' SAYYED MAZAHAR ALI AKBAR NAQVI, J,---By means of instant criminal appeal filed under section 417(2-A), Cr.P.C., Rehmat Elahi, appellant has assailed the wires of impugned judgment dated 30- 9-2004 by virtue of which accused/respondents Abdul Majeed, Abdul Waheed both sons of Manzoor Hussain, caste Arain, residents of Nai ,Abadi Pind Ratwal, Police Station Saddar, Jhelum along with Mst. Saeeda Parveen widow of Sharafat Hussain, caste Arain, resident of Nai Abadi Pind Ratwal, Police Station, Saddar, Jhelum, were acquitted of the charge by learned Sessions Judge, Jhelum, in case F.I.R. No,46, dated 15-2-2004, offence under sections 302, 109, 34, P.P.C., registered at Police Station Sadder, Jhelum.
2. Facts of the case succinctly required for determination of the lis in hand are that Arshad Mehmood (P.W.9) lodged a complaint (Exh.PH) with the averments that he was resident of Kala Araian and involved in Zamindara. On 15-2-2004 he along with Sultan Mehmood son of Sufi Inayat Chan, Ch. Muhammad Azam son of Fazal Kareem, caste Arain, both residents of Kala Gojran. While boarding on vehicle bearing registration No,251/STG, in the ownership of the complainant, was going to Chak Jamal in connection with private engagement. When at 10-00 a.m., they reached near Sakhan Morr, they saw a dead body was lying on left side of the road. They stopped vehicle and saw that dead body was of Sharafat Hussain son of Rahmat Elahi, caste Arain; resident of Bhag Pul, Tehsil and District Mirpur, close relative of the complainant. The complainant and his companion identified the dead body and observed fire-arm injuries, near the left and right ear of the deceased. Blood was also lying at the spot and they found that the deceased was done to death by some unknown persons through firearm weapons.
3. On the telephone call made by Arshad Mehmood Sajjad Ahmad Bajwa SI (P.W.16) along with other police officials reached the place of occurrence and found that dead body was lying there.
He recorded statement of Arshad Mehmood (Exh.PH), which was read over to him, who signed the same in token of its correctness. The Investigating Officer prepared inquest report (Exh.PF) and drafted application for postmortem examination (Exh.PE/2). Thereafter, he handed over the dead body to Munir Ahmad Constable for its postmortem examination. The Investigating Officer forwarded the complaint (Exh.PH) through Nazim Abbas H.C. To the police station for registration of formal F.I.R. The Investigating Officer inspected the place of occurrence and collected the blood- stained earth where the dead body was lying, made it into sealed parcel and took it into possession vide recovery memo Exh.PG. Near the dead body of the deceased the Investigating Officer recovered certain articles and took these into possession through respective memos.. The Investigating Officer also prepared rough site plan of the place from where the dead body was recovered as Exh.PP. After the postmortem examination Munir Ahmad Constable produced before the Investigating Officer last worn cloths of the deceased i,e, Shalwar (P-1),' shirt (P-2), Waist coat (P-3), Vest (P-4) and pair Of shoes (P-5/1-2), which the Investigating Officer took into possession vide recovery memo Exh.PB.
' On 17-2-2004, the Investigating Officer recorded the statement of Anwar Hussain P.W. On 23-2- 2004. Having received the information the Investigating Officer raided Pakhwal Wagon Stand and arrested Abdul Majeed and Abdul Waheed accused/respondents from there. On the personal search of Abdul Majeed accused, the Investigating Officer recovered a mobile phone Erickson (P- 6), currency notes of Rs,110, denomination of one note of Rs,100 and one of Rs,10 (P-7/1-2). On personal search of Abdul Waheed accused the Investigating Officer also recovered mobile phone Nokia (P-8) and an amount of Rs,85 one note of the denomination of Rs,50 three of Rs,10 and one of Rs,5 (P-9/1-4). The Investigating Officer took into possession all the articles vide recovery memo Exh.PC. The Investigating Officer handed over the case property to the Moharrar. On 24-2-2004 he recorded statement of Nadeem Akbar P.W. On 25-2-2004 in presence of Abdul Majid and Zulfiqar Ahmad P.Ws. He interrogated both the accused/respondents separately. The Investigating Officer took Abdul Majeed accused along with above P.Ws. To the place where the dead body was lying.
He prepared memo of pointation (Exh.PJ). On 26-2-2004 during interrogation Abdul Majeed accused made disclosure and led to the recovery of Qingqi Rickshaw (P-10). He prepared memo of recovery Exh.PD On 5-4-2004, Sajid Hussain Patwari handed over scaled site plans (Exh.PA) and (Exh.PA/1) to the Investigating Officer. On 27-2-2004 Abdul Majeed accused in presence of Abdul Majeed and Zulfiqar P.Ws. Made disclosure during interrogation and led to the recovery of pistol (P- 11) and a golden ring of the deceased (P-13) from big iron box, which was lying in the room of his house. On unloading the pistol (P-11), two live bullets (P-11/1/1-2) and one empty (P-12) was also recovered, which was stuck up in the chamber of the pistol. Pistol (P-11) and empty (P-12) were made into a sealed parcel and Investigating Officer took the same into possession vide memo Exh.
PL. He also took into possession ring (P-13) vide memo Exh.PM. On the said date Investigating Officer moved an application before the Area Magistrate for recording statement of Nadeem Akbar under section 164, Cr.P.C., on which he was directed by the learned Magistrate to produce the witness on 28-2-2004. Accordingly Abdul Majeed, Abdul Waheed accused/respondents and Nadeem Akbar P.W. Were produced before the Area Magistrate where the statement of Nadeem Akbar (P.W.12) under section 164, Cr.P.C. Was recorded in presence of accused persons. On 11-3-2004 Mst. Saeeda.
Parveen accused appeared before the Investigating Officer and joined investigation when she was on interim pre-arrest bail. On 17-3-2004 her pre-arrest bail was confirmed. After completion of the investigation report under section 173, Cr.P.C, was prepared and sent to the competent court of law.
The learned trial Court in terms of order dated 22-9-2004 formally charge sheeted the accused- respondents. In order to substantiate its case the prosecution produced as many as 16 prosecution witnesses. Thereafter, statements of the accused/respondents were recorded under section 342, Cr.P.C; wherein they totally denied the prosecution evidence..
4. The learned trial Court after affording an opportunity, of hearing to both the parties in terms of judgment dated 30-9-2004 acquitted the accused-respondents from the charge, which has been challenged by means of instant Criminal Appeal.
5. It is pertinent to mention here that on 18-4-2008, the instant appeal was dismissed to the extent of Mst. Saeeda Parveen/respondent No,3, therefore, the matter is alive only to the extent of Abdul Majeed and Abdul Waheed/respondents Nos.1 and 2. .
6. Learned counsel appearing on behalf of the appellant contended that as per dictum of law of august Supreme Court of Pakistan in the case of The State through Advocate-General N.-W.F.P., Peshawar v. Humayoun and others (2007 SCM R 1417).. Although scope of appeal against acquittal is very narrow, however, if the circumstances so permit, the acquittal judgment/order can be interfered. Learned counsel next submitted that the learned trial court while acquitting the accused/respondents Nos.1 and 2, not only committed grave misreading and non-reading of evidence available on record rather the acquittal has been passed in sheer violation to the settled principles of apex Court of the country. It was also argued that Sarfraz Ahmed (P.W.13) and Ameer Ahmed (P.W.14) made their statements not only about the salient features of the prosecution version rather their statements are supporting each other on major aspects of the case. Learned counsel vehemently contended that admittedly the instant case is unseen, however, the pin- picture of the series of incidents deposed by Nadeem Akbar (P.W.12), who happens to be quite independent persons, inspires confidence. Learned counsel next argued that 'the occurrence is admitted and the complainant and other witnesses had no previous animosity against the accused/respondents for their false implication in the instant case. Learned counsel while pointing out to certain cross-examination upon the prosecution witnesses vehemently contended that no such suggestion was put to the prosecution witnesses regarding previous enmity, which could be made basis for false implication/substitution. Regarding motive learned counsel argued that the same was fully proved through material prosecution witnesses and the learned trial court while disbelieving the same committed grave miscarriage of justice. Motive being the continuation of the illicit relationship between Abdul Majeed (respondent No,1) and Mst. Saeeda Parveen was fully proved, which resulted into the instant case. Learned counsel further contended that the prosecution led legal, cogent and confidence-inspiring evidence qua abduction of the deceased for murder (under section 364, P.P.C.), however, the learned trial court did not advert to it and perusal of the impugned judgment reveals that not a single word has been said in rebuttal of the prosecution evidence on this score. Learned counsel. Further argued that in the circumstances, interference by this Court in the acquittal judgment is called essential for safe dispensation of criminal justice.
7. On the other hand, learned counsel for the accused/respondents has vehemently controverted the assertions made on behalf- of the appellant. It was argued by the learned counsel representing respondents that the prosecution has set up the motive that Mst. Saeeda Parveen was having illicit liaison with Abdul Majeed, however, it is on the record that Mst. Saeeda Parveen was Hafiz-e-Quran, who had performed Hajj' in the company of her deceased husband in the year 2002. She used to teach the children of village Dars-e-Qtiran. Learned counsel vehemently contended that the same, thus, was rightly disbelieved by the learned trial Court. It was next argued that there is no direct or circumstantial evidence available on record to connect the accused/respondents with the commission of offence. The learned trial court while evaluating correctly appreciated the dents in the prosecution evidence, thus, has rightly extended the premium of innocence to the respondents. It was also agued that the testimony of the prosecution witnesses is shaky based upon conjectures and surmises. Even otherwise, they are chance witnesses and their deposition is not confidence inspiring. Learned counsel next argued that it is a case of no evidence and the learned trial court was well justified in acquitting the respondents.
8. In the light of arguments we have gone through the record.
9. In the instant case certain aspects of the prosecution case are admitted. There is no denial to this fact that the occurrence is unseen. The prosecution, in order to prove its case has led evidence in the shape of Sarfraz Ahmed (P.W13) and. Ameer Ahmed (P.W.14). Admittedly Ameer Ahmed (P.W.13) had not directly implicated the respondents in the instant case rather it has come in his testimony that he had firm suspicion that Abdul Majeed accused had murdered Sharafat deceased on the instigation of Mst. Saeeda Parveen. Similarly, Sarfraz Ahmed (P.W.13) had deposed that Sharafat deceased had accompanied respondents Nos.1 and 2 and the driver. As far as the "prosecution witnesses are concerned, admittedly Surfraz Ahmed (P.W.13) and Ameer Ahmed (P.W.14) are residents of Azad Jammu and Kashmir. They are son and father and the deceased was younger brother of P.W.14. This Court cannot loose sight of that the occurrence had taken place in Lahore, as alleged by the prosecution, where deceased was abducted and subsequently he was murdered in District Jhelum. The inter se distance between the place of abduction and murder is about 200 KMs and both the prosecution witnesses hail from AJK, which is at a distance of 100 KM from the place of occurrence. This material fact cannot be off sighted by this Court while evaluating the evidence available on the record. -As far as the allegation under section 364, P.P.C.
Is .Concerned, we have seen the evidence available on the record with due care and caution and have observed that there is nothing on the record from where it could be gathered that the abduction of the deceased was proved beyond shadow of reasonable doubt and as such the provisions of section 364, P.P.C. Are not made out for the purpose of conviction.
10. Moreover, fact remains that Sarfraz Ahmed (P.W.13) had appeared before the police on 18-2- 2004 and made a delayed statement under section 161, Cr.P.C. Similarly, recording of delayed statement of Nadcem Akbar (P.W.12) on 24-2-2004, who was the alleged taxi driver, also creates doubt because no explanation has been rendered in this regard. The prosecution version is that Sarfraz Ahmed (P.W.13) was informed about the death of his uncle (chacha) at the night of 15-2- 2004. If this stance of the prosecution is presumed to be true as it is claimed, even then when said prosecution witness was contacted, he might have disclosed the complainant; his real father, who admittedly is a practicing lawyer that the accused/respondents had taken Sharafat deceased with them and immediate statement of Nadeem Akbar (P.W.12) would have been of pivotal nature. The statement of Nadeem Akbar (P.W.12) recorded under section 164, Cr.P.C. Further shakes the authenticity of the prosecution case and strengthens the defence version that he was kept in police custody for 3/4 days at the police station and was let off only when he had given statement before the learned Migistrate. If averments of the statements of Nacleem Akbar (P.W.12) and Sarfraz Ahmed (P.W.13) are seen with naked eye, it is crystal clear that both were tutored in a professional manner, however, at the same time recording of their statements before the Investigating Officer with nine and five days delay respectively, leaves doubts, which could not be digested in ordinary manner. The Magistrate, who had recorded the statement of Nadeem Akbar (P.W.12) under section 164, Cr.P.C. Was not cited as a witness to support the prosecution ease on this account for the reasons best known to the prosecution. The story advanced by -Zulfiqar Ahmed (P.W.15) is-also not believable especially the time when he had met the respondents in the company of deceased.
11. As far as pointation of place of occurrence (Exh.PJ) by the respondents is concerned it is hit by Articles 39 and 40 of the Qanun-eShahadat Order, 1984, which are reproduced hereinbelow for ready reference:- "39. Confession by accused while in custody of police not to be proved against him. Subject to Article 40, no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person.
40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information. Whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
' Moreover, in the case of Ziaul Rehman v. The State (2000 SCM R 528) the august Supreme Court of Pakistan held as under:-- "Arts. 39,
40. Evidence of pointing out of place of occurrence by accused would be inadmissible evidence when no recovery was made by prosecution.
' Similarly, in the case of Muhammad Yar alias Yari v. The State (2001 M LD 807) it was held as under:-- "...Mere pointation to a place without its being associated with any other evidence of commission of murder would by itself not be covered by Article 40 of the Qanun-e-Shahadat, 1984. The evidence of so-called detection or disclosure being not covered by Article 40 would be inadmissible in evidence.
' Similar view was affirmed even much earlier by the Indian Jurisdiction in the case of Ramkishan Mithnlal Sharma and others v. State (AIR 1955 SC 104).
12. Further the recovery of golden ring could not be corroborated by. Any other independent evidence. The learned trial Court had rightly observed that at the first look the ring appeared to be a brand new rarely worn by anybody. Moreover, the prosecution failed to produce jeweller from whom the same was got manufactured. The authenticity of the statements of Sultan Mehmood (P.W.8) and Arshad Mehmood (P.W.9) is also questionable because their version before the Investigating Officer and subsequent deposition before the trial Court is altogether different. As far as recovery of pistol (Exh.PL) is concerned it is of no consequence to the prosecution as report of the FSL (Exh.PS) is negative.
13. The imperative and foremost aspect of this case relates to the scope of appeal against acquittal. In its landmark judgment in the case of Ghulam Mustafa and another v. Mamraz Khan and others (PLD 1985 SC 11), the august Supreme Court of Pakistan has provided following guidelines:-- "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the appraisement of evidence which then is 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 assumption of innocence.
(2) 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.
(3) In either case the well-known principles of reappraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from a normal principle must be necessitated by obligatory observance .Of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with the acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible." conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding Sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
14. ',We have carefully gone through in detail the facts of the case, the prosecution evidence and the arguments of learned counsel for the parties on the touchstone of principles laid down by the august Supreme Court of Pakistan in the judgment cited supra. However, we have failed to find that the learned trial court has committed any misreading or non-reading of evidence available on the record. Rather the conclusion arrived at-by the learned trial court is just and proper, which needs no interference by this Court. Even otherwise, learned counsel for the appellant failed to point out any iota of evidence on the record, which is required to convict a person on the charge of capital sentence. The whole C prosecution case squarely comprises of conjectures, surmises and suspicions, which cannot be made basis for conviction especially the Suspicions, whosoever .These are sound and firm, these remain suspicion and cannot be substituted for cogent material, which is sine qua non to convict, a person in a case of murder and what to talk of appeal against acquittal when the presumption of innocence becomes double in such like cases.
15. For the foregoing reasons, Criminal Appeal No.513 of 2004 stands .Dismissed in toto. The acquittal judgment of the learned trial Court passed on 30-9-2004 is upheld. Abdul Majeed and Abdul Waheed respondents Nos.1 and 2 are on bail. Their sureties are discharged from their liabilities.