2013 PLP 223 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

Impugned herein is the judgment dated 16-12-2011, whereby respondents Nos.1 and 2 were acquitted by Additional Sessions Judge/Izafi Zila Qazi, Kabal, Swat, in case F.I.R. No. 117 dated 13-2-2007 under section 302/34, P.P.C. registered at Police Station Kabal.

2. Facts of the case concisely are that complainant lodged a report that on 13-2-2007, she along with Mst. Zahira and Mazoob was on the way to mountain known as "Kar", when at about 14-00 hours reached to 'Kacha' road, where Kaki son of Tajbaray and Mano son of Badar duly armed were present, in the meanwhile, Kaki started firing at her father-in-law as a result of which he was hit and died on the spot. The occurrence was stated to be witnessed by her besides Mst. Zahira. Motive for the occurrence was stated to be previous blood-feud enmity, as such, the above referred F.I.R. was registered.

3. After completion of investigation, complete challan was submitted to the court. The learned trial court after observing legal formalities within the meaning of section 265-C of the Criminal Procedure Code, framing of charge, recording prosecution evidence, statements of the accused under section 342, Cr.P.C. and hearing both the sides, acquitted both the respondents by extending benefit of doubt, hence, the instant criminal appeal.

4. Learned counsel for the appellant argued that the judgment of acquittal rendered by the learned trial Court is against the law, misappreciation of evidence and material available on the record. He further argued the respondent remained absconder for sufficient time after the commission of offence and that the ocular evidence is corroborated by the medical as well as circumstantial evidence. He further submitted that there is no major contradictions in the statements of the P.Ws. and that the prosecution has proved its case against the respondents beyond any shadow of doubt by producing the ocular as well as other circumstantial evidence, so, their acquittal, in the circumstances, was not warranted under the law which is liable to be set aside and they are liable to conviction.

5. We have heard learned counsel for the appellant and have gone through the record.

6. Suffice it to say that complainant when appeared as P.W.3, she categorically stated in her cross-examination that accused Ghuncha Gul is not known to her. She further admitted that she is not charging accused Ghuncha Gul and if he is acquitted of the charge she would have got no objection. Similarly, respondent No.1 Kaki Khan is charged for effective firing at the deceased while respondent No.2 Ghuncha Gul has not been ascribed any overt act and only his presence on the spot has been shown, so, keeping in view the above admission of the complainant and other material on file, appeal to the extent of Ghuncha Khan alias Mano deserve outright dismissal. As far as case against accused/ respondent No.1 Kaki Khan is concerned, perusal of the record would reveal that there is unexplained delay of five hours in lodging of the report as the occurrence is that of 14.00 hours whereas the report was lodged at 18.45 hours, therefore, it can be safely held that time was consumed in deliberations and consultations. There are also material contradictions in statements of ocular account, Investigating Officer and Medical Officer. Complainant as P.W.3 has stated in her cross-examination that the accused fired sixty shots and sixty empty shells were lying on the spot whereas P.W.4 Mst. Zahira stated in her cross-examination that ten shots were fired by the accused and ten empty shells were lying on the spot, however, the Investigating Officer, during spot inspection, has not recovered a single empty shell from the spot, which creates serious doubts in the prosecution case. Similarly, the statements of ocular account are also not in line with the postmortem report and statement of Medical Officer. As per statements of ocular account the deceased received ten fire arm injuries but on perusal of postmortem report, the doctor found one inlet and exit wound on his head/skull. The Medical officer when appeared as P.W.7 confirmed the contents of Exh.P.W.7/1, however, he denied the suggestion of the defence counsel that the deceased had received ten injures, therefore, the medical evidence is also not in line with the statements of alleged eye-witnesses, which too, casts serious doubt on the prosecution case. Learned counsel for appellant, however, submitted that the prosecution has effected recovery of a Kalashnikov as weapon of offence from the residential house of accused but since the same has not been recovered from the direct possession of the accused or on his pointation, particularly, when no empty shell has been recovered from the spot, therefore, the same is of no use to prosecution. As per contention of learned counsel for the appellant, the accused/ respondents remained fugitive from law for sufficient time, therefore, they were not entitled to earn acquittal, keeping in view their longstanding abscondance. Abscondance of accused though being relevant could not be used as a corroborative piece of evidence, which had to be read along with substantive piece of evidence and not in isolation and abscondance alone cannot be a substitute for real evidence. In the present case the substantive evidence of ocular account had already been disbelieved, therefore, the contention of learned counsel for the appellant is meaningless. Reliance in this regard can be placed on the cases of Rohtas Khan v. The State, 2010 SCMR 566 and Mir Mat Khan alias Matokai v. The State 2002 PCr.LJ 1914. From the analysis of the evidence produced by the prosecution it is evident that there are inherent infirmities in the prosecution case and the prosecution witnesses contradicted each other on material particulars and their testimony is inconsistent, untrustworthy and not confidence inspiring and it appears that the occurrence is that of unseen and has not taken place in the manner as stated by the prosecution. It is the duty of the prosecution to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, its benefit must go to the accused, so, we are of the firm opinion that the trial Court has rightly extended the benefit of doubt to the accused on valid and cogent reasons by correctly appreciating the evidence on record and his acquittal did not call for any interference by this court. Moreover, considerations for deciding the appeal against acquittal and conviction are different than an appeal against conviction. In the case, if the judgment is perverse or reasons assigned therein are artificial and flimsy or based on misreading or non-reading of evidence or a different opinion can be gathered, the judgment cannot be upset. Even otherwise double presumption of innocence lies in favour of the accused. After examining the material on record, we find that none of the above ingredients are attracted in the present case. Consequently, this appeal being devoid of any merit is dismissed in limine. HBT/312/P Appeal dismissed.