This appeal under Section 417 (2-A) Cr.P.C. has been filed by appellant against the order of acquittal of respondent No.1 passed by the learned Sessions Judge, Mandi Bahuddin, vide judgment dated 17.10.201 1 in case arising out of F.I.R No.527/2004 dated 20.8.2004 registered under Sections 302, 34 PPC at Police Station Sadder Mandi Bahauddin.
2. Brief facts of the prosecution case as got recorded by complainant Muhammad Azam (present appellant) in his statement/Fard Bayan Exh.PG are that he was resident of Chelianwala and on 20.8.2004 he alongwith his brothers namely Mazhar Iqbal and Akhtar Iqbal were present in street for doing some work in a plot situated in front of his house when at about 9.00 AM, all of a sudden, accused namely Shahzad (present respondent No.1) alongwith his companions namely Naveed, Shabbir and Musthaq (since acquitted) armed with firearms weapons, came there and Shahzad raised lalkara that today Mazhar Iqbal should not go alive whereupon accused Naveed (since acquitted) made firearm shot hitting at left thigh of Mazhar Iqbal who ran to take shelter of the wall, then from behind Shahzad accused (present respondent No.1) made two firearm shots with his rifle 223 bore which hit Mazhar Iqbal at his back, as a result of which after few steps, he fell down. Thereafter all the accused while making firing decamped from the place of occurrence. The occurrence was witnessed by Javed Akhtar son of Fazal Dad and Khalid Mehmood. Mazhar Iqbal was taken to RHC Chelianwala where he succumbed to the injuries. This occurrence took place over a dispute of plot and some money transaction.
3. On completion of investigation, incomp lete challan report under section 173 Cr.P.C. was prepared and submitted in Court by placing the names of Naveed and Mushtaq Ahmad in column No.2 and that of Shabbir Ahmad accused in column No.3, however , name of Shahzad Akhtar (respondent No.1) was placed in column No.2 with red ink as his arrest was yet pending. Learned trial Court after receipt of said challan report, on the request of Muhammad Azam complainant (present appellant) summoned Shahzad Akhtar (respondent No.1) also but due to non-service of process, his proclamation under Section 87 Cr.P.C. was ordered to be issued, thereafter no further proceedings were done in this regard and even statement of Process Server was not recorded.
4. It would not be out of place to mentio n here that since respondent No.1 was no arrested so his trial was kept pending whereas his co-accused namely Naveed Akhtar , Shabbir Ahmad and Mushtaq Ahmad were tried by the trial Court and on completion of trial, they were acquitted vide judgment dated 30.9.2005 by extending them the benefit of doubt.
5. Shahzad Akhtar after getting protective bail joined investigation on 7.2.2011 and found not involved in the crime and his name was placed in column No.2 in the report prepared and submitted under Section 173 Cr.P.C. in the Court. Trial commenced and charge was framed on 3.5.2011, to which, he pleaded not guilty and claimed trial whereafter evidence of prosecution was summoned. After completion of prosecution evidence, respondent No.1 got recorded his statement under Section 342 Cr.P.C. but he did not opt to record his statement under Section 340
(2) Cr.P.C. on oath, however, he produced documentary evidence in his defence. Thereafter, the learned trial Court after hearing both the sides and scrutinizing the evidence produced from both sides, acquitted respondent No.1 from the charge by extending him benefit of doubt vide judgment dated 17.10.2011. Hence, this appeal.
6. Having heard the learned counsel for the appellant and gone through the record available on file, we find that nothing has been brought on record which could persuade us to hold that the conclusion arrived at by the learned trial court is against law and evidence produced during the trial. Further the judgment of learned trial court while acquitting respondent No.1 cannot be termed as perverse inasmuch as the reasons recorded therein for acquitting him are also not fanciful, capricious, speculative and artificial, in absence of which, the order of acquittal cannot be interfered with. The learned trial court has dealt with all the contentions of the learned counsel for the appellant, as agitated before us, in the judgment impugned. From the perusal of the impugned judgment, it reveals that according to the version of complainant (present appellant) in his Fard Bayan (Ex.PG), on the day of occurrence, respondent No.1 alongwith his other acquitted co-accused came at the place of occurrence and after raising lalkara, one of the acquitted co-accused namely Naveed fired with rifle 7mm at Mazhar Iqbal deceased, which hit on upper part of his left thigh (Kulah) whereas Shahzad Akhtar (respondent No.1) made two firearm shots upon deceased Mazhar Iqbal hitting at his back but during trial complainant while appearing as PW-7 stated that "Naveed made fire which hit Mazhar , Shahzad accused made two fires, which hit Mazhar on left side of hip", as such, his said deposition is contradic tory to his previous statements got recorded by him in Ex.PG and Ex.DB and during confrontation, it has been observed that complainant has disho nestly suppressed seat of injury allegedly caused by Naveed (since acquitted) and also introduced dishonest improvement qua locale of injuries allegedly caused by Shahzad Akhtar (respondent No.1) just to bring ocular version in line with medical evidence.
Moreover , it is the case of the prosecutio n that three fire shots hit to the deceased, one by accused Naveed and two by accused Shahzad but PW-6 Dr. Shafique Ahmad observed two injuries at the hip of deceased during his autopsy . Blackening has been found on injuries No.1-A and 2 but according to site plan Ex.PM, distance from where Shahzad Akhtr allegedly fired at deceased is 13 feet. It is settled principle of Medical Jurisprudence that in case of blackening maximum range of firing is six feet. Thus medical has contradicted ocular account. Reliance is respectfully placed upon the cases of "Mst. Jallan Vs Muhammad Riaz and others " (NLR 2003 Crl. 577) and "Muhammad Ali Vs The State" (2015 SCMR 137). Moreover , the learned trial Court has observed major contradictions relating to taking the deceased to RHC Chelianwala, which also create serious doubt regarding the truthfulness of the prosecution story . Another aspect of the matter is that besides the appellant, the occurrence was witnessed by Akhtar Iqbal, Javed Akhtar and Khalid Mehmood but they were not produced in Court to prove the charge against respondent No.1 by mentioning them as being won over, and in that scenario, non-production of these witnesses goes against the prosec ution. Complainant during cross examination denied his relationship with above mentioned eyewitnesses, he was confronted with his previous statement (Ex.DB) recorded on oath during previous trial, it was found that in said statement he has admitted that Khalid Mehmood and Javed Akhtar PWs were his "Khalazad". So he has denied admitted relationship. Similarly he has denied his relationship with Amir Mehmood PW-5 whereas Amir Mehmood PW-5 has clearly stated during his state ment before the Court that he is son of sister in law (Saali) of complainant. So, the complainant suppressed relationship with PWs. Reliance is placed upon the case of "The State Vs Ipbal and 3 others " (1986 P.Cr.L.J. 215). It has also been found that complainant also suppressed the factum of receipt of injury by Shabbir accuse d (since acquitted) which goes against the prosecution and in this regard reliance is placed upon the cases of "Mst. Zahida Saleem Vs Muhammad Naseem and others " (PLD 2006 SC 427) and "Muhammad Rahim and others Vs Bakht Muhammad and others " (2006 SCMR 1217 ). These all facts lead to the conclusion that occurrence did not take place as alleged by complainant.
Three co-accused have been acquitted in the case and now strong corroboration required to prove charge against Shahzad Akhtar (respondent No.1) but prosecution remained failed to do so and in this regard, reliance is respectfully placed upon the cases of "Mst. Sughra Begunt and another Vs Qaiser Pervez and others " (2015 SCMR 1 142), and "Irfan Ali Vs The State "(2015 SCMR 840 ).
Another vital aspect of the case is that prosecution itself brought on record documentary evidence before the Court to prove that Shahzad Akhtar (respondent No.1) is not involved in the alleged occurrence rather he was abroad i.e. in foreign country on the day of occurrence of this case. Prosecution itself collected Passport Ex.P4, P5 & P6 of Shahzad Akhtar during investigation and verified his travelling record through letter Ex.PJ from Immigration Authorities and produced verification documents qua his travel history as Ex.PK and PK/1.
Furthermore Ex.DJ and DJ/1 alongwith its translation Ex.DJ duly verified by Sudan Embassy and Embassy of Pakistan Khartoum Sudan about his presence abroad on the fateful day of occurrence were also brought on record, which even were not challenged by the prosecution. No recovery of any incriminating material was made during investigation. Mere abscondance is no proof of guilt, when direct evidence is not trustworthy and reliable, then abscondance is of no avail and cannot cure or repair defects of the case of prosecution. Abscondance is mere a suspicion and cannot prove charge as a substantive piece of evidence and in this regard reliance is placed upon the case of "Rasool Muhammad Vs Asal Muhammad and another " (PLJ 1995 SC 477). Thus, learned trial Court while acquitting respondent No.1 has rightly observed in Para No.29 of its judgment, as under:- "The upshot of the above discussion is that the prosecution remained failed to prove its case beyond all shadow of doubts against accused Shahzad Akhtar s/o Ghulam Sarwar and I found that the prosecution case is not free from all doubts. In view of above, I have pondered over the plea of alibi of the accused. I found that the accused and the prosecution itself through documentary evidence produced plausible and reasonable evidence to substantiate the absence of the accused from Pakistan on the fateful day. Therefore, keeping in view such documentary evidence, which almost remained unchallenged, the first version of the accused i.e. plea of alibi is believed. So, the benefit of doubt is given to the accused Shahzad Akhtar "
7. The learned trial Judge has advanced valid and cogent reasons for arriving at the finding of acquittal in favour of respondent No.1 and we see no legal justification to disturb the same. Even otherwise, when an accused person is acquitted from the charge by a court of competent jurisdiction, then double presumption of innocence is attached to such order , with which courts do not interf ere unless the impugned order is found to be arbitrary , capricious, fanciful and against the record, which are not found available in the present case and in this regard reliance is placed upon the case of "Haji Paio Khan Vs Sher Biaz and othe rs" (2009 SCMR 803). Further in appeal against acquittal, interference is made only when it appears that acquittal is result of misreading or non-reading of evidence which too is missing in this case. The ordinary scope of appeal against acquittal is considerably narrow and limited as held in the cases of "Muhammad Usman and 2 others vs. The State" (1992 SCMR 498) and "The State vs. Muhammad Sharif and others" (1995 SCMR 635). We have observed that prosecution has failed to prove the charge against respondent No.1 beyond the shadow of doubt. The case of the prosecution is fraught with doubts. Further respondent No.1 was not bound to establish number of circumstances creating a reasonable doubt in the prudent mind even a single circumstance is sufficient to extend the benefit of doubt to him. In this regard, reliance can be placed upon the cases of "Muhammad Zaman vs. The State and Others" (2014 SCMR 749) and "Muhammad Ashraf & Others vs. The State & Another" (PLD 2015 Lahore 1).
8. In view of the foregoing discussion, we have not observed any legitimate exception to interfere in the well- reasoned judgment of the learned trial court. Consequently , the appeal in hand, having no merits, is hereby dismissed in limine.