SANAM ZEB and another vs SHAH NAWAZ and 2 others

ORDER

' MALIK MANZOOR HUSSAIN, J.---Through the instant Appeal, the appellants have challenged the judgment and order dated 20-12-2012 passed by the learned Additional Sessions Judge-II, Peshawar whereby the accused-respondents Nos. 1 and 2 charged in case F.I.R. No.401 dated 16-6- 2010 under sections 324/148/149, P.P.C. Registered at Police Station Pishtakhara, Peshawar were acquitted of the charges levelled against them.

2. The brief and essential facts, which had led to the present appeal are that on 16-6-2010 at 7-40 p.m., appellant/complainant Sanam Zaib, while in injured condition, in the Casualty Ward of Hayatabad Medical Complex reported to the Police that at 6-30 p.m., he along with his family members was present at home when his nephew, Hassan Zaib, informed them that acquitted accused-respondents Shah Nawaz, Sher Zaman along with other persons were ploughing their field through tractor. The appellant along with his brother P.W.5 Jehanzaib immediately rushed to their fields and on seeing them, the acquitted accused-respondents opened fire at them, as a result of which, the former was hit at his right buttock while the latter sustained injury on his chest.

Motive as mentioned is the previous enmity between parties over landed property.

3. After completion of investigation, challan was submitted in the Court for trial. The learned trial Court, after conclusion of trial, acquitted the accused-respondents, as stated above, hence the instant Appeal.

4. Learned counsel for the appellants vociferously argued that it was a broad-daylight occurrence, the report was lodged with all reasonable promptitude. He maintained that there was substantial evidence on the record both oral as well as medical, which cannot be brushed aside in a flimsy manner. He further argued that the impugned judgment is the result of misreading and non- reading of evidence available on record, hence, liable to be set aside.

5. Arguments heard and record perused.

6. From the available record, it is an established fact that in F.I.R. ' only the appellants were mentioned as present at the place of occurrence, while in the evidence one Alamzeb was introduced as accompanying with the complainant to the spot and as eye-witness of the occurrence, he was examined as P.W.6. Statement of P.W.6 and that of complainant P.W.4 Sanam Zaib are totally contradictory to each other. As per court statement of P.W.4, he along with other injured P.W.5 Jehanzeb were taken to Hospital by the co-villagers while P.W.6 Alamzeb stressed that he was the person, who brought the injured to casualty through Suzuki.

7. It has also been noticed that injuries sustained by both the appellants were single one, which were declared simple and that too on non-vital part of the body. Record further suggests that beside availability of vehicle, the F.I.R. Was lodged with a considerable delay. A counter report in the shape of daily diary No. 11 of the same date was lodged at 1900 hours while in the case of appellants, report was lodged at 1940 hours. There were material dishonest improvement made in the statements of appellants. In the site plan, presence of acquitted accused-respondent Shah Nawaz missing while another person Sheeraz is shown present. Though in the F.I.R. Indiscriminate firing was mentioned, but no crime empty was found from the spot. Similarly, no blood was found from point No.1 where presence of injured Sanam Zaib was shown. Appellant Sanam Zaib (P.W.4) admitted in his court statement that they had been charged for firing in case F.I.R. No.403 dated 1- 7-2007 and case F.I.R. No. 252 dated 28-4-2007. Further admitted that two days prior to occurrence, the acquitted accused-respondent Shah Nawaz had made an application under section 145, Cr.P.C. For attachment of property and taking bond under section 107, Cr.P.C. The prosecution case is full of doubts and being not confidence-inspiring, evidence produced is not sufficient for conviction.

8. In an appeal against acquittal, the standards for assessing evidence are quite different from those laid down for appeal against conviction. In appeal against acquittal, rigid method of appraisement is not to be applied. Wisdom behind this principle is that when an accused is acquitted from the charge, then double presumption of innocence is B acquired by him and the appellate Court would not interfere unless the acquittal judgment is arbitrary, capricious, fanciful and against record. Reliance is placed on "Muhammad Zahir v. The State" (2013 YLR 1483), "The State v. Faqir Muhammad Khan" (2005 PCr.LJ 536) and "Muhammad Aslam v. Sabir Hussain" (2009 SCM R 985).

9. For the foregoing reasons, this Court came to the conclusion that the prosecution has failed to prove the charges against acquitted accused-respondents beyond reasonable shadow of doubt.

The impugned judgment does not require any interference. Consequently, the instant Appeal being devoid of merits is dismissed in limine.