ZAHEER-UD-DIN KAKAR, J. --- Through instant appeal, appellant Akhtar Jan challenged the validity of the judgment dated 30.8.2017 (the impugned judgment), passed by the Additional Sessions Judge, Harnai (the Trial Court), whereby the respondent Shah Murad was acquitted of the charge.
2. Precisely, the prosecution case is that on 17.2.2014 at about 1:00 p.m. at Sheedan Mouza Peero Kachi, District Harnai respondent No, 1 (accused) alongwith co-accused persons, armed with Kalashinkov fired upon Zaitullah, due to which he died at the spot. Consequently, F.I.R No, 02 of 2014, dated 19.02.2014, under Sections 302, 34, PPC was registered at Levies Thana, Delkuna, District Harnai. Motive behind the incident was stated as dispute over kinship.
3. After usual investigation, challan was submitted against respondent No, 1 and absconding accused. A formal charge was framed to which he pleaded not guilty and claimed to be tried. The prosecution, in order to substantiate the accusation produced eight witnesses. PW-1 Akhtar San is the complainant of the case, who placed on record written report as Ex-P/1-A. PW-2 Muhammad Zaman, PW-3 Muhammad Hashim and PW-5 Raz Muhammad were stated to be the eye- witnesses. PW-4 Tawoos Khan, Levies. Sepoy is witness to recovery memos. Ex-P/4-A, Ex-P/4-B, Ex- P/4-C and Ex-P/4-D in respect of memo. ' of site inspection, memo. of receiving dead-body, recovery memo. of empties and recovery memo. of blood-stained cloths, respectively. PW-6 Khalil Ahmed Naib Tehsildar is the Investigating Officer, who produced F.I.R. as Ex-P/6-A, site sketch Ex- P/6-B, affidavit of legal heirs in respect of non-conducting post-mortem of the deceased Ex-- P/6- C, list of legal heirs of the deceased Ex-P/6-D and incomplete challan Ex-P/6-E. PW-7 Muhammad Imran Levies Sepoy is witness to personal search memo. Ex-P/7-A of respondent No,
1. PW-8 Ameer Khan Naib Tehsildar is the second Investigating Officer, who produced supplementary challan Ex- P/8-A.
4. On completion of the prosecution's evidence the respondent (accused) was examined by the Trial Court, as per requirement of Section 342 Cr,P.C., during course while replying to the questions, the respondent not only denied the commission of the offence, but also denied his involvement in the instant case. He did not opt to make statement on oath, nor produced evidence in his defence.
5. After hearing the learned counsel for the parties the Trial Court acquitted the respondent (accused) vide impugned judgment dated 30.8.2017, hence this appeal.
6. Learned counsel for the appellant (complainant) contended that acquittal of the respondent was based on mis-appreciation and misreading of the evidence; that the eye-witnesses specifically implicated the respondent with commission of the alleged offence; that the Trial Court while acquitting the respondent considered the irrelevant aspect of the prosecution evidence while ignoring the vital aspects; that there were various illegalities, irregularities in the impugned judgment with regard to the acquittal of respondent on the basis of which the same was not sustainable and liable to be set aside and 'respondent be convicted and sentenced as per law.
7. We have heard learned counsel for the appellant/complainant and also gone through the evidence available on the record as well as the impugned judgment. As per prosecution version, the alleged incident took place on 17.2.2014 at about 1: 00 p.m., that the matter was reported to Levies Thana on 19.2.2014 at about 4:00 p.m. i,e, with the delay of about two days and the prosecution failed to satisfactorily explain the delay in lodging of the F.I.R regarding incident of this case, whereas the distance between the place of occurrence and the Levies Thana was about eight Kilometers. It is well-settled law that the factum of delay caused in lodging of F.I.R. must be explained by the complainant plausibly, if he failed to furnish the circumstance beyond his control or sound justification in this regard, the allegations levelled in F.I.R. would be presumed the result of deliberation, negotiation, discussion an after-thought with sole drive and ulterior motive to get the accused convicted, therefore, such deliberate delay cannot be ignored by the Court in routine manner.
8. Perusal of the record shows that the entire prosecution case hinges upon the statements of PW- 2 Muhammad Zaman, PW-3 Muhammad Hashim and PW-5 Raz Muhammad, who stated that on 17.2.2014, they were present in the area of Killi Shedan and were grazing their cattle while deceased Zaitullah was present at some distance. The accused persons made firing upon him due to which he died at the spot. Perusal of the statements of all the three witnesses shows that the same are full of improvements and contradictions. During their statements, they tried to improve their version by making dishonest improvements. They also contradicted each other on material points. After having gone through their evidence, we have no hesitation in observing that they have failed to inspire our confidence. It is a settled law that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain reliable.
While holding so, we are fortified by the dictum of law laid down by the Hon'ble Supreme Court in the cases reported as Syed Saeed Muhammad Shah and another v. The State 1993 SCM R 550 and Muhammad Rafiq and others v. The State and others 2010 SCMR 835, wherein, at page 396, the Hon'ble apex Court has been pleased to observe as under:-- This Court in the case of Saeed Muhammad Shah v. the State 1993 SCM R 550, observed that if a witness improves his statement on material aspects of the case, then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. The State 2003 SCM R 1419, while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence.
9. Furthermore, the statements under Section 161, Cr.P.C. of the witnesses were recorded after three days of the incident Though the allegations against the appellant is heinous in. nature, but at the same time this Court is conscious of the fact that conviction can only be maintained if the prosecution has proved its case beyond any shadow of doubt.
10. Apart from above, no post-mortem of the dead, body was conducted nor any inquest report was made in order to ascertain the cause of death or the number of \injuries sustained by the deceased. Whereas, PW-4 Tawoos Khan (recovery witness) in his cross-examination admitted tat there was no sign of bullet on the blood-stained cloths of the deceased. No recovery was affected from the respondent. Thus we are of the confident view that the prosecution, indeed, failed to prove its case against the respondent beyond the shadow of doubt and the Trial Court, after proper scrutiny of record, through well-reasoned judgment has acquitted the respondent of the charge.
11. Even otherwise, an appeal against acquittal as distinctive features and the approach to deal with the appeal against acquittal is distinguishable from appeal against the conviction, because, presumption of double innocence is attached in the former case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse or arbitrary in nature, which are lacking in this case. In this regard reference is placed on case Inayatullah Butt v. Muhammad Javed, etc. {PLD 2003 SC 562}. There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the Trial Court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained, hence this petition having no merit is dismissed in limine.