prepared site-plan (Exh.P.B.) at the instance of eyewitness. The accused was arrested on 20-4-1999 by IHC Momin Khan (P.W.4) from the house of Munawar Khan son of Manda Khel. After completion of investigation, complete challan was submitted against the accused on 31-3-1990. Afzal Khan succumbed to the injuries and expired in the hospital on 26-1- 1990.
4. Dr. Abdul Wahid (P.W.5) at 6-15 a.m. Conducted the post mortem examination of the deceased and noted the following on external examination:--
1. Fire-arm entrance wound on the left lower chest on back 1 c.m.x 1.1/2 c.m. Penetrating.
2. Exit on the left upper chest, 1.1/2 c.m. x 1 c.m., (At this stagethe witness stated that in fact injury No.1 is the exit woundwhile injury No.2 is entry wound, inadvertently the injuries have been mentioned vice versa).
3. Entry wound on the left wrist on the thumb size, 1.1/2 c.m. x 1c.m., and exist wound 1.1/2 inch lateral toward the little finger side, size 1.1/2 c.m. x 1.1/2 c.m.
Internal Examination ' Thorax. Walls, ribs and cartilages and ribs No.8, on the left side found fractured in the front. Pleurae perforated internally and posterially. Left lung perforated back to front.
' Abdomen. Peritoneum, fibrosis in the mid line were noted, the colour of peritoneum was yellowish and dirty blood was found in the abdomen. Diaphram, was perforated on left side, the stomach was empty anal healthy. Large intestine penetrated on the left and repair done.
' Fractures. The fracture of 8th rib on the left side and lower end of the radious were fractured.
' In the opinion of the doctor the fire-arm injuries to the left lung and peritonetous led to the cardiopulmonary failure, which resulted in death.
6. The prosecution ventured to produce as many as fourteen witnesses out of which evidence of Dr. Abdul Wahid P.W.1 and Inam Gul (P.W.9) is of great significance, whereas that of rest of the witnesses is of formal nature.
7. The accused respondent in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been charged falsely on mere suspicion. He also stated that he did not abscond and voluntarily appeared before the Police. The accused respondent did not appear in his defence as envisaged by section 340(2), Cr.P.C. Nor produced any evidence in defence.
8. Upon culmination of the trial, the learned trial Court, after taking into full consideration all the material available on the record, arrived to the conclusion that charge against the accused respondent could not be established and prosecution has miserably failed to prove its case.
Resultantly, accused respondent was acquitted of the charge on extending the benefit of doubt.
9. Malik Ahmad Jan, learned Deputy Advocate-General, in support of the appeal, forcefully contended that the trial Court has committed an illegality while acquitting the accused respondent of the charge, that the prosecution case rests on the F.I.R. Which is last statement of the deceased before the death and it amounts to dying declaration; that there is ocular evidence corroborated by the medical evidence, motive and abscondence of the accused-respondent.
Additionally, he urged that the appreciation and the perusal of the evidence by the trial Court is not in consonance with the established principle of dispenstion of criminal justice. He also submitted that overwhelming, credible and trusth worthy evidence has been adduced by the prosecution which conclusively proves the guilt of the ,accused-respondent but learned trial Judge erroneously disbelieved and discarded the testimony of witnesses by drawing inferences which are neither probable nor acceptable.,
10. Conversely Mr. Yousaf Shah Khan Advocate for accused-respondent submitted that the evidence available on record is in no way sufficient to lead to a conclusion of guilt. The Court below has extended the benefit of doubt to the accused respondent in a lawful manner and no glaring defect, material irregularity or legal infirmity could be pointed out in the finding of the trial Court.
11. It needs no reiteration that there is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of. Evidence on record. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. While considering the scope of section 417, Cr.P.C. It is held that in an appeal against acquittal, this A Court would not, in principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. The Court would not interfere with the acquittal merely because on reappraisement of the evidence it comes to the conclusion different from that of. The Court acquitting the accused provided both the conclusions are reasonably possible. It is true that the finding of acquittal is not sacrosanct, if the reasons given by the trial Court are speculative or of artificial nature or the findings are based on no evidence or is the result of misreading or misinterpretation of evidence or the conclusion drawn as to the guilt or innocence of the accused persons , are perverse, resulting into miscarriage of. Justice. Same can be interfered with in appropriate cases in the light of the principles laid down by the apex Court regarding appreciation of evidence. In Yar Muhammad and 3 others v. The State (1992 SCM R 96) it was observed:-- "The High Court was hearing an acquittal appeal and the principles of setting aside an order of acquittal are now well-settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In t urcising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration or criminal justice."
12. The crime in question is alleged to have taken place on 10-1-1990 at 21-15 hours and the report was lodged at 22-45 hours at DHQ Hospital, Mardan by Afzal Khan victim of the assault. There is delay of 90 minutes in lodging of report. It is not denied that undue, unreasonable and unexplained delay in filing F.I.R. Leads to suspicion and reflects on the truth of the prosecution case. Earlier information of crime is required to be supplied to the police in order to avoid criticism of the report as being manipulated and result of deliberation and consultation. No doubt it is true that delay in lodging of F.I.R. Is not always fatal to a case, but the prevalent circumstances are to be kept in mind 'and then its effect is to be assessed, in the case,. In the instant case, delay having not been explained by the prosecution a reasonable inference would be that the accused were substituted and they were falsely implicated in the case.
13. Inam Gul (P.W.9) the sole eye-witness stated at the trial that after the occurrence the injured was brought to the house and then shifted to the hospital. The possibility of consultation and outside D prompting cannot be excluded in the circumstances of the case. So far as the presence of P.W. Inam Gul at the spot is concerned, we do not reject his evidence because of his relationship with the deceased but we doubt if he was present at the time of incident. An altercation is stated to have taken place between the deceased and the accused on the day of .Occurrence creating bad blood between the parties. In this state of affairs, the deceased and his brother had no reason to accept the request of the accused person duly armed and accompany them to a desolate place.
Medical evidence in this case is also in conflict with the ocular account so far as the locale, dimension of injuries and presence of charring marks are concerned and negates the claim of P.W.
Inam Gul having seen the occurrence. As observed earlier an altercation an the day of occurrence is stated to be the motive leading to the incident. The E motive has been changed at the trial. A dispute over money is said to be the motive. It is true the motiveless crimes are committed but it is equally true that once the prosecution alleges a particular motive it is obliged to prove the same through independent evidence which in this case has not been done. The venue of occurrence has also not been established. No blood-stained earth or crime empties have been recovered from the spot. It appears to us that the crime was committed somewhere else and not at the place alleged by the prosecution.
14. It was vehemently contended on behalf of the State that the statement of the victim amounted to dying declaration and the learned trial Judge had no legal justification to discard the same and insist for corroboration. The submission is misconceived. It may be observed that the dying declaration is only a corroborative piece of evidence which supports the ocular testimony given by the eye-witnesses. No hard and fast rule can be laid down about the standard of the dying declaration. Its veracity, authenticity and reliability varies from case to case. In some cases the dying declaration alone may be considered sufficient evidence against the accused, while in some, it cannot at all be relied upon, unless it is proved to be reliable or to be supportive of the other evidence on record.
15. The abscondence in this case, no doubt is for a period of about one year but abscondence alone, as held by the superiors Courts, cannot be a substitute for real evidence. No conviction can be recorded on the mere ground of absconcion as held by this. Court in Wisal Qamar v. Noor Dad Khan and another (2000 PCr.LJ 2038 Peshawar) wherein it was observed:-- "Appreciation of evidence---Abscondence of accused-Effect-7 Abscondence of accused by itself did not establish the guilt of accused unless it was corroborated by other cogent evidence-Where prosecution had failed to bring home guilt through ocular evidence, alleged abscondence was of no use in circumstances."
16. Having heard the arguments and submissions of the learned counsel for the parties in the light of the material available on the record, we are satisfied that prosecution story is unnatural, improbable and unreliable one and the prosecution has miserably failed to connect the accused- respondent with the murder of Afzal Khan deceased. The impugned judgment is neither perverse, illegal, ridiculous or the result of misreading of evidence leading to miscarriage of justice. The reasons advanced for acquittal of accused-respondent are convincing and cogent and hardly call for interference of this Court in its appellate jurisdiction. The appeal fails which is hereby dismissed.
The impugned judgment is maintained.