' IJAZ-UL-HASSAN KHAN, J.---Through instant judgment we will decide Criminal Appeal No.15 of 1993 filed by the State under section 417, Cr.P.C. Against the judgment dated 31-8-1992 delivered by learned Additional District and Sessions Judge, Swabi, whereby accused- respondents Salamat Khan and his uncle Liaqat Ali, both residents of village Yaqoobi, District Swabi, charged under section 302/34, P.P.C. For the murder of their co-villager, Umar Sher, a young man of 23 years of age, were acquitted on extending the benefit of doubt.
2. Complainant Awal Sher P.W. Brought the dead body of his brother Umar Sher on 11-12-1989, to Police Station Yar Hussain and made a report to the effect that on the previous night after having evening meals, the complainant and his brother Murad Ali P.W. And Umar Sher deceased were present in the 'Baithak' of their house when Salamat Khan and Liaqat Ali, duly armed came to the 'Baithak' and asked the deceased Umar Sher to go alongwitlx, them to village 'Neknam'. The deceased left the house in the presence of complainant and Murad Ali P.Ws. And accompanied the above named accused-respondents. The deceased did not return. The complainant and Murad Ali became apprehensive and they set out in search of Umar Sher. On the following morning, they found the dead body of the deceased on the bank of 'Khwar Balar' in,,the fields of Fida Muhammad.
Explaining the motive it was stated that deceased had friendly relations with Salamat accused and had given him some money as loan and had been asking for, return of loan, of and on.
3. S.-I. Amanat 'Khan (P.W.11) Police Station Yar Hussain on 11-12-1989 at 1245 hours recorded the report (Exh.P.A.) at the instance of. Complainant. He prepared injury sheet (Exh.P.C./2) and inquest report (Exh.P.C./3) of the deceased and dispatched the dead body to Rural Health Centre Yar Hussain for post-mortem examination. He proceeded to the spot, and on reaching there took into possession blood-stained earth and grass and sealed the same into parcel in the presence of marginal witnesses. He also recovered two empties of .12 bore (P.1) and one photograph of accused Salamat Khan (P.2) and sealed the same into two different parcels vide recovery memo.
(Exh.P.C.). He also prepared site-plan (Exh.P.B.) at the pointation of complainant. In the meanwhile, the last worn-clothes of the deceased i.e. One shirt (P.3), one Shalwar (P.4) and one Banyan (P.5) were brought by Constable 'Faqir Muhammad P.W. The garMents were taken into possession and sealed into a parcel in the presence of marginal witnesses. The blood-stained earth and grass and blood-stained garments of deceased were sent to Forensic Science Laboratory, Peshawar for analysis. Two empties recovered from the spot were also sent to Firearm Expert for opinion. As the accused were not available, he obtained warrants of arrest and proclamations against them. He handed over the remaining investigation to S.H.O. Syed Reliman Shah (P.W.12), whci formally arrested the accused on 18-1-1990 when their anticipatory bail was not confirmed. After completion of the investigation in the mannerdescribed above, complete challan was submitted against the accused in Court.
4. The prosecution in order to prove its case produced 12 witnesses including complainant Awal Sher (P.W.9) and Murad Ali (P.W.10). The accused-respondents in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been charged and involved in the case on mere suspicion. They also denied absconcion and stated that they were out of the village before the occurrence and that when they learnt about the incident and their involvement in the case, they surrendered before the police. They led no evidence in defence.
5. Dr. Murad Ali (P.W.3) Medical Officer Rural Health Centre, Yar Hussain on 11-12-1989 at 2-00 p.m.
Conducted the post-mortem examination of Umar Sher, identified by Fida Muhammad and Inayat Khan and noted the following:-- ' External Examination: 1.Fire-arm entrance wound 4" x 3" on the left side of the face below the left eye and below in front of the left ear shattering the skin/muscle and bones with charring.
2. Fire-arms exit wound of No.1, 1/4" x 1/4" in diameter just below the left angle of the lower jaw.
3. 2nd exit wound of the fire-arm injury No.1, is 1./2" x 1/2" in front of the exist wound No.l.
4. Fire-arm entry wound 1/4" x 1/4" in diameter below and in front of the midline of left clavical, damaging the lung -ordinarily. Heart and big vessels while going deep. Pellets engaged the lower lobe of the left lung and recovered.
' Internal Examination.
' Plurae thorax left lung pericardium and heart blood vessles are injured.
' Opinion.
' In the opinion I the Medical Officer time between injury anddeath was within two hours whereas time between death the post-mortem examination was found within 24 hours.
6. The learned trial Judge after hearing arguments of learned counsel for the parties and analyzing the material on record disbelieved the prosecution evidence and proceeded to hold that prosecution has not been able to establish its case against accused-respondents. Resultantly, he recorded a finding of acquittal in favour of accused-respondents, as noted above.
7. Mr. Akhtar Naveed, learned Deputy Advocate-General appearing on behalf of the State bitterly criticized the impugned judgment and contended with vehemence that sufficient material was available on the file to connect the accused-respondents with the murder of Umar Sher deceased and there was no reason for the learned trial Judge to doubt the ocular testimony of complainant and his brother Murad Ali P.Ws. Which was supported by the doctor and recoveries from the spot. It was further submitted that complainant and his brother have given a straightforward and truthful account of the incident and they have emerged unscathed from the lengthy cross-examination and nothing could be extracted from them to favour the accused-respondents and that the reasons advanced by the learned trial Judge for doubting their ocular testimony does not appeal to judicial conscience. Concluding the arguments, it was asserted that having regard to the facts and circumstances of the case including the medical evidence, recoveries from the spot, motive and absconsion of the accused respondents the impugned judgment is not sustainable and warrants interference of this Court. To substantiate the contentions, reliance was placed on Elahi Bakhsh v. Rab Nawaz and another (2002 SCM R 1842) and Muhammad Yunas and another v. The State and others (1990 SCM R 1272).
8. Conversely Mr. Muhammad Ajmal Khan Advocate for accused-respondents, supported the impugned judgment and reiterated that prosecution was in possession of no incriminating material to connect, accused-respondents with the murder of Umar Sher deceased and trial Judge has given valid reasons for disbelieving the prosecution version and doubting recoveries from the spot which are unexceptional and hardly calls for interference. He relied on Mst. Roheeda appellant v. Khan Bahadur and another respondents (1992 SCM R 1036) and the State appellant v.
Muhammad Sharif and 3 others respondents (1995 SCM R 635).
9. We have heard at length the arguments of learned counsel for the parties in the light of the material on record and the rulings quoted by the learned counsel for the parties in support of their respective contentions.
10. It needs no reiteration that the finding of acquittal is not sacrosanct, if the reasons given by the trial Court are speculative or of artificial nature or the findings are based on no evidence or is the result of misreading or misinterpretation of evidence or the conclusion drawn as to the guilt or innocence of the accused, are perverse, resulting into miscarriage of justice, same can be interfered with in appropriate cases in the light of the principles laid down by the apex Court, regarding appreciation of evidence.
11. Admittedly, it is a case of no eye-witness. The prosecution case essentially rests on circumstantial evidence furnished by complainant and his brother Murad Ali P.Ws. Both of them have stated that on the night of occurrence they were present in the house alongwith the deceased when accused-respondents came over to their house and asked the deceased to accompany them to village 'Neknam'. When the deceased did not return they set out to search him and found his dead body on the following morning, on the bank of a 'Khwar' namely Balar in the fields of their relative Fida Muhammad. A perusal of the statements of these witnesses would reveal that they have improved their version at the trial in order to bring it in line with the medical evidence and recovery of crime empties from the spot. We find ourselves in agreement with learned counsel for accused-respondents that evidence in this case is not sufficient at all to base conviction of accused-respondents and they have been rightly extended benefit of doubt and acquitted of the charge of murder of Umar Sher deceased. Considering the evidence on record in its totality, we are satisfied that the conclusions recorded by learned trial Judge were drawn properly and recoveries were excluded out of consideration for valid reasons detailed in paras 13 to 18 of the impugned judgment. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction appraisal of evidence is done strictly and in the appeal against acquittal the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence. It is not denied that in the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice.
12. As far as the medical evidencels concerned, suffice it to say that the medical evidence itself without further corroboration cannot connect an accused person with the crime.
13. ##TS#E It only establishes death and does not indicate at all as to who had a hand in the commission of offence. Reference may be made to the cases of Saifullah and 5 others v. The State (1986 PCr.LJ 2794) and Masood Ahmad and 3 others v. The State (1995 SCM R 127).
13. Existence of motive, recovery of two empties of .12 bore and a photograph of Salamat Khan accused-respondent from the spot and abscondence of accused-respondents are also stated to have lent corroboration to the prosecution version rendered by complainant and his brother Murad Ali P.Ws. These pieces of circumstantial evidence have been ignored by learned trial Judge for cogent reasons which hardly call for interference of this Court.
14. In view of the above discussion, we find that the grounds given by learned trial Judge for holding that testimony of complainant Awal Sher and his brother Murad Ali P.Ws., could not be accepted, do not appear to be perverse or erroneous which do not appeal to judicial conscience. We are not inclined to interfere in this case. The appeal fails which is hereby dismissed and the impugned judgment of acquittal is maintained.