Syed Muhammad Farooq Shah, J. The Captioned appeal under Section 417(2)(A), Cr.P.C is directed by Abdul Baqi the appellant, against the judgmen t recorded and pronounced on 29.09.2 008 by the learned Additional Sessions Judge-I, Quetta, whereby the accused/Respondent Dawood has been acquitted of the charge of an offence punishable under Sections 11/16 of The Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The appellant has made a prayer to, set aside the impugned judgment on facts and grounds averred in the memo of appeal.
2. Story of the prosecution case in nutshell is that Abdul. Baqi, the complainant/appellant lodged the FIR No. 02/2001 with police station Civil Line, Quetta, alleged therein that on 01.01.2001, he alongwith his son-in-law Abdul Zahoor had left the house for their job. When he returned back at home, at about 04:00 P.M, his wife told him that at about 10:00 A.M, Mst. Sadiqa Bibi went out of the house and did not return back and despite of her hectic search, she could not found clue of Mst. Sadiqa Bibi. The Complainant, further alleged in the report that today i.e. 03.01.2001, he came to know that Dawood Suleman-khail, who is an Afghan refugee enticed, abducted and had taken away his daughter to some unknown place.
3. The Complainant had also recorded his postscript statement, in result of which co-accused persons Arbab Khuda-i-Noor , Muhammad Ewaz and Gull Lalay were arrested, while the Resp ondent Dawood was declared absconder . After full-fledged trial, all the above named three apprehended accu sed were acquitted by the trial.
Court vide earlier judgment dated 12.10.2001 and the appeal against their acquittal had also been dismissed by the Federal Shariat Court of Pakistan, vide judgment, pronounced on 12.09.2002. Case to the extent of the Respondent/accused Dawood had been kept on' dormant file subsequently , on his arrest made on 13.02.2007, a supplementary challan was submitted in the Court of Additional Sessions Judge-I, Quetta.
4. On commencement of trial, the Respondent did not plead guilty to the charge. At the trial, prosecution examined nine prosecution witnesses, and thereafter , statement of the accused under Sections 342 and 340 (2), Cr.P.C alongwith statement of two defence wittnesses was recorded. On culmination of the trial, the Respondent was acquitted by the judgment, impugned herein.
5. Arguments heard. Record perused.
6. Learned counsel representing the appellant argued that after recovery of Mst: Sadiqa, her confessional statement under Section 164, Cr.P.C was recorded, in which she did not admit the commission of offence, rather she implicated the Respondent. Learned counsel next argued that ocular/circumst antial evidence available on the record had not been considered by the trial Court, as such, judgment impugned herein is not sustainable in law.
Moreso, the Respondent Dawood had remained fugitive from law for a considerable period.
7. Conversely , learned counsel representing the Respondent by supporting the impugned judgment contended that there is no illegality , gross irregularity or infirmity , therefore the impugned judgmen t does not warrant interference by this Court. However , the learned prosecutor supported the appeal.
8. We have thoroughly scanned and evaluated the evidence brought by the prosecution as well as the evidence put forth by the, in juxtaposition. Re-appraisal of prosecution evidence transpires that PW-1 Abdul Baqi being complainant and real- father of the alleged abductee Mst. Sadiqa Bibi is not an eye-witness of the occurrence but he had been informed him by PW-6, about the occurrence. Syed Abdul Manan (PW-6), claiming to be an eye- witness of the occurrence, stated in the beginning of examination in chief that on 1st June of 2001, his wife told him that Mst. Sadiqa Bibi daughter of neighbor (Abdul Baqi) was found missing since morning. He had stated, in examination-in-chief that on that day he was doing shopping in Shehbaz Gift Center and witnessed Mst. Sadiqa Bihi in the said Shop, she was doing chit-chat with accused Dawood, a white color car was also there, in which two persons were already sitting; in the meanwhile, Khuda-i-Noor owner of the shop and accused Dawood boarded Mst. Sadiqa Bibi in the car and Dawood alongwith Mst. Sadiqa Bibi, departured in the said car. He disclosed such fact to the complainant Abdul Baqi, who visited the 'shop of Khudai Noor; firstly , Khudai Noor was found reluctant but lateron promised to restore the daughter of Abdul Baqi and requested not to lodge report. Thereafter , the Complainant Abdul Baqi lodged the report as Khudai Noor had kept the complainant on hollow hopes.
9. It is an admitted position that the prosecution could not examine any other eye-witness of the aforesaid occurrence. If it all, the words of PW-6 Syed Abdul Manan be accepted true and correct then it may be presumed that Mst. Sadiqa Bibi had lifted in a car in the company of Dawood, the Respondent, with her own freewill and consent.
10. A perusal of record reflects that during earlier proceedings, Mst. Sadiqa Bibi had been arrayed and faced the trial as an accused. To save her skin from clutches of law, she resiled to record confessional statement (Exh.P/3- A). In her statement, recorded on 15.02.2007, under Section 164, Cr.P.C i.e. about seven (7) years after alleged incident, by narrating a different story of occurrence, she stated that in the year 2001, she found the Respondent Dawood and Arbab Noor Muhammad at the shop of Khudai Noor . She had a drink and became unconscious. She had been taken to Afghanistan, where she was continuously intoxicated; from where she was shifted to Spilingi and subsequently to Killa Abdullah and when they were-coming to the house of Arbab Khuda-i-Noor; on seeing the father of the abductee, the accused made their escape good; hence she met with her father/complainant. Further stated that she lived with them for two years who committed Zina with her; on her pointation, the police arrested the Respondent from a hospital.
11. The evidence of eye-witness PW-6 Syed Abdul Manan and the abductee Mst. Sadiqa Bibi, as discussed above are contradictory and inconsistent and statements of PW-2 and PW-6 are also conflicting regarding recovery of Mst. Sadiqa Bibi. PW-2 Mst. Sadiqa Bibi stated that she was kidnapped on 01.01.2001 and recovered on 26.10.2006 and during intervening period, according to her statement, she had been kept on different places including Afghanistan and during such long period, she did nothing and kept her mum and subsequently , she was found by her father at Quetta when the Respondent was shifting her to the House of Arbab Khuda-i-Noor .
12. Insofar as the evidence of PW-7 Abdul Zahoor , claiming to be the husband of Mst. Sadiqa Bibi is concerned, he did not produce any documentary proof including Nikkahnama or Nikahkhawan, who recited the Nikah in between them. The learned trial Court while putting the defence evidence in juxtaposition had observed in the impugned judgment that the evidence produced by the accused (Respondent) has negated the prosecution case on the fact that accused remained absconder and the evidence produced by defence also throws light on the faet that accused as well as complainant were well known to each other and during 6/7 years period of recovery of alleged abductee, the accused was neither absconder nor had abducted Mst. Sadiqa Bibi. In such view of the matter , no legal sanctity could be stretched in favour of the contention of the learned counsel with regard to the absconcion of the Respondent. The abscondence by itself not a substantive piece of evidence and can be used unless it is corroborative by other cogent evidence as held in the case of Aminullah vs. The State (PLD 1976 SC 362). In the case of Rohtas Khan vs. The State (2010 SCMR 566), the Hon'ble Supreme Court of Pakistan held in paragraph 12 as under:- "The learned High Court gave importance to the abscondence of the appellant. No doubt it is a relevant fact but it can be used as a corroborative piece of evidence, which cannot be read in isolatio n but it has to be read alongwith substantive piece of evidence. This Court in the case of Asadullah vs. Muhammad Ali (PLD 1971 SC 541) observed that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence this Court in, the case of Rasool Muhammad vs. Asal Muhammad (1995 SCMR 1373 ) observed that abscondence is only a suspicion circumstance. In the case of Muhammad Sadiq vs. Najeeb Ali (1995 SCMR 1632 ) this Court observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan vs. The State (1999 SCMR 1220 ) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan us. The State (1999 SCMR 304) it was observed that the abscondence per se is not sufficient to prove the guilt but it can be taken as a corroborative piece of evidence. In the cases or Muhammad Arshad vs. Qasim Ali (1992 SCMR 814), Pir Badshah vs. The State (1985 SCMR 2070 ) and Amir Gul us. The State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved; therefore, no Conviction can be based on abscondence alone."
13. We are cognizant of the fact that conviction cannot be based on high probab ilities; suspicion however strong cannot take the place of proof. Criminal administration of justice is casting conclusive duty upon the prosecution to prove its case beyond shadow of doubt. Well settled proposition of law as laid down by the Hon'ble Supreme Court is that when two views are possible, view in favour of accused has to be given preference. Reliance in this regard may conveniently be placed on Ghulam Hussain alias Hussain Bakhsh us. The State and another (PLD 1994 SC 31), Qurban Hussain alias Ashia vs. The State (2010 SCMR 1592 ) and Intezar Hussain vs. Hamza Ameer etc (2017 SCMR 633 ).
14. By no stretch of imagination, the Respondent could be connected in commission of alleged offence, charged with, as material contradictions and incon sistent evidence mentioned supra, cannot be considered trust worthy or beyond shadow of reasonable doubt. One also cannot dispute that a single circumstance creating a reasonable doubt with reference to the guilt of the, accused would be sufficient to grant premium to the accused not as a matter of grace and concession but as a matter of right. It is well entrenched principle of law that the scope of interference in appeal against acquittal is narrowest and limited because after acquittal, the accused shall be presumed to be innocent; in other words, the presumption of innocence is doubled. We do agree with worthy submissions of learned counsel for the Respondent that the relevant evidence available on record transpires that the trial Court has correctly extended benefit of doubt in favour of the Respondent/accused, sufficient to acquit them. Suffice it to say that the impugned judgment does not suffer from misreading or non appraisal of evidence or lack of appreciation of material evidence or reception of evidence illegally or jurisdictional defects or evidence of material nature produced by the prose cution were not recorded or the acquittal order on the face of it is contradictory or/and the order of acquitta l was based without affording opportunity to the prosecution by violating principles governing the appreciation of evidence or that the acquittal judgment is based upon surmises, suppositions and conjectures and the acquittal is based upon reasons which do not appeal to a reasonable mind.
For the sake of convenience the settled criteria to entertain the appeal against acquittal as laid down by the Superior Courts is that if two different views or positions of the case and the view taken by the trial Court can be justified on the basis of facts or on principle of law, then the order of acquittal -is not interfered with Extraordinary remedy of an appeal against an acquittal is quite different from an appeal preferred against the findings of conviction and sentence. The appellate jurisdiction under Section 417, Cr.P.C. can be exercised by this Court if gross injustice has been done in the administration of criminal justice, more particularly , wherein, findings given by trial Court are perverse, illegal and based on misreading of evidence, leading to miscarriage, of justice or where reasons advanced by trial Court are wholly artificial. Scope of appeal against acquittal of accused is considerably limited, more particularly order of acquittal passed by trial Court is based on correct appreciation of evidence, does not warrant interference in appeal. It is not out of context to mention that the acquittal passed by the trial Court being balanced and well reasoned, hardly call for interference of this Court in appeal and similarly this Court shall refrain to disturb acquittal as the grounds on which the trial Court had based its acquittal order are reasonable and plausible, and cannot be entirely and ef fectively dislodged or demolished.
Whatever mentioned above, we reached at the irresistible conclusion that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons, unexceptional, do not warrant any interference by this Court, and resultantly the captioned appeal filed against the acquittal of the Respondent Dawood son of Zakoom @ Naik Muhammad, having no merits for consideration is accordingly dismissed.