MUHAMMAD NOOR MESKANZAI, J.---Through this Criminal Acquittal Appeal, appellant has called in question the legality of the judgment dated 22nd August, 2009 passed by Judicial Magistrate, Pishin in offence under sections 392, 128 and 149, P.P.C., whereby the private respondents Nos.1 to 5 were acquitted of the charge.
2. Facts succinctly stated are that F.I.R. No.214 of 2008 was lodged by appellant/complainant with S.H.O. Police Station, Pishin on 24th December, 2008 at 9-00 a.m. It was alleged in the F.I.R. That complainant is permanent resident of Killi Haji Abdullah, has got his zamindari near Killi Zarif Abad and also runs business at Karachi. On 23rd December, 2008 at 7-00 p.m. While complainant was coming back to his house, Haji Zarif Khan along with his sons equipped with Kalashnikovs and pistols, forcibly stopped his vehicle, took away Rs.65,000 from his pocket and extended threats of dire consequence, if he would lodge F.I.R. Against them.
3. The F.I.R. Was lodged on a written complaint; as such investigation was carried out. The Investigating Officer visited the site, prepared the sketch, arrested the respondents and finally submitted challan No. 5-A/9 before the trial Court, charge was framed and read over to respondents, to which they pleaded not guilty. Whereafter prosecution in order to substantiate the accusation produced two P.Ws. i.e. P.W.1 Complainant and P.W.2 the Investigating Officer.
Complainant reiterated the contents of F.I.R., whereas the I.O. Produced F.I.R. As ExhP/2-A, site sketch Exh.P/2-B, incomplete challan Exh.P/2-C and complete challan as Exh.P/2-D. P.W.2 claimed to have recorded statements of two P. Ws during the course of investigation, but the said witnesses were neither produced before the trial Court nor for that matter their names find mention in the calendar of witnesses.
4. At the end of prosecution evidence, the respondents were examined under section 342, Cr.P.C., wherein, they denied all the allegations levelled against them by prosecution, however; the respondents neither opted to record their statements on oath as envisaged under section 340(2), Cr.P.C. Nor produced any defence witness.
5. On conclusion of trial, the learned trial Court acquitted the private respondents Nos.1 to 5 vide impugned judgment.
5-A. Learned counsel for appellant contended that the trial Court committed material irregularity by discarding the statement of complainant, who is man of high repute and status. It was secondly contended that the delay in lodging of F.I.R. Was satisfactorily explained and there was sufficient material available on record to connect the private respondents with commission of the crime.
6. We have heard learned counsel for the appellant and perused the record annexed with the appeal. A meaningful glance of record reflects that the trial Court, after proper appraisal of material available on record, has acquitted the private respondents of the charge. Undisputedly F.I.R. Has been lodged with inordinate delay of 14 hours, admittedly police station is situated at a distance of three kilometers from the alleged venue. It is further important to note that appellant has admitted in his statement in reply to question {URDU TEXT}} So while passing by the police station after the alleged commission of offence, it seems irrational not to lodge F.I.R. Secondly in F.I.R., it is clearly stated that F.I.R. Has been lodged after consultations and deliberations with relatives. There is no cavil with the legal proposition that F.I.R. Lodged with inordinate and unexplained delay, after deliberations and consultations, casts a cloud of doubt on prosecution case. Reliance in this regard is placed on the judgment of the Apex Court reported in PLD 2002 S.C.
Page 1048 (relevant at page 1057 titled Ayub Masih v. The State), wherein; it was held as under:-- "Keeping in view the facility of transport and the distance between the spot of occurrence and the place where the F.I.R. Was recorded there was delay of at least 6 hours in lodging the F.I.R. Which ought to have been explained being inordinate but surprisingly no explanation was furnished at all.
The unexplained delay in lodging the F.I.R. Coupled with the presence of the elders of the area at the time of recording of F.I.R. Leads to the inescapable conclusion that the F.I.R. Was recorded after consultation and deliberation. The possibility of fabrication of a story and the false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the F.I.R. Is an intriguing circumstance which tarnishes the authenticity of the F.I.R., casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence.
It is true that unexplained delay in lodging the F.I.R. Is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused. In the present case the delay in lodging the F.I.R. Has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable in weakness only."
Complainant has not offered any explanation whatsoever for lodging the F.I.R. With inordinate delay of 14 hours. Secondly accused persons were arrested and kept for investigation in custody of police for 14 days, but no recovery whatsoever in nature could be affected. Learned counsel for appellant failed to point out any misreading or non-reading of evidence.
P.W.1 has introduced certain substantial improvements while recording his statement and the trial Court has taken note thereof. In fact, the trial Court after proper appraisal of material available on record by applying a judicious mind has passed the impugned order.
The law on the subject is settled that the principles for appreciation of evidence in an appeal against acquittal and that a conviction are entirely different. While assailing an acquittal judgment, appellant is bound to prove that, evidence on record has been read in utter violation of established principles of law, the findings are spaculative, vague, sketchy and partisan and the only conclusion, which would possibly be arrived at, is the guilt of accused or the reasonings are artificial and shocking. The findings of acquittal cannot be upset simply because upon reappraisal of evidence, a different conclusion is possible. After acquittal of the charge, accused enjoys a double presumption of innocence, which cannot be taken away on mere surmises and conjectures, as held by the Hon'ble Supreme Court in the judgment reported in SCMR 2010 page 222 (titled Haji Amanullah v. Munir Ahmed relevant at page 228), wherein it was held as under:-- "We have carefully considered the contentions put forth by the parties learned counsel and have also gone through the impugned judgment as well as evidence on record. At the very outset, we may observe that order of acquittal is not liable to interference merely because on reappraisal of evidence this Court may come to a different conclusion than that of trial Court provided both conclusions are plausible in the particular facts and circumstances of the case. In the instant case prosecution alleged that private respondents along with absconding accused cut down fruit bearing trees of the appellant and in the process they also caused damage to transformer by means of firing. Only independent witnesses produced as Shah Muhammad who had not implicated the respondent in commission of offence as according to him he could not identify the culprits except Hazrat Jan as they had muffled their faces. In view of his categoric statement conviction on the basis of sole testimony of P.W.4 Shah Sanam cannot be sustained as admittedly he is grandson of appellant and interested witness due to civil dispute going on between the parties. Similarly; report of P.W.5 in absence of seizure of damaged articles and alleged cut down trees is of no consequences."
We have gone through the record on the touchstone of the criteria is as mentioned hereinabove and feel that there is neither a case of misreading of evidence nor non-reading of evidence, but on the contrary the evidence has been appreciated in its true perspective and in accordance with the principles laid down by the superior Courts qua appreciation of evidence. No illegality or infirmity could be pointed out warranting interference in the impugned judgment.
In the light of above discussion, appeal having no merit is dismissed in limine.