ABDULLAH BALOCH, J.---This common judgment disposes of Criminal Acquittal Appeal No.231 of 2016 filed by the complainant Naib Sobedar Nasab-ud-Din and Criminal Acquittal Appeal No.254 of 2018 filed by the State through Prosecutor General Balochistan, against the judgment dated 17th May, 2018 (hereinafter referred as, "the impugned judgment ") passed by the learned Additional Sessions Judge, Kharan (hereinafter referre d as, "the trial Court "), Whereby the accused-respondent Ali Nawaz son of Abdul Khaliq was acquitted of the charge, under section 320, Q&D read with section 279, P .P.C.
2. Facts of the case are that on 30th December , 2017 the complainant Nasab-ud-Din lodged FIR No. 31 of 2017 at Levies Station Kharan under above ment ioned offences, stating there that on the day of occurrence at about 5.00 a.m. the F.C. patrolling party stopped an Oil Tanker bearing registration No.ITD-642 at the area of Patkin mountain, while another Oil Tanker came from back side, the G.C.O. went towards said Truck and in the meanwhile the Driver started the said Oil Tanker and collided it to F.C. vehicle, however , the said Oil Tanker was tried to stop, but the Driver accelerated the vehicle and went towards road. It is further averred in that FIR that they tried to stop him by means of firing but he did not stop due to which the F.C. vehicle tried to chase it and crossed the same, but the Driver caused the oil tanker to ascend upon F.C. vehicle, resultantly Sobedar Badshsh, Lance Naik Syed Badshah son of Masal Khan No.56842, Lance Naik Muhammad Yousaf No.12675, Lance Naik Naeem Ullah No.76661 and Naik Muhammad Yousaf son of Muhamm ad Rafiq No. 41826 died at the spot as well as the official vehicle and official weapons were damaged while the said driver and conductor fled away from the scene. Besides a Mazda Truck bearing registration No.TKY -677 and Double Cab vehicle No. PAC-059 were taken into possession and the Driver Abdul Rauf, conductor Asmat Ullah, Muhammad Ghayas and Haji Mujib-ur-Rehman were arrested.
3. Pursuant to above FIR, investigation was carried out and the arrested persons namely Abdul Rauf, conductor Asmat Ullah, Muhammad Ghayas and Haji Mujib-ur-Rehman were discharged under section 169, Cr.P.C., while the accused Ali Nawaz was subjected to investigation and on completion thereof, he was challaned before the trial Court, where the charge was indicated to him, which was refuted, thus the prosecu tion has produced the evidence of nine (09) witnesses. The appellant was examined under section 342, Cr.P.C. However , neither he recorded his statement on oath under section 340(2), Cr.P.C. nor produced any evidence in his defence. On conclusion of trial and after hearing arguments, the learned trial Court through impugned judgment acquitted the accused-respondent whereafter instant appeals have been filed.
4. Heard the leaned counsel and perused the available record. Perusal of impugned judgment and record justifies the impugned acquittal order passed by learned trial Court in favour of accused/ respondent. It is evident from the record that the prosecution in order to establish the charge has produced the evidence of nine witnesses, but the same are not consistent and confidence inspiring. The complainant of the case namely Nasab-ud-Din appeared as PW-1, who mostly reiterated the contents of his fard-e-bayan. However , the evidence of this witness is not helpful to the case of prosecution for the reasons that he himself had not witnessed the crime rather at the time of alleged occurrence he was 80-kms away from the place ,of occurrence and received information through wireless set. The entire statement of this witness is silent to the effect that who had narrated him the story of the incident in such a sequence. Admittedly , the statement of this witness is hearsay and the same is only to the extent of criminal machinery into motion.
5. Adverting to the statements of most important witnesses of the prosecution i.e. PW-2 Muhammad Sheraz and PW-3 Mohsin Raza. The statements of both the witnesses are contradictory with each other on certain counts.
Both, the witnesses have unanimously brought on record that they witnessed the crime directly . Both the witnesses have admitted in their cross-examination that their statements under section , 161, Cr.P.C. were recorded on 12th January 2018 i.e. after delay of 13-days of the incident though they were very much present in the concerned area.
The admission of both the prosecution- witnesses depicts the complete failure of the Investigating Officer to record the statements of both the witnesses immediately . There is no explanation at all on the record that as to why such statements were delayed for a considerable time of 13-days and till that time the appellant had voluntarily surrendered him before the police. It is well settled proposition of law that in a criminal case when 161, Cr.P.C. statement is delayed; such evidence may not be given that sanctity as is gener ally given to the evidence of a witness whose statement has been record ed promptly soon after the occurrence. Thus, recording the statements of PWs under section 161, Cr.P.C. after the arrest of the accused creates reasonable doubts in the case of prosecution and it appears that the witnesses were planted by the prosecution subsequently after the arrest of the accused/respondent.
6. The identification of the accused/respondent Ali Nawaz in the trial Court is also doubtful. According to the case of prosecution, soon after the occurrence the culprits decamped from the place of occurrence and en the basis of suspicious the Investigating Officer arrested five persons, who were subsequently discharged from the case under the provisions of section 169, Cr.P.C. Meaning thereby that the Investigating Officer as well as the PW-2 and PW-3 were not sure about the culprit that's why on the basis of suspicion irrelevant persons were arrested and subsequently they were released. The perusal of FIR also reflects that the same is silent with regard to physique and personal appearance of the escaped accused persons. However , after the arrest, of the accused/respondent the Investigating Officer must have condu cted the identification parade of the accused/respondent through both the alleged eye witnesses i.e. PW-2 and PW-3, but this has not been do so, while in such like cases where the accused as well as the witnesses are not previously known to each other , the carrying out of the identification parade is mandatory . Non conduct of the identification parade of the accused/respondent through both the PWs during the course of investigation and identifying the accused/respondent in the Court as culprit by both the alleged eye-witnesses has created reasonable doubts in the case of prosecution and material dent caused to the case of prosecution due to non-conduct of the identification parade during the course of investigation, which is neither justifiable nor curable under the law. Reliance, in this regard is placed on the case of Khawar v. The D State 2014 YLR 2120 .
7. The reappraisal of the entire prosecution evidence coupled with the fact that the statements of eye witnesses were recorded after delay of 13-days without any justifiable explanation and non-co nduct of identification parade in the matter has created reasonable doubts in the case of prosecution and the learned trial Court has taken into account all the facts and circumstances of the case and has reached to just and proper decision by recording acquittal in favour of the accused/ respondent. It is settled law that a single circums tance creating reasonable doubt in a prudent mind is sufficient for acquittal of accused not as a matter of grace, but as a matter of right. In the case of Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 , a bench of three Hon'ble Judges of Supreme Court held that for the purpose of benefit of doubt to an accused single infirmity regardin g the truth of charge makes the whole case doubtful. The relevant portion thereof reads as under: "It needs no reiteration that for the purpos e of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt end this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v .The State PLD 1970 SC 10 ."
8. If the entire prosecution evidence is taken into consideration together , it would become crystal clear that the entire prosecution evidence shows that there is no solid or concrete evidence available against the accused/respondent connecting him with the commission of alleged offence. The trial Court after proper appreciation of evidence in its true perspective has rightly acquitted the accused-respondent of the charge. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitra ry, capricious, fanciful or against the record. In the instant case the order of acquittal passed by the trial Court is neither arbitrary , capricious, fanciful nor contrary to the evidence on record, warranting interference by this Court.
For the above reasons, the appeals being devoid of merits are dismissed.
Above are the reasons of our short order dated 23rd April 2019.