' RUSTAM ALI MALIK, J.---This is a petition for special leave to appeal against the judgment dated 26-4-2003 passed by the learned Additional Sessions Judge, Mandi Baha-ud-Din in a complaint case titled Muhammad Akram v. Muhammad Riaz whereby he had acquitted the accused/respondent in the aforesaid case under sections 302, 109, 148 and 149 P.P.C.
2. In the complaint it was alleged by Muhammad Akram complainant that on 14-5-1998, around 8- 00 p.m. Sikandar and Riaz sons of Shera and Sajid son of the Anara along with two unknown persons had murdered his brother namely Akbar Ali. It was the effective shot fired by Riaz accused, which had resulted in his death. In the complaint it was also alleged that Anara son of Sardara, Sultan Mahmood son of Hassan and Bakhsha son of Qadir had hatched a conspiracy for Qatl-i- Amd of Akbar Ali deceased. The occurrence was witnessed by Muhammad Akram complainant, Muhammad Zahid, Hassan, Ahmad, Muhammad and Mst. Rasulan Bibi, P. Ws. The matter was reported to the police vide F.I.R. No, 47 registered on 14-5-1998 in Police Station Gojra under section 302/34, P.P.C. However, as the accused party consisted of influential persons, the facts were twisted by the police in connivance with the accused party and a different story was mentioned/ introduced in the F.I.R. And hence the private complaint was filed.
3. As per the contents of the F.I.R. (Exh. D.A) Muhammad Akram, complainant had reported that on 14-5-1998, at 9-30 p.m, he was present in his aunt's house at Bosal Raituwala when Ahmad son of Baqir came from Gojra and informed him that Sikandar and Riaz sons of Shera and Sajid son of Anara had murdered Akbar Ali, deceased while he was proceeding on a Tonga towards Raituwala.
It was alleged that his Qatl-iAmd had been abetted by Anara, Sultan Mahmood and Bakhsha.
4. The case was investigated by the Police and it was found by different Investigating Agencies that actually it was robbery which had been committed by some unknown persons and the accused nominated in the F.I.R. Were innocent. The case was thus filed as the culprits had remained untraced. The learned Additional Sessions Judge declined to summon Anara, Sultan Mahmood and Bakhsha as accused (vide his order dated 3-6-2002). Sajid and Sikandar were declared as P.Os.
Hence, it - was only Riaz accused who remained present before the Court to face the trial.
5. The complainant produced as many as seven witnesses namely Muhammad Zahid P.W.1, Muhammad Akram P.W.2, Muttali P.W. 3, Noor Muhammad P.W. 4, Dr. Umar Murtaza Paracha P.W.5, Muhammad Afzal P.W.6 and Muhammad Sarfraz P.W.7. Of them, P.W.1 and P.W.2 were examined as eye-witnesses of the occurrence P.W.3 was examined as a witness of abetment. P.W.4 had got conducted the postmortem examination whereas P.W.5 Dr. Umar Murtaza Paracha had conducted the postmortem examination on the dead body of the deceased. P.W.6 Muhammad Afzal Patwari had prepared the site plan whereas P.W.7 Muhammad Sarfraz had identified the dead-body at the time of postmortem examination.
6. After the statement of the accused under section 342, Cr.P.C. Was recorded, he produced D.W.1 Rana Muhammad Shaukat Hayat, D.S.P. Range Crimes, Gujranwala. Muhammad Rafique son of Muhammad Din, the Tonga Driver was examined as C.W.1. P.W.1 and P.W.2 claimed to be the eye- witnesses of the occurrence but there seem to be a number of inconsistencies and contradictions in their statements. The learned trial Court rightly pointed out the contradictions in the version of the complainant as contained in the F.I.R. And the complaint. According to the F.I.R. On the day of occurrence the complainant was present in his aunt's house when Ahmad son of Baqir informed him that the accused had murdered Akbar Ali. It therefore means that the complainant was actually not an eye-witness of the occurrence. But in the private compliant itself it is alleged that the occurrence had been witnessed by the complainant as well as by his son Muhammad Zahid, P.W.1 Ahmad son of Baqir, who was an important witness, was given up by the complainant. In the F.I.R. There was no mention of any eye-witness of the occurrence but according to the private complaint, not only Muhammad Akram complainant as well as his son Zahid and also Ahmad, Muhammad, Muhammad Hassan and Mst. Rasulan Bibi had witnessed the occurrence. There was no mention in the F.I.R. Of the presence of P.W.1 and P.W.2 at the place of occurrence. Rafaqat son of Sardara and Sakhi son of Tari who had provided the information regarding the presence of Akbar Ali in a Tonga which was proceeding for Raituwala, were not examined in this case. The complainant seems to have effected a number of improvements in the private complaint as compared with the original F.I.R. Even the passengers of the Tonga and who according to the complaint were Ahmad, Muhammad, Muhammad Hassan and Mst. Rasulan Bibi, P.Ws. And who were material witnesses, have not been examined as P.Ws. In this case. It has been rightly pointed out by the learned trial Court that the compliant had been filed belatedly i.e, more than eight months after the registration of the case. D.W.1 as also C.W.1 appear to be the main witnesses in the case. D.W.1 Muhammad Shaukat Hayat, D.S.P. Range Crimes had found the accused named in the F.I.R. To be innocent in this case and as a result of his investigation it was found by him that actually it was an occurrence of decoity which had been committed by some unknown persons. Rafique son of Muhammad Din i.e, the Tonga Driver was summoned as C.W.1. He was obviously a natural witness of the occurrence. He did not allege that Riaz accused was present at the time of occurrence or that he was a party to the murder of Akbar Ali, deceased. He had also denied that Sajid, Sikandar and Riaz had murdered Akbar Ali, deceased. Although the accused had failed to make statement on oath under section 340(2), Cr.P.C, yet no adverse inference could be drawn against him merely on account of the said reason.
7. As mentioned above, there are clear contradictions and inconsistencies in the two versions of the complainant, as mentioned in the F.I.R. As well as in the private compliant. Material witnesses including important eye-witnesses were with-held by the complainant. The presence of eye- witnesses at the time of occurrence was rightly disbelieved by the learned trial Court. The learned trial Court had rightly observed that the statements of D.W.1 and C.W.1 are worthy of credence. In case of an acquitted accused, double presumption of innocence is attached to him. Courts of appeal are usually slow in interfering with the judgment of acquittal.
8. In the present case also the learned trial Court had delivered a well reasoned judgment of acquittal in favour of respondent No,1 i.e, Riaz accused. Hence, B there is no justification for interference. Therefore, this petition for special leave to appeal is dismissed after preliminary hearing.