Shaukat Ali Rakhshani, J.--Conclusion of the trial in FIR No, 80/2014 registered with Police Station Aloch, District Shangla, culminated into acquittal of respondents Zar Muhammad, Usman Ali alias Raid Alam, Bakht Ali and Wali Hayat alias Wilayat Khan by means of judgment dated 10' of November , 2016 (hereinafter referred as "Impugned Judgment") handed down by learned District & Sessions Judge/Zilla Qazi Shangla, Camp Court at Swat, (hereinafter referred as "T rial Court").
2. The complainant and the State having been aggrieved and dissatisfied from the impugned judgment, preferred Criminal Appeal No, 02/I of 2017 and Criminal Appeal No, 19/I of 2016, respe ctively , against the acquittal of aforesaid respondents, which shall be adjudicated upon through this common judgment as both the consolidated appeals arise of the same impugned judgment.
In precise, the fact revealed in the FIR (Ex.P A) transpires that the appellant Amreez Khan (PW.12), on 22nd of February , 2014 at 08:05 hours lodged the report with the averments that on 19th of February , 2014 at 12:30 hours at night, while he alongwith other family members were asleep, somebody knocked at the door, who on query told them that they were Army Officials and were searching the houses. According to the complainant (PW.12), when he opened the door, four armed persons, who had muffled their faces entered into the house and locked them all in a room and after a while unlocked them and left their house. On search of the house, he found missing 12 Tola Gold Ornaments of Rs, 600,000/- (Rupees six lacs only), cash amounting to Rs, 14,530/- (Rupees fourteen thousand five hundred and thirty only) with different denominations, Kalashnikov local made, two barrel shot gun of .12 bore foreign made and 20 cartridges of 7.62 bore. It was further narrated in the FIR that he has been gathering information at his own and on this day had come to know that Zar Muhammad, Bakht Ali, Usman alias Raid Alam and Wall Hayat alias Wilayat Khan had entered his house and on gun point made them hostage and took away their said properties.
3. Investigation was entrusted to S.I Muhammad Bashar (PW.11), who prepa red site-plan (Ex. PB) on the pointation of complainant (PW.12), secured a tin box with a broken hook (Article Ex.P-17) through recovery memo.
(Ex.PW -1/1).
4. Respondent Zar Muhammad was arrested on 23rd of February , 2014 from whom .12 bore Repeater shot gun (Article Ex.P-1) was recovered through recovery memo. (Ex.PW -1/2), following a raid at the house of respondent Wali Hayat alias Wilayat Khan, where a Kalashnikov SMG alongwith a magazine (Article Ex.P-18) and four live cartridges of 7.62 (Article Ex.P-19) were found lying in his house, which were secured through recovery memo.
(Ex.PW -1/3), whereof a separate murasila under Section 13 of Arms Ordinance, 1965 was sent for registration of the FIR on the same day .
5. On the same day, respondent Bakht Ali was also arrested alongwith a Kalashnik ov (Article Ex.P-3), a magazine (Article Ex.P-20) having two live cartridges of 7.62 (Article Ex.P-21) which were taken into possession through recovery memo. (Ex.PW -1/4) against whom a murasila was sent for registration of the case for contravention of Section 13 of Arms Ordinance, 1965.
6. During interrogation, on 24th of February , 2014, Zar Muhammad made disclosure to have had received Rs, 10,000/- out of robbed money of Rs, 14,530/-, lying in his pocket, which was secured through recovery memo.
(Ex.PW .4/1), which followed the recovery of a double barrel shot gun .12 bore (foreign made) i,e, (Article Ex.P-27), a Kalashnikov (Article Ex.P-28) loaded a magazine (Article Ex.P-29) with twenty live rounds (Article Ex.P-30) on his pointation, which were taken into possess ion through recovery memo. (Ex.PW -1/7) from a cave, concealed by him.
The police party was led by him to the house of respondent Wali Hayat alias Wilayat Khan and in the absence of Wali Hayat alias Wilayat Khan from back side of the box, bangles, locket and rings being the plundered gold ornaments, weighing 426 grams (Article Ex.P-31), which were taken into possession through recovery memo.
(Ex.PW -1/8), subsequently identified by appellant and his family members (not associated as witness). Suffice to add, that earlier on 24th of February , 2014 the house of Wali Hayat alias Wilayat Khan was searched and a Kalashnikov was recovered but gold ornaments were not found, but after recovery of said gold ornaments etc, later on 26th of February , 2014 from the same place costs doubt in the whole proceedings of recovery .
7. On 30th of March, 2014 Usman Ali alias Raid Alam was arrested and from his possession Nokia mobile phone (Article Ex.P-34) was recovered, which was taken into possession through recovery memo. (Ex.PW -4/3). Although CDR of SIM in the said mobile was procured but nothing incriminating could be found in the CDR, (Ex.PW .10/17) so admitted by the Investigating Officer himself. During the course of interrogation, Usman Ali alias Raid Alam led the police party and got recovered Rs, 1500/- (Article Ex.P-35) a ear ring "Junki" (Article Ex.P-36) through recovery memo. (Ex.PW .5/1), as well as made pointation of the place of occurrence. He was, produced before Judicial Magistrate for recording confessional statement through an application (Ex.PW -11/22), but he resiled to record his confessional statement thus, he was remanded to judicial lockup.
8. Accused Wali Hayat alias Wilayat Khan was arrested from his hous e on 12th of March, 2015, in consequenc e of raid conducted by A.S.I Muhammad Saeed Khan (PW.10) who subsequently led the police party to his house, and got recovered three nose rings (Article Ex.P-5), a ear ring "Junki" (Article Ex.P-6), an ear ring (Article Ex.P-7), a large ear ring (Article Ex.P-8), a broken necklace (Article Ex.P-9) a white colour locket "Bazari" (Article Ex.P-10) and a bangle (Article Ex.P-1 1), which were secured through recovery memo. (Ex.PW-2/1). He also handed over Rs, 600/- (Article Ex.P-13) as substitute of plundered amount as he had spent the said amount, secured through recovery memo. (Ex.PW -2/2) and also got recovered a rifle of 7.62 bore (Article Ex.P-15) alongwith two live rounds (Article Ex.P-16) from the cattle but in his house, which was taken into possession through recovery memo. (PW- 2/3).
9. On conclusion of the investigation the accused named above were booked to face the consequence before the trial Court.
10. The appellants were indicted through a formal charge recorded under Sectio ns 457, 170 and 342/34 of The Pakistan Penal Code I XLV OF 18601 (hereinafter referred as "Penal Code") and under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance VII of 1979 (hereinafter referred as "Hudood Ordinance"), which was denied by them, claiming false implication.
11. The prosecutions to substantiate accu sation produced as many as 13 (thirteen) prosecution witnesses, which on closure of the prosecution witnesses followed examination of the respondent, under Section 342 of The Code of Criminal Procedure [Act V of 1898] (hereinafter referred as "The Code")
12. On 10th of November , 2016, the trial Court held the respondents not guilty of the charge, culminating resulted into their acquittal.
13. The captioned appeals were preferred by complainant Amreez Khan (PW .12) as well as by the State.
During the course of preliminary hearing on 17th of April, 2018, the appeal to the extent of Wali Hayat alias Wilayat Khan was not pressed by appellant Amreez Khan for non-availability of incriminating evidence as such the appeal to his extent was dismissed.
14. Mr. Shan Zeb Khan, learned counsel for the appellant Amreez Khan, Mr. Wilayat Khan, learned Assistant Advocate General KPK for St ate appellant as well as Mr. Yousaf Ali, Advocate for the respondents have been heard at length.
15. W e have thoroughly considered their arguments in view of the available record.
16. Learned counsel for appellant Amreez Khan, while arguing the appeal challenged the validity of the impugned judgment and contended that the evidence available on record has not only been misread by the trial Court but has also not appreciated the evidence brought forwarded by the prosecution in its true perspective thus, the impugned judgment being result of perversity is unsustainable. He maintained that the prosecution has successfully proved the charges against, the respondents and argued that the respondents were nominated in the FIR and after their arrest the robbed gold ornaments were recovered on the pointation of respondents, which was sufficient enough for holding them guilty of the charges but the trial Court has erred factually and legall y, which calls for interference by this Court. Lastly , prayer for annulment of the impugned judgment was made.
Learned law officer adopted the arguments so advanced by Mr. Shan Zeb Khan, Advocate and learned counsel for appellant Amreez Khan and argued that the case of the prosecution has been proved to the hilt as such acquittal recorded by the trial Court is against the principles of criminal administration of justice. He urged that as the impugned judgment suffers from mis-reading and non-reading of the evidence, resulting into miscarriage of justice, which requires to be set aside. It was also prayed that the impugned judgment may kindly be set aside and the respondents be convicted and sentenced accordingly for the indicted charges.
On the other hand Mr. Yousaf Ali, Advocate appearing on behalf of the respond ents argued that the impugned judgment is well-reasoned and does not suffer from any infirmity or perversity . He maintained that there is a delay of three days in lodging of the FIR, that too without any justifiable explanation. According to him, although the appellants have been nominated in the FIR but no source has been disclosed, which shows ill-intentions on the part of the complainant. He vehemently argued that the details of the case property were not mentioned by the complainant or any other witnesses before the alleged recovery of the looted articles as such identification after the recovery is worthless and irrelevant. He further argued that the prosecution has failed to associate any other family member as witness to corroborate. the testimony of complainant Amreez Khan (PW.12), as such withholding such material evidence, makes the entire case highly doubtful. Henceforth prayed for dismissal of both the appeals.
17. It is well settled dicta that the yardstick for interference in a judgment of acquittal are entirely different from that of a judgment of conviction. The judgment of acquittal can only be interfered, if the conclusion drawn are speculative, arbitrarily , artificial and a result of misreading and non-reading of evidence. It cannot be interfered merely for the reason that another view of evidence is possible. In this regard, we are guided with the law expounded in the case of Zeeshan Afzal Alias Shani and another vs. The State and another (2013 SCMR 1602 ), Ghulam Sikandar and another vs. Mamaraz Khan and others (PLD 1985 SC 11) and The State and others vs. Abdul Khaliq and others (PLD 201 1 SC 554 ).
18. In view of the above dictum, laid down by the Hon'ble Apex Court, we have scanned the impugned judgment and the evidence on record, looking into the veracity of the judgment as to whether it suffers from any perversity or infirmity , entailing any interference by this Court. Undeniably , case of the prosecution mainly hinges upon the testimony of Amreez Khan (PW.12) and recovery of plundered articles including money , allegedly recovered from the possession of the respondents. Amreez Khan (PW.12) while testifying before the Court reiterated the averments made in his report on the basis of whereof FIR (Ex.P A) was lodged. He reported that the culprits, who robbed them, were muffled faces. He did not give even a slightest description of the said felons in respect of their height, body structure or even clothes worn by them, until nominating the respondents at a belated stage.
19. It is worthwhile to make note of the fact that there is a delay of three days in lodging of the FIR, and that too, without any plausible and justifiable explanation. The respondents have been nominated without disclosing any source, showing as how complainant (PW.12) came to know about the names of the culprits. He also did not utter a word as who informed him and how the names of the culprits were known to him. Allegedly the culprits pretended to be army soldiers but Amreez Khan (PW.12) has never ever stated to have approached Army Officials of the area about the culprits to get the clue and confirm or otherwise of the particulars of the culprits.
20. Amreez Khan (PW.12) has admitted in his statement in cross-examination that after consultation and self probe, he lodged the FIR. We are conscious of the legal proposition that mere delay in lodging an FIR is not fatal but we are also aware that in a case, where FIR is lodged with the delay without any plausible and justifiable explanation, the deliberation and consultation in such circumstances give rise to false implication. In the instant case, some deliberation and consultation has been admitted and no plausible explanation has been offered by Amreez Khan (PW.12) for lodging the FIR with the delay of three days, therefo re, it casts serious doubts and adverse implication upon the case of prosecution, which has properly been dealt with by the trial Court as well.
21. The corroborative piece of evidence brought forward by the prosecution in the instant case is the recovery of plundered articles including the money allegedly made on the pointation of the respondents. Amreez Khan (PW.12) has provided the details of robbed articles 12 tola amounting to Rs, 600,000/- in his report which consists of four (4) ear rings, two (2) necklaces, three (3) rings, three (3) nose pin, two (2) ear rings "Junkies" and cash amount of Rs, 14,530/-(Rupees fourteen thousand five hundred thirty only) a Kalashnikov (local made), a rifle double barrel .12 bore (foreign made) and twenty live rounds of 7.62 bore.
22. During the investigation, initially Zar Muhammad and Bakht Ali was arrested on 23rd of February , 2014. The raiding party during the course of arrest of Zar Muhammad, recovered a Repeater .12 bore, having three rounds (Article Ex.P-1) secured through recovery memo. (Ex.PW .1/2). On 24th of February , 2014 Rs, 10,000/- was recovered from his pocket whereof recovery memo. (Ex.PW .4/1) was prepared. On 26th of February , 2014 respondents Zar Muhammad got recovered a double barrel shot gun (Article Ex.P-27), a Kalashnikov (Article Ex.P- 28), a loaded magazine (Article Ex.P-29) and twenty rounds (Article Ex.P-30) from a cave, which were taken into possession through recovery memo. (Ex.PW .1/7). On the same day, got recovered gold ornaments, weighing 426 grams consisting of a (1) necklace, two (2) lockets, two (2) small lockets, nine (9) bangles, eleven (11) ear rings, two (2) ear tops, two (2) rings, a (1) small top pin and broken parts of two (2) lockets and several other (white) artificial ornaments ten (10) bangles, five (5) ear rings "Junkies", a (1) top pin, a (1) nose ring, three (3) rings, a (1) necklace and a (1) locket, secured through recovery memo. (Ex.PW .1/8) from the house of respondent Wali Hayat alias Wilayat Khan on his pointation. The case property consisting of a double barrel shot gun (Article Ex.P-27), a Kalashnikov (Article Ex.P-28), a loaded magazine (Article Ex.P-29) and twenty rounds (Article Ex.P-30)
Kalashnikov (Article Ex.P-3), a magazine (Article Ex.P-20) with two live rounds (Article Ex.P-21) secured through recovery memo. (Ex.PW .1/4) have not been claimed and identified by complainant Amreez Khan (PW.12), as such, said recoveries have no relevance in the instant case, thus cannot be considered as incriminating evidence.
Complainant Amreez Khan (PW,12) has also not given the numbers of plundered arms and has failed to provide any license or ownership documents of the said arms and ammunition.
23. As far as recovery of Rs, 10,000/- consisting of two notes of Rs, 5,000-(Articles Ex.PW .22 and Ex.PW .23) secured through recovery memo. (Ex.PW .4/1) is concerned, the same on the face of it, seems strange and artificial. Respondent Zar Muhammad was arrested on 23rd of February , 2014 from his house but the recovery of Rs, 10,000/-(Rupees ten thousand only), shown as looted amount was recovered on 24th of February , 2014 from his pocket, which is surprising as at the time of arrest nothing was recovered from him. The arrested accused is always searched and then is locked up, therefore, the recovery of looted money of Rs, 10,000/- seems to be nothing but a concoction, whereupon no reliance can be placed for holding the respondent guilty of the charge, as rightly observed by the trial Court too.
24. The appellant Amreez Khan (PW.12) in the course of identification parade vide memo. (Ex.PW .1/11) had allegedly identified the gold ornaments such as a necklace and an ear ring and certain artificial ornaments as looted property . The details of artificial ornaments do not figure in the said mem o. of identification. More-so, as observed that appellant Amreez Khan (PW.12) has not reported earlier that his artificial ornaments were taken away by the culprits as such identifying artificial ornaments, subsequently does not improve the case of the prosecution, rather diminishes the evidentiary value of the entire identification proceedings. Above all, the identification memo. (Ex.PW .1/11) does not show nor stated by (PW.12) that the identified ornaments were mixed with the similar like other gold and artificial ornaments, requiring to identify the looted ornaments amongst the lot.
The memo. of identification of the articles also show that the said ornaments were allegedly identified by appellant Amreez Khan (PW.12), his brother Faiz Muhammad Khan and his mother , but neither his brother nor her mother have been associated as witness. The prosecution has also failed to make an attempt to produce them in the Court as a witness, even at a subsequent stage , which also puts dent in the entire proceedings of identification of articles.
In such view of the matter , the proceeding of identification parade is worthless, having no evidentiary value. In this regard, we would like to refer to the cases of Sarfraz alias Safu and others vs. The State (2017 YLR Note 220) and Farman Ali vs. The State (2018 YLR 2307 ). The recovery of a Kalashnikov (Article Ex.P-3), magazine (Article Ex.P- 20), with two live cartridges of 7.62 (Artic le Ex.P-21) have also no relevance as such, because it is not the looted Kalashnikov . Appellant Amreez Khan (PW.12) had neither given the number of this Kalashnikov nor anywhere, identified the same to be the Kalashnikov (local made) having been taken away . Similarly , no license or other requisite document pertaining to the said Kalashnikov has been placed on record, which has made the recovery irrelevant.
25. Furthermore, the recovery of Nokia mobile phone from Usman Ali alias Raid Alam is concerned, it may be observed that the same also has no relevance at all, for the reason that it has never been a property relevant to the case, relating to Call Data Record (CDR) or plundered property . The recovery of cash, amounting to Rs, 10,000/- from Zar Muhammad, Rs, 1030/- from Bakht Ali, 1500/- from Usman Ali and Rs, 600/- from Wali Hayat cannot be considered as incriminating evidence on the mere assertion that the respondent had stated the same to be their share of looted amount, unless, the said recoveries are proved by other independent means. Neither the numbers nor any identification marks upon the notes were mentioned by appellant Amreez Khan (PW.12), as such it would not be safe to hold that the amount in question as the looted amount.
26. Transpired from the evidence on record as well as conceded by both the learne d counsel for the appellants that the Call Data Record ( CDR) in no manner connect the respondents and does not help the prosecution to substantiate the charges, henceforth, placing the CDR is nothing but futile exercise on the part of the prosecution.
27. The trial Court has thoroughly discussed the evidence adduced by the prosecution and has rendered the judgment impugned herein on the basis of logical and legal reasons, not suffering from any perversity , illegality , misreading and non-reading of evidence. The judgment impugned has been examined by us thoroughly in view of evidence on record, which is neither artificial nor speculative, compelling us to interfere with. The evidence on record is insuf ficient, holding the respo ndents guilty of the charges. Obvious ly after earning acquittal, the presumption of dual innocence comes into play, which restrains us not to interfere unless grave illegality or perversity is observed, resulting into miscarriage of justice, which we have not found.
28. These are the reasons for our short order dated 10th of January , 2019, whereby the appeals bearing, Criminal Appeal No, 19/1 of 2016 and Criminal. Appeal No, 02/1 of 2017 against acqu ittals were dismissed for being meritless.