' MALIK MANZOOR HUSSAIN, J.---This common judgment will dispose of Criminal Appeal No, 125 of 2008 and Criminal Appeal No,635 of 2009. The Criminal Appeal No,125 of 2008 under section 417(2)
(a), Cr.P.C. Arises out of the judgment dated 10-3-2008 of the learned Additional Sessions Judge, Lahor District Swabi whereby accused-respondent, Hamesh Khan was acquitted of charges in case F.I.R. No,353 dated 19-11-2002 under sections 302/324/34, P.P.C. Police Station Yar Hussain, District Swabi Criminal Appeal No,635 of 2009 under section 417(2)(a) arises out of judgment dated 21-11-2009, of Additional Sessions Judge, Lahor, District Swabi whereby Gul Dad and Hirad Khan son of Guldad in sessions case No,33 of 2008, were acquitted.
2. Brief facts of the prosecution case, as narrated by complainant/appellant, Siyar Muhammad P.W.2, are that on 19-11-2002, he along with deceased Siyar Khan, Ijaz P.W.5 and other persons were present in their baithak, in the meanwhile Guldad son of Akraml Hamesh Khan and Hirad Khan (acquitted accused) sons of Guldad suddenly came and started firing at Siyar Khan, as a result thereof Siyar Khan (deceased) got hit and died on the spot. Beside Ijaz P.W.5, occurrence was witnessed by other persons present there. Motive behind the occurrence Was stated partition of landed property. All the three acquitted accused were charged for the murder of Siyar Khan by the complainant/appellant.
3. Aziz Gul, ASI, who recorded the report in the shape of F.I.R. Exh.PA, also recorded the report of injured Zarshad, in Yar Hussain Hospital, on the same day, at 15.50 hours, to the effect that he is watchman at G.G.P. School, Kareem, Abad Jaganath and after usual duty, he was proceeding to his village, in the meanwhile he received a bullet on back of his right shoulder in Bazar Yar Hussain due to which he sustained injury. Subsequently he came to know that the injury was caused due to firing of Hirad Khan, Hamesh Khan sons of Guldad, who were firing at deceased Siyar Khan. Further stated that he had no against accused. Later on, on 3-12-2012, statement of injured Zarshad was recorded by Gul Khan, ASI, wherein, it was claimed that he was hit by a stray bullet and not ready to charge any one. After usual investigation challan against the accused for purpose of proceeding under section 512, Cr.P.C. Was submitted and after close of prosecution evidence within requirement of section 512, Cr.P.C. All the acquitted accused namely, Gul Dad, Hirad Khan and Hamesh Khan were declared proclaimed offenders through order dated 25-5-2005 in sessions case No,122 of 2004.
4. On 14-12-2006, acquitted accused Hamesh Khan was arrested; his supplementary challan was put in court and after closing of prosecution evidence, he was acquitted of charges vide judgment dated 10-3-2008, in sessions case No,15/SC of 2007.
5. On 20-12-2008, acquitted accused Hirad Khan and Guldad were arrested, their supplementary challan was submitted and after closing of prosecution evidence, both were acquitted vide judgment and order dated 21-11-2009, in sessions case No,33/SC of 2009.
6. Against acquittal order dated 13-8-2008 of Hamesh Khan accused/respondent, Appeal No,125 of 2008 was filed, while against acquittal order dated 21-11-2009 of Hirad Khan and Guldad accused/respondents, Appeal No,635 of 2009 was filed by the appellant/complainant. As both appeals arise out of one F.I.R. And having common questions of law and facts are involved, therefore, we intend to dispose of the same through this single judgment.
7. Prosecution in order to prove its case examined 13. Witnesses in sessions case No,15/SC, while 9 witnesses in sessions case No,33/SC. Thereafter the prosecution closed its evidence and recorded statement of accused under section 342, Cr.P.C.
8. P.W.1, Dr. Bukht Jamal deposed that on 19-11-2002 at 2-20 p.m., he examined injured Zarshad aged about 50 years, brought by police and found the following:-- "(1) Fire arm entry wound size 1/4" x 1/4" on the front of right shoulder.
(2) Fire arm exit wound size 1/2" x 1/2" on the back of shoulder. X-rays show fracture elavicle.
' .Nature of injury:- Jurh Ghayr Jaifah Hashimah.
' Kind of weapon:- Fire arm.
' He exhibited medico legal report as Exh.P.W.1/1 and also endorsed the injury sheet Exh,P.W.1/2."
' On the same day at 2-45 p.m., he conducted autopsy on the dead body of deceased Siyar Khan aged about 40 years resident of Yar Hussain brought by police and found the following:--
(1) Fire arm entry wound size 1/4" x 1/2" on front of left side chest above nipple.
(2) Fire arm exit wound size 1" x 1/2" on the left buttock.
(3) Fire arm grazing wound size 1" x 1/4" on the right side skull.
' Thorax.- Walls, ribs and cartilages, pleurae, left lung, pericardium and heart, and blood vessels injured.
' In his opinion the death was occurred due to injury to heart, lungs and vital organs.
' Duration between injuries and death of instantaneous while between death and PM examination was within six hours."
' P.W.2 Siyar Muhammad son of Dost Muhammad deposed that deceased Siyar Khan was husband of his sister and P.W. Ijaz was not related to them. On the eventful day, he was present in Baitak of Siyar Khan deceased while deceased Siyar Khan and P.W. Ijaz were standing in front of him in the gate of Baitak, at about 3/4 paces away from him, when accused Gul Dad raised Lalkara and along with Hirat Khan and Hamesh Khan, opened indiscriminate firing at deceased Siyar Khan who was hit and died on the spot. He along with Ijaz P.W. Put the dead body on a cot and through a Datsun Pick-up shifted him to Police Station, where the report was lodged. The motive behind the occurrence was stated to be a dispute over partition of land. P.W.3, Subedar FC, executed the process issued under sections 204 and 87, Cr.P.C. P.W. Shamsur Rehman FC escorted the dead body of the deceased from Police Station to RHC Yar Hussain for P.M. Examination. P.W.5 Ijaz Ahmad son of Janab Gul stated almost the same story given by P.W.2 Siyar Muhammad, however, he added that all the accused opened fire at the deceased as well as at P.W.2 Siyar Khan and himself.
P.W.6, Aziz GuI Khan, SI recorded the report in the shape of F.I.R. Exh.P.A. He also prepared the injury sheet and inquest report and thereafter sent the dead body to the mortuary for PM examination. He took into possession blood stained earth brought by Shamsur Rehman FC. P.W.8 Salar Khan, SI stated that during the relevant time he was posted as SI in Investigation Branch. He deposed that after arrest of acquitted accused, their custody was granted to him. He recorded statements of P.
Ws and accused under section 161, Cr.P.C. P.W. Ajab Khan son of Aqal Shah is witness to the recovery memo. Through which the I.O. Recovered blood stained earth from the place of deceased.
After conclusion of prosecution evidence, statements of accused/respondents were recordd under section 342, Cr.P.C., wherein, they denied the charges and professed their innocence. All the accused opted not to be examined on oath nor produced defence evidence as required under section 340(2), Cr. P. C .
9. Learned counsel for the appellant argued that the impugned judgments of acquittal are not sustainable on the grounds that there was no delay in lodging of the F.I.R.; that ocular evidence was fully corroborated by the medical evidence; that the trial Court failed to consider in its true prospect the evidence available on record; that there was a strong motive behind the murder of Siyar Muhammad deceased; that the trial Court failed to consider cumulative effect of ocular testimony, which was sufficient to establish the guilt of acquitted respondents.
10. Conversely, the learned AAG for the State did not support the impugned judgments and argued that contradictions, if any, in the prosecution evidence are minor in nature; that ocular testimony fully support the version of complainant, which is consistent on material points and fully supported by medical evidence.
11. On the contrary, learned counsel for accused/respondents, supported the judgments of trial Court and argued that there was inconsistency between ocular testimony and medical evidence besides grave contradictions in the testimony of prosecution witnesses and keeping in view the effect of entire evidence produced bye the prosecution, the trial Court has rightly acquitted the accused/respondents.
12. Arguments heard and with the valuable assistance of counsel for the parties, record perused.
13. The prosecution case is based on the statements of complainant Siyar Muhammad, P.W.2 and Ijaz Ahmad, P.W.S. P.W.2 is complainant, who is brother-in-law of deceased and Ijaz Ahmad P.W.5 is tenant of deceased. They deposed that they were present in the baithak of deceased, where the acquitted accused appeared and opened indiscriminate firing at the deceased but surprisingly no empties were recovered from the place of crime, nor the blood recovered from the place where presence of deceased shown in site plan. The blood was found in the courtyard of baithak, at a different place. Similarly, only one entry wound of size 1/4 x 1/4 was found by Doctor on front of left side chest above nipple, while exit wound is shown on left buttock, which means there was no straight fire, which hit the deceased. We have also noticed that though, as per statement of two eye-witnesses, there was indiscriminate firing but no bullet marks, were found from inside or outside of baithak, which was obvious and natural in case of firing of three accused. Medical evidence belies the ocular testimony of eyewitnesses. Presence of these two witnesses has rightly been held as doubtful by the learned trial Court.
14. Prosecution failed to produce confidence inspiring, trustworthy and consistent evidence against acquitted accused. Presence of eyewitnesses at the spot did not appear to be confidence inspiring as they have failed to provide plausible explanation for justifying their presence at the spot, at the time of occurrence.
15. It is by now well established law that if any one reason creates reasonable doubt in a prudent mind regarding presence of witness, that alone be sufficient for discarding statement of that witness.
16. Even this is not appealable to prudent mind that three accused duly armed fired numerous shot from a close distance of 8 paces and the complainant who is empty handed and at the mercy of accused, escape completely unhurt. Medical evidence and site plan also negates the version given by eye-witnesses. No independent and dis-interested witness from locality had been produced in trial, in order to corroborate the ocular account of eye-witnesses. No credible evidence is available to support the prosecution case.
17. The learned trial Court properly thrashed the entire evidence, before passing the impugned judgments of acquittal.
18. It is well settled principle that with the acquittal, the presumption of innocence of the accused becomes double, initially that till found guilty accused is innocent and secondly that after trial a Court below confirmed the assumption of innocence. Further the consistent view of superior court is that unless ground on which trial Court had purported to acquit the accused were not supported from evidence on record or is perverse and reason given are artificial and ridiculous, Appellate Court would not interfere. Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be possible. Reliance can be places on 1983 SCMR 1992, PLD 2009 SC 53 and 2013 SCM R 565.
19. After scrutinizing and scanning entire evidence, we have reached to an unequivocal conclusion that the accused/respondents were rightly acquitted by the trial Court. It is well settled that for giving the benefit of doubt to an accused, it is not necessary that there shall be many circumstances but a simple circumstance, which creates reasonable doubt in a prudent mind is sufficient to entitle to such benefit, not as a matter of concession or grace, but as a matter of right.
' For the foregoing reasons, the impugned judgments does not require any interference, hence both these appeals being devoid of any merit are dismissed.