IJAZ-UL-HASSAN KHAN, J.---This judgment will dispose of Criminal Appeal No,265/94 preferred under section 417, Cr.P.C. By the State at the instance of Advocate-General, N.-W.F.P., Peshawar, challenging the judgment and order dated 12-6-1994 recorded by learned Additional Sessions Judge, Peshawar whereby accused-respondents namely Saadat Khan (since dead), his brother Muhammad Raja and sons Sanaullah and Ihsanullah, all residents of village 'Kala Killi', Peshawar, charged for offences under sections 302/307/34, P.P.C. For the commission of the murder of Tariq Jamil (20/22) and attempted murders of Mst. Parveen (40/41) and Muhammad Akbar complainant, were acquitted on account of extension of benefit of doubt.
2. S.-I. Sareer lqbal (R.W.13) the then S.H.O., Police Station Chamkani was on routine `Gasht', on 12-8- 1988 when complainant Muhammad Akbar (P.W.9) met him at 10-30 a.m. Near G.T. Road and lodged a report to the effect that on that day, complainant was present in his house in `Kala Killi', Peshawar alongwith his sons Tariq Jamil (deceased), Faridullah, Ikramullah P.Ws. And other family members when at about 8-30 a.m. Accused Sanaullah, Ihsanullah, Saadat Khan and Muhammad Raja of his village duly armed, started firing at the complainant party from the roof of their house.
Tariq Jamil and Mst. Parveen ascended to the roof of the adjoining house of their cousin Nisar Khan son of Phool Badshah, in order to apprise them of the situation. The complainant went on to say that with the firing of the accused, Tariq Jamil and Mst. Parveen P.Ws. Were hit. Tariq Jamil succumbed to the injuries and died instantaneously. Mst. Parveen was removed to the hospital by inhabitants of the locality for treatment. Complainant and his sons Faridullah and Ikramullah witnessed the occurrence. The motive leading to the incident was stated to be election rivalry between the two families. The report was reduced into writing in the shape of 'Murasala' (Exh.PA/1) which was despatched to Police Station where it was incorporated in F.I.R. (Exh.PA) by I.H.C. Ejaz Haideri (P.W.6).
3. After recording the report S.-I. Sareer lqbal (P.W.13) proceeded to the spot and on reaching there prepared injury sheet (Exh.PN/2) and inquest report (Exh.PN/3) of the deceased and dispatched the dead body to the mortuary for post-mortem examination under the care of constable Muhammad Yousaf (P.W.3). He prepared site plan (Exh.PS) at the pointation of the complainant and other eye- witnesses. During spot inspection he took into possession blood-stained earth (Exh.P2) and a spent bullet (Exh.P.1) vide recovery memos. (Exh.PD/1 and Exh.PD respectively) witnessed by marginal witnesses. He also took into possession three empties of .12 bore (Exh.P.3), four empties of 7 m.m.
(Exh.P.4), three empties of .303 bore (Exh.P.5) and seven empties of Kalashnikov (Exh.P.6) vide recovery memo. (Exh.PD/2). He sealed the empties in a parcel. In the meanwhile constable Muhammad Yonsaf (P.W.2) returned from the hospital and handed over the last-worn clothes of the deceased consisting of a shirt (Exh.P.7) and Shalwar (Exh.P.8) to the Investigating Officer who took the same into possession-vide recovery memo. (Exh.PD/3). The witness in hand also took into possession a Suzuki bearing No,PRS-7399 and prepared memo. (Exh.PC) in this respect. He sent the blood-stained clothes of the deceased to the Chemical Examiner vide his application (Exh.PL/1) and received the report which is Exh.PL. He also obtained warrant of arrest against the accused vide application (Exh. PQ). Accused Muhammad Raja, Sanaullah and Sadat Khan were arrested by S.-I. Abdul Wajid (P.W.11) when their pre-arrest bail was not confirmed. Accused Ihsanullah was arrested on 30-9-1992. After completion of the investigation, challan was submitted against the accused in Court.
4. In order to prove its case and bring home guilt to the accused-respondents, prosecution produced 14 witnesses in all, including the Investigation Officer, Medical Officers and other witnesses who are of formal nature. The ocular account of the occurrence has been furnished by complainant Muhammad Akbar (P.W.9) and his daughter Mst. Parveen (P.W.10).
5. Dr. Syed Izharuddin (P.W.12) the then Medical Officer Police Hospital, Peshawar conducted post- mortem examination of the deceased on 12-8-1988 at 12-00 noon, identified by P.W. Liaqat Ali and Buner Khan and found the following on external examination:--
(1) Fire-arm entry wound size 1/2" x 1/2" site left temporal area the age of wound in continuation with the 2nd big wound 2-1/2" towards left side from mid body line 4-1/2" above the left eyebrow.
(2) Frie-arm exit wound extending from left temporal area covering perital and oxipital area on left side size 9" x 7". Brain matter coming out of the wound.
Internal Examination Scalp torn, skull fractured, brain injured, stomach healthy and empty only about 5 c.c. Fluid present. Time between injury and death instantaneous. Time between death and P.M. 1-1/2 to 6 hours.
6. Dr. Muhammad Irshad Khan (P.W.14) the then Medical Officer, Lady Reading Hospital, Peshawar on 12-8-1988 at 10-30 a.m. Examined Mst. Parveen (40/41) and found the following:-
(1) Three entrance wounds size 2 c.m. x 1 c.m. On the lateral aspect of right side of abdomen.,
(2) One exit wound size 2 c.m. x 1/2 c.m. On the lateral aspect of left side of the abdomen. Patient was conscious and she was admitted in the Surgical Ward.
7. The accused-respondents in their statement recorded under section 342, Cr.P.C., repudiated the prosecution allegations and professed innocence. They also denied abscondence, and claimed to have voluntarily surrendered before the police. The accused-respondents did not appear in their defence as contemplated by section 340(2), Cr.PN neither produced any evidence in defence.
8. Mr. Tariq Javed, learned Deputy Advocate-General, bitterly criticized the impugned judgment and contended with vehemence that the judgment passed by the trial Court is perverse and the reasonings of the trial Court are artificial, vis-a-vis the evidence on record. The grounds on which trial Court proceeded to acquit the respondents are not supportable from evidence on record. He maintained that it is a case of broad daylight occurrence in the heart of village `Kala', Peshawar in which the respondents-have been directly nominated in promptly recorded F.I.R. And a specific role of firing has been attributed to them which resulted in the murder of Tariq Jamil, a young boy of 20/21 years of age and injuries to Mst. Parveen P.W., elder sister of the deceased. He also submitted that both the eye-witnesses are minutely unanimous in their statements and despite a thorough and lengthy cross-examination their statements could not be shaken. Their statements are free from outside prompting. There was no previous serious enmity between the parties. No reason is forthcoming as to why the respondents should have been falsely and malaciously implicated by the complainant. Minor discrepancies in the statements of eye-witnesses shall not be material. Particularly so when such testimony is otherwise fully corroborated by independent witnesses as well as circumstantial evidence. The discrepancies pointed out and highlighted in the statement of two witnesses are of no importance and they do not go to the root of the case. Mst.
Parveen (P.W.10) received firearm injuries in the same incident which eloquently speaks regarding her presence on the spot. The learned counsel further submitted that accused-, respondents being residents of the same village, were previously known to the complainant party and as such the question of mistaken identity would not arise. Additionally he reiterated that medical evidence, recoveries, motive and noticeable abscondence of respondents fully support the charge and prove the case beyond pale of reasonable doubt. To substantiate the pleas, he placed reliance on Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036; Muhammad Din v. The State 1998 SCMR 1; Wahid v. The State PLD 2002 SC 62.
9. Mr. Nek Nawaz Khan Awan, Advocate for the respondents, while arguing the case at the very outset submitted that the respondents have attained double presumption of innocence, firstly, that every accused is presumed to be innocent unless proved guilty and secondly by an order of acquittal in his favour by the trial Court. It was argued that the judgment of acquittal ordinarily is never set aside or interfered with unless same is perverse or fallacious. The learned counsel added that statements of witnesses are full of contradiction and that the ocular account of their statements is negated by the report of doctor in the post-mortem report inasmuch as one injury was found on the person of the deceased, whereas all the four accused#espondents are charged for simultaneous firing with different weapons. 'Concluding the arguments he submitted that in the final analysis of evidence it would appear that in this case prosecution has failed to prove the case against respondents beyond doubt. Ocular evidence of two witnesses does not inspire confidence and it is doubtful whether they had seen the incident. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence and recoveries etc. But each piece of this evidence is defective and falling in intrinsic value hence not fit for reliance to corroborate ocular version which is defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence: Following citations were relied upon in support of the contentions raised on behalf of respondents. Haroon v.
The State and another 1995 SCMR 1627; Riaz Masih v. The State 1995 SCMR 1730; Muhammad Nawaz and others v. The State 1994 SCMR 1614; Hukam Din and 4 others v. The State 1994 SCMR 2134; Shahbaz Khan v. Lal Beg and others 1984 SCMR 42; Zaheer Din v. The State 1993 SCMR 1628; Muhammad Irshad and another v. The State 1999 SCMR 1030; Nawaz Ali and another v. The State 1981 SCMR 132; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Suhni v. Bahadri and 5 others PLD 1965 SC 111; Pasham Khan and 7 others v. The State PLD 1984 Pesh. 156; Ghulam Sikandar and another v. Hamraz Khan and others PLD 1985 SC 11; Ali Sher v. The State and 3 others PLD 1980 SC 317; Ghulam Habib v. The State PLD 1986 Pesh. 141; Nabi Bux and others v. The State 1990 PCr.LJ. 1018; Iqbal Shah v. The State 1998 PCr.LJ 1177; Muhammad Anwar v. The State 1997 PCr.LJ 2075 (Lah.).
10. We have examined the evidence with care with the assistance of the learned counsel for the parties in order to see whether appreciation of evidence by the trial Court suffers from any misreading or non-reading of any material evidence.
11. Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. 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 appriasement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis on record. 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. The ordinary scope of appeal against acquittal of accused-respondents is considerably narrow and limited, as held in Muhammad Usman and 2 others v. The State 1992 SCMR 498; The State v. Muhammad Sharif and others 1995 SCMR 635.
12. The crime in question is alleged to have taken place on the morning of 12-8-1988 at 8-30 a.m. In village Kala Peshawar. The matter was reported to the police by complainant Muhammad Akbar (P.W.9) same day at 10-30 a.m. The report was recorded by S.H.O. Sareer Iqbal (P.W.13) near G.T.
Road, Peshawar. The distance between the spot and the place of report is about one kilometre. It has been rightly observed by learned trial Judge that the lodging of the F.I.R. With inordinate delay, is a circumstance which should not exclude the possibility of false implication of culprits, in the F.I.R.
As a result of consultation or manipulation. It is not denied that undue, unreasonable and unexplained delay in lodging F.I.R. Leads to suspicion and reflects on the truth of the prosecution case and earlier information of crime is required to be supplied to police in order to avoid criticism of the report as being manipulated and result of deliberation and consultation. Delay of two hours in lodging the F.I.R. In the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly, preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate.
Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence. No doubt one of the eye-witnesses namely Mst. Parveen (P.W. I 0) sustained injuries on her person during the occurrence but this fact alone cannot be considered sufficient to hold that she has spoken the whole truth. In Said Ahmad v. Zumured Hussain 1981 SCMR 795 it was observed:-- "Fact of eye-witness being injured and injuries being not selfsuffered---not by itself indicative of witness having told truth---witness closely related to deceased while other persons mentioned in F.I.R. Not examined---Acquittal, was rightly not interfered with by the High Court." Similarly, in Ghulam Sarwar v. The State PLD 1993 Pesh. 152 it was held that witness bearing injuries on his person, by itself, does not indicate that he has stated truth. Having assessed the eye-witness account furnished by complainant Muhammad Akbar and Mst. Parveen P.Ws., we find that the claim of these witnesses having seen the occurrence, stands belied by host of circumstances and cannot be accepted in absence of corroborative evidence. It appears that the occurrence has not taken place in the manner as suggested by the prosecution and a wide net has been E thrown by the prosecution to implicate all the male members of the respondents' family.
13. Adverting to the question of identification, we find that accused-respondents are alleged to have resorted to indiscriminate firing from the roof of their house. A perusal of the site plan (Exh.PS) would reveal that there is a 'Parda wall' on the roof of the house of the accused-respondents having 5 feet 5 inches height. Number of holes are also shown in the 'Parda wall'. We find ourselves in agreement with learned trial Judge that the accused-respondents could have accomplished the mission by firing through the holes instead of exposing them to the complainant party. There was no occasion for accused-respondents to open attack from the open space, in order to make their identification possible.
14. So far as the medical evidence is concerned, only one entrance wound has been found on the person of Tariq Jamil deceased during postmortem examination whereas four persons have been charged for firing. This circumstance goes against the prosecution and creates doubt in one's mind regarding presence of the eye-witnesses at the spot at the time of occurrence.
15. The motive leading to the incident is stated to be election rivalry between the two groups. The motive has been denied by the accused-respondents in their statements recorded under section 342, Cr.P.C. Except the solitary statement of the complainant there is absolutely nothing on the file to prove that bad blood existed between the two families over elections which prompted the accused-respondents to commit the crime in question. Learned counsel for the State strenuously contended that this' atrocious crime was committed by the respondents out of an elaborate planning and for a definite motive. It cannot be designated as motiveless murder. Story narrated in complainant's statement is legitimate and he did not have the slightest reason to depose falsely against the respondents in order to wish them maximum harm. We are afraid, submission of the learned counsel carries no weight. The testimony of complainant and P.W.IF Mst. Parveen on this aspect of the matter, run contrary to each other. The motive has not been satisfactorily established.
16. The respondents are alleged to have disappeared from the village and gone into hiding in order to avoid arrest. The abscondence has been denied and it is claimed that respondents did not abscond and appeared' before the police of their own. It needs no reiteration that abscondence alone, cannot be a substitute for real evidence. In Farman All and others v.IG The State PLD 1980 SC 201 it was observed: "Abscondence by itself would be of no avail to prosecution in absence of any other evidence against absconding accused." It was also held in Muhammad v. Pesham Khan 1986 SCMR 823 that:-- "Mere abscondence of accused was not enough to sustain conviction of accused."
Since there is no credible evidence to support the prosecution case abscondence, itself, would not be sufficient to prove guilty mind of the accused. From the mere fact that a person is absent, it should not be readily assumed without due inquiry and notice that he is absconder. In the present case abscondence is meaningless. The same has not been proved satisfactorily and does not connect respondents with the commission of crime in any manner.
17. In view of what has gone above it follows that the acquittal of respondents does not suffer from any illegality so as to call for our interference with the impugned judgment. According to golden principle of benefit of doubt, one substantial doubt is enough to acquit the accused. The evidence in this case is highly discrepant and full of infirmities and as such has created a genuine doubt in our mind regarding the participation of respondents in the commission of crime. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favour of respondents and we see no legal justification to disturb the same. Resultantly, the appeal fails which is hereby dismissed and the impugned judgment of acquittal is maintained.
18. Saadat Khan, one of respondents expired during pendency of the appeal. The appeal to his extent stands abated. The respondents shall be relieved of the obligation of their bail bonds. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.