' KHAWAJA MUHAMMAD SAEED, C.J.--- This appeal is directed against the judgment of the Shariat Court, dated 12-11-2004, whereby while allowing the appeal of accused-respondent, he was acquitted in a murder case registered against him under F.I.R. No,63 of 1995.
2. Facts culminating into present acquittal appeal precisely stated are that Noor Hussain, lodged written complaint at Police Station Afzalpur on 29-5-1995. According to F.I.R. The complainant was running a book shop in Jatlan Bazar, whereas adjacent to his shop, his brother Muhammad Ilyas was running video shop Ajaib Sikandar, second brother of complainant was working with the complainant. The complainant and Muhammad Ilyas, deceased, used to open their shops at 7 a.m.
And close at 8 to 9 p.m. In the evening. On the day of occurrence, i,e, 28-5-1995, at about 8-1/2 p.m.
Muhammad Ilyas told complainant that he was going to see Shabir Ahmed at Jorian, now Jaboot.
Shabir Ahmed was disclosed to be running a wood-depot at Jaboot. According to complainant the deceased went on his Motorcycle No,6568AJKC Model 1993. He waited for return of his brother up to 10 p.m. But he did not come back. Thereafter, the complainant closed his shop and went to his home. Till next morning i,e, 29-5-1995 he received no information about his brother. Thereafter in order to inquire the whereabouts of his brother he came to Shabir Ahmed at Jorian who showed his ignorance about the whereabouts of Muhammad Ilyas. He personally searched him at different places. When no clue was found, the complainant reported the matter to police. On 5-6-1995 he again reported the matter to police when he found dead body of his brother Muhammad Ilyas lying in Rajbah Canal near Civil Hospital Jatlan. He disclosed in his information that his brother has been murdered.
3. On the report lodged by complainant a case under section 5 I.P.L. Was registered against unknown assailant. After conducting investigation the police finally submitted challan under section 302, A.P.C. Read with section 14 E.H.A. (Property) and 13/20/65, Arms. Ordinance before the District Court of Criminal Jurisdiction Mirpur against respondent No,1 on 10-3-1995. In the investigation the police drew this conclusion that the respondent had committed murder of Muhammad Ilyas, brother of complainant on 28-5-1995 at night and thereafter he threw his dead body in Rajbah Canal. The accused denied his guilt, as such the prosecution was asked to lead its evidence. In support of case the prosecution produced twenty-six witnesses. Thereafter the respondent was awarded sentence of 9 years rigorous imprisonment under section 302, A.P.C., 6 months rigorous imprisonment under section 14, E.H.A. (Property) and 6 months rigorous imprisonment under Arms Ordinance respectively by the District Court of Criminal Jurisdiction, Mirpur vide judgment, dated 30-12-2002. The respondent challenged the legality of this judgment before the Shariat Court. A Division Bench of the Shariat Court vide judgment under challenge dated 12-11-2004 recorded order of acquittal in favor of accused-respondent. Hence this appeal.
4. Ch. Lal Hussain, the learned counsel for the appellant, argued that the prosecution has connected accused with the offence of murder of Muhammad Ilyas, therefore, there was no justification for the Shariat Court to record order of acquittal in his favor. According to him, the reasons given by the Shariat Court in support of judgment under challenge are flimsy and unsound. Therefore, he craved that the judgment under challenge be set aside. According to him, the statement under section 342, Cr.P.C. Was recorded by the trial Court. If any material was not put to accused, the case should have been remanded to the trial Court for recording fresh statement under section 342, Cr.P.C. It was not a sufficient ground to record order of acquittal in favor of accused. The trial Court after due consideration of evidence produced by the prosecution had passed sentence of conviction to accused under different provisions of penal laws. He further argued that there was no justification for the Shariat Court to disbelieve the last seen evidence and recovery of weapon of offence at the instance of accused respondent. He placed his reliance on Mehtab Khan v. The State PLD 1979 SC (AJK) 23 and Niaz Muhammad v. The State PLD 1983 SC (AJK)
211 wherein it is laid down that mere relationship is not sufficient to discard the evidence of the prosecution. Even a Police Officer is a competent witness. About recording of defective statement of accused under section 342, Cr.P.C. He placed reliance upon Muhammad Aslam v. State through Advocate-General and others 2001 PCr.LJ 770 whereby it was laid down that guilt or innocence of an accused person cannot be decided without giving him an opportunity to explain the incriminating circumstances appearing against him as deposed by prosecution witnesses. In this authority, the case was remanded to trial Court for its decision afresh with direction to re-examine accused according to requirements of section 342, Cr. P. C .
5. The learned Additional Advocate-General supported the view point of the learned counsel for the appellant.
6. While controverting the arguments of the learned counsel for the appellant, Mr. Muhammad Azam Khan, the learned counsel for respondent No,1, submitted that after discussing the evidence of prosecution minutely, the learned Division Bench of the Shariat Court was satisfied that the prosecution has failed to prove case against the accused respondent beyond reasonable doubt, therefore, recorded order of acquittal in his favor. According to him fabricated last seen evidence was rightly rejected by the Patwari, has disclosed Asif Hussain and Muhammad Hafeez as eye- witnesses which shows that through padding, accused-respondent has been involved in the murder of Muhammad Ilyas. He also placed reliance on number of authorities which need not be discussed in this judgment because in criminal cases normally facts of different cases are not identical.
7. We have heard the learned counsel for the parties and gone through the record of the case. We for our own satisfaction have also gone through the evidence of prosecution. In this case unfortunately explanation was not obtained from the accused-respondent in respect of certain incriminating material deposed by the prosecution witnesses against him, but in our view there is no need to remand the case on this point as that shall not make any difference. The two witnesses who have stated that they saw accused and respondent going on the motorcycle in the dark hours of the night have disclosed that they were in a car and saw accused and deceased on a motorcycle proceeding towards the down slope. Such identification as rightly observed by the learned Judges of the Shariat Court in detail cannot be relied upon. If the deceased and accused were on a motorcycle which was proceeding downwards and to some extent the car was at their back. It was not possible for those who were in the car to identify accused and deceased on the motorcycle in such circumstances. Moreover, in this case we have noticed a lot of padding. In absence of direct evidence the circumstantial evidence collected by the prosecution should be examined carefully because evidence of this kind may be fabricated. If last seen evidence is considered along with other parts of evidence, then it is not safe to rely upon such evidence, as is rightly observed by the Shariat Court.
8. According to the prosecution version, the weapon of offence, Chhuri P.11, a wrist watch of deceased, P.12 and leather cover of Chhuri P.13, were recovered at the instance of accused respondent through Exh.P.I. In presence of Ajaib Sikandar and Noor Hussain, both the brothers of deceased, one out of them is complainant of the occurrence. All these articles were recovered from village Ghorsia, Nasirabad. Sardar Bashir Ahmed, Incharge Police Station, has admitted in his statement that he took recovery witnesses from Ghelan with him to the place of recovery. No person from village of Ghorsia Nasirabad was associated in the recovery process. The learned Shariat Court has rightly given benefit to accused respondent that about the alleged recovery it was not disclosed in the F.I.R. Or in any other statement by the complainant party that the deceased was also laving wrist watch with him. The prosecution witnesses were initially involved in murder of deceased person and later on made witnesses against the accused respondent. Sardar Bashir Ahmad had personal grudge against the accused-respondent. Therefore, it cannot be ignored that he involved accused-respondent on the basis of fabricated evidence. The amount of Rs,8,000 allegedly recovered from the respondent, which according to prosecution version, was taken out of pocket of deceased by accused and paid to Naseer Ahmed, prosecution witness No,16, is not proved as this C fact has been denied by Naseer Ahmed. He stated clearly that he was also involved in the case and investigated for two days and compelled to pay aforesaid amount so that the accused could be connected through this evidence with the alleged offence of murder of deceased, Muhammad Ilyas. According to this witness, he got this amount from his father's account. In the same way the statement of the other witness Azhar Mehmood is also not in line with Exh.P.N. There is another set of evidence that the deceased was seen alive in the company of accused. This fact has been proved through two persons, namely, Tajamal Dar and Tauqir Dar. The age of Tauqir Dar is 12-1/2 years. According to him he saw deceased and accused together on 25- 5-1995, however according to his version his brother Tajamal Dar was not with him at that time, whereas Tajamal Dar has disclosed that the deceased dropped him at his residence on 25-5-1995 at 8-30 and told him that he was going to see accused-respondent. Seeing the conduct of Sardar Bashir Ahmed, his evidence also cannot be relied upon. The prosecution evidence in our view was not enough to sustain conviction of murder charge which was rightly discarded by the learned Judges of the Shariat Court. If separate pieces of evidence are taken together, the same do not lead to an inference of guilt against the respondent. We agree with the learned counsel for the complainant that on the basis of convincing circumstantial evidence, the order of conviction can be passed against the accused persons but at the same time let us make it clear that such circumstances must be incompatible with the innocence of accused. Therefore, we have no reason to differ with the findings arrived at by the Shariat Court.
9. In view of above this appeal having no force stands dismissed.