' CHAUDHARY MUHAMMAD TAJ, J.---This appeal has been filed against the judgment passed by the Shariat Court on 4-6-2003 whereby the respondents were acquitted of the charge.
2. The facts are that a case under sections 302 and 34, A.P.C. N\ as registered at Police Station, Mirpur. The case after investigation was challaned before the District Court of Criminal Jurisdiction, Mipur which after its conclusion convicted the respondents and sentenced Khursheed Ahmad to 25 years' R.I., Sajjid and Abeedur-Rehman each 10 years' R.I. The respondents filed appeal against their conviction and sentence before the Shariat Court of Azad Jammu and Kashmir where the same was accepted and the respondents were acquitted of the charge. This appeal challenges the aforesaid order.
3. Mr. Abdul Majeed Mallick Assisted by Ch. Muhammad Anwar, the learned counsel for the complainant-appellant, raised following points in support of the appeal:--
(i) That the prosecution proved its case beyond any doubt through evidence which also included the circumstantial evidence. The trial Court in due consideration of the evidence proceeded to convict the accused and thus sentenced them;
(ii) that the Shariat Court of Azad Jammu and Kashmir acquitted the accused on the grounds which were not available particularly when the respondents were convicted by the trial Court;
(iii) that the observation of the Shariat Court with regard to non-production of the eye-witnesses runs counter to the law. It was explained that the aforesaid witnesses were won over by the defence, therefore, the prosecution was unable to produce them and also could not cross- examine them;
(iv) that the evidence on the record sufficiently proved the case of the prosecution. The learned counsel referred to the evidence of witnesses namely, Sajid and Atif, who saw the victim in the company of accused and were also witnesses of their running away from the place of occurrence; and
(v) that the other evidence produced by the prosecution fully corroborates the version of the prosecution. It would also be relevant to mention that the evidence of recovery with regard to .12- bore gun also supported the version.
4. Sardar Abdul Razzik Khan, the learned Additional Advocate-General, who appeared on behalf of the State, also supported Mr. Abdul Majeed Mallick in arguments.
5. Syed Nishat Hussain Kazmi, Ch. Muhammad Reaz Alam and Ch. Muhammad Mahfooz, the learned counsel representing the respondents, while controverting the arguments addressed on behalf of the appellants, argued in the following manner:--
(i) That the prosecution has failed to establish any case against the respondents through any evidence. It was explained that the prosecution based its case on two eye-witnesses namely Muhammad Farooq and Kafil who were not produced and were left over, therefore, there was no evidence which would have connected the accused with the offence; '(ii) that the prosecution produced other witnesses namely Sajid and Atif whose evidence was not only untrue but unbelievable as no culprit would behave in the manner suggested by the prosecution. It was highly improbable that the accused in the company of the victim visited the slop of the witnesses before the occurrence;
(iii) that it was also improbable that the aforementioned witnesses had seen the accused running away at the night time;
(iv) that the evidence of recovery of the gun is also doubtful which was effected upon the accused from the poultry farm of one Muhammad Ayub, the licence holder of the aforesaid gun; and
(v) That the respondents were acquitted of the charge as such double presumption of innocence exists in their favour.
5. We have heard the learned counsel for the parties and also gone through the record. The First Information Report was lodged by Muhammad Aslam complainant, real maternal uncle of deceased Shakeel Ahmad, on 2-12-1995 at 8-00 p.m. It was stated that on 2-12-1995 at 6-30 p.m.
Accused Khursheed son of Muhammad Rafique came to his house where his nephew Shakeel Ahmad was also present. The said accused asked Shakeel to go along with him as the accused Sajid son of Abdul Majeed and Abeed-ur-Rehman son of Muhammad Sharif were waiting for them near graveyard. They went away. After a short while the complainant went to offer Isha prayer in the Mosque where at about 7-00 p.m. Witnesses Muhammad Farooq and Kafil came there. They called the complainant to come out immeidatley on which Muhammad Farooq told him that he was coming from Dam at about 7-00 p m, when he reached near graveyard he saw that a light was litting outside the shop of Abid and Atif and he saw that Sajid and Abeed-ur-Rehman had caught Shakeel from his arm while accused Khursheed, who was carrying .12-bore gun, fired at Shakeel which hit on his left side of the head who fell down and all the three accused ran away.
Upon hearing the noise of fire Atif and Sajid also came over there who also witnessed the occurrence. The complainant reached the place of occurrence and saw that dead body of Shakeel was lying in the street near graveyard. The police investigated the matter and thereafter challaned the case before the DistriCt Court of Criminal Jurisdiction, Mirpur which after its conclusion convicted the accused-respondents and sentenced Khursheed for 25 years R.I. And Abeed-w- Rehman and Muhammad Sajid each for 10 years R.I. The respondents preferred their appeal before the Shariat Court of Azad Jammu and Kashmir which was accepted and they were acquitted of the charge.
6. This acquittal appeal filed on behalf of the complainant on the grounds that the learned Chief Justice of the Shariat Court illegally acquitted the respondents. It was forcefully argued that the observation of the' Shairat Court that two eye-witnesses who were left over by the police were 1101 cross-examined by the prosecution after producing them in the Court. It may be mentioned that the, two eye-witnesses proposed by the prosecution filed their affidavit before the trial Court that they have not seen the occurrence on which the prosecution left over those witnesses. According to the prosecution they were won over by the defence. Whatever the situation was, the fact remains that those two eye-witnesses were not produced in support of the prosecution version.
7. It follows that the prosecution story was not supported by those witnesses. In absence of those eye-witnesses we have to see and judge whether the remaining evidence was sufficient enough to hold the accused guilty of the offence. The First Information Report was lodged by Muhammad Aslam, the real maternal uncle of deceased Shakeel Ahmad, who disclosed that accused Khursheed came in his house where his nephew Shakeel was also there, who asked him to accompany him where accused Abeed-ur-Rehman and Sajid were waiting. It was further disclosed that he went to offer Isha prayer when was told by Muhammad Farooq and Kafil that Shakeel was fired at his head by Khursheed with .12-bore gun while the other two accused were catching hold of him from arm.
8. The first question arises that this part of the evidence which he received as information from the above-referred two witnesses did not remain of any value as those witnesses did not appear in the witness-box and made the aforesaid statement, therefore, the statement of Muhammad Aslam complainant to this extent has no validity in the eye of law.
9. The prosecution also produced Sajid and Atif in support of its version that before occurrence accused Khursheed came in the company of Shakeel to their shop for purchasing `nugdi' who called them from their house and after that they went back. After a short while they heard noise of fire and went towards the place of occurrence. They saw that accused running away from the place of occurrence. The learned Chief Justice in the Shariat Court did not believe this story to be true for the reasons that it is improbable that accused came over there in the company of Shakeel whom they were taking to murder and thus to make them the witnesses of the occurrence. It is indeed correct that it is an improbable version which cannot be believed that three accused persons were carrying Shakeel along with them for the purpose to kill him and they would have invited two persons to witness the occurrence in the manner the prosecution has suggested that they were called to their shop to purchase `nugdi' and after a short while the occurrence took place at a place near the shop. A perusal of the statements shows that their statements do not inspire any confidence apart from being full of contradictions, therefore, no reliance can be placed on the aforesaid evidence.
10. So far as the recovery of .12-bore gun is concerned, it has come on the record that the aforesaid gun was recovered at the instance of accused Khursheed from the poultry farm of one Muhammad Ayub. The empty recovered from the spot was also shown to have matched the gun. It is interesting that the gun was a licenced arm of Muhammad Ayub from whose poultry farm the same was recovered. Muhammad Ayub was neither cited as a witness nor any investigation appears to have been made for the purpose as to how his gun came in possession of Khursheed. It will not be out of place to mention that there was none to witness when fire was done how we can presume that Khursheed had fired at him.
11. In absence of direct evidence the prosecution rested its case on circumstantial evidence. It is settled proposition of law that the case of circumstantial evidence should be so inter-connected forming the continuous chain leading to the conclusion that the offence was committed by the accused. In the present case the evidence was not incompatible with the innocence of the accused. The proposition came under consideration before this Court in a case reported as The State v. Mst. Falawat Jan and another (1992 SCR 366) where it was held:-- "It may be stated here that in case of circumstantial evidence, the evidence should be of such a degree and character that it should exclude the possibility of innocence of an accused. Besides, it should link together all the chains of the prosecution story so as to convince the Court to reach an irresistible conclusion that the accused person was the culprit beyond any reasonable doubt. The evidence in the instant case is not only insufficient but the same is of such a nature that conviction is not sustainable upon the same: For instance, the garments which allegedly belong to the accused-respondent were not found bloodstained. Thus, mere production of the clothes of the respondent, Muhammad Khaliq, by his wife, is no evidence against him. Similarly, the recovery of knife is not only suspicious, as indicated above, but it was also not proved to have been stained with human blood."
In another case titled Muhammad Akram and another v. The State (PLD 1996 SC 263) it was held as under:-- "It is well-established rule of law that where conviction is based on circumstantial evidence alone, the facts proved must be incompatible with the innocence of the accused and are incapable of being explained upon any reasonable hypothesis other than the guilt of the accused."
' Another case reported as Sarfraz Khan v. The State and 2 others (1996 SCM R 188) can be referred in support of the proposition where the same was resolved as under:-- "It is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence."
12. We cannot overlook the fact that the respondents were acquitted of the charge by the Shariat Court after discussing all aspects, legal as well as factual, and we do not find any illegality, misreading or non-reading of the evidence which has been made keeping in view the settled principle of appreciation of evidence in a criminal matter. The learned Chief Justice in the Shairat Court arrived at a conclusion that the prosecution has failed to establish a case against the respondents beyond reasonable doubt. In an acquittal appeal by now, it is a settled law that the Supreme Court would not on principle ordinarily interfere and shall give due weight and consideration to the findings of the Court acquitting the accused and shall also avoid reappraisal of evidence. Reference may be made to a case reported as Abdul Khaliq v. Muhammad Afsar Khan and 4 others 1995 PCr.LJ 391 where it was held:-- "The other points raised by the counsel for the parties relate to the appreciation of evidence. So far as the question of scope of appreciation or appraisal of evidence is concerned, the superior Courts have consistently laid down that in an appeal against an acquittal the Supreme Court would not on principle ordinarily interfere and shall give a due weight and consideration to the findings of the Court acquitting the accused and the Court shall avoid reappraisal of evidence."
' The point also came under discussion in a case reported as Ghulam Sikandar and another v.
Mumaraz Khan and others (PLD 1985 SC 11) where it was held asunder:-- "In the appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then in undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions; one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the presumption of innocence. The acquittal will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below:---(a) disregarded material evidence; (b) misread such evidence;
(c) received such evidence illegally."
' The matter also came under consideration in case reported as Yar Muhammad and 3 others v.
The State (1992 SCMR 1996), wherein it was observed: "In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing an acquittal appeal and the principles of setting aside an order of acquittal are now well- settled. Unless the judgment of the trial. Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction of High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."
13. This Court in the case of The State v. Mst. Falawat Jan (1992 SCR 366), referred to above, also gave following verdict in respect of acquittal appeal:-- "Before parting with the case it may be observed that in a case of acquittal there is double presumption of innocence; one on the general principle of law that an accused person is innocent until and unless he is proved guilty; and other presumption emanates from the order of the acquittal passed in favour of the accused....."
14. In view of the above, we are of the view that the appeal is found to have no substance in it which is dismissed.