P L D 2012 Peshawar 32 (PLP)

KHALID MEHMOOD KHAN, J.

The appellant has impugned the acquittal order/judgment of accused/respondents recorded by learned Additional Sessions Judge-I, D.I. Khan passed on 22-2-2006, in Sessions Case No.52 of 2005.

2. Brief facts of the instant criminal appeal, as narrated in the F.I.R. are that appellant/complainant reported to the local police that on 9-1-2002 he was busy in building wall of one Qasim when informed by Muhammad Ramzan that today at about Subh Rooti Vela Abdur Rahman, Fazal Rahman, Muhammad Ramzan and Majeed were cutting trees in their land; who were forbidden by Haq Nawaz brother of complainant from doing so, on which all the four accused duly armed with Kalashnikovs opened fires at him with intention of killing. As a result of which he was hit and died. The motive disclosed in the F.I.R. by the complainant is the dispute of stopping the accused by the deceased from cutting the trees which resulted into commission of offence. Hence F.I.R. No. 11 dated 19-1-2002 under section 302/34, P.P.C. registered at Police Station, Chaudhwan.

3. After completion of the investigation, complete challan was submitted against the accused before the trial Court. Accused were summoned. They appeared before the trial Court in custody. The learned trial Court after recording the prosecution evidence, statement of accused/respondents and hearing arguments of both sides, acquitted accused/respondents vide judgment / order dated 22-2-2006.

4. The complainant is aggrieved with the findings of the learned trial Court, therefore, has impugned the judgment/order of acquittal of the accused/respondents, and has filed the instant appeal.

5. Learned counsel of the appellant argued that the trial Court has not appreciated the evidence on record against the respondents/accused and has wrongly acquitted the respondents accused. He contended that accused/respondents have directly been charged in the promptly lodged F.I.R. and recovery has been effected from the spot. He submitted that the prosecution has proved its case beyond any shadow of doubt.

6. Learned counsel of respondents/accused vehemently defended the order/judgment of the learned trial Court by arguing that the complainant is not eye witness and the report lodged by him on the basis of hearsay. He contended that both the witnesses are not trustworthy because they have-denied close relationship though they were maternal cousin inter se. He urged that complainant. appeared in the trial Court as P.W.1 has categorically denied that he did not know the name of his maternal uncle but in the same breath he admitted that Habib Khan is the brother of his mother. P.W.2 Muhammad Ramzan who is only eye-witness of the occurrence had admitted that the name of his father is Habib Khan and had shown his ignorance that his father is brother of complainant's mother.

7. Perusal of record reveals that denial regarding nearest relationship with P.W.1 proved that both witnesses P.W.1 and P.W.2 are intentionally concealing the close relationship with each other to misguide the Court which is sufficient to prove them that they are not trustworthy. The relationship between P.W.1 and P.W.2 has also been clarified by PW-8 Sultan who has stated that P.W. Ramzan is the son of maternal uncle of complainant. P.W.1 has stated that all the accused were armed with Kalashnikovs. Whereas P.W.2 has stated that Fazal Rahman and Ramzan were armed with Kalashnikovs while Abdul Rahman was armed with .12 bore shotgun and Majid was armed with pistol. As per version of P.W.2 eye witness of the present occurrence who informed P.W.1/complainant has stated that the occurrence had taken place at 12 noon. Whereas P.W.1 complainant has stated that the occurrence had taken place at 11-00 hours as per information of P.W.2. As per postmortem report the occurrence had taken place probably at 6-00 a.m. whereas the report has been lodged at 1330 hours for concealing the exact time of occurrence an ambiguity term has been narrated as Rooti Vela only to overcome the objection regarding the delay of report which shows the mala fide on the part of prosecution. It also does not appeal to prudent mind that P.W.2 being real brother of deceased and eye witness did not lodge the report himself in the police station, rather complainant the maternal cousin of the P.W.2 was asked for lodging of the report which is illogical and against the human norms. The prosecution story is full of contradiction based on dishonest improvement, illogical. The occurrence has been proved unseen as P.W.1 and P.W.2 are untrustworthy and case has been cooked up after due consultation and deliberation.

8. Presumption of innocence is attached to every accused but after acquittal accused is clothed with double presumption of innocence.

9. Now coming to the principle laid down in connection with appeal against acquittal we may point out that the principles are different, from appeal against conviction. Different parameters are applied for interference in an appeal against the acquittal and appeal against the conviction. Presumption of innocence of the accused is double in case of acquittal. The appellate Court would not interfere unless conclusion reached by Courts below was not supported by evidence on record. Following principles on question of setting aside the acquittal by Supreme Court have been given as reported in 2009 SCMR 946. 'It is a settled law that before the order of acquittal is reversed, it must be shown that the judgment of the learned trial Court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal should not be reversed".

10. Keeping in view the above principle as well as facts on record no case is made out by the appellant for reversal of impugned acquittal.

11. We do not find any strong reason to reverse the judgment/order of the learned trial Court, acquitting the accused/respondents from the charge levelled against them. Therefore, the instant criminal appeal is dismissed. H.B.T./284/P Appeal dismissed.