ASSADULLAH KHAN CHAMKANI, J.---Accused-respondents Sabir, Fazal-e-Mabood, Abdul Jabbar and Sahib Zada all residents of Dalay Thana Kabal, were tried by learned Additional Sessions Judge/ Izafi Zilla Qazi-II, Swat, for offences under sections 302/324/353/34, P.P.C., in case FIR No, 163 dated 5.5.1998, registered at Police Station Ghalagay. At the conclusion of trial, vide judgment dated 26.8.2000 the accused-respondents were acquitted of the charge by extending them benefit of doubt. Mst. BuKhti Harem and State through Advocate General have preferred Criminal Appeals Nos. 365/2000 and 498/2000 respectively against the impugned judgment. Since both the appeals have been filed against one and same judgment, therefore, we intend to dispose of the same through this single judgment.
2. Facts of the case, are that on 5.5.1998 Asmat Shah (PW-1) lodged a report in Civil Hospital, Barikot, that there was information regarding smuggling of timbers (slippers) through 'Jalla boat' in the river Swat, on such information, on the direction of their high-ups, he along with Ali Rehman, forest guard and Usman Ghani made `nakabandi' at Gaman bridge under the command of deceased Abdul Bashir Forester. At about 01.30 hours a 'Jana boat' came in the river containing timbers, which was seen through beam of head-light of vehicle in which four persons were boarded. They tried to stop the 'Jana' but the persons sitting in it were not ready to stop it. While chasing the 'Jalla', they boarded in their own 'tube Jalla' and when they reached near adjacent to the 'Jalla' of smugglers, they identified them in the lights of Torch to be Abdul Jabbar, Fazal Mabood sons of Abdul Shaheed, Sabir son of Gulbar and Sahib Zada son of Muhammad Darvesh. The smugglers were asked to stop but they started altercation with them and simultaneously started giving blows to them with sticks and `chapos' of 'Jana' as a result of which Abdul Bashir Forester was hit on his head at the blow of Abdul Jabbar and fallen into the river while he received injuries on his left ear and shoulder. Similarly, Ali Rehman also received injuries on his left hand-elbow. The smugglers after the occurrence decamped from the spot. Later on, they started search of Abdul Bashir and his dead body was found at place Kota in the river Swat, having big wound on his head.
The occurrence was stated to be witnessed by his companions. Motive for the occurrence was that they were forbidding the accused from smuggling of timbers. The report of complainant was reduced into writing in shape of Murasilla ExPA and on the basis of it; the above referred FIR was registered.
3. Sadique Akbar Khan SHO after recording report of complainant, preparing injury sheet and inquest report of the deceased, proceeded to the spot and prepared the site plan Ex.PB at the pointation of complainant and eye-witnesses. He secured blood through cotton from the dead body of deceased. He also took into possession torch, vide memo. Ex.PW 4/1. He recorded statements of PWs under section 161, Cr.P.C. He arrested accused Fazal Mabood, Sabir, Abdul Jabbar and Sahib Zada. He also took into possession 'Jalla tube' along with two chapos. He also recovered a chapo as weapon of offence at the pointation of accused Abdul Jabbar. After completion of investigation, complete challan in the case was submitted before the trial Court.
4. On the commencement of trial, the prosecution in order to prove its case produced nine witnesses. After closure of prosecution evidence, accused were examined under section 342, Cr.P.C.
In which they professed innocence and stated false implication in the case. However, they were neither ready to be examined on oath nor wished to produce defence. Learned trial Court after hearing learned counsel for parties, acquitted the accused-respondents, vide the impugned judgment, hence, the present appeals.
5. Mr. Sher Muhammad Khan, Advocate, in support of the appeal filed by Mst. Bukht Haram submitted that the accused-respondents have been charged directly by the complainant in his report and the delay caused in lodging the report has also been plausibly explained. He submitted that presence of eyewitness Asmat Ullah (PW-1) and Ali Rehman (PW-2) has been established as both the PWs having the stamps of injuries on their persons. He further submitted that the evidence available on record especially the testimony of eye-witnesses coupled with medical evidence, recoveries during course of investigation sufficiently established guilt of the respondents, therefore, the order of acquittal recorded by the learned Trial Court is arbitrary, perverse, fanciful and against the principles of law and justice. According to him, the learned trial Court failed to appreciate evidence on record on its true perspective, therefore, the judgment of Trial Court is liable to be set aside and the accused-respondents may be convicted and sentenced in accordance with law.
Learned AAG appearing on behalf of the State also submitted that the impugned judgment is the result of mis-appreciation of evidence on record.
6. Syed Sultanat Khan, Advocate, learned counsel for respondents, on the other hand, submitted that it is night occurrence and accused-respondents have been charged on the basis of suspicion because identification of four persons in the light of torch is impossible. He submitted that PW-1, PW-2 and PW-3 are officials of the Forest Department and the deceased was also serving in the said department, therefore, they are interested witnesses. According to him, their testimony requiring independent corroboration but prosecution has failed to produce any independent witness. He submitted that the evidence of prosecution has been properly assessed by the trial court and the conclusion regarding acquittal of the respondents are based or sound and cogent reasons. He submitted that there are contradictions in the evidence of prosecution which are sufficient for creating doubt with regard to involvement of respondents in the commission of offence. On the conclusion of arguments, he submitted that double presumption of innocence is attached because of acquittal of the respondents by the competent Court; therefore, the impugned judgment needs no interference by this court.
7. We have considered the arguments of learned counsel for parties and have gone through record of the case.
8. No doubt, it is settled law that normally the superior Courts do not interfere with the judgment of acquittal but it is also settled principle of the apex Court of the country that where acquittal is the result of non-reading or misreading of material evidence on record or the said acquittal has led to gross miscarriage of justice or the same is arbitrary, capricious or against the record, the said judgment of acquittal is to be interfered with and the accused is to be convicted accordingly.
Reliance is placed on the case Muhammad Ali v. Muhammad Yaqoob and 3 others (1998 SCMR 1814), wherein it has been held that finding of acquittal is not sacrosanct if the reasons given are of speculative or artificial in nature or the same is based on no evidence or on misreading or misinterpretation of evidence, or the conclusions drawn as to the guilt or innocence of accused are perverse resulting into miscarriage of justice. In the case in hand, although, the trial Court recorded acquittal of the respondents-accused but on perusal of evidence on record it has been established that the conclusion drawn by the trial Court is on erroneous premises as sufficient material is available on record to establish the guilt of the respondent-accused Abdul Jabbar. The record reveals that respondent-accused Abdul Jabbar has been assigned specific role of giving `chapo' blow to the deceased Abdul Bashir but the evidence produced by the prosecution against him has been disbelieved by the Trial Court. Complainant Asmat Ullah when appeared before the Trial Court as PW-1 deposed that he was performing his duty as Forest Guard in Forest Department.
On 4.5.1998 his high-up received information regarding smuggling of timbers through 'Jalla boat', therefore, a party consisting of Ali Rehman, Usman Ghani, including him, under the command of deceased Abdul Bashir Forester was arranged. They in a Government vehicle driven by Ghani ur Rehman went to Gaman bridge, situated in the limit of Police Station, Ghaligay, where they made a barricade (nakabandi). At 1.30 hours a 'Jana boat' containing timbers came and the persons sitting therein were signaled to stop. They saw four persons in the lights of Torch as well as head lights of vehicle. They chased the boat and when they reached near adjacent to it, they identified the smugglers in the light of Torch. The smugglers started altercation, with them and also started giving sticks and chapo blow's (inadvertently written as chapo due to clerical mistake) and with the chapo blow of Abdul Jabbar, deceased abdul Bashir was hit on his head while he received injuries on his left ear and shoulder whereas Ali Rehman received injury on his left hand. Ali Rehman appeared as PW-2, who fully corroborated the statement of complainant (PW-1) and almost narrated the same facts as stated by PW-1. The prosecution also produced Ghani ur Rehman as PW-3, who was driver of the Government vehicle during the days of occurrence and on the night of occurrence he took the deceased and eye-witnesses to the place of barricade (nakabandi) in a Government vehicle bearing registration No, Swat-1108. He also fully supported the testimony of P'W-1 and PW-2. Statements of all the three PWs have remained unshaken in spite of lengthy and searching cross-examination. On thorough scrutiny and appraisal of evidence, their un- impeached versions are apparently truthful and confidence inspiring. The injuries on the persons of PW-1 and PW-2 are suggestive of the fact that they were not only present on the spot at the relevant time but have also seen the accused Abdul Jabbar from very close range. It is also clear from the record that the accused Abdul Jabbar was identified in the torch light. The reliability of PWs is duly established from the available material on record. The witnesses were quite natural and expected to be present at the relevant time. They have clearly implicated respondent Abdul Jabbar for giving fatal blow to the deceased Abdul Bashir.
After going through the entire evidence, we are of the view that the ocular account furnished by PW- 1 and PW-2 are not only consistent but also confidence inspiring. The contradictions pointed out by the learned counsel for respondent being of trivial nature, therefore, could not damage the veracity of the PWs.
9. The ocular testimony is fully corroborated by the medical evidence. Dr. Fazla Amin, who externally examined the deceased, appeared as PW-6 and found the following on his person.
A lacerated wound along the top of the head slightly on the left side. Wound was six inches in length and one inch broad. The skull bone was visible and wound was blood stained. Rigor mortis was not fully developed. Signs of drawing like froth in the nose and distention of abdomen were present.
Duration of injury was within twelve hours. The cause of death was drowning secondary to the wound on the head.
The medical evidence when placed in juxtaposition with the ocular account, the same appears to match each other. From the evidence available on record, it is evident that the prosecution has been able to produce natural and convincing evidence which implicates respondent Abdul Jabbar with the commission of offence.
10. No doubt, there is delay of about seven and half hours in lodging of the report but keeping in view the facts and circumstances of the case, the delay has been reasonably explained. It is settled law that in criminal cases the delay, by itseff, in lodging the FIR is immaterial. The factors to be considered by the Courts are, firstly, that such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved. Wisdom is sought from the case Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872). According to the contents of the FIR and statements of PWs, after the occurrence, the complainant and PWs were searching the deceased Abdul Bashir. It was night time, therefore, complainant could not lodge report just after the occurrence and when the dead body of deceased was found, then he lodged the report. Even otherwise, delay in lodging of report is only material when there is doubt regarding identity of culprits or there exist enmity between the parties. In the present case, accused-respondent Abdul Jabbar was already known to the complainant and PWs. Complainant in his statement relied on copies of FIR Ex.PW 1/2 to Ex.PW 1/7. The perusal of above exhibits reveals that the accused-respondent Abdul Jabbar was involved in so many smuggling of timbers cases, meaning thereby, he was already known to the complainant and PWs being employee of Forest Department. Beside it, the report has been lodged by the complainant, who himself is an eye- witness of the occurrence, having complete details regarding names of Abdul Jabbar and role played by him. There is no evidence of enmity or previous ill-will between the accused Abdul Jabbar and PWs, therefore, it excludes possibility of deliberation and consultation. Learned defence counsel tried to argue that the benefit of more than seven hours delay in lodging the FIR should go to the respondent but neither the identity of the accused-respondent is doubted nor there is previous between the parties nor there is a shred of evidence which could suggest that the time has been consumed in consultation to build up a story to rope in some particular individuals, therefore, such benefit is not available to the respondent. Reliance is placed on the cases Zar Bahadar v. The State (1978 SCMR 136), Haji Mir Aftab and 4 others v. The State (PLD 1981 Peshawar 23). Learned counsel for the accused-respondent attempted to point out certain discrepancies in the statement of PWs, medical evidence and site plan by suggesting that the occurrence has not taken place in the mode and manner as narrated by the prosecution but on perusal of the statements of complainant Asmat Ullah, Ali Rehman, Ghani ur Rehman and Dr. Fazal Amin would reveal that these is not in serious conflict. Though, there are minor discrepancies or variation but in our opinion, it does not have any material significance on merits of the case. Therefore, taking into consideration the evidence produced by the prosecution, we are persuaded to hold that the conclusions drawn by the Court below for involvement of accused-respondent Abdul Jabbar in the commission of above offence is not based on sound and cogent reasoning.
11. A careful examination of the statements of complainant and PW Ali Rehman shows that they have narrated the occurrence in detail. Their testimony is consistent and rational and they have fully implicated the accused-Respondent Abdul Jabbar for giving fatal blow to the deceased. Their versions have further been corroborated by the testimony of Ghani ur Rehman PW-3, Investigating Officer and medical officer. They were subjected to a lengthy cross-examination by the learned defence counsel but nothing damaging aspect was extracted from their mouth. The contradictions pointed out by the learned counsel for the accused-respondent would not make the whole case unbelievable rather it could very easily be ignored. The arguments of learned defence counsel that no independent witness was produced has no force because the deceased and PWs being employees of Forest Department were having no personal grudges to falsely charge the accused- respondent Abdul Jabbar specifically for giving fatal blow to the deceased, therefore, their testimony requires no independent corroboration.
12. After having applied independent judicial mind, this Court is of the considered view that as the prosecution has proved its case against the respondent Abdul Jabbar beyond any shadow of doubt, therefore, his acquittal has led to the grave miscarriage of justice and while acquitting the respondent the learned trial Court has ignored the material evidence on record i.e, the statements of the eye-witnesses, medical evidence and other material available on record. Pursuant to the above discussion, we are convinced that the prosecution produced confidence inspiring evidence to prove the guilt of the respondent-accused Abdul Jabbar, as such, we are of the view that the conclusion drawn by the trial Court is perverse, arbitrary, and based on mis-appreciation of evidence on record, calling for interference by this Court. As far the sentence is concerned, the occurrence took place in spur of moment, therefore, we feel that it is not a case of capital punishment. Consequently, this appeal is partially allowed, the impugned judgment is set aside to the extent that Abdul Jabbar is convicted under section 302(b), P.P.C. And sentenced to life imprisonment with direction to pay Rs, 3,00,000/-(three lac) as compensation to the legal heirs of the deceased in accordance with the provisions of section 544-A, Cr.P.C. Which shall be recoverable as arrears of land revenue. The benefit of section 382-B, Cr.P.C. Shall also be available to accused-respondent. Accused-respondent is present in court; he is taken into custody and be dealt with in accordance with law.
As far as the appeal against accused-respondent Fazal Mabood is concerned he has been reported to be dead, therefore, proceedings against him are abated. Though, accused- respondents Sabir and Sahib Zada are charged in the FIR but medico legal reports of the injured PWs reveals that only bruises were present on their persons and for such bruises three persons are charge but with no specific role, therefore, they are entitled to be extended with the benefit of doubt. Therefore, appeal filed against the accused-respondents Sabir and Sahib Zada is dismissed. Similarly appeal No,498/2000 filed by the State has becomes infructuous.
These are the reasons of our short order announced on 13.2.2014.