SYED MUHAMMAD FAROOQ SHAH, J.---Being dissatisfied with the impugned judgment of acquittal, recorded and pronounced on 06.12.2003 by the learned Add: Sessions Judge Kohat, the Appellant/ complainant has preferred the captioned appeal with a prayer to set aside the impugned judgment and the accused/respondents Nos. 1, 2 and 3 may be convicted and sentenced in accordance with law. On admission of appeal vide Order dated 12.04.2005, coercive process in shape of BWs/ NBWs have repeatedly been issued against the respondents Nos.
1 to 3. Respondents Nos.1 and 3 duly served and they are attending this Court regularly , while NBWs repeated against the respondent No.2 (Muhammad Bashir) returned unexecuted with endors ement of process server that he had gone abroad, hence could not be served in near future. In such view of the matter , it shall be futile exercise to linger on the instant appeal for indefinite period; more particularly , the appeal against the acquittal of respondents is sub judice in this Court since last more than 14 years.
2. Prosecution story in nutshell is that Ghulam Yahya, the appellant/complainant being father of his deceased son Bashir Ahmed, on 11.05.2002 lodged FIR with PS Saddar , Kohat, against unknown culprits and subsequently in his supplementary statement dated 30.05.2002, nominated the respondents Nos.1, 2 and 3; they were arrested and after completion of usual investigation, challan was submitted in the Court. Charg e was framed by the trial Court against all the three appellants/ accused for an offence punishable under section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 they pleaded not guilty to the charge of snatching Rs.2,55,000/- from deceased Bashir Ahmed and his murder as well.
3. On commencement of trial, prosecution examined 11 witnesses. Thereafter , statement of accused under section 342, Cr.P.C. was recorded, in which they once again professed their innocence. On culmination of the trial the accused were acquitted from the charge, vide impugned judgment dated 06.12.2003.
4. Worthy submission advanced by Mr. Muhammad Eisa Khan, learned counsel representing the appellant and Mr. Walayat Khan, learned Assistant Advocate General, KPK for the State are considered. Evidence available on record and impugned judgment have been carefully perused by us with the able assistance rendered by the learned counsel representing the parties.
5. Learned counsel representing the appellant/complainant argued that the prosecution has established its case through circumstantial evidence. The confessional statement of respondent Bahawal Khan was recorded under section 164, Cr.P.C. and on pointation of respondent/ accused Asif Khan alias Kaku, place of occurrence was inspected by the Investigation Officer. Learned counsel argued that by ignoring these strong evidences, sufficient for the conviction of the respondents, the learned trial Court while recording acquittal through impugned judgment has committed illegality .
6. Conversely , learned Assistant Advocate General supported the impugned judgment with vehemence and submitted that the impugned judgment is speaking one, well-reasoned, elaborate and does not warrant interference by this court.
7. Re-appraisal of prosecution evidence transpires that the complainant had involv ed the accused persons through his supplementary statement on 30.05.2002. In his deposition without disclosing any source of information, the complainant/PW -6 stated that he came to know that his deceased son was murdered by accused persons, so he charged them. He made clarification in cross-examination that the person who informed him regarding the occurrence was unknown boy and police reached at the spot after thirty minutes of his arrival at the place of occurrence; admitted that neither he had mentioned such fact in his report nor informed to the police officials that the deceased was having an amount of Rs.2,55,000/- and similarly he had not stated in his report that he was informed by unknown boy at his house regarding the occurrence.
8. PW-9/SIP Muhammad Hussain Khan conducted the investigation, stated that during course of investigation it was transpired that Asif Khan alias Kaku and Waqar are the real culprits behind the case. Accused Asif Khan alias Kaku voluntarily surrendered before the police on 19.05.2002, he was interrogated and on 24.05.2002 he was arrested vide arrest card (Exh.PW -9/1). He had further stated that on 30.05.2002, he recorded the supplementary statement of the complainant wherein he charged the accused facing trial for the murder of his son. In cross- examination, he has categorically stated that during course of investigation, accused Asif Khan alias Kaku told him that on the eventful night he was at ice-cream factory in connection with performing his duty; the Investigation Officer admitted that he did not collect any ocular evidence during the investigation.
9. PW-10 Saifullah Jan, Judicial Magistra te, recorded the confessional statement of Bahawal Khan under sections 164/364, Cr.P.C. on 29.06.2002. In cross-examination, he has admitted non-mentio ning the name of police official, who had brought the accused for recording his confessional statement. He has further stated that "I do not know that whether the mother tongue of the accused was Pashtu, however , he was speaking Pashtu. Self stated that the accused told me that he has not engaged counsel. I did not write the above mentioned question regarding the meeting of accused with his relatives and engagement of counsel, in the questionnaire (Exh.PW -10/1).
10. It is well established principle of law that if a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he shall be entitled to such benefit not as a matter of grace, but as a matter of right. It is also settled proposition of law that the criminal justice is casting conclus ive duty upon the prosecution to prove its case beyond shadow of doubt and that when two views are possible, view in favour of accused has to be given preference. A perusal of record reflects that the prosecution evidence suffer from material contradictions and inconsistent evidence reproduced by the learned trial court in the impugned judgment by placing reliance on the case law, fully' attracting in the peculiar facts and circumstances of the case in hand. The learned counsel representing the appellant could not highlight relevant portion of the impugned judgment suffer from misreading, non-reading or non-appraisal of evidence. We have gone through the impugned judgment, based upon reasons after proper scanning the evidence adduced by the prosecution.
11. Suffice it to say that findings record ed by the learned trial Court are neith er perverse, illegal, leading to miscarriage of justice nor artificial or suffer from jurisdictional defects. The evidence of material nature produced by the prosecution was properly recorded and the order of the acquittal is based on proper appreciation of evidence.
We disagree with the worthy submission of learned counsel representing the appellant that the acquittal judgment is based upon surmises, conjectures and reasons which do not appeal to a reasonable mind.
It needs no reiteration that extraordinary remedy of an appeal against acquittal is quite different from an appeal preferred against the findings of convictio n and sentence. Undeniably , the appellat e jurisdiction under section 417, Cr.P.C. can be exercised by this Court if gross injustice has been done in the administration of criminal justice; more particularly , findings given by the trial Court in the judgment are neither perverse, illegal and based on misreading of evidence nor leading to miscarriage of justice. In the case in hand the acquittal judgment recorded by the learned trial Court is based on correct appreciation of evidence which does not warrant interference in appeal.
13. Crux of the aforementioned discussions is that the impugned judgment passed by the learned trial Court, based on correct appreciation of evidence would not warrant any interference by this Court in appeal as the appellants earns double presumption of innocence with the acquittal and learned trial Court after scanning the evidence correctly reached at the conclusion that the prosecution has failed to prove the charge against the respondents.
Consequently , the captioned appeal preferred by appellant/complainant against the acquittal of respondents is dismissed having no merits for consideration. Resultantly , NBWs, earlier issue d against the respondent No.2 namely Muhammad Bashir son of Khaista Gul are withdrawn.