RAJA SAEED AKRAM KHAN, J. -- Both the supra titled appeals arise out of the judgment of the Shariat Court dated 11.5.2010, whereby the Shariat Court while answering the reference made by the Additional District Criminal Court, Muzaffarabad, confirmed the death sentence awarded to Abdul Rasheed Gresta and Nasir Ali, appellants herein and dismissed the appeal filed by the convict- appellants. The sentence of death as Tazeer under Section 302(b), A.P.C., including other sentences under Sections 544-A, Cr.P.C., 34, 201 & 364, A.P.C., awarded to convict-appellants by the Additional District Criminal Court, Muzaffarabad, has been maintained by the Shariat Court, while the appeals filed by Muhammad Arif Qureshi, complainant and State against the convict-appellants for enhancement of sentence and for awarding sentence to the acquitted accused, Tofeeq Oadar Gresta and Hamid Tofeeq Gresta, were dismissed. Since both the appeals have been filed against a consolidated judgment of the Shariat Court, therefore, we propose to dispose of both the appeals through this single judgment.
2. The gist of the facts forming the background of these appeals is that an application was filed by on Muhammad Arif Qureshi, complainant, at City Police Sfction, Muzaffarabad, on 25.7.2008, stating therein that his brother, Al-Haaj Muhammad Ashraf Qureshi went out of the home at 12.00 p.m. on 24.7.2008 and did not come back yet. His cellular phone bearing No, 0300-5166048 was also powered off. The said report was registered as report No, 30 in the Roznamcha on the same day.
On 27.7.2008, Muhammad Arif Qureshi, lodged an F.I.R, at 10.00 a.m. at City Police Station, Muzaffarabad, alleging that an application with regard to his missing brother had already been filed by him and he has been looking for him. During the search, Shaikh Manzoor Ahmad, shopkeeper, P.W.3, told him that on 24.7.2008 Al-Haaj Ashraf Qureshi was sitting in his shop when he received a telephonic call at 2.00 p.m. from Abdul Rasheed Gresta, who asked him to come at Upper Adda. After receiving the telephonic call, Al-Haj Ashraf Qureshi, deceased, went out of his shop, It is further stated that Bilal Ahmad Qadri saw him in a white Mehran car on C.M.H. road at 2.30 p.m. It was alleged in the report that a dispute with regard to ejection from a rented plot situated near Upper Adda existed between Abdul Rasheed Gresta, Taufeeq Qadir Gresta and Hamid Qadir Gresta, where he (the complainant) and his brother, Al-Haj Ashraf Qureshi, were running business of firewood and cement stocks for the last 17 years. Prior to the occurrence many meetings of notables were held but the plot could not be vacated due to nonavailability of an alternate premises, It was further stated in the report that the complainant believed that the accused persons, with the help of other<%o-accused have kidnapped his brother with the intention to kill him for the purpose of ejection from the rented plot.
3. On the report lodged by Muhammad Arif Qureshi, a case was registered under Sections 364-A, 109 and 34, A.P.G and investigation was initiated by Muhammad Riaz Mughal, S.H.O. The Investigating Officer recovered a Nokia mobile phone alongwith two SIMS from Abdul Rasheed Gresta during his body search vide recovery memo., Ex.PL in presence of Mehboob Ahmad Tariq, P.W.33 and Mukhtar Ahmed Qureshi, P.W.36. On the same day, a Mehran car No, IDN-8641, white colour was recovered from Narrul Stadium vide recovery memo., Ex.PF. A Jeep No- MDGA-571. was also recovered from Chatter Secretariat near the office of SERRA vide recovery memo., Ex.PG. A blood-stained insect killer of white colour and a telephone diary having photographs of deceased were recovered at the instance of Abdul Rasheed Gresta, vide recovery memo., Ex.PM. The back side cover of a Samsung mobile set and its battery owned by the deceased were recovered on the pointation of Abdul Rasheed Gresta from Jalalabad Garden vide recovery memo., Ex.PN. A bloodstained hammer with its handle was recovered on the pointation of Abdul Rasheed Gresta from a grassy jungle near the President House vide recovery memo., Ex.PO, A blood-stained double bed and mattress were also recovered vide recovery memo., Ex.PP at the instance of Abdul Rasheed Gresta. A broken box, a wet blanket stained with blood and a torn out piece of cloth, Ex.PH, were recovered from river Jhelum, near Gillani Flour Mills, Gujjar Kohala. A list of calls made from the mobile phone of Abdul Rasheed Gresta to the deceased was also obtained by the S.H.O. vide recovery memo., Ex.PL The dead-body of the deceased was recovered at Baila-Bhadur Shah Dakhli Dhangalli, Dudyal, District Mirpur. The dead-body was sent for postmortem which was conducted by Dr. Naseer Ahmed Sheikh, Police Surgeon, P.W.44. After concluding investigation, it was opined that on account of enmity and dispute of plot, Abdul Rasheed Gresta, Taufeeq Qadir Gresta and Hamid Qadir Gresta had hired Nasir Ali and Sikandar from Sara-e- Alamgeer, District Gujrat, who killed Al-Haaj Muhammad Ashraf Qureshi and threw his dead-body in the river Jhelum at Gujjar Kohala.
4. A challan was presented before the Additional District Criminal Court, Muzaffarabad. The Trial Court, at the conclusion of. trial, awarded sentence of death as Tazeer to Abdul Rasheed Gresta and Nasir Ali, convict-appellants, under Section 302(b), A.P.G. They were made liable to pay compensation of Rs, 5,00,000/- each to the heicg of the deceased under Section 544-A, Cr.P.C, failing which each of them was to undergo six months' imprisonment. They were also awarded five years' rigorous imprisonment each, under Sections 201, 364 and 34, A.P.C. alongwith a finejcf Rs, 1,000/- each, in default of which each of them has to undergo six months' imprisonment. Taufeeq Qadir Gresta and Hamid Qadir Gresta, accused, were acquitted of the charge. A reference was submitted by the Additional District Criminal Court, Muzaffarabad, to the Shariat Court for confirmation of death sentences. Abdul Rasheed Gresta and Nasir Ali, convict-appellants, filed an appeal before the Shariat Court for their acquittal while Muhammad Arif Qureshi, complainant, and the State filed two separate appeals for the enhancement of the sentences of the . convict- appellants and for awarding sentence to Taufeeq Qadir Gresta and Hamid Qadir Gresta, the acquitted accused. The Shariat Court, while confirming the death sentences in the reference made to it by the Additional District Criminal Court dismissed all the three appeals vide impugned judgment dated 11.5.2010. The aforesaid judgment has been assailed through the instant appeals by the convict-appellants for their acquittal and by the complainant-appellant for the enhancement of the sentence of the convict-appellants and for awarding sentence to the acquitted accused.
5. Raja Muhammad Hanif Khan and Kh. Attaullah Chak, Advocates, the learned counsel for the convict- appellants, have argued that the judgments passed by the Shariat Court as well as the District Criminal Court are against law and facts of the case. Both the Courts below have not appreciated the evidence available on the record. They argued that this is not a case of direct evidence, rather it is a case of circumstantial evidence. They submitted that out of alleged recoveries, only blood-stained insect killer, hammer (Hathora), pieces of blood-stained bed and blanket were sent to the Chemical Examiner for determination of blood origin and blood grouping.
The report of the chemical examiner is to the effect that the articles are stained with blood, and to determine the origin of blood and blood grouping, the material was sent to the Serologist but no report of Serologist has been brought on the record by the prosecution. The recoveries were made in presence of the witnesses who are closely related to the deceased and no independent witness was cited by the prosecution which makes the case doubtful. They submitted that both the Courts below have wrongly relied upon such related recovery witnesses, therefore, the judgments of both the Courts below are not sustainable in the eye of law. They contended that the recovery witnesses, namely, Ghulam Jillani, Mehboob Ahmed Tariq and Manzoor Ahmed Sheikh have stated that when they left Police Station for recoveries, 20 to 30 persons were present at the Police Station but none of them was cited as a recovery witness, therefore, it is clear that all the recoveries are fake and fabricated. The learned counsel further submitted that the Trial Court discussed the statements of the prosecution witnesses but omitted to consider the important portions which supported the case of the convict-appellants. The Trial Court omitted the portions of the statements of the prosecution witnesses which were supportive to the defence version. Both the Courts below have not taken into consideration the prosecution evidence as a whole and the case-law on the point and recorded the partial findings which are not warranted under law. They have further submitted that the witnesses produced in support of motive are all closely related to the deceased who are not reliable witnesses, therefore, the Courts below have wrongly relied upon their testimony. The prosecution miserably failed to produce any independent witness on the point. They have further argued that the statements of some of the prosecution witnesses were got recorded under coercion by the police, therefore, their statements are not reliable. Under Section 164, Cr.P.C., it is provided that the Magistrate while recording statements under the statutory provision shall have to provide the accused persons an opportunity to cross-examine the witnesses but in the instant case no such opportunity was provided while recording the statements of prosecution witnesses under Section 164, Cr.P.C., therefore, such-like statements cannot be made basis for the conviction of an accused and the same should have been discarded but both the Courts below failed to take into consideration this important aspect of the case. The learned counsel contended that there is only one prosecution witness, i.e, Bilal Ahmed Qadri, who last seen the deceased while sitting in a Mehran car but this type of evidence is very weak under law. The statement of this witness cannot be relied upon, as the same is not supported by any strong corroboration. He further argued that the extra-judicial confession made before the Police Officer cannot be relied upon. Moreover, all other witnesses before whom the extra-judicial confession is made are closely related to the deceased and confession made before such related witnesses is not admissible. The extra-judicial confession must be in presence of independent witnesses. Even otherwise, the extra-judicial confession is a weak type of evidence and the conviction cannot be recorded on suchlike evidence. The learned counsel for the appellants have maintained that the prosecution has placed on record the detail of phone calls which were made by convict-appellant No, 1, whereas the same were photocopies and no one has appeared on behalf of issuing authority to prove the same, therefore, such-like evidence is not admissible under law, but both the Courts below have totally ignored this legal aspect of the case. The learned counsel for the convict- appellants have relied upon the plethora of judgments titled v. Wazarat Hussain v. Nazir Akhtar & another [2009 SCR 273]/ ' Hakim Ali & 4 Others v. The State and another [ 1971 SCMR 432], Muhammad Saleem v. The State [2007 M LD 1253], Ghulam Mustafa v. The State [2009 SCM R 916], Rehmat Ali v. Samundar Khan & another [2009 SCR 252] and Akbar Ali v. The State [2007 SCM R 486].
6. On the other hand, Raja Gul Majeed Khan, Advocate, the learned counsel for the complainant, has argued that the judgments of both the Courts below are legally perfect and no interference is called for by this Court. The prosecution has proved its case beyond any shadow of doubt and both the Courts below have concurrently reached the conclusion that the case against the convict-appellants has been fully proved by the prosecution. He contended that it is a brutal murder of an innocent person, therefore, the convict-appellants as well as the acquitted accused are not entitled to any leniency. He contended that both the Courts below have committed an illegality while awarding sentence to the convict-appellants under Sections 364, 201 and 34,. A.P.C., under Section 364, A.P.C., sentence of life imprisonment or sentence of 10 years' rigorous imprisonment is provided, while sentence of seven years' imprisonment has been provided under Section 201, A.P.C. and the Trial Court as well as the Shariat Court failed to offer any cogent reason while awarding lesser sentence to the convict-appellants under the referred sections. He urged that in absence of mitigating circumstance, the Courts below were not justified under law to award lesser punishment to the convict-appellants under Sections 364, 201 and 34, A.P.C., therefore, the impugned judgments are liable to be modified to the extent of convict-appellants. He has further submitted that the case against the acquitted accused has also been fully proved by the prosecution. They fully abetted and facilitated in the commission of offence and also participated after pre-planning and conspiracy prior to the commission of offence, therefore, they are equally liable to capital punishment. He further submitted that the acquitted accused were living alongwith their families in the house where the deceased was murdered, therefore, it cannot be said that they were unaware of the murder of the accused. Both the Courts below have misunderstood the prosecution evidence to the extent of the acquitted accused which resulted into misreading and non-reading of evidence. The learned counsel contended that it is a pre-planned and premeditated occurrence in which all the accused, after killing the deceased in a brutal manner, have removed the evidence from the place of occurrence. The prosecution has proved all these facts beyond any shadow of doubt, but despite that the Courts below have taken lenient view while passing the impugned judgments. He averred that keeping in view the facts and circumstances of the case and the manner of occurrence, the accused-respondents deserve no leniency. He further argued that the recovery of dead-body and steel box on the pointation of the accused is a strong piece of evidence and the case of the prosecution is fully covered under the provisions of Qanun- e-Shahadat Order, 1984. He strongly argued that the recovery of articles on the pointation of the accused in view of Article 40 of Qanun-e- Shahadat Order, 1984, is reliable evidence. Both the Courts below have scanned the evidence minutely and came to the conclusion that the prosecution has successfully proved the case against the convict-appellants, It is settled principle of law that once a case has been proved the capital punishment should have been awarded. He lastly contended that the discrepancies pointed out by the learned counsel for the accused in the prosecution evidence are minor in nature which can be ignored.
7. Ch. Shaukat Aziz, the learned Additional Advocate-General, for the State, has owned the- arguments advanced on behalf of the complainant and submitted that all the accused- respondents actively participated in the murder of the deceased, therefore, the acquitted accused are also liable to capital punishment. He has mostly relied upon the arguments advanced by the learned counsel for the complainant while submitting that all the accused had fully participated in the occurrence and their participation has been proved by un-rebutted evidence. There are concurrent findings of both the Courts below which cannot be interfered with by this Court.
8. We have given dispassionate thought to the arguments raised at Bar by both the learned counsel for the parties as well as the Addl. Advocate-General and also perused the record alongwith the impugned judgment. An application was filed by one Muhammad Arif Qureshi, complainant, at City Police Station, Muzaffarabad, on 25.7.2008 stating therein that his brother; Al- Haaj Muhammad Ashraf Qureshi went out of the home at 12.00 p.m. on 24.7.2008 and did not return. The mobile phone bearing No, 0300-5166048 was also powered off. On 27.7.2008 Muhammad Arif Qureshi, complainant, lodged an F.I.R, at 10.00 a.m. at City Police Station, Muzaffarabad with regard to his missing brother on the ground that one Sheikh Manzoor Ahmad, shopkeeper, told him that on 24.7.2008, Al-Haaj Muhammad Ashraf Qureshi, deceased, was sitting in his shop when he received a telephonic call at 2.00 p.m. from Abdul Rasheed Gresta, convict- appellant No, 1, who asked the deceased to come at Upper Adda where he was waiting for the deceased. After receiving the call, Al-Haaj Muhammad Ashraf Qureshi, deceased, went out of his shop. It was further stated that one Bilal Ahmad Qadri saw the deceased in a white Mehran car on C.M.H. road at 2.30 p.m. It was alleged in the report that a dispute of a plot situated near Upper Adda existed between Abdul Rasheed Gresta, Taufeeq Qadir Gresta and Hamid Qadir Gresta where the complainant and his brother, Al-Haaj Muhammad Ashraf Qureshi, deceased, were running business of firewood and cement stocks for the last 17 years. The convict-appellant No, 1 and other accused wanted to eject the complainant and the deceased from the plot and the complainant showed his suspicion that the convict-appellant No, 1 with the help of other co-accused, have kidnapped his brother with the irritation to kip him for the purpose of ejection from the refuted plot.
The Investigating Agency came into motion and arrived the convict-appellants as well as acquitted accused. A Nokia mobile phone alongwith two SIMS was recovered from Abdul Rasheed Gresta, convict-appellant in presence of Mehboob Ahmad Tariq during his body search vide recovery memo., Ex.PL, a Mehran car of white colour No, 1QH-3841 was recovered from Narrul Stadium vide recovery memo. Ex.PF, a jeep No, MDGA-571, was recovered from Chatter Secretariat vide recovery memo., Ex.PO, a bloodstained insect killer, a telephone diary having photographs of deceased, a back side cover of a Samsung mobile and its battery owned by the deceased, a blood-stained hammer with its handle, a blood-stained double bed, a mattress, a broken box, blood-stained blanket, a torn out piece of cloth, and- dead-body of the deceased were recovered on the pointation of the convict-appellant No, 1 and other accused.
9. This Court normally does not go in to the re- appraisement of evidence which has been admitted by the Courts below. But it is well-settled law that if in case the Shariat Court is found to have committed an error of law or has disregarded the well-known principles to the appraisal of evidence, resulting into the miscarriage of justice, then this Could has no .reluctance to reappraise the evidence for doing complete justice. Admittedly, the case in hand is not a case of direct evidence rather the whole case is based on circumstantial evidence. The appraisal of evidence, especially in a murder case, has always seemed to be the most difficult undertaking which in the nature of things has come to rest on the shoulders of a Judge as held in a case titled Muhammad Aslam and another v. The State [PLD 1978 SC 298] in which it has been held as under--- "It is the well-settled practice of this Court that normally it does not go into the re-appraisement of a*- .evidence. But it is equally well-settled that if in a case the High Court is found to have committed an error of law or has disregarded any of the well-known principles relating to the appraisal of evidence, resulting in the miscarriage of justice, then the Court . has not hesitated to reappraise the evidence in the interest of justice. The appraisal of evidence, especially in a murder case, has always seemed to me to be the most difficult undertaking which in the nature of things has come to rest on the shoulders of a Judge........."
10. There is also no ambiguity in our mind that this Court has every right to examine the evidence in a criminal appeal, if it is necessary in the interest of justice. However, no hard and fast rule in this regard could be laid down. Each case will have to be judged upon its own merits, facts and circumstances as laid down in a case titled Noora and another v. The State [PLD 1973 SC 469], in which it has been observed as under:-- "The conclusion, therefore, to which I am driven after the examination of the relevant decisions and the Constitutional provisions relating to the jurisdiction of this Court, is that this Court has every right to examine the evidence in a criminal appeal, if it is necessary in the interests of justice, in what circumstances it will do so is a matter on which it is neither possible nor desirable to lay down any hard and fast rule. Each case will have to be judged upon its own facts and circumstances; but, at the same time, I must point out that although under the Constitutional provisions the powers of this Court are in no way fettered, yet from the very nature of things, there must be some difference in its approach towards the Cases which come before it directly as an appeal and cases in which leave to appeal has first to be obtained..........."
11. While keeping the above-said principles in our mind, we are inclined to examine the evidence, produced by the prosecution to prove the guilt against the convict-appellants.
12. The prosecution has built its story to prove his case on the following pillars:---
(i) Last seen evidence;
(ii) Recoveries;
(iii) Extra-judicial confession;
(iv) Motive;
(v) Statements recorded under Section 164, Cr. P.C.;
(vi) Evidence regarding mobile phone record;
(vii) Experts' reports;
13. Before proceeding further, we may observe that in, the case of circumstantial evidence, the pieces of evidence shall form the chain of the events. All the links in the chain shall be fully connected and interlinked. If any link of the chain is missing then the whole case falls. In a case resting on the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. If a single link of the chain is missing, in such circumstances the circumstantial evidence cannot be relied upon. Every link in such a case should be proved by cogent evidence and if not, then no conviction could be maintained or awarded to an accused. In a case of circumstantial evidence, an accused cannot be held guilty on the basis of circumstantial evidence until and unless the facts proved are incompatible with his innocence and are incapable of explanation upon any reasonable hypothesis than that of his guilt. Reliance can be placed on Muhammad Aslam v. Muhammad Zafar and 2 others [PLD 1992 SC 1], wherein it has been held as under:--- It is well-settled that no accused can be held guilty on the basis of circumstantial evidence unless the facts proved are incompatible with his innocence and are incapable of explanation upon any reasonable hypothesis than that of guilt.
Reliance can also be placed on the case titled The State v. Mst. Falawat Jan and another [1992 SCR 366], in which it has been held as under:--- "It may be stated here that in case of circumstantial evidence, the evidence should be of such a degree and character that it should exclude the possibility of innocence of an accused. Besides, it should link together all the chains of the prosecution story so as to convince the Court to reach an irresistible conclusion that the accused person was the culprit beyond any reasonable doubt. The evidence in the instant case is not only insufficient but the same is of such a nature that conviction is not sustainable upon the same: for instance, the garments which allegedly belong to the accused-respondent were not found blood-stained. Thus, mere production of the clothes of the respondent, Muhammad Khaliq, by his wife, is no evidence against him. Similarly, the recovery of knife is not only suspicious, as indicated above; but it was also not proved to have been stained with human blood."
In another case reported as Muhammad Shafat and another v. The State [2002 SCR 450], wherein it has been observed by this Court as under:--
9. In a case of circumstantial evidence, every chain of evidence of prosecution must be linked with the other chain of evidence of prosecution. If one chain is broken, then the case of prosecution automatically falls on the ground. At this stage of bail we do not want to express our opinion on the merits of the case and the evidence of the prosecution brought on record cannot be appreciated deeply as in that case it is likely to prejudice the case of either of the parties Similarly, in a case titled Rehmat Ali v. Samundar Khan & another [2009 SCR 252], wherein it has been held by this Court as under:--- "11. Since there is no direct evidence and in a case of circumstantial evidence where no enmity is alleged between the parties, no motive is alleged by the prosecution for commission of the offence then the Court has to examine the evidence with due care and caution and while scrutinizing the evidence if the Court reaches on the conclusion that from the circumstantial evidence the facts are proved then no hypothesis consistent with the innocence of the accused can be suggested and if the facts alleged can be reconciled with the reasonable hypotheses with the innocence of the accused then the case has to be considered one of no evidence. Keeping in view the principle governing the circumstantial evidence, the analysis of entire evidence and finding of the Court is necessary."
Same view was expressed by this Court in a case titled Wazarat Hussain v. Nazir Akhtar & another [2009 SCR 273], it has been held by this Court as under:-- "6.Before dealing with the testimony of the witnesses it may be observed that circumstantial evidence means evidence afforded by testimony other than the eye-witnesses which bear upon a fact or other subsidiary facts which are relied upon as consistent that no result other that truth of principal fact and facts shall be so proved that they shall not leave any possibility of innocence of accused. And this possibility shall be of such a high degree and standard that a prudent man after considering all the facts and circumstances is able to reach at the conclusion that he is justified in holding the accused guilty and from the evidence no other inference can be drawn except the guilt of accused. The circumstances from which the inference adverse to accused is sought to be drawn must be proved beyond all doubts.
Similar view prevailed in a case titled Muhadithad Latif Butt v. Shehtab & 4 others [2009 SCR 432], wherein it has been held by this Court as under:--- "7. ........................
No doubt the conviction can be recorded on the basis of circumstantial evidence in the absence of direct evidence because a man can tell lie but circumstance never tell lie. The conviction can only be based on circumstantial evidence, if it excludes, all hypothesis of innocence of the accused. The circumstantial evidence must be incompatible with that of innocence of the accused. It should be incapable of any other hypothesis than that of guilt of the accused. Rule as to quality of circumstantial evidence is that the facts proved must be incompatible with innocence of the accused and incapable of any other explanation upon any other reasonable hypothesis than that of guilt.
In a case titled Karamat Hussain v. The State [1972 SCM R 15], it was observed as under:-- It is unfortunate that these features of the evidence were not noticed by the High Court. If the extrajudicial confessions are disbelieved, and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant. In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused. In the present case, this test) s by no means satisfied. The circumstances by themselves are neither sufficient to bring home the guilt to the accused nor are they of such a nature as to carry conviction."
In another case reported as Zafar Abbas v. The State [2010 SCM R 939], it was observed as under:-- Even otherwise, the evidence of last seen without corroboration is a weak piece of circumstantial evidence to base conviction.
14. Now we advert to the question regarding the last seen evidence. Before proceeding further it may be observed that the last seen evidence is a weakest form of evidence and it requires strong corroboration. It has certain inherent defects as the time of last seeing an accused or deceased and the alleged time of incident and the other attending facts are to be kept in mind at the time of appraisal of evidence of such a witness.
The prosecution case is that Al-Haaj Muhammad Ashraf Qureshi, deceased, was lastly seen in the company of the accused persons in a white Mehran car No, IDN-8641 by Bilal Ahmad Qadri, P.W-3.
To prove this factum, the prosecution has produced Bilal Ahmed Qadri, Muhammad Azeem, driver, Muhammad Nazir and Abdul Waheed, whose statements were recorded under Section 164. Cr.P.C.
It would be appropriate to reproduce the relevant portions of the statements of these witnesses.
Bilal Ahmed Qadri, deposed in the Court as under:--- {{URDU TEXT}} Muhammad Azeem, P.W. stated as under:--- {{URDU TEXT}} Muhammad Azeem, P.W. further stated as under:-- Muhammad Nazir, P.W. stated as under:-- {{URDU TEXT}} We have gone through the statements of Bilal Ahmed Muhammad Azeem, driver and Muhammad Nair, prosecution witnesses. The perusal of the statements Of Muhammad Azeem, PW, who was allegedly driving the Mehran car shows that the said witness has not stated that the deceased was sitting in the car. Likewise, Bilal Ahmad Qadri, PW has stated that the car was driven by a man of black colour. He has not stated that the accused was also sitting in the car; he only stated that the deceased was sitting in the car. Muhammad Nazir, stated that Abdul Rasheed, accused, came for lunch alongwith another person who was wearing white cloths. It was also not proved that it was the deceased who came alongwith Abdul Rasheed, accused, for meal.
As observed earlier that it is settled principle of law that the last seen evidence which is always considered to be a weak type of evidence, cannot be strongly relied upon until the same is supported by strong corroborative evidence. When there is no last seen evidence then there is no question of corroboration, therefore, such-like evidence cannot be made the basis for conviction.
We are fortified in our view by a case reported as Rehmat Ali v. Samundar Khan & another [2009 SCR 252], wherein it was held as under:--- "12 Even otherwise last seen evidence is weakest form of evidence and if there is some last seen evidence then the strong corroboration is required. The Shariat Court rightly disbelieved the evidence of last seen."
In another case titled Muhammad Mushtaq v. The State [2001 YLR 1164], it was observed as under:- --
13. The survey of the case-law makes it abundantly clear that the-last seen evidence due to its inherent defects is fundamentally a weak type of evidence. Even if the same is believed to be true a conviction on the sole testimony of last seen evidence cannot be sustained unless there be some strong corroborative piece of evidence in support of the prosecution.
Similarly, in a case reported as Rehmant alias Rhaman alias Waryam alias Badshah v. The State [PLD 1977 SC 515], it has been held as under:--- "On a balance of the decided case it appears that the circumstance of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder.
Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed.
Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company."
In another case reported as Munawar Hussain alias Asghar Ali v. The State [1991 SCM R 1601], it has been held as under:--- The circumstance of last seen was not even put to the appellant when he was examined under Section 342, Cr.P.C. After hearing the learned counsel for the parties we are of the view that the conviction of the appellant in the circumstances cannot be maintained. His appeal is, therefore, allowed. He shall be set at liberty forthwith if not required in any other case."
Similarly, in a case titled Muhammad Mushtaq v. The Stare [2001 SCR 286], it has been observed by this Court as under:-- "11. It is a celebrated principle of law that last seen evidence is fundamentally a most weak type of evidence. It has certain inherent defects in it as the time of last seeing the accused in the company of deceased and the alleged time of incident and the other attending facts are to be kept in mind at the time of appraisal of evidence of such a witness."
In a case reported as Naqibullah & another v. The State [PLD 1978 SC 21], wherein it has been held as under:- "34. In my opinion, in the circumstances of this case, the corroboration supplied by this weak piece of circumstantial evidence, was not sufficient to base the conviction of Wasal accused on his confession. There is no motive at all alleged in the FIR against the accused for the murder. Even in the evidence the motive attributed to him is much too far-fetched to be real.
35. But quite apart from this, there is yet another fatal objection against this part of the prosecution case. Neither in his statement recorded by the Committing Magistrate nor by the Trial Court the explanation of Wasal accused was called about this circumstance appearing against him in the evidence that he was last seen alive when they had left for the river on the fateful night. So that he was not afforded any opportunity to tender his explanation in this behalf, if any.
It is consistent view of all the superior Courts of Pakistan as well as the Azad Jammu and Kashmir that the last seen evidence is not sufficient to establish conviction against an accused and for that purpose, strong corroboration is the requirement of law which is missing in this case. Even if the statements of these witnesses are admitted then too the deceased is not proved to be last seen in the company of the convict-appellant No,
1. This fact further finds support from the statements of the prosecution witnesses where no one has given exact features of the deceased. All the witnesses have given different versions. One of the witnesses stated that the deceased was wearing white clothes whereas the other stated that he was wearing the clothes of grey (saleti) colour. There is also contradictions in the statements of Bilal Ahmed Qadri and Muhammad Azeem.
P.Ws. with regard to the time as to when the deceased was last seen, The surprising aspect of the case is the fact of kidnapping as emerges from the contents of F.I.R. that the deceased was taken in a car for the purpose of murdering him. It is not appealable that a person who is likely to be killed after kidnapping was taken into car after passing through a bazaar in the busy hours. The more surprising aspect of the case is that till reaching at the place of occurrence, the deceased was offered lunch.
15. The next piece of evidence is the recovery of different articles on which the prosecution has heavily relied, i,e,, (i) recovery of blood-stained insect killer, (Exb.PM), ArtiDiary of AI-Haaj Muhammad Ashraf Qureshi, deceased, Article P-6, (iii) recovery of the broken parts of mobile of the deceased through recovery memo., (Exb.PM), Article P-7 (iv) recovery of Hathora' (hammer) through recovery memo., (Exh.PO) Article P-8, (v) recovery of bloodstained Bed mattress, Almirah, through recovery memo., (Exh.F P) (vi) recovery of broken pieces of steel box from river Jhelum through recovery memo,, (Exh.PH), Article-P-1 (vii) recovery of Mehran car No, IDN-8641 through recovery memo., Exh.PF and recovery of Land Rover 571 through recovery memo., Exb.PG. The incriminating articles like insect killer Hathora, pieces of bed mattress and blanket were sent to Chemical Examiner for determination of origin of blood and blood grouping. According to the chemical examiner's report, the same were stained with blood, however, the material was sent to the Serologist but no such report was brought on the record through which the origin of blood and the blood grouping can be ascertained. In the absence of the report of Serologist, it cannot be ascertained whether the articles were stained with human blood or not, therefore, such-like recovery is not helpful to the prosecution and relying on the same, the conviction cannot be recorded.
16. Another incriminating material is the pieces of steel box in which the dead-body after wrapping the same in the blanket was thrown in the river, which was recovered on the pointation of the convict appellant after more than 48 hours in the month of July. Surprising aspect of this recovery is that according to the prosecution story at the time of recovery of the blanket from the river which was used to wrap the dead-body for packing in the steel box, the blood was dripping. It may be observed that the blanket was recovered from the river after lapse of more than 48 hours which itself proves that the story of recovery of blood-stained blanket is false as how the blanket remained blood-stained under the water. The story seems to be fabricated in the sense that it is alleged that the blanket in which the dead-body was wrapped and the pieces of steel box were recovered from the point where the dead-body packed in the steel box was thrown in the river, How it is possible that the dead-body flowed away in the water and the pieces of steel box and blanket remained in water in the month of July when the flow of river water is at its climax. It is against prudence. This fact itself makes the prosecution story doubtful. The recovery of the pieces of steel box in which the dead-body of the deceased was alleged to be packed and the same was thrown into the river is also doubtful. We have also examined the photographs of the deceased. It appears from perusal of document Exb.PH that the size of box recovered by Police is 35.4 inches in length, 20 inches in width and 17 inches in height, therefore, it is impossible that a bulky body of the deceased having size of 5 feet, 7 inches can be packed in a box of such size. Furthermore, the dead-body of the deceased was recovered from a place known as Bhadur Shah Dakhli Dhangalli, Dudyal, District Mirpur in the early morning on 1.8.2008, whereas the post-mortem was conducted on the same day at 9 a.m. at Muzaffarabad. If seems to be unbelievable to cover the distance between Muzaffarabad and Dadyal in such a short span of time.
17. The recoveries of Mehran Car No, IDN-8641 taken into custody through recovery memo. Exb.PF and Jeep No, MDGA-571 recovered from near the office of SERRA vide recovery memo. Exb.PG also seems to be doubtful. It is shown by the prosecution that the; same have been recovered on 27.7.2008 from the public place. Whereas, Kh. Khurshid, PW.
21. Kh. Masood, PW.22 and Muhammad Azeem, PW.25 stated that they themselves handed over the vehicles to police at SSP office on the night of 26/27.07.2008. Surprising aspect of the piece of evidence is that on one hand the prosecution witnesses have themselves made the statements that the vehicles referred to above were taken into custody by the police from public place and on the other hand they stated that they themselves handed over the vehicles to the police. The recovery appears to be doubtful and fabricated. They tried to invent such-like evidence to strengthen the case of the prosecution, which seems to be fake and the Police just tried to fill up the lacuna of the case. Therefore, such-like recovery cannot be believed but both the Courts below badly ignored this fact of the case.
18. The next argument which has been strongly raised by the learned counsel for the complainant is that the case of prosecution is heavily covered under the provisions of Article 40 of the Qanun-e- Shahadat Order, 1984. While examining the provisions of the referred Article, it may be observed here that mere pointation does not fulfil the requirement of said Article, until the fact is discovered The prosecution in order to bring the case within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984 must establish; (I) that the information conveyed by the accused actually led to the discovery of some fact; (ii) that the fact was unknown to the police and it was for the first time derived from the accused; and (iii) that the discovery of the fact must relate to the commission of the offence or connect the accused with the crime. In the case in hand, the recovery witnesses have stated that before reaching the accused at the place from where the deceased was thrown in the river, they alongwith other persons have already reached the place, meaning thereby that the accused has not pointed out the was Therefore, we can safely hold that the place of recovery as not pointed out by the accused. In such-like eventuality, the requirement of Article 40 of the Qanun-e-Shahadat Order, 1984, does not fulfil. In this regard, no weight can be given to the argument advanced by the learned counsel for the complainant; therefore, the same is repelled.
After going through the record regarding recoveries made available alongwith the case-law on the subject, we are of the view that all the recoveries are extremely doubtful, therefore, we are not inclined to rely on the same, therefore, the conviction cannot be recorded against an accused on such evidence.
19. Now we switch over to the next question regarding the statements of the prosecution witnesses recorded under Section 164 Cr.P.C. whereby they made the confessional statements. The confessional statement must not only be voluntary but must be trustworthy too. A statement under Section 164, Cr.P.C., can only be relied if the same has been recorded without any fear or coercion.
After scanning the record, it transpires that the statements of the prosecution witnesses were recorded under Section 164, Cr,P,C., when they were in the custody of Police and they remained under the pressure of the Police, This fact has not been denied by the prosecution witnesses themselves, According to the statements of Muhammad Yasin Baig, D.S.P. and Raja Nasrullah Khan, Additional S P in cross-examination, they have admitted that the statements of the witnesses under Section 164, Cr.P.C. were recorded when they were in the Police custody and the statements were recorded at Police Station. We are convinced with the argument of the learned counsel for the convict-appellants that recording of such-like confessional statement is otherwise violation of Article 37 of the Qanun-e-Shahadat Order, 1984 and are not admissible under law. The bare reading of the statements shows that the witnesses did not get recorded the confessional statements voluntarily rather the same were got recorded under pressure of the Police which loses its credibility. Both the Courts below have not taken into consideration this aspect of the case while appreciating the evidence.
These statements have been heavily relied upon by both the Courts below, therefore, we are inclined to examine their authenticity whether the same were made without any pressure/coercion or the same were made voluntarily. To verify this fact, we have examined the statements of Kh.
Masood, PW.22, Muhammad Aslam Awan, PW.23, Kh. Muhammad Khurshid, PW.21, Tassadiq Hussain, PW.24, Muhammad Azeem, PW.25 and Abdul Waheed. PW.26. During the cross-examination they stated that they remained in the custody of the police for more than two weeks. They also admitted that during that period, they were harassed and were pressurized that if they will not make the statement of against the accused, they will not be set at liberty. Their statements are available at pages 248, 253, 245, 257, 282 and 286 of the Trial Court's record, respectively. Similarly, Kh. Masood and Muhammad Aslam Awan also categorically stated that their statements were recovered under the pressure. It also reveals from the statement of Tassadiq Hussain, Waheed Ahmed and Muhammad Azeem that they were tutored by PDSP and their statements were recorded by the Magistrate after the office hours. The surprising aspect of this important piece of evidence is that no opportunity to cross-examine the witnesses was provided to accused. In such state of affairs, the authenticity of the statements recorded under Section 164, Cr.P.C. is a question mark and we failed to understand that the statements which were recorded without following the proper procedure laid down in the Criminal Procedure Code, why the Courts below have relied upon the same.
After going through the above-said statements, there is no doubt in our mind that the same were not recorded voluntarily, therefore, these cannot be treated to have been recorded under Section 164, Cr.P.C. It is clear that the statements under Section 164, Cr.P.C. were recorded while keeping the witnesses in the police custody, therefore, the same cannot be treated as recorded voluntarily and cannot be made basis for conviction but the Trial Court as well as the first Appellate Court failed to consider the same. The learned counsel for the convict-appellants has rightly relied upon the cases titled Mst. Miran and another v. Abdur Rahman and another [PLJ 2004 SC 294], Abdul alias Abdul Karim) and another v. The State [1975 P.Cr.L.J. 1077], Muhammad Yasin v. The State [1973 P.Cr.L.J. 448] and Rehman-ud-Din and others v. The State [2003 P.Cr.L.J. 107].
20. According to the prosecution story, the extra- judicial confession was made by the convict- appellants and the other accused in presence of Ghulam Jillani, P.W., brother-in-law of the deceased and the corhplainant, Mukhtar Ahmed Qureshi, P.W., first cousin of the deceased and the complainant, Manzoor Ahmad Sheikh, PW. Muhammad Riaz Khan Mughal, Inspector/SHO, Muhammad Yasin Baig, D.S.P., Raja Nasrullah Khan, Additional S.P. After going through the statements of the above prosecution witnesses, it reveals that the accused have confessed the commission of offence before them. It may be observed that extra-judicial confession made by an accused while being investigated by the police at the Police Station before the prosecution witnesses is not worthy of credit. The confession made before a Police Officer or investigating officer cannot be used as proper and legal evidence against an accused. Even the evidence of extra-judicial confession cannot be relied upon as admittedly, the same was made before the Police against the spirit of law. The object of making the extra-judicial confession is to admit the guilt and try to get the pardon from the complainant but in the case in hand, the persons before whom the extra-judicial confession was made, were not at all fit in a position to get any sort of pardon from the complainant side, therefore, such like extra judicial confession is not reliable to ascertain the guilt or innocence of the accused. Reliance is placed on a case titled Noor Ahmed & others v. The State [1992 SCR 1] in which it has been observed as under:--- Any confession made during the Police custody cannot be said to be a voluntary confession and as such is not admissible in evidence. Thus, we are of the view that the said extra-judicial confession cannot be relied upon for ascertaining the guilt or innocence of Noor Ahmed, accused-appellant."
In another case reported as Tahir Javed & another v. State [PLJ 2009 SC 669], wherein it was observed as under:--- "10. So far the evidence of extra-judicial confession is concerned, it has been challenged mainly on the ground that the confession being joint by all the four accused persons was not admissible in evidence, but we are afraid the contention on its face is devoid of force because both PWs 12 & 13 have stated that though all the accused person came to the Wahla Rice Mills near Ojla Pul and asked PWs 12 Muhammad Nazir to get them pardoned from the complainant yet, both, the PWs are unanimous on the point that It was only Ghulam Yaseen, who had confessed to commit murder of the deceased and rest of the accused persons uttered not a single word, hence by no stretch of Imagination, it could have been concluded that it was a joint confession by all the accused persons. ....."
Similarly, in a case titled Muhammad Kamran and another v. The State [2003 SCM R 1070], wherein it was observed as under:-- "8. Had the dead-body of the deceased been recovered on the pointation of the appellant this fact would have been mentioned in the F.I.R. which was lodged after recovery of the dead-body of the deceased. It is also in his statement that he and Abdul Qadir had handed over the appellant to the police at about 2:30 a.m. The presence of the police in the house of Hast Khan where the extra- judicial confession was allegedly made and arrest of the appellant from the same place speaks volumes about the voluntariness of the extra-judicial confession. The matter has been made more complex and intriguing by the statement of the Investigation Officer, namely, Abdul Razzak, Inspector (P.W.1) that he had arrested the appellant on 19.12.1999 when he was produced before him at the Bus Stand by Abdul Qadir and Hast Khan. It is also pertinent to mention that real son of Hast Khan, namely, Nasir Ahmed (P.W.8), who was declared hostile, had belied him by stating that the real suspect was one Muhammad Akram. Mere fact that Abdul Qadir and Hast Khan are closely related to the appellant cannot make their statements sacrosanct because both of them are related to the complainant as well. It is in the statement of Abdul Qadir that the appellant is the son of his niece and Nadia Bibi deceased was daughter of his 'Bhanji'. The prosecution evidence also shows that the deceased was the daughter of a cousin of Hast Khan and the appellant is his nephew, The statements of Abdul Qadir and Hast Khan are not Invulnerable and after scrutinizing the same minutely we are convinced that the appellant had not made an extra-judicial confession before them and in any case the extrajudicial confession attributed to him was not voluntary and true. As regard the corroborative evidence, suffice it to say that it is admittedly lacking and in any case the extra-judicial confession is too defective and weak to be cured and strengthened by any corroborative evidence."
In another case reported as Wazir Muhammad & another v. The State [2005 SCM R 277], wherein it was observed as under:--- "6. There is no cavil with the proposition that the extra-judicial confession is a very weak type of evidence and no conviction could have been awarded without having strong corroboration which aspect of the matter hardly needs any comments In a case titled Muhammad Yousaf v. The State [1995 SCM R 351], it was observed as under:--
13. It need not be pointed out that prosecution has to prove that the confessional statement is voluntary in order to be used, as evidence which it failed to prove beyond any reasonable doubt."
21.Now the question emerged is regarding motive beyond the occurrence. It may be stated that the motive is always hidden deep in the minds of the assailants and in the absence of motive, if the case is proved by other unrebutted evidence, the conviction can be recorded. The motive is not necessary ingredient in a murder case. The motive is double-edged weapon which cuts both ways and which way it actually cuts depends upon the peculiar circumstances of a particular case. The motive is not an essential element to prove the guilt of an accused in criminal trial. Reference may be made to a case titled Muhammad Hayat and another v. The State [1996 SCM R 1411], wherein it was observed as under:--- "Even otherwise, nothing turns on the weakness, if any, of the prosecution story or the motive. It is an established rule that absence of motive or failure of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they are otherwise reliable."
Similarly, in another case reported as State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo [1993 SCM R 585], it was observed as under:---
12. No doubt absence or weakness ofmotive would not come in the way of the case of prosecution and can be condoned if there is otherwise strong reliable evidence in support of the case.
In a case titled Umar Hayat v. The State [PLD 1995 SC 526], wherein it has been held as under:-- "6. The motive being a double-edged weapon cuts both ways and that which way it actually cuts depends upon the peculiar circumstances of the case. Since the occurrence had taken place at night, the possibility of the involvement of the appellant on account of suspicion cannot be ruled out.
But in the case of circumstantial evidence, the position is otherwise because the motive is relevant factor and if the prosecution in the case of circumstantial evidence sets up a specific motive then it is the duty of the prosecution to prove the same by un-rebutted evidence. in the case in hand, the prosecution has set up a specific motive that a dispute with regard to ejection from a rented plot situated near Upper Adda existed between Abdul Rasheed Gresta, Taufeeq Qadir Gresta and Hamid Qadir Gresta, where he (the complainant) and his brother, Al-Haaj Muhammad Ashraf Qureshi, were running business of firewood and cement stock for the last 17 years and the convict- appellant and other accused wanted to eject the complainant and the deceased from the plot.
The convict-appellant extended threats to the deceased, therefore, they committed the crime for getting possession of the rented plot. To prove the motive, the prosecution produced Muhammad Arif Qureshi, the real brother of the deceased, Ghulam Jillani, brother-in-law of the deceased, Mehboob Ahmad Tariq, Mumtaz Qureshi, cousins of the deceased, and Kh. Tariq Iqbal. Kh. Tariq iqbal, While making the statement has deposed that the boundary wails of the plot had been raised and neither any quarrel took place nor the accused extended any sort of threats to the deceased, Kb. Tang Iqbal, PW.35 has stated as under.--- It is also apparent from the record that a dispute took place between the parties with regard to installation of pillars in the disputed plot. One of the important witnesses was Riaz Khan, who was the witness regarding the fact of installation of pillars but he was not produced as a witness by the prosecution. It reveals from the statement of Hafeez-ur-Rehman who stated that at the time of installation of pillars in the plot in dispute, he alongwith Riaz Khan was present there but nothing has been said about the presence of any other person. The prosecution has produced Riaz Khan who has been working as an employee of the deceased has not stated in his Court's statement that at the time of installation of pillars, the accused have extended the threats of dire consequences. As per statement of Kh. Tariq Iqbal, PW.35, whose statement has been reproduced hereinabove, no quarrel took place at the time of installation of pillars and even the accused did not extend the threats towards the deceased which itself negates the version of the prosecution and supports the arguments advanced by the learned counsel for the convict-appellants that the prosecution failed to discharge its liabilities to prove the motive. This fact is also proved from the statement of Hafeez-ur-Rehman Qureshi, the brother of the deceased who was present on the place at the time of installation of pillars. He has not stated that at the time of installation of pillars in the rented plot, the accused extended any threats of dire consequences. It can safely be held that prosecution failed to prove the motive which is essential element in the case of the circumstantial evidence. In this regard reliance can be placed on a case titled Hakim Ali & 4 others v. The State and another [1971 SCM R 432], in which it was observed by this Court as under:-- It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence.
If the prosecution failed to establish the motive set up by it, as also failed in establishing that the 'incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case.
22. There is another important piece of evidence, i,e,, the documents, Exb.PI, PJ and copies of print calls taken from compact disk (CD), Article P-15 through which the detail of the call records of cellular numbers belonging to Al-Haaj Muhammad Ashraf Qureshi and Kh. Abdul Rasheed Gresta, accused, and other witnesses, were brought on the record. The important aspect of the case is that these documents were not produced by any competent person. As the same were photo-copies and no one from the company who allegedly issued the same was produced before the Court, therefore, these documents have no evidentiary value. It is also evident from the record that the Police failed to bring on record anything from which it could be ascertained that the calls record bring on record is of the cellular phone numbers belonged to the deceased or Abdul Rasheed Gresta, accused. So far as the recovery of CD is concerned, the same is also not admissible in evidence as no one has appeared as witness to prove its contents, therefore, it cannot be considered in evidence. The argument of the learned counsel for the complainant that as the same was procured from Intelligence Bureau has no substance and the same is repelled.
In absence of any proof, it cannot be said with certainty that the details of call records bring on record were pertaining to the cellular phone numbers of the accused and the deceased. Even otherwise, the documents produced by the prosecution are Photostat copies, therefore, these are not admissible in evidence and on the basis of such-like evidence, the punishment cannot be recorded against an accused person.
23. After scanning the prosecution evidence in detail, we have come to the conclusion that it is a case which is full of doubts and the prosecution failed to make out a chain of unbroken links which is pre-requisite to prove the circumstantial evidence. It is celebrated principle of law that a slightest benefit of doubt should go to the accused as of right and not as of grace. The prosecution badly failed to prove its case beyond the reasonable doubt and the evidence produced by the prosecution is not confidence inspiring and has not come from unrequited sources. It is-the duty of the prosecution to prove the case beyond the reasonable doubt, whereas, in the case in hand, the prosecution baldly failed to discharge its duty.
24. While attending the appeal filed by the complainant against the convict-appellants, it may be observed that as we have come to the conclusion that the prosecution has failed to adduce the trustworthy evidence to bring home the guilt against the accused beyond any reasonable doubt, therefore, both the Courts below have rightly appraised the evidence to the extent of the acquitted accused. There must be strong reasons to interfere with the same and after acquittal, the accused enjoyed the presumption of double innocence; one on the general principle that an accused is innocent until and unless he is proved guilty while the other on the basis of order of acquittal passed in favour of the accused. It is a settled principle of law that until the judgment is perverse, arbitrary, shocking and fanciful; the acquittal order cannot be set aside. The prosecution failed to bring home the guilt of the acquitted accused and the Courts below have rightly acquitted them of the charge. We failed to find out any such element in the judgment impugned before this Court.
The Trial Court has given the solid reasons while passing the acquittal order which has been upheld by the Appellate Court. Both the Courts below have concurrently recorded the findings which cannot be interfered with in the absence of non-reading and misreading of evidence.
Whereas, in this case, the evidence has been appreciated in its true perspective and in accordance with the principles laid down by this Court qua the appreciation of evidence. No illegality or infirmity could be pointed out warranting interference in the judgment which being unexceptionable cannot be reversed. The appeal filed by the complainant having no force is hereby dismissed.
Resultantly, in view of what has been discussed above, we have come to the conclusion that the prosecution has failed to prove the case beyond any reasonable doubt. Therefore, while accepting the appeal filed by the convict- appellants, the conviction recorded against them by the Trial Court and upheld by the Shariat Court' is set aside and the accused are acquitted of the charge.
They shall be released forthwith if not required in any other case.