ATTAULLAH KHAN, J.---The appellant has impugned the acquittal order/judgment of accused/respondents recorded by learned Sessions Judge, D.1. Khan passed on 8-4-2005, in Sessions Case No,25/V11 of 2004.
2. Brief facts of the instant criminal appeal, as narrated in the F.I.R. are that on 26/27-6-2003 at 0145 hours complainant Foz Ali reported to the local police that he along with his uncle Zafid Wali, and aunt Mst. Pami wife of Zafid Wali and children, were present in the house. After chaining the main gate of the house, they went to sleep. At about 0930 hours, he heard the report of fire shot, and woke up. He saw his uncle Zafid Wali, armed with .12 bore rilfe, who told him that Daud son of Ghafoor Banochi, resident of Garah Rahman, who happens to be their relative, after climbing the wall, aimed his pistol at my uncle but his uncle fired at him with which he got injured. He sent him to Police Station Yarik to inform the police. He informed the police through telephone and on return he found Daud dead, his uncle and other family members missing. The occurrence is stated to be seen by himself and by his aunt. He does not know that why Daud duly armed had entered in their house after climbing, the wall and his report F.I.R. No,40 dated 27-6-2003 under sections 302/452/34, P.P.C. registered at Police Station, Yarik District Bannu.
3. After completion of the investigation, complete challan was submitted against the accused before the trial Court. Accused was summoned who appeared before the trial Court. The learned trial Court, after recording the prosecution evidence, statement of accused/ respondent and hearing arguments of both sides, acquitted accused/ respondent vide.judgment/order dated 4-8- 2005.
4. The complainant is aggrieved with the findings of the learned trial Court, therefore, has impugned the judgment/order of acquittal of the accused/respondents, and has filed the instant appeal.
5. Learned counsel for the appellant argued that there is ample evidence to connect the accused/respondent with the offence. He further argued that .12 bore shotgun was also recovered from the room of the accused along with blood stained earth. According to learned counsel the trial Court has not properly appreciated the evidence on record, therefore, acquittal order may be set aside and the accused/respondent be convicted under section 302, P.P.C.
6. On the other hand, learned counsel for the accused/respondent submitted that it is a case of no evidence. He stated that the complainant has stated something else in his statement appearing in the trial Court as P.W.9, therefore, no case has been made out against the accused/ respondent and he has been legally acquitted by the rial Court.
7. We have considered the arguments in the light of available record and evidence of the parties and our discussion is as below.
8. The record reveals that the F.I.R. was lodged by complainant Foz Ali on 27-6-2003 in which he has stated that on hearing the report of fire shot he got up and found his uncle Zafid Wali present along with .12 bore shotgun who informed him that one Daud entered in their house, who fired at him with which he got injured When the complainant entered the house he found that Daud then injured was dead. According to F.I.R. the complainant and his aunt have seen the occurrence. His aunt Mst.
Pami i was abandoned by prosecution while Foz Ali complainant appeared in the trial Court as P.W.9. According to his examination-in-chief on the day of occurrence he along with Zufaid Wall had gone to the house of accused and when they returned to their house they found the deceased as dead and thereafter witness was declared hostile. He has denied all allegations against the accused. He has denied the major portion of his report. So this only eye-witness has resiled from the contents of his report and has taken a different version. A Father of the deceased appeared as P.W.7. He admitted in cross-examination that he was not eye-witness, so his evidence is of no avail.
P.W.8 Gultaz Ali he posed himself as eye-witness. According to him Zufaid Wall accused/respondent asked the absconding co-accused to kill the deceased with which he fired at the deceased with .12 bore shotgun which hit him, injured and later on died. According to him Foz Ali complainant has falsely recorded the report. In cross-examination he admitted it correct that he did not proceed to police station to make his own report. This witness has neither reported subsequently to the police station nor his name mentioned in the F.I.R. as eye-witness. If the report was wrongly and falsely 'recorded by the complainant, it was his duty to bring this fact in the notice of the police. He omitted to do so. Therefore, we are unable to believe his statement. The complainant party has termed the F.I.R. as false but they have made no efforts to record correct version. Thus the case has become of two versions, so the Court would consider the version which is favourable to the accused/ respondent.
9. Moreover, as far as recovery of shotgun is concerned it is of no avail because shotgun along with empties were received by laboratory after long delay and keeping in view the dictum laid down in 2002 SCM R 1986 it cannot be considered. The statement of complainant who is declared as hostile witness also cannot be of no help to the complainant party. Moreover, the best available evidence of Mst. Pami who was stated to be present on the spot but she has been abandoned by the prosecution. This has also damaged the prosecution case because withholding of best evidence is fatal to the case. We may refer to 2011 A.C. 12, wherein it is held that:-- "The prosecution without realizing the fact that he was the most important witness on the issue of conspiracy but did not examine him on the plea that he was unnecessary witness. Thus the best evidence of conspiracy was the statement of P. W. Amir Ali which has been withheld by the prosecution. It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P. W. Amir Ali would have been examined his, evidence would have been unfavourable to the prosecution."
10.As held above by apex Court, the prosecution has withheld the best piece of evidence in the shape of Mst. Pami, therefore, it goes against the complainant party.
11.As far as the recovery of shotgun is concerned it is not proved because the same was recovered on 14-7-2003 after the delay of eighteen days, so this is of no consequence. The second reason is that no other evidence is available, therefore, if the recovery of shotgun is proved even then it would be of no avail. It is also to be noted that the said shotgun was not recovered from the possession of accused/ respondent.
12.In short the F.I.R. has been falsified by prosecution witnesses, therefore, it cannot be believed.
The crime weapon is also of no avail. Moreover, the FSL report is of no significance because it was dispatched to the laboratory with sufficient delay without just and proper explanation. The present accused/respondent is charged for lalkara and no overact has been proved against him.
13.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 was 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, wherein it is held that:-- "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 o acquittal should not be reversed".
14.Keeping in view the above principle as well as facts on record no case is made out by the appellant for reversal of impugned acquittal.
15.We do not find any strong reason to reverse the judgment/order of the learned trial Court, acquitting the accused/respondents from the charge levelled against them. Therefore, the instant criminal appeal is dismissed.