1. ' MAQBOOL AHMED AWAN, J.--- Appellant Liaquat Ali son of Khair Muhammad has filed appeal under section 417, Cr.P.C. Being aggrieved by and dissatisfied with the judgment, dated 26-3-2008 passed by learned Additional Session Judge, Sehwan in Sessions Case No,43 of 2005, Crime No,37 of 2004 registered at Police Station Bhan, under section 302, 34, 324, P.P.C. Whereby the learned trial Judge acquitted the respondents Nos.1 and 2 while extending the benefit of doubt under section 265-H, Cr.P.C.
2. ' Precisely facts leading to the present appeal are that appellant/complainant lodged F.I.R. At Police Station Bhan, stating therein that they are seven brothers and Deedar Ali (deceased) was his No,5 brother who was married and had his own Datsun which he used to ply on road on fare charges.
3. He has further alleged that one week prior to the incident, said Deedar Ali took the passengers from his village towards Bhan. On the way, one Miro Rodnani boarded in his Datsun and quarrel took place between Deedar Ali (deceased) and Miro Rodnani over the fare charges. On the date of incident, complainant along with his brothers Deedar Ali, Inayat Ali and cousin Haji Murad Ali had come to Bhan Town and after finishing their work were going back to their village. It is also alleged that Deedar Ali was driving the Datsun whereas the complainant and Miro Rodnani were sitting on the front seat of the datsun adjacent to the driver seat. On the back portion of the datsun, other passengers namely Mahmood Rodnani and Haji Haider. Rodnani were sitting. At about 8-30 p.m.
4. When they reached at Kando Bozdar and were dropping the passengers. Miro Rodnani got down from the front seat whereas Mahmood Rodnani and Haji Haider Rodnani got down from the back portion of the datsun. The complainant party also got down. It is alleged that complainant ;arty saw Miro Rodnani, Mahmood Rodnani and Haji Haider Rodnani who asked deceased Deedar Ali that why he created dispute on fare with them and within the sight of complainant party, Miro Rodnani took out a Mouser from the fold of his Shaiwar and directly fired upon Deedar Ali with intention to commit his murder. The fire hit to Deedar Ali on his back side of his chest and spinal cord who raising cries fell down. Thereafter, accused went away to their houses while using the abusive language. The complainant then found his brother Deedar Ali having through and through fire-arm injury and was raising, cries. He brought his brother to Bhan Hospital with the assistant of witnesses and said Deedar Ali succumbed to the injuries in hospital. The complainant thereafter, leaving the above witnesses over the dead body, came to police station and lodged the report that accused Miro Rodnani, Mahmood and Haji Haider Rodnani with their common intention, on account of old quarrel over the fare charges, have committed the murder of his brother Deedar Ali.
5. ' The respondents Nos.1 and 2 were challaned to face the trial whereas accused Miro Rodnani was shown as absconder and was declared as proclaimed offender by the learned trial Court.
6. ' At the trial charge Exh.4 was framed against both the accused/appellants which was denied by the appellants. Prosecution in support of case examined P. W.1 Dr: Abdul Sattar at Exh.7., who produced post-mortem report at Exh.7/A. P.W.2 complainant Liaquat Ali at Exh.8 who produced copy of F.I.R. At Exh.8/A. P.W.3 Murad Ali at Exh.9, P.W.4 Mahi Khan at Exh.11, Mashirnama of dead body at Exh.12/A, inquest report at Exh.13. Mashirnama of place of Wardat at Exh.14 P.W.5 Tapedar Imdad Ali at Exh.15 who produced sketch "A" to "F" as Exh.15/A, P.W.6 Syed. Noor Muhammad at Exh.17 who produced chemical report at Exh.18, P. W.7 Inayat Ali at Exh.19 and thereafter closed the side at Exh.20.
7. ' The statements of respondents Nos.1 and 2 were recorded under section 342, Cr.P.C. At Exhs.21 and 22 respectively in which both the respondents claimed their innocence. The accused/respondents Nos.1 and 2 neither examined themselves on oath nor led any defence in rebuttal of the charge.
8. ' The trial Court after hearing the learned counsel for the respective parties, acquitted the accused/respondents Nos.1 and 2 from the charge as stated above.
9. ' That the judgment was passed on 26-3-2008 whereas the instant appeal has been filed on 12-6- 2008 i.e. After the delay of two months and sixteen days for which an application for condonation of delay has been filed by the appellant on the ground that above time was consumed in obtaining the certified copies from the trial Court. However, in order to decide this appeal on merits, we allow this application in the interest of justice.
10. ' The ground urged by learned counsel for appellant in the present appeal are that learned trial Court has erred in acquitting the respondents/accused while considering the minor contradictions made in the evidence. It is further stated that learned trial Court has failed to appreciate that respondents/accused did not examine themselves on oath nor they led any evidence in evidence.
11. The judgment has been passed on misreading and non-reading of the evidence and no enmity whatsoever was established between the respondents/accused and the complainant party.
12. ' Mr. Nazeer Ahmed Bhatti, the learned counsel for respondents Nos.1 and 2 has argued that while passing the judgment of acquittal, the learned trial Court has not committed any illegality. He submits that this Court can exercise the jurisdiction under section 417, Cr.P.C. Unless, the prosecution is bound under the law to show that the judgment of acquittal is perverse, completely illegal and on perusal of evidence other decision can be given except that accused are guilty or there has been complete misreading or non-reading of evidence leading to miscarriage of justice.
13. He further argued that when the accused have been acquitted from the charge by the competent Court, then double presumption of innocence is attached to its order and under such circumstances, this Court and apex Court normally would not interfere, unless the impugned judgment of acquittal is arbitrary, capricious, fanciful and against the record. In support of his contentions, he has invited our attention towards the improvements and additions made by complainant and P.Ws. In their evidence. The complainant contradicted his own F.I.R. By stating in examination-in-chief that absconding accused Miro was not sitting on the front seat of datsun but he was sitting on the rare seat along with present accused/respondents. He further added that accused Haji Hyder and Deedar Ali instigated the absconding accused Miro to kill the deceased and that respondents Haji Hyder Mahmood caught hold of the hand of deceased Deedar Ali, facilitating the absconding accused Miro to commit the murder of Deedar Ali. Likewise both the P.Ws./eyewitnesses namely Murad Ali and Inayat Ali made improvements and additions in the ocular account and supported the version of complainant regarding the catching hold of deceased. P.W. Murad Ali further contradicted the version of complainant by saying that deceased Deedar Ali demanded the fare from passengers and thereafter, accused Haji Hyder and Mahmood laid down and caught hold of deceased and accused Hyder instigated the absconding accused to kill the deceased Deedar Ali. Likewise P.W. Inayat Ali also improved and added in his evidence that accused Haji Hyder instigated accused Miro for firing upon deceased as there was dispute betwecki them on fare charges and on such instigation absconding accused Miro fired upon deceased from his mouser. It is also pertinent to mention here that admittedly the incident had taken place in a thickly populated, area but no independent witness has been cited by police to strengthen the case of prosecution and the P.Ws. In this case are closely related to deceased. He further submits that evidence brought on record during the trial is contrary to the evidence set up by them during investigation and has argued that when a witness improves his version in order to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. On this point, he has placed reliance on the case of Hadi Bux v. The State reported in PLD 1963 Kar. 805 and therefore, prays that the appeal filed merits no consideration and be dismissed. In support of his contentions, he has also relied upon the cases of (1) Zaheer Din v. The State 1993 SCM R 1628, (2) Munawar Shah v. Liaquat Hussain and others 2002 SCM R 713, (3) Muhammad Shafi v. Muhammad Raza and another 2008 SCM R 329, (4) Farhat Azeem v. Asmatullah and 6 others 2008 SCM R 1285 and (5)
14. Imtiaz Asad v. Zain-ul-Abidin 2005 PCr.LJ 393 respectively.
15. ' Mr. Anwar H. Ansari, the learned State counsel has not controverted the contentions raised Ly the counsel appearing on behalf of the respondents and added that the trial court has rightly acquitted the respondents and has committed no illegality. He further contended that the order from very face of it is not perverse, illegal, arbitrary and no case of misreading or non-reading of evidence is made out.
16. ' We have heard learned counsel for the respondents Nos.1 and 2, learned State counsel and minutely perused the material available on record with their assistance.
17. It is an admitted fact that there was a quarrel between the accused Miro Rodnani and deceased Deedar Ali over the fare charges and due to said quarrel the murder of Deedar Ali was committed by accused Miro Rodnani who has absconded away. It is also an admitted position that both the present appellants shown in F.I.R. Were empty-handed at the time of incident and the role of committing murder is assigned to absconding accused Miro Rodnani. There are also major contradictions and improvements made in the evidence by complainant and eye-witnesses to implicate the present respondents in the commission of offence, hence made the case against the respondents doubtful and the learned trial Court after appreciating the evidence has rightly extended the benefit of doubt in favour of the respondents and acquitted them under section 265- H, Cr.P.C. The case-law relied upon by learned counsel for the respondents Nos.l and 2 is applicable in the case in hand.
18. ' As discussed above, we are of the view that impugned judgment passed by the learned trial Court is not against the principles laid down by the Honourable apex Court, therefore, finding no merits we dismiss the appeal.
19. ' The above are the reasons of our short order, dated 17-3-2009 announced in open Court.