' QAISER RASHID KHAN, J.---Aggrieved from the judgment dated 6-7-2004 passed by the learned Sessions Judge Karak in case F.I.R. No,79 dated 6-7-2002 of Police Station Latamber registered under sections , 302/34, P. P .C., whereby Amanullah, accused/respondent was acquitted of the charge, the complainant Mst. Salam Bibi has preferred this appeal.
2. According to the F.I.R. Lodged by the complainant/appellant Mst. Salam Bibi, on the fateful day she was taking meals for her father-in-law who was present in the baithak when in the meanwhile Sanaullah and Amanullah appeared duly armed with Kalashnikovs and fired at her father-in-law with which he was injured and died on the spot. Motive for the offence was given to be previous blood feud between the parties.
3. On arrest of the accused/ respondent and completion of investigation, challan was put against him who was summoned to the court where he was formally charge-sheeted but he did not plead guilty to the charge and claimed trial.
4. In order to prove its case the prosecution produced and examined ten witnesses. The brief account of the prosecution evidence is as under. P.W.1, Dr. Hizbullah Khan, had conducted the autopsy on the dead body of deceased Haq Nawaz on 6-7-2002 at 6-15 p.m. And exhibited the postmortem documents as Exh.PM, injury. Sheet Exh.PM/1 and inquest report Exh.PM/2 respectively.
P.W.2, Muhammad Ashiq IHC, had deposed that the Investigation Officer in his presence took into possession Qamees P-6; a pillow, P-7, a phial containing spent bullet P-8 and a piece of pillow stained with blood having corresponding cut mark P-6 and sealed the same into parcel. P.W.3, Muhammad Yousaf IHC, had exhibited the warrant under section 204, Cr.P.C. And proclamation notice under section 87, Cr.P.C, issued against the accused as Exh.P.W.3/1 to Exh.P.W.3/8 respectively. P.W.4, Mehboob-ur-Rahman, had identified the dead body of deceased Haq Nawaz before the Investigation Officer and the doctor. P.W.5, Hussain Bad Shah S.H.O., had submitted completed challan under section 512, Cr.P.C. P.W.6, -Mst. Salam Bibi wife of Taj Muhammad Khan (complainant) reiterated the contents of her report. P.W.7, Said Rasool, had stated that in his presence the complainant chalked out the F.I.R. Exh.PA and confirmed the contents of recovery memos Exh.PC, Exh.PC/1 and Exh. PC/2 respectively. P.W.8, Muhammad Nisar son of Noor Nawaz Khan, had supported the version of complainant. P.W.9, Mir Shah Alam Khan SILO., had deposed that on the report of complainant he chalked out the F.I.R. Exh. PA, prepared injury sheet and inquest report of the deceased. He stated that he at the instance of the complainant and P.W. Said Rasool, prepared the site plan Exh.PB during spot inspection. He had prepared the recovery memos Exh.PC/1 to Exh.PC/4, exhibited the FSL report as Exh.PZ and F.I:R. No,47 as Exhs.P.W.9/1. P.W.10, Said Khan had deposed that on 16-3-2003 he arrested accused Amanullah along with unlicensed pistol, issued his card of arrest, recorded statement of the P. Ws. Under section 161, Cr.P.C. And after completion of investigation submitted supplementary challan against the accused. After closing of prosecution evidence, statement of the accused/respondent was recorded under section 342, Cr.P.C. But he professed innocence, falser implication. However, he neither produced any evidence in defence nor opted to examine himself on oath under section 340(2), Cr.P.C.
5. On weighing the materials brought on record and considering the arguments of the learned counsel for the parties, the learned trial Judge found the accused/respondent not guilty of the charge levelled against him and thus acquitted him vide judgment which is now under challenge in this appeal by the appellant.
6. Learned counsel for the appellant vehemently criticized the impugned findings of the learned trial Court on the grounds that the same are not based on any sound footings; that the ocular, medical and circumstantial evidence fully support the prosecution version but the learned the trial Judge has failed to appraise the same in their true prospective while drawing the impugned judgment of acquittal and that the impugned judgment is based on surmises and conjecturers and thus liable, to be set aside.
7. In rebuttal, learned counsel for the accused/respondent supported the impugned judgment on the grounds that the prosecution has, failed to prove its case against the accused/respondent beyond any shadow of reasonable doubt; that the testimony of the complainant/appellant was rightly disbelieved because she was closely related to the deceased and thus highly interested and that the materials brought on record with the statement Of P.Ws. Were not sufficient to hold the accused/respondent guilty of the offence, therefore, the impugned verdict of the learned trial Judge needs no interference.
8. We have carefully gone through the record of the case and anxiously considered the arguments of the learned counsel for the parties.
9. The case of the prosecution rests on the ocular testimony of the complainant Mst.Salam Bibi (P.W.6), medical report of the deceased, recovery of empties and spent bullet from the spot; motive for the offence and abscondence of the, accused/ respondent.
10. Admittedly, the complainant is the daughter-in-law of the deceased and being an interested witness, her testimony requires independent corroboration which is lacking in the case in hand. The occurrence had allegedly taken place inside the baithak which is not part of the house though the complainant had alleged to have taken there meals for the deceased. The stand of the complainant is that after the occurrence, utensils and the meal were left in the baithak but the record is silent in this behalf which throws a shadow of doubt on the prosecution version. Besides, there is an inordinate and unexplained delay of about five hours and fifteen -minutes in lodging the F.I.R., according to which the incident had taken place at 11-00 a.m. While the report was lodged at 4-15 p.m. The Police Station is situated at a distance of about 13/14 kilometers from the spot which is located on the road side where public transport is readily available. Another intriguing aspect of the case is that as admitted by the complainant in her cross-examination that the house of Mushk-eAlam, (father-in-law of the sister of the complainant) is situated "two fields away" from her house and "loud voice can be heard in the house of Mushk-e-Alam from the house" of the complainant, but still no one was attracted to her cries for over four hours till Said Rasool P.W.
Arrived. In such like situation even a passerby would have been attracted to the cries and woes of a female and would have inquired from her or was it that the complainant did not raise any hue and cry. In either case an air of suspicion surrounds the complainant's version, leading one to the conclusion that the occurrence had not taken place in the mode and manner in which it was reported by the complainant.
11. The evidence of P.W.7, namely, Said Rasool and Muhammad Nisar (P.W.8) is also not worthy of credence as it is not in conformity with the ocular account furnished by the complainant. Rather these witnesses had contradicted her on material particulars. P.W.7, Said Rasool, stated that he came to know about the occurrence at 3-00 p.m. At his village, without disclosing the source of information of the news and he rushed to the spot. There the complainant was all alone sitting in the Baithak along with the dead body of the deceased, meaning thereby that the complainant Mst.
Salam Bibi was waiting for the arrival of P.W.7, Said Rasool to accompany her to the Police Station for lodging the report and, but for his arrival after over four hours of the occurrence, the report could have been further delayed. The statement of P.W.8, Muhammad Nisar also does not appeal to reason. He alleges to have heard 5/6 fire shots and saw the respondent along with co-accused Sanaullah armed with Kalashnikovs running away and he was at a distance of 60/70 paces from the spot Baithak, but he made no inquiry from the inmates of the Baithak. Moreover, he admits in his cross-examination to have crossed the Baithak, but did not hear any hue and cry from the said Baithak. Thus it can safely be presumed that either he did not pass by the side of Baithak and for that matter he did not see the accused running away from the spot or Mst. Salam Bibi was not present inside the Baithak, because there were no cries coming from the Baithak. Secondly, Said Rasool, P.W.7 in his cross-examination stated that when he arrived at the spot, P.W.8 Muhammad Nisar was already present over there. Still Muhammad Nisar having, allegedly, seen the accused running from the place of occurrence did not bother to inform the complainant about the same or else; the complainant would have mentioned such fact while making her belated report before .The police. It goes without saying that Muhammad Nisar lastly recorded his statement under section 161, Cr.P.C. After 10-days of the occurrence, which by itself is sufficient to create doubts in his evidence.
12. There is another lacuna in the case of the prosecution. The complainant had alleged that the deceased was fired at by two persons with Kalashnikovs and five empties of the same calibre were recovered from the spot but these empties were not sent to the Fire Arms Expert to ascertain as to whether these were fired from one weapon or more. This laxity on the part of the prosecution adversely affects the complainant's version.
13. With regard to the motive, the complainant had alleged the occurrence to be the result of previous blood feud between the parties. That being so and motive being termed as the proverbial double edged weapon, the probability of substitution for the real culprits or false implication cannot be ruled out.
14. So far as the abscondence of the accused/respondent soon after the occurrence is concerned, it is an established principle of criminal law that abscondence simplicitor cannot be made basis for recording conviction of an accused when the ocular and circumstantial evidence is not confidence-inspiring.
15. As such, there are material contradictions and lacunas in the prosecution evidence due to which the case falls to the ground. No illegality or infirmity has been pointed out in the impugned findings of the Court below, so as to warrant interference therein by this Court and the same is accordingly maintained.
16. In the case reported as Ghalam Sikandar and another v. Mamaraz Khan and others (PLD 1985 Supreme Court 11), the honourable Supreme Court of Pakistan has laid down the principles attracted to appeal against acquittal in the following manner:-
(i) 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 the court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement 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 below confirmed the assumption of innocence.
(ii) 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) received such evidence illegally.
(iii) In either case, the well-known principles of re appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the court belove. 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 observance of some higher principle as noted above and for no other reason.,
(iv) The 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 conclusion and irresistible conclusions; 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".
17. Thus by now it is settled law that when an accused is acquitted by a competent Court of law after facing the agonies and ordeal of a protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate Court unless it is established through cogent and tangible evidence available on record that such acquittal is fanciful, erroneous or has resulted into grave miscarriage of justice. Reliance is this respect may also advantageously be placed on the dicta handed down by the august apex court reported . In 2004 SCM R 249, head note(b), 2009 SCM R 288 and 2009 SCM R 946.
18. As a corollary to what is discussed above, we find no substance in this appeal which is hereby dismissed.