' ROOH-UL-AMIN KHAN, J.--- Appellant Ajmar Ali Khan has questioned the judgment of learned Additional Sessions Judge-I, Bannu dated 26-4-2012, whereby respondents-accused Muhammad Ali was acquitted of the charge in case F.I.R. No,347, dated 2-10-2010, registered under sections 302/324/34, P.P.C., at Police Station Basia Khel District, Bannu.
2. As per contents of F.I.R., complainant Ajmar Ali Khan, on the eventful day at 1500 hours, along with Maazullah Khan and Zohaib Khan, was present in the shop of butcher Dilawar Khan for the purpose of purchase of meat. In the meanwhile, accused. Muhammad Ali Khan, Jamshed Khan and Javed Khan, came there duly armed with pistols and on seeming them, resorted to firing, as a result of which Maazullah was hit in the shop of butcher and died on the spot. The complainant and Zohaib Khan in order to save their lives, started running but they were given chase by the accused, during which course, they were fired, as a consequence whereof, Zohaib was hit and died while complainant luckily escaped. The accused made their escape good from the crime spot. Motive for the occurrence is causing injury to complainant by accused.
3. On completion of investigation, challan was submitted against the accused, where he was formally charge-sheeted to which he pleaded not guilty and claimed trial. In order to prove the guilt of the accused, prosecution examined eight witnesses. After close of the prosecution evidence, statement of accused under section 342, Cr.P.C. Was recorded, wherein he denied the prosecution allegations and professed his innocence. The accused declined to be examined on oath or to produce evidence in defence. On conclusion of trial, learned trial Court vide impugned judgment acquitted the accused.
4. We have considered the respective submissions of the learned counsel for the parties and have gone through the record:
5. Record depicts that F.I.R. No,346, has been registered by complainant Muhammad Ali _(accused herein) against complainant party of the instant case, in the same Police Station, on the same day, in which the time of occurrence and venue of crime are the same. According to report of Muhammad Ali, on the eventful day he along with his son Jamshed Khan had come to "Torka Adda". At 1500 hours, when they reached the shop of one Noor Zaman (vegetable vendor), accused Ajmar Ali and Razaullah along with two unknown accused came there. Accused Razaullah was armed with .12 bore pistol while the unknown accused were armed with .30 bore pistols. On sighting the complainant party, accused Ajmar Ali commanded his co-accused to kill, as a result of which, co-accused resorted to firing with intention to commit Qatl-e-Amd. Due to firing of the accused, complainant and his son Jamshed were hit and injured. After the occurrence, the accused decamped from the spot. Motive for the crime as stated by complainant is previous fight between the parties in which accused Ajmar Ali was injured. People of the locality shifted the complainant and his son in injured condition to Civil Hospital Bannu, where complainant Muhammad Ali reported the occurrence.
6. We are confronted with an incident regard which two F.LRs, have been registered by the parties.
In both the F.I.Rs, the time and place of occurrence as well as the parties are the same. In the cross F.I.R, lodged by Muhammad Ali, he and his son Jamshed Khan have sustained firearm injuries allegedly at the hands of accused while in the instant F.I.R. No,347, two persons have- lost their lives.
In such state of affairs, the prime question for determination would be that who was the aggressor and who was aggressed upon. From the combined perusal of evidence of both the cases, it seems a Herculean task to fix the responsibility that which party, out of the two, was the initiator of the episode because complainants of both the cases have concealed the real and true facts of the tragedy. None of the two versions furnished by complainant of the two F.I.Rs, appealable to mind.
Complainant Ajmar Ali at the first instance introduced the story that at 1500 hours, when they reached the butcher shop, at Torka Adda, for purchase of beaf, the accused party on seeing them started firing at them but in site sketch the complainant along with his companion has been shown inside the shop of Mumtabaz. The complainant has alleged that he was present near the shop of Dilawar Khan butcher, but neither he has been cited as witness nor his presence has been shown in the site plan. Likewise, the other shopkeeper namely Mumtabaz was neither examined by the police nor pointed in the site plan, despite the fact that the occurrence has taken place in his presence inside his shop. Both the parties have concealed material facts and have narrated incomplete stories. Now it is a declared law that the incompleteness of the story from both the sides, would no deter the Court of law to complete the true story for resolving the controversy. Complainant of instant F.I.R. No,347, has not established his presence on the spot and the story set forth by him is unbelievable because as per site plan he was so close to deceased Maazullah who allegedly was done to death by three accused who were armed with pistols but the complainant did not receive a single scratch what to speak of any firearm injury despite the fact that the accused had direct motive and enmity with the complainant only, as evident from the record, but he was let free, which seems unbelievable.
7. The medical evidence of both. The cases does not support the respective version of the complainants. In the instant case F.I.R. No,346, the complainant and injured Jamshed have sustained single firearm injury each while four accused are charged for firing at them including dead co-accused. Out of the four accused, none is charged specifically for this single injury. Which of the four accused caused the single injury on the person of complainant and his injured son is shrouded mystery. Similarly, notwithstanding the fact that four accused have been attributed the role of simultaneous firing at the complainant and his son Jamshed, out of who accused Razaullah has been attributed firing with .12 bore pistol but neither any empty has been recovered from the spot nor any crime weapon from the accused. Thus, in these circumstances, none out of the four accused, could be saddled for the single injury caused to each injured. No doubt, in hurt cases statement of an injured witness supported by medical evidence is sufficient for .Recording conviction if the same is trustworthy and confidence inspiring. In the instant case both the injured witnesses have concealed the real facts of the incident. The injured complainant in order to minimize his role has even not disclosed the name of accused Maazullah and Razaullah (the deceased of cross-F.I.R. In which present complainant and his son are charged for their murders.
8. Similar is the position of instant F.I.R No,347. Complainant Ajmar Ali has not established his presence on the spot, at the time of alleged incident through his ocular testimony which is shaky and deficient having no corroboration from other material pieces of evidence. Rather the circumstantial evidence is in conflict with his version. Allegedly, deceased Maazullah was done to death inside the shop of Mumtabaz while three accused have been shown firing at him. As per autopsy report of the deceased the doctor has observed a single fire arm entry wound with corresponding exist on his person. Neither in the report nor during his statement, has the complainant attributed this single injury to any of the three accused. Moreover, the injury caused by the deceased, according to medical evidence, was from upward to downward, which depicts that the assailant was on higher level than the deceased when he was shot dead but the site plan no such explanation has been given to show that the accused were on higher level than the deceased. Thus, this aspect of the case creates doubt regarding the mode and manner of the occurrence as alleged by the complainant and also deny the presence of complainant at the spot.
None of the complainants of the two cases have produced shopkeeper of the shop in which the incident had allegedly taken place to establish their presence at the spot as well as the occurrence. Similarly, in case F.I.R. No,347, no o crime empty has been recovered from the spot nor any crime weapon from the direct possession or on the pointation of the accused.
9. The facts and circumstances of both the cases are suggestive of the fact that the occurrence has not taken place in the mode and manner as alleged by complainant of both the cases. Rather, the same has been taken place in some other way and that too in absence of the complainants. If they were natural witnesses of the incident they might have furnished the true account of the incident.
10. It is well-settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remains slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or are the result of bare misreading or non-reading of any material evidence. In case titled "Muhammad Mansha Kausar v. Muhammad Asghar and others (2003 SCM R 477), the apex Court observe:-- "That the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-reading of evidence law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible"
' Similar view was reiterated by the apex Court in case titled "Muhammad Tassweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), in the following words:-- "Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record."
' The principles of criminal petitions against conviction and against acquittal are enunciated in case title "Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637" as follows:- "It is also a settled law that there are different parameters/principles prescribed by this Court with regard to decide the criminal petitions against conviction and criminal petitions against acquittal.
The impugned judgmept with regard to acquittal should be either perverse, arbitrary or without any sustainable :-easons, as law laid down by this Court in Ghulam Sakindar's Case PLD 1985 SC 11."
In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondents/accused by extending them benefit of doubt, after proper appraisal of evidence to which no exception can be taken.
11. For the reasons discussed above, complainant of both the cases have concealed the facts of actual episode on the basis of which it is not certain that which of the two parties, was the actual initiator of this occurrence and who was aggressed upon. The learned trial Court has very thoroughly and properly thrashed the evidence and has reached to a right conclusion to which no exception could be taken.
12. Consequently, this appeal is devoid of force which is hereby dismissed.