MAZHAR ALAM KHAN MIANKHEL, J.---The appellant, being complainant in case F.I.R. No,239 dated 1-7-2004, Police Station Mandani, registered under section 324/34, P.P.C., has filed instant appeal under section 417(2A), Cr.P.C. against the acquittal of accused/respondents recorded by the learned Additional Sessions Judge, Charsadda at Tangi vide order dated 23-12-2005.
2. One Sher Muhammad son of Noor Muhammad reported the matter that at about 21.30 hours on 19-7-2004, he along with his relative Hafizur Rehman son of Said Karim was present out side their village mosque, when Khalid son of Wahab and Muhammad Akbar son of Abdul Wahab (accused- respondents) came there armed with their respective weapons and made firing at them.
Resultantly, he and Hafizur Rehman received injuries and the motive was some altercation a while ago before prayers. The occurrence was stated to have been witnessed by the brother of complainant Ismail and many others present on the spot at the relevant time.
3. The case was investigated by the local police and the accused-persons were sent to the Court of ASJ, Charsadda at Tangi for their trial. The learned trial Judge, after recording the statements of P.Ws., defence witness and the accused under section 342, Cr.P.C. acquitted both the accused vide his judgment dated 23-12-2005, hence present appeal.
4. Instant appeal has been filed by the complainant being an aggrieved person but no appeal as such has been filed by the State.
5. Learned counsel for the appellant in support of his appeal submitted that the impugned judgment of the trial Court is against law and facts, being based on surmises and conjectures, and no sound reasons were given by the trial Court while acquitting the accused. The prosecution proved its case by giving ocular account of the case through injured P.Ws. and the same was also supported by the medical evidence and other circumstantial evidence. Besides, motive for the occurrence' was also established on the record. The learned State counsel in addition to the submissions made by the learned counsel for the complainant submitted that the accused/respondents had threatened the complainant-party, for which yet another case vide F.I.R.
No,8 dated 14-6-2006, Police Station Quaid Abad was registered against them under sections 337/506, P.P.C. The accused-respondents tried to substitute the accused by placing on record the inquiry report. The accused after commission of offence remained absconders for two weeks, which is yet another supportive factor of the prosecution case in presence of ocular as well as circumstantial evidence.
6. As against that, the learned counsel for the accused/respondent Muhammad Akbar submitted that it was the bounden duty of the prosecution to have proved its case without any reasonable doubt and once the accused have been acquitted from the charges by a competent Court of law after a full-fledged trial, double presumption of innocence has been attached to their such acquittal. He further submitted that Ismail, brother of the complainant, and one Qaisar, who have been shown by the I.O. at Points Nos.3 and 4 respectively to be present at the time of occurrence, were not examined and abandoned without any reasonable cause and justification; the dimension of the injuries as explained by the doctor on the person of both the P.Ws. is the same, which transpires the fact that only one weapon was used and the prosecution by not procuring any FSL report regarding the two recovered empties as to whether the same were fired from one or two different weapons, makes a visible dent in the case of the prosecution especially when no specific role of causing any injury to any of the P.Ws. is assigned to any of the accused. His next submission was that as per record of the case, the case was registered against the accused/respondents after preliminary investigation and examination of the complainant and the injured by the doctor.
7. The learned counsel for accused/respondent No,2 Khalid, while endorsing the arguments advanced by the learned counsel. for accused respondent Muhammad Akbar, submitted that P.W.4 has admitted that all the shots at them were made from a distance of 3 to 4 paces, so presence of charring marks on the person of complainant makes yet another dent in the prosecution case. He further submitted that the defence witness produced by the accused/respondents i.e, D.W.1 Mustamer Khan, has categorically stated that the complainant and the injured P.W. were fired at by Ghulam Rehman and even no suggestion whatsoever in the cross- examination was put to said defence witness. His next argument was that as the State has not filed any appeal, so it has no role to support the version of the complainant.
8. Learned counsel for the parties and Mst. Surraya Jabeen, advocate for the State were heard and record of the case was perused.
9. Perusal of the F.I.R. would reveal that the occurrence had taken place just outside the village mosque at the time of Isha-Prayers' and the occurrence, besides the complainant (P.W.4) and injured-P.W. Hafizur Rehman (P.W.5), was also witnessed by one Ismail (brother of 'the complainant) as well as many other co-villagers, present on the spot at the relevant time. In the site-plan (Exh.PB), points Nos. 3 and 4 reflect the presence of Ismail and Qaisar, eye-witnesses at the time of occurrence, though the name of Qaisar did not find mention in the F.I.R. as an eye- witness. Anyhow, neither Ismail nor Qaisar nor any other witness was produced by the prosecution and relied only on the testimony of the complainant and P.W. Hafizur Rehman, who were produced as P.W.4 and P.W.5 respectively. Reliance, for the purpose of corroborating their deposition, was placed on the medical evidence, recovery of 02 empties, blood-stained earth recovered from the spot, motive and other circumstantial evidence.
10.Perusal of the prosecution evidence, particularly of the injured-complainant and injured P.W. would of course establish the fact that they being present on the spot at the relevant time had received firearm injuries but so far as their credibility and truthfulness towards the culpability of the accused-respondents is concerned, the same would require proper appraisal of their evidence.
11.First of ali it may be mentioned, that the dimension of injuries, as per medico-legal reports, Exh.P .W.1/1 and P .W.1/2, in absence of any report of the FSL that the empties recovered from the spot were fired from two different weapons, would suggest that only one weapon was used. Further, no specific role of causing injuries to the complainant and injured eye-witness has been assigned to any of the accused/ respondents. Secondly, both the eye-witnesses alleged the motive for the occurrence to be an altercation, which had taken place before "Isha' prayers, but the altercation brought on the record through cross examination of both the injured witnesses was not the one as alleged. They disclosed the altercation between Muhammad Akbar, the accused respondent and one Abdul Jalil for the reason that Muhammad Akbar accused asked one Hafiz Ishfaq to -become "Imam" for the prayers as their own "Imam" was not present on that day and there is no mention of the complainant and the injured P.W. in this altercation. To cover up their story, they have also made improvements by saying that yet another altercation had taken place between them and the accused respondents over a dispute of civil litigation. This very assertion specially of P.W.5 gets contradicted by his own statement when he says that he came to offer `Isha' prayers five minutes before the time fixed for the prayers i.e, 9-15 p.m. and then he refers to the earlier altercation taken place between them and the accused respondents some ten minutes before the subsequent altercation. So, it appears on the record that the motive for the occurrence as alleged by the complainant does not get support from their evidence. Though, motive for the commission of offence is not necessary but once a motive is alleged by the prosecution, then that has to be proved. Reliance in this regard could be placed on Riaz Masih alias Mitto v. The State, (1995 SCM R 1730) and Jan Alam v. The State and another, (2004 PCr.LJ 68). Thirdly, an adverse inference in the .circumstances could be drawn against the prosecution for non-production of material witnesses of the occurrence without any plausible explanation. The august Supreme Court of Court of Pakistan in the case of Lal Khan v. The State (2006 SCM R 1846) has held that:- "the prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused."
12.In this case, a look at the prosecution evidence would reveal that the manner as to how and in what circumstances the occurrence took place is shrouded in mystery by concealing the material facts. In view of the admission of P.W.4 and P.W.5 that there was a civil litigation between the parties over some landed property, the prosecution was required to have produced at least one of the witnesses, who tried to separate the accused and complainant party at the time of occurrence.
13.As per F.I.R. as well as the statements of eye-witnesses at the trial, the occurrence had taken place at about 9-30 p.m., whereafter the injured were directly shifted to the hospital, where the report of complainant was taken by P.W.8 Jan Muhammad, S.-I. at 10-10 p.m. However, as per medico-legal reports, Exh.P.W.1/1 and P.W.1/2, the time of examination of the injured is 9-45 p.m. In the circumstances, the plea taken by the defence that the F.I.R. was lodged after preliminary investigation is not without force.
14.Besides other contradictions in the statements of the two eyewitnesses, there is yet another material contradiction in their statements. According to P.W.4 at the time when Abdul 'Jail , Muhammad Akbar (accused-respondent) and Hafiz Ishfaq had grappled with each other, they were standing outside the mosque while according to Hafizur Rehman (P.W.5) at that time they were present inside the mosque. It would thus lead one to a conclusion that both the witnesses, having a previous over some landed property with the accused, have not stated the whole truth and suppressed some material facts to be D brought on the record.
15.So far the factum of the statement of D.W.1 Mustamir Shah and the statements recorded during inquiry by the police is concerned, this Court is in agreement with the argument of the learned counsel for the appellant that the learned trial Judge should not have taken into consideration the same. It appears that during investigation the accused respondents had applied for an independent inquiry and resultantly statements of some eleven persons were recorded by the inquiry officer, which along with the application were brought on file as Exh.P.W.6/D/1 and Exh.P.W.6/D/2 by the defence in the statement of the I.O. (P.W.6). Perusal of those statement would reveal that the persons posing themselves to be present on the spot at the relevant time did not record their statements soon after the occurrence and it was only on the application of accused- respondents, when during the course of inquiry they came forward and recorded their statements.
Over and above, again they did not appear before the trial Court to prove the factum of their assertions. The I.O. (P.W.6) in his statement has not supported the genuineness of the statements recorded during inquiry and has stated that it was not in his knowledge as to whether some of the D.Ws., whose statements were recorded during the course of inquiry, had stated to him that both the injured were fired at by one Ghulam Rehman. Neither the I.O. has opined about the innocence of accused-respondents nor the alleged witnesses appeared before the trial Court, therefore, no reliance could be,placed on the same, even if it was brought on the record. Even otherwise, it is well settled principle of law that finding of police is not binding on the Court as the investigating agency has the only duty under law to collect evidence and it is only the prerogative of Court to give finding, after recording evidence and statements of accused regarding guilt or innocence of accused. Reliance is placed on the case of Anwar Shamim and another v. The State (2010 SCM R 1791).
16.Nevertheless, exclusion of the statements of witnesses recorded during inquiry and the statement of D.W.1, Mustamir Shah, from consideration would not, however, absolve the prosecution of its duty to prove the guilt of the accused beyond a reasonable doubt, which onus resting upon the prosecution has not been satisfactorily discharged in this case. The august Supreme Court of Pakistan in the case of Muhammad Asghar alias Nannah and another v. The State (2010 SCM R 1706) has laid down that:- "It is now settled that the onus is resting upon the prosecution to prove the guilt of the accused beyond a reasonable doubt throughout the trial and it never shifts to the accused except in the cases falling under Article 121 of Qanun-e-Shahadat Order, 1984, but it is inextricably linked to the presumption of innocence of the accused. The presumption of innocence remains throughout the case until such time, the prosecution on the evidence satisfied the Court/Judge beyond a reasonable doubt that the accused is guilty. The two concepts i.e, "proof beyond a reasonable doubt" and "presumption of innocence" are so closely linked together, that they must be presented as a unit. If the presumption of innocence is the golden thread of criminal justice then Proof beyond a reasonable doubt is the silver and these two threads are forever interwined in the fabric of criminal justice. Therefore, the expression is of fundamental importance to our criminal justice system. It is one of the principles, which seeks to ensure that no innocent person is convicted."
17. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal i.e, in the former appraisal of evidence is done strictly and in the latter interference is Only made when it appears that there has been gross misreading of the evidence, which amount to miscarriage of justice. The parameters regarding interference in the cases of acquittal have been laid down in Ghulam Sikandar's case (PLD 1985 SC 11), which have again been re-iterated in Dr. Israr-ul-Haq v. Muhammad Fayyaz 'and another (2007 SCM R 1427), Saira Bibi v. Muhammad Asif, (2009 SCM R 946) as under:- "(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 reappraisement 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 the fact that the acquittal carries with 4 the two well-accepted presumptions. One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence.
(2)The acquitted will not carry the second presumption and will also thus, lose the first one if on points 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 principles of re-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 re-appraisal of the evidence it comes to the 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".
' It would also not be out of place to quote the relevant lines from the case of Mst. Saira Bibi v.
Muhammad Asif and others (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 Court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal should not be reversed."
' The Apex Court has repeatedly taken similar views in Fayyaz Akhtar v. State (1993 SCM R 828), Muhammad Iqbal v. Abdid Hussain (1994 SCM R 1928), Azhar Ali v. The State (PLD 2010 SC 632) and Inamullah v. The State (PLD 2010 Peshawar 1375).
18. For the aforesaid reasons, I am of the view that even if the defence version is kept aside from consideration, the prosecution even then has failed to prove its case against the accused- respondents beyond any shadow of reasonable doubt and the benefit of doubt so arising in the case has thus rightly been extended to the accused-respondents by the learned trial Court. The impugned judgment therefore requires no interference and the appeal in hand, being devoid of substance, is hereby dismissed.