ASSADULLAH KHAN CHAMMKANI, J.---Appellant Shahab ud Din, has called in question the legality and propriety of judgment passed by learned Additional Sessions Judge-III, Bannu dated 16-5- 2012, whereby he acquitted respondent/accused Muhammad Hasham Khan in case F.I.R. No,206 dated 25-5-2010, registered under section 302/34, P.P.C. At Police Station Cantt. Bannu.
2. On 25-5-2010 at 0850 hours, complainant Shahab ud Din, in company of dead body of his father, reported to Ghulam Farid Khan inspector, in emergency of DHQ Bannu that on the fateful day, at morning, in order to serve tea to their bodyguard Raqibullah, his father Saif ur Rehman was on the way to Baithak along with Tea pot/Thermos and teacups while he was following him. After coming out of the house and covering some distadce, at about 0715 hours, accused Hashim Khan and Fakhar Alam, duly armed with Kalashnikovs already present there, on sighting his father, opened fire at him with intention to do him away, resultantly, he was hit. In order to save his life, his father run towards his house, but fell on the ground and succumbed to the injuries on the way to hospital.
No motive for the occurrence has been disclosed by the complainant in his report.
3. On arrest of the accused/respondent and completion of investigation, challan was submitted against him before the trial Court, where he was charge sheeted to which he pleaded not guilty and claimed trial. To bring home the guilt of accused/respondent, prosecution examined nine witnesses. After close of the prosecution evidence, statement of the accused/respondent was recorded under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He, however, wished to be examined on oath under section 340(2), Cr.P.C. And as such his statement under section 340(2), Cr.P.C. Was recorded. On conclusion of trial, the learned trial Court, after hearing both the sides, acquitted the respondent/accused. Hence, this appeal.
4. Learned counsel for the appellant was heard at length and record perused with his valuable assistance.
5. The ocular account of the incident has been furnished by Shahab ud Din (P.W.7), a solitary witness, who is not only complainant of the case but being the real son of the deceased is closely related to him. In the circumstances, it is a consistent view of the superior Courts 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. No doubt conviction 'can be recorded on the basis, of statement of a solitary witness provided the same is trustworthy, confidence inspiring and corroborated by circumstantial evidence, because it is the quality and not the quantity of the evidence which matters in criminal dispensation of justice. On the above mentioned principles we have to evaluate the testimony of the complainant.
6. It is alleged by complainant Shahab ud Din that the occurrence took place on 25-5-2010 at 0715 which has been reported by him at 0850 hours in DHQ hospital Bannu. Haji Ghulam Farid Khan (P.W.2), who is scriber of the murasila deposed that he received information about the incident at 7-45 a.m. And reached the hospital and recorded the report of the complainant at 0850 hours, but this version of the complainant and scriber of the murasila has been totally denied by Medical Officer Niaz ud Din (P.W.6), who conducted autopsy on the dead body of the deceased. He as P.W.6 deposed that he conducted autopsy on the body of deceased Saif ur Rehman, brought by constable Nasibullah on 25-5-2010 at 0810 hours, which means that medical Officer had conducted autopsy some 40 minutes prior to report of the complainant, which create doubts in the prosecution case. Moreover, the time of occurrence i,e, 7-15 a.m. Is also in conflict with the medical evidence. Dr. Niaz ud Din (P.W.6) has given probable time that elapsed between injuries and death as 1/2 to one hour and between death and post-mortem as 3 to 3-1/2 hours. If the above- mentioned time is taken in juxtaposition with the time of occurrence as alleged by the complainant, then the time of death of the deceased is much prior to the time of occurrence. The complainant has not advanced any motive in his initial report but during his Court statement in order to bring in line the occurrence with other circumstances of the case, by making dishonest improvement, disclosed a motive against the accused, but the same again has been negated by Imtiaz Khan SI P.W.8, I.O. Of the case, who in his cross-examination has categorically mentioned that he could not find any evidence regarding the motive. Besides, the conduct of the complainant that his father was taking tea to his body guard and he was following him is quite unnatural and unbelievable keeping in view the norms of our society where the elders are respected and in such like situation they are not allowed to do such acts in presence of the younger. In the site plan, the deceased has been shown as point No.1 whiles the complainant/eye-witness at point No,2. The distance inter se these two points has been shown as 3 single paces. The present accused Hashim has been shown at point No,3 i,e, at a distance of 19 and 21 paces from the deceased and complainant. Keeping in View the points of presence of the accused and that of the complainant, complainant falls in direct line of firing of the accused, but he has sustained not a single scratch what to say about the firearm in juries despite that he is alleging his presence in close proximity with his deceased father, which does not appeal to a prudent mind keeping in mind the kinds of weapons i,e, Kalashnikov allegedly the accused were having at the time of occurrence. It has been alleged by the complainant in his report that after receipt of injuries by the deceased, he arranged Datsun Pickup for shifting him to the hospital whereas in his statement he has admitted the availability of their personal motorcar in the house at the time of incident, which in the natural course of events seems quite illogical that a son whose father has been seriously injured, would opt to arrange the vehicle of strangers, in presence of his own vehicle. Nothing has been alleged by the complainant that either he did not know how to drive or that their vehicle was out of order. Keeping in view all these facts and circumstances of the case as well as material contradictions in the ocular account of the complainant, it can be safely concluded that the occurrence has not taken place in his presence, in the, mode and manner as alleged by him.
7. Apart from above, it is proved from observation of the learned trial Court, before whom the accused/respondent faced trial that he is a man of advance age with weak eye-sight and cannot walk without the help of another person. It is unbelievable that a man in such a position/health would be able to hold a Kalashnikov and make a murderous assault. The factum of weak health and advance age of the respondent has also been confirmed by Muhammad Ismail Khan S.H.O. In his statement by deposing that after arrest of the respondent/accused, he released him on his personal bond being a man of an extreme advance age and unable to walk without support of two persons.
8. In light of the above, the prosecution has badly failed to bring home the guilt of respondent/accused through direct ocular evidence and in absence of direct evidence, the circumstantial evidence in the shape of recovery of blood from the spot, bloodstained garments of the deceased, FSL report etc. Being corroborative pieces of evidence would be of no help to the prosecution. So far as abscondence of the accused is concerned. The prosecution cannot seek support from factum of abscondence of accused when eye-witness has not established his presence at the spot and his testimony has been disbelieved being pregnant of doubts and suffering from material contradictions. Mere absconsion is not a conclusive proof of guilt accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. The same cannot take the place of proof. 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. Mere abscondence of accused could not be made the basis for his conviction.
Reference in this regard may be made to cases titled "Rohtas Khan v. The State" (2010 SCMR 566), "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).
9. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but, as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that "it would be better to acquit hundred culprits than convicting one innocent soul." Which has now been transformed into the form of the principle that, "acquitting by error would be better than convicting by error". The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice.
10. It is also a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. 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 respondent/accused by extending him benefit of doubt, after proper appraisal of evidence to which no exception can be taken.
11. For what has been discussed above, this appeal being without any substance stands dismissed in linine.