SHAHID KHAN, J.- Impugned herein is the acquittal of Shireen Zada and Shireen Gul, respondents hereinafter, whereof, the appellant/ complainant, Ijaz Ullah has called in question their acquittal in case of FIR No. 210 dated 21.07.2014, U/Ss 302/34 PPC, P.S, Aloch, District Shangla, recorded by the Court of learned Sessions Judge/Zila Qazi, Shangla, (Camp Court at Swat), through the impugned order/judgment dated 28.08.2015.
2. As per prosecution story, the police contingent headed by Hazrat Rehman Khan, ASI, P.S Chowga rushed to the venue of crime, pursuant to receipt of information that an offence of murder has taken place in the vicinity of village Pandoria. At the spot, the appellant/complainant, Ijaz Ullah, in the company of his mother, Mst. Hussan Bibi reported the subject event to the local police to the effect that about 15/16 years back his deceased father, Bakht Nawab was charged for the murder of one Hazrat Khan, in which respect compromise was effected with the intervention of elders of the locality and a civil litigation was also pending adjudication with regard to a piece of land known as "Ghwand Barkha", with one Faridoon Khan. The accused/respondents, Shereen Zada & Shereen Gul were working as tenants in the aforesaid property under Faridoon Khan. The accused were annoyed due to pendency of the civil litigation in respect of the property in question and wanted to take revenge of the murder of their father. On the relevant day, date & time, his father was coming to his home from village Pandoria and when he reached near the disputed property, (which is situated in front of the house of the complainant), the accused/ respondents, named above, emerged from the nearby maize crop and started altercation with his father. The complainant and his mother Mst. Hussan Bibi were also attracted to the spot, upon hearing the noise of the quarrel. The accused/respondents, (while being duly armed with axes) started beating his father. As a result of repeated axe blows of both the accused, his father got injured on his head and fell-down on the ground. The father of the complainant succumbed to his injuries and died at the spot. The occurrence was claimed to have been witnessed by the appellant/complainant and his mother Mst. Hussan Bibi. Motive for the commission of offence was stated to be previous ill-will over a piece of land.
3. The accused were initially avoiding their lawful arrest, therefore, proceedings under section 512 Cr.P.C were initiated against them.
4. Upon arrest of the accused/respondents followed by completion of the investigation, supplementary challan was drawn and was sent-up for trial to the learned trial Court.
Accused/respondents were confronted with the statement of allegations through formal charge- sheet to which they pleaded not guilty and claimed trial.
5. To substantiate the guilt of the accused/respondents, the prosecution furnished its account consist of the statements of ten (10) witnesses. The accused were confronted to the evidence so furnished through statements of accused within the meaning of section 342 Cr.P.C.
6. On conclusion of the trial, in view of the evidence so recorded and the assistance so rendered by the learned counsel for the accused/respondents and the learned counsel for the complainant/learned State counsel, the learned trial Court arrived at the conclusion that in view of the evidence so recorded and assistance so provided, allegations against the accused/respondents are tainted with the doubts, as such, by extending the benefit of the doubt, the acquittal of the respondents/accused were recorded accordingly.
7. It obliged the appellant/complainant to approach this Court through the subject criminal appeal.
8. Arguments of the learned counsel for the parties as well as the learned Astt: A.G for the State have been heard at a substantial length and the record gone through with their valuable assistance.
9. The record so furnished would reflect that in the subject event the law of the land was set into motion by the complainant, Ijaz Ullah, son of the deceased, Bakht Nawab, when he reported the subject event to the visiting party of police, who attracted to the spot, pursuant to receipt of information about the murder of the deceased. It was alleged in the Murasila' Ex. PA/1 followed by FIR Ex. PA that on the relevant day, date & time, father of the complainant, Bakht Nawab was on his way to his resident from his native village Pandoria. The moment, he arrived around the disputed property known as Ghowand Barkha, the accused/respondents, Sheerin Zada & Shereen Gul, (duly equipped with axes), emerged from the nearby maize crops and engaged in altercation with his father. On report of the noise of the exchange of hot & harsh words, the complainant & his mother, Mst. Hussan Bibi rushed to the venue of the crime in order to pacify the altercation and to save the deceased from the clutches of the accused-party. Both the accused/respondents were alleged to have given repeated axe blows to his father, as a result of it, he got injured on his head and fell- down on the ground. The accused were also alleged to have been thrown the deceased downwards and escape from the spot, after commission of the offence.
10. In the subject event, the ocular account is consisting of the solitary statement of the appellant/complainant, Ijaz Ullah. He appeared in the witness-box as PW-1. In his examination-in- chief, the appellant/complainant reiterated almost the same facts & figures as advanced in the Murasilce followed by the FIR, however, his examination-in-cross is of much significance in context of the case in hand. In his examination-in-cross, the complainant has made the following admissions in respect of the departure of his deceased father & arrival to the venue of crime;- If we put in juxtaposition the aforesaid admissions of the complainant as against the site plan, Ex.
PB, the distance between the house of the complainant and the place of occurrence is shown as 30/40 yards. Likewise, in the site plan, the pointation of the eyewitnesses i.e. the complainant, his mother Mst. Hussan Bibi and sister Mst. Shazia have been shown at points No. 4, 5 & 6, it is at a distance of 10 to 12 yards from the house of the complainant so highlighted in the site plan, Ex. PB.
Similarly, the deceased & both the accused/respondents have been shown at points No. 1, 2 & 3, in the site plan. The distance between points No. 4, 5 & 6 and points No. 1,2 & 3 is about 30 to 40 yards.
It is next to unbelievable that a person at the distance 30/40 yards could be able to hear the report of noise/hue & cry from a considerable distance.
11. Other than the above, the appellant/eyewitness, if, being had been around the scene of occurrence and being empty-handed, his natural behavior should be to rush to the victim/his injured father and attempt to rescue him either for first-aid or to rush him to the hospital. Being his real father was about to expire, the natural behavior of a son shall be to take him at least in his lap and in this exercise of first-aid, his garments should have been besmeared with the blood of the victim. The strong circumstantial evidence is the blood stained garments of the witness has either been not delivered by the witness to the Investigation Officer or it has not been asked for its collection by the Investigation Officer, as such, the subject circumstantial evidence is not the part of the investigation followed by the trial. On this score the very presence of the PW-1 at the fateful time is tainted with doubt. If, the subject evidence as blood stained garments of the complainant/appellant/witness could have been procured and after F.S.L analysis/ comparison of the blood stained garments of the deceased and the blood stained garments of the complainant/witness being found to be of same blood group, the presence of the eyewitness on the spot at the fateful date, day & time could be hard to be disbelieved. However, not to procure the subject circumstantial evidence left behind a wider scope for a doubt & dent regarding the presence of PW-1 (Ijaz Ullah), what to say, of his presence on the spot at the fateful time rather he may attract to the scene of occurrence even after the departure of the dead body of the deceased from the spot to the mortuary/hospital.
12. In the circumstances, the accused is confronted with the set of allegations of an offence carries capital punishment, the evidence shall be of a high degree to be worth believable, whereas, in the event in hand, the learned trial Court is all correct in his mind as to disbelieve the solitary statement of a witness whose presence on the spot at the fateful time is tainted with doubt.
Moreso, during the investigation the circumstantial evidence so collected & furnished during the trial was being not of the standard which could connect the accused/respondents with the commission of offence beyond the remote chance of doubt to convince the prudent mind regarding the due involvement of the accused/respondents in the commission of offence and on this score it is observed that the learned trial Court while taking consideration the facts & circumstances of the event in view of the evidence so furnished and the assistance so availed has arrived at the just conclusion of the event followed by acquittal of the accused/respondents by extending them the benefit of doubt not as a matter of grace but as matter of due legal right.
13. There is no second opinion about the fact that testimony of a solitary eye-witness if rings true can be taken into consideration in order to sustain conviction of an accused/ person, as it is quality of a testimony which shall be given preference instead of quantity, however, in contest of the subject case, as highlighted in the preceeding Para of this Court not only the very presence of the complainant at the spot (being a solitary eye-witness) is doubtful but the mode & manner of the occurrence right from the very inception is standing in vacuum. It is part of the record that the complainant has neither bothered to inform the local police about the death of his father nor he shifted the dead body to the hospital rather the same was kept in the Baitak of his uncle Noor Nawab. It was the local police who attracted to the spot, pursuant to receipt of prior information about the murder of the deceased, therefore, the very conduct & demeanor of the complainant- party is unnatural. The complainant also admitted in his testimony before the Court that the house of his uncle as well as Hujra is situated near & around the place of occurrence, however, these important features of the prosecution's case have not been made part & parcel of the site plan, Ex.
PB. Even the testimony of the Investigation Officer of the subject event, Muhammad Bashar Khan, (PW-8) is adamant of the fact that the revelation & disclosure advanced by the complainant is not appealable to a prudent & sound mind. The Investigation Officer has made an admission in his examination-in-cross to the effect that the place of occurrence vis--vis the house of the complainant and the places assigned to the eyewitnesses in the site plan at points No. 4,5 & 6 have been proximately of equal distance. Thus, the very presence of the eyewitnesses at the relevant time & place appears to be highly unreasonable and unnatural and thus the prosecution has not been able to prove their presence at the scene of occurrence at the relevant time, hence, their evidence has rightly been discarded by the learned trial Court qua the guilt of the accused/respondents. In a situation, akin to the present one, in case titled "Sarfaraz & another v/s The State" reported as 2023 SCMR 670, the Apex Court has held as under;- Not a single person from the inmates of the house where occurrence took place or from surrounding inhabitants appeared in support of the prosecution version and the whole prosecution case was silent about this aspect of the matter. Record clearly reflected that the prosecution witnesses were not present at the place of occurrence, rather they managed to appear as witnesses after due consultation and deliberation. Record further showed that the complainant was inimical towards the deceased. In such circumstances, it seemed impossible that deceased would have invited an inimical person for his help before his death. Prosecution had failed to prove its case beyond any reasonable shadow of doubt Similarly, in case titled "Liaaat Ali and another v/s The State and others" reported as 2021 SCMR 780, the Apex Court has recorded a somewhat similar observations by holding that;- All the circumstances highlighted above lead us to a definite conclusion that presence of eye- witnesses at the place of occurrence at the relevant time is not free from doubts and the prosecution has failed to prove its case against the appellant beyond reasonable doubt.
14. Other than the above, the other eyewitness of the occurrence, Mst. Hussan Bibi, who is none else but the widow of the deceased was not produced by the prosecution in support of their case due to her illness.
Same was the case with the daughter of the deceased, Mst. Shazia, who was not produced in the Court by the prosecution for the simple reason that her name was not cited in the FIR, however, being important witnesses of the prosecution, they would have been in a better position to clearly identify with perfection the assailants, but they were abandoned and thus the prosecution in all eventualities has withheld the best available evidence, therefore, under Article 129 (g), the Qanun- e-Shahadat Order, 1984 an adverse inference has to be drawn that had the said PWs been produced they would have not supported the case of prosecution. The Apex Court in case titled "Lal Khan v/s State" reported as 2006 SCMR 1846 has held that;- A material witness of occurrence would create an impression that had such witness been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid consequence.
Similarly, in case titled "Mandoos Khan v/s The State" reported as 2003 SCMR 884 it was observed by the Apex Court that;- Prosecution must produce best kind of evidence to establish accusation against accused facing trial but simultaneously it has no obligation to produce a good number of witnesses because it has an option to produce as many as witnesses which in its consideration are sufficient to bring home guilt against the accused, following the principle of law that to establish accusation, indeed it is not the quantity but quality of the evidence, which gets preference.
15. Other than it, it is an admitted fact floating on the face of the record that there is an ordinate delay of more than six hours in reporting the matter/event to the local police. As stated earlier, that the complainant-party were not even interested to inform the local police about the murder of the deceased rather the police themselves attracted to the venue of crime, in response to information about the unfortunate incident and the alleged explanation in respect of the delayed report offered by the complainant i.e. fear of the Taliban appears to be a lame execute just to cover-up the subject delay in registration of the report. It is pertinent to clarify here at the cost of repetition that the menace of militancy/Talibanization in District Malakand & Shangla was done & dusted by the security personnel in the year 2011-2012, whereas, the subject occurrence has taken place on 20.07.2014, therefore, it seems that it is unseen & un-witnessed event in its nature and even the complainant-party was not sure about the real culprits or for that matter implication of the accused/ respondents, in the subject event.
16. No doubt, there is certain recoveries in the form of blood stained earth, blood stained broken stick, blood stained stone, blood stained shirt of the deceased and blood stained five chits recovered from the spot, however, evidentiary value of the same qua the guilt of the accused/respondents has rightly been discarded by the learned trial Court, especially in absence of direct evidence being a corroborative piece of evidence. Even otherwise, when the prosecution has failed to prove the case against the accused/ respondents beyond reasonable doubt then the corroboratory evidence produced in the case in hand could be of no help to the prosecution. In this respect, reliance is placed on the judgment of Apex Court rendered in case titled "Imran Ashraf & 7 others v/s The State" reported as 2001 SCMR 424, wherein it has been held;- "Recovery of incriminating articles is used for the purpose of providing corroboration to the ocular testimony. Ocular evidence and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion."
In support of same ratio, further reliance may also be placed on judgment reported as 2007 SCMR 1427.
17. In the subject event, the medical evidence has been furnished by PW-7, Dr. Ghafoor Ahmad, the medical Officer, who conducted the examination of the dead body of the deceased in the shape of his report, Ex. PW-7/1. As per prosecution's story, the occurrence has taken place on 20.07.2014 at 17:00 hours, whereas, the report was lodged to the local police at 23:30 hours and the postmortem examination of the dead body of the deceased was conducted by the doctor on the next date i.e. on 21.07.2014 at 02:16 p.m, as such, the time between the death & postmortem of the deceased has been shown as 14 to 16 hours. Such an opinion of the doctor is not in consonance with the story of the prosecution, therefore, the sole testimony/ocular-account of the complainant is not in consonance with the medical evidence as well. In identical situation, akin to the present one, in case titled "Nadeem alias Kala v/s The State & others" reported as 2018 SCMR 153, the Apex Court has held that;- "The medical evidence is merely a supportive/ corroborative piece of evidence but in this case the same is not in line with the ocular account because Dr. Monum Javed (PW.2) noted a firearm entry wound on the front of right thigh whereas it is case of the complainant in the FIR and both the witnesses of ocular account stated before the learned trial court that the other accused had caught hold of Maqsood Ahmad (deceased) from the front side, therefore, the ocular account is not in consonance with the medical evidence.
Similarly, in case titled "Haroon Bin Tariq & others v/s The State & others" reported as 2019 SCMR 2014 it was observed by the Apex Court as follows;- "That no independent verification was available on record to establish that the deceased directed himself to the assailants in order to disengage or overpower them and in the process received fire shot during grappling them from a close blank. On the contrary, medical evidence contradicted the prosecution case, as there was no blackening on the margins of solitary entry wound, therefore, possibility of a stray bullet could not be viewed as entirely unrealistic, particularly in the presence of as many as sixteen (16) casings, secured from the spot, unambiguously suggesting volley of fires.
18. So far as the abscondence of the respondents/accused I is concerned, in this part of the country people do abscond not because they are guilty, but because of fear & torture of the police. Even otherwise, absconsion is not a substantive piece of evidence, it is a corroborative piece of evidence and in cases where direct evidence fails, corroborative piece of evidence is of no avail & utility, as in the subject event, where the evidence of a sole eyewitness has been disbelieved. Needless to say that abscondence can neither cure the inherent defect of the ocular account nor by itself is sufficient to sustain conviction. In this respect, reference can be made to case titled "Islam Badshah and two others Vs. The State" reported as PLD 1993 Peshawar 7.
19. The peculiar facts & circumstances of the event coupled with the assistance at the bar and scanning of the evidence so furnished has driven the Court to the conclusion that the learned trial Court while placing reliance on the facts & circumstances coupled with the evidence so recoded has arrived at the correct conclusion by acquitting the accused/ respondents through the impugned order/ judgment, which is neither perverse nor arbitrary nor whimsical.
20. It is well settled, it is not essential at all to place reliance on multiple doubts coupled with multiple grounds to extend the benefit of doubt to an accused, even a single worth reliable doubt is sufficient enough to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz v/s The State" reported as 1995 SCMR 1345, the Apex Court has held as under;- That the concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
Further reliance is placed on the case law cited as "Daniel bovd (Muslim name Saifullah) vs the State" reported as 1992 SCMR 196", where the following observations were recorded by the Apex Court;- Nobody is to be punished unless proved guilty on the basis of reliable or true evidence. Benefit of every reasonable doubt is to go to the accused.
This view also reflects in the judgment of the apex Court titled as "Ghulam Qadir and 2 others vs the State" reported as 2008 SCMR 1221, wherein it was observed that:- "Benefit of doubt. Principle of applicability. For the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creates reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful."
In support of the same rational, further reliance is placed on the judgment of the august Supreme Court of Pakistan cited as "Muhammad Zaman vs. the State" (2014 SCMR 749), wherein it was held that; Even a single doubt if found reasonable, was enough to warrant acquittal of the accused.
21. For the afore-stated reasons, the subject criminal appeal being bereft of any merits is hereby dismissed.