Syed Muhammad Farooq Shah, J.--The captioned appeal calls in question the legality, validity, perversity and propriety of the acquittal of respondents/accused recorded by the learned Additional Sessions Judge, Balakot, camp @ Mansehra, vide impugned judgment, pronounced on 26.07.2014.
2. Story of the prosecution case in nutshell is that on 09.07.2013, DSP, Circle Balakot, SHO Balakot, Garhi Habibullah and Habibur Rehman Khan, Inspector/SHO, PS Battal alongwith other police officials were accompanying DPO, Mansehra who was then newly posted in Mansehra, on an introductory visit to the area at Mondari Bazzar received information about some accused looting the passengers by stopping vehicles on the road at a place known as Dhanda De Kassi. On this information, police party under the lead of DPO, Mansehra at 0010 hours rushed to the place of occurrence which was blocked by the accused by putting stones on it. The accused, who were eight in number, were standing along both sides of the road and a Jeep No. 1970/BA was also parked over there. One of the accused on seeing police party shouted about the arrival of police and asked his companions to attack the police party. Then accused 'party started firing on the police party, who on the command of DPO, Mansehra took refuge behind the police mobile vehicles and responded with firing in self defence in retaliation. During indiscriminate firing on the spot, three accused persons having hit, succumbed to injuries while rest of the accused ran towards Nallah, who were chased and overpowered by the police party.
On enquiry, they disclosed their names as Abdul Mehmood, Sajjad Ahmed and Muhammad Rashid, against whom an F.I.R. Bearing No. 123 was registered on 10.07.2013 at police station Kaghan, District Mansehra under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 7 ATA/324/353/148/149, P.P.C. and 13 A.O,
3. Investigation ensued as a result of which various steps were taken, while co-accused Wasim and Waqas alias Kashi could not be arrested and remained absconders. After completion of usual investigation, final report under Section 173, Cr.P.C., submitted by the concerned police against the accused in the trial Court. Formal charge was framed against the accused/respondents, to which they pleaded not guilty and claimed trial. After recording the evidence of all material prosecution witnesses, the learned trial Court arrived at the conclusion and seeing no probability of the accused being convicted on account of the charges leveled against them acquitted the accused by exercising the jurisdiction bestowed under Section 265-K, Cr.P.C.
4. Ms. Sophia Noreen, learned Assistant Advocate-General, Khyber Pakhtunkhwa, representing the State contended that there was sufficient material available on record against the accused. Next argued that learned trial Court has erroneously extended benefit of minor discrepancies of prosecution evidence in favour of the respondents, which is totally in violation of settled principle of evaluation of evidence; more particularly, prosecution was not given proper opportunity to produce its entire evidence to successfully bring home the charge against the accused as from calendar of 36 prosecution witnesses, the learned trial Court succeeded to record deposition of six prosecution witnesses. However, in response to a query made by this Court that as to whether remaining un- examined prosecution witnesses could have improved the prosecution version, particularly after recording deposition of six witnesses, three other prosecution witnesses were examined as Court witnesses viz. CW-01, CW-02 and CW-03 who did not support the prosecution story; more particularly, a perusal of record further reflects that six remaining. PWs namely (i) Babar Ali shah No. 342, (ii) Imtiaz No. 610,
(iii) Azam No. 347, (iv) Sajjad No. 569, (v) Abdul Waheed No. 571 and (vi) Akhtar Nawaz No. 515 have been given up by the learned prosecutor being unnecessary witnesses; the learned State Counsel candidly stated that the remaining un-examined prosecution witnesses are also police officials and certainly they shall not improve the prosecution case to the extent of probability of the accused being convicted.
5. Cursory examination of prosecution evidence reveals that PW-1 Israr Shah, HC, is a formal witness, who after receiving parcel No. 6 transmitted to the office of Fire Arms Expert, FSL, Peshawar through constable Abdul Wahid 806. PW-2 Muhammad Tajun, AK is also a formal witness who acted as a marginal witness of pointation memo prepared on 15.07.2013. He, in reply to a. suggestion put in the cross-examination, stated that he was taken by the I.O. to the spot from P.S. Balakot. PW-3 Habibur Rehman Khan, Inspector/SHO appeared as complainant and supported the contents of the F.I.R. He stated that his supplementary statement was also recorded by the investigation officer on 10.07.2013, following day of the occurrence. He further admitted in cross-examination that they did not hear .any hue and cry of private witness Faradoon, until he was found tied with rope from both hands and legs; self stated that the fact stated in the Murasila that police party on the instruction of DPO, Mansehra by taking refuge of the vehicles and in self-defence started firing at the accused party, as a result of which three persons were shot dead. Further- stated that; "though in the Murasila it was clarified by me through my supplementary statement of 10.07.2013, after spot inspection, which satisfied me that actually the deceased accused were hit by the firing of the co-accused, as they were in line of the firing of their co-accused and not the police party." Further admitted that "the people who were coming and going to the area as it was seasonal days" but they did not informed him about the looting at the place of occurrence viz. Dhanda De Kassi and that, "I did not inquire from the Muharrir as to who had informed him about the presence of accused and looting at the place of occurrence. I cannot tell the exact number of police officials in our squad which approached to the spot of occurrence." Further stated that the accused had fired at police indiscriminately but none of police persons has received even a single scratch on their persons; stated in cross-examination that 3/5 escaped culprits were chased by them without making firing upon them. PW-4 Muhammad Sabir Khan, S.I./R.I., by supporting the story of encounter of police party with accused stated similar facts of incident with certain clarification in cross-examination that police party was fired upon by the accused from both sides of the road, indiscriminately; despite firing by the accused, police did not received even a single scratch on their persons. He had also admitted that when the accused were running from spot they did not shot-fire at them.
PW-6 Faradoon i.e only available private witness, untied by the PW, SHO Habibur Rehman, having signs of rope on the hands and legs, however this fact has emphatically been denied by the complainant/SHO Habibur Rehman. PW-5 Taj Muhammad, SI, acted as a marginal witness of recovery of empties recovered from the place of occurrence, stated in cross-examination that "it is not in my knowledge that the police of police station Hangu were informed about the arrest of deceased accused 2/3 days prior to the occurrence", however, he has denied that the empties were planted in order to justify fake and fictitious encounter.
PW-6 Faradoon, the only independent prosecution witness, stated that eight persons hired his Jeep, snatched Rs. 60,000/- cash, one Nokia C-2 and Citizen wrist watch; they tied his hands and legs and left him in the kassi.
Thereafter, he heard the report of fire shots; after about 30/45 minutes police came, unfastened his hands, and took him to the road where he found three persons among those who snatched the amount etc. from him, were lying dead and three were arrested on the spot by the police, while two had decamped; that on 11.07.2013, local police produced him before Illaqa Judicial Magistrate at Balakot, where his statement under Section 164, Cr.P.C. was recorded. There is nothing on the record to show that what prevented the police to reduce the statement of PW Faradoon in writing under Section 154, Cr.P.C. with regard to alleged robbery etc. PW-6 Faradoon stated in cross-examination that he was unaware that how many Sub-Inspector, DSP, SP, DPO and policemen were present at the spot when he was brought there further stated that police did not record his statement on the spot. He has also admitted that neither the Jeep was taken from his custody by the police through recovery memo nor the same was returned to him after paper work; further stated that police did not record his report of the occurrence as he was made to sit on the road outside the police station for about 3 to 5 hours and thereafter he left with his relative.
6. The impugned judgment and the prosecution evidence put-forth by the prosecution have thoroughly been scanned by us with the able assistance rendered by Ms. Sophia Noreen, Id: Assistant Advocate-General, Khyber Pakhtunkhwa representing the State/Appellant as well as Mr. Muhammad Bilal Khan, learned counsel representing the respondents/accused.
7. Entire episode of the prosecution story rests upon the evidence of DPO concerned, on whose presence and instructions the alleged encounter had been conducted, but surprisingly he was not made a witness in this case.
8. From perusal of record, it appears that the reasoning of acquittal recorded elaborately by the learned trial Court does not warrant any interference as impugned judgment does not suffer from lack of appreciation of reception of evidence legally and acquittal order on the face of it is not based upon surmises and conjectures.
On the contrary, it based upon reasons which do appeal to a reasonable mind. The settled criteria to entertain the appeal against acquittal is quite different from an appeal preferred against the finding of conviction and sentence. The learned State counsel could not substantiate stance of the prosecution that the learned trial Court had committed gross injustice in the administration of criminal justice. Admittedly., the scope of an appeal against acquittal of accused is considerably limited. We have not been appraised by the learned State counsel representing the appellant that the order of acquittal passed by the learned trial Court in this case is based on misreading or non-reading of evidence.
9. Suffice it to say that the prosecution evidence does not inspire confidence as there are sufficient inconsistencies and contradictions among the depositions of prosecution witnesses, which create reasonable doubt in a prudent mind about the guilt of the accused/respondents. In criminal trial, prosecution is bound to prove its case beyond any shadow of doubt as the conviction cannot be based on high probabilities and suspicion cannot take the place of proof, therefore, no legal sanctity is attached to the F.I.R. as well as supplementary statement of the complainant recorded after inordinate delay merely on disclosure of some further source of information. If need be, authoritative pronouncement of the Hon'ble Apex Court in the case of Muhammad Mansha versus The State (2018 SCMR 772) as a guideline is reproduced herein below: "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
10. It is now settled proposition of law that the appellate Court cannot frequently interfere with the acquittal merely because on re-appraisal of evidence it comes to the conclusion different that of the trial Court acquitting accused. In the-case in hand, the learned trial Court has correctly observed that the prosecution has miserably failed to prove its case against the respondents/accused beyond the shadow of reasonable doubt, therefore, having in mind the law as laid down by the August Supreme Court of Pakistan as well as this Court, the scope of interference in appeal against acquittal is narrowest and limited because after acquittal the accused shall be presumed to be innocent, in other words; the presumption of innocence is doubled.
11. For the foregoing reasons, we are of the considered opinion that there is hardly any improbability, infirmity and perversity in the impugned judgment of acquittal recorded by the learned trial Court. The reasoning of acquittal recorded by the learned trial Court are neither arbitrary, capricious and fanciful and against the record, nor contrary to evidence brought on record, which being on sound and cogent reasons did not warrant any interference by his Court and is accordingly maintained. These are detailed reasons of our short order of dismissal of appeal recorded on 28.11.2019.