' ATTAULLAH KHAN, J.---Accused/respondents Syed Nawaz Shah, Abid Shah and Syed Gul Shah were tried by learned Additional Sessions Judge-I, Bannu under sections 302/324/34, P.P.C. And on conclusion of trial, all of them were acquitted.
2. Brief facts are that complainant and his brother namely Muhammad Sehat Shah had gone to turmeric market situated in Do Sarak on Bannu Miran Shah road and after the bid ended, Muhammad Sehat Shah sat in a cot while the complainant was standing near him; on the fateful day at 1200 hours, Syed Nawaz Shah, Syed Gul Shah, Abid Shah and Farooq, duly armed with Kalashnikovs, came there and all the four accused made firing at the brother of the complainant with their respective weapons. In consequence thereof, the brother of complainant got injured and fell down. With the firing of accused one Muhammad Anwar Shah and a minor girl were also hit and got injured. Soon after the occurrence, the accused decamped from the spot. The complainant thereafter attended his brother and found him dead. The occurrence was witnessed by the complainant himself.
3. After completion of investigation, challan was put in Court. Charge was framed against the accused to which they did not plead guilty and claimed trial. In support of its case, the prosecution examined thirteen witnesses. Thereafter, statements of accused were recorded under section 342, Cr.P.C. Where neither they produced any defence evidence nor opted to be examined on oath in terms of section 340(2), Cr. P. C .
4. After hearing arguments, the learned trial Judge acquitted the accused/respondents of the charges levelled against them vide judgment dated 20-4-2005 which is impugned herein.##TE#
5. Arguments heard and record on file perused, in the light of which our discussion is as under.
6. Learned counsel for the petitioner/complainant argued that the case of the prosecution has been proved through evidence of eye witnesses who were present on the spot and saw the occurrence with their own eyes. The medical evidence also supports and corroborates the ocular version. He further argued that the recovery of 9 empties of 7.62 bore was also effected from the spot and lastly that the accused/ respondent remained absconder for a sufficient long period.
7. On the other hand, the stand of learned counsel for the accused/respondent is that there is only solitary witness who is closely related to the deceased and his evidence is not worth consideration, as he is inimical towards the accused and his version has not been corroborated by any other independent circumstantial evidence.
8. We would first discuss the ocular evidence in this case. According to P.W. Faridullah Shah who has appeared as P.W.1 and is also the lodger of F.I.R. At the time of occurrence, he was present on the spot when at the relevant time the accused appeared duly armed with Kalashnikovs and opened fire at them with which his brother Muhammad Sehat Shah was hit. From the same firing one Muhammad Anwar Shah and a minor girl were also injured. This witness has stated the events as mentioned in the F.I.R. His cross-examination is worth perusal. In the opening para of cross- examination, he has admitted that he along with his brother Muhammad Sehat Shah were charged for the murder of two brothers of the accused in which he was convicted and latter on in appeal was acquitted.
9. In our opinion this portion of cross-examination establishes that the P.W. Is inimical towards the accused/respondent. It is an admitted fact that the deceased was the real brother of complainant/P.W. So in this way he is very closely related to the deceased and also inimical towards the accused. General principle in this regard is that a closely related witness must be corroborated by independent evidence but in this case no independent corroboration is coming forward to support the statement of eye-witness. Moreover, he is solitary witness. A closely related eyewitness and when he is also inimical towards the accused, then the rule of prudence is that the evidence of such witness requires strong corroboration. There are number of case-law wherein it is held that in case where solitary witness is inimical towards the accused reliance may not be placed on his testimony unless corroborated by other evidence like medical, recovery of empties and weapon of offence. In this case no weapon has been recovered. Unfortunately nothing is found in support of the ocular version.
10. The ocular version in this case is of third category needed to be strongly corroborated and supported by independent source, because the interested solitary witness is closely related and on inimical terms with the accused. So the P.W. In this case has become interested witness and, therefore, his testimony has to be scrutinized with care and caution. Reliance may be placed on PLD 2004 Pesh.
294. For the sake of argument, if medical evidence is believed, even then it would be of no support because in case the direct evidence is not believed, corroborative evidence is of no avail. In this respect, reliance is placed on 2007 SCM R 1427. ##TE#The apex Court has laid down certain principles pertaining to appreciation of evidence of an interested witness. Reference may be made to PLD 1962 SC 269.
11. Another question to be resolved is about the presence of the complainant at the spot. According to the learned counsel for the appellant, the P.W. Was not at all present on the spot at the time of occurrence. We have examined this question. The first fact giving rise to doubt the presence of complainant on the spot is his admission in the cross-examination to the effect that he was charged by the accused for the murder of his two brothers. In that case he was admittedly convicted by the trial Court but subsequently acquitted in appeal. This means that if there existed previous blood feud before the present occurrence, the deceased was not alone target.
Complainant was equally supposed to be target. Had he present on the spot, he would not have been spared. His escape unhurt creates doubt about his presence. The second fact leading us to the doubtful presence of complainant on the spot is his ignorance about the person with whom he was engaged in business of turmeric. The reason is that he was regular visitor to the dealer and being an educated man must know them. This fact also leads one to infer that there was no such transaction of any business nor he was present on the spot at the fateful day. So in our opinion, the presence of complainant/P.W. On the spot at the time of occurrence was doubtful.
12. The above discussion leads us to the conclusion that the complainant/P.W. Is closely related to the deceased and highly inimical due to previous blood feud wherein he was acquitted in appeal and his presence on the spot was doubtful, therefore, cannot be relied upon specially when corroborative evidence is lacking.##TE#
13. Now coming to the appeal against acquittal, we may point out that certain principles have been laid down by superior Courts including the apex Court. It is now a settled principle that different parameters are applied for interference in an appeal against the acquittal and appeal against conviction. Presumption of innocence of the accused is double in case of acquittal and the Court would not interfere unless it is found that conclusion drawn by trial Court is not supported by evidence on record. In this respect, we may refer to 2009 SCM R 946 which reads as under:--- ##TE# "It is a settled law that before the order of acquittal is reversed, it must be shown that the judgment of he learned trial Court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal should not be reserved. We would like to reproduce the relevant portion of the judgment of this Court in the case of Ghulam Sikandar v. Mumraiz Khan PLD 1985 SC 11 on the same wherein it was observed as under:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases - law on the question of setting aside an acquittal by this Court. They are as follows:--
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
This approach is slightly different than 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 in fact that the acquittal carries with it the two well-accepted presumptions: One initial, till found guilty, the accused is innocent: and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second assumption 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.
(3) In either case, as the well-known principle of appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reasons.
(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to 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 conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized 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 as artificial, shocking and ridiculous."
14. If we examine the instant case in the light of above observations we may easily reach to the conclusion that this case consist of one solitary witness who is very closely related to the deceased and admittedly inimical towards the accused. His presence at the spot at the time of occurrence is doubtful. Moreover, his evidence is not corroborated by any cogent and independent source.
Rather it is contradicted by the report of Forensic Science Laboratory.##TE#
15. In the circumstances discussed above, we are of the opinion that the trial Court has rightly acquitted the accused which calls for no interference. The revision petition is accordingly dismissed.#TE#