1. ' IFTIKHAR HUSSAIN BUTT, J.--- The appellants above named, being aggrieved by judgment, dated 29-8-2002 of the learned District Criminal Court, Kotli in the case No,154 of 1995 by which accused- respondent was acquitted of the charge framed against her under section 302, A.P.C. Read with section 17(4) of the Offences Against Property (Enforcement of Hudood) Act, 1985, have preferred the above appeal on the following facts and grounds; the brief facts of the case are stated as under:-- that Muhammad Bashir owns a house in the Mohallah of the complainant. Muhammad Bashir, the owner of the house, resides at Rawalpindi. Sometimes he rents out his house and sometimes it remains vacant. Whenever, Mst. Maroof Begum, the sister of Muhammad Bashir, comes from Rawalpindi to look after the house of her brother, she used to stay with the complainant or with his other relatives. One and half months prior to the occurrence Mst. Maroof Begum came to Kotli and on 20-7-1995 she stayed at night at the house of Muhammad Naeem son of Sardar Noor Hussain. In the morning she came to the complainant's house and told him that she is going to clean her house and to draw some water. She took her lunch in the house of Wazir Hussain Khokhar and after that her whereabouts became unknown. It was further alleged by the complainant that in the evening of 25th July, 1995, the inhabitants of the Mohallah complained that bad smell is coming out from the house of Muhammad Bashir but it is locked from the outside.
2. Whereupon, the complainant along with Muhammad Azeem, Muhammad Saleem, Muhammad Naeem and other inhabitants of Mohallah went to the deceased's house and saw that it was stinking. After opening a small window from the eastern side of the room, the complainant along with his companions found Mst. Maroof Begum lying dead on the ground. The deceased had worn golden ornaments. Somebody had murdered her on account of enmity and greediness.
3. ' On this report a case under section 5 I.P.L. Was registered on 25-7-1995. Raja Abdul Qayyum S.-I.
4. Police (P.W.21) prepared injury sheet Exh.P.M. And secured the hair of the deceased with Pranda and blood-stained clay along with brain affixed with hair vide recovery memo. Exh.P.C. In the presence of Muhammad Sawar Khan (P.W.1) and Muhammad Azeem (P.W.2).
5. ' On 26-7-1995, the accused/respondent was apprehended and clothes of the deceased were taken into possession by Muhammad Shabbir Head Constable Police (P.W.15) vide recovery memo.
6. Exh.P.D. In presence of Muhammad Saleem (P.W.4) and Muhammad Taj (P.W.10). On the same day, the accused/respondent led to the other recoveries of an iron adze (vide recovery memo. Exh.P.F.), one pair of golden ear rings amongst one was broken into two pieces and other was stained with blood (vide recovery memo. Exh.P.H.), two pairs of golden ear rings, two rings, six thousand and five hundred rupees and purse (vide recovery memo. Exh.P.G.), which were taken into possession in the presence of Master Muhammad. Tazeem (P.W.8) and Muhammad Aslam (P.W.9).
7. ' On 29-7-1995, Muhammad Aslam (P.W.9) produced a lock of the house of deceased along with two keys and a key-chain which were taken into possession vide recovery memo. Exh.P.E. Attested by Muhammad Saleem (P.W.4) and Muhammad Taj (P.W.10).
8. ' The post-mortem of the dead body of Mst. Maroof Begum, deceased, was performed on 26-7- 1995 by Dr. Muhammad Yaseen Civil Medical Officer, Kotli vide post-mortem report Exh.P.N.
9. According to his opinion the cause of death was primary brain damage due to multiple skull fracture and injury to brain matter by a sharp weapon.
10. ' After necessary investigation, the accused-respondent was challaned before District Criminal Court, Kotli under section 302, Azad Penal Code. Her statement under section 242, Cr.P.C. Was recorded on 23-9-1995 who pleaded not guilty. To prove its case, the prosecution produced Sawar Khan (P.W.1), Muhammad Azeem (P.W.2), Shahida (P.W.3), Muhammad Saleem (P.W.4), Muhammad Babar (P.W.7), Muhammad Tazeem (P.W.8), Muhammad Aslam (P.W.9), Muhammad Taj (P.W.10), Abdul Qadir Zargar (P.W.11), Dr Muhammad Yaseen (P.W.14), Muhammad Shabbir Head Constable Police (P.W.15), Muhammad Ikhlaq Constable No,2579 (P.W.16), 3u1 Nisar Khan, A.S.-I.
11. Police (P.W.17) and Raja Shamim Akhtar S.P. Police (P.W.19).
12. ' After completion of the prosecution evidence, the explanation of the accused was sought about all circumstances of evidence having an incriminatory effect against her in relation to the offence charged, under section 342, Cr.P.C. Whereby she denied the prosecution evidence and submitted that the P.Ws. Appeared against her on account of animosity. No evidence was led by the defence.
13. ' The District Criminal Court, Kotli, after completion of the trial, reached the conclusion that the prosecution miserably failed to establish the charge against her, therefore, by extending the benefit of doubt in her favour, she was acquitted of the charge vide judgment, dated 29-8-2002. It is the aforesaid judgment which has been assailed through the instant appeal.
14. ' Arguing on behalf of the appellants, Sardar Ghulam Mustafa Khan, the learned Advocate submitted that the trial Court has committed grave error while passing an order of acquittal in favour of the accused-respondent because the prosecution has fully proved its case against the accused-respondent. The learned counsel further contended that the complainant has also corroborated the First Information Report and the mistake of the date about recording of his statement does not adversely affect the prosecution case. The learned counsel pointed out that the statement of Shahida, who is a child witness, is of vital importance but the trial Court has totally ignored this piece of evidence. The learned counsel maintained that the prosecution witnesses have proved the fact that in order to obtain golden ornaments, the accused-respondent murdered the deceased in a brutal manner but the trial Court failed to appraise this aspect of the case. The learned counsel pressed into service the submission that it has been amply proved on record that after the commission of murder the accused-respondent took away golden ornaments of the deceased and sold it out to Abdul Qadir goldsmith (P.W.11) which were taken into possession by the Investigating Officer on her pointation. The learned counsel vehemently argued that an iron adze was recovered at the instance of accused, which also implicates the accused-respondent with the commission of crime. The learned counsel emphasized that the prosecution evidence has been fully corroborated by the medical evidence. The learned counsel laid much stress on the point that the F.I.R. Was promptly lodged and the witnesses, who found dead body of the deceased, were named therein, therefore, question of delay in F.I.R. Does not arise at all. Finally, the learned counsel submitted that the trial Court has miserably failed to appreciate the prosecution evidence in a legal manner, therefore, the impugned judgment is not sustainable. In support of his contention, the learned counsel cited the following authorities:--
(1) PLD 1986 SC (AJ&K) 35; (2) 1987 PCr.LJ 1728 (SC (AJ&K); (3) PLD 1992 SC (AJ&K) 20 and (4) 1995 PCr.LJ 803 (SC AJ&K).
15. ' Sardar Zaheer Babar Chughtai, the learned P.P. Appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the appellants.
16. ' Controverting the arguments advanced by the learned counsel for the appellants, Liaquat Hussain Mughal, Advocate, the learned counsel for the accused-respondent has submitted that according to the prosecution the occurrence took place on 21-7-1995 but F.I.R. Was lodged on 25- 7-1995 after the delay of four days, which is fatal to the prosecution case. The learned counsel further argued that it is an unseen occurrence and no eye-witness has been cited by the prosecution but the circumstantial evidence is neither irreversible nor authentic which may exclude all the possibilities of innocence of the accused. The learned counsel contended that all the prosecution witnesses are inter se related and interested, therefore, the circumstantial evidence is neither of a quality nor coming from an unimpeachable source. The learned counsel for the defence further maintained that the recoveries of iron adze and golden ornaments could not be proved by the prosecution. The learned counsel pointed out that Abdul Qadir goldsmith (P.W.11) has not supported the recovery of golden ornaments and he has also refuted the evidence of Muhammad Tazeem (P.W.8) and Muhammad Aslam (P.W.9) about the recovery of golden rings.
17. The learned counsel emphasized that Muhammad Aslam (P.W.9), a brother of the deceased, failed to prove the ownership of the ornaments, therefore, his evidence is also not reliable. The learned counsel argued with vehemence that Sawar Khan, the complainant, has stated in the F.I.R. That at the time of recovery of dead body, the deceased was wearing the golden ornaments, therefore, the recovery of the golden ornaments from the accused does not connect her with the commission of crime. The learned counsel agitated that the complainant and Muhammad Azeem (P.W.2) wanted to purchase the house of the deceased, therefore, they implicated the accused-respondent in a murder case and produced the P.Ws. Who are closely related to the complainant. Finally, the learned counsel supported the impugned judgment on all counts. In support of the arguments reliance was placed on the following case-law:--
(1) 1984 PCr.LJ 1051; (2) PLD 1986 Sh.C. (AJ&K) 1; (3) Shaukat's case 1992 SCR 155; (4) 1994 PCr.LJ 566 and (5) 2000 M LD 518.
18. ' We have very carefully taken into conside:-ation the points canvassed by learned Advocates for the parties, after perusing the record and the case-law cited.
19. It is admitted on the record that the instant case is of an unseen occurrence and not supported by any eye-witness. For this reason, the prosecution has led circumstantial evidence to prove its tale.
20. According to the prosecution, the motive of the murder is taken away of the golden ornaments worn by the deceased, which were allegedly sold out to Abdul Qadir goldsmith (P.W.11) and later on recovered from his shop on the pointation of the accused by the Investigating Officer in presence of Master Muhammad Tazeem (P.W.8) and Muhammad. Aslam (P.W.9) but a careful perusal of F.I.R.
21. Shows that according to the complainant when he found the dead body in the house of the deceased, she was wearing the golden ornaments, therefore, the question of taking away the golden ornaments does not arise. For elucidating the matter, it would be expedient to reproduce the relevant portion of the F.I.R. Exh.P.A. Which reads as under:-- {{URDU TEXT}} ' The aforesaid portion was also challenged in the cross-examination but the complainant again affirmed the fact and stated as under:-- {{URUDU TEXT}} ' In view of the above stated position the prosecution has admitted itself that when the complainant found the dead body of the deceased, the golden ornaments were present on the body, therefore, the fact of taking away the golden ornaments, selling it to the goldsmith and thereafter its recovery becomes totally false and not worthy of any credence. It will be useful to refer to the statement of Abdul Qadir goldsmith (P.W.11), whereby he testified that one police personnel came to his shop at the time of recovery and at that time Aslam and 'Tazeem P.Ws. Were not there, whereas the prosecution case is that Raja Abdul Qayyum S.-I. Police (P.W.21) secured one pair of golden ear-rings amongst which one was broken into two pieces and the other was intact and stained with blood, identified by Muhammad Aslam (P.W.9) taken into possession on the pointation of accused from the shop of Abdul Qadir goldsmith (P.W.11). Furthermore, Raja Abdul Qayyum S.-I. (P.W.21) Police did not appear before the Court in support of the above mentioned recovery and other investigation which has caused prejudice to accused because the failure of the prosecution to examine Investigating Officer has deprived the defence of very valuable right of shaking the credit of the prosecution witnesses. In this manner, the aforesaid facts negate the evidence of Master Muhammad Tazeem and Muhammad Aslam P.Ws. About the recovery of golden ornaments. It will also be pertinent to note that Muhammad Aslam (P.W.9), brother of the deceased, has categorically stated that he does not know about the ownership of the recovered ornaments. He further deposed that the goldsmith or the accused would have known about the ownership of the ornaments.
22. ' Sawar Khan, the complainant (P.W.1), has also deposed that he did not see the deceased taking meal in the house of accused. The complainant further stated that his statement was not recorded on 25-7-1995. He also failed to answer whether his statement was recorded by the police after two days or not. The complainant is well read person and serving as Manager of the Bank but his conduct shows that he does not want to answer the questions during his cross-examination in a proper manner.
23. So far as the evidence of Shahida (P.W.3), niece of the deceased, a child witness, is concerned, her deposition about accompanying the accused to sell anti purchase ornaments does not prove the fact that the accused in fact after killing the deceased took away the ornaments and sold out to the goldsmith. Therefore, her statement does not render cogent support to the prosecution story.
24. ' The statement of Muhammad Azeem (P.W.2) is also not material, who stated that he did not see the deceased while taking lunch in the house of Wazir. He has also admitted that the complainant, Naeem and Saleem are closely related to him. According to Muhammad Saleem (P.W.4), on the night of 20th July, 1995 the deceased stayed at his house whereas Muhammad Azeem (P.W.2) has deposed that on the aforesaid night she stayed at the house of Naeem. Muhammad Azeem and Muhammad Saleem are the witness of the fact that they found the dead body along with the complainant and other witnesses, therefore, their statements do not connect the accused with the commission of crime.
25. ' Muhammad Tazeem (P.W.2) belongs to village Maneel Colony whereas the alleged occurrence took place in Kotli City. He has also stated that at the time of recovery some people were coming and going.
26. ' He further deposed that the house of the accused was surrounded by so many persons. In such state of affairs, Muhammad Tazeem being stranger, not belonging to locality, especially when independent witnesses were easily available, was planted as recovery witness whose presence at the shop of Abdul Qadir goldsmith has also been denied by Abdul Qadir goldsmith (P.W.11) along with Muhammad Aslam (P.W.9) who lives at Rawalpindi. Furthermore, Muhammad Aslam has testified that his statement was not recorded on one day rather it was recorded after many intervals.
27. ' It is a celebrated principle of criminal jurisprudence that if independent witnesses are available at the relevant time then recovery should be made in their presence instead related witnesses but this principle was not followed in this case, which is totally based on the circumstantial evidence. In this context, we are fortified by Shaukat's case 1992 SCR 155. In such state of affairs, the evidence of Master Tazeem (P.W.8) and Muhammad Aslam (P.W.9) with regard to the recovery of golden ornaments and an iron adze is not worthy of any credence.
28. ' The next question which needs determination is the registration of F.I.R. According to the complainant, he came to know about the occurrence in the evening of 25th July, 1995 when he found the house of the deceased stinking but this fact has been totally refuted by Muhammad Aslam (P.W.9), who has categorically stated that on 24-7-1995 at 1-00 a.m. He came to know about the occurrence at Nakyal and reached Kotli early in the morning. He further deposed that he went to the police station at 5-00 p.m. But before his arrival the F.I.R. Had already been lodged and then after three days he went to the police station but his statement was not recorded till 28-7-1995. The above stated deposition of Muhammad Aslam about delay in making F.I.R. Remains unexplained.
29. Such delay throws considerable doubt about the genuineness of prosecution case.
30. ' The evidence of Muhammad Taj (P.W.10) and Muhammad Saleem (P.W.4) is not important, who have testified the recovery memos. Exh.P.D. And Exh.P.E., the recoveries of clothes of the deceased, lock, keys along with key-chain, therefore, their evidence is not by itself sufficient to connect the accused with the commission of crime.
31. ' Muhammad Babar (P.W.7) has deposed about the fact that the accused had asked him to bring some sleeping pills but he could not obtain those. This fact alone is not enough to implicate the accused with the commission of murder. Furthermore, Muhammad Babar is real brother of the Shahida (P.W.3) and nephew of the complainant.
32. ' So far as the evidence of Dr. Muhammad Yaseen (P.W.14) is concerned, does not show that who inflicted injuries to the -deceased, therefore, it is supporting evidence and does not provide corroboration to the prosecution story. 2000 M LD 518.
33. ' Muhammad Shabbir Head Constable Police (P.W.15) is witness of the recovery of clothes of the deceased which were not even shown to him in the Court, therefore, does not need any analytical survey.
34. ' Muhammad Ikhlaq Constable Police No,2579 (P.W.16) deposed that he took away four parcels from the Police Station Kotli and handed over to the Chemical Examiner but report of Chemical Examiner was neither produced in the evidence nor got exhibited during the prosecution evidence.
35. ' Gul Nisar S.-I. Police (P.W.17) has testified that he handed over the parcels for chemical examination to Muhammad Ikhlaq Constable, which remained under his custody.
36. ' Raja Shamim Akhtar S.P. (P.W.19) deposed that the investigation of the case was conducted by S.H.O. And he just made his satisfaction.
37. ' Muhammad Naeem (P.W.5), Sardar Munawar Anwar (P.W.6), Muhammad Aziz (P.W.12) and Malik Mehmood Khan Patwari (P.W.13) were also not produced by the prosecution.
38. A careful survey of the above noted evidence reveals that the prosecution witnesses are inter se related particularly to the complainant and their evidence also suffers from material irregularities and illegalities. It is artificial shocking, ridiculous and has not been corroborated by any independent or unimpeachable source. Therefore, no due weight can be given to such type of the evidence in a case of capital punishment. The trial Court has considered all aspects of the case and view taken on evidence could not be said to be either perverse or not in conformity with the principles well recognized for safe administration of criminal justice. In this manner, much importance has to be given to the opinion of the trial Court as well as to the rule that the benefit of every doubt must go to accused. It is celebrated principle of criminal jurisprudence- that an acquitted accused enjoys double presumption of innocence. It is always the duty of the prosecution to establish a case against accused and until it does .So the accused must be presumed to be innocent and when he secures an acquittal order from the trial Court, the appellate Court would not interfere until it was shown conclusively that interference of guilt was irreversible.
39. ' It will be appropriate to observe that the instant case is based upon the circumstantial evidence of the prosecution. ' Therefore, conviction on circumstantial evidence can only be made when it excludes all hypothesis of innocence of the accused and the circumstances should be conclusive in nature because failure of one link disturbs the entire chain of the evidence.
40. ' So far as the case-law referred to by the learned Advocates for the parties is concerned, deals with the cases of ocular version and have circumstances not identical with one available in the present case and, therefore, are distinguishable which need no analytical survey.
41. The trial Court has passed its order on sound reasons, which does not warrant any interference by this Court. In our considered view, the prosecution has miserably failed to bring guilt home to the accused/ respondent beyond any reasonable shadow of doubt.
42. ' In view of the aforesaid discussion, it is not deemed expedient to interfere in the impugned judgment dated 29-8-2002. It is, therefore, sustained and the appeal is dismissed.