SYED MUDASSER AMEER, J. The appellant/State has filed the instant appeal against the judgment dated 14.10.2022 passed by the learned Judge Sessions Judge, Kohistan Upper, whereby, the accused/ respondent who was charged in case FIR No. 30 dated: 21.10.2019 under sections 302, 34 PPC at Police Station Jalkot, District, Kohistan Upper, was acquitted from the charges leveled against him.
2. Facts of the case in brief are that on 21.10.2019, the complainant namely Sami-ul-Haq reported the matter at emergency ward of RHC, Dassu alongwith his injured father namely Riaz-ud-Din by stating that today at 16:50 hours, he alongwith his father were present at the shop situated at the place of occurrence, in the meanwhile, Muhammad Shafi, Dost Muhammad and Javed came near the shop, Muhammad Shafee who was carrying an SMG with him started altercation on the issue to water and then made firing upon his father, due to which his father got hit on his head and fell down and that the other co-accused pelted stones upon them. Upon hue and cry accused decamped from the spot and that the occurrence was witnessed by Kemeyah and Moulana Faiz- ur-Rehman. The injured died on the way to hospital due to the injuries. The motive as stated in the first information report is dispute over water canal. The report in shape of murasila was drafted at the spot and sent to the police station for registration of FIR, hence, the above case FIR was registered initially against the accused/respondent alongwith co-accused.
3. Initially, after the occurrence, the accused/respondent did not join investigation and thus proceedings under section 512 Cr. P.C were initiated against him, however, later-on, he was arrested on 08.02.2022 and after completion of investigation, complete challan against him was submitted before the learned trial Court. Provisions of 265-C Cr. P.C were complied with and thereafter, formal charge was framed against him to which he pleaded not guilty and claimed trial.
In order to prove the case against the accused, the prosecution produced as many as twelve (12) witnesses. After completion of evidence, the statement of accused/ respondent was recorded under section 342 Cr. P.C and the learned trial Court after hearing arguments in the case acquitted the accused/respondent from the charges levelled against him vide impugned judgment dated: 14.10.2022. Feeling aggrieved of the aforesaid judgment of acquittal, the appellant/State has filed the instant appeal before this Court.
4. Arguments of learned AAG appearing on behalf of appellant/State were heard in considerable detail and record perused with his able assistance.
5. Conviction whether in a legal context or in a broader sense, refers to a firm belief or assurance in the truth of a claim or accusation.
To arrive at the conviction, all necessary evidence must be examined thoroughly, and any doubt must be reasonably eliminated. This is especially critical in legal trials, where the stakes are invariably high, and a conviction may lead to serious consequences, such as imprisonment or other penalties. The prosecution must present a convincing account backed by credible evidence in the shape of ocular testimony and/or circumstantial evidence, expert testimony, and corroborating facts, ensuring that the burden of proof is met beyond reasonable doubt. However, in the present case, there are uncertainties in the ocular, circumstantial as well as medical evidence and the same are not of such nature that can be made a basis for conviction of the accused/respondent. As per the details mentioned in the First Information Report (FIR), the incident occurred at 16:50 hours. The distance between the place of occurrence and the Police Station is approximately 4 to 5 kilometers, which could be covered in about 10 to 15 minutes. On the other hand, the distance from the place of occurrence to the Rural Health Center (RHC) in Dassu could be covered in around 30 minutes. Despite these relatively short travel times, the matter was reported with a significant delay of about two hours and forty minutes. The complainant explained that the delay was due to the unavailability of vehicles at the time of the incident, and as a result, a vehicle had to be brought from Komila to transport the injured person to the hospital. However, this justification seems questionable to a reasonable mind as the Police Station was situated between the place of occurrence and the RHC in Dassu. Therefore, the person who went to Komila to arrange for the vehicle could have instead gone to the Police Station to report the incident. The Police Station could have provided timely assistance, and the injured person could have been transported in an official police vehicle, which would have been a more immediate and efficient solution. Given these circumstances, the significant delay of about two hours and forty minutes in shifting the injured to the RHC cannot be reasonably justified. This delay raises doubts about the credibility of the complainant's version of events and casts a shadow over the prosecution's case, as it suggests that the response to the incident was not as swift or as efficient as it should have been. In the case titled: Zeeshan Shani-vs-The State reported as 2012 SCMR 428, it is held that: "delay of more than an hour in lodging the report would also give rise to the inference that the occurrence has not taken place in the manner projected by the prosecution and that this time was consumed in making an effort to give a coherent attire to the prosecution case, which hardly proved successful. This delay is all the more fatal when admittedly the Police Station, besides being connected with the scene of occurrence through a mettalled road, is at a distance of 11 kilometers from the latter. Such delay would also militate against the veracity of the prosecution witnesses".
Similarly, in an another case titled: Mst. Moodan-vs- SAIFULLAH and 2 others reported as 2004 SCMR 923, the august Court has held that: "admittedly, occurrence in this case had taken place during the intervening night of 24th and 25th of October, 1994 and the matter was reported at the Police Station at 5-10 p.m. situated at a distance of 9 miles whereas the hospital also fell on the same way just a distance of 1 K.m. Thus, the learned Single Judge of the High Court held the inordinate delay fatal, and rightly so, because there exists no plausible explanation to account for the same".
6. In the FIR, the complainant has mentioned Kemeyah and Moulana Fazal-ur-Rehman as the eye witnesses of the occurrence, however, quite strangely they were both abandoned as unnecessary.
When the complainant appeared in the witness box and recorded his statement as PW-8, he stated that both the eye witnesses are the cousins of his father/deceased. It was also suggested to him that Faiz-ur-Rehman had been abandoned because he had stated that the occurrence took place at "Esha" time and nobody was identified. Therefore, it cannot be ruled out that if the alleged eye witnesses had been produced they would have deposed against the version of complainant.
This was certainly the best evidence available with the prosecution and their non-examination without any sufficient cause naturally invited the application of Article 129 (1)(g) of the Qanoon-e- Ordinance, 1984 to draw an adverse inference; that had those eye witnesses been produced during the trial they would not have supported the prosecution's version. Complainant also alleged in his report that the accused/respondent made firing upon his father, while the two co-accused pelted stones at them, however, this aspect of the case does not attract to the prudent mind; when the complainant alongwith witnesses were also present at the spot at the fateful time, then, how any of them did not receive even a single injury. This fact also makes the mode and manner of occurrence doubtful.
7. The time of occurrence as mentioned in the report is 16:50 hours, however, the investigation officer, has admitted that as per his information and rumors the occurrence took place at dark hours.
8. Regarding the medical aspect of the case, the medical report indicates the presence of charring marks around the wound. Charring marks are typically seen when a gunshot wound is inflicted from a close range, generally within couple of feet. It is established that when a high-velocity weapon, such as a firearm, is used, the injury caused by it cannot produce charring marks if the distance between the shooter and the victim exceeds four feet, however, according to the site plan, the distance between the place where the injury was sustained and the accused/respondents was measured to be fifteen feet. This discrepancy raises significant doubts about the accuracy of the complainant's account. If the injuries were indeed caused by a high-velocity weapon, as the complainant suggests, the distance of fifteen feet between the victim and the accused would be inconsistent with the medical findings. The presence of charring marks around the wound would not be possible if the injury had been caused at such a distance. Therefore, the medical evidence does not align with the ocular testimony provided by the complainant, which creates a contradiction and weakens the prosecution's case.
9. Apart from the above, albeit one empty of 7.62 bore has been recovered from the place of occurrence, however, no weapon allegedly used in the commission of offence has been recovered from the possession of accused/respondent or on his pointation and mere recovery of crime empty without weapon of offence cannot be made basis for conviction of an accused. Moreover, as admitted by the IO in his statement he went to the spot that same night at about 9:30 pm and despite noticing the blood stained earth and the alleged crime empty he did not collect them there and then but collected the said items the following day. This is quite astonishing and raises further doubts about the collections/recoveries made.
10. Last but not lease, co-accused namely Dost Muhammad and Javed who had been nominated in the instant case for pelting stone upon the complainant party, have already been acquitted by the learned trial Court vide judgment dated: 02.03.2020 from the charges levelled against them and appeal filed against their acquittal before this Court has also been dismissed vide judgment dated: 12.11.2024.
11. As far as the stance of learned AAG that the accused/respondent remained absconder for quite sufficient time, is concerned, suffice it to say that mere abscondance is no ground for conviction of an accused when there is sufficient material available on file to create reasonable doubt regarding involvement of accused in the commission of offence. In a recent case titled: Rafaqat Ali alias Foji and another-Vs-The State, reported as 2024 SCMR 1579, it is held that "while awarding conviction and sentence to the convicts, both the Courts below have also considered the absconsion of about three years and eight months of the convict. In this regard both the Courts below have failed to appreciate that mere absconsion of an accused cannot be made a basis of conviction and that absconsion of an accused, being a relevant fact, can be used as a corroborative piece of evidence which cannot be read in isolation but it has to be read along with the substantive piece of evidence. Both the Courts below have also failed to appreciate that mere absconsion is not conclusive proof of guilt of an accused. It is only a suspicious circumstance which cannot take place of proof. The value of absconsion, therefore, depends on the fact of each case. According to the settled principles of law abscondence can never remedy the defects in the prosecution case as it is not necessarily indicative of guilt. Moreover, abscondence is never sufficient by itself to prove the guilt".
12. It is well settled by now that even a single doubt or single circumstance which creates doubt in the mind of a prudent man is sufficient for the acquittal of an accused person. In the case of "Saghir Ahmed vs. The State and others" reported as 2023 SCMR 241 the Hon'ble Apex Court has held that: "for the accused to be afforded the right of 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 got to the petitioner".
Similarly, in the case of "Bashir Muhammd Khan v/s The State" reported as 2022 SCMR 986, the Hon'ble Apex Court has held that: "single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right.
The conviction must be based on unimpeachable; trustworthy and reliable evidence. Any doubt arising in prosecution's case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt".
Likewise, in the case of "Muhammad Samiullah vs. The State" reported as 2022 SCMR 998 the Hon'ble Apex Court has held that: "Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right.
The conviction must be based on unimpeachable, trustworthy and reliable evidence and any doubt arising in prosecution's case is to be resolved in favour of the accused".
In the case of "Khalid Mehmood alias Khaloo v/s The State" reported as 2022 SCMR 1148, the Hon'ble Apex Court has reiterated the same rational by observing that: "in these circumstances, a dent in the prosecution's case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence".
Reliance could also be made on the following judgments:-
(1) "Amir Muhammad Khan v/s The State" reported as 2023 SCMR 566.
(2) "Sarfaraz and another v/s The State" reported as 2023 SCMR 670.
(3) "Muhammad Ashraf alias Nikka v/s The State reported as 2022 SCMR 1328.
(4) "Kashif Ali alias Kalu v/s The State and another reported as 2022 SCMR 1515.
(5) "Tajamal Hussain Shah v/s The State and another reported as 2022 SCMR 1567.
13. It is also settled law that an accused is presumed to be innocent unless proven guilty and once an accused succeeds to earn an acquittal order then double presumption is attached to his innocence and as such while hearing an appeal against acquittal, the appellate Court cannot disturb, or reverse or set-aside such an acquittal order unless the same is found to be perverse, shocking, artificial and over and above suffering from jurisdictional defect or non-reading of evidence or misreading of evidence. The above yardstick if applied to the present case, we found that the impugned acquittal order is neither perverse nor artificial nor suffering from misreading or non-reading of evidence. It is also settled law that while hearing of appeal, if on re-appraisal of evidence, a different view is spelling-out even this is not sufficient for interference in the acquittal order unless it is established that none of the ground of acquittal finds support from the record and evidence available on file. These limitations on the powers of Appellate Court have been discussed by the Hon'ble apex Court in the case of "Jehanzir v/s Aminullah & others" reported as 2010 SCMR 491 in the following terms:- "there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose". The view taken by this Court in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 is well-known that: "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally".
In the case of "Barkat Ali v/s Shaukat Ali & others" reported as 2004 SCMR 249, the Hon'ble Apex Court has held that "whenever an accused person is acquitted of a criminal charge then he enjoys double presumption of innocence; one before the trial of the case and second after his acquittal".
Similarly, in the case of "The state v/s Bashar" reported as PLD 1997 S.C 408, the Hon'ble Apex Court has held that: "an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeals, the superior Courts generally do not interfere with unless they find that miscarriage of justice has taken place. The factum that there can be a contrary view on reappraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to justify interference with the acquittal judgment".
14. For the afore-stated reasons, the instant appeal is found meritless and the same is accordingly dismissed in limine.