ATTAULLAH KHAN, J.---The appellant has impugned the acquittal order/ judgment of accused/respondents recorded by learned Sessions Judge, Bannu passed on 16-11-2005, in Sessions Case No,34 of 2004.
2. Brief facts of the instant criminal appeal, as narrated in the F.I.R. are that on 12-4-2003 at 1600 hours, complainant Mir Shahbano brought the dead body of her son Syed Amin with the help of co- villagers in a Pick-up/Datsun to the Police Station, Cantt. Bannu and reported the matter to the police that on the day of occurrence she along with her deceased son were proceeding to their old house at Khadri Mamand Khel from their new house at Dumanzi. At 1500 hours when they reached the fields known as Garvand Kass within the limits of Khadri Mamand Khel, the accused appeared on the scene duly armed with Kalashnikovs out of whom accused Ahmad Khan commanded his other companions to fire, on which all the remaining accused fired at Syed Amin, as a result of which he was hit, fell on the ground and died on the spot. The accused after the occurrence decamped from the spot. Motive for the occurrence, as alleged by the complainant in the F.I.R., was previous blood feud enmity between the parties and her report case F.I.R. No,111 dated 12-4-2003 under sections 302/148/ 149, P.P.C. registered at Police Station, Cantt. Bannu.
3. After completion of the investigation, complete challan was submitted against the accused before the trial Court. Accused were summoned who appeared before the trial Court. The learned trial Court after recording the prosecution evidence, statement of accused/ respondents and hearing arguments of both sides, acquitted accused/ respondents vide judgment/order dated 16- 11-2005.
4. The complainant is aggrieved with the findings of the learned trial Court, therefore, has impugned the judgment/order of acquittal of the accused/respondents, and has filed the instant appeal.
5. Mr. Akhtar Saeed advocate, learned counsel of the appellant argued that the respondents/accused are directly charged in the occurrence and the F.I.R. is promptly lodged by the complainant. He further argued that the occurrence has been witnessed by eye-witness and respondents/ accused remained absconder, therefore, the case has been proved. He urged that the acquittal of respondents/accused is based on non-reading and misreading of evidence and the trial Court has not appreciated the evidence on record against the respondents/ accused and has wrongly acquitted the respondents/accused.
6. Mr. Saleemullah Khan Ranazai advocate, learned counsel of respondents accused vehemently defended the order/ judgment of the learned trial Court by arguing that it is a case of sole eye- witness, who is mother of the deceased and being so 'closely related her statement needs corroboration from independent source. He further argued that presence of the eye-witness on the spot is not proved by the prosecution. He urged that the medical evidence contradicts the statement of complainant recorded in the F,I.R. and her report regarding the number of shots of injuries found by the doctor on the dead body of the deceased. He submitted that the time of occurrence in the F.I.R. is also not correct because according to the complainant/eye-witnessafter the occurrence the deceased was removed from the spot in the Datsun. The learned counsel for respondents/accused referred to the cross-examination of P.W.6. in which she disclosed that the deceased was put in the Datsun and it took about 45 minutes to reach the chowk of Mir Shamand, where the dead body remained for half an hour. Thus 75 minutes were spent. According to him the occurrence was reported by complainant after 50 minutes. There is no explanation of further 25 minutes.
7. We have considered the arguments in the light of available record and evidence of the parties.
8. We would first take the ocular evidence in this case. The ocular evidence in this case consists of one witness, namely, Mst. Mir Shahbanu complainant, who lodged the F.I.R. and has been examined in the trial Court as P.W.6. She repeated the contents of F.I.R. in her examination-in chief. It is an admitted fact that she is the mother of the deceased thus closely related to the deceased and her evidence needs corroboration from independent source.
9. First we would examine as to whether the witness is truthful to the facts of the case and her statement is trust worthy. If so the next question is to be examined as to whether her statement is corroborated by other evidence from independent source because she being mother of the deceased needs corroboration. In the .case of a related sole witness principle laid down is that it is to be scrutinized with care and caution.
10. While appearing in the trial Court as P.W.6, she has stated that she and her son were going to hire a Datsun as she intended to take luggage to her another house, when the occurrence took place. This witness in cross-examination has deposed that she had told to police about the factum of hiring the Datsun for carrying the luggage to the new house but this fact is missing from the F.I.R.
She has also deposed in her cross-examination that she was caught hold from her hand by accused/respondent Ahmad Khan and was not being allowed to rescue her son. The purpose of presence of the eye-witness and the deceased on the spot was that they intended to shift luggage from their old house to the new house. We have perused the site plan and found no mention of the house of complainant from which the luggage was to be shifted to the new house. This was necessary to establish the presence of complainant on the spot with the deceased. The non- mentioning of these two houses in the site plan creates doubt about the presence of complainant on the spot because the main purpose described in the F.I.R. by the complainant is shifting of luggage from old house to new one. Since this fact has not been proved, therefore, we A find no other reason of the presence of complainant on the spot. Another fact gives strength to the presumption of absence of the complainant on the spot is that holding of complainant by accused/appellant Ahmad Khan at the time of firing at the deceased if we put this version in juxtaposition with opinion of the Investigation Officer regarding the plea of alibi of Ahmad Khan accused we may safely presume that the witness is not telling truth before the Court. The I.O. opinion was that Ahmad Khan was not present on the spot. If so catching hold of complainant by the said accused is not believable.
11. The next fact is to be noted the number of fire shots. According to complainant, in her cross- examination she stated that the accused fired about 25 or 30 rounds at the deceased. If we presume that the fire shots were 30 then there should be 30 entry wounds on the body of deceased. We have gone through the postmortem report and the statement of the doctor who appeared in the trial Court as P.W.1. The PM report is available on file as Exh.PM, injury sheet Exh.PM/1 and inquest report Exh.PM/2. The doctor found 13 entry wounds from left neck and face to forehead and exit firearm wound on the right skull and 27 entry wounds are on the abdomen from penis to both shoulders. The relevant portion of the statement of the doctor is reproduced below:-- "I had conducted autopsy on the dead body of Syed Amin son of Muhammad Amin resident of Muhammad Khel on 12-4-2001 at 05.50 p.m. and found the, following.
Wounds
(1) From left neck and face to forehead 13 entry wounds about 1/4" x 1/4" also exit firearm. wound on the right skull 6" x 6".
(2)<u> On the abdomen from penis to both shoulders FA wounds 27 about 1/4" x 1/4" also all exit FA wounds were posterior different size 1", 1/2", 2", 3", 3", 4", 4".
Cranium and spinal cord:--All injured.
Thorax:-- All injured.
Abdomen:--Except organ or generation all injured. Stomach contained semi fluid.
Muscles, Bones and Joints: Left clavical and scapula fractured.
Opinion:-- In my opinion, the cause of death was injuries to brain, heart, both lungs and blood vessels. Probableduration between injuries and death 05 to 15 minutes, between death and PM two to three hours.
I have seen my report Ex:PM which is in my hand and correctly signed by me. . Injure sheet Ex:PM/1 and inquest report Ex:PM/2 also bears my signatures and endorsements correctly. All the above PM documents were handed over to police along with shirt and shalwar of the deceased".
The above examination of statement of doctor reveals 40 entry wounds of firearm which discloses that the numbers of injuries are 40. If we compared these 40 entry wounds of firearm on the body of the deceased with 30 fire shots then it exceeds the number shots fired. Here again doubt arises about the presence of complainant on the spot. There is also possibility that the complainant is not telling truth and therefore believing her would be a risk as she contradicts not only F.I.R. but the medical report also. The safe escape of the complainant in the occurrence is also a question mark.
The accused charged in this case are seven in number who were armed and effected firing at the deceased. Question arises that why the complainant escape safe and was not fired by them.
Leaving her alive by accused, is a risk in the shape of availability of an eye-witness against themselves. This fact also points out a presumption about the absence of complainant from the spot. As stated above, the complainant has not disclosed truth and her presence is also doubtful, therefore, in such circumstance corroboration is of utmost importance. As discussed above, the medical report totally negates the number of fire shots attributed by complainant to the accused which does not tally with the number of injuries on the body of the deceased. The medical totally contradicts the ocular version in this case.
12. The next question to be noted is of recovery. In spite of 25 to 30 fire shots not a single empty has been recovered from the spot in spite of the fact that on same day the Investigating Officer inspected the spot. This immediate inspection of the Investigating Officer on the spot eliminate the chances of doing away with empties by accused. So the non-recovery of empties also creates doubts and goes against the prosecution case.
13. As pointed out by learned counsel for accused/respondents the body of deceased remained in the chowk of Mir Shamand for about 75 minutes after the occurrence. The occurrence according to F.I.R. took place at 0510 hours. Let we presume that the report was lodged immediately then the time of F.I.R. would come as 1625 hours while the report was made per F.I.R. at 1610 hours. In this way the time of report is incorrect and contradicts the ocular version of P.W.6.
14. It is also to be noted that certain improvements have been made by complainant in her evidence in order to bring the case in line with circumstance which cause serious doubts. We rely upon 2009 SCM R 1382, wherein it is observed that:-- "It is settled principle of law that improvements of the witnesses to make the oral evidence in accordance with the medical evidence causes serious doubt about veracity of such witnesses as law laid down by this. Court in Shahbaz Khan Jakhrani's case 1984 SCMR 42 and Muhammad Shafique Ahmed's case PLD 1981 SC 472. As ocular evidence contradicts by medical evidence as mentioned above, therefore, learned High Court was justified to acquit respondent No,1 which is in consonance with the law laid down. in various pronouncements. See Bagh Ali 's case PLD 1973 SC 321, Darey Khan's case 1972 SCMR 578 and Shah Bakhsh's case 1990 SCMR 158."
15. Another fact to be noted is the motive shown in the F.I.R. which is blood feud enmity. This motive has not been proved at all in the evidence by the prosecution. No documentary proof has been filed. Normally motive is of no avail and in certain cases which are motiveless conviction can be recorded. But once motive is alleged by complainant in report it must be proved and in case of failure, the benefit must go to the accused.
16. The only evidence is that of abscondence of the accused. It is to be pointed out that mere abscondence is not sufficient to connect the accused with the commission of offence and cannot be taken into consideration in isolation when other reliable evidence is not available. In other words abscondence can be considered as corroborative piece of evidence and a circumstance against an accused compared with other evidence.
17. In short the case of prosecution rests upon a solitary witness who too is closely related to the deceased. Her statement is contradictory with the medical evidence and thus the medical evidence negates the ocular version. Motive is not proved. The presence of eye-witness on the spot is also doubtful. Mere abscondence cannot be taken into consideration against the accused/appellants.
18. There are number of doubts in the prosecution case. We rely on 2009 SCM R 230, wherein it is observed that:-- "It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance J which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
Keeping in view the above provision this case is being full of doubts and the benefits should go to the accused.
19. Presumption of innocence is attached to every accused but after acquittal accused is clothed with double presumption of innocence.
20. Now coming to the principle laid down in connection with appeal against acquittal we may point out that the principles are different, from appeal against H conviction. Different parameters are applied for interference in an appeal against the acquittal and appeal against the conviction.
Presumption of innocence of the accused is double in case of acquittal. The appellate court would not interfere unless conclusion reached by Courts below was not supported by evidence on record.
Following principles on question of setting aside the acquittal by Supreme Court have been given as reported in 2009 SCM R 946.
"It is a settled law that before the order of acquittal is reversed, it must be shown that the judgment of the learned trial court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal, should not be reversed."
We also rely upon 2011 PCr.LJ 357, wherein it is held that:-- "Unless the judgment of the trial court is perverse, completely illegal, and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr. P. C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the Administration of criminal justice... and that the judgments of the learned Sessions Judge is perverse or is a result of complete misreading of evidence or that it is due to Incompetence stupidity or perversity that he had reached any distorted conclusions as to produce a positive miscarriage of justice".
We refer PLD 2003 Supreme Court 14, wherein it is held that:-- "This Court can only interfere with the findings of the acquittal recorded by the learned High Court when the same either perverse, arbitrary or capricious. Learned counsel though repeatedly asked to point out any of the above instances, but failed".
21. Keeping in view the above principle as well as facts on record no case is made out by the appellants for reversal of impugned acquittal.
22. We do not find any strong reason to reverse the judgment/order of the learned trial Court, acquitting the accused/ respondents from the charge levelled against them. Therefore, the instant criminal appeal is dismissed.