Through this appeal filed under Section 417 Cr.P.C., the appellant Inamullah Khan has sought the indulgence of this Court to set at naught the judgment dated 26/2/2010 passed by the learned Sessions Judge-D.I.Khan in case F.I.R No, 170 dated 23/5/2004 of Police Station Saddar D.I.Khan under Sections 324/34 P.P.C, whereby Tehsinullah and Faridullah, accused/respondents, were acquitted of the charge.
2. Briefly stated facts of the case are that on 23/5/2004 at 2020 hours, Inamullah Khan complainant reported in injured condition in the emergency room of civil hospital D.I.Khan alongwith his injured brothers, namely, Sibghatullah. Khizbullah and Rizwanullah to the effect that on the eventful day after closing his shop at 1930 hours was returning home alongwith his said brothers and when reached on turn of the street. accused Inayatullah armed with .12 bore shotgun, Tehseenullah armed with .30 bore pistol, Asmatullah armed Danda and Farid standing aside thereby started firing with their respective arms with which he and his brothers Sibghatullah and Rizwanullah were injured, while Asmatullah and Farid gave danda blows to him and Khizbullah on their heads with which they were hit. Motive for the offence was given to be that Ikramullah brother of the complainant, was beaten by the accused party sometime prior to the occurrence which was complained to their father due to which they were annoyed.
3. After their arrest and completion of investigation, the accused/respondents were put on trial where the provisions of Section 265-C were complied with and the accused/respondents were Formally charged sheeted. However, they professed innocence and claimed trial.
4. The prosecution in order to prove its case against the accused/respondents produced and examined thirteen witnesses and closed its evidence. Thereafter, statements of the accused/respondents were recorded under Section 342 Cr.P.C. but their stands was complete and false implication. However, neither, they produced any defence evidence nor opted to be examined on oath under Section 340(2) Cr.P.C.
5. On evaluating the materials brought on record, the learned trial Judge found the accused/respondents not guilty to the charge and thus acquitted them through the impugned judgment which is now under challenge by the complainant/appellant through the appeal in hand.
6. Learned counsel for the appellant argued, with great.-vehemence, that the impugned judgment of acquittal in favour of the accused/respondents is not based on correct legal premises on the following grounds :--
1. Firstly, that soon after the occurrence, the accused/respondents remained fugitive from law for a considerably long and unexplained noticeable period and they were proceeded against under Sections 87/204/512 Cr.P.C;
2. Secondly, that the prosecution case was duly proved through ocular, circumstantial, medical and recoveries, therefore, the respondents were not entitled to outright acquittal; 3.Thirdly; that the occurrence has taken place in broad-day light which was reported with all reasonable promptitude with no chance of deliberation, consultation or false implication; and
4. Fourthly that the impugned judgment of acquittal is based on surmises and conjectures and non-existing facts which is, therefore, liable to be set aside and the accused/respondents be convicted and sentenced according to law.
7. On the other hand, learned counsel for the accused/respondents supported the impugned judgment on the grounds, inter alia, that the prosecution had not been able to prove its case against the accused/respondents, as there are material contradictions in the statements of the PWs, besides the fact that there was 'no independent corroboration. They, therefore, argued that the learned trial Judge has rightly extended the benefit of doubt in favour of the accused/respondents while passing the impugned judgment of acquittal.
8. I have carefully scrutinized the entire record of the case with the valuable assistance of the learned counsel for the parties in the light of their arguments advanced at the bar.
9. Perusal of the record indicates that there are material contradictions in the statements of the prosecution witnesses. The site plan was prepared on the pointation of one Imran but he has not been examined by the police or in the Court.
10.There are certain contradictions in the statements of the eye-witnesses, namely, PWs 2 to 5, which reflect that either they are not telling truth, or the occurrence had not taken place in the manner as disclosed by the prosecution. These contradictions relate to the identity of the accused due to darkness, presence of public on the spot at the time of occurrence and the occupation of some of the PWs.
11.According to PW-3, he has not seen the accused/respondents at the relevant time because of darkness and that because of late hours of the night, none was present on the spot. Same is the statement of PW.4 that the occurrence had taken place late at night. Similar is the stance of PW.5 who has stated that because of late evening time and pitch dark, he has not seen the accused/respondents while firing at the complainant party. Further, the statements of the injured witnesses have also not been recorded properly. Their statements recorded under Sections 161 Cr.P.C. are available on file as Ex.PW.12/D-1 to Ex.PW-12/D-3, wherein they have only stated that they rely on the statement of the complainant.
12.The stand of PW-2 is that three brothers of the complainant side were students during the days of occurrence and they were not engaged in any business. while PW.3 says that he was running a shop and PW.4 says that he was not a student but running a shop. PWs-2 and 4 have stated that at the time of occurrence they raised hue and cry while PWs-3 and 5 have negated the same. PW.2 has alleged to have witnessed the occurrence by many people while PWs-3 and 4 have stated that no one was present at the time of occurrence.
13. The above facts discloses that there are material dents in the case of the prosecution and its evidence was full of doubts. These contradictions also suggest that the PWs were not present on the spot and have seen the occurrence. These also suggest that the occurrence did not take place at 1930 hours, because in the month of May, 2004, it was `Maghreb Prayers time' and not pitch dark.
14.The record further discloses that on the same evidence, Inayatullah, co-accused of the respondents, was earlier acquitted by the trial Court on 14/7/2006 and appeal against acquittal was dismissed by this Court vide judgment dated 15/11/2006 which has attained finality as no appeal has been preferred before the Apex Court there against. Therefore, the case of the accused/respondents being based on same facts cannot be distinguished therefrom and the learned trial Judge has thus rightly appraised the evidence brought on record while drawing the impugned conclusion.
15. Principles for deciding appeals against conviction and acquittal are different from each other.
Once an accused is acquitted by a competent Court of law after facing the agonies of a protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate Court slightly. Reference in this context may be made to 2009 SCM R 946 wherein it has been held as follows: "It is a settled law that before the order of acquittal is reversed, it must be shown that the judgment of the learned trial Court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal should not be reversed".
16.Similarly, the Apex Court in PLD 1985 Supreme Court-11 has held as follows:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other case law on the question of setting aside an acquittal by this Court which are as follows: `In an appeal against acquittal, the Supreme Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisal of evidence of evidence when then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by in fact that the acquittal carries with it the two well-accepted presumptions.
One initial till found guilty the accused and two that again after the trial a Court below confirmed the presumption of innocence'."
16.The above principles have been re-affirmed in the case of Supreme Court Azher Ali Vs. The State (PLD 2010 SC 632).
17. Keeping in view the above observations of the Apex Court, if we examine the case in hand, we may draw a conclusion very safely that the evidence in this case is not enough to record conviction of the accused/appellant. No motive against the accused/respondents stands proved.
There is no circumstantial evidence. The accused has not confessed their guilt.
18. From the facts and circumstances of the case discussed above, the learned trial Judge has rightly appraised the evidence brought on record and the impugned conclusion is based on correct legal footings which needs no interference by this Court.
19. Consequently, I find no substance in this appeal which is hereby dismissed.