MALIK HAQ NAWAZ, J.---This Criminal Appeal bearing No. Cr,A. 03/2016 has been preferred under section 417(2-A). Cr.P.C. by the complainant Haji Gulzar Hussain son of Ghulam Hussain resident of Nid Tehsil and District Shiger, against the order/judgment of learned Sessions Judge Skardu dated 12.12.2015, by means of which the learned trial Court has acquitted the respondents from the charges leveled against them vide FIR No. 03/2012, under sections 395, 341, 337-A/34, P.P.C. and 20 Harabah (offences against property) registered at Police Station Shiger.
2. The brief narration of the, occurrence has been given in opening part of the judgment which is reproduced as under:-- Brief background of prosecution story of occurrence as narrated in the FIR Exh.PW-7/A lodged on the written complaint of complainants namely Haji Gulzar Hussain and Haji Ali resident of Nid Dasso is that on 4.8.2012 the complainants were returning towards their homes from Mouza Baha, when the complainants reached at Dassu, they found that the Government road had been blocked by the accused by putting stones there. In the mean while the accused assaulted the complainants and belaboured them. The accused snatched cell phone of complainant namely Gulzar Hussain and the accused also snatched cash amount amounting to Rs. 145,000/- from the complainant Gulzar Hussain. The occurrence was allegedly witnessed by eye-witnessed namely Ali son of Ghulam Muhammad and Mehdi son of Muhammad. On receipt of above said information the SHO Police Station Shigar Wazir Farman Ali SIP registered criminal case under sections 337-A(i), 341 and 395, P.P.C. at Police Station Shigar against the accused.
3. After examination of 9 P.Ws, the learned Prosecutor closed the case and the accused were examined under section 342, Cr.P.C. on 10.10.2015, however, they did not opt to be examined on Oath under section 340(2), Cr.P.C.
4. The learned counsel for the complainant/appellant submitted that the accused are directly charged in the FIR and the injuries sustained by the victim are certified by the doctor and were not self inflicted. The learned counsel further submitted that recovery of a cell phone has been effected on the pointation of one of the accused namely Muzahir, which also lend support to the prosecution story. The learned Prosecutor General and learned counsel for complainant are unanimous that prosecution story is in sequence and narrated in a natural manner and the direct ocular account is further corroborated by the incriminating evidence. Per learned counsel the judgment of the learned trial Court is perverse, illegal, unwarranted and merit interference by this Court.
5. On the other hand the learned counsel for the respondents vehemently opposed the contention of the learned counsel for the complainant and the learned State's counsel and submitted that there is a delay of 24 hours in lodging the FIR and the two eye-witnesses named in the FIR were not produced in the trial Court, which has damaged the prosecution case ,from its roots. The learned counsel for respondents further submitted that the recovery of a cell phone from Muzahir was a planted recovery, which has been exposed during cross examination of PW-5, Ali Khan son of Mehdi, while P.W. Abdul Hussain has not supported the prosecution case. The learned counsel prayed that the judgment of acquittal which is based on correct appreciation of evidence be maintained.
6. After hearing both the parties and scanning of record with their able assistance, it is evident that the FIR was lodged after a delay of 24 hours, for which no plausible explanation has come on record. The distance from the place of occurrence to Police Station is only 45 km. it can safely be inferred that the delay in recording of FIR was consumed in deliberation/consultation and a story was tailored before lodging the FIR. When the Courts entertain a doubt about the genuineness of FIR, then it becomes the bounden duty of the Court to be extra vigilant while appreciating the other evidence. The occurrence took place on 04-08-2012, whereas the statement of complainant Haji Gulzar Hussain was recorded on 12 8.2012, after about 08 days of the occurrence, for which no plausible reasons have been shown for such long and inordinate delay. There is another astonishing factor that two eye-witnesses namely Haji Mehdi and Ali were named as eye- witnesses in the FIR, who were not produced during trial and no reasons have been shown by the prosecution for their non-production and examination in the trial Court. Now it is almost all a settled proposition of law, that if best evidence is withheld by a party, an adverse inference is to be drawn against the defaulting party. For the purpose of convenience Article 129(g) of Qanun-e- Shahadat, 1984 is reproduced as under:-- Article. 129(g)That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
7. There are material contradictions in the statements of almost all the PWs, which have been thoroughly discussed in the judgment of the learned trial Court.
8. The learned counsel for complainant and State could not point out any non-recording/mis- recording of evidence, which are prerequisites to upset a finding of acquittal. The accused is favorite child of law and all the benefits of reasonable of doubts are to be resolved in favour of accused and not in favour of prosecution. The concession cannot be given to the witnesses to believe them and whenever and where ever there is any slightest doubt, the benefit of the same will go to the accused. The appeal in hand is lacking the criteria laid down in PLD 1985 SC 11, to upset a judgment of acquittal.
9. The result of above discussion is that the appeal is dismissed being meritless.