2007 PLP 2112 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Accused-respondents Qayum Khan, Sher Khan sons of Asal Din and their cousins Ahmad Saeed. Abdul Latif and Salim Khan sons of Mir Zaram, all residents of Village Nusrat Abad, Tehsil Tekhti Nasrati, District Karak, were tried by learned Additional Sessions Judge, Karak at Takht Nasrati, in case F.I.R. No.196 dated 9-12-2003, registered at Police Station Takht Nusrati, under sections 302/324/ 148/149, P.P.C., on the charges that they along, with absconding co-accused Ilyas Khan, on 9-12-2003 at about 0700 hours, in 'Landi Vagai Algada', within the precinct of Police Station, Takht Nasrati, formed an unlawful assembly in order to commit rioting and in prosecution of their common object of the said unlawful assembly, caused the murder of Abdul Nawaz by firing and attempted murder of complainant Zahidullah son of Awaz Khan and Zahidullah Jan son of Tary Khan P.Ws. At the conclusion of trial, benefit of doubt was extended to the accused-respondents and they were acquitted of the charges vide judgment 1-6-2006.

2. Appellant Zahidullah, feeling aggrieved, has filed instant Criminal Appeal under section 417(2), Cr.P.C., which is before us for consideration.

3. The prosecution story in brief is, that on the fateful day i.e. 9-12-2003, complainant Zaidullah accompanied by his co-villagers Abdul Nawaz (deceased) and Zaidullah Jan, was going to his land known as 'Landi Vagai Algada', for cutting 'Serkanda' trees. When they reached the venue of occurrence, accused-respondent Qayum Khan already 'Morcha zan' there, started firing at the complainant party, as a result of which Abdul Nawaz was hit and died on the spot. The complainant and his companion Zahidullah started running towards 'Khadda Banda', in order to save their lives. After covering some distance, accused-respondents Ahmad Saeed, Abdul Latif, Salim Khali, Sher Khan and absconding co-accused Ilyas Khan, appeared and resorted to firing in consequence of which complainant was hit. Motive for occurrence was alleged to be blood feud enmity and dispute over property.

4. After submission of challan, accused were summoned. Copies were given to the accused under section 265-C, Cr.P.C. and charge was framed against them on 19-7-2005, wherein they pleaded not guilty and claimed trial. Prosecution, in order to prove its case, examined 19 witnesses and closed its evidence on 25-4-2006. Thereafter, statements of accused were recorded under section 342, Cr.P.C. on 2-5-2006, wherein they pleaded not guilty and claimed innocence. They neither wished to be examined on oath nor desired to produce evidence in defence.

5. The details of the investigation carried out in this case as well as the evidence produced by the prosecution before the learned trial Court are available in the impugned judgment passed the trial Court and therefore, the present judgment may not be unduly burdened with the reproduction thereof.

6. Upon consideration of the material placed before him, learned trial Judge held that evidence on record was discrepant and not sufficient to substantiate the allegations levelled against the accused-respondent. Resultantly, while extending benefit of doubt to the accused-respondents, they were acquitted of the charges as mentioned and detailed above, through the impugned judgment dated 1-6-2006.

7. Appearing on behalf of the appellant, Mr. Wali Khan Afridi, Advocate 'attempted to argue that learned trial Court has not only disregarded the principles of appraisement of evidence, but has grossly misread the same, resulting in grave miscarriage of justice; that eye-witnesses of the occurrence, who are natural witnesses, have given a consistent and straightforward version of the incident and despite lengthy cross-examination their veracity could not be shaken; that the medical evidence fully corroborates the ocular account; that motive has been established and proved by the prosecution; that recoveries , have been effected from the spot and in view of absconsion of the accused-respondents, trial Court had no justification to extend them benefit of doubt and acquit the of the charges.

8. We have heard at length, arguments and submissions of learned counsel for the appellant. We have also gone through the record minutely with his able assistance.

9. It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeed in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal law is that the prosecution is duly bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created it must got to the accused and is sufficient to discredit the prosecution story and entitles the accused for acquittal. Person charged with the criminal offence is to be saddled with the, liability only if prosecution has established its case against him beyond all reasonable doubts.

10. After scanning the evidence on record, we are of the considered view that the prosecution has miserably failed to prove its case against the accused-respondents beyond any reasonable doubt and learned trial Court had valid reasons to pass a finding of acquittal in favour of the accused-respondents. We find that the prosecution evidence in quality and character is wanting so as to result in conviction of the accused-respondents. The ocular account does not inspire confidence and it is doubtful whether the eye-witnesses had seen the incident. No doubt, unfortunate incident has taken place in which deceased Abdul Nawaz lost his life and complainant sustained injuries but not in the manner asserted by the prosecution. There is again no corroborative evidence to supplement ocular evidence. Prosecution can seek support from motive, medical evidence, recoveries and abscondence of the accused-respondents but each piece of evidence is defective and failing in intrinsic value hence not fit for reliance to corroborate ocular version, which is itself defective. It is settled principle of law that one piece of tainted evidence cannot corroborate another piece of tainted evidence, as held by this Court in The State through Advocate-General N.-W.F.P., Peshawar v. Tawab and another (2002 PCr.LJ 377)

11. As far as medical evidence is concerned, it being in nature of confirmatory evidence, cannot be considered corroborative evidence. It is trite law that the medical evidence alone is insufficient to record a conviction, since it is only corroborative in nature.

12. The other piece of evidence left in this case is the motive but as in proverbal, motive is a double edged sword and it cut both ways. Admittedly, both the parties have deep-rooted enmity and also have dispute over landed property.

13. With regard to abscondence, suffice it to say that when otherwise evidence on the record is not credible and worth reliance, the mere fact that an accused remained absconder cannot remedy the defects and infirmities in the prosecution case. Abscondence as its best can be taken as corroborative evidence and not evidence of the charge.

14. The learned 'trial Judge in his detailed and well-reasoned judgment has attended to the every aspect of the case, leaving no room for further examination Cogent and valid reasons have been advanced for passing a finding of acquittal in favour of the accused-respondents, which are not open to legitimate exception. The impugned judgment is maintained and upheld. The appeal is dismissed in limine. H.B.T./113/P Appeal dismissed.