2005 PLP 1927 (MLD)

IJAZ-UL-HASSAN KHAN, J.

Through this Criminal Appeal No.45 of 2001, filed under section 417(2)(a), Cr.P.C., appellant Nabnawaz Khan has called in question the acquittal judgment dated 16-6-2001, recorded by the learned Additional Sessions Judge, Bannu, in sessions case No.117 of 2001, under section 302/34, P.P.C., arising out of F.I.R. No.100 dated 26-7-2000 of Police Station, Kaki Bannu.

2. The crime in question is alleged to have taken place on 26-7-2001 at 1215 hours, on road leading to Hayat Kaki, near `Mandori Baba Ziariat' and the report Exh.P.A. about it was lodged the same day at 1300 hours by complainant Rabnawaz Khan, at Police Station, Kaki, distant 5/6 kilo meters from the venue of occurrence and it was recorded by S.H.O. Muhammad Ghazi (P.W.7).

3. The prosecution story in brief is, that on the fateful day, appellant Rabnawaz Khan accompanied by his nephew Waliyaz (deceased) was on the way to `Ziariat Mandori Baba' for taking bath in the pond over there. At about 12-15 noon, no sooner the appellant and his nephew reached near the Ziarat, respondents Jalil Khan and Jamil Khan, son of Sher Bahader, resident of Kaki Khas Bannu, carrying a .12 bore DB shotgun and a dagger along with their absconding co-accused Sabz Ali, armed with .12 bore pistol, emerged at the spot and at instigation of Jamil Khan, Jalil Khan, respondent and the absconding co-accused fired at the deceased, with which he was hit and died there and then. After achieving the goal, respondents managed to run away from the spot. The motive leading to the occurrence was stated to be an altercation, which had taken place between the deceased and respondents, about one and a half month- back.

4. After recording the report (Exh.P.A.) S.H.O. Muhammad Ghazi (P.W.7) prepared injury sheet, Exh.PM/1, inquest report Exh.PM/2 of the deceased and dispatched the dead body to the mortuary for post-mortem examination. On reaching the spot he prepared site-plan Exh.P.B. at the pointation of the complainant, took into possession blood-stained earth from the place of the deceased and sealed the same into parcel, vide recovery memo. Exh.P.C. He also took into possession blood-stained shirt, one phial containing four pellets, recovered from the dead body of the deceased vide recovery memo. Exh.PC/1. The respondents were arrested on 7-8-2000, when they surrendered before the police. After recording statements of the prosecution witnesses, placing on record report Exh.P.Z. of the Serologist and completing other necessary formalities, challan was submitted in Court.

5. The prosecution in order to prove its case, produced 7 witnesses in all. Complainant Rabnawaz Khan (P.W.6) furnished eye-witness account of the incident and charged the respondents and absconding co-accused Sabz Ali for the murder of Waliyaz deceased.

6. Dr. Ghulam Muhammad (P.W.1) Medical Officer, Zanana Hospital, Bannu, on 26-7-2000 at 3-30 p.m., conducted post-mortem examination on the dead body of Waliyaz and noted the following:-- (1) One fire-arm entry wound 1 x 1" and two small fire-arm entry wound 1/4" x 1/4" all below manbrium-sterni.side by side. (2) 5 fire-arm exit wounds 2 to 3" apart from one another 1/4" x 1/4", each. Four pellets were retrieved from these wounds on the back of right shoulder. In the opinion of the doctor, the deceased died due to fire-arm injuries to the vital organs like lung and major blood vessels and profuse haemorrhage. Probable time between injuries and death instantaneous and between death and post-mortem 4 to 8 hours.

7. Respondents in their respective statements recorded under section 342, Cr.P.C. denied the case of the prosecution and claimed innocence. In answer to a question `as to what is your statement and why are you charged', respondent Jalil Khan stated:-- "I am innocent and falsely charged. The Investigating Officer has brought the real motive on the record, who from the first day, concluded that I and the co-accused on trial both are innocent and on over arrest, he had examined several witnesses of different locality wherein the plea of alibi taken by me was confirmed by all such witnesses, which I had taken on the first day of my appearance before the police. After recording the statements of 26 witnesses, having no connection with me, I was declared as innocent. Second inquiry was conducted on application of the complainant by the DSP under the order of SP, in which too I was declared innocent and only absconding co-accused was held responsible."

8. Respondent Jamil Khan also gave similar reply to the said question.

9. They neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence.

10. After considering the material on record and hearing the arguments of learned counsel for the parties, the learned trial Judge extended benefit of doubt to the accused-respondents and acquitted them of the charge, as mentioned above.

11. Syed Zafar Abbas Zaidi, Advocate, appearing for the appellant, contended with force that the F.I.R. in this case has been lodged with reasonable promptitude, containing all the relevant details of the occurrence and the means of the respondents as well the role played by them in the case during the occurrence; that the promptness in lodging the F.I.R. eliminates all possibilities of the fabrication and false implication; that complainant was subjected to lengthy and searching cross-examination by the defence but the witness withstood the test on all the material and relevant aspects; that the findings of the acquittal recorded by the trial Court are not supported by evidence on record and the trial Court has illegally extended benefit of doubt to the respondents and the judgment passed by the trial Court is perverse and the reasoning of the trial Court ,are artificial vis-a-vis the evidence on record. The learned counsel also contended that the ocular version furnished by complainant is not only worthy of credence but is also corroborated by the medical evidence and other circumstantial evidence, such as motive, recovery of empties from the spot and abscontion. Additionally, he urged that respondents have also set up a false plea of alibi, which remained unsubstantiated and the learned trial Judge had no justifiable reason to place reliance on plea of alibi and make the same basis of the acquittal of the respondents. To substantiate the pleas, reliance was placed on Capt. Mahmood Jan v. Madad Khan and another (1981 SCMR 474), Khushi Muhammad v. The State (1983 SCMR 697) and Amal Sherin and another v. The State through A.G. N.-W.F.P. (PLD 2004 Supreme Court 371).

12. Chaudhary Muhammad Sharif, learned Deputy Advocate-General assisted by Mr. Salimullah Ranazai, Advocate for the respondents, on the other hand, fully supported the impugned judgment of acquittal and contended that reasons advanced in support of acquittal are sound, cogent and based upon evidence on record and these are not at all flimsy and whimsical. It was urged that in the case of appeal against acquittal, the superior Courts ordinarily do not interfere but instead give due weight and consideration to the findings of the Court acquitting the accused.

13. We have heard at length the arguments and submissions of learned counsel for the parties and have gone through the record of the case with their assistance.

14. To convict a person on capital charge, evidence should be of high quality and good standard which is not available in this case. The prosecution primarily is supposed to establish guilt against the accused-respondent beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction. Person charged with a criminal offence is to be saddled with the liability only if prosecution has established its case against him beyond all reasonable doubts. To inflict capital punishment of death or that of life imprisonment, the prosecution is under statutory obligation to furnish the first degree of proof through high quality evidence reasonably creating nexus of an accused with the commission of the offence.

15. Having considered the matter from all angles, we feel that the judgment written by the trial Court is a fair judgment based on proper, just and legal appreciation of the evidence on record. Appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. The evidence of the prosecution has been fairly and properly appreciated to secure the ends of justice. No doubt, it is true that accused-respondents stand directly nominated in the promptly lodged report for the commission of crime but it is equally true that the prosecution has failed to produce evidence, which could connect accused-respondents with the commission of crime. It needs no reiteration that standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of accused-respondent is considerably narrow and limited. It is well-settled now that the superior Courts while dealing with the appeal against acquittal interfere only in such cases where the judgment of acquittal is based on misreading, non-appraisal of evidence or is speculative, artificial, arbitrary and foolish on its face, Muhammad Usman and 2 others v. The State (1992 SCMR 498) and Muhammad Ali v. Muhammad Yaqoob and 3 others (1998 SCMR 1814), Ghulam Sikandar and another v. Mamraz Khan and others (PLD 1985 SC 11) and Hameed-ur-Rehman v. Said Rehman and 5 others (2005 PCr.LJ 53).

16. So far as the medical evidence is concerned, only one wound has been found on the chest of the deceased, whereas three persons have been charged for firing. It is not certain as to whose fire shot proved fatal and resulted in the death of Waliyaz deceased. This circumstance goes against the prosecution and creates doubt in one's mind regarding presence of the eye-witness at the spot at the time of occurrence.

17. A strong motive is alleged against the accused-respondents. An. altercation is stated to have taken place between the deceased and the accused-respondents about a month and a half prior to the present occurrence. The accused-respondents are shown to have taken the life of the deceased in order to take revenge of their insult. The motive has not been satisfactorily proved. It has come on record that the deceased was suspected of having made an abortive attempt to outrage the modesty of the wife of Sabz Ali absconding co-accused. The possibility of absconding co-accused, having a hand in the occurrence, cannot be ruled out.

18. The respondents are alleged to have disappeared from the village and gone into hiding in order to avoid arrest. The abscondence has been denied and it is claimed that respondents did not abscond and appeared before the police of their own. It needs no reiteration that abscondence alone, cannot be a substitute for real evidence. Mere abscondence of accused cannot be considered enough to sustain conviction of accused as held in Farman Ali and others v. The State (PLD 1980 SC 201) and Muhammad v. Pesham Khan (1986 SCMR 823).

19. It may be observed that during investigation of the case, respondents were found innocent by the Investigating Officer. An inquiry was also conducted by DSP Bannu, in view of the application of the appellant and in this inquiry too, the respondents were found innocent. The plea of alibi raised by the respondents has rightly been taken into consideration and made basis for the acquittal of the respondents.

20. The judgment of acquittal is balanced and well-reasoned and we hold that enough evidence for conviction of respondents was not available in the case. After the acquittal, respondent enjoys double presumption of being innocent as the first presumption is awarded to him by the law of the land while the second presumption is created by the impugned judgment of acquittal. To do away with. both these presumptions prosecution is required to produce confidence-inspiring evidence, which is not available in this case. In the result and for the foregoing reasons, we see no force in this appeal and dismiss the same. The judgment of acquittal dated 16-6-2001 is maintained. The accused-respondents are discharged of the obligation of bail bonds executed by them in pursuance to the order dated 7-11-2001 of this Court. H.B.T. /526/P Appeal dismissed.