' CHAUDHARY MUHAMMAD, TAJ, J.---The above captioned two appeals arise out of a judgment of the Shariat Court, dated 28-10-2004 as such are disposed of by this common order.
2. The facts are that a case under section 302, A.P.C. Was registered at Police Station Pallandri on 12-7-2004. During investigation, the convict-appellant was arrested and a challan was submitted against him in the District Court of Criminal Jurisdiction Pallandri. After conclusion of the trial he was convicted and sentenced to death. An appeal on behalf of the convict-appellant was filed in the Shariat Court of Azad Jammu and Kashmir. The District Court of Criminal Jurisdiction Pallandri also submitted a reference for confirmation of the death sentence. A Division Bench of the Shariat Court of Azad Jammu and Kashmir dismissed the appeal. However, they did not confirm the death sentence and modified the same as life imprisonment. These appeals challenge the aforesaid order.
3. Mr. Imdad Ali Mallick, the learned counsel representing the appellant, raised following points in support of the appeal:--
(i) That the prosecution has failed to establish any case against the appellant through evidence as such the conviction and sentence recorded by the trial Court as well as the Shariat Court is against law;
(ii) that the trial Court proceeded with the trial against mandatory provisions of Criminal Procedure Code regulating the trial, therefore, the judgment was bad in law;'
(iii) that the trial Court did not conduct the purgation of the witnesses as such the trial is illegal and is liable to be set aside;
(iv) that according to the First Information Report none is nominated as accused or a witness of the occurrence;
(v) that so-called eye-witness, namely Sain Ejaz, was present with the complainant thereafter he lodged the report but he did not mention any eye-witness nor the said Sain Ejaz told him that he saw the occurrence, therefore, he did not see the occurrence and was planted as eye-witness;
(vi) that the said eye-witness remained with the police for many days as admitted by the Investigating Officer. The police managed to plant him and thus his statement under section 161, Cr.P.C. Was recorded after 13 days;
(vii) that the statement of the said eyewitness was contradictory who admitted that the statement was made on the direction of the police. It may also be added that the witness was insane as held by the trial Court, therefore, reliance on the aforesaid evidence was against law; (viii)that all the circumstantial evidence collected by the prosecution does not confer any confidence as none of the item connects the accused with the offence. It was submitted that recovery of 'Churri' does not connect the accused with the offence as the same though according to the claim of the prosecution was blood-stained but was not sent to the Chemical Examiner or Serologist for determination of the blood group;
(ix) that the recovery of 'Chappal' allegedly of the accused does not lend any support to the prosecution case as the same was not blood stained therefore even if it is admitted it has no bearing; and
(x) that the evidence of Dispenser in Sarsawa and other witnesses to this effect that the accused travelled from Pallandri to Sarsawa hardly connects. The accused in any way with the offence.
Similarly, other evidence in connection with the injuries sustained by the accused on his fingers is not supportive to the prosecution version as the medical certificate is doubtful.
4. Sardar Mushtaq Hussain Khan, the learned counsel for the complainant, while controverting the arguments advanced by the learned counsel for the appellant, argued in the following manner:-- ' That the prosecution proved its case beyond any reasonable doubt and thus the trial Court convicted and sentenced the appellant to death. However, the Shariat Court of Azad Jammu and Kashmir did not confirm the death sentence in appeal and reference submitted by the trial Court.
The sentence was modified as life imprisonment. The order to this extent recorded by the Shariat Court requires to be set aside for death sentence for the following reasons:-
(i) that both the Courts below accepted the evidence as true and thus maintained the conviction of the convict-appellant, therefore,' the learned Judges in the Shariat Court committed error by not awarding normal sentence which is death:
(ii) that the prosecution case was proved through direct evidence by producing Sain Ejaz, an independent witness, as eyewitness who was not related to any party or inimical towards anyone;
(iii) that the prosecution produced recovery witnesses of 'Churri', the weapon of offence, which was blood-stained and also produced the evidence that the same was recovered at the instance of the accused;
(iv) that the prosecution also led evidence that the accused while committing the offence also injured his fingers. The medical certificate to this effect and the evidence of prosecution witnesses who stated before the Court that the accused was treated by them was produced;
(v) that the prosecution also brought on record the evidence of recovery of 'Chapal' and clothes of accused recovered on the pointation of the convict-appellant which were kept by him after committing the crime; and
(vi) that the other circumstantial evidence which connect the accused as such the case was built without any doubt or contradiction, therefore, the sentence of death awarded by the trial Court may be confirmed.
5: Raja Ibrar Hussain, the learned Advocate-General, adopted the arguments addressed on behalf of the counsel for the complainant.
6. We have heard the learned counsel for the parties and also gone through the record. The First Information Report was lodged by Muhammad Rafique son of Abdul Rehman, the complainant, on 12-7-2004 at 4-00 a.m. It was stated that he is a Chowkidar in Pallandri Bazar. On 12-7-2004 he was checking the shops. At about 3-45 a.m he noticed the door of Haleem Hotel near Jamia Masjid was open and the light was also unusually litting. He entered the hotel and saw dead body of Muhammad Haleem son of Muhammad Hayat in blood pool who was murdered by some person or persons through a sharp-edged weapon by inflicting injuries on the abdomen and the other parts of the body. It was further stated that a person namely Sain Ejaz was also present. The police started investigation, apprehended the convict-appellant and submitted a challan before the District Court of Criminal Jurisdiction Pallandri under section 302 A.P.C. The motive was alleged that the convict had to pay Rs.30,000 to the deceased which he was demanding and the convict- appellant, therefore, killed him. During investigation the statement of eyewitness Sain Ejaz was recorded under section 161, Cr.P.C. The blood-stained earth was taken into possession.
Bloodstained clothes of the deceased along with the bedding in the hotel were taken into possession. The clothes of Sain Ejaz, the eye-witness, were also taken into possession. The clothes of the accused after his arrest were also taken into possession. The 'Chappal' belonging to the accused was also recovered at the pointation of the convict-appellant. The statement of the prosecution witnesses where the accused was treated were also recorded under section 161, Cr.P.C.
The injury report was prepared and the deceased was referred for post-mortem. The doctor conducted the autoposy and also submitted a report along with the medical report of the accused. After investigation a challan was submitted before the trial Court. The trial Court after examining the accused under section 242, Cr.P.C. Recorded the statenient of the prosecution witnesses which were 26 in number and thereafter convicted the accused and sentenced him to death. The convict-appellant filed an appeal against his conviction and sentence and the trial Court also submitted a reference for confirmation.
' The learned Shariat Court did not confirm the death sentence which was altered as life imprisonment. The aforesaid order is challenged through two appeals filed by the convict- appellant for acquittal and the complainant-appellant for enhancement of the sentence.
7. Before adverting to the other prosecution evidence it would be essential to see the credentials of ocular evidence produced by the prosecution. It would be relevant to mention that the First Information Report was lodged , by one Muhammad Rafique, the Chowkidar of the bazaar, who was not a witness of the occurrence and also did not nominate any accused person or persons or any witness of the occurrence. However, it was stated that a person namely Sain Ejaz was in the hotel when he saw the deadbody lying over there. The said Muhammad Rafique appeared as a witness before the Court and narrated the same story.
8. The prosecution produced Sain Ejaz, the sole eye-witness, in support of its story. This witness, according to the complainant, was present in the hotel but he did not disclose anything about any culprit or culprits to the complainant. The witness, according to the trial Court, was an insane {{URDU TEXT}}who disclosed his age as 1-1/2 years. It would be necessary to notice some of the features of his evidence which are as follows:--
(i) that the witness was present ,at the time the complainant found the dead body lying in the hotel but did not tell the complainant about the culprit or he had witnessed the occurrence;
(ii) that he remained with the police for some days but did not disclose about any culprit as admitted by the Sub-Inspector;
(iii) that his statement under section 161, Cr.P.C. Was recorded after 13 days where first time he named appellant as culprit;
(iv) that during his statement he disclosed that he made statement on the direction of the police;
(v) that he did not mention date, time and month of the occurrence; and
(vi) that he stated during statement in the Court that he slept in the night and woke up in the morning and did not awake at night time.
9. After analyzing the aforesaid features it shows that the said witness did not know who had committed the offence as he did not say anything about any culprit to the complainant and to the police when he was with them in spite of being in the hotel, the place of occurrence. The police only managed to plant him as an eye-witness on 25-7-2004 after nearly 12/13 days when his statement under section 161, Cr.P.C. Was recorded. He admitted in his statement that he made the statement on the direction of the police. The trial Court, as mentioned above, gave a note that he is an insane person. He failed to disclose any day, time and month of the occurrence.
10. The circumstantial evidence produced by the prosecution rests on three sets of evidence; (i) recovery of 'Churri', blood-stained clothes and recovery of a 'Chappal', (ii) evidence of medical certificate with regard to the injuries sustained by the accused on his fingers and also evidence with regard to his receiving the treatment; and (iii) evidence of motive.
11. So far as the recovery of 'Churri' is concerned, the prosecution produced firstly Fazal Hussain, P.W., who stated that the accused purchased this 'Churri' from him. He also admitted in his statement that there are other 'Churries' with him which are of the same size and kind and there was no special mark on the 'Churri' . The other two witnesses namely Sardar Abdul Rashid Khan son of Sub. Khadim Hussain and Zulfiqar Ali son of Muhammad Ayub were produced stating that said recovery was made at the instance of the accused. It was claimed by the prosecution that said articles were stained with blood but no report from Serologist with regard to the determination of the origin of the blood and the same matching with the blood of the deceased was placed on record. Therefore, even if we accept that the 'Churri' was recovered at the instance of the accused it would have no bearing and it lends no support to the prosecution's case. Similarly, the prosecution claimed that the clothes of the accused were taken into possession and prosecution also produced Sardar Muhammad Nawaz Khan, Inspector who stated that the aforesaid clothes were taken into possession in his presence which were given by the accused. No report of the Serologist which may show any connection of accused through the blood-stained clothes with the offence was brought on record, therefore, such evidence is not supportive to the prosecution case.
A 'Chappal' was recovered at the instance of the accused which, according to the prosecution, was of the accused but this 'Chappal' was recovered at the instance of the accused in presence of witnesses Zulfiqar Ali and Muhammad Razzaq Khan. It is not understandable how the same is linked with the offence as no blood is found on the 'Chappal'. The prosecution produced doctor who had issued a certificate showing the accused's fingers injured. The prosecution has also produced evidence in support of the injuries by producing witnesses who had deposed before the Court that the accused was treated by them.
12. The first question arises whether there was any evidence that the accused received injuries at the time he inflicted injuries to deceased Muhammad Haleem. The accused was apprehended by the police on 23-7-2004. Through an injury report he was referred to the Hospital. The injury report appears to have been prepared on 20-7-2004 which seems to have been tampered as 23-7-2004.
The certificate of the doctor shows the examination made on 20-7-2004. The same date was put on bottom of the certificate which also shows to have been tampered as 23-7-2004. However, the date mentioned by the doctor for arrival of Arif Hussain, accused, and his examination was shown to have been made on 20-7-2004. It was given that the duration of injuries and examination was from 7 to 10 days. All the injuries were shown as healing wounds. He has given no reasons for giving such duration and in our humble estimation it could not be said with certainty as wha would be the duration in these conditions. The other evidence produced in support of receiving injuries during occurrence was Dispenser who deposed that the accused was treated by him by showing his name as Shah Nawaz. This sort of evidence cannot be said to be the evidence which may be called supportive to the prosecution story. The learned Judges in the Shariat Court held that it was for the accused to prove that he was injured in Gujranwala where he has been treated but he failed to do so in spite of admitting the fact of receiving the injuries at Gujranwala. We are afraid we cannot agree with them.
It is a golden principle of criminal law that the burden of proof rests on the prosecution and not the accused to prove his innocence. Unless the evidence is there to prove that the accused received the injuries during occurrence, mere surmises and conjectures cannot take place of proof. We cannot presume that since the accused's fingers were injured, therefore, those were injured during the occurrence.
13. The prosecution though collected other material which, according to the prosecution, was termed as incriminating material such as taking into possession the blood stained bedding from the Hotel, blood-stained clothes of the deceased, blood-stained material from stairs but all these items lead to the fact that the murder was committed but those pieces of evidence do not suggest as to the connection of the accused with the offence.
14. So far as the question of motive is concerned, the trial Court reached to the conclusion that the accused-appellant had to make payment of Rs.30,000 the amount of committee, and the deceased was demanding from him. However, the Sharait Court did not accept that the motive was proved apart from the fact that the said motive could be a good ground for murdering the deceased.
15. The accumulative effect of above discussion leads to the conclusion that there is no evidence which inspires-confidence and the conviction could be based on it.
16. It is analysed that the evidence is not sufficient to hold the appellant guilty beyond reasonable doubt. It is settled principle under all systems of criminal justice that unless proved guilty on the basis of reliable or true evidence and that benefit of every reasonable doubt is to go to the accused. Reference may be made to a case reported as Sikandar v. The State (PLD 1963 SC 17) where the Supreme Court of Pakistan resolved the proposition of benefit of doubt in the following words Since Muhammad Ramzan admitted that he appeared again before the Police at 8 a.m. The following morning, the possibility at once arises that he was a witness of late production, and it might even be that his name was brought in as eye-witness at a late stage. The choice between doubting his statement that he gave his evidence to the'Police the same night before 9-53 p.m., and doubting the statement of the Assistant Sub-Inspector of Police regarding all that he did after receiving the report and before sitting down to record the statement of Muhammad Ramzan. The learned Judges in the High Court did not think that this clear doubt was incapable of being cleared.
They preferred to believe that Muhammad Ramzan was a genuine witness because they thought that if he was not, then Ranjha would not have taken the risk of naming him in the report. In order to come to this conclusion, they decided that the A.S.-I. Had not made 'a straightforward statement.'
' In reaching this conclusion it is perfectly clear that the learned Judges have ignored one of the cardinal principles applicable to the resolution of all material questions arising in a criminal proceeding, namely, the principle that the benefit of every doubt must go to the accused. It is being a question whether the A.S.-1. Was to be believed or Muhammad Ramzan was to be believed, the only course open to the learned Judges in accordance with this recognized rule applicable to criminal justice was to hold in favour of the accused, namely, that it was doubtful whether Muhammad Ramzan was a true witness. Materials have been brought on the record by the defence to indicate that he was not free from the influence of the family of the accused."
' In another case titled Muhammad Ilyas v. The State (1997 SCM R 25) the view was expressed in the following words:-- "(4) It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation.
In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt."
17. There is another aspect where trial Court committed illegality and was overlooked by the Shariat Court. According to section 26 of the Islamic Penal Laws Act the purgation of the eye-witness has to be made by the trial Court failing which the judgment becomes illegal and has to be set aside.
This Court in number of cases such as State v. Amir Zaman Hanafi and 4 others (PLD 1979 SC (AJ&K) 78, Muhammad Razzaq and another v. The State (PLD 1988 SC (AJ&K) 190, held that these are mandatory provisions of law that the trial Court has to make purgation {{URDU TEXT}} of the eye-witnesses but for unknown reason it has come to our notice that Courts, particularly the District Criminal Courts in Azad Jammu and Kashmir are least caring for the mandatory provisions of law and the cases have to be remanded for this purpose after setting aside the judgments. In this case though it was an illegality which was noticed by the Court but since there is no truthful evidence and the case is full of doubts and contradictions as held in the earlier part of the order, therefore, there is no legal necessity to remand the matter to the trial Court on this score.
18. In view of the above discussion, the judgment passed by the Shariat Court is set aside by accepting the appeal filed by the convict-appellant Aril Hussain who is acquitted of the charge.
The accused shall be released if not required in-any other case or offence. The other appeal filed by the complainant-appellant stands dismissed.