RAHIMULLAH JAN vs KASHIF and another

' IJAZ-UL-HASSAN KHAN, J.---These three petitions have been filed by Rahimullah Jan, petitioner, under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 seeking leave against judgment dated 16-7-2003 passed by learned Division Bench of the Peshawar High Court, Peshawar accepting Criminal Appeal No,205/2002 of Kashif respondent, setting aside the conviction and sentence awarded to him under section 302/34, P.P.C. By Additional Sessions Judge, Karak vide judgment dated 18-6-2002 and dismissing petitioners' Criminal Revision No,80/2002 for enhancement of sentence of Kashif as well as Criminal Appeal No,236/2000 and Criminal Appeal No,461 of 2000 of the State filed against acquittal of Habibur Rahman and Assadullah, respondents, by Sessions Judge, Karak vide judgment dated 30-5-2000.

2. The prosecution story in brief, is that on the fateful day, i,e, 13-12-1988 at 1430 hours, petitioner and his brother Noor Salim Jan, deceased, were on their way to Karak Bazaar. When they reached near Ice Factory, respondents Habibur Rehman, Asadullah and Kashif were standing there. On calling, Noor Salim Jan, deceased, went towards them. Respondents and deceased climbed up to the Balakhana, while' petitioner remained on the road side waiting for the return of his brother. In the meanwhile, petitioner heard the report of fire shots. In order to apprise himself of the situation, petitioner went inside the `Balakhana'. Petitioner, saw Habibur Rehman, Asadullah and Kashif, respondents, coming out from the Balakhana. Kashif was having a 12 bore pistol in his hand.

Petitioner found the victim lying on the ground in injured condition. The victim succumbed to the injuries while enroute to the hospital. The motive leading to the incident was that deceased was suspected of having illicit relations with the daughter of Habibur Rehman, respondent.

3. At the conclusion of trial, respondents Habibur Rehman and Asadullah were given benefit of doubt and acquitted of the charges by the trial Court vide judgment dated 30-5-2000. Respondent _Kashif remained absconder and did not face trial. He surrendered on 12-6-2000 and was convicted and sentenced as stated and mentioned above.

4. Ch. Afrasaib Khan, learned Advocate Supreme Court for petitioner, impugned the judgment of acquittal. On the ground that it was a daylight occurrence and there was no chance of misidentification; that F.I.R. Was lodged promptly and that learned High Court has not properly appreciated the prosecution version, which has resulted in miscarriage of justice. He further added that abscondence of Kashif was a further incriminating circumstance to connect him with the alleged offence.

5. On the contrary, respondents, who appeared in person, controverted the arguments of learned counsel for petitioner and fully supported the impugned judgment.

6. We have heard the arguments of learned counsel for petitioner and re-examined the record on file. Learned counsel has not been able to point out any piece of evidence which could pursuade us to hold that the findings of fact recorded by the High Court are against the evidence brought on record. The reasons given by the High Court for acquittal of the respondents are neither perverse nor arbitrary nor against the evidence led by the prosecution. It is an un-witnessed occurrence and claim of the petitioner having accompanied his brother to the spot at the relevant time, stands belied by host of circumstances.

7. It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.

8. Insofar as the abscondence of respondent Kashif is concerned, it may be stated that mere absconsion is not 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 Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case.

9. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, I kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.

10. So far as recovery of blood from the spot is concerned, it D established the venue of occurrence and does not connect the respondent, in any manner, with the commission of offence.

11. In view of the above, we do not find any substance in these petitions, which are dismissed and .