RAJA SAEED AKRAM KHAN, J. --- This appeal has been directed against the judgment passed by the Shariat Court on 14.7.2008, whereby while accepting the appeal filed by the convict-respondent, he is acquitted of the charges, whereas, the reference was answered in negative.
2. Brief facts forming background of the appeal are that a case under sections 302, 324 and 337, APC was registered at Police Station, Chaksawari on the complaint of Muhammad Azam. It was reported that the complainant is resident of Mithrani District Kotli and presently alongwith his family is residing in the house of Numberdar Abdul Karim, situated in Ganohi District, Mirpur. His son, Muhammad Masood, is working in a fruit market in Karachi. A day prior to the occurrence, he made a telephonic call to the complainant and informed him about his arrival at Ganohi Bridge in the evening and requested that his brothers may come at bridge and receive him. On 26.4.2005, at about 4.00, a.m. He came home alone and asked the complainant about his brothers. The complainant told him that they had gone to receive him. The accused denied their presence at the bridge, however, told the complainant that he heard hue and cry coming from inside the hotel.
Upon this the complainant and his son came at the place of occurrence and saw the victims lying on cots. Muhammad Mansha and Muhammad Latif were dead while Muhammad Arshad was injured. The complainant lodged the report, alleging therein that some unknown persons committed the offence.
3. During the investigation, Muhammad Masood, accused, was found guilty and a challan for the commission of offences under Sections 302, 324 and 457, APC was presented against him before the District Court of Criminal. Jurisdiction, Mirpur. After conclusion of trial, accused-respondent No. 1 was convicted and sentenced to death twice for two counts under section 302, APC, 10 years' rigorous imprisonment under section 324, APC, Rs. 50,000/-as fine under Section 337, APC and 10 years' rigorous imprisonment under Section 457, APC. A reference was made by the Trial Court for confirmation of death sentence before the Shariat Court.
4. Feeling aggrieved from the judgment of the District Criminal Court, Mirpur, the convict- respondent filed an appeal before the Shariat Court for his acquittal. The learned Shariat Court through consolidated judgment dated 14.7.2008 accepted the appeal of accused-respondent No. 1 and acquitted him of the charges and answered the reference in negative. The aforesaid judgment of the Shariat Court has been assailed through this appeal.
5. Raja Muhammad Zubair, Advocate, the learned counsel for the appellants, argued that the judgment passed by the Shariat Court is based on misreading and non-reading of evidence, which is liable to be set aside. He argued that the Trial Court has rightly appreciated the evidence of the prosecution on the basis of which it came to the conclusion that the prosecution succeeded to prove its case beyond the reasonable doubt and awarded the death sentence to the accused- respondent He argued that although, it is not the case of direct evidence, however, the circumstantial evidence produced by the prosecution is so strong, which cannot be brushed aside without any reason. The learned Shariat Court while extending the benefit of doubt to the accused- respondent has not considered the overwhelming evidence, i.e., confessional statement of the accused-respondent recorded under section 164, Cr.P.C., which was recorded in accordance with the provisions of law and the Magistrate appeared before the Court in support of the contents of the statement. He argued that the confessional statement, which was got recorded voluntarily by the accused cannot be disbelieved and this important aspect of the case has not been taken into account by the Shariat Court while passing the impugned judgment. He submitted that the accused is involved, in the murder of two innocent persons and 3rd person injured, therefore, such- like accused, who is desperate, hardened and dangerous criminal, is not entitled to get any leniency. He argued that the prosecution in support of its version has produced a strong evidence in the form of recovery, blood-stained clay and broken locks of the shop, which is further corroborated by the medical evidence but the learned Shariat Court has brushed aside all the evidence without any justification. He further contended that the arrival of the accused at the relevant time is proved by producing a bus ticket and the statements of Conductor and Driver, who dropped him near to the place of occurrence. The statement of the owner of PCO is also one of supporting evidence, which has not taken into account by the Shariat Court. He maintained that no enmity with the police came on the record to falsely implicate the accused in the case, therefore, in absence of that the prosecution story cannot be disbelieved. He contended that the learned Shariat Court was also failed to appreciate that the FIR was lodged by the real father of the accused. One of the victims, namely, Muhammad Mansha, was the real son of the complainant, who subsequently, made an effort to save him from conviction due to natural love with the son. He lastly argued that all the links of the chain are fully connected and interlinked with each other and in such-like situation, the circumstantial evidence can safely be relied upon but this principle has not been followed by the learned Shariat Court, while appreciating the evidence.
5. On the other hand, Sardar Muhammad Azam Khan, Advocate, the learned counsel for accused, strongly opposed the arguments advanced by the learned counsel for the appellants. He argued that the judgment passed by the Shariat Court is perfect and legal, therefore, no interference is warranted under law by this Court. He argued that the judgment passed by the Shariat Court is based on concrete reasons, which does not warrant any interference. It is a case of unseen occurrence and blind murder and there is no direct evidence on the record. He submitted that the time of post-mortem has been shown as 10:30 a.m., which is not possible as a single Doctor cannot conduct the post-mortem of two dead-bodies at the same time. He argued that the accused was enroped in the case to show the efficiency by the police as the prosecution badly failed to collect incriminating material against the accused. The story established by the prosecution is un- believable; therefore, the learned Shariat Court rightly disbelieved the same. He contended that the prosecution failed to produce the important witness of the case, i.e., Muhammad Arshid, the real son of the complainant, which shows that if he appeared, he might have narrated the true story. In this way, the prosecution withheld the best available evidence and under the provisions of Qanoon-e-Shahadat Order, 1984, an adverse inference should have been drawn but the Trial Court failed to examine this important aspect of the case. He argued that the confessional statement recorded by the Magistrate is also full of doubts as the same has not been recorded by the Magistrate himself rather the same is recorded by the Reader as such has no value in the eye of law. He contended that nothing has been brought on the record that who made the request for recording the confessional statement of the accused before the Magistrate. In such-like situation, the stance taken the accused that he was forced to sign the blank paper, can safely be believed and in such-like confessional statement, no conviction can be recorded. He submitted that the circumstantial evidence must be linked by unbroken chains and it needs strong corroboration from other evidence but the prosecution badly failed to establish the same. He contended that the case of the prosecution is that the accused-respondent committed the murder of two persons who were sleeping in the 'veranda' of hotel and broke the locks of a shop to commit docoity but he failed to find anything else except some coins. He lastly argued that the accused was arrested on 14.5.2005 and the confessional statement was recorded on 25.5.2005, after a delay of 11 days, which is also a question mark on the confessional statement. He submitted that the accused-respondent was in the police custody and after obtaining his signature on blank paper, he was again kept in police custody, which itself makes the prosecution story doubtful. He submitted that it is a celebrated principle of law that a slightest doubt must go to the accused being favourite child of law. The learned counsel has relied upon the cases reported as Muhammad Yar alias Yari v. The State [2001 MLD 807], Muhammad Ayyub alias Ayuba v. The State [1979 P.Cr.LJ. 536], Muhammad Ibrahim v. Abdul Rashid & others [1995 SCR 301], Fayyaz Khaliq alias Pappu and another v. State [PLJ 2002 Crim. C. (Lahore) 593] and Shahid Nadeem and another v. Muhammad Mansha and another [PLJ 2012 SC (AJ&K) 74].
6. Mr. Mansoor Pervaiz Khan, Advocate-General, has adopted the arguments advanced by the learned counsel for the appellants, white submitting that the strong piece of evidence is the confessional statement of the accused, which cannot be disbelieved in absence of the cogent reasons as the same has been made voluntarily by the accused. He argued that the evidence produced by the prosecution cannot be disbelieved and the other material collected by the police, i.e., weapon of offence, bloodstained clay and the same were further corroborated by the medical evidence. He argued that 25 witnesses were produced by the prosecution, who made their statements in line with each other. The learned Additional Advocate-General contended that the discrepancies which have been pointed out by the learned counsel for the accused are minor in nature, which cannot be taken into account, while acquitting the accused.
7. We have heard the arguments of the learned counsel for the parties and also gone through the record made available. It is a case in which no direct evidence is available on the record against the accused and the whole case is based on circumstantial evidence. The superior Courts while appreciating the circumstantial evidence which is always considered to be a weak type of evidence, have held that there is no rule of law or practice to prevent a Court from sentencing an accused to death merely on the circumstantial evidence provided that in a case resting upon the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. The circumstantial evidence can only form basis for conviction when it is incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of the guilt of accused. Every link in circumstantial evidence should be proved by cogent evidence, if not, then no conviction could be maintained or awarded to an accused.
8. In the case in hand, two innocent persons, namely, Muhammad Mansha and Muhammad Latif, were murdered and one Muhammad Arshid, real brother of the convict-respondent was injured. No one was nominated in the FIR. The whole story emerged after arrest of the accused, who was arrested on 14.5.2005. According to the prosecution story, the accused alighted Bus No. 6653-AJ&K and to support the prosecution version, the driver and conductor of the Bus were also examined. A bus ticket was also brought on the record but the same was not tendered in evidence. Such-like evidence cannot be believed. The allegation levelled against the accused is that he murdered two innocent persons with pickaxe and one was injured. All the three persons were sleeping in the 'veranda' of hotel. The surprising aspect of the case is that the injuries caused to the deceased were of pickaxe and not the fire-arm. In such-like situation, it is not believable that a single person can murder two persons, one by one, while injuring a third person. According to the prosecution the deceased were sleeping together on a cot and they were unconscious at the time of occurrence.
The surprising aspect of the case is that both the victims were sleeping on a cot when the occurrence took place. The accused definitely attacked one person then how it is possible that the other person sleeping with the person, who has been attacked, has not awakened. In this like situation, the story seems to be invented by the prosecution and the Police failed to discharge its duties to trace out the real culprits involved in the case.
9. The accused was working in a fruit market in Karachi. A day prior to the occurrence, he contacted the complainant and informed him about his arrival at Ganohi Bridge in the evening and requested to send his brothers to receive him at the bridge. The story narrated by the prosecution seems to be false because when the accused intended to make docoity then what was the justification to inform anybody about his arrival. Moreover, the best evidence, i.e., Muhammad Arshid, the real son of the complainant, was available, who injured in the occurrence was not examined and given up, for which no plausible reason has been furnished. In this way, the prosecution withheld the best available evidence, therefore, the adverse inference should have been drawn by the Trial Court that in case the evidence which is withheld by the prosecution, is produced then that might have not supported the version of the prosecution. It is settled law that the prosecution cannot be forced to produce each and every witness cited in the calendar of the witnesses. It is sole prerogative of the prosecution to examine the witness which it deems necessary. The prosecution cannot be forced to examine all the witnesses but in a case where the best available evidence is withheld, under law adverse inference could be drawn. The relevant provision of law dealing such-like situation is Article 129 of Qanoon-e-Shahadat Order, 1984, which reads as under:- "129. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case."
Illustrations The Court may presume:---
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;
(c) that judicial and official acts have been regularly performed;
(d) that the common course of business has been followed in particular cases;
(e) that evidence which could be and is not produced would, if produced. Be unfavourable to the person who withholds it-
(f) that, if a man refuse to answer a question which is not compelled to answer by law, the answer, if given, would be unfavourable to him, and
(g) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged."
10. If the Court comes to the conclusion that the prosecution withheld the best available evidence without any justification then the adverse inference should be drawn. In this case, Muhammad Arshid, the real son of the complainant, was injured in the occurrence, who was one of the eye- witnesses of the case but was not examined by the prosecution. When a querry was made to the learned counsel as to why he was not examined, he stated that due to affection and love with his son, the complainant's father did not opt to examine him. This argument has no force. On one hand, the complainant, the real father of the accused, did not feel hesitation to come forward as complainant of the case despite the fact that his son was involved in the murder of two innocent persons and on the other hand he was reluctant to produce Muhammad Arshid, the real son of the complainant as a witness. In such-like situation, the Court must draw the adverse inference.
Muhammad Arshid, the real son of the complainant, if examined, he might have not supported the case of the prosecution. Muhammad Arshid, was the real eye-witness of the case, who cannot be given up without assigning the strong reasons, therefore, withholding of this evidence may lead to the inference that if the said witness is produced in the Court, he might have not supported the story of the prosecution as laid down in an unreported case titled Gulfam & others v. The State and others (Criminal Appeal No. 60 of 2012, decided on 11.10.2013), in which this Court has held as under:- -- "14. The first argument advanced by the learned counsel for the accused-appellants is that the prosecution has withheld the best available evidence, therefore, the adverse inference should have been drawn by the Trial Court as well as the Shariat Court that in case the evidence which is withheld by the prosecution is produced then that might have not supported the version of the prosecution. It was vehemently argued by the learned counsel for the accused-appellants that the best witness of the occurrence was Siddiqua Begurn, widow of the deceased, who has not been produced in the Court as a witness, therefore, the case is doubtful. The nonappearance of a party/a witness would make his/her case highly doubtful and it can safely be presumed that the party/witness have some ulterior and sinister motive behind it. Both the Courts below have not taken into consideration this important aspect of the case. There is no cavil with the proposition that if the best available evidence is not produced before the Court then the presumption can be drawn that the production would have been unfavourable to the prosecution but at the same time it may be stated that it depends upon the situation of each case and suchlike adverse presumption can only be drawn keeping in view the overall circumstances of the case "
11. It is not necessary that in every case an adverse inference must be drawn against the prosecution in terms of provisions of Article 129 of Qanun-e-Shahadat Order, 1984, owing to non- production of certain evidence, whether mentioned in the indictment or not. It will depend upon the facts and circumstances of each case but an adverse inference can only be drawn if it is shown that material witnesses have been withheld owing to some oblique motive and for considerations not supported by the record. In the case in hand, non-production of best available evidence creates doubts in the prosecution story.
In view of the discussion made in the preceding para, we justified to draw the adverse inference that the prosecution withheld the best available evidence without assigning any reason, which makes the prosecution story doubtful.
12. While adverting to the other piece of evidence regarding the recovery of pickaxe and broken locks, it may be observed that such-like recoveries cannot be made basis for recording the conviction, as the same can be invented easily. The recoveries of pick-axe and broken locks are easily available in the market and the possibility cannot be ruled out that the same can be managed just to corroborate the evidence. Even otherwise, it reveals that the same were not recovered on the pointation of accused, therefore, it has no value in the eye of law and the learned Shariat Court has rightly disbelieved the same.
13. Another surprising aspect of the case is that the allegation levelled against the accused is that he committed the murder of two persons and also injured one person and broken the locks of a shop to commit docoity. Neither any looted amount recovered from him nor any owner of the shop made a report against the accused, which makes the prosecution story doubtful. During the course of investigation the accused was enroped to show the Police 'karguzari' that the police have succeeded to trace out the blind murder.
14. Another witness of the case is the owner of the PCO, wherein it is alleged that the accused made a telephonic call. The owner of the PCO resides at a distance of 8 K.M. From the place of occurrence. Even otherwise, in his statement, he stated that when the accused came to his P.C.O., the light was off and he was unable to identify him and he has never seen him before. In this situation, this part of the story is also not believable and the same is not supported by the prosecution witnesses itself.
15. The post-mortem reports show that the post- mortem of both the deceased was conducted at 10:30 a.m., by Doctor, which is not possible as one Doctor cannot conduct the post-mortem of two dead-bodies at one and the same time.
16. While adverting to the crucial evidence, i.e., confessional statement of the accused on which the prosecution has heavily relied upon, we have examined the statement of Additional District Magistrate, Mirpur, which is reproduced as under:- [(Urdu Text)] Nothing has been brought on the record that who made the request for recording the statement of the accused under section 164, Cr.P.C. Even the Investigating Officer, Sikander Hayat Khan, who appeared as PW. 24 has stated that he never produced the accused before the Magistrate for recording his confessional statement. Even no application on behalf of the accused is part of the record, wherein, he has requested for recording the statement under section 164, Cr.P.C., even the copy of National Identification Card or any other thing through which it could be ascertained that the accused was present in the Court and made the statement before the Magistrate, is forming the part of the record. Moreover, this fact has also not been mentioned in the investigatkon report.
Even there is no certificate alongwith the signature of the Magistrate that the accused has appeared in the Court and recorded the statement voluntarily. Such-like statement recorded by the Magistrate cannot be relied upon, which itself supports the version of the accused that the Police got his signature on a blank paper. There is no cavil with the proposition that the retracted confessional statement can be made the basis for recording the conviction but that must be corroborated with the other material, which is not available. In absence of that the conviction cannot be recorded on the basis of retracted confessional statement. In this situation, it cannot be believed that the confessional statement was made voluntarily as the same can only be believed if the Court comes to the conclusion that the same is truthful and confidence inspiring and also qualify the test of voluntariness and such-like confession can be used for conviction.
17. Here, we would like to observe that the Trial Court badly failed to discharge its duty while making appreciation of the evidence. The judgment of the Trial Court is based on misreading and non- reading of record and the violation of the principle of administration of criminal justice laid down by superior Courts regarding reappraisal of evidence. We agree on the point that the prosecution badly failed to establish any chain of links of facts and in absence of that a circumstantial evidence, which is a weakest type of evidence, cannot be made basis for conviction of an accused.
In the light of what has been discussed above, we are unable to find any illegality or infirmity in the judgment passed by the Shariat Court, which has been passed after taking into account all the aspect of the case, while assigning the cogent reasons. Resultantly, this appeal is dismissed.