' ABDUL LATIF KHAN, J.---Through the instant appeal, the appellant has called in question the judgment dated 29-11-2010 passed by learned Additional Sessions Judge-IV, D.I. Khan vide which accused/respondent No, 1 was acquitted in case F.I.R. No,360 dated 26-11-2006 registered, under sections 302/324/34, P.P.C. At police station University, D.I. Khan.
2. The prosecution story, in brief, is that on 26-11-2006 at 1850 hours, the appellant/complainant Shadoo brought the dead body of his son Rehmatullah along with injured Muhammad Aamir and Jehangir to Civil Hospital, D.I. Khan and reported that on the said date, after `maghrib' prayers, he along with his son Rehmatullah went to the shop of Farid. His son went inside the shop to purchase some stuff whereas he remained outside the shop chatting with one Riaz. At about 6 p.m., accused/respondent came there riding a Honda 125 motorcycle, carrying behind him, co-accused namely Muhammad Ashraf and Ramzan, armed with Kalashnikov. Both the co-accused descended from the bike, entered the shop and opened fire at his son Rehmatullah who fell down while two other persons in the shop namely Muhammad Aamir and Jehangir also received bullet injuries and after the occurrence, all the accused decamped from the spot.
3. After completion of usual investigation, complete challan was submitted under section 512, Cr.P.C. As all the accused were absconding. Later on, co-accused Muhammad Ramzan was arrested. He faced trial and was acquitted on 22-4-2009. Thereafter, accused respondent No,1 was arrested and supplementary challan was submitted against him. He was formally charged to which he did not plead guilty and claimed trial. In order to prove its case against the accused/respondent, the prosecution examined eight. P.Ws. Statement of the accused/respondent was also recorded under section 342, Cr.P.C., but neither wished to be examined on oath nor desired to produced any evidence in his defence. After hearing the arguments, the learned trial Court acquitted the accused/respondent vide judgment dated 29-11-2010, impugned herein.
4. Learned counsel for the appellant contended that three accused were charged in the F.I.R.
Lodged on the basis of murasila got recorded by Shadoo son of Gulsher. Accused/respondent Salim has been acquitted by the trial Court without proper appreciation of evidence available on file. Accused Ashraf is still absconder whereas co-accused Ramzan died and proceedings against him were abated. It was contended that it is a daylight occurrence, witnessed by Muhammad Aamir and Jehangir, examined as P.W.2 and P.W.3, who have supported the version of the prosecution, but the trial Court has wrongly evaluated the evidence of these witnesses. He contended that so far as incident of firing is concerned, it stands established. The complainant Shadoo has fully supported the version made in the F.I.R. The medical evidence also supports the ocular account. Recoveries were made from the spot. The site plan was prepared at the instance of complainant and eye-witnesses, which is in complete corroboration of the evidence available on file. It was argued that the accused/respondent was nominated in a promptly lodged F.I.R. Who remained absconder for considerable period, which has not been explained. It was argued that the acquittal of co-accused Ramzan, now dead, was due to the fact that injured witnesses named above were won over by the accused, who were declared hostile and then faced proceedings under section 193, P.P.C.
5. The learned A.A.-G.' representing the State supported the arguments of learned counsel for the appellant and prayed for conviction of the accused/respondent on reversal of impugned judgment.
6. As against that learned counsel for the accused/respondent contended that eye-witnesses namely Riaz and Abdul Majeed have not been produced. He referred to the site plan and argued that no point has been given to Abdul Majeed, nor any reason assigned as to why the owner of the shop has not been examined. He contended that the version of F.I.R. Has been negated by the complainant himself whereas P.W.2 and P.W.3 have given altogether different version, totally contrary to the prosecution case.
7. We have given our anxious thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
8. The prosecution case, as gleaned from the report made in murasila recorded by Shadoo son of Gulsher, is that he along with his son Rehmatullah went to the shop of Ghulam Farid. He remained outside standing with one Riaz while his son went inside the shop and in the meanwhile, accused/respondent Muhammad Salim came there riding a Honda 125 motorcycle along with two co-accused Muhammad Ashraf and Mohammad Ramzan, armed with Kalashnikovs and both Ashraf and Ramzan, after descending from the bike,. Entered the shop and with intention to cause murder of his son, opened fire which hit his son Rehmatullah who fell down and two other persons namely Aamir and Jehangir also received injuries and after the occurrence, all the accused decamped from the spot. The injured were rushed to the hospital in a Datsun but on the way Rehmatullah died. The occurrence was witnessed by Shadoo, injured Abdul Majeed and Riaz.
Motive between the parties was stated to be previous blood feud.
9. The prosecution produced Shadoo as P.W.1, who has negated the version of F.I.R. By deposing that all the three accused i,e, Mohammad Salim, Ashraf and Ramzan, were having 7.62 bore rifles and all of them opened fire at his son. He has also negated his own version that he and his son had gone to the shop together. He admitted in cross- examination that he has not seen the accused at the time of firing at the deceased and injured, because the accused had entered inside the shop and fired at the deceased while he was -outside the shop. He was unable to explain as to how much shots were made by each of the accused. He also negated his statement recorded in previous trial to the effect that accused Ramzan and Ashraf had entered inside the shop and he could not say as to whether Salim accused had actually entered the shop or not.
10. Injured witness Muhammad Aamir was examined as P.W.2, who deposed that he along with the deceased Rehmatullah and P.W. Jehangir were present inside the shop of Ghulam Farid. At about 6 p.m., accused Salim came to the shop, purchased 'mongphalli' and then left the shop. About 15-20 minutes after Salim had left the shop, the firing started, who had seen accused Salim firing with Kalashnikov and as a result of firing directed by accused Salim, Rehmatullah deceased, he and P.W. Jehangir got injured. He deposed that as he was injured, therefore, noticed nothing. He deposed in cross-examination that he has not seen accused Ramzan and.Ashraf, however, the firing was directed by Salim. He was unaware of the shots fired by accused Salim. He deposed that Salim accused was present inside the door of shop of Farid at the time of directing fire. He further stated that there was no conversation between the accused Salim and deceased Rehmatullah before Salim had opened fireshot at Rehmatullah.
11. The other injured Jehangir was examined as P.W.3, who deposed that Salim accused reached the spot and started firing at Rehmatullah, as a result of which Rehmatullah, he and Aamir got injured, the accused then left the spot and they were taken to the hospital. He stated that during the trial of accused Ramzan, he was declared as hostile, as a result of which complaint under section 193, P.P.C. Was lodged against him. He showed his ignorance about the shots fired by accused Salim.
12. The shopkeeper Ghulam Farid, alleged eye-witnesses Riaz and Abdul Majeed were not examined by the prosecution. The statements recorded by complainant (P.W.1), Muhammad Aamir (P.W.2) and Jehangir (P.W.3), injured witnesses, are contradictory to each other as well as contrary to the initial report made by complainant Shadoo. The injured witnesses have given altogether different story to the ocular account advanced by the complainant.
13. Appraisal of evidence in appeal against acquittal could not be made rigidly and in the manner of appreciation of evidence in appeal against conviction, as in case of acquittal, the Court has already appraised the evidence after proper analysis of the record. In case of acquittal, the scope is considerably narrow. The mere fact that injured, shown as eye-witnesses by the prosecution, having sustained injuries during the occurrence, would not ipso facto be taken as sufficient evidence to the effect that they have spoken the whole truth. In the instant case, they have departed from the version of the prosecution and due to grave contradictions with prosecution case as well as complainant, their testimony cannot be relied upon, safely.
14. The site plan, Exh.PB, was prepared on the pointation of complainant, eye-witness Riaz and shopkeeper Ghulam Farid. Both these witnesses have not been examined by the prosecution for the reason best known to them. The points shown in the site plan are contradictory to the statements made by the prosecution witnesses. The version of the prosecution initially shows that Salim accused was not attributed the role of firing, rather the other two co-accused were attributed, the role of firing with. Kalashnikov while Salim was shown outside the shop, riding a bike, and then decamped from the spot, but the evidence speaks otherwise, which shows that the accused/respondent has not taken part in actual killing of the deceased. The learned trial Court has properly evaluated the evidence, and we are of the considered view that the acquittal of the accused/respondent does not suffer from any illegality. The learned counsel appearing on behalf of the appellant could not point out any gross misreading of evidence which can be termed as miscarriage of justice.
15. For the reasons mentioned above, the instant appeal being devoid of merits is hereby dismissed.