The above titled appeal has been directed against the judgment of District Criminal Court Muzaffarabad dated 29.12.2004 whereby, the accused-Respondents No, 2 to 4 were acquitted under Section 302/109, APC by giving them the benefit of the doubt by the said Court.
2. The brief facts forming the background of the instant appeal are that the complainant, Muhammad Latif Butt lodged at FIR at Police Station Chikar on 16.11.1997 against the accused- respondents under Sections 302/109, APC. After registration of the case, the police investigated the matter and submitted a challan against the accused-respondents before the Court of competent jurisdiction.
3. The statements under Section 242, Cr.P.C. were recorded by the trial Court wherein the accused- respondents denied the allegation leveled against them. The trial Court after due process of law acquitted the accused Respondents No, 2. to 4 by giving them the benefit of doubt and awarded the life imprisonment to principal accused Shahtab. Hence this appeal for reversal of the same.
4. Mir Sharfat Ali, Advocate for the complainant, submitted that the trial Court committed grave illegality while acquitting the accused-Respondents No, 2 to 4 in heinous offence. The learned counsel further contended that the prosecution has proved its case by producing sufficient evidence but the trial Court failed to appreciate the same in its true prospective which resulted into wrong conclusion. Finally, the learned counsel prayed that by accepting the appeal the impugned judgment may be vacated and the accused Respondents No, 2 to 4 may also be awarded the sentence in accordance with law.
5. On the other hand, Kh. Muhammad Naseem, the learned Counsel for the accused-respondents submitted that the prosecution has failed to prove its case beyond any shadow of doubt therefore, the trial Court has rightly acquitted the accused-Respondents No, 2 to 4 by giving them the benefit of doubt. The learned counsel further contended that there is lot of contradictions among the prosecution witnesses thus, the trial Court has rightly discarded the same. The learned counsel defended the impugned judgment on all counts.
6. I have heard the learned counsel for the parties and perused the relevant record with utmost care.
7. In the present case, the principal convict-respondent Shahtab has absconded, while Respondent No, 2 Mushtaq has died. A non-bailable warrant of arrest of Respondent No, 1 has already been issued vide order dated 16.5.2006 of this Court and the appeal to the extent, of Respondent No, 4 has abated due to his death vide order dated 14.9.2006.
8. The appeal against the rest of the accused-respondents is filed against the acquittal praying therein, that as the principal accused committed the crime in the presence and company of the said respondents as such, they are equally liable for the actual offence of murder.
9. The occurrence in the present case is unseen and there is no eye-witness of the occurrence and the whole case rests upon, recovery witnesses, Medical evidence, last seen and other incriminating evidence.
However, as the principal offender is not before the Court, thus, it will not be advisable to discuss the facts and circumstances touching the merits of the case with regard to the guilt or innocence of said offender.
10.The present respondents are alleged to have facilitated, added and assisted the real offender and thus, equally liable under Section 109, APC for the murder of the deceased.
11.Section 109, APC denotes that:- 'Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this code for the punishment of such abetment, be punished with the punishment provided for the offence."
It is further elaborated that, an act or offence is said to be committed in consequence of abetment, when it is committed in consequence of instigation or in presence of the conspiracy or with aid which constituted the abetment.
12.In the present case, there appears no evidence suggesting the instigation, conspiracy or planning of the acquitted respondents for committing the said offence. The prosecution has produced as many as 25 witnesses among those P.W.1, the complainant deposed that respondents murdered the deceased due to rivalry, he further states that he is quite sure about the involvement 'of the respondents, but at the same time he failed to give the reasons for his belief with regard to such involvement except a previous animosity between the narties. The P.W. Muhammad Jahangir has stated that he saw the respondents in the Jungle, who on his query told that they have come here for collecting the woods.' The P.Ws. Abdul Ghani, Muhammad Saeed, Ch. Wahab-ud-Din, Advocate, Mst. Naseema Bibi, Froze Din, Janee Bibi, Mst. Asia (P.W.) did not even mention the names with their role or any act of instigation of conspiracy of the respondents. No doubt P.Ws. Rukhasana, Yaqoob, Ghulam Rasool, Yasin, Abid Butt and Oragnzeb did mention that the respondents were hatching conspiracy, near the grave yard at Chikar situated nearby the jungle but the statement appears to be improbable and does not inspire confidence, firstly because they are closely related and also inimical to respondents and secondly no body in our society makes any conspiracy and planning at open spaces, approachable to general public. So, unless and until there is some solid proof about the abetment the Courts are not obliged to form any opinion on such type of hypothetical version's. 13.The mere presences at thoroughfare or in forest where the villagers usually go, for collecting fire-woods does not make out a case of abetment. The abetment has to be proved through independent witnesses having no grudge or enmity with the accused. Thus, mere presence of P.Ws. at the places mentioned above, cannot constitute abetment unless a clear cut instigation, conspiracy or intentional aid, for committing crime is not proved. In the case in hand, no such like evidence has been produced, as such the presence of villager at such places cannot be turned as gathering of the accused-respondents for hatching the conspiracy etc. Therefore, the trial Court has rightly acquitted the accused-respondents.
14.It will be relevant to mention here, that an acquittal accused enjoys double presumption of innocence, one before the trial Court and the second after his or their acquittal from a competent Court on the basis of principle, that every person shall be presumed to be innocent till proved guilty and more so, when he or they are acquitted after the trail, they enjoy double presumption of innocence, therefore, the impugned order of acquittal cannot be disturbed unless found to be perversed.
15.In the light of what has been stated above, the appeal filed by the appellant against Respondents No, 2 to 4 stands dismissed being devoid of force.