' Through this Criminal Appeal No,556 of 2004 appellant Imtiaz Asad, has called in question the judgment dated 5-6-2004 delivered by learned Sessions Judge, Karak whereby respondent Zain- ul-Abidin, charged under section 302/34, P.P.C. For committing Qatl-i-Amd of his co-villager Naseer Muhammad by firing sharing common intention with co-accused Saif-ur-Rehman alias Gojar, was extended benefit of doubt and acquitted of the charge.
2. The prosecution story in brief is that on the day of occurrence i,e, 14-7-2003 at 0600 hours Naseer Muhammad deceased, brother of complainant Imtiaz Asad was on the way to Adda Surdog in his Tractor No,5161/KS. The complainant and P.W. Masood-ur-Rehman were following him on a motorcycle. When they reached the spot i,e, road leading to village Surdog, respondent Zain-ul- Abidin present in front of his shop, fired at Naseer Muhammad with which he was hit and got injured. After covering some distance, co-accused Saif-ur-Rehman alias Gojar also fired at Naseer Muhammad, which resulted in the death of the deceased there and then. After accomplishing the mission, both the accused managed to run away from the spot. The motive leading to the incident was stated to be a dispute over use of thoroughfare. Complainant and Masood-ur-Rehman were shown to have witnessed the occurrence.
3. P.W. Mir Ajab, A.S.-I. Police Station Latambar (P.W.14) on receipt of information regarding the occurrence, immediately rushed to the spot and on reaching there, recorded report (Exh.P.A./1) of the complainant and despatched the same to the police station where it was incorporated into F.I.R. (Exh.P.A.) by P.W. Amir Sultan A.S.-I. The witness in hand prepared injury sheet and inquest report of the deceased and send the dead body for post-mortem examination. He also prepared site plan Exh.P.B. At the pointation of complainant, took into possession tractor having bullet marks, motorcycle, some blood-stained earth from the place of deceased, three empties of 7.62 bore from the place of Saifur-Rehman co-accused, a spent bullet and a piece of bullet from point "D", arrested the accused/respondent on the same day and handed over the remaining investigation to Asal Khan I.H.C. P.W. Saeed Khan, S.H.O. On 30-8-2003 submitted complete challan against accused-respondent in Court.
4. At trial, the prosecution in order to prove its case against the accused-respondent produced 14 witnesses in all. P.Ws. Mir Ajab A.S.-I. And Asal Khan I.H.C. Investigated the case. Dr. Muhammad Yaqoob (P.W.11), Medical Officer, Rural Health Centre, Latambar subjected the dead body of the deceased to post-mortem examination and Imtiaz Asad complainant furnished eye-witness account of the incident. The post-mortem examination of the deceased conducted on 14-7-2003 at 8-30 a.m. Revealed the following:--
(1) Fire-arm entry wound 1/4" x 1/4" on right lateral chest in interior axillary line at a level of 8th rib.
(2) Fire-arm exit wound on Xiphisternum 1-1/2" x 1-1/2" with oementum coming out.
(3) Fire-arm entry wound measuring 1/4 x 1/4" on occipit.
(4) Fire-arm on exit wound four region distorting nose, mouth in face.
(5) Fire-arm grazing wound on right side of the chest at clavicular region.
' On internal examination, scalp, skull and vertebrae, membrane of cranium and spinal cord, walls ribs and cartrilages, pleaurae, right lung and blood vessles of thorax walls, peritoneum, mouth pharynx, diaphragm and stomach of abdomen were found injured.
' Probable time between injury and death was 10-20 minutes while between death and post- mortem was 2-3 hours.
5. After the prosecution evidence, statement of the accused was recorded under section 342, Cr.P.C. Wherein he denied all the incriminating circumstances and professed innocence. He neither appeared as his own witness on oath as required under section 340(2), Cr.P.C. Nor produced any evidence in defence.
6. Mr. Muhammad Amin Khattak, Advocate, learned counsel for the appellant contended that the judgment passed by the trial Court is perverse and the reasonings of the trial Court are artificial and not in conformity with the evidence on record. The grounds on which the trial Court proceeded to acquit the accused-respondent are not supportable from the evidence on record and the acquittal of the accused-respondent is not sustainable in law. The learned counsel reiterated that medical evidence fully supported the charge and trial Judge had no justifiable reason to take a contrary view and hold that the ocular testimony of the complainant runs counter to the medical evidence, in view of the dimension and locale of injuries found on the person of the deceased. To augment the contentions he placed reliance on Iftikhar Hussain and others v. The State 2004 SCM R 1185, Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Khalid Javed and another v. The State 2003 SCMR 1119.
7. The prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction. Needless to emphasise that to convict a person on a capital charge, evidence should be of high quality and good standard which is not available in this case. In the instant case, the judgment returned by the trial Court is by no means a fair judgment based on proper, just and legal appreciation of the evidence on record. Appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. It has not been demonstrated that some material evidence was not taken into consideration by the trial Court which, in fact, had caused gross miscarriage of justice. Even otherwise, when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which this Court and the apex Court normally does not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record which is not present in the case. 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 is considerably narrow and limited as held in Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v. Muhammad Sharif and others 1995 SCM R 635. The acquittal of respondent 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 involvement of respondent in the commission of crime. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favor of the respondent and we see no legal justification to disturb the same. Resultantly, the appeal fails which is hereby dismissed in limine and the impugned judgment of acquittal is maintained.