' CH. MUHAMMAD IBRAHIM Z1A, J. This direct appeal under Section 25 of the Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act, 1974 has been filed against the judgment of the Shariat Court dated 8.2.2010, whereby the acquittal order passed in favour of the respondent by the Trial Court has been upheld.
15.12.1999,The precise facts of the case are that appellant No, 1 submitted a written application at Police Station Pallandri for registration of case on 10.12.1999, wherein he stated that his brother Tahir Nadeem (deceased) was working at the hotel of Zahid s/o Muhammad Ameen r/o Tahliaan. On the date of occurrence, he left the hotel at about 8'00 p.m. in the company of Haq Nawaz alias Najja s/o Muhammad Aseel and Muhammad Idrees alias Jagga s/o Muhammad Latif. After leaving the hotel they went o Hafiz Muhammad Mansha Khan, accused/respondent the Namaz-e- Taraveeh Imam in the Local Mosque, in order to ask him why he persists for Coming to the Mosque.
Tahir Nadeem, deceased, did not come back at night and early in the morning at about 7.45 a.m., the complainant was informed about the dead-body of his brother soaked with blood, lying near the Shrine of Maee-Faqeernee situated near the Nallah. The complainant, his uncles namely Qasim Zahoor, Muhammad Hameed, Muhammad Shafique and others went on the spot and found the dead-body of Tahir Nadeem (deceased) lying in vertical position. His head was downward the Nallah while the legs were on the upper side who had been fired on the chest. Some bruises were also found on his nose and forehead, It was further narrated that on the hotel, Haleem, Shabhir & Jameel were also present at evening, lt was stated that somebody has murdered his brother at night. Upon this application under Section 302, A.P.C. F.I.R. No, 158/99 was registered on 10.12.1999 at 9:00 a.m.15.12.1999 After registration of the case, the police went on the spot and took the dead- body, blood-stained earth and grass into its possession. Some other articles e.g. purse, empties etc. were also taken by the police into its possession. The spot inspection was got prepared by the local Patwari and the post-mortem report was obtained from Mr. Sajid Razaque, Civil Medical Officer, Pallandri. The police also recovered 30 bore pistol from the accused from his residential house, situated in village Chak Noor, Tehsil Kotli. The cause of death as opined by the Medical Officer was the fire-arm injury. After necessary proceedings the accused was challenged before the District Court of Criminal Jurisdiction, Pallandri for alleged commission of the offence under Section 302, PC. The learned Trial Court framed the charge on 29.1.2009. The accused did not plead guilty, therefore, the prosecution for proving his guilt got examined 21 witnesses. The prosecution evidence brought on record was put to accused for explanation under Section 342, Cr.P.C, and his statement was recorded on 5.4.2003, who once again claimed innocence. The accused also produced some evidence in his defence. The conclusion of the trial, resulted into acquittal of the accused/respondent vide judgment of the Trial Court dated 31.12.2003.
2. The complainant, Shahid Nadeem and Mst. Afsar Jan (mother of the deceased) challenged the legatee and propriety of the acquittal order passed by the District Court of Criminal Jurisdiction.
Pallandri, through appeal before the Shariat Court on the ground that the subordinate Court has not appreciated the evidence in its true perspective which has resulted into miscarriage of justice, lt was also stated in the memo, of the appeal that a reasonable explanation for not reporting the matter by Heiq Nawaz and Muhammad Idrees (P.Ws.) to the Police has been given by these witnesses and the learned Trial Court arbitrarily disbelieved their evidence and illegally drawn an adverse inference against the prosecution. lt was stated that there was no contradiction between the ocular and the medical evidence, hence, the conclusion of the learned Trial Court to that extent is erroneous and illegal. The Trial Court has not allowed the re-examination of the doctor to clarify his ambiguous statement and this illegal act of the Court contributed to the acquittal of the accused. The other available evidence has been fully connected the accused/respondent with the commission of the offence but the learned Trial Court illegally ignored the same. The judgment of the Trial Court maintained in appeal by the Shariat Court, through the impugned judgment dated 8.2.2010, hence this appeal.
3. Mr. Asghar Ali Malik, the learned Advocate arguing on behalf of the appellants submitted that tile accused is fully implicated by the statements of Haq Nawaz and Muhammad Idrees (P.Ws.). Three witnesses were not cross-examined. The material facts stated in examination-in- chief by the witnesses have not been controverted in cross- examination, thus according to celebrated principle of law the portion of the statements which remained uncrossed is to be treated as admitted. The evidence of eye-witnesses is corroborated by the statement of the Magistrate who has recorded the statement of these witnesses under Section 164, Cr.P.C, and the motive is also proved. The learned Advocate maintained that the occurrence was reported by the brother of the deceased in a natural way and the conduct of Haq Nawaz and Muhammad 'Idrees (PWs), not reporting the matter to the Police is also not unnatural in the circumstances prevalent in the society and the same was plausibly explained. The explanation offered by these P.Ws, was not only plausible but was also natural, hence, their statements are liable to be accepted- The other evidence i,e, recovery of Pistol, report of Chemical Examiner and report of Forensic Science Laboratory, has also not been considered in its true perspective by the Trial Court, ln support of his submissions the learned Advocate placed reliance on the following cases: (i)Muhammad Yaqub v. The State [PLD 1986 Lah. 217] (ii)Isiamuddin and others v. Ghulam Muhammiid and others [PLD 2004 SC 633] (iii)Nazir Ahmed and another v. The State [PLD 1986 FSC 162] 6.Kh. Muhammad Nasim, the leamed counsel for the accused/respondent contended that the occurrence was not witnessed by anybody and the role of the so-called eye- witnesses, Haq Nawaz and Muhammad Idrees, is akin to an accomplice and their conduct is highly unnatural because none of them has reported the matter to the police rather they went to sleep at the Hotel and home, respectively, despite the fact that the deceased has been shot dead by the accused in their presence. The learned counsel further contended that statements of Haq Nawaz and Muhammad Idrees, cannot be relied upon because they were arrested in the same case. He argued that Muhammad Idrees, has not appeared in the Court in support of his statement recorded under Section 164, Cr.P.C. The Magistrate who has recorded these statements failed to mention the date and to comply with the other legal formalities of Section 164, Cr.P.C. The learned counsel further argued that there is material contradiction between the ocular and medical evidence. He submitted that the accused has been acquitted from the charge and the acquittal order has been maintained in appeal resulting into concurrent findings of fact, thus the presumption of double innocence of the accused coupled with concurrent findings of the fact are such legal aspect of the matter, which makes the appeal incompetent The learned counsel submitted that the prosecution has badly failed to prove the guilt of the accused. The learned counsel placed reliance on the following precedents:-- (1)Asia Bibi and 5 others v. Ghazanfar Ali & 3 others [2005 SCR 1 ] (2)Muhammad Latif Butt v. Shehtab & 4 others [2009 SCR 432]
7. We have taken into consideration the respective arguments of the learned Advocates representing the parties and perused the record, which reveals that the judgments of both the Trial Court as well as the Shariat Court have been recorded after due appreciation of all the material brought on record. Both the parties have almost repeated the same grounds and arguments which have been attended by both the Courts below in detail.
8. The sole direct witness of occurrence produced before the Trial Court, is the a prosecution's witness, Haq Nawaz. The Trial Court, who has recorded statement of this witness after deep appreciation and analysis observed as following:-- "We have profoundly gone through the record of the case and perused the evidence produced by prosecution and defence. The prosecution case rests on the sole evidence of P.W. Haq Nawaz. His amienance and conduct is doubtful. He allegedly witnesses the incident but do not inform about the same to any body and remains silent till the next day when the dead-body was found laying in the torent. In spite of presence of accused at the place of occurrence he didn't disclose his name to others, It is not on the record that when he returned to the hotel after the occurrence took place nobody saw him returning to hotel nor it is established that when Idrees reached home, no other P.W. has witness and the occurrence. Medical evidence contradicts the prosecution version.
' Prosecution version is that the incident took place at 8:30 p.m. while Medical report reveals that deceased was murdered after 6 hours of taking meal. This means that he was murdered at 2-0 clock at the night, lt is settled principle of law that anything which goes in favour of accused must be taken into consideration and the benefit of the same, if any, be extended to accused not as a matter of grace but as a matter of right. The conduct of the eye-witnesses is not natural. They left the deceased laying at the spot in injured condition and did not inform any person about the occurrence. This conduct of the eye-witness makes the prosecution case doubtful."
' The learned Shariat Court has thoroughly gone through the whole prosecution evidence and after deep analysis has drawn the following conclusion:-- "lt may be stated that appreciation of evidence and drawing conclusion there-from is an exclusive function of the Trial Court, however, for our own satisfaction we have perused the entire evidence lead by the prosecution in support of the charge in light of the arguments advanced on behalf of the learned Advocates representing the parties, In this case Shahid Nadeem, complainant, is not an eye-witness. The application filed by him at the Police Station Pallandri (Exh. PA) when considered in light of his Court statement and the statement of Haq Nawaz, it becomes crystal clear that the prosecution has not straight forwardly presented its case. Shahid Nadeem, in his Court statement has categorically stated that Haq Nawaz and Muhammad Idrees, were not present on the place of occurrence where the dead-body of the deceased was lying, lt is further narrated by him that he did not meet to Haq Nawaz and Muhammad Idrees, before lodging the F.I.R, lt is astonishing that in the application (Exh.PA) made to the SHO for registration of the case, his stand is that at night at 8:00 p.m. Tahir Nadeem (deceased) left the hotel in the company of Haq Nawaz alias Najja and Muhammad Idrees alias Jagga, to pursue Hafiz Muhammad Mansha who had already left the hotel. Similarly it is also narrated by him that on the hotel Haleem, Shabhir and Jameel were also present in the evening time. The fact that how the complainant came to know that deceased left the hotel in the company of Haq Nawaz and Muhammad Idrees, is shrouded in mystery. Haq Nawaz and Muhammad Idrees have claimed to have witnessed the occurrence because the deceased left the hotel in their company. Their narration is that when they reached near the shrine of Maee-Faqeernee, near the mosque they saw the deceased and Hafiz Muhammad Mansha talking to' each other and all of a sudden the accused took out the pistol from his right side and fired on the deceased, as a result whereof he fell down. They ran away from the spot without helping the deceased or catching the accused. Their explanation is that in case they tried to catch the accused, he might kill them or they could be involved in the murder of Tahir Nadeem. It is prosecution case that the accused has not left the hotel alone. His brother Muhammad Rasheed and son Muhammad Sajid were also accompanying him. They were arrested by the Police in the same occurrence and were released under Section 169 of Cr.P.C. The Trial Court has disbelieved the statement of Haq Nawaz whereas Muhammad Idrees, has not been examined by the prosecution as he died before making his statement ln the Court. His statement is proved through the evidence of Raja Muhammad Shafique Kiani, SDM Pallandri.
' We are of the considered view that neither Haq Nawaz nor Muhammad Idrees has witnessed the occurrence. They belong to the same family and are residing in the same area whereas the accused belongs to a different district. Their conduct is highly doubtful because after witnessing the occurrence one of them went to his home for sleep and the other returned to the hotel. None of them intimated the family of the deceased, police or anybody else. Their conduct is akin to an accomplice, It is also on the record that these witnesses were arrested in the case. Fact that the police examined them under Section 164, Cr.P.C, further strengthened the fact of their arrest. The evidence of the Magistrate could have been considered in corroboration only when Haq Nawaz (P.W.) would have not supported the prosecution. The statement of Muhammad Idrees cannot be relied upon because he has not appeared as a witness in the Court. The Magistrate who has recorded the statements has neither mentioned any date of statements nor complied with the requirements of Section 164 of Cr.P.C., therefore, statement of Haq Nawaz cannot be considered for the purpose of corroboration. We have noticed that Haq Nawaz (P.W.) has made deliberate improvements in his Court statement. A witness who deliberately involved an accused by making improvements in his statement cannot be relied upon without independent corroboration which is missing in the case in hand. Where the conduct of the witness is unnatural and doubtful then it is not safe to rely upon his testimony for the purpose of conviction, ln a case titled State v. Jamalan (PLD 1959 (W.P.) Lahore 442], a Division Bench of Lahore High Court has approved the same view and observed that where a witness has not reported the occurrence to the police he is not better than an accomplice."
9. Irrespective of principle of law that after acquittal double presumption of innocence is accrued to the accused. There are also concurrent findings of facts recorded by both the Courts below, the appellants have not succeeded to point out any material thing to satisfy this Court that the conclusion drawn by the Courts below is incorrect or not supported from the record. So far the contention of the learned counsel for the appellants that the statements of witnesses remained unchallenged in cross- examination be treated as admitted, is concerned, in the peculiar circumstances and facts of this case, is not acceptable. This principle attracts if the witness is otherwise found to be reliable, natural and trustworthy. Whereas, in the instant case as discussed by the Courts below, the conduct and behaviour of the sole so-called eye-witness, Haq Nawaz, makes his whole statement doubtful and incredible as is evident from the record. When the statement, as a whole, is not reliable then it becomes immaterial whether any portion of such statement in cross-examination has been challenged or not. Moreover, the defence has cross- examined the witness on material points, thus the argument has no foundation.
10.The contention of the learned counsel for the appellant that the statements of witnesses Haq Nawaz and Muhammad Idrees recorded under Section 164, Cr.P.C, by the Sub-Divisional Magistrate are un rebutted proof connecting the accused-respondent with the commission of offence, is also not helpful to the prosecution because the same has, in detail, been discussed by the Trial Court.
Haq Nawaz, witness, in his statement recorded under Section 164, Cr.P.C. states Whereas deposition of other witness as alleged under Section 161, Cr.P.C, is that:-- {{URDU TEXT}} Such deposition of the prosecution witnesses creates serious doubt regarding their credibility and truthfulness, lt is also noticed that none of the statements allegedly recorded under Section 164, Cr.P.C, bears the date of its recording. Moreover, according to the codal provisions while recording statement under Section 164, Cr.P.C., the Magistrate is under legal obligation to record such statements in the manner prescribed for recording of evidence or in the manner provided under Section 364, Cr.P.C. The perusal of statements (Ex. PC and PO) reveals that the statutory mandatory requirement has not been complied with by the Magistrate while recording the statements, It is further noticed that in reply of Query of the Magistrate, {{URDU TEXT}} ' Such expressed deposition of the witnesses makes the whole process of recording the statement under Section 164, Cr.P.C., doubtful.
10. So far the question of corroboratory piece of circumstantial evidence is concerned, no doubt the Medical Expert can state cause of death, nature of injury and the manner of causing the injury or the weapon through which the injury caused, but he cannot go behind this to connect the chains of prosecution story by identification of the accused. Therefore, unless there is convincing evidence regarding the conduct of the accused that injuries which caused death of the victim were inflicted by the accused no one can be punished merely on the basis of such corroboratory piece of circumstantial evidence. So far the question of recovery of crime weapon is concerned, the recovery witnesses namely Muhammad Jameel is brother-in- law of the deceased whereas the other Muhammad Shafique is the uncle of the deceased. Both are resident of village Jahlian District Sudhunuti. Whereas according to prosecution version the crime weapon is recovered from the house of the respondent situated in village Ghak Noor, Tehsil and District Kotli. None of the recovery witnesses stated the manner of recovery of crime weapon. Muhammad Jamil, recovery witness of crime weapon simply states that:-- {{URDU TEXT}} ' The other witness Muhammad Shafique also states:-- {{URDU TEXT}} He further admitted in cross-examination that a large number of residents of village Chak Noor were available and present there. The prosecution has failed to record the statement of any of independent witness regarding the recovery of the crime weapon. Thus the cumulative analysis of statements of recovery witnesses also leads to the conclusion that their statements are neither trustworthy nor confidence in spring, lt is now almost settled principle of law that benefit of every doubt goes to the accused, therefore, the appellants have not succeeded to point out any illegality in the impugned judgments of the Courts below or to satisfy that the judgments are the result of mis-reading and non-reading of evidence, It is the basic duty of the prosecution to prove his case beyond any shadow of doubt as it is the consistent centuries old principle of law followed by the Courts all over the world.
10.The principle of law laid down referred to by the learned counsel for the appellants is of legal nature. We have no cavil with this enunciated principle of law but for the detail reasons hereinabove stated in the light of peculiar facts of this case, this case being distinguishable and the cited judgments have no nexus with the case in hand, thus need not be discussed. The learned counsel for the respondent has rightly placed reliance on Aqsa Bibi's case (2005 SCR 1), wherein while discussing the scope of medical evidence, it has been held:-- "The medical evidence in every case cannot be considered as conclusive proof of the case.
However, if the opinion expressed in the medico-legal report in the light of injuries found on the person of deceased is directly in conflict with the ocular testimony, then the ocular evidence is not to be relied upon."
' It is further held in this case:-- "In the criminal cases the prosecution is bound to prove guilt of the accused beyond reasonable doubt. When the testimony of the eye-witnesses becomes doubtful, the prosecution case as a whole becomes doubtful, In the present case all the eye-witnesses are the members of one family who in the light of F.I.R, and their statements before the Court were rightly held by the Shariat Court to be interested and inimical to accused Ghazanfar Ali."
' Lastly, in this case principle of double presumption of innocence has been discussed as following: -- 'The grounds on which the Shariat Court has acquitted the accused respondents are fully supported by the evidence on record. The acquittal carries double presumption of innocence. One is initial that till found guilty accused persons are innocent and second is that Court of law having jurisdiction records order of acquittal, In such circumstances, this Court would interfere only if it is proved from the record that the order of acquittal is perverse and the reasons in support of the same are artificial and ridiculous."
' The principle of law enunciated in referred reports, in view of the identical circumstances, is applicable in the case in hand.
11. The result of above discussion is that the impugned judgments are neither perverse nor arbitrary or suffer from any illegality. Thus finding no force in this appeal, it is hereby dismissed.