' IJAZ-UL-HASSAN KHAN, J.--Accused-respondents, Fazal Qayum and Fazal Mir, brothers inter se, were tried by learned Additional Sessions Judge, Lakki, for offences under section 324/34, P.P.C. On the allegation of having, on the night of 18-5-2002, at about 11-00 a.m., in the house of Mujibullah, in deh `Sargha Kheru Khel, Lakki, attempted at the lives of appellant Umder Jan and his sister's daughter Mst. Sabir Jan, by firing at them effectively. At the conclusion of trial, by judgment dated 13-3-2004, accused-respondents were extended benefit of doubt and acquittal of the charge.
2. Appellant Umer Jan, feeling aggrieved, has preferred Criminal Appeal No.33/2004, assailing the impugned judgment of acquittal.
3. Occurrence of the alleged incident took place on the date, time and the venue of occurrence mentioned above and the report Exh.P.A. About it was lodged the same night at about 11-30 a.m. At Adda Shahbaz Khel, by complainant Umer Jan and it was recorded by A.S.-I. Amir Nawaz Khan (P.W.8).
4. The prosecution story in brief is, that on the night of occurrence complainant Umer Jan and his brother Gul Zaman were present in the house of their brother-in-law Mujibullah, serving as driver in Sheikhupura, when they found accused-respondents standing near the gate of the house. On asking as to why they have come, accused-respondents got infuriated, entered into the courtyard of the house, started grappling with the complainant and Gul Zaman P.Ws. And opened fire at complainant party with their .30 bore pistols, as a result of which complainant Umer Jan and Mst.
Sabir Jan sustained injuries. After the occurrence, accused-respondents bolted away. The motive leading to the incident was stated to a dispute over `Mastoorae.
5. A.S.-I. Amir Nawaz (P.W.8), after recording report, prepared injury sheets of the victims and referred them to hospital for medical examination. On reaching the spot, he prepared site plan at the instance of eye-witnesses, recovered blood-stained earth and three empties of .30 bore from the spot and took the same into possession, vide memo. Exh.P.W.3/1. He also took into possession blood-stained garments of both the injured, vide memo. Exh.P.W.3/2. The clothes and the crime empties were sent to the experts for opinion. Reports of Fire-arms Expert and Chemical Examiner are Exh.P.W.8/6 and Exh.P.W.8/7 respectively. Accused-respondents were arrested on 26-9-2002.
After completion of investigation, in the manner described above, challan was submitted in Court.
6. At trial, the prosecution in order to prove its case examined 11 witnesses in all. Complainant Umer Jan and Gul Zaman examined as P. Ws. 2 and 3, furnished eyewitness account of the occurrence.
Mst. Sabir Jana injured was abandoned being unnecessary. Dr. Muhammad Ismail (P.W.4) on 19-5- 2002, at about 12-30 a.m., examined Mst. Sabir Jana and found the following:-
1. One entrance wound of fire-arm on the right hand on the medial aspect 3" above the elbow joint, size 1/4" x 1/4", skin and muscle deep.
2. One exit wound of fire-arm on the right hand on the lateral aspect 5" above the elbow joint, size 1/3" x 1/3".
' On the same date, Dr. Muhammad Ismail also examined Umer Jan and found the following:--
1. One entrance wound of fire-arm on the back at the lumber region on left side, size 1/4" x 1/4", skin, muscle and cavity deep.
2. One exit wound of fire-arm on the abdomen on left side of groin near the iliaccrest, size 1/3" x 1/3".
7. After close of prosecution evidence, statements of both the accused were recorded under section 342(2), Cr.P.C., in which they denied the prosecution allegations and claimed to have been falsely charged. Accused Fazal Mir, neither opted to be examined on oath under section 340(2), Cr.P.C. Nor to produce defence evidence, whereas accused Fazal Qayum opted to be examined on oath in terms of section 340(2), Cr.P.C., and to produce defence evidence. Muhammad Aslam and Mastan were examined in defence. Fazal Qayum in his statement under section 340(2), Cr.P.C.
Stated that about a year prior to the occurrence, he had contracted marriage with Mst. Kalsoom, daughter of Mujibullah. After some time of the marriage, relations between the couple became strained. Mst. Kulsoom left his house and started living in the house of her parents. He used to visit the house of his father-in-law to meet his wife. On the night of occurrence, an altercation ensued between him and Gul Zaman. Gul Zaman fired at him, which, proved ineffective. On the hue and cry of the ladies, Muhammad Aslam, Mastan and some others were attracted to the spot. At the same time, Gul Zaman fired two more shots, as a result where of Umer Jan and Mst. Sabir Jana were hit.
Muhammad Aslam Khan and Mastan overpowered Gul Zaman and snatched the pistol from him.
8. Mr. Waheed Anjum, Advocate, appearing on behalf of the appellant, contended that the prosecution has established the guilt of accused-respondents beyond reasonable doubt by producing cogent, ocular and circumstantial evidence on record but unfortunately the trial Judge has failed to appreciate the evidence in its true perspective; that unrebutted evidence of the P.Ws.
Could not illegally be ignored by the trial Court; that trial Court has given undue importance to minor, unconnected and irrelevant matters and disbelieved the version of the appellant without any rhyme and reason and that the order of acquittal is Shocking, perverse and suffers from grave legal infirmity and is liable to the set aside. In this regard, reliance was placed on Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State (1971 SCM R 659), Allah Nawaz v. The State and another (2004 PCr.LJ 1564) and Muhammad Jamil v. The State and others (2005 PCr.LJ 1991).
9. Chaudhary Muhammad Ayaz, Advocate, representing the State assisted by Mr. Gohar Ali Zaidi, Advocate for accused-respondents, on the other hand, controverted the arguments of learned appellant's counsel and submitted that the evidence available on record is in no way sufficient to lead to a conclusion of guilt. The appellate Court has extended the benefit of doubt to accused- respondents in a lawful manner and no glaring defect, material irregularity or legal infirmity appears in the finding of the trial Court calling for interference of this Court in its appellate jurisdiction.
10. Standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. In 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 Court after proper analysis of evidence on record. In appeal against acquittal, 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 respondent is considerably narrow and limited. Muhammad Usman and 2 others v. The State (1992 SCMR 498) and State v. Muhammad Sharif and others (1994 SCMR 635).
11. Having adjudged the matter from all angles, in the light of the material on record, I am of the view 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. The whole prosecution case is shrouded in mystery and is full of doubts appearing at every step. On the basis of such a shaky evidence, which cannot be believed at all, learned trial Judge had valid reasons to extend benefit of doubt to accused-respondents and pass a finding of acquittal. Needless to emphasize that mere presence of injury on the person of a prosecution witness is not sufficient to declare him a truthful witness, if the same is not believable from the other circumstances available on record.
Muhammad Aslam Khan Arbitrator and Mastan Khan, D.Ws. Have depicted entirely a different story.
They have charged Gul Zaman P.W. For firing with 30 bore pistol, resulting into injuries to complainant Umer Jan and his niece Mst. Sabir Jana. The version of these witnesses seems to be more nearer to the truth.
12. As far as medical evidence furnished by Dr. Muhammad Ismail (P.W.4) is concerned it being in nature of confirmatory evidence cannot be considered corroborative evidence. There is no other incriminating evidence on record sufficient to support the complainant and his brother on material points, therefore, for such reason, it would not be safe to rely on their evidence.
13. With regard to abscondence, suffice it to say that where otherwise evidence on the record is not credible and worth-reliance, the mere fact that an accused remained absconder cannot remedy the defects and infirmities in the prosecution case. Firstly, because some times even innocent person become fugitive from law due to fear and harassment and victimization at the hands of police and secondly, because abscondence at its best can be taken as corroborative and not evidence of the charge, as held by this Court in Akhtar Jan and another v. State and another (2005 PCr.LJ 1459 Peshawar).
14. It needs no reiteration, 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.
In view of what has gone above, it follows that the prosecution has failed to produce trustworthy and confidence-inspiring evidence against accused-respondents. Doubt arising in respect of one fact of circumstance is enough to discard the prosecution case as a whole. The appeal fails which is hereby dismissed and the impugned judgment of acquittal is maintained.