2009 P Cr (PLP)

ZIA-UD-DIN KHATTAK, J.

Through this appeal under section 417, Cr.P.C., the State through Advocate-General N.-W.F.P has challenged the judgment dated 15-2-2001 of the learned Additional Sessions Judge, Abbottabad, whereby accused/respondent Shoaib Ayub Tanoli charged for offences under sections 302/324, P.P.C. for the commission of murder of Waqar Alam and attempted murder of Abdul Qayyum, was acquitted on benefit of doubt.

2. Briefly, the facts of the prosecution case as disclosed at the trial, are that on 19-12-1998 Sheikh Rahat Alam, complainant in the Emergency of U.H.Q. Hospital, Abbottabad at 12-00 (noon) reported the matter to the effect that on the fateful day he was present at Chitta Pull. At about 10-50 hours he on hearing commotion, went towards the hotel and saw that Shoaib Ayub Tanoli was abusing Waqar Alam, the brother of the complainant, and Abdul Qayyum inside the hotel and in presence and sight of the complainant, Shoaib started firing on both of them with his .30 bore pistol with which they were hit and fell down, while accused made good his escape. The complainant with the help of other persons took both the injured to the hospital but his brother succumbed to the injuries on the way. The occurrence was statedly witnessed by the complainant, Javed and Gulfam and other persons present at the spot. Motive for the occurrence was previous annoyance in between the accused and the deceased.

3. On the report of complainant Sheikh Rahat Alam F.I.R. No.443 was registered the same day under sections 302/324, P.P.C. in Police Station City, Abbottabad against the accused/respondent and after necessary investigation, the case was forwarded to the learned Sessions Judge, Abbottabad, the same was entrusted to learned Additional Sessions Judge, Abbottabad for disposal.

4. In order to prove its case and bring home charge to the accused/respondent, the prosecution produced eight (8) witnesses in all, including the Investigating Officer, medical officer and other witnesses, who are of formal nature. The accused/respondent in his statement under section 342, Cr.P.C. refuted the prosecution allegations and professed innocence.

5. Learned Deputy Advocate-General representing the State/appellant contended that the accused /respondent was directly charged in the F.I.R., that the evidence brought on record has proved the case against him beyond any shadow of doubt but the evidence has not been properly appreciated by the learned trial Court resulting into miscarriage of justice.

6. Conversely, Qazi Muhammad Arshad, Advocate for the accused/ respondent, while arguing at the very outset submitted that the respondent has acquired double presumption of innocence; firstly, that every accused is presumed to be innocent unless proved guilty and secondly, by an order of acquittal in his favour by the trial Court. He further argued that the judgment of acquittal ordinarily is never set-aside or interfered with unless the same is perverse or fallacious. It was contended that Sheikh Rahat Alam, complainant was disbelieved at the trial and rightly so as he was not present on the spot, who emerged after the occurrence and lodged the report after preliminary investigation. About Abdul Qayyum P.W.7, it was argued that he neither identified the culprit at the spot nor lodged report against him about injuries sustained by him. Concluding the arguments, the learned counsel submitted that the prosecution has failed to prove the case against the respondent beyond shadow of doubt and, therefore, he was rightly acquitted.

7. We have examined the record with the assistance of learned counsel for the parties in order to ascertain whether appreciation of evidence by the trial Court suffers from any misreading or non-reading of any material evidence.

8. The standard of assessing the evidence in appeal against acquittal is quite different from that laid down for appeal against conviction. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method is not to be applied as there is already finding of acquittal given by the trial Court after analysis of the record. In the acquittal appeal, interference is made only when it appears that there has been-gross misreading of the evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal is considerably narrow and limited as held by the apex Court in 1995 SCMR 635.

9. The prosecution case rests on the testimony of Sheikh Rahat Alam, complainant and Abdul Qayyum P.W.7 inasmuch as both of them claimed to be present at the scene of occurrence on the fateful day. Since the complainant is brother of the deceased, therefore, his evidence requires to be subjected to close scrutiny. The crime in question is alleged to have taken place on the morning of 19-12-1998 at 10-50 hours. The matter was reported to the police at Emergency of D.H.Q. Hospital, Abbottabad by complainant Sheikh Rahat Alam P.W.4, the same day at 12-00 (noon) i.e. after a delay of one hour without any explanation. It is admitted by the Investigating Officer P.W.8 that the distance between the place of occurrence and the hospital could be covered within ten minutes, therefore, it has been rightly observed by the learned trial Judge that lodging of report after one hour delay is a circumstance which could not exclude the possibility of false implication of the culprit, in the report, as a result of consultation. It is not denied that unexplained delay in lodging F.I.R. leads to suspicion and reflects adversely on the prosecution case. In this case, the delay of one hour in lodging the report has assumed .great significance as far presence of the complainant at spot is concerned. To elaborate the point whether complainant was present at the spot at the time of occurrence and has witnessed the occurrence, reference is made to the testimony of Dr. Fiaz Hussain Shah P.W.6. According to him, he started conducting autopsy on the dead body of the deceased at 11-00 a.m. on 19-12-1998 i.e. on the day of occurrence. Injured Abdul Qayyum P.W.7 has also stated that he was taken to the hospital at 11-00 a.m. The time of conducting post-mortem examination of the deceased is clearly mentioned in the post-mortem report Exh.P.M. as 11-00 a.m., therefore, the possibility cannot be excluded that after the occurrence, when the deceased and injured were shifted to hospital, the police was already present there and without recording the report, the injury sheet and inquest report of the deceased were prepared along with the injury sheet of injured P.W.7 and they were handed over to the doctor, who started conducting medical examination of the injured and autopsy of the dead body of the deceased and later on, on availability of the complainant, his report was recorded in the shape of Murasila at 12-00 (noon). At this juncture, a question that remains unanswered and being fatal for prosecution arises that if the report, according to the prosecution's own version was recorded at 12-00 (noon) and thereafter the injury sheets and inquest reports of the injured P.W. and that of the deceased were prepared, then how the post-mortem examination was conducted at 11-00 a.m. i.e. one hour prior to lodging of report. This creates probability that the complainant P.W.4 was not present on the spot at the time of occurrence and that he did not accompany the deceased and the injured to the hospital and further the preliminary investigation was conducted first and then the report was lodged when the complainant came into contact with the investigating officer rendering the prosecution case doubtful.

10. The other eyewitness is Abdul Qayyum P.W.7. He sustained injuries in the incident. However, it is established on record that at the time of occurrence or on 22-12-1998 when his statement was recorded by the police and even after completion of investigation or at any occasion during the investigation, he did not name the respondent till his evidence was recorded at the trial on 21-6-2000, which can only be treated as dishonest improvement that the respondent was the culprit, inasmuch as the identification of accused remained doubtful. Even otherwise, as held by the apex Court in 1992 SCMR 2088 the identification of a person in Court produced as an accused months after the event cannot satisfy the requirement of law for proving identity of the culprit.

11. The motive leading to the incident is stated to be previous annoyance in between the respondent and the deceased. The motive has been denied by the respondent. Except the solitary statement of the complainant, there is nothing on the file to prove that annoyance, which prompted the respondent to commit the crime in question. The motive has also not been satisfactorily explained.

12. We, in the circumstances, find no infirmity, legal or otherwise, in the impugned judgment of acquittal of the learned trial Court, which could justify us to interfere therewith.

13. In the result, this appeal stands dismissed. H.B.T./78/P Appeal dismissed.