2007 P Cr (PLP)

IJAZ-UL-HASSAN KHAN, J.

Shakir Muhammad, respondent was tried by learned Additional Sessions Judge, Swabi, in case F.I.R. No.161 dated 21-3-2003, registered under sections 302/324/34, P.P.C. at Police Station Kalu Khan Swabi, at the instance of complainant Hukam Khan, father of Shah Nawaz deceased. At the conclusion of trial, respondent was extended benefit of doubt and acquitted of the charges, vide judgment, dated 17-5-2006.

2. Hukam Khan appellant, feeling aggrieved has filed instant appeal under section 417, Cr.P.C. questioning the impugned judgment of acquittal.

3. The case of the prosecution in brief is, that on the day of occurrence i.e. 21-2-2003, at 1045 hours, an altercation had taken place between Shakir Muhammad and his neighbour Shah Nawaz deceased. Complainant Hukam Khan and his sons left the village so that any untoward incident may not take place. However, when they were on the way back to the village, the respondent and his sons, duly armed with lethal weapons, on confrontation, started firing at the complainant party, as a result of which Shah Nawaz was hit and died at the spot. The complainant and his other sons escaped unhurt. After accomplishing the mission, the accused persons decamped from the spot. Rahim Khan and Sial Khan were stated to have witnessed the occurrence.

4. After completion of the investigation, challan was submitted in Court. A formal charge was framed against the accused-respondent, to which he did not plead guilty and claimed trial.

5. The prosecution in order to prove its case, examined 11 witnesses in all. After close of prosecution evidence statement of the accused-respondent was recorded under section 342, Cr.P.C. in which he denied the prosecution allegations and claimed to have been falsely charged. He produced no evidence in defence.

6. Learned counsel for the appellant mainly contended that the impugned judgment has been recorded in a mechanical manner without application of independent judicial mind and in total disregard of the evidence on record, which has resulted in manifest injustice. The learned counsel added that despite of the fact that the prosecution has fully established its case through independent witnesses and the place of occurrence and the medical evidence corroborate the story of prosecution, the trial Court has passed the impugned judgment, which needs interference by this Court. The matter was timely reported to the police and there is no delay and if there is any delay, that has been fully explained by the prosecution and the mere fact that four persons have been charged for a single injury, by itself, provides no ground for acquittal of an accused person and there is noticeable abscondence on the part of the respondent, which fully proves his participation in the crime.

7. A perusal of the impugned judgment would reveal that the ocular account furnished in this case has not been believed by the trial Court, the F.I.R. is found to have been recorded after inordinate delay as a result or consultation and deliberation and four persons i.e. accused-respondent and his sons have been charged for a single injury. Having considered the matter from all angles, we find ourselves in agreement with the learned trial Court that delay of two hours in making the report was not reasonable and the prosecution did not produce any evidence to explain the delay in lodging the report of occurrence. It is not denied that undue, unreasonable and unexplained delay in filing F.I.R. leads to suspicion and reflects on the truth of the prosecution case. Earlier information of crime is required to be supplied to the police in order to avoid criticism of the report as being manipulated and result of deliberation and consultation. No doubt, it is true that delay in lodging of F.I.R. is not always fatal 'to a case, but the prevalent circumstances are to be kept in mind and then its effect is to be assessed in the case. In the instant case, delay having not been explained by the prosecution, a reasonable inference would be that the respondent had no hand in the commission of crime and he was falsely implicated in the case.

8. The next piece of evidence is the medical evidence. Medical evidence by itself does not establish either the identity or the complicity of the accused in the crime. It is only when involvement of an accused in the crime is established through other evidence beyond reasonable doubt that further corroboration can be sought with the help of the medical evidence. The medical evidence can at best be used to support the ocular testimony or any other incriminatory evidence of the type and for no other purpose. The ocular testimony in this case having been found not confidence-inspiring or with intrinsic worth, the same therefore, could not be used to support the same.

9. Insofar as the abscondence of accused-respondent is concerned, it may be stated that mere absconsion is not conclusive proof of guilt of accused persons. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case.

10. It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.

11. This is a case wherein appeal has been filed against the acquittal order. It is well-settled that finding of trial Court cannot be disturbed interfered with unless the record shows that there is high degree of credibility in the evidence of prosecution witnesses. The order of acquittal creates double presumption of innocence in favour of accused. Muhammad Asghar v. State PLD 1994 SC 301 may be cited with advantage in this regard. The required degree of evidence to upset the double presumption of innocence in favour of accused is not available in the instant case. Keeping in view the principle laid clown by Honourable Supreme Court in Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 and Munawar Shah v. Liaqat Hussain 2002 SCMR 261, it is manifest that in the case in hand the finding of acquittal arrived at by the trial Court is not open to interference. In view of the aforesaid facts and reasons, I am of the considered view that the impugned judgment of the learned trial Court does not suffer from any error of law or jurisdiction. This criminal acquittal appeal, being without any substance, stands dismissed in limine. H.B.T./111/P Appeal dismissed.