' ABDULLAH BALOCH, J.---This judgment disposes of Criminal Acquittal Appeal No,381/2013 filed by the appellant Muhammad Naeem, against the, judgment dated 10th December, 2013 (hereinafter referred as, "the impugned judgment") passed by the learned Additional Sessions Judge Pishin (hereinafter referred as, "the trial Court"), whereby the accused/respondents were acquitted of the charge under section 302/34, P.P.C.
2. Facts of the case are that on 20th July, 2011, the complainant Muhammad Naeem son of Abdul Jabbar, lodged FIR No,14/2011 at Police Station Saranan Pishin under sections 302, 353, 186, 34, P.P.C., stating therein that on the day of occurrence at about 9.00 p.m. His brother Muhammad Saleem son of Abdul Jabbar was present near Saranan old Saudi Hospital, when two persons riding on Honda 125-CC motorcycle came there and fired upon his brother with pistol, which hit on his chest and he succumbed to his injuries at the spot. He further alleged that accused after committing the crime were trying to escape, but were chased and arrested by the Levies, whose names were revealed as Muhammad Younis and Rafiullah.
3. In pursuance of above FIR, the investigation of the case was entrusted to PW-7 Matiullah, Tehsildar/IO, who during investigation inspected the site and prepared site map; brought the dead body of deceased Muhammad Saleem to Civil Hospital Pishin and after medical examination handed over the dead body to the legal heirs; took into possession Honda 125-CC motorcycle; secured four empties from the place of occurrence; recovered T.T. Pistol along with four rounds from the possession of accused Rafiullah; took into possession the bloodstained clothes of deceased; recorded the statements of witnesses under section 161, Cr.P.C. And on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven witnesses. The accused-respondents were examined under section 342, Cr.P.C. However, the accused neither recorded their statements on oath under section 340(2), Cr.P.C. Nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the learned trial Court vide impugned judgment acquitted the accused-respondents of the Charge under section 302, P.P.C. Whereafter, instant appeal has been filed.
5. Learned counsel for appellant contended that the impugned acquittal order passed by the trial Court is perverse and contrary to material available on record; that consistent and confidence inspiring evidence has been produced, but wrongly the same was discarded from consideration mainly on the ground that the PWs have contradicted each other, but the trial Court has ignored this important aspect of the case that the minor contradictions in the statements of PWs are natural, which may occur due to lapse of time and fading of memory and being human beings it is not expected from the witnesses to have furnished a tape-recorded statement; that the accused- respondents caught red-handed soon after the occurrence by the Levies Authorities and not only the recovery of crime weapon, but also the motorcycle used in the crime has also been recovered from the possession of the accused-respondents, who after committing the crime were trying to flee away; that the medical evidence proved the guilt of the accused/respondents; that the prosecution has succeeded in proving the charge against the accused-respondents on all counts and there was no occasion for the learned trial Court to acquit the accused-respondent, hence prayed for convicting the accused-respondents in accordance with law.
6. Learned counsel for the accused-respondents assisted by learned Additional Prosecutor General, while supporting the impugned judgment contended that the prosecution has failed to establish the charge against the accused-respondents on the basis of solid, concrete or cogent evidence; that all the witnesses made contradictory statements to each . Other, which rendered their testimony as doubtful and the same does not amount to worth credence, whereas the learned trial Court after considering all the pros and cons of the case has rightly acquitted the accused-respondents through impugned judgment, which is not open for any interference by this Court.
7. Heard the learned counsel and perused the available record. Perusal of impugned judgment and the record justifies the acquittal order passed by the learned trial Court. It is evident from the record that the prosecution in order to establish the charge has produced the evidence of seven witnesses, but all the witnesses made glaring contradictions from each other as well as made dishonest improvements from their earlier depositions.
8. Admittedly, the law was set on motion on the basis of fard-ebayan Ex.P/1 of the complainant, perusal of which disclose that the complainant in such complaint has clearly mentioned that two accused persons armed with pistol emerged at site on a Honda 125-CC Motorcycle and fired upon his brother, due to which he was injured and succumbed to the injuries, whereas the names of the culprits were later on revealed as Muhammad Younas and Rafiullah.
9. We have at our outmost care and caution minutely scrutinized the contents of fard-e-bayan and the wording so used in it, are suggestive of the fact that the complainant himself was not present at the time of occurrence, otherwise he could have directly nominated the accused with specific role and such fact has further been strengthened from the penultimate lines of such Fard- e-bayan, whereby the complainant has specifically mentioned that after committing the crime the accused were fleeing away, but were chased and arrested by the Levies Authorities and their names were revealed as Muhammad Younas and Rafiullah, against whom he is lodging the FIR. We have further scrutinized such fard-ebayan Ex.P/1 and observed that the complainant has not mentioned the name of any of the witness allegedly present at the time or place of occurrence or witnessed the crime directly.
10. While comparing the fard-e-bayan Ex.P/1 with the statement of complainant recorded in the trial Court as PW-1, it has been observed that contrary to his earlier deposition contained in the Fard-e-bayan Ex.P/1, the complainant in his Court statement has not only named the witnesses namely Sattar and Fazal Muhammad as the witnesses of the alleged crime but also assigned specific role to both the accused by stating that the accused Younis was riding the motorcycle, while the accused Rafiullah was seated behind him having pistol in his hand and made firing upon his brother, the PW-1 has made unsuccessful attempt to establish his presence at the time of occurrence and at the place of incident, but in such like situation he has ruined the entire prosecution story as doubtful.
11. The witnesses have also contradicted themselves with regard to information conveyed to the Levies. The contents of fard-e-bayan Ex.P/1 is silent with regard to the information conveyed to the Levies Authorities and simply it is mentioned that after commission of crime and trying to flee away the accused were chased and arrested by the Levies, whereas to the contrary PW-1 in his Court statement stated that after sustaining injuries by his deceased brother, he was taking him to hospital, when in the way to hospital his brother succumbed to the injuries, thus he was informed that the Levies arrested the accused persons, whereas PW-2 contradicted the Fard-e-bayan Ex.P/1 and also contradicted the statement of PW-1 by stating that soon' after the occurrence he went for a vehicle to take the injured/deceased to hospital, while the complainant/appellant went towards Levies Thana for lodging the report. In his cross-examination, PW-2 stated that while taking the deceased to hospital, the complainant/appellant was not accompanying him and he subsequently came to hospital. But, the PW-3 contradicted both PW-1 and PW-2 by stating that PW-2 Fazal Muhammad telephoned the Levies and conveyed information about the incident.
However, to such extent PW-4 Syed Muhammad, Khasadaar Levies contradicted the statements of all above referred witnesses and stated that he had informed the Tehsildar that 2/3 persons had come to Levies Thana and informed about the incident. PW-4 stated that none of the witness had informed the Levies through telephone and further stated that the said persons have not nominated any of the accused. Be that as it may, if the witnesses were present at the occurrence and seen the crime then as to why they did not nominate the accused at the time of conveying information to the Levies. PW-7/I.O. Stated that prior to arrest of the accused/respondents, no witness was aware about the assailants, who made firing upon the deceased.
12. The comparative study of statements of all the witnesses has established the fact that they have made contradictory statements to each other and simultaneously they made dishonest improvements to such extent that has changed the prosecution version. None of the witness has corroborated the statement of other. Their testimony is contradictory with regard to death of the deceased whether he had died at the spot or succumbed to the injuries in the way while shifting to the hospital. All the witnesses made contradictory statements with regard to the information of the occurrence conveyed to the Levies or the seat of injuries received to the deceased. Hence, we have no hesitation to hold that the presence of any of the witness at the time of occurrence or witnessing the crime is highly doubtful and the prosecution has failed to establish their presence at the time of occurrence, otherwise their deposition would not be contradictory to each other.
13. The Investigating Officer himself admitted that prior to the arrest of accused/respondents none of the witness was aware about the culprits, who had attacked upon the deceased. All the witnesses made I dishonest improvements in their statements and in this manner thus have lost the credibility and evidentiary value of their statements. Such deliberate and dishonest improvements would cause serious doubt in the prosecution case as it is settled law that a single circumstance creating reasonable doubt in a prudent mind is sufficient for acquittal of accused, not as a matter of grace but as a matter of right. In the case of Ghulam Qadir and 2 others v. The State 2008 SCM R 1221, a bench of three Hon'ble Judges of Supreme Court held that for the purpose of benefit of doubt to an accused single infirmity regarding the truth of charge makes the whole case doubtful. The relevant portion thereof reads as under: "It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required', a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful.
Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or 'ary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case.
Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10."
14. Now diverting to the medical evidence furnished by Dr. Saleemullah Pathan, (PW-06), who had conducted medical examination of the dead body of deceased Saleem and issued MLC Ex.P/6-A, which provides the number of injuries sustained by the deceased as well as the fire arm used in the commission of crime. So far as the contention of learned counsel for appellant that the medical evidence proved the guilt of the accused/respondents, suffice to observe that medical evidence is a corroborative piece of evidence which only indicates the number and seat of injuries and the kind of weapon used, in absence of trustworthy and reliable ocular evidence, the medical evidence could not support the prosecution case.
15. The above discussion establishes that the prosecution evidence appears to be shaky, misconceived, untrustworthy and is not inspiring confidence. It is very shocking enough that the deceased was murdered by the assailants in presence of his brother and two other close relatives, but they did not try to overpower the assailants and no efforts were made by them to save the victim and went away safely without any resistanc. Which looks very unnatural. Reliance is placed on the case of Muhammad Farooq v. State 2006 SCM R 1707 and Dohlu v. State 2002 PCr.LJ 690. This shows that their presence at the scene of occurrence at the relevant time was doubtful. When motive was alleged but not proved, then ocular evidence was required to be scrutinized with great caution as held in 2010 SCM R 97 and 2009 SCM R 916 that motive cuts both ways, if enmity persuades a person to commit a crime, then it is also sufficient to falsely implicate some person from the other side. Ocular version is inconsistent with medical evidence hence not reliable and the presence of eye-witnesses at the spot is doubtful as held in the case of Ashiq Hussain v. The State 1993 SCM R 417.
16. So far as the recovery of crime weapon along with the motorcycle used in the crime from the possession of the accused-respondents is concerned, suffice to observe that for the above reasons the trial Court had rightly concluded that the eye-witnesses produced before the trial court were actually not present with the deceased at the time of occurrence and, thus, the ocular account furnished by them was ruled out of consideration. After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. Reliance, in this regard is placed to the case of Faqeer Muhammad v.
Shehbaz Ali 2016 SCM R 1441, whereby the Hon'ble Supreme Court has upheld the acquittal order of the High Court by holding that after ruling out the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. The relevant portion of above referred judgment is reproduced herein below: "..The eye-witnesses produced by the prosecution before the trial court were actually not present with the deceased at the time of occurrence and, thus, the ocular account furnished by them was ruled out of consideration. After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. In these circumstances the High Court had extended the benefit of doubt to respondent No, 1 and had acquitted him of the charge. Upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion reached by the High Court.
This petition is, therefore, dismissed and leave to appeal is refused."
17. The minute perusal of the prosecution case from all angles, it has been established that the case of prosecution is doubtful and no conviction can be awarded or maintained on the basis of such type of shaky and untrustworthy evidence. According to the settled principles and guidelines provided by the Hon'ble august Court that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. Such proposition has come-up for consideration in the case of Muhammad Akram v. The State 2009 SCM R 230, wherein it has been held that, "... It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.'
18. If the entire prosecution evidence is taken into consideration together, it would become crystal clear that the entire prosecution evidence shows that there is no solid or concrete evidence against the accused/respondents connecting them with the commission of alleged offence. The trial Court after proper appreciation of evidence in its true perspective has rightly acquitted the accused-respondents of the charge. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, capricious, fanciful or against the record. In the instant case the order of acquittal passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference by this Court.
' For the above reasons, the appeal being devoid of merits is dismissed.
' Above are the reasons of our short order dated 27th March, 2017.