2011 P Cr. L J 67
[Quetta]
Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J
NOORULLAH KHAN ---Appellant
Versus
SHER MUHAMMAD and 5 others -Respondents
Criminal Acquittal Appeal No. 310 of 2009, decided on 24th May, 2010.
Penal Code (XLV of 1 8 6 0 ) ---
----Ss. 392, 128 & 148 ---Criminal Procedure Code (V of 1898), S.417 ---Robbery, Public
Servant voluntarily allowing prisoner of State or war to escape, rioting armed with deadly
weapon ---Appeal against acquittal ---Appreciation of evidence ---Principles ---F.I.R. was lodged
after inordinate delay and deliberations ---Inordinate and unexplained delay in lodging the F.I.R.
cast a cloud of doubt on prosecution case ---No recovery was effected ---Principles of appreciation
of evidence in appeal against acquittal were different from those in appeal against conviction ---
In appeal against acquittal, appellant was bound to prove either violation of established
principles of law, flawed reasoning or partisanship in the findings of acquittal ---Findings of
acquittal could not be set aside merely on the ground that a different conclusion was possible
upon reappraisal of evidence ---Double presumption of innocence was attached to the fi ndings of
acquittal ---Trial Court had correctly appreciated the evidence --No interference was warranted ---
Appeal against acquitted was dismissed in circumstances.
Ayub Masih v. The State PLO 2002 SC 1048 and Haji Amanullah v. Munir Ahmed 2010 SCMR
222 f ol.
Appellant in person.
Respondents in person.
Date of hearing: 10th May, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Through this Criminal Acquittal Appeal, appellant
has called in question the legality of the judgment dated 22nd August, 2009 passed by Judicial
Magistrate, Pishin in offence under sections 392, 128 and 149, P.P.C., whereby the private
respondents Nos. l t o 5 were acquitted of the charge.
2. Facts succinctly stated are that F.I.R. No.214 of 2008 was lodged by appellant/complainant
with S.H.O. Police Station, Pishin on 24th December, 2008 at 9 -00 a.m. It was alleged in the
F.I.R. that complainant is perman ent resident of Killi Haji Abdullah, has got his zamindari near
Killi Zarif Abad and also runs business at Karachi. On 23rd December, 2008 at 7 -00 p.m. while
complainant was coming back to his house, Haji Zarif Khan along with his sons equipped with
Kalash nikovs and pistols, forcibly stopped his vehicle, took away Rs.65,000 from his pocket and
extended threats of dire consequence, if he would lodge F.I.R. against them.
3. The F.I.R. was lodged on a written complaint; as such investigation was carried out. The
Investigating Officer visited the site, prepared the sketch, arrested the respondents and finally
'submitted challan No. 5 -A/9 before the trial Court, charge was framed and read over to
respondents, to which they pleaded not guilty. Whereafter prosecu tion in order to substantiate the
accusation produced two P.Ws. i.e. P.W. Complainant and P.W.2 the Investigating Officer.
Complainant reiterated the contents of F.I.R., whereas the I.O. produced F.I.R. as Exh.P/2 -A, site
sketch Exh.P/2 -B, incomplete chall an Exh.P/2 -C and complete challan as Exh.P/2 -D. P.W.2
claimed to have recorded statements of two P.Ws. during the course of investigation, but the said
witnesses were neither produced before the trial Court nor for that matter their names find
mention in t he calendar of witnesses.
4. At the end of prosecution evidence, the respondents were examined under section 342,
Cr.P.C., wherein, they denied all the allegations levelled against them by prosecution, however;
the respondents neither opted to record the ir statements on oath as envisaged under section
340(2), Cr.P.C. nor produced any defence witness.
5. On conclusion of trial, the learned trial Court acquitted the private respondents Nos.1 to 5 vide
impugned judgment.
5-A. Learned counsel for appellan t contended that the trial Court committed material irregularity
by discarding the statement of complainant, who is man of high repute and status. It was
secondly contended that the delay in lodging of F.I.R. was satisfactorily explained and there was
sufficient material available on record to connect the private respondents with commission of the
crime.
6. We have heard learned counsel for the appellant and perused the record annexed with the
appeal. A meaningful glance of record reflects that the trial Court, after proper appraisal of
material available on record, has acquitted the private respondents of the charge. Undisputedly
F.I.R. has been lodged with inordinate delay of 14 hours, admittedly police station is situated at a
distance of three kilomete rs from the alleged venue. It is further important to note that appellant
has admitted in his statement in reply to question No.14 (It is right that after the incidence I was
passed through the police station). So while passing by the police station after the alleged
commission of offence, it seems irrational not to lodge F.I.R. Secondly in F.I.R., it is clearly
stated that F.I.R. has been lodged after consultations and deliberations with relatives. There is no
cavil with the legal proposition that F.I.R. l odged with inordinate and unexplained delay, after
deliberations and consultations, casts a cloud of doubt on prosecution case. Reliance in this
regard is placed on the judgment of the Apex Court reported in PLD 2002 S.C. page 1048
(relevant at page 1057 t itled Ayub Masih v. The State), wherein; it was held as under: --
"Keeping in view the facility of transport and the distance between the spot of occurrence
and the place where the F.I.R. was recorded there was delay of at least 6 hours in lodging
the F.I .R. which ought to have been explained being inordinate but surprisingly no
explanation was furnished at all. The unexplained delay in lodging the F.I.R. coupled
with the presence of the elders of the area at the time of recording of F.I.R. leads to the
inescapable conclusion that the F.I.R. was recorded after consultation and deliberation.
The possibility of fabrication of a story and the false implication thus cannot be excluded
altogether. Unexplained inordinate delay in lodging the F.I.R. is an intrigui ng
circumstance which tarnishes the authenticity of the F.I.R., casts a cloud of doubt on the
entire prosecution case and is to be taken into consideration while evaluating the
prosecution evidence. It is true that unexplained delay in lodging the F.I.R. i s not fatal by
itself and is immaterial when the prosecution evidence is strong enough to sustain
conviction but it becomes significant where the prosecution evidence and other
circumstances of the case tend to tilt the balance in favour of the accused. In the present
case the delay in lodging the F.I.R. has assumed great significance inasmuch as the
prosecution story is doubtful from outset and the prosecution evidence is remarkable in
weakness only."
Complainant has not offered any explanation whatsoeve r for lodging the F.I.R. with inordinate
delay of 14 hours. Secondly accused persons were arrested and kept for investigation in custody
of police for 14 days, but no recovery whatsoever in nature could be affected. Learned counsel
for appellant failed to point out any misreading or non -reading of evidence.
P.W. has introduced certain substantial improvements while recording his statement and the trial
Court has taken note thereof. In fact, the trial Court after proper appraisal of material available
on record by applying a judicious mind has passed the impugned order.
The law on the subject is settled that the principles for appreciation of evidence in an appeal
against acquittal and that a conviction are entirely different. While assailing an acquittal
judgment, appellant is bound to prove that, evidence on record has been read in utter violation of
established principles of law, the findings are spaculative, vague, sketchy and partisan and the
only concl usion, which would possibly be arrived at, is the guilt of accused or the reasoning are
artificial and shocking. The findings of acquittal cannot be upset simply because upon
reappraisal of evidence, a different conclusion is possible. After acquittal of t he charge, accused
enjoys a double presumption of innocence, which cannot be taken away on mere surmises and
conjectures, as held by the Hon'ble Supreme Court in the judgment reported in SCMR 2010 page
222 (titled Haji Amanullah v. Munir Ahmed relevant at page 228), wherein it was held as under: -
-
"We have carefully considered the contentions put forth by the parties learned counsel
and have also gone through the impugned judgment as well as evidence on record. At the
very outset, we may observe that orde r of acquittal is not liable to interference merely
because on reappraisal of evidence this Court may come to a different conclusion than
that of trial Court provided both conclusions are plausible in the particular facts and
circumstances of the case. In the instant case prosecution alleged that private respondents
along with absconding accused cut down fruit bearing trees of the appellant and in the
process they also caused damage to transformer by means of firing. Only independent
witnesses produced as S hah Muhammad who had not implicated the respondent in
commission of offence as according to him he could not identify the culprits except
Hazrat Jan as they had muffled their faces. In view of his categoric statement conviction
on the basis of sole testimo ny of P.W.4 Shah Sanam cannot be sustained as admittedly he
is grandson of appellant and interested witness due to civil dispute going on between the
parties. Similarly; report of P.W.5 in absence of seizure of damaged articles and alleged
cut down trees i s of no consequences."
We have gone through the record on the touchstone of the criteria is as mentioned hereinabove
and feel that there is neither a case of misreading of evidence nor non -reading of evidence, but
on the contrary the evidence has been ap preciated in its true perspective and in accordance with
the principles laid down by the superior Courts qua appreciation of evidence. No illegality or
infirmity could be pointed out warranting interference in the impugned judgment.
In the light of above discussion, appeal having no merit is dismissed in limine.
A.R.K./90/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.