' QAISER RASHID KHAN, J.---The appellant namely, Noor Wali Khan son of Haji Hakeem Khan, through the instant appeal filed under section 417(2)(A), Cr.P.C. Has challenged the judgment dated 30-1- 2009 passed by the learned Additional Sessions Judge-VI, D.1.Khan, vide which the accused/respondents were acquitted of the charges levelled against them.
2. Brief facts of the instant case are that on 29-9-2011 at 20.30 hours, the complainant reported the matter to the local police that he along with his uncle Said Wali Khan and Salamat Khan (deceased) were going towards Rahman Pul Canal; that he and Said Wali were busy in talking while Salamat Khan deceased reached to the canal before them; that near the canal Surat Mir, Dunya Mir, Essa Mir, Sodal Mir and Sadey Mir were present and altercation between them and deceased took place and they started manhandling Salamat Khan; that he and Said Wali ran towards them to rescue Salamat Khan, but in the meanwhile Surat Mir raised lalkara to finish him.
Then Dunya Mir and Essa Mir caught hold of the deceased from his hands while Sodal Mir from backside and. Sadey Mir attacked Salamat Khan with his dagger and when Said Wali tried to rescue Salamat Khan from them, he was also attacked by them but luckily he escaped unhurt.
Salamat Khan succumbed to his injuries. After the occurrence, the accused decamped from the spot, hence F.I.R. No.321 dated 29-9-2001 under sections 302/148/149, P. P C . Registered at police station, Saddar D.I. Khan.
3. After completion of investigation and other requisite formalities, the accused were summoned to the court where they were formally charge sheeted to which they did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against the accused/respondents produced and examined eight witnesses.
4. Thereafter statements of the accused were recorded under section 342, Cr.P.C. Wherein they denied the allegations in toto, but neither wished to be examined on oath under section 340(2), Cr.P.C. Nor produced any defence evidence The learned trial Judge after hearing the arguments of the learned counsel for the parties, passed the impugned judgment dated 30-1-2009 acquitting the accused/ respondents, hence the instant appeal.
5. Learned counsel for the appellant argued that the impugned judgment of the learned trial Court is against law, facts and available record; that the prosecution has proved its case against the accused respondents through ocular evidence duly supported by medical evidence but the learned trial Court erred in acquitting the accused/respondents. The learned State Counsel also threw his weight behind the arguments of the learned counsel for the appellant and stated that the learned trial Judge has erred both legally and factually while acquitting the accused/respondents.
6. On the other hand, learned counsel for the respondents/accused argued that the occurrence took place on 29-9-2001 at `digar qaza vela' while the report was lodged on :the same day at 2030 hours and the said delay has not been explained by the prosecution; that both the witnesses i.e. The complainant Noor Wali Khan and Said Wali are relatives of the deceased, therefore, being interested witnesses, their evidence is not reliable and the learned trial Court has rightly appraised and appreciated the same while acquitting the accused/respondents.
7. Arguments heard and record perused.
8. The prosecution, in support of its case, examined eight witnesses. The brief resume of the prosecution evidence is as under:-
9. P.W.1, Amanullah LHC, escorted the dead body of deceased and confirmed the contents of recovery memo Exh.PC. P.W.2, Fazl-e-Karim constable, confirmed the contents of recovery memos Exh.PC and Exh.PC/1. P.W.3, Muhammad Nawaz Sub-Inspector incorporated the contents of murasila into F.I.R. Exh.PA. P.W.4 is the statement of Dr. Akhtar Javed who conducted the autopsy on the dead body of deceased Salamat Khan and verified his postmortem report Exh.PM and also endorsed the injury sheet Exh.PM/1 and inquest report Exh.PM/2. P.W.5, Tilawat Khan, identified the dead body of deceased before the doctor and police. P.W.6, Noor Wali Khan, confirmed the contents of his report Exh . P.W .6/1. P.W .7 , Wali, reiterated the same facts as narrated to the police.
P.W.8, Muhammad Iqbal Khan, S.H.O., who is the Investigating Officer of the case drafted murasila Exh.P.W.6/1 on the report of complainant, prepared injury sheet Exh. PM/1, inquest report Exh. PM/2, prepared site plan Exh. P. W . 8/1, recovery memos Exh.PC & Exh.PC/1, handed over the dead body of the deceased to the legal heirs vide receipt Exh.P.W.8/2, drafted applications for issuance of warrants under section 204 and proclamation notice under section 87 Cr.P.C. Exh. P. W . 8/3 & Exh.P.W.8/4, recorded statement of the witnesses under section 161 Cr.P.C, arrested the accused and after completion of investigation submitted complete challan against the accused.
10. As per initial report, the accused Surat Mir was attributed the role of lalkara. Complainant stated that he and his cousin Said Wali tried to rescue the deceased from the clutches of the accused but failed and the accused kept beating and hitting the deceased. Neither their clothes were stained nor hands or body smeared with blood as the record shows.
11. The record further reveals that there are material contradictions in the statements of P.W.6 namely. Noor Wali Khan, complainant and that of Muhammad Iqbal Marwat S.H.O. (P.W.8). To a question, P.W.6 replied that, "We took the dead body to Chowk/baithak by foot. 1 do not remember the number of persons who carried the dead body along with us to our baithak". We also took the police to our baithak. On his turn, P.W.8 came up with an altogether different statement while deposing in his examination-in-chief that. "On 29-9-2001 at the relevant time of occurrence, 1 was on gasht and on receipt of information about ,the occurrence, 1 reached the place of occurrence, where complainant Noor Wall Khan has lodged the report, which I incorporated/drafted in shape of murasila which is Exh.P.W.6/1 (already) in respect the occurrence mentioned therein. After reducing into writing the report of complainant I read over the same to him, who signed the same as a token of its correctness. I then completed the same and affixed my signature on it. I sent the copy of murasila to the Police Station for registration of the case. f also prepared injury sheet of deceased Salamat Khan inquest and report of him, which are Exh. PM/1 and Exh. PM/2 respectively.
I sent the dead body of deceased Salamat Khan to the hospital in custody of Aman Ullah Constable for postmortem." After having put forward two versions by the said P.Ws., it remains unclear as to whether the report was lodged on the spot, or whether the dead body was firstly taken to the baithak of the complainant or as per the statement of Muhammad Iqbal (P.W.8), after the preparation of injury sheet and inquest report by him, the dead body of deceased Salamat Khan was sent to the hospital in the custody of Amanullah constable for postmortem. The said two accounts raise serious question marks about the true account as believing one would rule out the other.
12. As per the complainant, the occurrence took place at digar qaza vela' on 29-9-2001. After roughly calculating the said time, the same is somewhere between 5-35 p.m. To 6-00 p.m. On the relevant date of the month of September. In that case if the complainant's version regarding the lodging of the report on the spot is believed, then it is not understandable as to how and why the dead body was kept on the spot for about three hours till the arrival of the police when the report was lodged at 2030 hours and why it was not taken to the police station for doing the needful. The said delay strikes at the root of the prosecution version and moreso when conflicting versions were put forward by the complainant and Muhammad Iqbal S. H . 0 .
13. As far as the motive part is concerned, the same too though alleged, but was not proved during the course of evidence and remained shrouded in mystery till the last. As per the postmortem report, the deceased Salamat Khan was barely 14/15 years of age and the motive as alleged by the complainant was the dispute over the irrigation of landed property. In such like cases, the common experience tells us that it is always the elders of the families who turn inimical to each other over such water/irrigation disputes and certainly not a youngster of 14/15 years of age who was allegedly chosen by the accused party to settle scores.
14. Another intriguing feature of the case is that the complainant appeared in the trial Court as P.W.6 and stated in his cross-examination that Tilawat Khan informed the police but the said Tilawat Khan when appeared before the learned trial Court as P.W.5 candidly stated that, "I identified the dead body of the deceased after postmortem examination before the doctor and local police" and did not utter a word that he ever informed the police about the occurrence. This again casts serious doubt on the complainant's version, notwithstanding the fact that said Tilawat Khan is an independent but important prosecution witness.
15. Thus by all counts, the prosecution version is replete with contradictions. It has been the consistent view of the honourable superior Courts that in such like cases, single circumstance creating doubt in a prudent mind, its benefit must be extended to the accused, in the instant case, the respondents.
16. By now it is settled law that when an accused is acquitted by a competent court of law after facing the agonies and ordeal of a protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate Court unless it is established through cogent and tangible evidence available on record that such acquittal is fanciful, erroneous or has resulted into grave miscarriage of justice. Reliance in this respect may also advantageously be placed on the dicta handed down by the honourable Apex Court in 2004 SCM R 249, 2009 SCM R 288 and 2009 SCM R 946.
17. For the reasons stated above and for grounds recorded by the learned trial Court in the impugned judgment, we find no reason to interfere therewith. Resultantly, the instant appeal being devoid of any force is hereby dismissed.