2006 PLP 348 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Appellant Muhammad Zahir Shah, has filed instant criminal appeal under section 417 (2-A) Cr.P.C. to impugn the judgment dated 18-2-1999, recorded by learned Judicial Magistrate, Peshawar, whereby respondents Zahoorullah Shah and his cousin Muhammad Arshad, were acquitted from the case registered against them, vide F.I.R. No.116 dated 15-3-1988 under section 307/34 P.P.C. at Police Station, University Town, Peshawar, on the statement of complainant Muhammad Zahir Shah, appellant herein.

2. The prosecution' story as unfolded in the F.I.R. is, that on the fateful day i.e. 15-3-1988, complainant Muhammad Zahir Shah, a student of B.Ed. and his brother Muhammad Tariq, a student of 2nd year Islamia College, Peshawar, were on the way to the house. When they reached near the venue of occurrence i.e. Board Chowk, Peshawar at about 12-45 PM, a Motor Car bearing No.PRE-3735 was sighted coining from Hayatabad side. Zahoorullah Shah and Muhammad Irshad accused-respondents were sitting in the car. When the car reached near the complainant and his brother, the occupants of the car started firing with pistol at the complainant party but luckily they escaped unhurt. The motive leading to the incident was stated to be previous enmity between the two families.

3. A.S.-I. Obaidullah (P.W.3), Police Station, University Town, Peshawar registered the case vide F.I.R. No.116 (Exh.P.W.3/1) at the instance of the complainant. He then visited the spot; prepared site-plan Exh.P.W.3/2 with all its foot notes and sketches at the pointation of the complainant and recovered two empties of .30 bore from the spot vide recovery memo. Exh. P.W.2/1 in the presence of marginal witnesses. On 16-3-1988, he received information that a motor car was parked in the Academy Town, Peshawar unattended. He took ,the same into possession vide memo. Exh.P.W.1./1. He recorded statements of prosecution witnesses and on completion of investigation submitted challan against the accused to face trial.

4. The prosecution in order to prove its case, produced seven witnesses, namely, Moharrir Sher Nawaz (P.W.1), Arbab Ijaz (P.W.2), A.S.-I. Obaidullah (P.W.3), Muhammad Tariq Shah (P.W.4), complainant Muhammad Zahir Shah (P.W.5), IHC Shah Wali (P.W.6) and S.H.O. Imtiaz Ali (P.W.7).

5. The accused-respondents in their statements recorded under section 342 Cr.P.C. repudiated the prosecution allegations and claimed to have been charged falsely on account of enmity. Zahoorullah Shah accused-respondent in an answer to a question, as to 'what is your statement and why are you charged', stated:-- "I am innocent and falsely charged in this case. The accused party is a complainant in a murder case in which my cousin was murdered and the brothers and elders of the complainant were charged in that case. Therefore, I along with co-accused involved in this case to pressurize us for compromise. In fact on the relevant day and time, I was on duty in the U.B.L. Bara Branch and during the investigation I produced my attendance certified documents and certificate in this respect which are D.W. and D.2 to the Investigating Officer."

6. They neither produced defence evidence nor appeared as their own witness on oath.

7. It may be mentioned here that accused-respondent Muhammad Irshad is reported to have shifted his abode and is not traceable. He is absconding in case F.I.R. No.14 dated 18-1-2005, registered under section 324 P.P.C. at Police Station, Batagram. Non-bailable warrant of arrest has been issued against him. This judgment shall relate to Zahoorullah Shah alone.

8. Mr. Muhammad Tariq Kakar, Advocate, appearing for the Appellant, forcefully contended that the trial Court could not appreciate the evidence on the file in its true perspective; that the Court has failed to give any convincing reason while acquitting the accused-respondents; and that minor and inconsequential discrepancies in the statements of complainant and P.W. Muhammad Tariq Shah have been taken into consideration and made basis of acquittal of accused-respondents, which has resulted in manifest injustice. Concluding the arguments, the learned counsel asserted that plea of alibi taken by accused-respondent in his statement under section 342 Cr.P.C. was not discussed at all, and thus case may be remanded to the trial Court for re-trial.

9. Mr. Attaullah Khan, Advocate for accused-respondents, while opposing this appeal against acquittal, contended that the judgment of acquittal is a well-reasoned judgment and that since a case was not proved against the accused-respondents beyond a reasonable doubt, therefore, this appeal is liable to be dismissed. In support of submissions, he placed reliance on Sher Dil alias Sher Gul and another v. The State (1973 PCr.LJ 802 Lahore), State through the Advocate General, N.-W.F.P. Peshawar v. Habib (PLD 1996 Peshawar 43), Muhammad Ishaq v. Sardar Ali and another (2004 PCr.LJ 861 Peshawar), The State v. Sardar and another (2003 PCr.LJ 591 Lahore) and Ghulam Sadiq v . Muhammad and another (2004 PCr.LJ 1068 Peshawar).

10. Mr. Obaidullah Anwar, learned D.A.-G. appearing on behalf of the State adopted the arguments of the learned appellant's counsel, maintaining that the impugned judgment is not according to law and cannot be allowed to remain intact.

11. Having concentrated on the arguments of learned counsel for the parties in the light of available record, I am of the view that the conclusion drawn by the trial Judge is neither arbitrary, fanciful nor artificial in nature. The settled law in an appeal against acquittal is that the Appellate Court is slow in disturbing the finding of fact arrived at by trial Court. Acquittal judgment is not to be interfered with lightly and due consideration and weight -is to be attached to the observations made in the acquittal judgment. The view and approach for dealing with the appeal against the conviction would be different and distinguishable from the appeal against acquittal because of presumption of double innocence of the accused is attached to the order of acquittal. In State through the Advocate-General N.-W.F.P. Peshawar v. Habib (PLD 1996 Peshawar 43), it was observed:-- "It will not be out of place to mention here that it is now well-settled that where, in acquitting an accused, the trial Court has not violated any rule of law and has not ignored any material fact, while appreciating the evidence on record, its inference did not suffer from any legal or factual infirmity and that he has correctly commented on the credibility of the witnesses and has evaluated the circumstantial evidence, in detail, then in that case there is no justification for us to interfere with the order of acquittal even if a different view could be taken, though it is not so possible in this case. The fact remains that it is for the prosecution to prove its case against the accused beyond a shadow of reasonable doubt and that the prosecution cannot take benefit from the weakness of the defence plea."

12. It is a case of ineffective firing. The eye-witnesses namely, Muhammad Tariq Shah, Muhammad Zahir Shah and IHC Shah Wali P.Ws. have made improvements step by step to lend corroboration to the prosecution story. Their version has been rightly discarded by the trial B Court. It may be observed here that though the occurrence was alleged to have taken place near 'Board Chowk' at broad-daylight and number of people were claimed to have seen the occurrence but no independent and unconnected witness from the locality has been produced to supplement the prosecution version. The presence of Muhammad Tariq Shah P.W. has also not been satisfactorily proved. It may be mentioned here that Muhammad Karim and Dil Agha were examined under section 161 Cr.P.C. but they were not produced at the trial, which adversely reflects upon the prosecution case.

13. The F.I.R. in the instant case having been registered in the year 1988, order of acquittal was passed in 1999 and respondent having suffered the agonies of protracted trial for eleven ,years, it would not be proper at this stage to remand the case for retrial.

14. The accumulative effect of the above discussion leads to the conclusion that there is no evidence which inspire confidence and the conviction could be based on it. It is analyzed that the evidence is not sufficient to hold the accused-respondent guilty beyond reasonable doubt: It is settled principle under all systems of criminal justice that unless proved guilty op the basis or reliable or true evidence and that benefit of every reasonable doubt is to go to the accused.

15. After going through the reasons recorded in the impugned judgment, I am of the view that adequate justification has been furnished by the learned trial Magistrate in support of order of acquittal. Needless to observe that an order of acquittal is not ordinarily interfered with unless the same is found to be arbitrary or perverse. No such ingredient could be noted or pointed out by the learned counsel. Pursuant to above, without prejudice to the case of Muhammad Irshad, absconding accused-respondent, finding no substance in this appeal, I dismiss the same and maintain the impugned judgment of acquittal. H.B.T./573/P?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.