ATTAULLAH KHAN, J.--Abdul Ghaffar appellant has filed this appeal under section 417, Cr.P.C. against Ihe judgment dated 12-4-2010 passed by the learned Sessions Judge Lakki Marwat, whereby Nazir Khan accused/respondent was acquitted from the charge levelled against Kim in case F.I.R. No. 67 dated 11-6-2005 of Police Station Dadiwala, District Lakki Marwat registered under sections 324/34, P.P.C.
2. The prosecution story as narrated by the complainant Abdul. Ghaffar is to the affect that on the eventual day and time he along with his granddaughter Mst. Rasheeda Bibi was present in his house when at 1230 hours he heard report of fire shots from outside. On this he ajpng with his granddaughter Mst. Rasheeda Bibi came out of the house and saw the accused Kalimullah and Nawab Khan duly armed with Kalashnikovs while Nazir armed with pistol that all fired at them with which Mst. Rasheeda Bibi was injured while he himself lucidly escaped unhurt. Motive for the offence was given to be land dispute. Thereafter, the accused decamped from the spot.
3 . After completion of investigation, challan was put against the accused/respondents in the trial Court, where they were formally charge sheeted but they professed innocence, false involvement and claimed trial.
4. In order to establish its case against the accused, the prosecution produced and examined eight witnesses and closed its evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. but he denied the allegations levelled against him in toto but neither produced any evidence in defence nor opted to examine himself on oath under section 340(2), Cr.P.C.
5. The learned trial Judge on evaluating the materials brought on record and hearing arguments pro and contra found the accused not guilty of the charge and by extending him the benefit of doubt acquitted him of the charge vide judgment which is now under challenge in this appeal.
6. Learned counsel for the appellant contended that there is ample evidence on the record against the accused/respondent and thus he was not entitled to outright acquittal. According to him, an application was moved in the trial Court for examination of the injured witness who was abandoned by the counsel for the complainant.
7. The record reveals that this application has been rejected by the trial Court which also finds mention in the impugned judgment. (Attaullah Khan, J) According to the learned counsel for the appellant, the case be remanded to the trial Court for examination of the injured witness and decision afresh.
8. On the other hand, learned counsel for the accused/respondent stated that there is no evidence against the accused. He further argued that in the cross-case bearing F.I.R. No.68, the trial Court had acquitted the accused whereagainst, appeal of the complainant bearing Criminal Appeal No. 54 of 2010 has also been dismissed by this Court vide order) dated 20-5-2010. According to them, the impugned conclusion being based on correct appraisal of evidence brought on record needs no interference by this Court.
9. I have carefully examined the' record and considered the arguments of the learned counsel for the parties.
10. The attested, copy of the judgment of this Court in Criminal Appeal No. 54 of 2010 produced by the learned counsel for the accused/respondent shows that the accused in that case were acquitted by the trial Court and their acquittal wasconfirmed by this Court. The instant case F.I.R No. 67 is cross to case F.I.R No. 68, therefore, in my opinion, there is no scope for conviction of the accused/respondent in this case.
11. Moreover, on the body of the injured, a very small entrance wound was available and there is no specific allegation that from whose fire shot the victim had sustained injury. The injured had sustained only one injury for which three persons were charged, out of whom two are dead while the present accused/respondent is facing prosecution.
12. Besides, the' present accused/respondent was assigned .30 bore pistol but no empty of the same bore has been recovered from the spot. Only one empty was recovered from the spot which was sent to FSL for examination where it was opined that it was fired from a 7.62 bore weapon.
Though a metallic piece was recovered from the wall near the victim and it was taken into possession by the Investigating Officer, but it,was not sent for chemical examination to the Laboratory. This was necessary because it could have been decided, as to from which weapon it was fired. These facts als<? makes the case Of the prosecution doubtful.
13. Further, once an accused is acquitted by a competent Court of law after facing the agonies of protracted trial, then he earns the presumption of double innocence which cannot be set at naught slightly unless grave illegality and injustice is proved to have been committed by the trial Court while acquitted the accused. No such thing was pinpointed by the learned counsel for the appellant.
14. Consequently, I find no substance in this appeal which is accordingly dismissed.