' RAJA SAEED AKRAM KHAN, J.-This criminal appeal arises out. Of the judgment of the Azad Jammu and Kashmir Shariat Court passed on 25.8.2008, whereby appeal No. 29 of 2006 filed on 23rd May, 2006 by the complainant- appellant for enhancement of the sentence awarded to accused- respondent No. 1 and against the acquittal order of co-accused. Talat Imran, was dismissed, whereas appeal No- l2 of 2007 dated 2,5.2007 was allowed and conviction of Muhammad Ashfaq, accused, was set aside while acquitting him of the charge on the ground of benefit of doubt.
2. The facts are that on a written report made by Muhammad Sadiq Bhatti, complainant, on 11.7:2002 at 4:45 a m. At Police Station Kotli, a case under sections 302, 458 and 34, A.P.C., was registered against the accused- respondents. The allegations levelled in the FIR are that the daughter of the complainant, Mst. Zahida Perveen Bhatti, was .Serving as; Professor in Government College- Nakial. She married to Muhammad Ashfaq, accused-respondent, about 6 to 7 years prior to the incident. The couple had 3 issues, alive; two sons and a daughter out of their wedlock. After marriage the relations between the spouses became strained and ultimately Mst. Zahida Perveen Bhatti, deceased, decided to abode in college's hostel at Nakial alongwith children. The strained relations between the spouses resulted into litigation in the Courts, Ultimately the separation took place and the deceased was divorced by accused-respondent No..
1. On 1.CK7.20O2, the deceased came at Kotli to attend her, cases pending in the District Courts.
After attending her. Case in the Court, she stayed in the house of complainant. She was sleeping in her bedroom alongwith her children when the accused, Muhammad Ashfaq and co-accused, Talat Imran, entered her bedroom at 4:15 a.m. And done her to death with the pistolshot and after doing so they ran away. It is alleged that Muhammad Ashfaq, accused-respondent No. 1 had been extending threats to the deceased for dire consequences prior to the incident of murder. The incident, according to the complainant, was witnessed by' his two sptts, ; namely, Muhammad Baber, anid. Khizer Hayyat. The matter was thoroughly investigated and after completion of the investigation, the challan was submitted by the Police in the District Court of Criminal Jurisdiction, Kotli. After completion of trial, the District Criminal Court convicted Muhammad Ashfaq, accused- respondent No. 1, and sentenced him to 25 years' rigorous imprisonment, whereas, Talat Imran, co- accused, was acquitted of the charge by extending the benefit of doubt Feeling aggrieved, the parties, i.e,, the complainant and the convict-accused,, assailed the judgment of District Criminal Court, Kotli, before the Shariat Court of Azad Jammu and Kashmir by filing two separate appeals.
As both the appeals were filed against the same judgment of District Criminal Court, therefore, the Shariat Court consolidated the appeals and decided the same through the impugned judgment on 25.8.2008, whereby the appeal filed by the complainant was dismissed and the .Appeal of the convict, Muhammad Ashfaq, respondent No. 1, was allowed and he was acquitted of the charge while extending benefit of doubt. The present appeal is filed by the complaint against the said judgment of the Shariat Court dated 25.8.2008. '
3. Ch. Muhammad Reaz Alam, Advocate the learned counsel for the complainant-appellant argued that the judgment passed by' the Shariat Court is against law and facts of the case. He argued that the Shariat Court has failed to appreciate the evidence of the prosecution in its true perspective. He argued that the prosecution has successfully proved the case against the accused-respondents but the Shariat Court has not taken into consideration this fact while accepting the appeal filed by the convict Muhammad Ashfaq. He further argued that this was a case of direct evidence Und the Shariat C6urt has not considered this very important aspect of the case, tie argued that all the eye-witnesses were natural whose presence at the time of occurrence is proved. Their statements #ere confidence inspiring and the Shariat Court was not justified to disbelieve stich evidence. He further contended that the accused-respondents have been acquitted of the charge on the ground that the F.I.R, was registered after due deliberation, whereas, the factual position is that it was promptly lodged and there was no delay on the part- of the prosecution. Therefore, the Shariat Court was not justified to hold that the FIR was registered alter deliberation as there was no occasion for any preliminary investigation or deliberation on the part of the prosecution. He argued that some portions of the statements of some of the witnesses have been illegally reproduced in the impugned judgment by the Shariat Court and the conclusions have been drawn in negation to the record. He further submitted that the Shariat Court has failed, to take into consideration that it is not the requirement of law that some portions,of the statements of $e witnesses be believed and the other parts which go against the accused persons are discarded and disbelieved as in-such like situation the cumulative effect should have been given to the statements of witnesses. He argued that the Shariat Court , was not justified to give benefit of doubt to the accused and there Was no reason prevailing with the Shariat Court to acquit the accused. He further argued that the grounds upon which the benefit of doubt has been extended to the accused-respondent are not born but from the record. He further contended that the prosecution has fully proved its case without any shadow of doubt. The presence of the accused at the time of occurrence is fully established by the eye-witnesses. The Shariat Court has disbelieved the recoveries made from the accused without assigning any cogent reason. All the prosecution witnesses remained consistent while recording their statements in the Court and the defence has failed to shake the confidence or create any sort of dent in the prosecution evidence. The Shariat Court had no justification to set. Aside the conviction recorded by the Trial Court to accused/respondent. No.- 1. He further argued that although the Shariat Court has reproduced the major portions of the statements of prosecution witnesses but failed to draw the just conclusion from their statements. The conclusion reached by the Shariat Court is not supported by any sort of evidence. The ocular account furnished by the prosecution is fully corroborated by the recovery as well as the medical evidence.
4. Raja Ghazanfar Ali, the learned Advocate-General, who appeared on behalf of the State, has opted the arguments advanced by the learned counsel for the complainant-appellant.
5. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the accused-respondents, has strongly supported the judgment of the Shariat Court while' arguing that the Shariat Court has rightly appreciated the prosecution's evidence. The Shariat Court has rightly acquitted the accused- respondent No. 1 and maintained the acquittal order passed in favour of accused- respondent No. 2 by the Trial Court after appreciating the prosecution evidence in its true perspective. He further argued that it is a case of unseen occurrence and blihd murder and there is no direct evidence on the record. He further argued that the prosecution has made improvements in its case during the trial just to strengthen its story. He further contended that the allej^d occurrence did not take place as. Alleged by the prosecution, therefore, the Shariat Court has rightly disbelieved the prosecution story. He further submitted that ocular evidence is in direct conflict with the medical evidence." He submitted that the nature and size of injuries' described in the post-mortem report are not compatible with the alleged weapon of offence, i.e, 30-bore pistol.
He further argued that in the post-mortem report the size of entrance wound it shown as 4-cm x 2- cm, while the size of exit, wound is shown as 4-cm x 7-cm He further submitted that the accused- respondents -have been enrobed in the case due to previous enmity which is not denied by the prosecution. He further contended that' two so-called eye-witnesses, namely, Muhammad Baber and Khizer Hayyat are the real sons of the ' complainant who were inimical towards the accused- respondents, therefore, their " testimony cannot be safety believed. The FIR was lodged after preliminary investigation by the prosecution which creates serious doubt in the prosecution story.
Hq contended that the alleged weapon of offence, /.e., .30 bore pistol was recovered after 14 days of the arrest of the accused; therefore, such recover, cannot be relied upon. He further submitted that the prosecution witnesses, in their statements recorded in the Court, have admitted that at the time of occurrence a number of people gathered at,the place of occurrence as the house of the complainant is located at a thickly populated area of Kotli City. It is also on the record that at the time of occurrence the inmates of the house of the complainant raised hue and cry that some known persons have murdered Mst. Zahida Parveen Bhatti, deceased. On the other hand, the residents of locality believed that the deceased was murdered by one of the brothers of the deceased, argued that the accused-respondent, Muhammad As.Hfaq, divorced the deceased, Mst.
Zahida Perveen Bhatti and after separation there was hardly any cause for the accused- respondents to kill the deceased. He further argued that the Trial Court fell in while convicting the accused-respondent, Muhammad Ashfaq, whereas, he judgment of the Shariat Court is well- reasoned and has been passed after due application of judicial mind.
6. We have heard the arguments of both the learned counsel for the parties at some length, perused the judgments passed by the Courts below and the .Record minutely with the able assistance of the learnedcounsel for the parties. This is a case in which the occurrence nook place at 4:30 a.m., whereas, FIR was lodged at 4:45 a.m. The story setup by the prosecution is-that on the fateful day, the daughter of the complainant Mst. Zahida Perveen Bhatti was sleeping in her bedroom. Muhammad Ashfaq, accused, alongwith Talat Imran alias Babhi, co-accused, entered, the house and fired with 30- bore pistol at Mst. Zahida Perveen Bhatti, deceased and murdered her.
The motive behind the occurrence which has been set up by the prosecution is that Mst. Zahida Perveen Bhatti entered into the marriage With accused-respondent No. 1 against the. Wishes of her parents, and due to strained relations between the spouses, accused-respondent No. 1 divorced her. On the day of occurrence, i.e,, 11.7.2002, the deceased was in the house of'her parents after attending her cases in the District Courts at Kotli.
7. Before proceeding further, we deem it necessary to discuss firstly the manner of lodging the FIR.
For that purpose, we have examined the statement of complainant, Muhammad Sadiq Bhatti, who appeared as PW-1, in the Court. It is stated by him that his son had informed the police about the occurrence on telephone, whereas the Investigating Officer stated in his statement that the complainant.
' Muhammad Sadiq Bhatti, himself informed'the police about the occurrence and he did not mention the name of the [assailant. Here it may be stated that FIR is the document on the basis of which the! Law is set into motion so it can be said that it is a basic document and its evidentiary value cannot be lightly ignored. While drawing the inference from some of the portions of the statements of the prosecution witnesses, we think that the Shariat Court has rightly reached the conclusion that the FIR was lodged after due, deliberation or consultation as is apparent from the statement of the Investigation Officer that he was informed by the complainant about the occurrence but the name of the assailant was not disclosed. It means that at the time of information to the police the name of the |assailant was in the mind of the complainant or his sons.
8. Now we advert to the other aspect^ the case, i.e,,whether the accused-respondents can be convicted on the basis of the statements of the prosecution witnesses. AJthough, it is not the job of this Court to evaluate the. Evidence in detail but for our own satisfaction we want to examine the statements of the. Prosecution witnesses. The star witness of the case, i.e,, Muhammad Sadiq Bhatti, complainant, is the real father of the deceased. In his statement recorded under section 161, Cr.P.C., he has stated as under:-- {{URDU TEXT}} ' The complainant in his statement recorded in the Court stated as under: {{URDU TEXT}} ' A perusal of the statement of the complainant recorded -in the Court shows that on the day of occurrence he woke up at 4:00 a.m., sat on the cot and smoked. After some time he went to bathroom, suddenly, he saw that Talat Imran was standing behind him armed with 30-bore pistol.
It is stated that he looked towards the room where his daughter, Mst. Zahida Perveen Bhatti, was sleeping. The lights inside and outside the room were on and the door was opened. It is stated that Muhammad Ashfaq, accused, was standing there armed with 30-bore pistol 'and aimed to take off his daughter's life.
' Meanwhile, Muhammad Ashfaq, accused, fired at Mst. Zahida Perveen Bhatti. As soon as the accused came out of the room, his two sons, Baber and Khizer Hayyat also -woke up after hearing the noise of the fit ? And saw the accused coming out of the room of the deceased. The, complainant in his statement recorded undei section 161, Cr.P.C., categorically stated that on 11.7.2002 he woke up at 4:15 a.m., whereas, in his Court's siatement he deposed that on the day of occurrence he_ woke up at 4:00 a.m. A comparison of both the statements of the complainant, when perused in juxtaposition, shows that the complainant has made improvements in his statement recorded in the Court. After going through the statement of the _ complainant, it seems very strange that a person armed with pistol was standing and aimed to take off his daughter's'life but instead of raising noise or taking any measures to save his daughter's life, the complainant remained silent. It is also not' understahdable that when the accused saw the complainant and his other family members why he did not fire at them.
9. After scanning the evidence of the complainant, it can safely be held that the complainant has come forward with two-folded contradictory pictures; one before the police and the other before the Court. Therefore, it can be safely held that the occurrence has not taken place in the manner as stated by the prosecution.
10. Now we advert to the statements of the other, eyewitnesses, namely, Baber and Khizer who deposed in the cross-examination that when the bullet hit their sister, Mst. Zahida Perveen Bhatti, deceased, a hue and cry was raised, lt is stated by them that on hearing, hue and cry a number of people from the . Locality gathered at the scene of occurrence including Ch. Abdul Rehman,' Ch. Ishaq and Ch. Jahand alongwith their family members. According to the statement of the complainant; he did not mention the name of any assailant and only stated that after 10 to 15 minutes of the occurrence, the police came at the spot on the information of his son, whereas, the statement of Khizer Hayyat shows that he had not informed the police about the occurrence. It is stated by both these witnesses that on hearing hue and cry, they woke up and saw the accused running away from the scene of occurrence. From the perusal of the statements of the witnesses, it appears that they are not consistent in their statements. Moreover, as stated by these two eye- witnesses that after the occurrence many people from the locality gathered'at the spot. The prosecution has not cited any of the eye-witness from the who gathered at the spot of the occurrence. This aspect of the prosecution's story makes doubtful.
11. The perusal of the statement of Mst. Tasweer Begum, one of the alleged eye-witnesses, shows that she saw the accused, Muhammad Ashfaq, while firing at Mst. Zahida Perveen Bhatti, deceased, whereas in the FIR, the complainant did not mention the fact that Mst. Tasweer Begum, has also witnessed the occurrence. The combined reading of all the facts shows that the prosecution tried to make improvements in its case which creates a serious doubt in the prosecution story. It is celebrated principle of law now that in criminal cases even a slightest doubt goes in favour of the accused. Howeyer, we ire convinced with the finding of the Shariat Court that when the statements of the alleged prosecution eye-withesses are perused in juxtaposition they become doubtful, therefore, we also concur-with the finding of the Shariat Court. The Shariat Court has rightly disbelieved the evidence of the alleged eye-witnesses. As the testimony of the alleged eyewitnesses of the case has been disbelieved being doubtful and not confidence inspiring, therefore, we think it proper not to discuss" the other ocular account of the prosecution. l2. There is another, aspect of the case. During the cross-examination, Dr. Muhammad Sagheer, PW.16, stated that the dead-body of Mst. Zahida Perveen Bhatti was brought in the hospital at 6:00 a.m., whereas Muhammad Sadiq Bhatti, complainant, in his statement before the Court, deposed that the dead- body was sent for post-mortem at 4:30/4,45 a.m. It would be appropriate to reproduce 1he releyantportion of the statement of the complainant which reads as under:-- {{URDU TEXT}} ' It is surprising aspect that the time of lodging of FIR and the time when the dead-body is sent for post-mortem is die same, i.e,, 4:45 a.m., which creates a serious doubt about the time of occurrence.
13. While adverting to the recovery of 30 bore pistol which has been allegedly recovered at the instance of Muhammad Ashfaq, accused. Admittedly, the accused- respondents were arrested on 11.7.2002. The recovery memo. Ex.PG/2, prepared by the Police shows that the alleged weapon of offence, i.e,, 30-bore pistol was recovered on 25.7.2002, 14 days after the occurrence. However, it may be stated here that the date of recovery of pistol is overwritten which creates serious doubt about the recovery of the same. During these 14 days the accused remained in the custody of the police but it is astonishing as to why the police did not recover the pistol from the accused soon after his arrest. The recovery memo, also reveals that no number of the pistol was mentioned, whereas, the Trial Court during the trial has observed that number was engraved with the sharp- edge weapon. The Forensic Science Expert has not given any definite opinion whether the bullet which Was ^allegedly recovered from the spot, was fired with the pistol recovered from the accused or not. The Shariat Court has rightly observed that according to the statements of the PWs. The recovery of bullet was effected alter two or three days of the occurrence, whereas the recovery memo, shows that the bullet was recovered on the same day, i.e,, 11.7.2002, therefore, the Shariat Court has rightly disbelieved such take recovery
14. The motive behind the occurrence as alleged by the prosecution is that Muhammad-, Ashfaq, who was "the ex- Jiusband of Mst, Zahida Perveen Bhatti, divorced her and the litigation was pending between the parties in-the Court, due to which Muhammad Ashfaq, murdered the deceased. Admittedly, the divorce took place 611 (years prior to the occurrence valid according to the complainant, a number of times he had been threatening her for dire consequences but nothing has been brought on the record, either the deceased or the complainant ever made any complaint against Muhammad Ashfaq regarding threats extended by him. We have failed to understand that there was any occasion to murder the deceased due to litigation'. Although, the motive is not necessary for awarding the" capital punishment if the case is otherwise proved but if a specific motive has been set up, it is the duty of the prosecution to prove the same beyond any shadow of dqubt. In the case in hand, the prosecution has taken a specific motive but badly failed to prove the same. In this regard reliance can be placed on Noor Ahmad and others v. The State [1992 SCR 1] wherein it has been held as under:- "...... It may be stated, that absence to prove motive would not affect the prosecution case impresence of ocular evidence. The proof of motive to commit an offence may be required only if prosecution case is solely based on circumstantial evidence and not otherwise."
15. It may be observed that circumstantial evidence means the evidence afforded by testimony other than the eyewitnesses -which bears upon a fact or other subsidiary facts which are relied upon as consistent that no result other than 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.
In the instant case, the circumstantial evidence is also n6t believable as it is a celebrated principle of law that to prove the circumstantial evidence, there must be a strong corroboration and every chain I of links of the facts must be unbroken. In this regard, reliance can be placed on an unreported case of this Court titled Munaysar Husssain & others v. Imran Waseem and another [Criminal Appeal No, 39 of 2010, decided on 13.6.2012], in which it has been observed as under:-- "..... It is consistent view of the superior Courts of Pakistan as well Azad Jammu and Kashmir that with circumstantial evidence, there must be unbroken chains of links. This case is referred to highlight the principles laid down for evaluating the circumstantial evidence." '
I6. So far/ as the eye-witnesses are concerned, admittedly in this case, the complainant is real father of the deceased, whereas. Muhammad Baber and Khizer Hayyat are the real sons of the complainant and the brothers of the deceased. " Although, a relative can be a competent witness as the others and the testimony of such a witness cannot be discarded merely on the ground of relationship but the evidence of the related witness must be confidence inspiring while connecting with other circumstances. In this case, the statements of all the three eye-witnesses are contradictory to K each other, therefore, their evidence is not trustworthy. They are pot only closely related to the deceased but they were against the accused as he had divorced their daughter/sister, therefore, the Shariat Court has rightly disbelieved, their testimony.
17. Coming towards the acquittal of accused-respondent No. 2, it may be-observed that there must be some very strong reasons for setting aside such an acquittal 6rder. There is no cavil with the proposition that a person, who has been acquitted, enjoys, double presumption of innocence.
An accused is innocent until and unless he is proved guilty and his acquittal order cannot be interfered with until the same is proved to be perverse, arbitrary and capricious in nature. No overt act has been attributed, to accused-respondent No. 2 and according to the prosecution story only his presence has been shown at the time of occurrence, whereas, no plausible evidence has been brought on the record to prove the presence of' the accused-respondent No.
2. This aspect has been minutely examined by the Trial Court as well as the Shariat Court. Both the Courts below have rightly came to the conclusion that no case is made out against him.
18. No element of perversity or arbitrariness is found in the impugned judgment of the Shariat Court which has been delivered after thorough examination of the prosecution evidence. The prosecution failed to bring out the guilt of the accused-respondents and the Shariat Court has rightly acquitted the convict and maintained the acquittal of accused respondent No. 2.
' Resultantly, this appeal has no force, it is hereby dismissed. Acquittal Upheld .