P L D 1997 Peshawar 88 (PLP)

TARIQ PARVEZ KHAN, J.‑‑This appeal is filed against the judgment dated 14‑5‑1996 of the learned Judge Special Court, Charsadda whereby he acquitted the respondents, namely, Mujahid Misal Khan, Ikramullah and Tariq.

2. The brief facts given in the F.I.R. by the complainant who is appellant before us, are that on 11‑2‑1995 at 11‑00 hours while he was present in Government Primary School, Kuladhand Bala (being posted as teacher) alongwith other staff members, the accused‑respondents entered the school and started firing at him, as a result he got hit on his arm and leg. Motive advanced was dispute over land.

3. At the trial the prosecution's star witness namely Nazar Muhammad, the complainant‑appellant appeared as P. W.1 reiterating the story of F. I. R. but deviated in giving fatal role to respondent Misal Khan. He also set up a different story by introducing the firing being made at him in two separate volleys, the first while in veranda of the school and the second in the courtyard.

4. To support the story of the complainant, Talibul Islam, his real brother appeared as P.W.2 and gave totally different version in respect of material facts i.e., he categorically stated that in the first volley of shots his brother, the complainant, was not hit and in fact he was hit after the complainant called the accused‑respondents not to fire and that he be allowed to come out of the veranda.

5. The ocular evidence no doubt is furnished by the complainant who himself is injured but in support thereof the prosecution relied on the statement of a real brother omitting to produce any member of the teaching staff though they were examined during the investigation and there was a reference made about their presence in the F.I.R.

6. The Investigating Officer has stated in his statement before the Court that the accused‑respondents, the appellant and the teaching staff of the school are resident of the same village. He further stated that the teachers have deposed that some people who could not be identified had entered the school and attempted at the life of the complainant.

7. We heard the learned counsel for the appellant at sufficient length by going through the judgment impugned and the evidence of the eye‑witnesses. Conscious of the fact that it is an appeal against acquittal where the accused respondents are now equipped with double presumption of innocence as held by the august Supreme Court of Pakistan and this Court in various reported judgments.

8. From the spot the Investigating Officer has recovered four empties of 7.62 bore (klashnikov) and the prosecution has failed to send the empties to the fire‑arm expert to find out if they were fired from the weapon or more, particularly when the number of accused charged are four and that they are related inter se. There is another aspect of the case that according to the medico legal report the injured complainant has sustained three fire‑arm entry wounds for which four persons are charged. We are of the view that not only the prosecution evidence is discrepant and is contradictory but also there is element of exaggeration even if the ocular evidence was convincing.

9. In view of the facts narrated above and keeping in view the law as laid down while appraising evidenced in appeal against acquittal we decline to interfere with the judgment of the learned trial Court as no legal infirmity, perversity or unreasonableness was pointed out. Consequently this appeal is dismissed in limine. N.H.Q./2097/P Appeal dismissed.