' ROOH-UL-AMIN KHAN, J.---This appeal is directed against the judgment dated 28-1-2009, passed by Additional Sessions Judge-III, Bannu whereby he acquitted respondent-accused Asghar Ali in case F.I.R. No,782, dated 27-10-2006, registered under sections 302/324/337F(iv)/34, P.P.C. At Police Station City Bannu.
2. The prosecution case as divulging from the contents of F.I.R,_ registered on the basis of murasila is that on 27-10-2006 at 1950 hours, complainant Fayaz Ali along with his brother Iftikhar Ali, Asghar Ali Shah, Tajdar and Bakhtiar was present in his Baithak. At 1950 hours, accused Hazarat Ali, Kiramat Ali, Tayyab and Asghar Ali, came there, duly armed with Kalakovs and opened fire at them from the door of the Baithak with intention to commit their murders. Accused Hazrat Ali, also entered the Baithak and fired at his brother Iftikhar with which he was hit while from the firing of other co- accused complainant and his companions Asghar Ali and Bakhtiar Ahmad sustained injuries. After commission of the offence, the accused decamped from the spot. After some time, the police reached the spot in an official vehicle, who shifted the injured to DHQ Hospital Bannu, but injured Iftikhar Ali succumbed to the injuries while complainant reported the occurrence in injured condition in DHQ Hospital Bannu. Motive as' stated by complainant was an issue on payment of money. In addition to the complainant, the other injured P.Ws. Are stated to have been witnessed the incident.
3. On completion of investigation, challan was submitted against the accused in the trial Court, where he was summoned and charge sheeted to which he pleaded not guilty and claimed trial.
The prosecution in support of its case examined twelve witnesses. After closure of the prosecution evidence, statements of the accused under section 342, Cr.P.C. Were recorded where he denied the prosecution allegations and professed this innocence. He, however, wished to be examined on oath under section 340(2), Cr.P.C. But declined to produce evidence in defence.
4. We have heard the respective submissions of the learned counsel for the parties and have perused the record thoroughly with their valuable assistance.
5. In this incident one Iftikhar Ahmad, brother of the complainant Fayaz Ali, has been done to death allegedly by the firing of co-accused Hazrat Ali while complainant Fayaz Ali and his companions Asghar Ali, Tajdar and Bakhtiar have received firearm injuries on their persons due to alleged firing of co-accused Tayyab, Kiramat and present respondent-accused Asghar Ali. As is evident from the contents of First Information Report, in addition to the complainant, injured P.Ws. Have also stated to have witnessed the incident. Record reveals that except injured Bakhtiar Khan, the other two injured P.Ws. Have been abandoned by the prosecution for no good reason which amounts to withholding of best evidence. Thus, in the attending circumstances, by virtue of Article 129(g) of the Qanun-e-Shahadat Order, 1984, it can be inferred that had the abandoned P.Ws. Been produced, they would have not supported the version of complainant. In this respect reference can be made Master Muhammad Saddique's case (2003 M LD 1774).
6. The case of the prosecution mainly hinges on the testimonies of complainant Fayaz Ali and P.W.
Bakhtiar. Complainant is real brother of the deceased and inimical towards the accused. It is consistent view of the apex Court from which no departure can be made on any occasion that testimony of such witness must get corroboration through corroboratory evidence which shall come from unimpeachable source. Moreso, keeping in view the close relationship of the complainant with the deceased being his real brother, which in local parlance is blood relationship, his status cannot be excluded from the category of interested witness and in the circumstances the rule of corroboration in case of interested witnesses is not an inflexible rule. Such rule can be dispensed with in appropriate cases. In order to bring the case out of the scope of general rule, the evidence of an interested witness is to be scrutinized with great care and caution. Firstly, truthfulness of such witness is to be tested on the touchstone of the inherit merit of his statement and, secondly, if his statement is found reasonable, probable or plausible, and reliable then the same can be accepted and relied upon without corroboration. Reliance is placed on Sajjad Ali's case (2007 MLD Peshawar 613).
7. While appearing as PW.14A, complainant Fayaz Ali reiterated the contents of his report, however, in the cross-examination certain dishonest improvement have been made by him just to bring in line his story with the medical evidence and other circumstances of the case. He has not stated in his report that the deceased was fired at from his back but after autopsy on the dead body of the deceased, when the complainant came to know that the injuries are on the back of the deceased, he in his Court statement just to bring in line his testimony with the medical evidence, stated that the deceased was fired at from his back. Moreover, has not stated about their gathering, in the Baithak, on the night of occurrence in respect of discussing the visit of injured P.W. Tajdar, who allegedly was proceeding to Hajj and that as his deceased brother Iftikhar used to deal in Hajj and Umrah business, therefore, Tajdar had come to seek guidance from him and in this regard some maps of Macca and Madina were given to Tajdar by his brother, and at the time of incident, they were busy in discussing and looking at the said maps. Moreover, neither any such map has been taken recovered by the Investigating Officer during spot inspection nor produced by the complainant. Similarly, the complainant has not stated about enlightening of electric bulbs in the bathroom of Baithak, street etc. But he improving his statement have stated about all these things which amounts to dishonest improvements. The complainant has admitted arrival of police at the spot, soon after the occurrence, but no report has been made by him at the spot rather as is evident from the record, the report has been made in DHQ hospital. The complainant has not stated about arrival of Ghulam Rabbani A.S.-I., the author of murasila, to the spot rather according to him, he reached hospital where he lodged report. Ghulam Rabani A.S.-I. Appeared as PW.3A, who is author of the report. He in his examination in chief says that on getting information he proceeded to the hospital where Fayyaz Ali reported him about the occurrence at 20.30 hours and he recorded his report in the shape of murasila but in cross-examination he while contradicting his own version stated that information in the present case was conveyed to him when he was present at Miryan Gate Bannu City on wireless, whereafter he proceeded to the spot where he found the injured which were shifted by him to the hospital in his mobile van. The complainant, has not stated a single word about visit of said Ghulam Rabani to the spot and then their shifting to the hospital.
Contrary to above, Azad Khan FC who had escorted the dead pody of the deceased Iftikhar deposed that the co-villagers had brought the dead body of Iftikhar and injured and the local police of Police Station reached the casualty after about 30 minutes of their arrival. All these contradictions in the testimonies of the P.Ws. Create serious doubts about the occurrence that the same has not been taken place in the mode and manner as alleged by the complainant.
Admittedly, once a witness is found telling lie on one material aspect of the case, then, ordinarily he/she should not be believed with regard to the other aspect of the case, unless the testimony given is fully corroborated by strong independent corroboration, which is lacking in the instant case. The role of firing at the deceased Hazarat Ali has been specifically attributed to co-accused Hazarat Ali, who had been convicted by the trial Court by his appeal has been allowed and he has been acquitted by this Court by disbelieving the prosecution evidence. A general role of firing has been attributed to present respondent-accused at the injured P.Ws. But not an iota of evidence has been brought to prove that the injuries on the persons of the injured were the result of the firing of the respondent-accused. The injured P.W. Bakhtiar has not supported the version of the prosecution. He has also contradicted the statement of the complainant on material aspects of the case. Both, the complainant and P.W. Bakhtiar have failed to prove the individual participation of each accused in the crime. Admittedly, both have sustained injuries and their presence cannot be doubted at place of the incident but the question would be as to whether they are truthful or otherwise because merely the injuries on the persons of the P.Ws. Would not stamp them as truthful witnesses. From the evidence of the complainant and P.W. Bakhtiar, no implicit reliance can be placed on their evidence when two other injured P.Ws. Shown in the F.I.R. Have not been examined in support of prosecution case.
8. The ocular evidence is also in contradiction with medical evidence. No crime empty has been recovered and taken D into possession from the place assigned to the respondent-accused in the site plan. It is settled law that primarily the prosecution is bound to establish guilt of the accused E beyond shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the. Court to draw conclusion; whether the prosecution has succeeded in establishing accusation against the accused or otherwise; and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and held the accused for acquittal. It is well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any rcasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused. In this regard reference can be made to case titled, "Tariq Pervaz v. The State" (1995 SCM R 1345). The same principle has been reiterated by Hon'ble Supreme Court in "Muhammad Akram's case" (2009 SCM R 230).
9. The only evidence against the respondent-accused is his abscondence, but the prosecution cannot take any premium from abscondence of the accused when eyewitness have not established their presence at the spot and their testimony has been disbelieved being full of doubts and material contradictions. Mere abscosion is not a conclusive proof of guilt of 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 abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case. No doubt, abscondence is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence. In this respect reference can be made to case titled "Rohtas Khan v. The State" (2010 SCM R 566), "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).
10. Apart from above, Moreso, this is appeal against acquittal and standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction.
Marked difference exists between appraisal of evidence in appeal against conviction and in appeal against acquittal. Appraisal of evidence, in appeal against conviction is done strictly and in appeal against acquittal such rigid method of appraisal is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. Scope of appeal against acquittal of accused is considerably narrow and limited. Unless the judgment of acquittal is perverse, completely illegal and on perusal of evidence, no other decision could be given except that accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. High Court is always slow in exercise of jurisdiction under section 417, Cr.P.C.
Unless it finds that gross injustice had been done in administration of criminal justice. It is settled law that the appellate Court while dealing with acquittal order had to exercise jurisdiction cautiously because the acquitted accused enjoys double presumption of innocence, the one available to him before conclusion of the trial and the second after the verdict of acquittal in his favour. While Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal, unless it is found to be arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondents/accused by extending him benefit of doubt, after proper appraisal of evidence to which no exception can be taken.
11. Resultantly, this appeal being devoid of force is hereby dismissed.