' SARDAR ABDUL HAMEED KHAN, J.---This appeal has been directed against the judgment of Additional District Court of Criminal Jurisdiction Dudyal dated 28-5-2013, whereby the learned trial Court has acquitted the accused-respondent by giving him the benefit of doubt.
2. On this appeal notices were issued to the accused-respondents but it has been reported by the process serving agency that the accused could not be traced out. Today the report has been exhibited by the learned A.A.-G. And the case has been heard in absentia.
3. The facts briefly stated are that a case under FIR No, 106/2010 dated 28-6-2010 for the offences under sections 302/452, APC and 13/20/65 of the Arms Act was registered against the accused- respondent at Police Station Dudyal on the complaint of Muhammad Rasheed. The accused- respondent was apprehended. After completion of usual investigation, the challan against the aforesaid accused was submitted before Additional District Court of Criminal Jurisdiction Dudyal on 24-2-2011. The accused was examined under sections 242/ 265-D, Cr.P.C. But he denied the crime and pleaded not guilty. After that the prosecution was ordered to produce evidence. The prosecution got recorded evidence of 12 prosecution witnesses out of 15. After that the accused was examined under section 342, Cr.P.C. And he denied the guilt and claimed that he is innocent.
The learned trial Court after hearing the arguments of the learned counsel for the parties, acquitted the accused- respondent from the charge by giving him the benefit of doubt and declared that the prosecution has not proved his case, hence, the above titled appeal for reversal of the same.
4. Sohbat Ali Sarfraz, the learned Assistant Advocate General appearing on behalf of the State submitted that impugned judgment passed by the trial Court is against the law and facts of the case. The learned A A.G further maintained that the prosecution has proved his case through, credible and cogent evidence but the learned trial Court has illegally acquitted the accused- respondent from the charges by giving him the benefit of doubt. The learned A.A.G contended that the respondent is involved in a heinous crime and snatched the life of an innocent person in a brutal manner. It is further contended by the learned A.A.G that the judgment is the result of misreading and non-reading of evidence. The A.A.G further contended that the trial Court has not appreciated the evidence in its true perspective brought on record by the prosecution and arrived at wrong conclusion. Finally, the A.A.-G. Prayed that by accepting the appeal, the impugned judgment passed by Additional District Court of Criminal Jurisdiction Dudyal may be set-aside and accused-respondent may be punished in accordance with law. It has been forcefully argued by the learned A.A.-G. That the accused/ respondent has not appeared before the Court and has left the territorial jurisdiction of this court to defeat the process of law and only on this score the accused warrants conviction in the alleged offences and prayed for acceptance of the State appeal against impugned acquittal order.
5. Nobody appeared on behalf of respondent thus, no arguments have been advanced on his behalf, therefore, need not to be discussed.
6. We have heard arguments of the learned State Counsel and gone through the record of the case with due care.
7. The prosecution case, according to the FIR, is that the complainant is a Mason. On 28-6-2010, in routine he went on work in village Samloth. His wife and children were present at home. At about 1:00 p.m., his son Ali Ahmed told him on telephone that Muhammad Arshad son of Asghar R/o Lahore came to his house at 12:30 p.m. And murdered his wife, Mst. Sumera Bibi with knife by cutting her throat. On this information, the complainant came to his house and saw that his wife was lying dead in the room. The motive behind the occurrence was that Muhammad Arshad accused brought her from Gujranwala she did not marry with him and she contracted marriage with the complainant, due to which accused killed her. On this report a case under sections 302, 452, APC was registered against him and the challan in the aforesaid offences was presented before the trial Court. The accused was examined under sections 242/265-D and 342,Cr.P.C, who denied the guilt. Fifteen Prosecution witnesses were cited in the calendar of challan out of which 12 witnesses got recorded their statements. The learned trial Court after hearing the learned counsel for the parties acquitted the accused-respondent by giving him the benefit of doubt.
8. Now, We have to see whether in the light of recorded evidence, the prosecution has established its case or there is any probability of conviction of the accused-respondents?
9. We have gone through the evidence of Muhammad Rasheed complainant simply deposed in his statement that he was told by his son Ali Ahmad about the occurrence but in support of his claim, he did not produce the mobile phone or any call data. It reveals from record that there is no proof of the presence of accused before the occurrence or after the occurrence. The complainant himself stated in his statement that the accused called him from Lahore and told him that he was working in Lahore but the record of the call was also not produced by the prosecution. The complainant claimed that Mst. Sumera Bibi was his wife but in this connection he also not produce any evidence i,e, Nikahnama or any witnesses of Nikah in support of his claim. Resultantly, he could prove that the deceased was his wife.
10. It further reveals that Ali Ahmed and Rimsha, minors, were the eyewitnesses of the occurrence but the prosecution did not produce them for recording their evidence, wherefrom a C strong presumption against the prosecution may be drawn as stipulated under Article 129 illustration (g) of Qanun-eShahadat Order 1984. The same is usefully reproduced hereunder:- "Qanun-e-Shahadat Order 1984.
' Article 129-Court may presume existence of certain facts. Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case.
Illustrations.
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(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. XXXXXXXXX
11. There was nothing on record to establish that the alleged offences were committed by the accused- respondent. The statements of the prosecution witnesses, complainant, I.O. Ansar Ali and other P.Ws. Could not bring anything on record incriminating against the accused-respondent.
12. In all the above circumstances the trial Court acquitted the accused-respondent by extending him the benefit of doubt, whereas this is a case of no evidence against accused. The scrutiny of whole of-the evidence shows that there is not an iota of evidence on record against accused. In deposition of accused made under statement 265-D/242, Cr.P.C. That Sumera Bibi was his wife and he came to know about her death after the occurrence, is not rebutted by any piece of evidence.
Though the accused has not appeared before the Court but a favourable order in his absence is not prohibited under law. Moreover, once, he has been acquitted by the Court of competent jurisdiction, then, he enjoys double presumption of innocence.
13. From the screening of the record we have found that there is:--
(1) No last seen evidence of presence of accused before or after occurrence.
(2) Crime weapon has not been recovered form the person or on the pointation of the accused.
(3) Only two eye-witnesses the son and daughter of complainant have not been produced by the prosecution.
(4) The complainant was not the eye-witness and alleged that the deceased was his wife but could not prove/establish the same, hence the motive is not proved.
(5) No judicial or extra judicial confession is on record to constitute the offence alleged against the accused.
(6) It is on the record that the complainant could not prove the deceased as his wife, even during investigation, which is very important.
14. In the light of above facts and discussion, we have safely reached the conclusion that this is a case of no evidence, hence, the appeal of the state is without any substance and the accused stands acquitted for want of proof instead of benefit of doubt.
15. Resultantly, the impugned acquittal order stands confirmed with the above modifications.
16. Consequently, this acquittal appeal stands dismissed.
' Order announced. Record of the case shall be sent back.