2014 PLP 746 (YLR)

SYED AFSAR SHAH, J.

This criminal appeal is directed against the judgment dated 24-2-2012, passed by learned Additional Sessions Judge-III, Bannu, whereby the respondents Syed Daraz Shah and Farooq Shah, who were accused in case F.I.R . No. 387, dated 13-10-2010,under sections 324/34 P.P.C., of Police Station Saddar, Bannu, were acquitted.

2. The story of prosecution, as disclosed in the F.I.R Exh.P.W. 1/1, may briefly be narrated as follows:-- On 13-10-2010 at about 1130 hours, Amjad Ali Shah, the complainant (P.W.5) having a stamp of injury on his person, made a report to Gul Hameed Khan, S.I. (P.W.1) in the Police Station Saddar, Bannu, to the effect that on the day of occurrence he along with his uncle Pir Wali Shah and cousin Zuhran Ali Shah were irrigating their fields, situated in village Shaikhani, when in the meanwhile, respondents/ accused Syed Daraz Shah and Farooq Shah, duly armed with rifles of 7.62 bore, came there and asked them not to irrigate the fields; that on their refusal, the respondents/accused started firing at them, resultantly, he was hit on his right hand, whereas his uncle and cousin escaped unhurt. The accused after commission of the offence fled away from the place of wardaat. Motive behind the offence, as stated by the complainant, is a dispute over the landed property. The complainant has charged the accused/respondents for commission of the offence.

3. Investigation was started in the case and on its conclusion complete challan was submitted against the respondents/ accused to the court of learned Additional Sessions Judge-III, Bannu, who on conclusion of the trial acquitted them, vide judgment herein impugned.

4. We have heard arguments of learned counsel for the parties and gone through the record available on file.

5. It appears from the F.I.R Exh.P.W.1/1 that in this case the occurrence took place on 12-10-2010 at about 1700 hours, whereas the report has been lodged on 13-10-2010 at about 1130 hours and thus on the face of it there is a considerable delay in lodging the first information report by the complainant Amjad Ali Shah. No doubt, for the delay the complainant has given explanation of fear from the respondents/accused, but in the attending circumstances of the case, it is repellent to the common sense, for the reason that, the Investigating Officer in his cross-examination has admitted that there are so many roads, having different directions, leading to the Police Station concerned and even to the hospital. Needless to say that in this advance age/era one could inform the police even on telephone and if the landline facility was not available, now-a-days, the availability of mobile phone is but a requirement. Again for the sake of arguments, even if, the above facilities were not available and the complainant party was not in position to go to the Police Station or for that matter to the hospital, due to fear of the respondents/ accused, their relatives could inform the Police Station concerned about the occurrence. There is an abnormal delay in lodging the first information report by the complainant, the explanation furnished in this regard stands no sound reasons and hence, has made the prosecution version doubtful. Reliance is placed on case-law "Muhammad Asif v. The State" (2008 SCMR 1001), "Islam Badshah and others v. The State" PLD 1993 Pesh. 7 and "Hanifullah alias Hanif v. The State and another" (2009 PCr.LJ 1414).

6. It is in the evidence of the complainant and P.W. Zuhran Ali Shah that on the day of occurrence they were busy in irrigating their landed property, when fired at by the respondents/accused, who at that time were armed with riffles of 7.62 bore. They have further stated that due to the firing of the respondents/accused the complainant was hit on his right arm. Medico-legal Report in respect of the injury of the complainant, as Exh.PW2/1 available on file and perusal of the same would show that as per opinion of the Medical Officer, the kind of weapon used in the commission of offence was blunt, whereas the nature of injury was simple. The Medical Officer has further opined about the nature of injury, which were small abrasions on the right arm of the complainant. In view of the above one could easily say that, in the present case, the ocular account is belied by the medical evidence and which fact casts a serious doubt on the account furnished by the complainant and eye-witnesses. Wisdom is derived from the case-law "Faryad Ali v. The State" (2008 SCMR 1086), "Muhammad Aslam v. Sabir Hussain and others" (2009 SCMR 985) and "Islam Badshah and 2 others v. The State" (PLD 1993 Peshawar 7).

7. Above all, while going through record and statements of the Investigating Officer one could reach to an irresistible conclusion that during the spot inspection, he has neither recovered any crime empty nor blood from the spot, which makes the case of prosecution doubtful. If any authority needed, reference could be made to the case-law, "Raheem Khan v. The State" (2012 MLD 309 Peshawar).

8. Again, as held by the apex Court in a case of "Mst. Jallan v. Muhammad Riaz and others (PLD 2003 SC 644) that:-- Once an accused had earned acquittal in his favour, he enjoyed double presumption of innocence and the Court while examining the case of such accused must be very careful and cautious in interfering with the acquittal order and normally should not set aside the same merely for the reason that some other view was also possible interference, however, could be made in exercise of powers conferred upon the Court under S.417, Cr.P.C., if it was proved that the Court whose judgment was under scrutiny had misread such evidence. In the present case, after having gone through the judgment herein impugned, we do not propose to draw a conclusion different from what the learned trial Court has drawn and hence, we do not feel hesitant to uphold the acquittal of accused/respondents, resultantly, the same is maintained and accordingly dismiss the appeal. HBT/610/P Appeal dismissed.