' ROOH UL AMIN KHAN, J.---This appeal is directed against the judgment/order dated 15-2-2012, passed by the learned Additional Sessions Judge-II, Bannu, whereby respondents-accused Eid Marjan and Muhammad Ayaz, have been acquitted from the charges levelled against them, in case F.I.R. No.235, dated 15-12-2007, registered under sections 324/427/34, P.P.C., at Police Station Domel, District Bannu.
2. The prosecution case as unfolded in the F.I.R., registered on the basis of murasila is that, on the fateful day complainant Shahid Ullah along with his father was ploughing his field with a Tractor near his house. The Tractor was being driven by him, while his father was standing near. At 0730 hours, Zarin, Dawa Khan (acquitted co-accused) and accused-respondents Muhammad Ayaz and Eid Marjan, duly armed with Kalashnikovs, came there and opened fire at them with intention to do them away, as a result, complainant was hit while his father luckily remained unscathed. Due to firing of the accused, damage to the Tractor has also been alleged. Besides the complainant, the occurrence is stated to have witnessed by his father. Motive is stated to be a dispute over landed property. The complainant was shifted to RHC Domel, where he lodged report.
3. On completion of investigation, challan was submitted against the accused-respondents before the trial Court, where they were summoned and formally charged to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined twelve witnesses. After close of the prosecution evidence, respondents-accused were examined under section 342, Cr.P.C., wherein they denied the prosecution allegations and professed their innocence. They, however, neither wished to be examined on oath as their own witnesses under section 340(2), Cr.P.C., nor opted to produce evidence in defence. On conclusion of trial, the learned trial Court, after hearing both the sides, acquitted the respondents-accused, hence, this appeal by the complainant against their acquittal.
4. I have given my anxious consideration to the respective submissions of the learned counsel for the parties and have gone through the record with their valuable assistance.
5. In the present occurrence, the accused-respondents along with their acquitted co-accused are charged for attempting at the lives of the complainant Shahid Ullah and his father by firing at them, with their respective Kalashnikovs, as a result, complainant sustained injury on his left flank having its exit on right side back. All the accused have been given role of firing without assigning the fatal shot to any of them. As per medico legal report of the injured, he has sustained a solitary firearm injury. In the circumstances, the moot question for determination would be as to whether the present respondents-accused alone, can be saddled with the liability of fatal shot on the same set of evidence which has already been disbelieved by the trial Court in earlier trial of acquitted co-accused?
6. Shahid Ullah injured (P.W.7) and Mir Adam Khan (P.W.8), his father, have furnished the ocular account of the incident. As stated earlier co-accused Zarim and Dawa Khan, whose role is identical to that of the present respondents-accused, have already been acquitted by the trial Court vide order dated 21-10-2010, and the ocular account of the above named witnesses has already been disbelieved, which findings of the trial Court, have attained finality because the complainant party has not challenged the same by filing any appeal. Thus, in the circumstances, the testimony of the complainant and his father Mir Adam Khan regarding another set of accused i.e. The accused- respondents is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In cross- examination, the complainant injured has stated in unequivocal words that he cannot tell that from whose firing he was hit. Moreso, in the site plan, complainant has been shown at point "A" while his father (P.W.8) at point "1". Distance inter se these two points has been given 4 paces. At points Nos.2 to 5, the presence of accused has been shown. Keeping in juxtaposition the places of the two parties, the complainant party fell in direct range of the firing of accused, but it seems very strange that complainant has received a solitary injury while his father, Adam Khan (P.W.8) the alleged eye-witness, who was at a distance of 4 paces from the injured complainant, has not received a single scratch, which creates doubt about his presence, on the spot at the time of incident. The ocular, account furnished by injured complainant is belied by his Medico-legal Report and the site plan. In his cross-examination injured P.W. Stated that at the relevant time of incident he was going towards the Eastern side and was about to turn towards his left, when he was fired at and was hit. According to site plan, acquitted co-accused Dawa Khan and present respondent-accused Eid Marjan have been shown towards the West of the complainant. If the stance of the complainant is considered true, then his hitting from the Western side is not corroborated by the medico legal report, wherein an entry wound is shown on his left flank having its exit on right side back. P.W.8 Mir Adam Khan, who being real father of the accused, is interested witness, has not corroborated the statement of the complainant on material aspects of the incident. Both have contradicted each other on material particulars. Their testimonies are not consistent with each other and do not inspire confidence.
From the testimonies of both the alleged eye-witnesses, it can be gathered that the occurrence has not taken place in the mode and manner as alleged by them. Rather, they have suppressed the actual facts and have not come with clean hands. None of them have stated a single word to saddle the respondents-accused for the single fatal shot. There are also contradictions about the time of medical examination of the injured complainant and time of report. According to P.W.1 Bashir Khan ASI handed over him injury sheet of the injured complainant at about 0730 hours whereas 0370 hours is the time of incident while the time of report is 0840 hours, then how the injury sheet had been handed over to P.W.1 at 0730 hours, which creates serious doubts. The doctor who examined the injured has given 0825 hours as the time of examination of the injured. All these circumstances point towards preliminary investigation before registration of the case. Admittedly in hurt uses, statement of injured witness, supported by medical evidence, is sufficient for recording conviction, provided it rings true and is trustworthy, in, view of its intrinsic worth. Mere stamp of injuries on the person of a witness would not be a proof of the fact that, whatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise. It is well settled principle of law that for recording conviction strong and corroborative evidence of unimpeachable character is required. It is golden principle of criminal justice that finding of guilt against accused must not be based on probabilities to be inferred from evidence. Such findings must rest surely and firmly on the evidence of unimpeachable character, otherwise, the golden rule of benefit of doubt would be reduced, to naught. Absolute certainty is seldom in forming an opinion qua guilt or innocence of a person. The Courts by means of proper appraisal of evidence must be vigilant to dig out truth of the matter to ensure that no injustice is caused to either party. Thus, every human narration is always susceptible to be checked on the touchstone of circumstances as well as with reference, to a normal human conduct. The ocular evidence furnished by both complainant and his father Mir Adam Khan, is inconsistent and incompatible with other circumstances of the incident.
7. The circumstantial evidence in the shape of recovery of blood from the place of the injured, his bloodstained garments and recovery of crime empties, in absence of direct evidence of unimpeachable character would hardly be sufficient to prove the guilt of the accused, because the crime weapon has not been recovered either from direct or indirect possession of the respondents-accused. In the circumstances, mere recovery of empties is of no help to the prosecution in ease of non-recovery of crime weapon, and its comparison by the FSL with the crime empties. The recovered crime empties would only show that complainant sustained a fire- arm injury and the assailant left behind the empties but it does not carry the printed name of the assailant, therefore, the evidentiary value of the crime empties has diminished to considerable extent and cannot be used as incriminating article or evidence against the accused-respondents.
8. As regard abscondence of the respondents-accused, the prosecution cannot seek support from factum of abscondence of accused when eye-witnesses have not established their presence at the spot and their testimonies have been disbelieved being pregnant of doubts and suffering from material contradictions. Mere absconsion 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. Reliance placed on case titled "Rohtas Khan v. The State" (2010 SCM R 566), "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).
9. For what has been discussed above, learned counsel for the appellant failed to appoint out any infirmity in the impugned judgment or any misreading or non-reading of evidence which may warrant interference of this Court in its appellate jurisdiction. Resultantly, this appeal being devoid of force is hereby dismissed.