' MUHAMMAD YOUNIS THAHEEM, J.---This appeal under section 417(2-A), Cr.P.C. Is directed against the judgment dated 27.10.2009 of the learned Additional Sessions Judge-11, Lakki Marwat, whereby respondent-accused Haji Muhammad Aslam alias; Gul Haji has been acquitted of the charge leveled against him in case FIR No. 145 dated 13.5.2000 under section 302, P.P.C. Registered in Police Station Serai Naurang, District, Lakki Marwat.
2., According to contents of the report lodged by complainant Riaz Ahmad Khan son of Haji Zar Gul Khan (brother of deceased), reduced into writing in shape of Murasila based on FIR referred to above are that on the eventful day and time he along with hisbrothers namely Bashir Ahmad, Shabir Ahmad and Faheem Khan sons of Muhammad Saleem resident of village Samander were sitting on chairs in front of the shop of Majeed Khan, Arms Dealer situated in Bus Stand Serai Naurang when at about 1145 hours, Haji Gul Aslam alias Gul Haji son of Nabi Khan resident of village Qulli Khan, armed with DB shot gun came from the Southern side and started firing at his brother Bashir Ahmad, as a result of which he was hit, fell down from the chair and breathed his last after a while; that the complainant, being empty handed could do nothing. The accused decamped from the spot. No motive was stated except money dispute. He charged the accused for the commission of the offence as mentioned in the FIR.
3. Initially accused Haji Muhammad Aslam remained in abscondence and did not surrender before the police during the investigation. As such, Challan under section 512, Cr.P.C. Was submitted against him, however, on 20/9/2009, he appeared before the court of learned Sessions Judge, Bannu by moving his BBA petition but his pre arrest ad interim bail was not confirmed on 20/01/200(sic.), hence was arrested by the local police. His card of arrest was prepared and after ,completion of investigation, supplementary challan was put in court on 19/2/2009 for trial against him. He was summoned through Zamima Bey, and was produced in custody. Requirements of section 265-C, Cr.P.C. Were complied with against him. The accused was formally charge-sheeted, wherein he did not plead his guilt and claimed trial. Prosecution in order to prove guilt against the accused/respondent produced and examined as many as (11) witnesses. On close of prosecution evidence, statement of accused under section 342, Cr.P.C. Was recorded, wherein he denied the allegations leveled in the charge sheet and professed his innocence. He neither wished to be examined on oath nor opted to produce defense evidence. Learned trial court after hearing learned counsel for the parties acquitted the accused/respondent, vide impugned judgment herein.
4. Learned counsel for appellant vehemently argued that through evidence, prosecution has proved its case beyond any shadow of doubt against respondent/accused, as he has been directly charged by the complainant for the murder of Bashir Ahmad while the trial court has failed to appreciate the evidence produced by the prosecution, the impugned judgment is the result of misreading and non-reading of evidence, against law, facts and circumstances of the case and is also against criminal dispensation of justice and if there are minor contradictions, those are very negligible and learned trial court had wrongly disbelieved the cogent and confidence inspiring evidence and had given much weight to minor discrepancies; that the learned trial court has ignored full fledged recovery from the spot of occurrence and abscondence of the respondent for a long period without providing sufficient reason and justification. Learned AAG appeared on behalf of the state and adopted the arguments of the learned counsel for the complainant/appellant.
5. Learned counsel for the respondent at the very outset of the arguments, attacked on maintainability of the instant appeal as it has not been filed by an aggrieved person because the deceased survived by his son, daughter and other legal heirs while the appellant is not legal heir of the deceased; he further argued that the prosecution has miserably failed to prove its case against the respondent, as one eye-witness has been abandoned, while one eyewitness produced by complainant, but his evidence did not support prosecution version. He went on to say that no recovery, whatsoever, has been made from the accused/respondent; no sanctity was attached to the FIR which was recorded after preliminary investigation; eyewitnesses were not natural; essential requirements for the court was to satisfy itself whether eye-witnesses are natural and their presence on the spot could be reasonably believed and that whether their testimony was free from any kind of intrinsic improbabilities and in case of an interested witness whether any independent corroboration was forthcoming. He further added that the prosecution has further failed to prove mode and manner of occurrence, as the alleged recovery has been shown by the 10 with the connivance of complainant party. He lastly argued that the learned trial Court has rightly extended benefit of doubt in favour of accused/respondents. He concluded that after securing acquittal from the learned trial Court, the accused/ respondents earned double presumption of innocence, hence, this appeal is liable to be dismissed.
6. We have heard and considered the submissions of learned counsel for the parties and Assistant A.G. For the state and gone through the judgment impugned herein and the record.
7. Before going into the merit of the case, it would be appropriate to resolve the question of maintainability of the instant appeal, raised by the learned counsel for the respondent. Section 417(2-A), Cr.P.C. Deals the subject of filing of appeal which is reproduced as under:- "417. Appeal in case of acquittal (1) Subject to the provision of subsection (4), the provincial Government may, in case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon complainant and the High Court on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court may, within thirty days, file an appeal against such order"
(3) No application under subsection (2) for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
(4) lf, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1).
8. The above provision entails that an aggrieved person may file an appeal. Admittedly the appellant Riaz Ahmad is complainant, eyewitness and also brother of the deceased, hence in light of verdict of Hon'ble Supreme court in case titled "Muhammad Shafi v. Muhammad Asghar and others" (PLD 2004 SC 875), the appellant comes under the definition of an aggrieved person and may file an appeal. Hence, the question raised by the learned counsel for the respondent on the ground of maintainability is repelled.
9. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and held the accused for acquittal.
10. Perusal of the record reveals that the occurrence has not taken place in the mode and manner as alleged by the complainant and the circumstantial evidence does not corroborate the ocular and medical evidence as eye-witnesses alleged that they were sitting near the deceased with a distance of two paces, whereas the accused was at a distance of five yards from the deceased and if it was the position after fire shots of the accused, the pellets would have spread in one inch per yard from the muzzle and might also be hit the eye-witnesses but it is not the case here which leads to the conclusion that the alleged occurrence has not taken place in the mode and manner as alleged by the complainant in his report.
11. So far as the medical evidence is concerned, as per the injury sheet and Post-mortem report, the deceased had received two sets of injuries, one on back side and the other on the renal region which also leads to the conclusion that the deceased had not received alleged injuries in the sitting position, rather, first injury caused to him in standing position and before falling he had received the second injury on the renal area when he moved slightly, meaning thereby that the injuries so mentioned in the inquest report as well as PM report, cannot be the result of fire shots in sitting position. Further-more perusal of the inquest report, injury sheet and PM report reveal that there is no mentioning of proper time of death meaning thereby that it has been left with intention to fill in later on to match the occurrence and time of injuries in harmony which creates doubt in the prosecution case.
12. PW-8 Riaz Ahmad (complainant) and PW-9 Shabir Ahmad are eye-witnesses of the alleged occurrence; hence their testimony needs to be thrashed out with care and caution.
13. PW-8 Riaz Ahmad (complainant) and PW-9 Shabir Ahmad are shown as eye-witnesses but their testimony leads to the conclusion that they were not the truthful witnesses, as it is full of contradiction, omission and improvements. Riaz Ahmad (PW-8) complainant in his statement alleged that Majeed Khan was present in his shop and he along with the deceased had usually used to come to the shop of Majeed Khan (CW-3), while Majeed Khan (CW-3) in his examinationin- chief belied that version by saying that it was not routine of the deceased to come to his shop daily and that he was not present in his shop as he has gone to purchase house hold articles and when he returned back, the occurrence had already taken plate. Likewise about the motive, he has also improved by saying that there was also dispute over women folk while PW-9 Shabir Ahmad did not disclose both these facts, rather he has clearly mentioned that the motive was a dispute over loan.
14. It is 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. Reliance is placed on "Tariq Pervaz v.
The State" (1995 SCM R 1345). The same principle has been reiterated by Hon'ble Supreme Court in "Muhammad Akram's case" (2009 SCM R 230). Besides, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reference in this regard can be made to "Faryad All's case (2008 SCM R 1086).
15. So in wake of above doubtful and mysterious circumstances it is held that judgment of the learned trial court is based on correct and lawful appreciation of evidence and visualizes no illegality.
16. The abscondance_in this case, no doubt, is for a very long time for about (9) years.
Abscondence alone, cannot be a substitute for real evidence. People do abscond though falsely charged in order to save themselves from agony of protracted trial. Sometime they disappear, because of fear of the police and even of the complainant party. Abscondance is not evidence by itself but is a state of mind of a person who after being charged either rightly or wrongly reacts in a particular way. In a reported judgment, titled as "Farman Ali and others v. State (PLD 1980 SC 201) wherein it is held that abscondence by itself would be of no avail to prosecution in absence of any other evidence against absconding accused". Mere abscondance of accused is not enough to convict the accused/respondent.
17. It is a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remains 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 for which no exception can be taken. In this respect the Hon'ble Supreme Court in case titled "Ghulam Sikandar and another v. Manzraz Khan and others" (PLD 1985 SC 11) has firmly laid down principle of law, which was upheld by the Hon'ble Supreme Court in various pronouncements including "Dr. Israrul-Haq V. Muhammad Fayya z and another" (2007 SCM R 1427) and "Abdul Mateen v. Sahib Khan and others" (PLD 2006 SC 538).
18. For the reasons discussed above, the instant appeal is dismissed.