' KHAWAJA MUHAMMAD SAEED, ACTG. C.J.--- This appeal is directed against the judgment passed by the Shariat Court on 25-3-2003.
2. The case of the prosecution, as set up in the F.I.R. Exh.P.A. Dated 11-2-1991, briefly stated, is that the complainant, Abdul Khaliq was standing with his close relative and guest Muhammad Yusuf in his courtyard when his cousin Ghazanfar Ali, respondent, along with two other unknown persons armed with kalashnikovs abruptly entered into the courtyard from the open gate of the house.
Ghazanfar Ali shouted at the complainant and opened fire with kalashnikov. The guest relative of complainant namely Muhammad Yusuf received injuries and later on died on the spot. After the occurrence all the assailants fled away from the scene of occurrence and escaped by a white Car No,092-226-Karachi which was parked on the roadside. According to the complainant, accused Ghazanfar Ali had old enmity with him. On account of that reason he was after the life of his sons.
The occurrence besides the complainant, according to the F.I.R., was witnessed by his two sons Tariq Mehmood and Masood Hussain. The police in the light of F.I.R. Conducted investigation and arrived at the conclusion that Riaz Ahmed and one Abid were with Ghazanfar Ali at the time of occurrence. The police also found other two assailants, brothers of Ghazanfar Ali, namely Mehboob Hussain and Aftab Hussain, behind the occurrence, Riaz Ahmed accused in the case could not be traced out as such he was proceeded under section 512, Cr.P.C., whereas about Abid it was reported that he had died, as such only three persons; Ghazanfar Ali and his two brothers, were sent to face trial before the District Court of Criminal Jurisdiction, Mirpur. All the accused persons denied their guilt. The prosecution thereafter was asked to produce evidence in support of the case. The prosecution produced Mian Khan, constable, Abdul Hach Masood Hussain, Tariq Mehmood, Ch. Muhammad Khalique, Ali Muhammad, Raja Bostan, Jamroz Hussain, Ch. Gulzar Hussain, Sardar Faisal Ayyub, Muhammad Maqsood, Abdul Hameed, tailor Fazal Hussain, Tsawar Hussain, Ghulam Asghar, Muhammad Hanif, Sabir Hussain, Ashfaque Ahmed, Mehmood Khan, Ejaz Hussain, Kh. Pervaiz Ahmed, Sardar Abdul Latif Chughtai, Mirza Asghar Baig, Riaz Hussain, Mumtaz Hussain Shah, Shabir Hussain Shah, Zamurd Hussain Shah, Muhammad Aslam, Raja Zafar Hussain, Dr. Khalid Jamil, Assistant Chemical Examiner, Muhammad Yaqub, Muhammad Ashraf, Muhammad Humayun and Abdul Razzaque as witnesses. The trial Court at the end of the trial convicted respondent, Ghazanfar Ali, for offences under section 5 I.P.L. Read with sections 307, 449, 109 and 34, A.P.C. And awarded him sentence of Diyyat of Rs,3,35,370, whereas his two brothers namely Mehboob Hussain and Aftab Hussain, were acquitted of the charge. Ghazanfar Ali challenged the legality and correctness of the impugned judgment of the trial Court before the Shariat Court and requested that the same may be set aside as it is not warranted under law.
Similarly the complainant and legal heirs of slain Muhammad Yusuf also preferred appeal for enhancement of sentence awarded to respondent Ghazanfar Ali and also for quashment of acquittal order passed in favor of his two brothers. The learned Judge in the Shariat Court dismissed the appeal of the complainant and the legal heirs of slain Muhammad Yusuf, whereas while allowing the appeal of convict Ghazanfar Ali he was acquitted of the charge vide judgment under challenge dated 25-3-2003. This judgment has been assailed before this Court through the present appeal.
3. Ch. Muhammad Sharif Tariq, the learned counsel for the appellants, argued that Ghazanfar Ali was nominated in the F.I.R. He was cousin of Abdul Khaliq; complainant as such was well-known to him and his sons, who identified him at the time of occurrence. Moreover he shouted at the complainant and opened fire which instead of Abdul Khaliq took the life of his relative guest Muhammad Yusuf, who on that fateful night was staying with him in his house. His two brothers were not nominated by the complainant. This shows fairness on the part of the complainant. The two persons accompanying him at the time of occurrence were identified as Riaz Ahmed and Abid by the police during the investigation. The police in the investigation found that the two brothers of Ghazanfar Ali were also behind this unfortunate incident because both of them were arrested in a bailable offence but they got their bail cancelled and resultantly were kept in jail for want of surety, whereas Ghazanfar Ali, respondent, fabricated his arrest at Mandi Bahaud-Din in those days. In these circumstances the plea of alibi pleaded by him, according to the learned counsel, was of no value but the Shariat Court without attending the facts in the true perspective extended him undue benefit on this ground. It was further submitted by the learned counsel that the occurrence took place at 6-30 a.m. In presence of complainant and his two sons who are natural witnesses of the occurrence. There is no justification to ignore the evidence of these persons who have unanimously blamed Ghazanfar Ali to have committed murder of Muhammad Yusuf. The learned counsel further submitted that the weapon of offence was recovered at the pointation of said accused in presence of witnesses and the same was sent to Arms Expert who found it in a working condition and also supported the case of prosecution that the empties recovered from the scene of occurrence were fired from the said kalashnikov. According to him, the doctor has also supported the case of the prosecution that the deceased's death took place with firearm. As all the chains of the' story of occurrence were proved by the prosecution, as such there was no justification for the trial Court to award sentence of Diyyat to the accused-respondent and also for the Shariat Court to record order of acquittal in his favor.
4. Conversely Mr. Abdul Majid Mallick, the learned counsel for the accused-respondents, vehemently contended that the medical evidence is in conflict with the oral testimony of witnesses, therefore, the learned Judge in the Shariat Court was justified in law to reject the evidence of so- called eye-witnesses. According to him, in the same way, the plea of alibi is proved from the prosecution itself. According to the learned counsel, only interested witnesses were produced by the prosecution to support this unnatural fabricated story whereas in the light of version of prosecution whereby heavy firing is attributed to accused persons with kalashnikov, it cannot be ruled out that the other witnesses from the locality might had seen the occurrence and even found the white car parked on the roadside in which the accused persons after taking life of deceased Muhammad Yusuf fled away from the scene of occurrence. He seriously criticized the recovery of weapon of offence. According to him, this weapon was recovered from a deserted place nearer to the house of complainant Abdul Khalique on 11-3-1991, whereas accused Ghazanfar Ali was arrested by,the police on 26-2-1991. The delay caused in the recovery of weapon of offence had made the case of prosecution doubtful. According to him, both the recovery witnesses, namely Muhammad Khaliq and Jamroz Hussain did not belong to the locality where the incident took place. The learned counsel further submitted that the accused persons had no enmity with Muhammad Yusuf. The accused party, according to the prosecution version, had sheer enmity with the complainant; In these circumstances they should have killed the complainant or his sons instead of Muhammad Yusuf. The story of prosecution, according to the learned counsel, is unnatural which was rightly rejected by the learned Judge in the Shariat Court.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The occurrence, according to the F.I.R., took place on 11-2-1991 at 6- 30 a.m. The report of occurrence was made at the same day at 7-30 p.m. The case, as set up in the F.I.R.,' is that the complainant along with his relative guest Muhammad Yusuf was standing in 'his courtyard when Ghazanfar Ali armed with kalashnikov who happens to be the cousin of complainant entered into his courtyard from the open gate accompanied by two other persons also armed with kalashnikov. The accused Ghazanfar Ali raised Lalkara and opened fire with his kalashnikov. Muhammad Yusuf received injuries on account of the firing and later on expired on the scene of occurrence. In the F.I.R. The complainant has stated that the occurrence was result of sheer enmity of accused persons with him as Ghazanfar Ali was determined to kill him or his sons.
All the accused persons ran away by Car No,092-226-Karachi, which was parked on the roadside.
The complainant in his Court testimony has stated that he and Muhammad Yusuf were at the distance of about 35 feet from the entry gate. The deceased, Muhammad Yusuf, and he were at a distance of 2 to 3 feet from each other when the accused Ghazanfar Ali opened fire. In the same way his son Masood Hussain has stated that all the three assailants entered into their house from the gate. They were armed with kalashnikovs. Ghazanfar Ali shouted at his father and then opened fire which hit Muhammad Yusuf who was his maternal-cousin and was resident of Badarnain Village. Muhammad Yusuf fell on the ground and later on died. All the accused persons ran away through a car which was parked on the roadside. This witness as well as Abdul Khaliq have admitted that after this occurrence Tariq Mehmood who happens to be the brother of this witness and son of complainant contracted marriage with the daughter of Ibadat Ali, brother of Ghazanfar Ali. From the evidence of these witnesses it becomes clear that the assailant party as well as complainant and his guest Muhammad Yusuf were in the courtyard when the occurrence was committed by the respondent, Ghazanfar Ali. In the post-mortem report the height of the deceased is recorded as 5'-7". The dead body was described to be that of a well-built man of 40 to 42 years of age. Injury No,1, which is described the cause of death of the deceased by the doctors, was hit when the deceased was in a bending position. About injury No,3 even though it is stated that this injury hit deceased from front like injury No,2, however, it also makes the evidence of eye-witnesses doubtful as according to the Doctor, the bullet after striking with the shoulder bone directed downwards and entering right chest, it damaged the right lung and liver came out two inches below the inf. Angle of right shoulder. Bullet fractured 8th and 9th ribs on the right side of chest also.
Both chest cavities and abdomen were full of blood. The medical evidence is, therefore, not supporting the oral evidence. The alleged witnesses of incident are members of one family. The learned Judge in the Shariat Court has rightly held that interested, inimical and inter-related witnesses, whose statements are self-contradictory and inconsistent, have supported the prosecution. It cannot be ruled out that injuries Nos.1 and 3 were caused when either deceased was lying on a bed or the accused party were at a higher place A which can be the first floor/storey of the house but that is not the case of the prosecution. The case of the prosecution, as stated earlier, is that the accused and deceased party were in the courtyard at a distance of 2 to 3 feet from each other when the firing was opened by Ghazanfar Ali, whereas the occurrence was witnessed by two sons of complainant from the first floor of their house. In these circumstances the ocular evidence is not unimpeachable. The same, therefore, in our view, was rightly rejected by the learned Judge in the Shariat Court. The medical evidence in every case cannot be considered as conclusive proof of the case. However, if the opinion expressed in the medico-legal report in the light of injuries found on the person of deceased is directly in conflict with the ocular testimony, then the ocular evidence is not to be relied upon. In the criminal cases the prosecution is bound to prove guilt of the accused beyond reasonable doubt. When the testimony of the eye-witnesses becomes doubtful, the prosecution case as a whole becomes doubtful. In the present case all the eye-witnesses are the members of one family who in the light of F.I.R. And their statements before the Court were rightly held by the Shariat Court to be interested and inimical to accused Ghazanfar Ali.
6. The second connecting evidence is recovery of kalashnikov E-37 vide recovery memo. T.H.' on the pointation of accused-respondent Ghazanfar Ali in presence of Muhammad Khaliq and Jamroz Hussain. The recovery memo. Itself makes it clear that the said recovery was effected from a deserted place on 11-3-1991, which according to the complainant, is located near his house. The learned Judge in the Shariat Court has not relied upon this recovery as the said recovery was not witnessed by two respectable of the vicinity as required by section 103, Cr.P.C. Because the recovery witnesses belong to another village which is located at a distance of 6 miles from the place of recovery. We have noticed that the accused was arrested on 26-2-1991 whereas the recovery was made on 11-3-1991. The occurrence took place on 11-2-1991. It is doubtful as to how the accused, who ran away with the kalashnikov after the occurrence and later on was arrested from Mandi Baha-ud-Din, managed to place this kalashnikov at a deserted place near the house of complainant and later on after one month, on his pointation the same was recovered from such a place. This is astonishing that no person during this time visited that place or took away this weapon of offence from there. This recovery by itself is a doubtful recovery. Onus of proof of guilt does not shift from the prosecution to the accused. It was required from the prosecution, therefore, to establish as to how the accused had managed to place kalashnikov near the house of complainant at a deserted place.
7. Much stress was laid by the learned counsel for the appellants that the accused respondent illegally took the benefit of the arrest of some other Ghazanfar Ali by the police of Mandi Baha-ud- Din in order to claim his alibi from the place of occurrence. According to him, the accused has built up a false case. His version is unconvincing and doubtful which was wrongly accepted by the First Appellate Court while extending benefit of doubt to him. Before discussing the, defence plea taken by the accused-respondents, while conducting cross-examination of the prosecution witnesses, let us make it clear that no person accused of any offence can be convicted for merely having told untruth in relation to any fact or facts alleged against him. The unconvincing version of the accused may make his defence weak, however, as onus always lies on the prosecution to prove its case, therefore, repeatedly it has been laid down by all the superior Courts of sub-Continent that the prosecution cannot succeed on the weakness of the defence. It can succeed only on the strength of its own case. In this case the prosecution, in order to prove the presence of accused at Mirpur, has produced two witnesses, namely, Tasawar Hussain and Sabir Hussain. One of them saw the accused Ghazanfar Ali in Nafees Bakery along with two unknown persons while the other one saw him on Tanga Stand at Pul Manda. The statements of these witnesses were not relied upon by the First Appellate Court as their statements under section 161, Cr.P.C. Were recorded after one month's time from the date of occurrence. Both of them are chance witnesses. Moreover their evidence cannot be given much importance in the light of Exh.D.A. Which shows that Ghazanfar Ali was detained in jail at Mandi Baha-ud-Din on 6-2-1991 and was released from there on 14-2-1991.
This unrebutted evidence was rightly relied upon by the First Appellate Court.
8. This is proved by Asghar Ali, Assistant Superintendent Jail, who deposed in the light of record that Ghazanfar Ali was detained in jail at Mandi Baha-ud-Din on 6-2-1991 and was released on 14-2- 1991. Tariq Bashir is an employee in the Court of Magistrate 1st Class, Mandi Bahaud-Din. He in the light of record has stated that Ghazanfar Ali was produced before the Magistrate for remand on 6- 2-1991. Mubashar Maqsood is another Head Constable of City Police Station Mandi Bahaud-Din, who entered the name of Ghazanfar Ali in the jail record. The photograph of the accused- respondent, Ghazanfar Ali, is also available in the jail record. Besides his other descriptions, identification marks, there is mention of one large black spot on his stomach which was inspected even by the Shariat Court. The accused-respondent wanted to show us the same during the course of arguments. In the light of this record the statement of Muhammad Aslam, prosecution witness, recorded in the trial Court on 9-3-1995 was rightly ignored by the learned Judge in the Shariat Court with reasons which need not to be reproduced in this judgment. In our view Tasawar Hussain and Sabir Hussain, who had deposed that they saw Ghazanfar Ali with two other unknown persons at 3-30 p.m. Were made witnesses subsequently, after about one month to negate the detention of said accused in the jail of Mandi Baha-ud-Din. Therefore, the First Appellate Court was justified in ignoring the evidence of these witnesses in the light of official record pertaining to jail of Mandi Baha-ud-Din.
9. Another witness, Ashiq Hussain, who is son of sister of complainant, in his Court testimony deposed that on 31-1-1991 Ghazanfar Ali and his two brothers met him at 2 p.m. On a sweet shop at Mirpur where Ghazanfar Ali told his brothers to get their bail cancelled as he has managed the same for himself. He had further deposed that on 10-2-1991 he met all the three brothers at coach stand at Mandi Baha-udDin from where he was proceeding to Sargodha. When he returned from Sargodha on 14-2-1991 he came to know that his cousin Muhammad Yusuf has been killed. On the basis of statement of this witness, the learned counsel for the appellants has tried to build up a case that .a conspiracy was hatched by all the three brothers to kill Abdul Khaliq, complainant, or his sons. For that purpose on the direction of Ghazanfar. Ali his two brothers Aftab Hussain and Mehboob Hussain got their bail bond cancelled in a bailable offence under sections 447, 427, A.P.C.
Read with section 19, A.O. From the Court of Tehsildar so that they may be kept in judicial lock-up on 11-2-1991, a date fixed for the commission of offence. It is very astonishing that in presence of Ashiq Hussain, prosecution witness, a conspiracy was hatched to kill Abdul Khaliq or his sons. Ashiq Hussain has admitted in his statement that he is son of sister of Abdul Khaliq. This witness totally spoke lie that he met all the three brothers on 10-2-1991 because on 10-2-1991 at least Ghazanfar Ali was detained in jail at Mandi Baha-ud-Din, whereas his two brothers were also in judicial lock-up since 31-1-1991. Except this witness there is no other evidence that the two brothers of Ghazanfar Ali had any hand in the murder of Muhammad Yusuf.
10. We have noticed that in the F.I.R. The complainant has stated that the accused parties were after his life on account of sheer enmity with him. In order to prove the motive Masood. Hussain, a witness of prosecution, stated that the accused persons were annoyed due to engagement of son of complainant with another brother of accused persons namely Ibadat Hussain and were inimical due to divorce of their sister Mst. Irshad Begum by the uncle of the complainant. The son of .Complainant who contracted marriage with the daughter of brother of accused-respondent appeared in the Court but he has not stated that the accused were annoyed as to why he wanted to marry the daughter of their brother. In the same way the complainant or his sons have not stated that the accused were annoyed with him as to why their uncle had divorced their Sister.
There is no logic why they should have been annoyed with the complainant if their sister was divorced by his uncle. If this was the reason behind the murder, then they should have 'preferred to kill uncle of the complainant who had divorced their sister. The grounds on which the Shariat Court has acquitted the accused respondents are fully supported by the evidence on record. The acquittal carries double presumption of innocence. One is initial that till found guilty accused persons are innocent and second is that Court of law having jurisdiction records order of acquittal.
In such circumstances this. Court would interfere only if it is proved from the record that the order of acquittal is perverse and the reasons in support of the same are artificial and ridiculous.
11. In the light of above discussion, no error was committed by the learned Judge in the Shariat Court while recording order of acquittal in favor of respondent No,1 and concurring with the order of acquittal recorded in favor of other accused-respondents by the trial Court. This appeal having no force stands dismissed.