' IJAZ-UL-HASSAN KHAN, J.--- Accused-respondents Shaukatullah and Ehsanullah, sons of Akhtar Zaman, residents of Qamri Khel, Kakki, District Bannu, were tried in case F.I.R. No,13, dated 3-2-2000, Police Station Kakki, by learned Additional Sessions Judge, Bannu, for offences under sections 302/324/34, P.P.C. At the conclusion of trial, vide judgment, dated 9-2-2002, accused-respondents were extended benefit of doubt and acquitted of the charge.
2. The State through Advocate-General, N.-W.F.P., Peshawar, has lodged Criminal Appeal No,35 of 2002, under section 417 of the Code of Criminal Procedure, 1898, to call in question the impugned judgment of acquittal.
3. The crime in question, resulting into the murder of Muhammad Arshad Khan, is alleged to have taken place on 3-2-2000 at 2-30 p.m., in the fields known as "Rasti Wala" in the limits of Khujari. The report (Exh.P.W.6/1) was lodged the same day at 3-00 p.m. By complainant Shah Nazar Khan (P.W.6), brother of the deceased at Police Station, Kakki, distant 2/3 kilometers from the place of offence and it was recorded by Muhammad Ghazi Khan (P.W.9), who was then S.H.O., Police Station Kakki.
4. Briefly, the allegations, as contained in the F.I.R. Are, that on the fateful day and time, complainant Shah Nazar Khan, along with his brothers Muhammad Arshad Khan (deceased) and Shah Tamas, had gone to their fields, where they noticed accused-respondents cutting clover crop in the fields of the complainant party. On inquiry by the deceased as to why they were cutting clover crop, accused-respondents started firing with Klashnikovs, as a result of which Muhammad Arshad Khan was hit and died at the spot. However, complainant and his brother escaped unhurt. After the occurrence, accused-respondents managed to run away from the spot. A dispute over joint property was stated to be the motive, leading to the turmoil.
5. After registration of case, S.H.O. Muhammad Ghazi Khan (P.W.9), prepared injury sheet Exh.P.M./1 and inquest report Exh.P.M.1/2 of the deceased and referred the dead body to the mortuary for post-mortem examination, under the control of F.C. Hamidullah (P.W.4). On reaching the spot, he prepared site plan Exh.P.B., collected blood-stained earth from the place of deceased and sealed the same into parcel, vide memo. Exh.P.W.7/1. He also recovered two empties of 7.62 bore from the place of the accused and sealed the same into parcel vide memo. Exh.P.W.7/2. After post-mortem examination, F.C. Hamidullah (P.W.4) brought the blood-stained clothes of the deceased i,e, shirt and 'Banyan' and handed over the clothes to the Investigating Officer, who took the same into possession, vide memo. Exh.P.W.7/3. As the accused-respondents were not available, the Investigating Officer obtained warrants of arrest and proclamation against them and entrusted the same to D.F.C. Muhammad Nawaz (P.W.2) for execution. S.H.O. Mujeeb Khan (P.W.3) Police Station Haved arrested accused-respondents on 16-5-2000, and recovered Klashnikov bearing No,1975751709, from possession of accused Ehsanullah and Klashnikov No,1977467472 from possession of accused Shaukatullah and handed over to S.H.O. Muhammad Ghazi Khan (P.W.9), who took the same in possession vide memo. Exh.P.W.8/1. The blood-stained clothes of the deceased and' crime weapons along with two empties recovered from the spot were sent to Laboratory, for opinion. The reports are Exh.P.W.9/6 and Exh.P.W.9/7, respectively. After completion of investigation, challan was submitted against accused-respondents in Court.
6. At trial, prosecution in order to establish its case against accused-respondents produced 9 witnesses in all Complainant Shah Nazar (P.W.6) and his brother Shah Tamas (P.W.7) furnished eyewitness account of the occurrence and implicated the accused-respondents for commission of the offence.
7. Dr. Habibullah Shah (P.W.1), Medical Officer, DHQ Hospital, Bannu on 3-2-2000, at 4-40 p.m.
Conducted post-mortem examination of the deceased and noted the following:-- "(1) Entry wound near medial border of scapula left chest near its inferior angle, back side 1" x 1".
(2) Exit wound 3" x 5" on interior lateral aspect of left neck upto chin, extensively lacerating and comminuting the left mandible up to the chin."
' In opinion of the doctor, the deceased died as a result of firearm injury, causing damage to left lung, great vessels, left neck including trachea, oesophageal etc. Probable time between injury and death was found 15 to 30 minutes, whereas between death the postmortem examination 1 to 2 hours.
8. Accused-respondents in their respective statements recorded under section 342, Cr.P.C. Denied the case of the prosecution and pleaded innocence. They, however, neither examined themselves on oath, as required under section 340(2), Cr.P.C. Nor led any evidence in defence.
9. After considering the material on record and hearing arguments of learned counsel for the parties, learned trial Judge extended benefit of doubt to accused-respondents and acquitted them of the charge holding that testimony of eye-witnesses does not ring true and is not confidence inspiring and the evidence of the prosecution is not sufficient to furnish foundation for conviction on capital charge.
10. Appearing on behalf of the State, Mr. Ehsanul Haq Malik, Advocate heavily criticised the impugned judgment and attempted to argue that the prosecution has produced true and confidence-inspiring eye-witnesses account furnished by the complainant and his brother, whose statements were not shattered during cross-examination at length; that accused-respondents have failed to show that the P.Ws. Had any animosity or any motive to implicate them in this case falsely and that trial Court had unfortunately failed to examine the evidence with care and attention that it deserved and recorded the impugned finding of acquittal in a mechanical manner without application of judicial mind. The learned counsel maintained that the F.I.R. Was lodged without wasting any unnecessary time, which excludes all possibilities of false implication.
Presence of witnesses at the place of occurrence was quite natural and there is no describable discrepancy or lacuna in the prosecution evidence to suggest that the occurrence had not taken place in the manner as stated by the eye-witnesses. The grounds on which the trial Court proceeded to acquit accused-respondents, are not supported from the evidence on record and the judgment passed by the trial Court is perverse and the reasoning of the Court are artificial and are not in conformity with the evidence on record. Concluding the arguments, learned counsel reiterated that there are, no doubt, some minor discrepancies in the statements of P.Ws., but this is-not sufficient to label them as a completely untruthful witnesses, as has been done by the trial Court, particularly when such testimony has received corroboration by the medical evidence, motive, recoveries, positive reports of the Experts and absconsion of accused-respondents.
11. Controverting the arguments of learned State Counsel, Mr. Shehr Yar Khan, Advocate, presenting accused-respondents, mainly contended that the trial Court has rightly appraised the evidence and correctly acquitted accused-respondents; that ocular testimony of witnesses is not only unworthy of credence but full of contradictions and flaws; that the tale advanced by the prosecution is totally unbelievable and destitute of the quality of attracting confidence; that the statements of P.Ws. Are not compatible with the medical evidence and motive has not been proved and that abscondence of accused-respondents for about three months, by itself, could not be a substitute for real evidence and even otherwise factum of absence of accused-respondents from the village had not been proved by the prosecution on the file. The learned counsel in support of above noted submissions, placed reliance on the reported judgments i,e, Rajab alias Rajoo alias Nang and another v. The State 2006 SCM R 175; Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCM R 908; Mushtaq Ahmad Malik v. Muhammad Sunawar Choudhary and another 2003 YLR 406 and Abdul Ghaffar v. The State and another 2005 PCr.LJ 1644.
12. It is an established principal of law that a Court, while convicting an accused person for an offence particularly in a case in which capital sentence is provided for, have to be fully convinced that A the accused facing trial is the only person responsible for committing the offence and that there is not even the slightest doubt about his false implication.
13. Having adjudged the matter from all angles in the light of material on record, we are confident that the judgment returned by the trial Court is 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 had caused gross miscarriage of justice. We are satisfied that it was a blind murder and the occurrence had not taken place in the manner and mode as suggested. Even otherwise when the substantive evidence in shape of eye-witness account is not free from doubts, the corroborative evidence of recovery and medical evidence, if plausible, is of no avail to the prosecution. The whole prosecution case is shrouded in mystery and is full of doubt appearing at every step and the motive set up in the F.I.R. Has not been satisfactorily established. The depositions made by the eye-witnesses do not fit in the circumstances of the case, which makes their presence highly doubtful at the place of occurrence and renders their testimony worthless. It is not denied that the abscondence is a weak type of evidence and the same per se is not sufficient to prove the guilt. It can be considered as one of the circumstances where there is sufficient evidence direct or circumstantial of unimpeachable character to connect an accused person with the guilt. Needless to emphasise that when 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 the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.
14. In the case of Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCM R 477 it was held that:-- "At the very outset it may be observed that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/ non-reading of evidence. No such circumstance appears to have been brought on the record to disturb the concurrent findings of fact concluded by two Courts below. In our view, reappraisal of evidence at this stage would be neither desirable nor permitted by law. Even if a second view be possible on assessment of evidence, law requires that a judgment of acquittal shall not be disturbed even though second opinion my be reasonably possible."
15. In another case i,e, Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCM R 261 it was held:-- "There are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly an artificial, shocking and ridiculsous". The view taken by this Court in Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11 is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. The approach is slightly different from that in an appeal against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every.
Reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions; one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court confirmed the assumption of innocence. The acquittal will not carry the second presumption and will also thus, lose the first one if on points having conclusive effect on the end result the Court below (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah PLD 1997 SC 569 and State v. Farman Hussain PLD 1995 SC 1."
' For what has been discussed above, this appeal fails, which is hereby dismissed and the impugned judgment of acquittal is maintained. The accused-respondents are on bail, they are discharged from the obligation of their ball bonds.