' IJAZ-UL-HASSAN KHAN, J.--- Through instant petition, Haji Paio Khan, petitioner, seeks leave to appeal against judgment, dated 16-6-2004 passed by learned Peshawar High Court, Peshawar, accepting appeal filed by accused respondents Sher Biaz and Nasir Khan, setting aside their conviction and sentences accorded under sections 302/324/34, P.P.C, by learned Additional Sessions Judge, Karak, vide judgment dated 7-8-2003 and dismissing revision filed by petitioner for enhancement of sentences awarded to accused respondents.
2. Facts of the prosecution case as set out in F.I.R lodged by complainant Haji Paio Khan, shortly stated are, that on the fateful day i,e, 9-4-2001 at 1520 hours, complainant along with his son Rasool Ayaz deceased and others had gone to Sessions Court, Karak for attending the case of his another son namely Zakirullah. On coming to know about his (Zakirullah) release, complainant and Rasool Ayaz were returning home in Pickup No,DNC-4454 driven by Khurshid Alam. On reaching the scene of occurrence, another pick-up chasing the complainant party went ahead and stopped on a `Kacha road', Nasir Khan, Hidayatullah, sons of Aqibat Khan, Sher Biaz and Mir Payo sons of Ayaz Khan alighted from the pick-up, duly armed with Kalashnikovs. The complainant and Khurshid Alam driver jumped from the pick-up while Rasool Ayaz remained there on its rear seat. All the four accused fired at Rasool Ayaz with which he was hit and died on the spot. The complainant was also fired at but he escaped unhurt. Motive leading to the incident was stated to be previous enmity between the parties. After completion of investigation, accused respondents were sent for trial to the Court of learned Additional Sessions Judge, Karak, where they pleaded not guilty and claimed trial.
3. The prosecution in order to prove the charge and substantiate the allegations produced as many as ten witnesses. The ocular account of the occurrence was furnished by complainant Haji Paio Khan P.W.7 father of Rasool Ayaz deceased. Doctor Gul Sanat Shah, Medical Officer Civil Hospital, Karak conducted the post-mortem examination on the dead body of deceased on 9-4- 2001 at about 5.00 p.m. And noted a number of fire-arm injuries on the person of the deceased.
4. The accused respondents in their statements under section 342, Cr.P.C. Denied the charge and pleaded innocence but neither they made statements under section 340(2), Cr.P.C. Nor produced any evidence in defence. In answer to question, as to how you explain your abscondance from the date of occurrence, till your arrest, Nasir Khan, accused respondent stated:--- "I am serving in Railway Police and during those days I was posted at Rawalpindi and was present on my duty on the day of the alleged occurrence, on return to my village, when I got the knowledge of the above alleged charge I appeared before the Court of learned Sessions Judge, Karak with the application for BBA as I had come to my village and thus secured an interim bail on 25-4-2001 so I did not abscond."
5. Similarly, in answer to question regarding abscondance Sher Biaz accused respondent stated:-- - "I did not abscond. In fact I was serving as Lance Niak at Shelabagh Pashin Scourts at Balochistan and I was not knowing the above malicious charge. As soon as I got the knowledge of the above bogus charge I appeared before Ghulam Jan A.S.-I. At Balochistan where I was posted."
6. The learned trial Judge, having come to the conclusion that prosecution has succeeded to establish its case against the accused respondents beyond any reasonable doubt, by virtue of his judgment dated 7-8-2003 convicted and sentenced them to suffer imprisonment for life and to pay compensation amounting to Rs,1,00,000 (one lac) to the legal heirs of deceased under section 544-A, Cr.P.C. And in default thereof to further undergo R.I. For five years. Benefit of section 382-B, Cr.P.C. Was also extended to the accused respondents.
7. Criminal Appeal by the accused respondents, challenging their conviction and sentences, filed before learned Peshawar High Court, Peshawar was accepted whereas Criminal Revision filed by complainant/ petitioner, seeking enhancement of sentences awarded to respondents was dismissed through the impugned judgment, as mentioned in the opening paragraph, of this judgment.
8. Mr. Muhammad Amin Khattak, Advocate appearing on behalf of the petitioner, after taking us through the evidence on record, contended with vehemence that overwhelming evidence, consisting of ocular account, medical evidence, motive, absconsion and recoveries was available on record to prove the guilt of the accused respondents in the crime in question, which has not been examined and discussed thoroughly; that accused respondents stand directly nominated in the promptly lodged F.I.R for the commission of crime; that the there is strong, trust worthy and unimpeachable evidence available against accused respondents, which has not been appreciated in its true perspective; that the prosecution has succeeded in proving its case against accused respondents beyond any shadow of doubt; that High Court has fallen into serious error by accepting the plea of 'alibi' advanced by accused respondents; that judgment of the High Court is not according to law and that the reasons advanced for acquittal of accused respondents are artificial, whimsical and perverse and cannot be allowed to remain intact.
9. Having heard the arguments of learned counsel for the petitioner and re-examining the record on file, we find that learned counsel for the petitioner has not been able to refer to any piece of evidence which could persuade us to hold that the conclusion arrived at by the High Court is against the weight of evidence on record. The judgment of the High Court while acquitting the accused respondents cannot be said to be perverse and the reasons thereof are not fanciful, capricious, speculative and artificial and in the absence of holding the order of acquittal as such, it cannot be interfered with. The High Court has dilated upon all the contentions as agitated before us in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:--- "(9) From the facts and circumstances discussed above, from whatever angle we see, when the very presence of the appellants on the date/time of occurrence was not proved on the spot, rather their presence on their places of posting was duly established from the documentary evidence brought on record coupled with the fact that the medical evidence is not in line with the prosecution case which is further not supported by the recoveries and that the complainant has also not given a trustworthy account, we don't think that the prosecution had been able to prove its case against the appellants beyond any shadow of reasonable doubt."
10. It needs no reiteration that 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 the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.
11. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.
12. Insofar as the ascendance is concerned, it may be stated that mere abscission is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscission, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The abscission of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case.
13. In the instant case, abscission of the respondents has not been established. Sufficient material has been brought on record to prove that at the relevant time accused respondents were not present in the village and were performing duty at the place of their respective postings, far away from the scene of occurrence.
14. In view of the above, no misreading or non-reading of evidence or any material piece of evidence having the effect of varying the impugned judgment having not been appraised in the true perspective, could be pointed out to warrant interference by this Court.
15. We are of the opinion that no case for grant of leave is made out. The petition is destitute of merit. The same is dismissed and , accordingly.