CH. MUHAMMAD IBRAHIM ZIA, J. -- This appeal has been flied to assail the judgment of the learned Sharlat Court dated 26.12.2008 whereby criminal appeal filed by the complainant-appellant against acquittal order passed by District Criminal Court Kotli, has been dismissed.
2. Brief facts forming background of the appeal are that the complainant-appellant who is resident of village Maholi Gulpur, lodged an F.I.R at Police Station on Nar, on 13.12.1997 stating therein that he is an army personnel, presently posted at Manser Camp. According to F.I.R., his wife alongwith two children, namely Waseem Ahmed Saleem, aged 12 years and Akmal Saleem, aged 21/2 years, are residing in Maholi-Nala Gulpur, while the other children are residing at Mirpur alongwith their grandmother. On 1.12.1997, his wife left the son Waseem Ahmed Saleem at home and went to Mirpur to see-off the daughter Rif'at, who had to go to United Kingdom on 5.12.1997. The complainant- appellant also reached Mirpur to see-off his daughter. On 4.12.1997, at about 4:30 p.m. the complainant received a telephone call of Master Muhammad Sadiq from Maholi-Nala Gulpur that his son Waseem Ahmed Saleem has died by falling from the tree. Upon this, the complainant alongwith family reached at home and performed the funeral ceremony of his son and buried him.
Thereafter, he inquired from his nephew Abid Hussain about the occurrence but he evaded to disclose any-thing about the occurrence. On seeing the muddy Shalwar of his son, he insisted him to disclose about the occurrence, then Abid Hussain deposed that about two months prior to the occurrence, he alongwith Muhammad Arif, Safdar, Sikander Hayat sons of Muhammad Sharif Caste Rajput, resident of village Maholi Tharochee, planned to kill Waseem Ahmed Saleem. On 4.12.1997, when the deceased was ploughing the field, at about 3 p.m. Abid Hussain pulled down the deceased (Waseem) and put his hands over the mouth to stop his breathing and within few minutes he died. The motive behind the occurrence is stated to be a dispute over a place of land.
The complainant-appellant alleged that this is a pre-planned murder, therefore, the accused- respondents be brought to
3. After registration of F.I.R., under Sections 302/109, A.P.C., the police started investigation. After necessary investigation, the accused-respondents were sent to face the trial before the District Criminal Court, Kotli on 29.4.1998. The Trial Court, after completion of required proceedings and hearing the parties, acquitted the accused-respondents by giving them the benefit of doubt, vide judgment dated 12.9.2005. The complainant-appellant feeling aggrieved challenged the judgment of the District Criminal Court Kotli dated 12.9.2005 through an appeal in the Shariat Court on 7.2.2006. The learned Judge Shariat Court, dismissed the appeal vide order dated 26.12.2008. The complainant-appellant has assailed the judgment of the Shariat Court through the instant appeal.
4. Mr. Abdul Aziz Ratalvi, Advocate, the learned counsel for the complainant-appellant, after discussion of relevant facts, focused his arguments on the point that one of the accused- respondents has made extra-judicial confession. The witnesses have proved this material fact but the Courts below have fell in error of law while ignoring such impeachable piece of evidence.. He further submitted that it has also been proved by the prosecution beyond any shadow of doubt that the deceased was last seen in the company of .the accused. It is also strongly pressed in the arguments that according to peculiar facts and circumstances of the case, the prosecution has brought on record all the oral as well as documentary and circumstantial evidence in support of its case. The prosecution has fully succeeded in proving every chain of the prosecution story and the defence has failed to make out any major dent in the prosecution story. The recovery of the clothes of the deceased on the pointation of accused is also an unrebuttable, strong piece of evidence, connecting the accused with the commission of alleged offence. He further submitted that when the whole prosecution evidence is analyzed and considered in juxtaposition with the prosecution story, it becomes clear that the prosecution has proved the guilt of accused beyond any shadow of doubt, Therefore, in the light of this evidence, acquittal of accused by the Trial Court and dismissal of appeal by the Shariat Court is un-warranted and not sustainable, which calls for interference by this Court for the ends of justice, hence, this appeal be accepted and the accused-respondents be convicted under law. In support of his contentions he placed reliance upon the cases titled Muhammad Niaz Khan v. The State, reported as 1999 SCR 488, Gul Munir & another v. The State, reported as 1990 P.Cr.LJ. 1878, Muhammad Arif v. The State, reported as 2008 YLR 2910 and Khurshid v. The State; reported as PLD 1996 S.C. 305].
5. Raja Ghazanfar Ali, the learned Advocate-General, also supported the version of the counsel for complainant-appellant and submitted that the appeal may be accepted.
6. While controverting the arguments of counsel for the appellant, Ch. Muhammad Ilyas Advocate, the learned counsel for accused-respondents strongly defended the impugned judgment and submitted that it is now a settled principle of law that for setting aside the acquittal order, there must be some very unexceptionable strong reasons. The appellant must have to prove either the acquittal order is against the statutory provision, arbitrary or capricious or there is any misreading or non-reading of evidence, whereas in the instant case, the acquittal order passed by the Courts below are well-reasoned and based upon legal appreciation of the material brought on record by the prosecution. He further submitted that the prosecution story is unbelievable and on the force of it is doubtful. The F.I.R. has been lodged after a considerable and reasonably un-explained delay.
Even, the contents of F.I.R. negates the material and major circumstances alleged by the prosecution thus, the prosecution story is self-contradictory and self-destructive. He further submitted that not a single witness deposed anything to connect the accused with the alleged commission of offence. It is also argued that nothing has been recovered on the pointation of accused. The prosecution has miserably failed to bring on record any legal evidence, thus, the lower Courts have rightly acquitted the accused and this appeal has no substance and the same be dismissed. The learned counsel placed reliance upon the case titled Muhammad Aslam v. Sabir Hussain & others, reported as 2009 SCM R 985, Rehmat Ali v. Samundar Khan & another, reported as 2009 SCR 252 and Muhammad Mubeen v. The State, reported as 2002 P.Cr.LJ. 729.
7. We have paid our utmost attention to the respective arguments of learned counsel for the parties and also gone through the record. There are concurrent findings of facts against the prosecution and both the Courts below have acquitted the accused of the charges. The first and most important objection raised in the arguments of appellant is that the Courts below have over sighted the strong place of evidence, i,e. extra-judicial confession of the accused. Despite the fact that there are concurrent findings of facts and the appellants could not succeed to point out any misreading or non-reading of evidence but for the ends of justice and for our own satisfaction, we have made appreciation of evidence. According to prosecution's own version, the incident took place on 4.12.1997 and the F.I.R. of the incident was lodged on 13.12.1997 after a considerable delay.
In this application filed at Police Station Nar, the complainant has written that:-- {{URDU TEXT}} Thus, from the contents of this written application filed by the complainant, it is crystal clear that upon seeing the mud-stained trouser of the deceased son, the complainant forced accused Abid Hussain, upon which he deposed before him the story on 13.12.1997. But amazingly, the prosecution came forward with another story that the accused Abid Hussain was taken from Kotli to Mirpur where on 12.12.1997, he made extra-judicial confession in a Jirga. Even if the stated prosecution story and evidence of witnesses regarding the extra-judicial confession is accepted as connect, even then it appears that the extra-judicial confession is result of coercion. The accused, who is a young was taken into custody and under control by the complainant party, shifted from Kotli to Mirpur, where he allegedly, made extra-judicial confession, therefore, in the light of peculiar facts of this case, it cannot be said that such confession is made voluntarily and is believable. Even, from another angle, the story of extra-judicial confession has become doubtful as it has been mentioned in the written application, lodged on 13.12.1997, that the accused Abid Hussain made confession before the complainant but on the other hand, the extra-judicial confession before Jirga at Mirpur has been made basis by the prosecution, it must have been mentioned in the application lodged on 13.12.1997. Thus, according to prosecution's own version, neither such statement of accused can be said to have been made voluntarily, without coercion, nor it can be treated as extra-judicial confession. Even otherwise, the counsel for the appellant very frankly conceded that according to celebrated principle of law, extra-judicial confession is always treated as weak type of evidence. This Court in a recent judgment titled Rehmat Ali v. Samundar Khan & another, reported as 2009 SCR 252, while dealing with the point of judicial confession, has observed that:---
14. Since there were three witnesses relating to extra-judicial confession, one Haji Mohabat Ali is proceeded abroad and he was not produced by the prosecution but the two witnesses above- mentioned have supported the version of the prosecution. If extra-judicial confession is made voluntarily and the evidence of witness inspires confidence and it is corroborated by other circumstances then it has to the believed and if in the circumstances of the case extra-judicial confession is produced under undue influence, in document and it is made before an influential person or made on the condition of some promises then that kind of extra-judicial confession is not reliable.
In a reported case titled Muhammad Qasim alias Bagga v. The State [PLD 1984 SC (AJ&K) 21], it was held that:--- "....................In the circumstances or the case when the appellant had immediately after the occurrence made the confessional statement before Abdul Hamid, P.W., voluntarily, which we believe is correct and which owns killing of the deceased, the negligence of the police would not detract the value of the report of the serologist and chemical examiner, Abdul Hamid, it is to be observed, is an independent witness and has no motive to implicate the appellant in the case falsely. He being disinterested person, there appears no reason to doubt his veracity."
'The facts of the reported case titled Shah Nawaz v. Sh. Bahadur and another [1980 SCM R 172], relied upon by the learned counsel for the appellant are not relevant for the purpose of this case, therefore, it is not applicable. In the instant case extra-judicial confession is only to the extent of catching the deceased and putting him in his house by the accused and his son is proved, there is no extra-judicial confession in respect of murder. In the circumstances, extra-judicial confession is believed to the extent indicated above."
8. The extra-judicial confession has always been treated as weak type of evidence by the Courts.
This view has also been reaffirmed by the apex Court of Pakistan in the case titled Muhammad Aslam v. Sabir Hussain, reported as 2009 SCM R 985.
In the case titled Azhar Hussain v. The State, reported as 2009 YLR 671, the Lahore High Court has observed that- "... It is a settled proposition of law that extra-judicial confession is weakest type of evidence, the same cannot be relied upon unless the same is corroborated by the strongest piece of evidence particularly in a case wherein no motive is alleged to the accused for the murder of deceased and there is nothing on record, what was the reason of the murder..."
The same view has been expressed in the case titled lftikhar alias Kali and 2 others v. The State, reported as 2002 P.Cr.LJ. 1245, wherein it is held that:-- "Extra-judicial confession is a weak type of evidence, but if it was corroborated by other independent sources, same could be relied upon."
To make the extra-judicial confession admission in evidence, there are some legal requirements which have been summarized in the case titled Muhammad Yousaf v. Muhammad ldrees, reported as 2004 M LD 910, in the following manner:--- "12. The third portion for construction of the building of the prosecution story was the evidence of extra-judicial confession, the learned Trial Court had exhaustively dealt with this evidence and had pointed out the contradictions and had analysed the statements of the witnesses. Statement of Muhammad Yousaf P.W:1 had rightly been discarded on this point as he was an interested witness and could not be believed as to the story he weaved to prove the extra-judicial concession. The learned Trial Court had rightly pointed out without citing the authoritative judgment delivered by the Hon'ble Supreme Court of Pakistan reported in 1996 SCM R 188 (Sarfraz Khan v. The State and 2 others) that to believe extra-judicial confession, three ingredients are essential i,e. firstly, that the extra-judicial confession was in fact made, secondly, that it was voluntarily made and, thirdly, it was truly made. A fourth requirement is added by us which can be that to prove the extra-judicial confession it has to be proved by the prosecution that there was a motivating force behind it, because an accused cannot be believed to open his mouth with regard to the performance of his criminal acts, unless and until there is a reason behind it. No one can be presumed to state to each and every person of his criminal actions, therefore, this important factor is missing in this alleged extrajudicial confession."
Therefore, in the light of survey of case-law, it is obviously clear that an accused cannot be convicted solely on the basis of the extra-judicial confession, unless it is supported by the corroborative piece of some independent reliable evidence. Whereas in the instant case, according to prosecution evidence, the extra-judicial confession is neither voluntarily made nor is supported by any other independent and reliable evidence. Thus, it is clear that the Courts below have rightly analyzed and discarded this stand of prosecution.
9. The other material argument of counsel for the appellant is that the accused is connected with the commission of offence on the basis of circumstantial evidence and recovery of clothes of deceased on his pointation. It has also been proved from the record that the recovery is doubtful.
The complainant, in his written application submitted on 13.12.1997, has mentioned that he has seen Shalwar of the deceased but amazingly and surprisingly, the same Shalwar is allegedly recovered by the police on the pointation of accused on 21.12.1997 vide recovery memo. Exh. "PG". The recovery memo. Exh. "PG" makes the whole prosecution story doubtful and is indicative of padding mace during investigation. The prosecution has placed on record, report Exh. "PJ" in which the detail of the clothes of the deceased has been mentioned. Thus, such a fake recovery has no evidentiary value.
10. The next point stressed by counsel for the appellant is that the circumstantial evidence, i,e. post- mortem report, fully supports the prosecution version. The Courts below have taken into consideration the post-mortem report but the scribe, Doctor has not appeared as a witness rather his signatures have been testified by production of another witness, thus, without cross-examining the scriber of the report, it does not remain much credible. Even otherwise, the medical evidence could not connect the accused with the commission on the offence. It can only confirm the ocular evidence which regard to the seat of injury, nature of injury, kind of weapon used in the occurrence.
Our this view fines support from a recent judgment of the apex Court of Pakistan in the case titled Altaf Hussain v. Fakhar Hussain & others, reported as 2008 SCM R 1103, wherein it has been observed that:--- "9. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime."
11. The last point pressed by the counsel for appellant is that the deceased was last seen in the company of accused, Abid Hussain, is also of not much importance as the accused and deceased are closely related to each other and in the light of peculiar facts of the prosecution story, finding them in each other's company, is not unusual, therefore, merely on the basis of last seen without any other legal evidence, no one can be convicted. This Court in the case titled Muhammad Mushtaq v. State, reported as 2001 SCR 286, has dealt with the proposition of last seen in detail and its scope has been discussed as under:--- "13. The survey of the case-law makes it abundantly clear that tine 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. In the instant case, as observed earlier, the last seen evidence deposed by Mst. Begum Jan is neither confidence inspiring nor any explicit reliance can be placed on her statement. The whole of the prosecution case rests upon the testimony of Mst. Bagum Jan who has allegedly last seen the accused in the company of deceased but the critical examination of the evidence shows that the said witness did not herseIf see the convict appellant in the company of deceased, on the other hand she was told by the deceased that he was going alongwith convict-appellant out of his house and the said statement of the witness remains unchallenged by the public prosecution. Even if we take into consideration and give some weight to the last seen evidence of Mst. Begum Jan her statement due to its intrinsic defects requires string corroboration by other circumstantial evidence."
The prosecution story and the evidence when scrutinized and analyzed, there remains no doubt that the whole story and evidence is full of suspicion and doubts and it is settled principle of law that suspicion/doubt how-so-much strong, cannot be substituted for proof. Our this view finds support from the principle of law laid down in Mushtaq Ahmed's case, referred to hereinabove.
12. It is by now settled principle that to get an acquittal order convened into conviction, is a difficult job for the prosecution; it is like a liberated bird who had flown away towards the limitless space and free air, but now prosecution wants to get him back again into the cage. In the light of principle of law enunciated by the superior Courts of the country, an acquittal order can only be interfered with when it is proved that it has been delivered with foolish appreciation of evidence, with perverse actions and where the reasons adduced for the release of an accused were not acceptable to the mind of a prudent man. Our this view finds support from the case titled Muhammad Yousaf v. Muhammad Idrees, reported as 2004 M LD 910.
The Federal Shariat Court, in the reported case titled State v. Faisal Munir, [PLJ 2009 FSC 284], while dealing with the proposition of setting aside the acquittal order has observed that:--- 11.....The accused, as a matter of right and not the complainant, is entitled to benefit of doubt. A genuine doubt even on one crucial point can secure acquittal of the accused. There is unanimity of judicial opinion that perversity arbitrations or capriciousness in the judgment under question must be established before reversal of acquittal could be claimed. The Appellate Courts are loath to interfere unless it is established that (i) mis-reading of evidence or (ii) lack of consideration of material evidence or (iii) reception of evidence illegally or (iv) violation of legal provisions or (v) jurisdictional defects (vi) reliance placed on matters extraneous to the record or (vii) material witnesses for the prosecution were not recorded or (viii) the acquittal order on the face of it is contradictory or (ix) the order of acquittal was passed without hearing the prosecution or (x) the principles governing appreciation of evidence have been violated or (xi) the acquittal judgment was based upon surmises, suppositions and/or conjectures or (xii) acquittal is based upon reasons which do not appeal to the reasonable mind or (xiii) for that purpose there are gross mis- statements appearing in the judgment under review.
12. The acquittal order of the lower Court is entitled to respect and it cannot be interfered with solely on the reason that another opinion could be possible on the given set of evidence and circumstances. However, instances are not lacking where the Appellate Courts have reversed the finding of acquittal. A judgment can be faulty and defective."
The apex Court of Pakistan, in a recent judgment in the case reported as Jehangir v. Aminullah & others [2010 SCM.R 491], while dealing with this legal proposition has observed as under:--- "6.It is well-settled by now that 'there are certain limitations on the power of Appellate Court to convert acquittal into a conviction. It is well-settled that Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light should be found wholly as artificial, shocking and ridiculous." The view taken by this Court in Ghulam Sikander v. Mamaraz Khan PLD 1985 SC 11 is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due aid and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the reappraisal of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions; one initial, that, till found guilty, the accused is innocent and too that again after the trial a Court below confirm the assumption of innocence. This will not carry the second presumption and will also thus loose the first one if on points having conclusive affect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally."
As on all the points argued, the latest juristic approach has been referred which leaves no room for a separate discussion on the case-law referred to by both the parties. Therefore, we are of the view that the Trial Court has passed the acquittal order after due appreciation of the material brought on record. The Shariat Court has also maintained the acquittal order after making the required deliberation. Both the judgments recorded by Courts below are well-reasoned and passed after appreciation of evidence. The appellant has failed to point out any material illegality, irregularity or violation of any statutory provision of law, therefore, finding no force, this appeal stands dismissed.