2014 PLP 2191 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

This appeal is directed against the judgment dated 10-12-2013, rendered by learned Additional Sessions Judge Takht-e-Nasrati Karak whereby respondents/accused Hazrat Bilal alias Muhammad Bilal and Gul Saeed Khan, have been acquitted in case F.I.R No.158 dated 5-6-2012, registered under sections 324/34, P.P.C. at Police Station Yaqoob Khan Shaheed Takht-e-Nasrati Karak.

2. The prosecution case is that on 5-6-2012 at 0140 hours complainant Qabil Badshah, in company of his injured son Umer Muhammad reported to local police that on 4-6-2012 at Assar time, he alongwith his sons Umer Muhammad and Imran Muhammad was searching for their missing goats in the hills and on their return, at about 20.00 hours near Sarki Lawaghar Dam, accused/respondents who were performing the duties of temporary Chowkidars of the dam, opened fire at his son Umer Muhammad, with which he was hit and injured. Motive behind the occurrence is stated to be a dispute over the post of Chowkidar of the said Dam.

3. On arrest and completion of investigation, challan was submitted against the accused before the trial Court, where they were summoned and charge-sheeted to which they pleaded not guilty and claimed trial. In order to prove the guilt of accused, prosecution examined as many as eight witnesses. After closure of the prosecution evidence, statements of the accused were recorded under section 342, Cr.P.C. wherein they denied the prosecution allegations and professed their innocence, however, they declined to be examined on oath under section 340(2), Cr.P.C. or to produce evidence in defence. On conclusion of trial, the learned trial Court, acquitted the accused. Hence, this appeal.

4. Learned counsel for the appellant heard at length and record perused.

5. It appears from the contents of F.I.R. that the occurrence has allegedly taken place on 4-6-2012 at 02.00 hours, which has been reported on 5-6-2012 at 0140 hours, i.e. after a delay of 17 hours, for which no explanation, much less plausible one, has been furnished by the complainant. Thus, keeping in view the delay in lodging report coupled with specific motive between the parties, which is always considered as a double edged weapon, which cuts both ways, as it can be used by the accused to take revenge, and at the same time can also be a tool, used by the complainant for false charge, as well, it can be safely held that the time inter se the alleged incident and report, has been consumed by the complainant in deliberations and consultations. The ocular account of the occurrence has been furnished by the complainant Qabil Badshah (P.W.3) and injured Umer Muhammad P.W.4. In his statement, the complainant has totally negated his earlier version furnished by him in his report. In his report, the complainant has categorically stated that after being unsuccessful to find the goats, they all the three i.e. he, and his sons namely Umer Muhammad and Imran Muhammad were on their way back empty handed, but in his statement he has only stated about the presence of his son Umer Muhammad. In his examination-in-chief he deposed that after the occurrence, he went to his house and arranged a Cot for shifting the injured, but in his cross-examination while contradicting his own stance stated that the Cot was brought to the spot by his son Imran. The statement of the complainant that first injured was taken to Police Station wherefrom he was referred to Takht-e-Nasrati Hospital, then to Karak, and later on, he was shifted to Peshawar, has been seriously contradicted by injured P.W.Umer Muhammad by stating that he was first treated by Dr.Rizwan in his private hospital. The injured P.W. Umer Muhammad too, just to bring in line his testimony with the complainant has not stated a single word about presence of Muhammad Imran, which amounts to dishonest improvements creating serious doubt in the prosecution case. Besides, said Muhammad Imran has not been examined Which amounts to withholding of best available evidence and in the circumstances, adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984 would be drawn that had he been produced, he would not have supported the prosecution case. Moreover, the injured P.W. has admitted the occurrence to have taken place in the dark hours of the night, which factum has been further corroborated by Noor Sali Khan, the Investigating Officer in his statement. Neither the complainant nor the injured has stated a single word about any source of light at the time of occurrence nor the I.O. has collected any instrument of light, so in such circumstances, the identification of the accused is highly doubtful. Apart from above, Noor Sali Khan I.O. has been examined as P.W.2 and he has categorically admitted that during investigation of the case, he found the accused innocent.

6. No doubt, that in hurt cases, statement of injured witnesses, supported by medical evidence, is sufficient for recording conviction, provided it rings true and is trustworthy, in view of its intrinsic worth. Mere stamp of injuries on the person of a witness would not be a proof of the fact that whatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise. It is well-settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required, It is golden principle of criminal justice that guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced to naught. Absolute certainty is seldom in forming an opinion qua guilt or innocence of a person. The Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party. It is an often quoted phrase regarding appreciation of evidence substantially in criminal justice that man may tell lie but the circumstances will never. Thus, every human narration is always susceptible to be checked on the touchstone of circumstances as well as with reference to a normal human conduct. In the present case the ocular account furnished by injured complainant is inconsistent and incompatible with other circumstances of the occurrence.

7. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused.

8. It is also a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondent/accused by extending him benefit of doubt, after proper appraisal of evidence to which no exception can be taken. Resultantly, this appeal being without any substance stands dismissed in limine. HBT/166/P Appeal dismissed.