' ATTAULLAH KHAN, J.---Accused/respondents, namely, Mir Abbas, Muhammad Arif, Hassan Khan and Hazrat Umar were tried by learned Additional Sessions Judge-I, D.I. Khan under sections 302/452/ 429/34, P.P.C. For the murder of Sultan Ahmad, committing house trespass and also causing mischief of killing the dog of the complainant party and after conclusion of trial, all of them were acquitted.
2. Brief facts are that on 7-4-2000 at about 0845 hours Muhammad son of Maiy Gul (complainant) reported that he along with his son Sultan Ahmad, Mehr Dad Khan were going towards their land for cutting sugarcane crop. Sultan Ahmad was going ahead followed by complainant and his son Mehr Dad and when they reached near the place of occurrence at about 0845 hours they found present Hassan armed with Kalashnikov, Mir Abbas armed with .303 bore, Arif armed with .303 bore and Hazrat Umar with Kalashnikov present there. On seeing the complainant party, Arif ordered his companion to kill them. On this Hassan, Mir Abbas and Hazrat Umar started firing at Sultan Ahmad with which he was hit and fell on the ground. The complainant party ran away to their village due to fear. During running they saw that the accused were chasing them. On reaching the house, the complainant party took shelter inside while the accused entered the house. When in the meanwhile their dog attacked them but was hit with fire of Arif accused. After waiting for a long time, the accused went away. Complainant party found Sultan Ahmad as dead. The motive disclosed in the F.I.R. Is dispute over women folk. The occurrence was witnessed by complainant and his son Mehr Dad.
3. After completion of investigation, the case was put in Court. Charge was framed against all the accused on 24-10-2001 to which they pleaded not guilty and claimed trial.
4. In support of its case the prosecution produced and examined 13 witnesses while the accused produced Basher Khan S.H.O. In their defence. Statement of accused under section 342, Cr.P.C. Was also recorded.
5. On the conclusion of trial and after hearing arguments, the learned trial Judge acquitted the accused vide his judgment, dated 10-12-2003.
6. The above mentioned acquittal was impugned in the instant criminal appeal bearing No,5 of 2004.
7. Arguments of learned counsel for the parties heard and record perused, in the light of which our discussion is as under.
8. Mr. Abdul Latif Baloch advocate on behalf of the complainant/appellant submitted that case has been proved through eyewitnesses, namely, Muhammad Khan and Mehr Dad who are natural witnesses and the defence has failed to point out any ill will or motive for their false implication. He further submitted that the motive of dispute over women folk is also proved. According to him the alleged compromise as referred to in the judgment of the learned trial Court has not been proved.
Regarding delay he has submitted that the complainant could not report due to fear. There is no proof for any consultation or deliberation.
9. On the other hand, learned counsel for the accused/respondents contended that the report is lodged with a sufficient delay which is not explained properly. According to him the report was made on the spot which is objectionable. He also submitted that the motive has not been proved and the motive alleged already stand settled. According to learned counsel the story of chasing of accused is not believable in this case because during chase no fire was made by the accused over the complainant which is strange.
10. We would first discuss the objection regarding lodging of F.I.R. And its time. The F.I.R. Is Exh.PA which shows that the occurrence took place at 8-45 hours while the report was lodged at 10-30 hours, F.I.R. Also discloses that the report was made by the complainant Muhammad Khan on the spot. In this connection his statement is relevant. In examination-in-chief he has supported the contents of F.I.R. Which was lodged on his report. In the cross-examination it is stated by the complainant that at 8-45 he started from their houses towards the place of occurrence which might be half a mile from his house. He has admitted it correct that his report was in the shape of murasila. In cross-examination he has admitted that he had left his house at 8-45 a.m. According to his admission his report was scribed at about 10-30 hours, It is also stated by him that the police party came to the spot and were busy in preparing the site plan and it was 10-30 a.m. The report shows that it was lodged at 10-30 a.m. Here doubt arises that A ten the police were busy in preparing site plan at about 10-30 a.m. Then how the report was lodged at the same time. One of the timing out of these two, is incorrect. It seems that before lodging of report some preliminary. investigation was conducted which includes preparation of site plan. Moreover, it is also not clear, keeping the following admission of the complainant in cross-examination, that whether the time of occurrence was 8-45 or 9-45.
"It is correct that had stated the time of occurrence is to be 8-45."
If we take the time of occurrence as 8-45 then the delay in lodging the report comes to one hour and 45 minutes. If we take the time of occurrence as 9-45 (as recorded in the F.I.R.) the delay would come to 45 minutes. The explanation given by the complainant is that due to fear they could not report the matter immediately. We do not agree with this explanation because it is not proved that they took shelter inside their house after the occurrence and remained there till the lodging of report, because of reasons that chasing by the accused of the complainant party from the place of occurrence up to their houses is doubtful. It is also admitted that the complainant party chased by the accused, remained unhurt. It is not believable because if they were chasing a long way, from the place of occurrence to the house of the complainant how they escaped. Had there been chase, the accused would have fired at them because chasing was supposed to be for that purpose but nothing happened which creates doubt in our mind about the story of chasing. Because if no fire was made by the accused at the time of chase, then what for they were chasing.
11. So as discussed above, we are of the opinion that the timing of lodging report as well as timing of occurrence are doubtful and delay occurred in reporting the matter to the police has not been properly explained. This creates possibility of consultation and deliberation particularly keeping in view the possible preliminary investigation. Moreover, the report was lodged on the spot and not in the Police Station though reporting any incident on the spot is not by itself damaging but if other circumstances point out some doubts, it can be considered fatal.
12. In this case as pointed out above the report was lodged on the spot and not in the Police Station.
This practice is not approved by apex Court. We may refer to PLD 2008 Supreme Court 349 wherein it is held that:- "In the instant case, the F.I.R. Was not recorded at Police Station. It has been held time and again that F.I.Rs, which are not recorded at Police Station suffer from inherent doubt that then recorded at the spot after due deliberation."
13. So keeping in view the observation of the apex Court we are of the opinion that lodging of F.I.R. At the spot is also fatal to the prosecution case.
14. Regarding the motive we may point out that it was taken by prosecution in the F.I.R. As well as in statement of eye-witness before the trial Court. The motive taken in the case is dispute over women folk. It was the duty of the prosecution to prove the motive as alleged by them and in case motive is not proved then the ocular evidence is to be scrutinized with great caution and care. In case motive is set up by the prosecution and then failed to establish the same, the prosecution must suffer consequences and not the defence. Reference may be given to PLD 1976 SC 629, 1971 SCM R 432 and 1979 SCM R 214.
15. Moreover, the dispute over women was settled one week prior to F the occurrence. This fact is admitted by P.W.10. In his cross-examination in the following words.
"It is correct that our inter se dispute over the women folk was settled by Gulab Khan S.H.O. About week prior to the to the occurrence."
' So in the wake of the above admission, there remains no motive (dispute over women folk). No enmity existed between the parties. This fact is also admitted by P. W.10. He admits; "There was no previous enmity between the parties"
16. As stated above there was no previous enmity between the parties, then why the accused committed the alleged offence. So in the case in hand absence of motive, coupled with other circumstances, has assumed significance and affects the prosecution case badly.
17. The defence has also examined Basher Khan S.H.O. As D.W.1. Who has confirmed the compromise, though not final, between the parties. He stated that he paid rupees three lacs to the complainant in the presence of large gathering. Though compromise is not complete and remained not finalized, but it creates a circumstance in favour of the accused regarding their innocence or at least their doubtful role in the commission of offence. So it may also be taken a dent in the prosecution case.
18. Now coming to the ocular evidence we may point out that it consists of the two witnesses, Muhammad Khan (complainant) P.W.9. And Mehr Dad P. W.10. These two P. Ws. Are father and son.
One is the father of the deceased while the other is brother. They are very much close to the deceased. Keeping in view their close relation coupled with the facts mentioned above regarding lodging of F.I.R., the absence of motive, their evidence is to be considered with caution and care.
The first thing to be noted is that their presence on the spot is doubtful, keeping in view our discussion regarding their alleged chasing by the accused after the occurrence. As stated above had they were chased by the accused after the occurrence they must have been fired by accused.
They remained safe and this fact is not appealable to mind because if they were not fired then why the accused chased them. Keeping in view this fact, one may safely infer that no chasing was made because the presence of the P.Ws. Was doubtful on the spot. If we examine the unexplained delay in lodging of F.I.R. Which has created doubt about the false implication of the accused in the occurrence, the presence of eyewitnesses has also become unbelievable. In cross-examination P.W.9 (complainant) has admitted that Sultan Ahmad was hit by three bullets by the three accused. This admission shows that only three fires were made by three accused. On the other hand, vide recovery memo. Exh.P.C. The Investigating Officer took into possession 7 empties of 303 bore from the spot. This recovery memo. Contradicts the statement of complainant regarding the number of fire shot. If three shots were fired by three accused there should be three empties and not seven. So the recovery of empties does not corroborate the statement of star eye-witness. So the ocular evidence remained uncorroborated which is not believable and cannot be based for capital punishment.
19. Normally in case of direct evidence, the other piece of evidence is used for corroboration or in support of direct evidence but when the direct evidence is not available, then no corroborative or confirmative evidence is needed or believed. In this case as stated above the ocular evidence furnished by P.W.9. And P.W.10. Cannot be believed as being contradictory with empties and their doubtful presence on the spot.
20. Now coming to the principle laid down in connection with appeal against acquittal we may point out that the principles are different, from appeal against conviction. Different parameters are applied for interference in an appeal against the acquittal and appeal against the conviction.
Presumption of innocence of the accused is double in case of acquittal. The appellate Court would not interfere unless conclusion reached by courts below were not supported by evidence on record. Following principles on question of setting aside the acquittal by Supreme Court have been given as reported in 2009 SCM R 946.
"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. We would like to reproduce the relevant portion of the judgment of this Court in the case of Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 on the same, wherein it was observed as under:-- "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 form the cited and other setting aside an acquittal by this Court. They are as follows:--
(1) 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 appraisement of evidence which then is undertaken as so 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 is innocent; and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second assumption and will also thus lose the first one if on ants having conclusive effect on the end result the Court below ,a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principle of appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light should be found wholly as artificial, shocking and ridiculous."
21. If we examine the case in hand, keeping in view the above observation, we may draw a conclusion very safely that the evidence in this case is consisting of witnesses who are very closely related to the deceased and interested. Their statement is inconsistent and contradictory. The ocular version has not been corroborated by any reliable evidence. The counsel for the complainant/appellant could not establish any reasonable ground for interference in the acquittal.
22. As a sequel of above discussion we refuse to interfere in the acquittal order recorded by learned trial Court and accordingly dismissed the appeal.