' RAZA AHMAD KHAN, J.--- This State appeal is directed against the judgment of the learned Sessions Judge, Karak, dated 16-11-1989 whereby he acquitted Saifur Badshah, the accused- respondent herein of the charge under section 302, P.P.C.
2. It appears that the respondent was tried earlier and was convicted and sentenced to life imprisonment under section 302, P.P.C. Vide judgment of the learned Sessions Judge, Karak dated 22-3-1988.
3. He preferred an appeal against his conviction and sentence which was allowed, his conviction and sentence were set aside and the case was remanded back to the learned trial Court vide judgment of this Court dated 16-4-1989 'for recording additional evidence on the question as to whether the appellant was on duty with Pakistan Army at the relevant time and he was on leave and present in the village', during the days of occurrence. It was also directed that `the evidence of search witness Akbar Khan D.F.C. No, 51 P.I. Branch, Karak, shall also be recorded and the relevant copies of the documents concerning the ascendance of the appellant placed on file. It was thus ordered that 'after considering the additional evidence along with the evidence already on the file, the learned trial Court shall decide the case afresh in accordance with law'.
4. The learned Sessions Judge, Karak, consequently, after recording such evidence as was directed or deemed necessary by him, acquitted the respondent vide his impugned judgment, dated 6-11- 1989 for the reasons recorded as follows:-- "Accused facing the trial has produced Exh.D.A. The letter of Commanding Officer of his Unit which proves that accused was in Army. After remand the prosecution has produced only one witness namely Akbar Khan D.F.C., who according to him had searched the accused in his village. The search witness has not recorded the statements of those persons the signatures and thumb- impressions of whom have been obtained by him on the back of search-warrant Exh.P.W.-AR/1/1 and the notice under section 87, Cr.P.C. A.R.1/2. The prosecution has not produced any other additional evidence to prove that on the day of occurrence the accused was on leave from Army.
The honourable Judges of the august High Court have observed in their judgment that `no material was brought on the file by the prosecution that the appellant was on leave at the time of occurrence. The correspondence referred to in the statement of the Investigation Officer was not placed on the file to show that the appellant was not on duty at the relevant time. The production of the aforesaid correspondence in evidence was essential to establish as to whether the appellant was in fact on leave and was present in the village at the time of occurrence." and added further:-- "It is the duty of the prosecution to prove beyond reasonable doubt that on the day of occurrence the accused was present in his village and had murdered the deceased, but here the prosecution has not acted upon the directions of the august High Court and has not produced any reliable evidence to prove that on the day of occurrence the accused was on leave and was present in his village."
5. We have heard Mian Muhammad Ajmal, Additional Advocate-General in support of the appeal.
He inter alia contended that the learned trial Court has erroneously considered the evidence in favor of the accused-respondent ignoring the basic principle of law that onus of proof lies on the person who claims the existence of certain facts and in this regard it was for the respondent to have discharged the burden of proving his alibi. He further submitted that, in the absence of such proof of alibi, the ascendance of the respondent has been established and in view of the fact that it was a broad daylight occurrence and the respondent was directly charged for the murder of Mst.
Balqees, the learned trial Court has erroneously acquitted the respondent. He, therefore, maintained that the acquittal of the respondent as such has caused miscarriage of justice and in the light of voluminous evidence coming forth against him, he is liable to be convicted and sentenced for the offence he is charged with.
6. We have given our serious consideration to the submissions made by the learned Additional Advocate-General.
7. We do not dispute the view of the Additional Advocate-General that the burden of proving the plea of alibi under the law initially lies on the accused though it is also a settled law that burden of proving the same shall not be judged on the same criteria as applicable in the case of prosecution to prove its own case against the accused. In the instant case however, we find that the respondent has produced a certificate from his Commanding Officer dated 22-11-1985 showing him as an employee in Army and posted in 11 Field Regiment Artillery, Sialkot Cantonment. This document prima facie lends support to the plea of the respondent that he, being an employee in Army, could not and was not present at the time and place of occurrence as alleged by the prosecution. In such a situation, we are of the firm view that it was for the prosecution to rebut this plea and establish that the respondent has remained fugitive from law and having come to know about his employment with the Army, we believe, it was legal obligation of the Investigating Officer to have ascertained and substantiated that, despite his service with the Army, the respondent was on leave and was present in his village at the time of occurrence.
8. Failure of prosecution to produce any evidence in this behalf, we have no hesitation in holding, the learned trial Court has rightly drawn the inference which led him to pass the order of acquittal in favor of the respondent.
9. Resultantly this appeal fails and is hereby dismissed in liming.