Raja Saeed Akram Khan, J.--The above titled appeal arises out of the judgment of the Shariat Court dated 6.3.2006, whereby appeal filed by Respondent No, 1 has been accepted and he has been acquitted while the appeal filed by the appellant, herein, for enhancement of sentence, has been dismissed.
2. The brief facts giving rise to the instant appeal are that on 17.3.2005 at 12.30 a.m. (midnight), one Saleem son of Ali Shan came to the house of complainant-appellant, herein, and told him that Shaukat son of Abdul Aziz, who had gone to inform Arshad son of Ali Shan about the death of his aunt, Fazal Begum, was coming back to his house via the roof of the house of his cousin, Mazhar son of Faqar Din, has been murdered by some unknown person at the stairs. His dead body was lying in the house of Mazhar. Upon his information, the complainant-appellant, herein, went to the house of Mazhar where Arshad son of Ali Shan, Ansar son of Abdul Ghani, Noreen wife of Maihar, who were present near the dead body, told him about the occurrence whereupon he reported the matter to the Police. On this report, a case under Section 302, A.P.C. was registered at Police Station, Dadyal. Khalid Mahmood, accused-respondent, was apprehended on the statements of Zubaida Begum and other prosecution witnesses and during the course of investigation weapon of offence was also recovered at the instance of the accused-respondent. After completion of the investigation, a challan under Section 302, A.P.C. was submitted before the District Criminal Court, Mirpur, against the accused-respondent. The District Criminal Court, Mirpur, after completion of trial awarded the accused sentence of life imprisonment vide its judgment dated 18.6.2005. Feeling dissatisfied with the judgment of the District Criminal Court, two appeals were preferred before the Shariat Court: one by the complainant-appellants for enhancement of sentence and the other by the accused-respondent for his acquittal. A learned Judge in the Shariat Court, through the impugned judgment dated 6.3.2006, dismissed the appeal filed by the complainant-appellant while accepted the appeal filed by the accused-respondent and acquitted him of the charge of murder. The aforesaid order of the Shariat Court has been assailed through this appeal.
3. Mr. Khalid Rasheed Chaudhry, the learned counsel for the appellants, has submitted that the Shariat Court was not justified while acquitting the accused in presence of unrebutted evidence in form of dying declaration, recovery of crime weapon and the extra-judicial confession. The prosecution has proved the case beyond reasonable doubt which fact has totally been ignored by the Shariat Court, therefore, the judgment of the Shariat Court is based on surmises and conjectures and not supported by law laid down by the apex Court. All the prosecution witnesses have fully supported the prosecution case in their statements recorded under Section 161, Cr.P.C. and their statements recorded in the Court are also in line with the statements recorded under Section 161, Cr.P.C. The F.I.R. was promptly lodged. Although originally no one was nominated in the F.I.R. but later on during the investigation tangible evidence was brought on the record which has been overlooked by the Shariat Court. The statement of Mst. Zubaida Begum, who is real mother of the deceased, has not been given weight who is an independent witness. No or animosity is brought on the record against the witnesses to falsely implicate the accused in the case. He lastly argued that absconsion of the accused itself is a strong piece of evidence. Admittedly the occurrence took place on 27.3.2005 whereas the accused was arrested on 9.4.2005, about one month after the occurrence. The crime empties were recovered from the spot on the same day and the same were sent to the Forensic Science Laboratory. According to the report of Forensic Expert the same has been fired from the gun which was recovered from the accused. It is settled principle of law that once a case is proved, normal penalty of death should be awarded. He relied on the cases reported as Muhammad Ramzan v. The State [1991 M LD 2234], The State v. Mst.
Falawat Jan and another [1992 SCR 366], Javaid Azam and 2 others v. Muhammad Saleem. and 10 others [1997 P.Cr.L.J.1865], Akhtar Zaman and another v. Abdul Majeed and another [PLJ 2000 SC 938], Nasar Iqbal v. State [PLJ 2000 Cr.C. 1310], Farmanullah v. Qadeem Khan and, another [2001 SCM R 1474] and Abdul Rashid and 3 others v, Abdul Ghaffar and 5 others [2001 P.Cr.L.J. 524].
4. On the other hand, Raja Inamullah Khan, the learned counsel for the accused-respondent, while supporting the judgment of the Shariat Court, has strongly argued that the Shariat Court has rightly appreciated the prosecution evidence in the settled norms of justice and no illegality has been committed by the Shariat Court while acquitting the accused. It is a case of unseen occurrence and blind murder. There is no direct evidence on the record. It is a dark-night occurrence, therefore, the question of identification creates serious doubt in the prosecution case.
He has argued that it is settled law that a slightest benefit of doubt should go to the accused. The presence of the prosecution witnesses is also doubtful. No specific motive has been alleged against the accused-respondent. He argued that the dying declaration has been manoeuvred later on to make improvements in the case, as such, the same was not available at the time of lodging the F.I.R. He further argued that it is on record that after registration of the case a number of persons was arrested. The complainant is not an eye-witness of the case. He is only an informer who lodged the F.I.R. after getting information of the occurrence. The statements of all the prosecution witnesses are inconsistent with each other, therefore, the trial Court has rightly not relied upon the same. The Investigation Officer, namely, Gul Nisar, was not examined during the trial. Even the site-plan does not show the presence of Mst. Zubaida Begum at the scene of occurrence. He lastly argued that according to the statement of Patwari, the occurrence took place in the room whereas the prosecution case is that the same took place on the stairs of the house.
5. We have heard the arguments of both the learned counsel for the parties at some length, perused the impugned judgment along with the record made available and also gone through the relevant law cited by both the learned counsel for the parties. Admittedly, the occurrence took place on 27.3.2005 at 12.30 a.m. (midnight) and the prosecution has setup the case that the same took place on the stairs of the house. Originally no person was nominated in the F.I.R., however, during the investigation a number of persons was arrested and later on they were released. The prosecution case stands on the limbs of the dying declaration made by the deceased before his mother, Mst. Zubaida Begum, who appeared as a prosecution witness, extra-judicial confession and recovery of weapon of offence.
6. Now we advert towards the first contention of the learned counsel for the appellant, i,e,, the dying declaration. The dying declaration was made by the deceased before his mother, who is an independent witness. There is no cavil with the proposition that the dying declaration can be made before any person and there is no clog that the same cannot be made before a private person but the same can only be relied upon and made basis for the conviction if the same is corroborated with unimpeachable evidence. We have gone through the statement of Mst. Zubaida Begum. Her statement is not in line with her statement recorded under Section 161, Cr.P.C. before the Police. In these circumstances, we can safely observe that such type of dying declaration cannot be relied upon which has not been proved by any cogent and concrete evidence.
7. The star witness of the case is Mst. Zubaida Begum, who is real mother of the deceased, Shaukat.
In her statement recorded under Section 161, Cr.P.C., before the Police, she stated that when she touched the mouth of her son as love of affection, on her query that what happened, he told her that Khalid has fired at him. The surprising aspect of this case that after coming into the knowledge of this fact, there was no occasion to arrest a number of persons during investigation and this fact has not been denied even by the complainant himself who disclosed in his statement before the Court that Mst. Zubaida Begum told him that before death Shaukat had told her that Khalid had fired at him. The complainant has further stated before the Court that Ansar son of Abdul Ghani, Saleem and Ansar sons of Ali Shan, Nawaz son of Ameen, Arshad son of Ali Shan, Zafar Mahmood brother of Noreen, P.W., Muhammad Hanif son of Shafi and Qurban son of Mahand, who is real uncle of Noreen, P.W., were arrested by the Police and remained in its custody. Keeping the statements of both the complainant and Mst. Zubaida Begum in juxta-position, an inference can be drawn that the story of dying declaration has been invented later on. It cannot be ruled out that at the time of registration of the case dying declaration was not available on the file. In presence of the dying declaration, the accused must have been apprehended while it is admitted that he was arrested after about one month from his house creates serious doubt in the prosecution case and it appears that the improvements have been made in the case of the prosecution. In these circumstances, such like dying declaration cannot be relied upon and substitution of real culprit cannot be ruled out. It is settled principle of law that dying declaration must be free from every sorts of taint and be independently corroborated for making the sole basis of conviction as has been laid down in a case titled Muhammad Yasin v. The State [1978 SCM R 303] in which it has been observed as under: "Now there is no doubt that conviction could be based solely on a dying declaration as held in the authority reported in PLD 1977 SC 612, but then the dying declaration in that case should be free from every sorts of taint. If doubts arise about the truthfulness of a dying declaration then it is not safe to base a conviction solely on its basis without any independent corroboration. In the instant case major portion of the dying declaration as mentioned above has been found to be false and there is evidence to show that it was recorded at a time when the relatives of the deceased were present with him. The possibility that the deceased might have been tutored could not therefore be excluded. There is no corroboration whatsoever of the dying declaration on file."
In another case reported as Farman Bi v. Ghulam Farid [1994 SCM R 1852], it was observed in first part of Paragraph 10 as under:-- "10The fate of this appeal wholly hinges on the weight to be attached to the dying declaration, which is the only piece of evidence against the respondent-accused. For proper evaluation of the dying declaration, the surrounding circumstances in which it was made and the contents thereof have to be kept in view.
It was further held in Paragraph 11 of the aforesaid judgment as under: "11It is evident from the deposition of Dr. Abdul Majid that the deceased was not in full possession of senses, when her statement was recorded. To import veracity to a dying declaration, it is necessary that the declarant should be free from external influence and not crowded around by unauthorized persons while making the statement"
8. Even otherwise the oral dying declaration is a weak piece of evidence which must be corroborated by independent circumstances as has been held in a case reported as Abdur Rahim alias Rahima and others v. The State and others [PLD 2003 SC 662]. Following observations have been made in this case: "12If we concede to the assertion of the learned counsel for the convict-petitioner that Pir Ashraf Hussain was an independent and hence reliable witness, we believe that it would bring about a serious setback to the stance of the convict-petitioner. This witness has categorically stated that at the hospital and before having been examined by the doctor, the Police Officer had asked injured Zafar Iqbal as to who was responsible for such assault on his person. In reply thereto the deceased had clearly mentioned within the hearing of the witness that it was Rahima (Abdur Rahim alias Rahima) who had done it. This specific narration by Pir Ashraf Hussain is tantamount to the proof of a clear oral dying declaration which supports and is supported by the prosecution evidence. The law so far developed qua an oral dying declaration is that it is a weak piece of evidence which must be corroborated by independent circumstances. We are convinced that this oral dying declaration is brought on record by a witness who is summoned as Court witness at the instance of the accused and hence should not be taken with a pinch of salt. Whatever is the oral dying declaration is also the case of the prosecution and hence is fully supported."
In another case titled Ryas v. The State [1998 P.Cr.L.J. 1927] it was held as under: "6. A dying declaration, as it is settled by now, is a weak type of circumstantial evidence on which the conviction should not be singularly based unless the declaration is supported by strong evidence, oral or circumstantial. In this connection the first thing that is to be seen is as to whether the declarant; was physically in a position to make a statement."
9. According to the F. I. R., the complainant lodged the same after getting information from one Saleem about the death of Shaukat, deceased. He himself is not a witness of the occurrence. He was just an informer and his statement can be treated as hearsay evidence which cannot be treated as evidence in the eye of law. A reference is made to a case titled Arshad Mahmood u. Raja Muhammad Asghar and another [2008 SCR 345] in which it has been held as under: "8. According to prosecution the complainant, Arshad Mehmood, was not present at the place of occurrence, but when he appeared as a witness before the trial Court, he deposed that the accused Raja Muhammad Asghar fired bullet, which hit Yasir. He also stated that it was told to him by his wife, therefore his evidence is, a hearsay evidence. Now the question emerges whether his wife also stated before the Court that she narrated the whole story to her husband. If she would have deposed as such, only then the evidence of Arshad Mehmood would have been admissible as provided in Article 71 of Qanune-Shahadat. We have gone through the statements of Arshad Mehmood and Mst. Tazim Akbter, wife of Arshad Mehmood. Arshad Mehmood stated categorically that the story was narrated to him by his wife, but Mst. Tazhn Akhter nowhere stated that she told or narrated the story to her husband, therefore, the evidence of Arshad Mehmood was not admissible because Article 71 of Qanun-e-Shahadat conveys that only direct evidence is admissible and it is mandatory to rely upon direct evidence and indirect evidence is not admissible."
10.While taking the next contention of the learned counsel for the appellants that the accused- respondent remained absconded for about one month and was arrested on 9.4.2005, it may be stated that it is proved that he was involved in a murder case. It is not denied that the accused was arrested from his house. As discussed above, during the investigation, a number of persons was arrested by the Police, investigated and ultimately they were released. From the record it transpires that neither any serious effort had ever been made to arrest the accused nor any proceedings under Section 87 and 88 of the Cr.P.C. were initiated. Although abscondance is one of the corroborative piece of evidence but mere abscondance cannot be construed sufficient for convicting an accused. The abscondence of an accused is not conclusive by itself to establish his guilt and its probative value depends on the facts and circumstances of each particular case, yet the same is universally admitted as evidence of guilt of the accused.
11.After examination of the site-plan, we observe that Mst. Tehmina and Mst. Noreen, prosecution witnesses, have been shown at the distance of 80 feet and 62 feet wherefrom they saw the accused. It is a dark-night occurrence. One of the prosecution witnesses has stated that there was no source of light available at the roof of the house. It is _otherwise humanly impossible to identify a person from the said distance. Therefore, the Statements of these prosecution witnesses are not free from any doubt and possibility of false implication cannot be ruled out.
12.The manner in which recovery of gun has been made that also creates serious doubt in cur minds. It is a celebrated principle of law that after acquittal an accused enjoys double presumption of innocence until the judgment is perverse, arbitrary, shocking and fanciful, the Courts always are reluctant to interfere with the same. Reliance can be placed on the case reported as Haji Paio Khan v. Sher Biaz and others [2009 SCM R 803] wherein it has been observed as under: "10. It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record."
In another case titled Shah Muhammad v. Muhammad Zaman and others [2007 SCM R 1263], it has been laid down as under: "4. It is to be noted that normally in cases where there is a double presumption of innocence this Court is very slow in interfering with the impugned judgment"
Similarly in a case reported as The State v. Mst. Falawat Jan and another [1992 SCR 366] it was observed by this Court as under: "Before parting with the case it may be observed that in a case of acquittal there is double presumption of innocence: one on the general principle of law that an accused person is innocent until and unless he is proved guilty; and other presumption emanates from the order of the acquittal passed in favour of an accused. Thus, it is necessary that while preferring appeals in such cases, the State should see as to whether in fact there are sufficient grounds justifying an appeal against an order of acquittal. Lodging of acquittal appeals as a matter of routine would not serve any useful purpose."
13.Admittedly all the prosecution witnesses are close relatives to each other and their statements are not confidence inspiring and truthful, therefore, those cannot be believed. It is the case in which no direct evidence is available.
14.After scanning the prosecution evidence minutely, we have come to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The statements of the prosecution witnesses are not consistent to each other and there are glaring discrepancies which cannot be overlooked. The story of the prosecution is highly doubtful and it is celebrated principle of law that a slightest doubt must go to the accused. We failed to see any perversity in the judgment passed by the Shariat Court, therefore, we are not inclined to interfere with the same.
Resultantly this appeal is dismissed.