' KHAWAJA MUHAMMAD SAEED, C.J.-Supra titled appeal is directed against the judgment of the Shariat Court, dated 28-4-2005, whereby while dismissing the appeal of appellant herein the order of acquittal recorded by the trial Court on 5-4-1997 in favour of accused respondents was maintained.
2. Facts as claimed by the prosecution precisely stated are that Sardar Muhammad Ashraf Khan, S.-I., who at the relevant time was S.H.O. Police Station Dadyal, allegedly recorded the statement of one Manga Khan in the Civil Hospital Dadyal on 11-1-1985 and on the basis of his statement initially registered a case under section 307/34, APC, read with section 15 IPL. Later on Manga Khan, the injured succumbed to injuries, as such section 307, APC was deleted and section 302 was added.
After conducting the investigation, the accused respondents were sent to face trial before the District Court of Criminal Jurisdiction Mirpur on 4-3-1985. After protracted trial, they were ultimately acquitted by the trial Court vide order, dated 5-4-1997. This acquittal order was challenged through an appeal before the Shariat Court on 10-6-1997 which was ultimately dismissed by a learned Judge in the Shariat Court vide his order, dated 28-4-2005.
3. The case initially set up on the alleged statement of Manga Khan was to the effect that he was coming home at the evening time while taking firewood from his 'Pubbi', when the accused Shabir Hussain caused him a hatchet blow on his head. Munir Hussain fractured his right arm by a 'Sota', blow while the third Raj Muhammad, father of aforesaid two accused persons, assaulted him with a stick. The accused party were beating him but when they heard someone coming towards the place of occurrence, they fled away. According to statement of Manga Khan, deceased, one Muhammad Yunus reached there on whose query he told that the accused have assaulted him.
Muhammad Yunus who appeared as a witness, according to Manga Khan, tried to lift him from the place of occurrence but failed to do so. He therefore, called one Liaquat for his help. Munir Hussain, respondent No,2, threatened Liaqat with dire consequence therefore, he did not come at the place of occurrence and Muhammad Yunus left for village. The accused persons tried to throw Manga Khan in a nearby 'KaSsi' but due to arrival of his wife, they ran away from the place of occurrence by throwing him inside the western wall of the 'Gohal'. Thereafter, Allah Dita, Sajawal and Panu reached there and on a cot took him to the village from where he was shifted to hospital by a vehicle. According to Manga Khan if his wife had not reached at the place of occurrence, the accused party would have thrown him in the 'Kassi'.
4. The motive behind the occurrence, according to statement of Manga Khan, was dispute between him and accused persons over a boundary wall. At trial all the accused persons denied the allegations by pleading not guilty. The prosecution failed to produce witnesses, namely, Sajawal Khan, Pannu, Liaqat Ali, Ibrar Hussain, Fazal Ellahi, Abdul Rehman, Constable, Sardar Abdul Latif Chughtai, Tehsil/Magistrate, Dr. Muhammad Iqbal, Assistant Chemical Examiner, Sardar Muhammad Ashraf Khan, S.H.O., who initially conducted investigation in the case and Raja Khurshid Ahmed, Inspector CIA. Some out of them were given up whereas the others were not produced despite various opportunities obtained by it on request. The trial Court ultimately acquitted the accused persons vide its order, dated 5-4-1997. On appeal the Shariat Court upheld the order of the trial Court vide judgment under challenge, dated 28-4-2005.
5. Mr. Muhammad Yunus Tahir, the learned counsel for the appellant, argued that keeping in view the dying declaration made by the deceased, the prosecution case has been illegally thrown away by the Courts below. According to him if dying declaration of Manga Khan is excluded from consideration, the prosecution even then has proved its case beyond any reasonable doubt but on artificial grounds the benefit was extended to accused respondents by passing order of acquittal in their favour.
6. Conversely Mr. Bostan Chaudhry, the learned counsel for the accused respondents, contended that it was the duty of the prosecution to prove its case beyond reasonable doubt. Keeping in view the material contradictions appearing in the prosecution case the benefit of doubt was rightly extended in favour of accused respondents by the trial Court which was rightly maintained by the learned Judge in the Shariat Court. He further argued that the material witnesses in this case were not produced by the prosecution even though various opportunities on request were granted by the trial Court. The inference therefore, was rightly drawn by the Courts below against the prosecution that if these witnesses had been produced, they would have not supported the case of prosecution. He also stressed that the dying declaration Exh.P.B. Was not proved as Sardar Muhammad Latif Chughtai, Tehsildar/Magistrate was not produced to prove the same. Keeping in view this material defect, no question was put to accused respondents about the alleged dying declaration while recording their statements under section 342, Cr.P.C. In past on account of this material defect the learned Shariat Court remanded the case vide order, dated 12-9-2003 to the trial Court but the said order of remand was set aside by the apex Court vide judgment, dated 30- 4-2004. As no explanation was taken from the accused respondents about the dying declaration in their statements under section 342, Cr.P.C. Therefore, the argument raised by the learned counsel for the appellant about the dying declaration may not be taken into consideration. He also challenged the very basis of case of prosecution on the ground that F.I.R. Was allegedly registered on the statement of Manga Khan, deceased, by the S.H.O. Muhammad Ashraf Khan in a hospital where the deceased was admitted for treatment. His argument is twofold. Firstly this fact was not put to accused respondents while examining them under section 342, Cr.P.C. Secondly the prosecution witnesses haye clearly stated that Manga Khan was unconscious. In the same way he argued that after elaborate discussion the recovery made in this case was not relied upon by the Courts below. Therefore, in these circumstances the prosecution has totally failed to connect the accused respondents with the alleged offence. The Courts below therefore, had no option but to acquit the respondents.
7. Sardar Abdul Razik Khan, the learned Additional Advocate-General, supported the case of prosecution.
8. The learned counsel for the parties also referred some case-law in support of their submissions which need not be discussed in this judgment as the same has no similarity with the facts of the present case.
9. We have considered the respective arguments of the learned counsel for the parties in the light of record of the case. We have noticed that the trial Court has discussed the merit of the case of prosecution as well as the defence set up by the respondents in minute details. After going through the statements of accused recorded under section 342, Cr.P.C. We have felt that the same was not recorded properly. All the possible material brought on record in evidence against the accused persons should be put to them for their explanation. They should not be left to guess the material which can be made basis for convicting them. Therefore, ,all the circumstances appearing in prosecution evidence should be put to them for their explanation. Mere putting general type of questions is not sufficient as provisions or section 342, Cr.P.C. Are mandatory. Omission of any material question putting to accused persons for their explanation on appeal in many cases has vitiated the trials.
10. In this case the moot point which requires consideration is as to whether in the light of evidence of prosecution the respondents are connected with the murder of Manga Khan. To prove this fact the prosecution produced Muhammad Yunus who disclosed that Manga Khan told him that he was assaulted by accused respondents and that he called P.W. Liaquat for help but due to threatening of respondent No,2, the said witness went to his village. Then the witness went towards his village and informed Allah Ditta that respondents Nos.l and 2 have assaulted Manga Khan. Allah Ditta was also produced in the Court and he has been rightly quoted by the Courts below that he deposed that he was told that victim was lying at the place of occurrence. The present appellant also appeared in the Court as P.W. And disclosed that the deceased told him that he was injured by accused respondents. The appellant gave a lengthy statement which was not corroborated by Allah Ditta, P.W. The other two witnesses, who were very material, namely, Sajawal Khan and Pannu were given up by the prosecution. The independent marginal witness of recovery memos.
Exhs.PAA/6, PAA/8 arid' PA A/10 namely Muhammad Shabir was declared as hostile. According to him recovery' was not made in his presence however, he owned his signatures on the recovery memo. Muhammad Rasib and Muhammad Akhter were produced by prosecution to prove strained relations of deceased with the accused respondents in past but according to them the dispute of a boundary wall was resolved by the parties through a compromise between them. The prosecution case was set up upon an F.I.R. Which was allegedly got registered by S.H.O. In presence of Sardar Muhammad Latif Chughtai, Tehsil/Magistrate, who was not produced to prove the dying declaration. The rest of prosecution witnesses were not produced in the support of prosecution story.
11. The trial Court has rightly opined that the evidence given by Muhammad Yunus and the appellant herein was negated by the statement of P.W. Allah Ditta. Even otherwise their evidence is also in conflict with the post-mortem report because the prosecution case is that respondent No, 1 caused a hatchet blow on the partial region of deceased and the right arm of deceased was fractured by respondent No,2 by inflicting 'Sota' blow. According to postmortem report, Exh.HPR, the parietal region of the deceased received injury through blunt weapon while the arm injury was caused by a sharp weapon. In order to draw a just and correct conclusion, the prosecution and the defence versions must be considered side by side. The benefit of slightest doubt shaking the roots of case must be extended to accused party. Therefore, while appreciating the case of prosecution and defence in a juxtaposition with each other a reasonable possibility of defence version being true is drawn that nobody saw respondents causing injuries to Manga Khan-and that Manga Khan was unconscious and unable to make statement. The benefit undoubtedly is to be extended to accused party because such party is considered innocent by law till the Court of competent jurisdiction through judicial verdict opined against it. In the present case keeping in view the standard of evidence produced by the prosecution it cannot be said that the prosecution has proved the case of murder of deceased Manga Khan against the accused respondents beyond any reasonable doubt. The learned trial Court had rightly passed the order of acquittal in favour of respondents which was rightly maintained on appeal by the learned Judge in the Shariat Court.
' This appeal in view of above having no merit stands dismissed.