MUHAMMAD IQBAL MAHAR, J.---Instant acquittal appeal is directed against the judgment dated 22.11.2018 passed by learned Additional Sessions Judge, Ubauro in Sessions Case No.18 5/2013, arising out of FIR No. 04/2013, offence under sections 302, 147, 148, 149, P.P.C. Police Station, Ubauro , whereby respondents Nos.1 to 4 were acquitted.
2. The brief facts of the prosecution case are that on 08.01.2013 the appellant-complainant lodged FIR, stating therein that he has (10-00) acres Qabooli land in Deh Garang. Respondent Mohammad Ramzan and others used to ask him to sell out their land to the respondents and to shift away but Jameel Ahmed, the brother of appellant, refused, whereupon they were annoyed. On 05.01.2013 appellant-complainant along with his brother Jameel Ahmed, son Mohammad Nadeem and relative Mohammad Akram Arain were irrigating the wheat crop. At about 0400 hours when they reached near the house of Sada Rang Bhutto, 05 persons came in front of them. The appellant party identified them to be Mohammad Ramzan, Muhram Ali, Mullan alias Noor Din while two were unknown and their faces were opened. One of them was armed with K.Kov and the second with gun. Mohammad Ramzan asked the appellant that neithe r they are selling their land nor are shifting away , hence they would be taught lesson. Saying so Mohammad Ramzan, Muhram Ali and Mullan alias Nooruddin caught hold deceased Jameel Ahmed, put him in pond of water and strangulated him, while two unknown accused persons controlled over the appellant party and directed them to remain calm else they would also face same consequences. Due to fear, the appellant party did not move ahead. The accused persons dragged the dead body of Jameel Ahmed and threw it on the land of Sikandar Ali Tanwri and went away . The appellant party brought the dead body at Police Station and lodged the FIR.
3. The police after usual' investigation submitted challan before the Court of law. The learned trial Court observed all legal formalities and framed charge against respondents Nos. 1 to 4, who pleaded not guilty and claimed their trial.
4. To substantiate the charge, prosecution examined PW-1, appellant-complainant Mohammad Saleem at Ex.13, who produced receipt of dead body arid copy of FIR at Ex.13-A and 13-B, PW-2, Mohammad Nadeem as Ex. 14, PW-3 Dr. Liaqat Ali at Ex.15, who produced inquest report, provisional postmortem report, Chemical examiner's report, Histopathological examination report and final postmortem report at Exs.15 -A to 15-E, PW-4, ASI Mukhtiar Ahmed at Ex.16, who produced memo. of inspection of dead body , Danishnama, memo of visiting place of incident, memo. of arrest of accused Mullan alias Nooruddin, memo. of imaginary arrest of accused Muhram Ali, entry No.6 and mashirnama at Exs.16-A to 16-G, PW-5, PC, Munir Ahmed at Ex.17, PW-6 Tapadar Mehtab Hussain at Ex.18, who produced police letter dated 08.01.2013 and sketch of place of occurrence at Exs.18-A and 17-B and PW-7 mashir Ali Gohar at Ex.20 Thereafter , prosecution side was closed through statement at Ex.21
5. After conclusion of the prosecution evidence, statements of respondents were recorded at Exs. 22 to 25, as required under Section 342, Cr.P.C., wherein they denied the prosecution case and claimed their innocence.
However neither they examined themselves on oath in terms of Section 340(2), Cr.P.C. nor led any evidence in their defence.
6. On appraisal of the prosecution evidence, learned trial Court passed impugned judgment, which has been assailed through instant acquittal appeal.
7. It is, inter alia, contended by learned Counsel for the appellant that the impugned judgment passed by learned trial Court is against the law and principles of natural justice; that the evidence produced by the prosecution was sufficient to connect respondents Nos.1 to 4 with the commission of offence, but the learned trial Court did not consider the same; that there is direct ocular evidence which is corroborated by the medical evidence which prima facie proves the accusation against the respondents; that the delay in FIR is explained by the appellant that after burial and charity he went at Police Station and lodged the FIR. He lastly concluded that the impugned judgment is result of misreading and non-reading of evidence, therefore, it may be set aside.
8. As against above, learned D.P.G. for the State while controverting the submissions of learned Counsel for the appellant, supported the impugned judgment and submitted that the trial Court has rightly appreciated the evidence and passed well reasoned and speaking judgment, which does not require interference by this Court; that this is night time incident and identification of the accused is shown on torch which has not been produced; that the FIR was lodged with delay of more than three days which has not been explained . He lastly concluded that the prosecution has failed to prove the guilt of the respondents to the hilt, as such the trial Court had no option but to acquit the respondents of the charge, therefore he prayed that instant acquittal appeal may be dismissed.
9. We have considered the submissions made by learned counsel for the appellant, learned D.P.G. for the State and have examined the material available on record minutely .
10. Perusal of record reflects that this is a night time incident and identification of accused is shown on torch light, which is a weak piece of evidence and the said torch was not produced before the Police.
11. The incident occurred on 5.01.2013 at 4.00 am but FIR was lodged on 8.01.2013 at 1630 hours, after delay of more than three and half days and no plausible explanation to such delay has been furnished by the appellant, though he tried to explain that after buria l of the dead body and charity he lodged FIR but it does not appeal to a prudent mind.
12. From the perusal of evidence of eye-witnesses, it appears that this is an un-se en incident hence, possibility of false implication of respondents after consultation cannot be ruled out. For the sake of convenience it would be appropriate to reproduce the relevant portions of evidence of eye-witnesses.
In cross- examination the appellant/ complainant deposed that; "Voluntarily says that I had got statement recorded regarding tracker dogs. It is correct that said dogs tracked the foot prints of accused and went to the house of accused. House of accused Ramzan and Mullan alias Noorudin Mochi are adjacent to each other . Tracker dogs were called from Rahimyar Khan. We had called the tracker dogs on the telephone call made by some of us from Rahimyar Khan. The said dogs were called on 5.01.2015. The said dogs arrived at about 1000 hours on 5.01.2013. 1 was accompanying the said dogs which lead to us to the house of accused persons."
PW Mohammad Nadeem, the son of appellant, in his cross-examination deposed that; "It is correct that tracking dogs were called by my father on telephone. I do not know from where the tracking dogs were called. The tracking dogs were called after one day of the incident. I was also accompanying the tracker dogs.
Mashirs were also accompanying the said team. We were many persons at that time. It was one tracking dog. The dog tracked the foot prints of accused persons and went to the house of accused Ramzan and Muharam."
13. This shows that the incident was unseen, therefore the tracker dogs were called and later on the FIR was lodged, wherein the names of respondents Nos. 1 to 4 were given by the appellant.
14. As far as the medical evidence is concerned, it is settled proposition of law that medical evidence is always considered as supporting corroborative piece of evidence but in the instant case the same does not corroborate the ocular evidence, given by the eyewitnesses. The appellant and his son PW Mohammad Nadeen deposed that the accused strangulated the deceased by a cloth on his neck but the medical officer deposed that there was no ligature mark or finger marks on the neck of the deceased.
15. So far as the evidence of Investigating Officer is concerned, he deposed that on 5.01.2013 the appellant came at Police Station and stated that his brothe r has been killed by respondent No. 4 (Sada Rang) and others but he did not give the names of respondents Nos.1 to 3, however G on 8.01.2013 he lodged the FIR, wherein he did not give the name of respondent No.4 (Sada Rang) but disclosed the names of respondents Nos.1 to 3. As per evidence of I.O. nothing was recovered from the place of incident or from respondents Nos.1 to 4 during investigation. So far as the inspection of dead body , place of incident and arrest of accused in presence of mashirs Ibadat Ali and Ali Gohar is concerned, the prosecution examined co-mashir Ali Gohar , who did not support the prosecution case, hence was declared hostile by learned DDPP , therefore his evidence is not helpful to the prosecution.
16. In view of above, we are of the firm view that the impugned judgment passed by learned Additional Sessions Judge, Ubauro is based on proper appreciation of the evidence which is not fanciful and the learned counsel for the appellant has failed to point out any misreading or non-reading of the evidence. It is pertinent to mention here that when an accused person is acquitted by a competent Court of law having jurisdiction, then double presumption of innocence is attached to its judgment, with which the Superior Courts do not interfere unless the impugned judgment appears to be vague, perverse and arbitrary or against the record. In this regard reliance can be placed upon judgment delivered by Honourable Supreme Court in case of Haji Amanullah v. Munir Ahmed and others reported in 2010 SCMR 222 , wherein it has been observed that; "Appellate Court would not interfere with acquittal of accused merely because on reappraisal of evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusion are reasonably possible. However , if the conclusion reached by lower Court was such that no reasonable person would conceivably reach the same and was impossible, then Appellate Court would interfere in such cases on over whelming proof resulting in conclusive and irresistible conclusion, and that too with a view to avoid grave miscarriage of justice and for no other purpose------- Important test is that the finding sought to be interfered with should be found wholly artificial, shocking and ridiculous after scrutiny".
In another case of Muhammad Aslant v. Sabir Hussain and others reported in 2009 SCMR 985, the Honourable Supreme Court has also observed as that: "It needs no reiteration that when an accused is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order , with which the superior Courts do not interfere unless the impugned order is arbitrary , capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar V. Muhammad Asgar and others 2003 SCMR 477 "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot he reversed, upset and disturbed except when the judgment is found to he perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading or non-read ing of evidence....Law requires that Judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."
17. For what has been discussed above, we have come to conclusion that the prosecution has failed to prove its case against respondents Nos. 1 to 4 beyond reasonable doubt, therefore, instant acquittal appeal being devoid of