2018 PLP 80 (YLRN)

ISHTIAQ IBRAHIM, J.

State through Advocate, General, Khyber Pakhtunkhwa, Peshawar has preferred the present appeal under section 417, Cr.P.C. thereby assailing the impugned order dated 20.10.2015 passed by learned Sessions Judge Bannu, whereby accused/ respondent Haji Rehman, charged in case FIR No.86 dated 26.03.2012, under sections 302/34, P.P.C., Police Station Basia Khel, District Bannu was acquitted from the charges levelled against him.

2. According to prosecution case, complainant Ishfaq Ullah along with his cousin Fahim Ullah were proceeding on motorcycle to their village while their cousin namely Inam Ullah was riding on another motorcycle ahead of them. When they reached to the spot, there a red color Surf Jeep suddenly emerged and crossed them by hitting the motorcycle of Inam Ullah as a result of which he fell to the ground. From the said Jeep accused/ respondent along with acquitted co-accused Asmat Ullah duly armed with Klashinkovs alighted and started firing at Inam Ullah as a result of which he was hit and died on the spot whereas one passenger sitting on the roof of a passenger Pickup also got injured. The accused after commission of offence decamped from the spot. The injured passenger also succumbed to his injuries on the way to the hospital. Motive for the occurrence was disclosed as blood feud between the parties and dispute over womenfolk. On the basis of his report, present case was registered against the respondent and acquitted co-accused.

3. On completion of investigation, challan against accused submitted before the trial Court where Asmat Ullah faced trial and acquitted by the learned trial Court vide judgment dated 10.6.201 from the charges leveled against him whereas accused/respondent was d:claru,i Proclaimed Offender as he was avoiding his lawful arrest at that time.

4. After arrest of accused/ respondent Haji Rehman, supplementary challan was submitted against him before the learned trial Court where the prosecution in order to prove its case, produced sixteen (16) witnesses. On close of prosecution evidence, statement of accused/respondent under section 342, Cr.P.C. was recorded wherein he denied the allegations leveled against him. However, he did not opt to be examined on oath nor wished to produce defence evidence. After hearing arguments of leaned counsel for the parties, learned prosecutor, the learned trial Court vide impugned judgment dated 20.10.2015, acquitted the accused/respondent of the charges levelled against him. Feeling aggrieved from the same, the State through Advocate General Khyber Pakhtunkhwa, Peshawar has preferred the present appeal.

5. Arguments of learned AAG for the State/appellant heard and available record perused.

6. In the present case accused/ respondent along with acquitted co-accused Asmat Ullah were charged by the complainant Ishfaq Ullah for committing murder of his cousin namely Inamullah and a passenger namely Yasir Khan. Both the accused were assigned the general role of indiscriminate firing at the deceased. No specific role was ascribed to any of the accused in the initial report as to with whose fire shots, deceased Inam Ullah was hit and whose fire shots hit the deceased Yasir Khan, which creates doubt in the prosecution.

7. The star witnesses of prosecution are complainant Ishfaq Ullah (PW.13) and eye witness Fahim Ullah (PW.14) on whose testimony the prosecution case rests upon who were allegedly present on the spot at relevant time. It is the bounden duty of prosecution to establish that the above witnesses had seen the occurrence as well as their truthfulness. According to Court statements of both the above witness, the speed of Jeep of accused was 50 to 70 km/hr and 80 km/hr respectively which hit the motorcycle of deceased Inam Ullah from back side but the I.O. (PW.6) belied their stance by deposing in his Court statement that the motorcycle of deceased was not damaged rather having marks of collusion and its back light was not broken. He added that only front left signal light of motorcycle was broken, which means that the motorcycle was not hit from back but was hit from other angle. Speed of the Jeep shown by both the alleged eye witnesses, after hitting the motorcycle, the same could have been smashed and thrown to a far place, resulting into multiple injuries to the deceased Inam Ullah but his Post Mortem is mute regarding sustaining such like injuries. Had the motorcycle been hit from behind by said Jeep with a speed of 80 km/hr, then the motorcycle would definitely have been damaged from back side and the deceased would have also received certain injuries who fell on the ground as a result of said collusion. But no such damage to motorcycle or injuries on the person of injury have been mentioned by the doctor. Likewise, in the FIR, complainant has stated that after closing their shops, riding their motorcycle, they were on the way to their village Kachkot Asad Khan when the occurrence took place but in his Court statement as PW.13, he contradicted his earlier stance by stating that he had rented a computer shop outside Paredy Gate Bannu City however, during the days of occurrence, he had abandoned the same. Similarly both these witnesses deposed in respect of separate business of deceased Inam Ullah but it has not been mentioned in their statements that what type of business the deceased was running in his shop. According to PW.13 (complainant), 15 empties of 7.62 bore were recovered from the Kacha gola of metal road while according to PW.14(eye witness) the empties were recovered from kacha gola as well as on the metal road but they were belied by Investigation Officer (PW.6) who showed his inability regarding recovery from the Kacha gola or metal road. He also admitted that no point of recovery of empties in the site plan has been indicated by him. Likewise, both the eye witnesses are also contradicting each other in respect of presence of police at the spot when they reached there. Complainant(PW.13) asserts that the I.O., reached the spot after 10/15 minutes of their arrival while Fahim Ullah(PW.14) belied the said witness by stating that when he along with complainant (PW.13) reached the spot, 1.0, was already present there.

8. Motive behind the occurrence was disclosed by prosecution as blood feud as well as dispute of womenfolk but no convincing evidence has been produced by the prosecution to establish the same. It is also very strange that there was blood feud between the accused and complainant party but the accused had only targeted the deceased Inam Ullah at the time of occurrence and spared the complainant and PW,7ahim Ullah who were empty handed at relevant time and were also at the mercy of the accused, which is not appealable to a prudent mind and creates doubt regarding their presence on the spot. Had they been present on the spot, then they might have fired at by the accused party keeping. in view the blood feud between them. Besides, above contradictions and improvements, there are multiple contradictions in the prosecution evidence which needs not to be mentioned as it would amount to wastage of time of the Court because the contradictions referred above are sufficient for creating doubt in the prosecution evidence, the benefit of which must be given to the respondent. In the case of "Muhammad Akram v. The State" (2009 SCMR 230). it has been held by the apex Court that: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".

9. Apart from above, co-accused Asmat Ullah to whom similar/equal role of general firing at the complainant party was attributed, has already been acquitted on the same set of evidence by the learned trial Court vide judgment dated 10.6.2016. In the absence of strong corroboratory evidence, the accused could not be convicted on the same quality of evidence, which was disbelieved qua the co-accused. When case of an accused was not distinguishable from that of the acquitted co-accused and the evidence was indivisible in nature then in the absence of strong corroboratory evidence, coming from independent source, the same could not be made basis for conviction qua the accused. Wisdom is derived from the case of "Mst.Sughra Begum and others v. Qaiser Pervez and others" (2015 SCMR 1142). Furthermore, when it was inquired from learned AAG that whether any appeal against said acquittal of co-accused Asmat Ullah has been preferred by complainant or State, his reply was in negative.

10. Now adverting to abscondence of accused/respondent, it is by now well settled that abscondence per se is nothing but a corroborative piece of evidence. It can be taken into consideration along with other factors. But in the instant case, since the other circumstances are not sufficient to establish the guilt of the accused/respondent, therefore, abscondence alone cannot be made basis for his conviction. Help is sought from the case of "Muhammad Tasaveer v. Hafiz Zulkarnain and 2 others" (PLD 2009 Supreme Court 53) wherein it was held that:-- "Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an 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 absconsion, therefore, depends on facts of each case. The courts have admitted it as supporting evidence of the guilt of accused. The absconsion of accused may be consistent which is to be decided keeping in view over all facts of the case."

11. Above all, it is appeal against acquittal and consideration for interference in an appeal against acquittal and in an appeal from conviction are altogether different. The well settled principles for the appreciation of appeals against acquittal are:-- (i) That with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the presumption of innocence; (ii) That unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence, it may be tempted to come to a different conclusion; (iii) That unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere; (iv) That unless the judgment of acquittal is perverse and the reasons therefore are artificial and ridiculous, the Supreme Court would not interfere; and (v) That the Supreme Court, however, 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. Reliance is placed on the case "Muhammad lqbal v. Abid Hussain alias Mithu" (1994 SCMR 1928).

12. For what has been discussed above, we do not find any infirmity or illegality in the acquittal order of the learned trial Court, which is based on proper appreciation of evidence on record. Consequently, the present criminal appeal being devoid of merits is dismissed in limine. JK/249/P Appeal dismissed.