' MUHAMMAD DAUD KHAN, J.--Through the instant Criminal Appeal under section 417(2-A), Cr . P . C . , the appellant Gul Din has called in question the judgment dated 7-4-2007 passed by the learned Sessions Judge, Lakki Marwat whereby respondent No.1/accused namely Sard Ali alias Sardal has been acquitted in case FIR No.143 dated 12-8-2001 registered under sections 302/324/34, P.P.C. At Police Station Ghazni Khel, District Lakki Marwat.
2. The prosecution story as divulged from the FIR. Is. That on 12-8-2001, the complainant Gul Din took the dead body of his son Sher Muhammad to Police Station with the help of villagers in a Datsun and lodged the report to the effect that on the same date, he along with his son Sher Muhammad and the son of latter namely Muhammad Zaman left for village Titar Khel in his bull cart duly loaded with `guara' for selling the same in the said village. In their way, they found a band (raised ground to divert the flow of stored water). They removed the band and drove the cart. After a while when it was sunrise time, Bahadur Khan, his son Shamim Khan, Abdul Humid and Sard Ali Khan alias Sardal stood up from the band duly armed with Kalashnikovs and started firing at his son Sher Muhammad, with which he got hit and fell down. After the occurrence, the accused fled away from the spot. Motive for the occurrence was stated to be civil dispute between the parties.
3. After completion of usual investigation, complete challan against the accused was submitted before the trial Court under section 512 Cr.P.C. On arrest of the respondent/accused, supplementary challan was submitted against him. He was formally charged to which he did not plead guilty and claimed trial., In order to establish the guilt of respondent/accused, the prosecution examined nine P. Ws. Thereafter, statement of respondent/accused was recorded under section 342, Cr.P.C. He appeared in his defence and also examined Noor Azim Khan as DW-1 and Attaullah Khan as DW2. The learned trial Court after hearing the arguments of learned counsel for the parties, acquitted the respondent/accused vide impugned judgment dated 7-4-2007.
4. The learned counsel for the appellant vehemently contended that the impugned judgment is against the settled principles of criminal justice. He contended that the learned trial Court acquitted the respondent/accused on the grounds which are not supported by available record.
He went on to argue that the learned trial Court has failed to appreciate the evidence of eyewitness and medical evidence in true perspective; that the respondent/accused, remained fugitive from law for sufficient time. He further argued that the prosecution has successfully proved its case against the respondent/accused by producing cogent and confidence inspiring evidence but the learned trial Court failed to appreciate the evidence in its proper perspective and erred while acquitting the respondent/accused through the impugned judgment.
5. Conversely, the learned counsel representing the respondent/accused refuted the arguments of learned counsel for 'the appellant and defended the impugned judgment. Ile contended that the prosecution failed to establish the guilt of the respondent/accused beyond any reasonable doubt, the benefit of which has rightly been extended to him by the learned trial Court resulting in his acquittal. He contended that the impugned judgment is based on proper appreciation of facts and evidence on record and does not call for any interference by this Court.
6. We have heard arguments of learned counsel for the parties and perused the available record with their valuable assistance.
7. It is the case of prosecution that on 12-8-2001, the complainant Gul Din along with his son Sher Muhammad and the son of latter namely Muhammad Zaman left for village Jitar Khel in his donkey cart duly loaded with ' guara' for selling the same in the said village. In their way, they found a band (raised ground to divert the flow of stored water). They removed the band and drove the cart. After a while when it was sunrise time, Bahadur Khan, his son Shamim Khan, Abdul Hamid and Sard Ali Khan alias Sardal stood up from the band duly armed with Kalashnikovs and started firing at his son Sher Muhammad, with which he got hit and fell down. The prosecution case mainly hinges on the ocular account furnished by complainant Gul Din (P.W.5) and Muhammad Zaman (P.W.6), medical evidence, recovery of empties from the spot, motive and abscondence of the respondent/accused from the date of occurrence till his arrest.
8. We would first discuss the ocular evidence furnished by complainant Gul Din (P.W.5) and Muhammad Zaman (P.W.6). Both the P. Ws. Are father and. Son of deceased respectively. The complainant while appearing as P.W.5 reiterated the same story in his examination-in-chief as narrated by him in his first information report and similar version was given by Muhammad Zaman P.W.6. It is on record that the occurrence took place at sunrise time and no exact time by watch has been given. The occurrence has taken place on 12-8-2001 and the sunrise time may be 5.15/05.20 a.m. Dr. Muhammad Ishaq Khan (P.W.4) who conducted autopsy on the dead body of deceased stated that he conducted post-mortem examination on the dead body of deceased at 11 a.m. By giving the duration between death and postmortem as 04-06 hours and calculating the time of occurrence from medical evidence, it has taken place in between 5 to 7 a.m. If it is taken from 7 a.m. Or 6 a.m. Then the time given by the eye-witnesses would not be correct. Gul Din complainant stated during his cross-examination that they reached to the police about 09.15 a.m. And does not.
Know the time of departure to the police station because he was having no watch. It is astonishing to note that the time of occurrence has been given as sunrise time but he knows the time of their arrival to the police station by watch, because the report has been lodged at 09.15 hours. He categorically stated during cross-examination that he cannot read watch. He also admitted during cross-examination that he cannot say specifically that from whose fire shot, his deceased son, got hit. He stated that after the occurrence, PW Abdur Rehman also attracted to the place of occurrence in a Datsun Pick-up and the dead body was taken to, the police in the Datsun of Abdur Rehman. Muhammad Zaman (P.W.6) stated in his examination- in-chief that, "thereafter Datsun was arranged by the co-villagers and dead body was taken to the Police Station where our grandfather lodged the report." This witness has not given the time of occurrence in his statement.
He stated during cross-examination that at about sunrise time PW Abdur Rehman also attracted to the place of occurrence on foot along with so many persons. After his arrival to the place of occurrence the Datsun was also brought there." This witness clearly stated during his cross- examination that "the accused had not fired at me as well as on the complainant Gul Din." Abdur Rehman (P.W.2) stated during cross-examination that "I came to know about the death of deceased in P.S. Ghazni Khel at about 09.45 a.m. I had come to the P.S. On the learning about the incident in the village. I remained in the P.S. 15 to 30 minutes and thereafter accompanied the dead body of deceased. We reached therein within 30 minutes." This witness has not stated that the dead body was taken to the police in his Datsun. Moreover, the timings given by this P.W clearly contradicts the timings given by the alleged eye-witnesses. From the above reproduced statements and portions of cross-examination of the prosecution witnesses, it appears that both the alleged eye-witnesses were not present at the spot at the time of occurrence and have not seen the respondent/accused firing at the deceased. Moreover, the occurrence has not taken place at the time given by the complainant and the mode and manner in which it is alleged. Both the witnesses being close relative of the deceased are interested witnesses and in view of material contradictions inter se their statements and the medical evidence pointed out above, their testimony cannot be relied upon for conviction of the respondent/accused on a capital charge.
The respondent/accused also recorded his statement on oath as required under section 340(2), Cr.P.C. And stated that on the day of occurrence, he offered his Fajir prayer in the village mosque with congregation, thereafter came to his house and in the meanwhile heard the fire shots and at digar-vela came to know about the murder of Sher Muhammad. In support of his plea, the respondent/accused also examined Noor Amin Khan (DW-1) and Atta.Ullah Khan (DW-2). Both the D.Ws supported the version of the respondent/ accused. Nothing favourable to the prosecution could be extracted from the mouth of D.Ws during their cross examination. Keeping in view the prosecution and defence evidence in juxtaposition, the defence plea appears to be more plausible and convincing. The honorable Supreme Court of Pakistan in the case of Bagh Ali and 4 others v.
The State (PLD 1973 SC 322) held that:-- "The High Court has unfortunately made no attempt to reconcile these apparent conflicts between the medical evidence and the oral testimony but we are of the opinion that, in the face of such glaring conflicts, the oral version of the witnesses could scarcely be relied upon, particularly since there were other contradictions too with regard to details between the testimonies of the witnesses inter se. We are also unable to agree that the witnesses were not inimical to the appellants. Having regard to their close relationship with the deceased and inter se and the previous retaliatory murders the witnesses could not be considered to be either disinterested or impartial."
9. Next piece of evidence is motive for the occurrence. Though in the FIR, motive has been alleged to be civil dispute between the parties but it has not been established during evidence by any independent evidence. Moreover, according to the investigating officer, the deceased has also enmity with other persons of the nearby village. Motive is a double edged weapon and cut both ways. In view of enmity of the deceased with other persons, the false implication of the respondent/ accused in the instant case cannot be ruled out. However, if there was motive of civil dispute between the parties, it was equally with the complainant and son of the deceased, but no. Attempt has been made at their lives which suggest that the alleged eye-witnesses were not present at the spot and were procured later on.
10. Next piece of evidence is the recovery of empties from the spot. According to Latifullah Khan SHO (P.W.7), during spot inspection, he took into possession 26 empties of 7.62 bore from the places of Bahadur Khan and Shamim Khan and 30 empties of 7.62 bore from the places of respondent/accused Sardal and Abdul Hamid alias Medo and sealed the same into two parcels through recovery memo Exh.P.W.3/2. Since the ocular testimony of alleged eyewitnesses has been disbelieved in the instant case, therefore, the recovery of empties alone is not sufficient to warrant conviction of the respondent/accused.
11. The prosecution also relied on the abscondence of the respondent/accused from the date of occurrence till his arrest on 3-4-2006. While explaining his absence, the respondent/accused stated during his examination under section 342, Cr.P.C. That "I never went in abscondence during the days of occurrence I was away from village in pursuit of my job when I came to know about the occurrence about my involvement then I tried my best to satisfy the complainant about my innocence and thereafter after necessary arrangement I surrendered before the police voluntarily." It is by now a settled that abscondence per se is nothing but a corroborative piece of E evidence. It can be taken into consideration along with other factors. But in the instant case, since the other circumstances are not sufficient to establish the guilt of the accused/respondents, therefore, abscondence alone cannot be made basis for their conviction. In this regard reliance may be placed on the case titled Muhammad Tasaveer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53) wherein it was held that:- "Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an 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 absconsion, therefore, depends on facts of each case. The courts have admitted it as supporting evidence of the guilt of accused. The absconsion of accused may be consistent which is to be decided keeping in view over all facts of the case. In the instant case, the respondents appeared before Investigating Officer of their own and they were not arrested."
' Reliance can also be placed on the cases titled Farman Ali and 3 others v. The State (PLD 1980 Supreme Court 201) and Sher Akbar v. Mst. Sajida and another (2011 YLR 1014 Peshawar).
12. Thus taking an overall view of the available record, we have observed that the prosecution version is replete with many grave contradictions which strike at the G very roots of the case. In criminal cases, it is the bounden duty of the prosecution to bring home the charge of guilt to the accused beyond any shadow of reasonable doubt which is missing in the present case.
13. It needs no reiteration thaw any genuine doubt arising out of tle H circumstances of the case should be extended to the accused as of right and not as concession. Our this view is fortified by the case titled Allah Bachaya and another v. The State (PLD 2008 SC 349) wherein it was held that:- "It is cardinal principle of criminal jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of right and not as concession."
14. Now coming to the principle laid down in connection with appeal against acquittal, we may point out that the principle is different, from appeal against conviction. Different parameters are applied for interference in an appeal against acquittal and appeal against conviction. Double in the case of acquittal. The Presumption of innocence of the accused is I appellate court would not interfere unless the conclusion reached by the court below is not supported by the evidence on record, or is fanciful and perverse. Wisdom in this regard may advantageously be sought from the case titled Mohammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD '2009 SC 53) wherein it was held that:-- "Needless to emphasize that when an accused person is acquitted I from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others (2003 SCMR 477) "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading, non-reading of evidence law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonable possible."
' Reliance in this respect may also be placed on 2009 SCM R 288 and 2009 SCM R 946.
15. Keeping in view the above principle as well as the facts on record, no case is made out by the appellant for reversal of the impugned judgment of acquittal. Resultantly, the instant criminal appeal being devoid of any substance is j hereby dismissed.