' MIFTAH-UD-DIN KHAN, J.---Complainant Amjad Iqbal has preferred this appeal against the judgment and order dated 10-11-2003 of the learned Sessions Judge Abbottabad camp Court Haripur whereby respondent Basharat Ali was acquitted in case F.I.R. No,103 dated 23-6-1998 of Police Station Hattar District Haripur registered under sections 302/324/120/34, P.P.C.
2. The brief facts of the case are that on 23-6-1998 at 1830 hours appellant Amjad Iqbal an employee of Dewan Suleman Factory Hattar made a report in the Emergency Ward of POF Wah hospital to the effect that he and his brother Sajid Iqbal and Arshad Iqbal were employees in the Dewan Suleman Factory Hattar while his cousin Zulfiqar had two shops one of vegetable and one of Juice etc. In the market of the said factory. That his three brothers along with Khalid Mehmood and Shakeel who are residing in the same quarter were sitting in the shop when Asghar acquitted accused while coming towards them picked up a bottle of Coca Cola and gave blow to him which hit him on his forehead. That in the meanwhile, Basharat respondent Shoukat acquitted accused, Iftikhar, Ashraf acquitted accused came and started firing at them. That with the firing of respondent Basharat who was armed with .30 bore pistol, deceased Sajid Iqbal was hit on the lower abdomen and left Thigh and that with the fire shot of Iftikhar armed with .30 bore pistol Shakeel .Was hit. Motive of the occurrence was previous enmity between them and Basharat etc. The report of appellant was recorded by Muhammad Siddique A.S.-I. In the shape of Murasila Exh.P.A./1 which was sent to the Police Station on the basis of which this case F.I.R. Exh.P.A. Was registered. He prepared the injury sheet of injured and inquest report of deceased Sajid Iqbal which are Exhs.P.W.1/2 to 1/6. The case was investigated by Qazi Gohar Imtiaz Investigating Officer who died before his examination by the trial Court and Muhammad Siddique A.S.-I. Was examined to support the investigation conducted by the dead P.W. After completion of investigation Challan was submitted. After framing the charge, recording prosecution evidence, statement of accused and hearing learned counsel for the State and learned defence counsel, the respondents were acquitted by the learned Sessions Judge Abbotabad camp Court at Haripur, vide judgment and order dated 10-11-2003.
3. Complainant Amjad Iqbal has moved the present appeal against the acquittal of accused respondents which has been admitted for hearing only against accused Basharat Ali while appeal against remaining respondents Shoukat Ali and Muhammad Asghar was dismissed on 4-3- 2004.##TE#
4. During the course of appeal, process was issued against the respondent Basharat but he was reported to have gone abroad and in this connection statement of Abdul Saboor DFC of Police Station Hattar was recorded on 26-11-2008. However, Mr. Muhammad Zaib Tanoli Advocate volunteered to defend the absent accused respondent Basharat Ali in the present case.
5. Mr. Saeed Akhtar Khan Advocate, learned counsel for appellant contended that in the present case, report was lodged with reasonable and justified ground for delay in report and that report contains all necessary details i,e, place of occurrence number of accused, weapon of offence and role played by each and every accused. He further submitted that the prosecution version in the present case is supported by injured P.Ws. Amjad Iqbal P.W.3, Shakeel and Arshad Iqbal. He contended that presence of witnesses as well as presence of the accused at the time of occurrence have been established beyond reasonable doubt not only by prosecution but the trend of cross-examination of defence clearly hinting towards the presence of accused and eye- witnesses on the spot. Further submitted that the version of injured P.Ws. Is further supported by recovery of .30 bore pistol at the pointation of accused respondent and crime empty from the spot and positive report of Arms expert in this connection. He further submitted that even if the ocular account is contradicted by the site plan and medical evidence, preference has to be given to the ocular account. He lastly argued that specific plea of self-defence raised by the respondent has neither been provide on record within the meaning of Article 121 of Qanun-e-Shahadat nor spelt out from the facts and circumstances available on record, therefore, learned Sessions Judge was not justified to record acquittal in the present case. Thus, he prayed for acceptance of appeal, setting aside the order of acquittal and conviction of accused respondent for qatl-e-amd of deceased Sajid Iqbal. He placed reliance on PLD 2006 SC(?)-273, 2006 SCMR 954, 2001 SCMR 1111, 2005 SCMR 810, 1992 SCMR 305, 2007 SCMR 1519, PLD 1969 Peshawar 355, PLD 1996 SC 1 and 2002 SCMR 1986, in support of his above contention.
6. Mr. Muhammad Zeb Khan Tanoli Advocate, learned counsel for respondent defended the judgment of learned trial Court and contended that the occurrence had not taken place in the manner as alleged by the prosecution witnesses. He further submitted that the injured P.Ws. Were not found truthful and confidence-inspiring by the learned trial Court and that P.Ws. Are interested witnesses and their testimony is not corroborated by any independent source. He further submitted that not only P.Ws. Have contradicted each other on material points but their testimony is also direct in conflict with medical evidence. He contended that recovery of empty and weapon of offence is very much doubtful in the light of statement of Malik Safdar Ali and Muhammad Fazil recovery witnesses therefore; the same cannot be taken as corroboratory piece of evidence. He further submitted that report was lodged after a delay of 3-1/2 hours after consultation and deliberations and that motive has not been proved on record, therefore, the case against the respondent was not proved beyond doubt hence the learned Sessions Judge was quite justified to acquit the accused in the present case. He placed reliance on 2008 PCr.LJ 335, 2003 SCMR 459, PLD 2004 Pesh. 1, 1993 SCMR 585, 2005 PCr.LJ 536, 1983 SCMR 1, and 1993 SCMR 417.
7. No doubt, the occurrence had taken place on 23-6-1998 at 15-15 hours and Police Station Hatter is at a distance of 7/8 k.m. But no attempt was made by complainant to report the matter in Police Station. The report regarding the occurrence was made at 1830 hours after a delay of more than three hours in POF hospital which too on reaching of Muhammad Siddique A.S.-I. In POF hospital who recorded report, therefore, the possibility of consultation and deliberations cannot be ruled out. No doubt, the three witnesses Amjad Iqbal, Arshad Iqbal and Muhammad Shakeel supported the prosecution version but their testimony is not only contradictory on material points but is also direct in conflict with the site plan and medical evidence.##TE# In the site plan P.Ws. Have been shown at points 1, 2, 3 and 4 outside the shop in gallery but Amjad Iqbal P.W.3 in his report and during cross-examination stated that they were sitting inside the shop. Similarly, Arshad Iqbal P.W.
In his cross-examination stated that when accused started firing they ran away from the spot to save their lives but he was contradicted on this score by P.W. Shakeel who stated that they were standing in scattered position when they were attacked. P.W. Arshad Iqbal stated during cross- examination that when the firing started from northern side, they entered into the shop to save their lives. The testimony of eye-witnesses is mutually contradictory on major material points and is also in conflict with medical evidence. According the prosecution witnesses deceased was sitting at the time of occurrence but the direction of two entry wounds on person of deceased is from below to up ward. According to the foot notes of site plan Exh.P.B., the line of fire was shown as straight but the same fact is contradicted by the medical evidence. In view of this major contradiction, the testimony of eye-witnesses was not found trustworthy and confidence inspiring by the learned trial Court and observations of the learned trial Court in this connection cannot be ignored. The recovery of empties and pistol at the instance and pointation of accused respondent was also found doubtful in view of testimony of Malik Safdar Ali Security supervisor of Dewan Sideman Factory, Hattar who was first to reach the spot but this witness stated that he had not seen any empty or blood on the spot. Similarly, the crime weapon was first recovered by the police from a place to which general public had easy access and approach and its recovery was later on shown in the presence of P.W. Muhammad Fazil. After evaluation and appraisal of prosecution evidence the learned trial Court concluded that before lodging delayed report in the present case consultation and deliberations between complainant party and police cannot be ruled out. The presence of eye-witnesses and accused on the spot was established but the learned trial Court disbelieved their testimony on account of major contradictions on material points and their testimony was also found direct in conflict with medical evidence on the basis of which the learned trial Court came to the conclusion that either the incident had not taken place in the manner as alleged by the prosecution witnesses or the witnesses have suppressed the material facts from the Court. The prosecution evidence regarding recovery of empty and weapon of offence was also found doubtful. The motive for the offence was also disbelieved. The testimony of prosecution witnesses in respect of acquitted co-accused was also disbelieved and they were acquitted and appeal against their acquittal was disallowed by this Court on 4-3-2004. Under the law, accused is presumed to be innocent and in case of acquittal of accused by the trial Court double presumption of innocence has to be taken, because the trial Court has got advantage of observing the conduct, demeanour of witnesses and surrounding facts and circumstances. With these reasons and observations coupled with the principle of safe dispensation of criminal justice, we are not inclined to interfere with the order of acquittal recorded by the learned trial Court in respect of accused respondent. The appeal of complainant Amjad Iqbal is therefore, dismissed.