IJAZ ANWAR.J: This appeal has been filed by the Ajmal Khan appellant (complainant) under section 417 (2) Cr.P.C against the judgement dated 08.12.2021, passed by the learned Judge Model)
Criminal Trial Court/Additional Sessions Judge-II,Kohat, whereby respondent accused Mushahid Hussain alias Mushahid Ali was acquitted of the charges leveled against him in case FIR No. 99 dated 20.04.20217 under sections 302/324 PPC, Police Station Usterzai, Kohat.
2. In his report made to the police in KDA hospital Kohat, complainant stated that he on 20.4.2017, had gone to shop of one Muhammad Azeem for purchase of stationery items where his maternal uncle Ishtiaq Ali was already present and in the meanwhile, respondent accused Mushahid Hussain alias Mushahid All came duly armed with Kalashnikov and made firing at them as a result whereof, his maternal uncle Ishtiaq Ali was hit whereas he (complainant) and the shopkeeper escaped unhurt. That the injured was taken to the hospital, however, he succumbed to his injuries.
Motive for the occurrence was stated to be dispute over women folk. The report of the complainant was reduced into murasila on the basis whereof the instant FIR was registered.
3. Initially, challan under section 512 Cr.P.C was submitted against the respondent accused and on completion of proceedings under the said section, he was declared proclaimed offender. On his arrest, respondent accused faced trial before the learned trial Court which resulted into his acquittal vide judgement dated 08.12.2021. Feeling aggrieved of his acquittal, complainant of the case has filed the instant appeal.
4. Arguments of learned counsel for the parties heard and record perused.
5. Though the respondent accused has directly and singularly been charged for the commission of the offence, however, this court has to see whether the prosecution has succeeded in establishing the guilt of the respondent accused or otherwise and for this purpose, in view of the grounds taken in the appeal as well as the arguments advanced at the Bar, the prosecution evidence needs to be revisited cursorily. The prosecution in support of its case has examined as many as 10 witnesses.
PW-1 is Yousaf Khan S.I/.OII who conducted supplementary investigation against the respondent accused after his arrest, PW-2 is Aftab Ahmad LHC Naib Court who is marginal witness to recovery memo regarding recovery of blood from the place of deceased, three empties of 7.62 bore and blood stained last worn clothes of deceased, PW-3 is Farid Khan SHO who, on the report of complainant inked the same in shape of murasila, PW-4 is Habib Ullah Khan S.I who arrested accused on 26.2.2019, PW-5 is Akhtar Abbas who is identifier of dead body of deceased, PW-6 is Shahid Mehmood who entered the information/call received to him on landline number 0922- 580218 of PS from mobile No. 0310-9818898, in DD No. 12 dated 20.04.2017, PW-7 is Dr. Syed Mustafa who on 20.4.2017 at 12:45 hours, conducted autopsy on the dead body of deceased Ishtiaq Ali, PW-8 is Ajmal Hussain who is the complainant of the case, PW-9 is Muhammad Akbar S.1 Elite Force who is investigation officer of the case, PW 10 is Islam Noor ASI who incorporated the contents of Murasila into FIR Ex.PA.
6. As per the prosecution version, the occurrence has been witnessed by the complainant as well as one Muhammad Azeem, the shop keeper (later on the name of shopkeeper was mentioned as Zain Shahab, the son of Muhammad Azeem). The complainant/eye witness of the occurrence has been examined as PW-8. According to his own narration, the respondent accused fired at him as well as his uncle which hit his uncle, however, he escaped unhurt. The site plan which was prepared at the instance and pointation of complainant shows the accused at point No. 2, the complainant at point No.3 and the deceased at point-1 whereas the shopkeeper (Zain Shahab) at point No.4.
The distance between point 2 and point 1 is given as 4 paces, whereas the distance between point 2 and point-3 is one pace. Point-3 which is given to complainant comes in the line of firing of the respondent accused, however, his escaping unhurt not receiving a single scratch is not appealable to a prudent mind particularly, as per his own admission in cross examination that there was no barrier/obstacle between him and accused at the time of firing. As per the contents of the murasila/FIR, the occurrence took place at 11:30 hours and in his court statement, the complainant stated that the deceased was alive till the time of reaching the hospital. PW-3 Farid Khan SHO who had scribed the Murasila stated that he reached the KDA at 12:10 P.M and by that time the deceased was already dead. The P.M examination report would show that the deceased then alive was brought in gasping and shock who was given emergency treatment and later expired at 12:25 hours. The doctor has been examined as PW-7 who has given the time of P.M examination as 12:45 hours and further stated that he examined the injured and treated him within one hour of his arrival and then conducted P.M examination within one hour of his death. He further stated that the deceased died before less than one hour of the post mortem examination. PW-5 namely Akhtar Abbas who identified the dead body of the deceased in his court statement stated that he did not accompany the dead body of the deceased to the hospital rather reached later to the hospital at 11:00/11:15 A.M and by that time, the deceased had already expired and that he signed the identification documents of the deceased at 11:30 hours. Escaping unhurt of the complainant and the different timings of death of the deceased in the statement of the scribe of the report, the doctor and the identifier of the dead body casts a serious doubt regarding the mode and manner in which the occurrence took place as well as over the presence of the complainant on the spot at the time of occurrence.
7. According to the contents of the Murasila/FIR, the occurrence took place is the shop of Muhammad Azeem, however, the site plan would show that the said person has not been shown present rather, Zain Shahab son of Muhammad Azeem has been shown present in the said shop at the time of occurrence who has been given point-4 and the presence of this witness has also repeatedly been admitted by the complainant in his court statement. This person was a star witness of the prosecution but astonishingly, he has not been examined during trial. Thus from the non-production of the said witness, an adverse inference can be drawn had the said witness been produced, he would have not favored the prosecution case as laid down under Article 129 (g) of the Qanon-e-Shahadat Order, 1984 In the case titled "Muhammad Rafique and others Vs the State and others" (2010 SCMR 385), it was observed by the august Supreme Court of Pakistan that: "It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution."
8. The other piece of evidence relied upon by the prosecution is the dying declaration in the form of telephonic call allegedly made by the deceased then injured from mobile phone No. 0310-9818898 to the official landline number of the police station which was entered in DD No. 12 dated 20.4.20217.
However, as per record, neither the mobile phone of the deceased was taken into possession nor any data was collected from the concerned quarter whether the said SIM number (0310-9818898) was registered in the name of the deceased or otherwise nor such fact has been stated before the police at the time of report by the complainant nor during his court statement that the deceased while in injured condition made a phone call to the police station charging the respondent accused for the commission of the offence. Though CDR data has been brought on record in shape of Ex.PW 9/4 which shows the location of the above mobile number at Sherkot at 11:30 hours and the duration of call as 01 minute 12 seconds, however, there is nothing available on record to show that the deceased after being hit was able to talk for such length of time. The time of call shown therein is at 11:30 hours, however, as per the statement of PW-5, the deceased had already expired at 11:00/11:15 A.M. Thus this piece of evidence cannot be safely relied upon. This can also be seen from another angle, if it is presumed that the complainant was present alongwith the deceased, there was no occasion for the deceased to have made a call and such call was required to be made by the complainant himself, it thus clearly suggests that complainant was not the eye witness.
9. In respect of the motive, though, during investigation, the I.0 has brought on record a copy of deed pertaining to compromise between father of respondent accused and one Muhammad Muhtashim, however, no evidence is available on record to show how the said deed is concerned with the deceased and that how the said event formed a motive for the accused to commit the murder of the deceased. Thus the motive too has not been proved by the prosecution. In case titled "Muhammad Akram Alias Akrai VS the State" reported as (2019 SCMR-610), the august Supreme Court of Pakistan held as under: "the motive set out by the prosecution remained far from being proved. It is well settled that when prosecution alleges something against an accused person and then fails to prove the same, the premium of such failure must go to an accused person. In this case as well, prosecution's failure to prove the motive set out by it certainly benefits the appellant."
10. So far as the abscondence of respondent accused is concerned, it is by now well settled that abscondence alone is not a proof of guilt of an accused person. The august Supreme Court of Pakistan in case titled "Rasool Muhammad Vs Asal Muhammad and 3 others" reported in 1995 SCMR 1373 held as under: "Disappearance of a person named as, a murderer /culprit after the occurrence, is but natural, whether named rightly or wrongly. Abscondence per se is not a proof of the guilt of an accused person. It may, however, create suspicions against him but suspicions after all are suspicions."
11. The respondent accused has remained in police custody but nothing incriminating has been recovered from his possession or on his pointation neither has he confessed his guilt before any competent Court of law. In his statement recorded under section 342 Cr.P.C, respondent accused denied the commission of offence and stated to have falsely been implicated in the case.
12. The crux of the above discussion is that the prosecution failed to prove the commission of offence against respondent accused beyond shadow of doubt. It is by now well settled that a single doubt created in the prosecution case is sufficient to be resolved in favour of the accused.
The august Supreme Court of Pakistan in case titled "Mst. Haiira Bibi alias Seema and others Vs Abdul Qaseem and another" (2023 SCMR 870), held as under:- "For the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2019 SCMR 129).
15. The judgement of the learned trial Court acquitting the respondent accused by extending him benefit of doubt is based on proper appreciation of evidence and material available on record. The learned counsel for appellant could not point out any illegality or material irregularity committed by the trial Court which could warrant interference by this Court. Resultantly, the instant appeal stands dismissed.