2015 P Cr (PLP)

MUHAMMAD DAUD KHAN, J.

Through this appeal, Mst. Shopari Bibi, the appellant has called in question the judgment of learned Additional Sessions Judge-I, Bannu, dated 28-5-2010, whereby respondent/accused Hamidullah, was acquitted from the charge in case FIR No. 62, dated 6-8-2009 registered under section 302/34, P.P.C., at Police Station Kakki, Bannu.

2. The brief account of the prosecution case, as reported in the FIR (Exh:PW1/1) is that on 6-8-2009, at 6-45 hours, Mst. Shopari Bibi, the complainant brought dead-body of her son Jamshaid alias Dadi to the Police Station Kakki and reported the matter to the effect that, on the fateful day her son deceased Jamshaid alias Dadi was sleeping on a cot in the courtyard of house, whereas she was busy in preparing tea, in the meanwhile at about 5-00 a.m, accused Imran and Hamidullah from the rooftop of the kotha of her house, started firing at her son Jamshaid alias Dadi, with the intention to commit his qatl-i-amd; that due to fear she ran towards the room and when the accused decamped from the spot, after the occurrence, she came out from the room and found her son Jamshaid alias Dadi dead. Motive was stated to be previous blood feud. On the report of complainant, above mentioned F.I.R was registered. Initially both the accused went into hiding and proceedings under section 204, Cr.P.C. and 87, Cr.P.C. were initiated against them. Later on accused/respondent Hamidullah was arrested on 15-8-2009 and supplementary challan against him was submitted for trial. The prosecution examined as many as eight witnesses to prove charge against the accused/ respondent. On conclusion of prosecution evidence, accused/respondent was examined under section 342, Cr.P.C, wherein he professed innocence and false implication, however, he neither wished to produce any evidence in defence nor opted to examine himself on oath under section 340(2), Cr.P.C. On weighing the materials brought on record and considering the arguments of the learned counsel for the parties, the learned trial Court found the accused/respondent not guilty of the charge levelled against him and thus acquitted him vide judgment which is now under challenge in this appeal by the appellant/ complainant.

3. Learned counsel for the appellant vehemently criticized the impugned findings of the learned trial Court on the grounds that the same are not based on any sound footings; that the ocular, medical and circumstantial evidence fully support the prosecution version; that the accused remained absconder for a long period, for which no plausible explanation has been offered, but the learned trial judge has failed to appraise the same in their true perspective, while drawing the impugned judgment of acquittal and that the impugned judgment is based on surmises and conjectures and thus liable to be set aside.

4. Learned A.A.-G strongly criticized the judgment of the trial court and supported the arguments of learned counsel for appellant.

5. In rebuttal, learned counsel for the accused/respondent supported the impugned judgment on the grounds that the prosecution has failed to prove its case against the accused/respondent beyond any shadow of reasonable doubt; that the testimony of the complainant/ appellant was rightly disbelieved because she was closely related to the deceased and thus highly interested and that the material brought on record with the statements of PWs were not sufficient to hold the accused/respondent guilty of the offence and if otherwise case of the accused is doubtful, then mere abscondence is no ground for conviction, therefore, the impugned verdict of the learned trial Judge needs no interference.

6. We have heard arguments of learned counsel for the parties, A.A.-G. for the State and have gone through the record with their valuable assistance.

7. According to the prosecution story on 6-8-2009 at 05:00 hours, when Mst. Shopari Bibi, the complainant was busy in preparing tea, in the meanwhile, the accused/ respondent along with co-accused from the rooftop of the room of complainant's house have started firing at the deceased Jamshaid alias Dadi, who was sleeping on a cot in the courtyard of his house. Due to fear, she ran into the room and when the accused after commission of the offence decamped from the spot, she came out and found her son Jamshaid alias Dadi dead. As manifest from the contents of report of the complainant, that the occurrence has taken place on 6-8-2009 at 5-00 a.m. new time (4-00 a.m old time) whereas the report has been lodged at 6-46 a.m. i.e. after a delay of 1 hours and 46 minutes. Explanation furnished by the complainant that it was due to non-availability of transport is not plausible in light of distance from the spot of occurrence to the Police Station, which is 5/6 Kilometer. Specific motive i.e. blood feud has been alleged by the complainant in her report. Admittedly, motive is always considered as a double edged weapon which cuts both ways and it can be used by the accused to take revenge and at the same time can be a tool used by the complainant, mother of the deceased for false charge, as well. Thus, keeping in view the inordinate delay in lodging report coupled with motive, it could safely be held that the time inter se the alleged incident and report, has been consumed by the complainant in deliberation and consultation. Moreover, the incident has taken place at 5-00 a.m. new time (4-00 a.m. old time) and allegedly the accused were on rooftop of the room of the house of the complainant, hence, identification of accused in odd hours of night does not seem possible in absence of any source of light/ bulb.

8. Mst. Shopari Bibi, the complainant is mother of the deceased, who is solitary eye-witness of the occurrence. It is consistent view of the apex Court from which no departure can be made on any occasion that testimony of such witness must get corroboration through corroboratory evidence which shall come from unimpeachable source. Moreso, keeping in view the close relationship of the complainant with the deceased being her real son, her status cannot be excluded from the category of interested and inimical witness, hence, her testimony is to be scrutinized with great care and caution. Firstly, truthfulness of such witness is to be tested on the touchstone of the inherit merit of her statement and, secondly, if her statement is found reasonable, probable or plausible and reliable then the same can be accepted and relied upon without corroboration.

9. Appearing as PW-5, Mst. Shopari Bibi, the complainant, solitary eye-witness of the occurrence, has reiterated the contents of her report, however, in cross-examination in negation of the first information report she put forth a different motive by stating that co-accused Imran (absconding) had quarreled with the son of her brother in law, which led to the present occurrence. She further admitted that: "It is correct that I have two daughters, one is married while the other is unmarried, who is living with me in the crime house.....No power meter has been installed in our house and there was no any electric supply to our house.......It is correct that village Khujari Khas is a big village. As I was preparing tea, therefore, I cannot say that how much firing was made by the accused. As I was preparing tea, therefore, I cannot say that to which side the front of the accused were. As I was preparing tea, therefore, I cannot say that whether the faces of the accused were towards me at the time of occurrence or somewhere else.....lt is correct that the occurrence taken in the dark hours of the night and there was no any source of light at that time." Perusal of the statement of solitary eye-witness one could reach to an irresistible conclusion that she has not seen the actual accused/ culprits, due to darkness in absence of any source of light, and further at the relevant time, she was busy in preparing tea, as per her statement. She has failed to establish motive, rather she contradicted the same by introducing a different motive. Once a witness is found telling lie on material aspects of the case, then, ordinarily he/she should not be believed with regard to the other aspect of the case, unless the testimony given is fully corroborated by strong independent corroboration, which is lacking in the instant case. Apart from this her statement is also full of doubts, contradictions and improvements, which create serious doubts about its veracity, hence ocular account furnished by eye-witness Mst.Shopari Bibi mother of the deceased is disbelieved.

10. Inayatullah Khan, the I.O. appearing as PW-6, apart from investigation has admitted in cross-examination that: "As pateela, cups or teapot or any such like other articles were not present/ available near the fire-place, therefore, no question of securing of the said articles had been arisen. It is correct that I have placed list of cases pertaining to the involvement of the deceased. It is correct that so far as I collected, I have placed 9 FIRs in which the deceased was involved in those cases. I have seen all the FIRs being placed on file which are Exh.PW6/DX1 to PW6/DX8." In view of above cross-examination, one could safely conclude that the version of complainant is not trustworthy as stance of the complainant is that at the time of occurrence, she was preparing tea, but no patella or teapots or cups were taken into possession by the I.O., as according to him, these articles were not available at the spot and further it is in the prosecution evidence that one unmarried daughter of the complainant was living with her in the crime house, but her presence was neither mentioned in the FIR nor her statement was recorded by the I.O., which led to the inference that the complainant has not set forth a true story, as such in the given circumstances of the case, the statement of I.O. did not support the prosecution version. Moreover, as per statement of the I.O., the deceased was hardened, desperate criminal and was charged in several different FIRs including the cases of murder, attempt to murder, Narcotics and 13 A.O. etc, hence the possibility that the deceased would have been done to death by any other enemy could not be ruled out. Though the crime empties from the spot have been recovered and in this respect FSL report is in positive, but mere positive report of FSL could not advance the case of prosecution when, the ocular/substantial evidence fails.

11. The ocular account furnished by the complainant further contradict the medical evidence, as the complainant in her report alleged that the occurrence took place at 5-00 a.m. whereas according to opinion of the Doctor, Muhammad Ismail, (PW-7) the time between death and post mortem is 4 to 6 hours, meaning thereby that in view of medical report the occurrence has taken place at about 12-00 mid night to 1-30 a.m., which creates serious doubt regarding the time of occurrence.

12. It is settled law that primarily the prosecution is bound to establish guilt of the accused beyond shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion; whether the prosecution has succeeded in establishing accusation against the accused or otherwise; and if it comes to the conclusion that the charges so levelled against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his acquittal. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and held the accused for acquittal. It is well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is sufficient for acquittal of the accused. Reliance is placed on "Tariq Pervaz v. The State" (1995 SCMR 1345). The same principle has been reiterated by Hon'ble Supreme Court in "Muhammad Akram's case" (2009 SCMR 230). Besides, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reference in this regard can be made to "Faryad Ali's case (2008 SCMR 1086).

13. The only evidence against the respondent-accused is his abscondence, but the prosecution cannot take any premium from abscondence of the accused when ocular account is disbelieved being full of doubts and material contradictions. Mere absconsion is not a conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case. No doubt, abscondence is a relevant fact, but it can be used as a corroborative piece of evidence, which cannot be read in isolation but has to be read along with substantive piece of evidence. In this respect reference can be made to case titled "Rohtas Khan v. The State" (2010 SCMR 566), and "Rahimullah Jan v. Kashif and another" (PLD 2008 Supreme Court 298).

14. It is a settled law that after earning the acquittal from the trial Court, double presumption of innocence is acquired by an accused. The Court sitting in appeal against acquittal always remains slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence. In the instant case, no such infirmity has been found in the impugned judgment. The learned trial Court has rightly acquitted the respondent/accused by extending him benefit of doubt, after proper appraisal of evidence for which no exception can be taken. In this respect the Hon'ble Supreme Court in case titled "Ghulam Sikandar and another v. Mamraz Khan and others" (PLD 1985 SC 11) has firmly laid down principle of law, which was upheld by the Hon'ble Supreme Court in various pronouncements including "Dr. Israr-ul-Haq v. Muhammad Fayyaz and another" (2007 SCMR 1427) and "Abdul Mateen v. Sahib Khan and others" (PLD 2006 SC 538).

15. For the reason discussed above, and deriving wisdom from the judgments of the apex Court in cases titled "Muhammad Yaqoob v. Manzoor Hussain and 3 others" (2008 SCMR 1549), "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53) and "Abdul Majeed v. Mulazim Hussain and other" (PLD 2007 SC 637), we maintain the impugned judgment of acquittal and dismiss this appeal, being without any substance. HBT/124/P Appeal dismissed.