KAMRAN HAYAT MIANKHEL, J. This criminal acquittal appeal is directed against the judgment dated 19.10.2019, passed by the learned Additional Sessions Judge-I, Battagram, whereby the respondent No.1 / accused was acquitted.
2. Brief facts of the case are that on 06.07.1997 at about 1930 hours complainant Taj Malook (PW- 04) brought the dead body of Mumtaz Khan to the police station and lodged the report regarding his murder, wherein he narrated that on the fateful day he alongwith other family members was present at hjis house. In the meanwhile, Ajab son of Mumtaz appeared and informed them that a woman namely Mst. Badan wife of Keen Khab alongwith 3/4 other women were cutting grass from their land. Hearing this, the complainant alongwith his brother Pehelwan and Mumtaz rushed to the place. On the way accused Farhad, Keen Khab sons of Jan Feroz, Ali Khan, Gul Wais sons of Zareen, Nazir son of Farhad were sitting armed with deadly weapons. On seeing the complainant party, the above named accused opened fire at them. Resultantly, one Mumtaz got hit and died on the spot.
Accused fled away from the sport after the occurrence. The motive was disputed over the land and case FIR No.52 dated 06.07.1997 was registered under sections 302/324/148/149 PPC at police station Chanjal District Battagram.
3. On completion of investigation, challan was put in court against the respondent/accused. The respondent/accused appeared before the learned trial court and charge was framed against him to which he did not plead guilty and claimed trial. In order to prove the guilt of respondent/accused prosecution produced and examined as many as eight witnesses. After closing of prosecution evidence, statement of respondent/accused was recorded under section 342 Cr.P.C, wherein he denied all the allegation, and processed his innocence but did not wish to produce any evidence in his defence or examine himself on Oath as his own witness as required under section 340 Cr.P.C. Thereafter learned trial court has acquitted the respondents/ accused vide order impugned herein.
4. I have considered the submissions of learned counsel for the appellant and have gone through the material brought on the record.
5. The principles for appreciation of evidence in appeal against acquittal are now well settled, and an accused is presumed to be innocent and if after trial, he is acquitted, he earns double presumption of innocence and acquittal judgment or order normally does not call for any interference unless it is found arbitrary, capricious, fanciful, artificial, shocking and ridiculous and while evaluating the evidence, difference is to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference is to be made only when there is non- reading and gross mis-reading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision can be given except that the accused is guilty. Reliance in this context is placed on the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96). The Hon'be Apex Court of Pakistan has observed that: "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".
In the case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), the Hon'ble Supreme Court of Pakistan has held that: "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused."
In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that: "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."
In the case of Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549), the Hon'ble Supreme Court has held that: "It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others, 2003 SCMR 477 "that the law relating to re-appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading / non-reading of evidence...... law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."
In the case of State and others v. Abdul Khaliq and others (PLD 2011 SC 554), Hon'ble Supreme Court has held that: "The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory of wholly artificial or a shocking conclusion has been drawn. Moreover, in a number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities".
6. Perusal of the case record reveals that complainant namely Taj Malook (PW-04) and Pehelwan (PW-05) are the main witnesses of the prosecution. Complainant namely Taj Malook (PW-04) in his examination in chief narrated the contents of first information report and stated that the deceased Mumtaz was hit by the fire of accused Gul Wais and Muhammad Ali alongwith other accused. In his cross examination he stated that at the time of report he disclosed to the police that the deceased was hit with the firing of Gul Baz and Ali. He further stated that in the earlier trial of acquitted co- accused Kinkhab and Muhammad Ali, he categorically mentioned about the fact that Gul Wais and Muhammad Ali fired upon Mumtaz deceased and by their firing he was hit but when confronted with his statement in earlier trial this was omitted. The postmortem report Ex:PM clearly shows that the deceased received two firearm injuries from downward towards upside. Meaning thereby that entrance wounds are downward while exit wounds are upward which totally negates the story of PW-4 (complainant). The statement of PW-5 suggests that he has also made some improvements in his earlier statement as given in earlier trial of Kinkhab and Muhammad Ali acquitted co-accused to the effect that due to firing of Gul Wais and Muhammad Ali the deceased was hit and other accused fired on the complainant as well as upon him, when confronted with his statement recorded under section 161 Cr.P.C about the mentioning of the fact of deceased being hit by firing of Gul Wais and Muhammad Ali was not mentioned. He also in his cross examination showed his ignorance about acquittal of Muhammad Ali in the previous trial and about his statement recorded in previous trial. The statements of both these star witnesses (PW-4 & PW-5) show that both are self contradictory and both made dishonest improvement in their statements, so as to bring the case in line with the prosecution story and medical evidence. Besides it is very strange that four persons armed with deadly weapons made indiscriminate firing upon them and only deceased received two injuries while other received not a single scratch which shows that both these witnesses are not present on the spot.
7. Incident in the instant case took place on 06.07.1997 at 04:00 p.m. and report was lodged on the same day at 19:30 hours i.e. after delay of three and a half hours and both witnesses PW-4 and PW- 5 in their cross stated that the distance between place of occurrence and police station can be travelled within 1 1/2 hours on foot but the report was lodged after a delay of three and a half hours, so deliberation and consultation cannot be ruled out.
8. Suffice it to say that co-accused namely Keen Khab and Muhammad Ali having similar role were acquitted by the learned trial court through separate judgments dated 13.08.2012 and 11.10.2017, therefore, conviction of respondent/accused on the same set of evidence is not warranted by law.
In this regard reliance is placed on judgment of Honourable Supreme Court of Pakistan reported as 2022 SCMR 1527, wherein it was held that:- "The appellant's case is based on the same set of evidence and the role ascribed to him is similar to that of the co-accused Zakir. The conduct of the prosecution witnesses casts serious doubt on their credibility. The somersault taken by the complainant regarding the accusation levelled against the appellant and co-accused, since acquitted, persuade us to extend benefit of doubt to the appellant not as a matter of grace rather as a matter of right."
9. Learned counsel for the appellant much stressed that the respondent/accused has remained absconder for sufficient long time. It is trite law that mere abscontion is no ground to convict an assailant. In this regard reliance on the judgment of this court reported as 2022 P.Cr.L.J 1070 Peshawar, wherein it was held as under:- "Although the appellants have remained absconders for about 1-1/2 months but prosecution has badly failed to prove the charge against them through ocular account and other circumstantial evidence of convincing nature, therefore, their conviction cannot be recorded solely on the ground of their abscondence which has always been considered by superior Courts as corroborative evidence."
10. We have seen the impugned judgment which reveals that the learned trial court has properly dealt with the evidence of the parties having pointed out the material discrepancies, infirmities, and glaring contradictions etc. therein.
11. Under these circumstances, we are of the view that the learned trial court after appreciating the evidence in its true perspective has come to the conclusion that the prosecution has failed to prove its case against the respondent (accused) beyond a reasonable doubt and acquitted the respondent of the charge and such a conclusion of an acquittal arrived at by the learned trial court based on true appreciation of evidence cannot be termed to be arbitrary, fanciful, artificial, shocking and ridiculous, therefore, the impugned acquittal judgment does not call for any interference in this criminal acquittal appeal which being devoid of merit is liable to be dismissed.
12. It is well settled law that even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts. Reliance is placed on case titled Ghulam Qadir Vs. The State (2008 SCMR 1221), wherein, it has held that: "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 crating reasonable doubt in the mind of a reasonable andprudent mind regarding the truth of charge-makers the whole case doubtful.
Merely because the burden is on accused to prove his innocence it does not absolve the prosecution to prove its case against the accused beyond any shadow of doubt in this duty does not change or vary in the case."
Reliance is also placed on case law reported as 2009 SCMR 230 and 1995 SCMR 1345.
13. Accordingly, for the reasons stated hereinabove, this Court is of the considered view that the prosecution has failed to prove its case beyond any reasonable doubt against the accused / respondent, hence, the instant appeal being devoid of substance is hereby dismissed in limine.