Raja Saeed Akram Khan, J.--The captioned appeal is directed against the judgment of the Shariat Court dated 28.22007, whereby the judgment dated 30.6.2005 passed by the District Court of Criminal Jurisdiction Muzaffarabad was maintained and the acquittal of the respondents is upheld.
2. The gist of the facts forming the background of the instant appeal is that an FIR was registered at Police Station City, Muzaffarabad on 24.12.2004 under Sections 324, 337 and 341 A.P.C. at the instance of complainant-appellant, thereafter, on the death of injured person, Sections 302, 34 A.P.0 and 17(2) EHA were also added. The brief facts narrated in the FIR are that the complainant is running business of mutton in a shop situate near the Neelum Bridge and the father of the complainant, namely, Muhammad Sadiq son of Juma Khan, was also running a separate mutton business in a nearby shop. It was stated that he along with his brothers went to his home on a jeep, whereas his father was in the shop who told him that he will come at home on his motorcycle later on. At the same time Muhammad Liaqat and Muhammad Bashir boarded on Jeep No, 222 were coming towards the city. At 8:30 when they reached at the place of Tami near the Madarsa Jamia Barakatia, they saw that the father of the complainant Muhammad Sadiq, was lying there in an injured condition and also soaked in blood. The injuries were found to be caused on his head.
Muhammad Liaqat and Muhammad. Bashir took him to the hospital and he was unable to disclose about the incident. Later on, the deceased succumbed to the injuries. The complainant further alleged that his father has been injured by some culprits when he was coming towards his house.
After registration of the case, the accused Saqib Shah, Basharat, Qasir and Ch. Sharafat were arrested by the Police on the basis of suspicion. After completion of investigation, the accused persons were found guilty of the offences and they were sent to face the trial before the Court of competent jurisdiction on 26.2.2005. After filing of challan, the trial Court recorded the statements of the accused persons under Section 242, Cr.P.C. They pleaded not guilty and claimed the trial of the case. The trial Court directed the prosecution to lead the evidence in support of its case. The prosecution produced the following P.Ws:-- "Muhammad Basharat P.W. 1, Muhammad Liaqat P.W.2, Muhammad Bashir P.W.3, Arshad Iqbal P.W.4, Muhammad Ishtiaq P.W.5, Munir P.W.6, Sufian P.W.7, Mubarak Haider P.W. 8, Muhammad Maqbool P.W.9, Khurshid P.W. 10, Farooq P.W.11, Ishtiaq P.W. 12, Muhammad Shakil P.W. 13, Umer Niaz P.W. 14, Muhammad Munir P.W. 15, Javed Ahmed P.W. 16, Syed Saleem Akhtar Gillani P.W. 17, Dr. Naseer Ahmed Shaikh P.W. 18, Muhammad Mushtaq P.W. 19, Aurangzeb Constable P.W. 20, Abdul Qayyum Sub-Inspector P.W, 21, Muhammad Shamim Sub-Inspector P.W. 22, Chemical Examiner Lahore P.W. 23, Sardar Gulfraz Khan DSP P.W. 24, and Sardar Muhammad Bashir SHO, P.W. 25."
3. After the completion of the prosecution evidence on 16.5.2005, an opportunity was provided to the accused-respondents under Sections 342, Cr.P.C., to produce evidence in defence. All the accused-respondents pleaded that false evidence has been produced against them and they have been falsely implicated in the case. They claimed to be innocent. After completion of the trial, the District Criminal Court vide judgment dated 30.6.2005 acquitted the accused-respondents of the charges levelled against them by extending the benefit of doubt. The judgment of the District Criminal Court was assailed before the Shariat Court. The Shariat Court also dismissed the appeal while maintaining the judgment dated 30.6.2005 passed by the District Criminal Court. Hence this appeal.
4. Ch. Shabir Ahmed, the learned counsel for the complainant-appellant, has argued that both the Courts below have misread the evidence available on the record and the same has not been appreciated in its true perspective. He argued that the Courts below have failed to take into consideration the fact that they have no enmity with the accused-respondents to falsely, implicate them in the case. The father of the complainant-appellant was murdered during the dacoity as the accused-respondents knew that after closing the shop he was going to home. He further argued that although initially, no person was nominated in the FIR but during the investigation the accused-. respondents were arrested and on their pointation the belonging of the deceased was recovered i,e, wrist watch, which he was wearing at the time of occurrence. He contended that the recovery of the hatchet; the crime weapon, is strong evidence which has been totally overlooked by both the Courts below while passing the impugned judgments. The recovery of hatchet was made in the presence of Muhammad Ishtiaq and Farooq who are independent witnesses of the occurrence and the recovery of the hatchet is corroborated by the medical report. According to the medical report, the injury was caused with a sharp edged weapon. He further contended that the statement of the accused in the police custody is admissible when the fact is recovered under Article 40 of Qanoon-e-Shahadat Order, 1984 and defence side does not cross-examine the PWs, therefore, that is presumed to be admitted. The learned counsel submitted that another piece of evidence is the recovery of sweater which was worn before the occurrence by one of the accused.
He further argued that the accused while recording their statements under Section 342, Cr.P.C. before the Court have not specifically denied the recovery made on their pointation. He drew the attention of the Court towards the last para of the challan report.
5. Raja Ghazanfar Ali, the learned Advocate-General, who appeared on behalf of the State, has argued that although it was a blind murder, however, the recovery of writs watch and hatchet connect the accused with the case. The same were recovered at the instance of accused and this evidence cannot be ignored lightly. No mala fide came on the record against the PWs to falsely implicate the accused. The recovery of the receipts at the place of occurrence itself shows that the accused-respondents were involved in the case. They murdered the deceased while committing the dacoity.
6. Syed Hazoor Imam Kazmi, the learned counsel for the accused-respondents, has strongly supported the judgments of both the Courts below while stating that both the Courts below have thoroughly examined the prosecution evidence and came to the conclusion that the prosecution has badly failed to prove the case against the accused-respondents and no interference is called for by this Court. He further argued that the credibility of the prosecution witnesses is doubtful as one of the witnesses remained involved in a murder case although he was acquitted of the charge later on. The witnesses who appeared before the Court do not fall in the definition of `Adil'. A fake recovery of the articles has been made by the prosecution just to strengthen the case. He further argued that the injuries found on the body of the deceased were in the shape of crescent, whereas the Doctor has categorically stated in his statement that such like injury cannot be inflicted by an hatchet. He referred to the opinion of the Doctor which reads as under: The cause of death was fatal head injuries inflicted with a relatively heavy weapon with sharp splitting edge having slightly curved edge. The manner of death was homicidal."
He also contended that it reveals from the Roznamcha that at the relevant time of the recovery, the police officials were on the duty at some other place which itself shows that all the recoveries were affected at the Police Station and the memos were also prepared there. He further argued that the receipts, on which the prosecution relies, remained laying on the open place and during that period the heavy raining was reported there, therefore, such like recoveries cannot made the basis for conviction. He lastly argued that it is also part of the record that a Danda' was recovered, whereas no such injury caused by `Dunda' was found on the body of the deceased. He relied upon the case law referred to by him before the two Courts below...
7. We have heard the arguments and perused the record minutely with the help of both the learned counsel for the parties. It is admitted that originally no one was nominated in the FIR as no one has seen the occurrence and it was a blind murder. However, during the investigation the accused were arrested. The prosecution case is based on the following evidence:--
(i) recovery of hatchet Ex. 'PJ'
(ii) a wrist watch Ex. TB'
(iii) a vest Ex. 'PL'
(iv) last seen evidence and,
(v) circumstantial evidence.
8. 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 person to death merely on the circumstantial evidence provided that in a case resting on a 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 and if not then no conviction could be maintained or awarded to an accused.
9. While keeping in mind the above said principles we scanned the evidence available on the record. The most important witness of this case through which the accused were tried to link with the offence is the recovery of hatchet which has been recovered vide recovery memo Ex. `PA', which was allegedly recovered on the pointation of Syed Saqib Shah, accused-respondent, in the presence of Ishtiaq and Farooq. Admittedly, the recovery has been affected from the populated area but no independent witness was associated at the time of recovery. Both the recovery witnesses were admittedly close relatives of the deceased. Although, testimony of a related witness cannot be discarded merely on the basis of relationship, however, each case has to be decided on its own merits. The recovery has not been corroborated by the medical evidence as the Doctor has stated in his statement that such like injury could not be inflicted by the hatchet which itself makes the recovery doubtful. According to the Doctor, the injuries were in shape of crescent and those could not be inflicted by an hatchet. While examining the recovery along with the statement of Doctor, we can safely hold that the recovery of the hatchet is highly doubtful. One of the recovery witnesses also stated in his statement that there was no blood stained on the hatchet. The Shariat Court while passing the impugned judgment has taken care and while disbelieving the recovery given the strong and convincing reasons. It is also noticed by the Shariat Court that the recovery has been affected after 16 days of so-called incident. In this regard no plausible explanation has been brought on the record. The Shariat Court has rightly relied upon a case reported as Mujahid Hussain vs. The State [1985 SCM R 1573]. While keeping the law laid down by the Apex Court of Pakistan in mind, the Shariat Court has rightly come to the conclusion that there was no occasion for the accused to keep the weapon of offence with him for more than 15 days while there was sufficient time for the accused to dispose of or destroy the same. It is admitted position that both the recovery witnesses are closed relatives of the deceased, therefore, the possibility cannot be ruled out that they were interested witnesses. Even otherwise, the medical evidence does not support the version of the prosecution as stated by the Doctor. In view of the statement of the Doctor that such like injury could not be caused by the hatchet itself make the recovery doubtful. Although, the injuries have been caused by some sharp edged weapon but in view of the statement of the Doctor, they were not caused by the hatchet. It is settled that the benefit of slightest doubt arising in the case goes in favour of accused. Our this view finds support from the cases reported as Kareem Dad vs. Zaheer and another [2004 SCR 36], Saghir Ahmed vs. Zulfiqar Ahmed and another [2006 SCR 228] and Abdul Khaliq vs. State and another [2010 SCR 402].
10. So far the recovery of the stick (Dunda) from the place of occurrence is concerned, the Shariat Court in Para 19 of the judgment has dilated upon the issue while examining the statements of the recovery witnesses of the stick and the statement of the investigating Officer and held that both are contradictory in nature. Their statements are not in line or consistent to each other, therefore, their evidence could not be made basis for conviction. There is another important aspect of this recovery that according to the medical report there were 4 injuries inflicted with the sharp edged weapon and there was no other injury found which was caused by some stick (Dunda) on the body of the deceased, therefore, the statements of recovery witnesses of stick (Dunda) are not believable and the same have rightly been disbelieved by both the Courts below.
11. Another important evidence through which the prosecution tried to link the chains of commission of offence is the recovery of wrist watch. No description of any sort with regard to wrist watch was brought on the record by any of the PWs. Even, the same has not been mentioned in the FIR that at the time of occurrence he was wearing any sort of wrist watch and if he was wearing so what was its description. Such like wrist watch could be purchased from the bazaar, therefore, such piece of evidence seems to be invented later on to strengthen the case of the prosecution.
12. While dealing with the other PWs., the Shariat Court has rightly observed that the PWs., namely, Munir, Javed and Basharat are close relatives of the deceased. Out of them, two are the sons of the deceased and one is the brother of the deceased, as such they are interested witnesses. It is also part of the record that the recoveries were also affected after 15 days of the arrest of the accused and in this regard no plausible explanation has been brought on the record. Such like recoveries have rightly been declared as doubtful.
13. Coming towards the last seen evidence, it may be observed that it is settled principle of law that the same is also one of the weakest type of evidence and cannot be relied upon without strong corroboration. Maqbool PW, is the witness who is alleged to have last seen one Sharafat Ali, accused-respondent, while wearing sweater on 24.12.2004 i,e, before the occurrence, whereas he disclosed this fact on 9.1.2005, i,e, 16 days after the occurrence. It is also surprising aspect that the sweater has also been recovered from the place of occurrence. It was night of the December which happens one of the coldest night. Nobody can think that the accused could put off his sweater and leave the same on the place of occurrence so that he could easily be traced out and arrested.
14. Furthermore, two PWs, namely, Maqbool and Khurshid have been cited as witnesses in the calendar, who have last seen the accused. Both these witnesses in their statements under Section 161, Cr.P.C., admitted that on the day of occurrence, they remained associated with the investigating agency but surprisingly their statements were recorded after a period of seven days and they did not disclose this fact immediately after the occurrence which creates some doubt that why these witnesses remained mum for such a long period.
15. It is celebrated principle of law that if the trial Court acquits an accused and the Shariat Court maintains the acquittal order, the same cannot be set aside except some very strong and compelling grounds are brought on record. After acquittal the accused enjoys the double presumption of innocence as laid down in a case titled Ghulam Rasool & another vs. The State & another [2011 SCR 324] in which it has been observed as under: "We have also considered the arguments of counsel for the complainant in respect of acquitted accused. The trial Court acquitted the accused and the Shariat Court maintained the acquittal order. The acquittal order passed in favour of an accused has double presumption of innocence.
After considering all the evidence, we are unable to agree with the argument of the counsel for the complainant."
The evidence relied upon the prosecution which is based on the recovery of the hatchet Ex. `PJ' wrist watch Ex. `PB' and vest Ex. 'PL', does not connect the accused-respondents with the crime as those have been recovered after a considerable delay, which creates a serious doubt in prosecution story. It is settled principle of law that once the case has been set up the whole responsibility lies on the shoulders of the prosecution to prove it. Even a slightest doubt is sufficient to acquit an accused, whereas in the case in hand, a number of doubts are created. It is the celebrated principle of law that the Courts are always reluctant to interfere with the acquittal orders. No misreading or mis-appreciation of evidence is pointed out warranting the interference by this Court. Under law, the credibility of a witness is to be looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. This view finds support from a case titled Muhammad Khan us. Maula Bakhsh & another [1998 SCM R 570], wherein it has been held as under: "We do not, therefore, find any justification to interfere with the impugned order of acquittal for which standards to appraise the evidence are quite different from those laid down for an appeal against conviction."
It is an established principle of law that on the examination of the order of acquittal as a whole credence should be accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the crime. An order of acquittal can only be interfered with if the same is found unreasonable, perverse and manifestly wrong. The obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of dduble innocence of the accused is attached to the order of acquittal as laid down in a case titled Munawar Shah us.
Liaquat Hussain & others [2002 SCM R 713] wherein it has been held as under: "9. Be that as it may, the ordinary scope of petition or appeal against acquittal of the accused/respondents is considerably narrow and limited. On the examination of the order of the acquittal as a whole credence should be accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the crime. It is an established principle of law that obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from that against acquittal because presumption of double innocence of the accused is attached to the order of acquittal."
In the light of what has been discussed above the order of the acquittal passed by the trial Court and was upheld by the Shariat Court is based on correct appreciation of evidence and does not warrant interference in appeal. The same can only be interfered if it is found perverse, unreasonable, arbitrary or manifestly wrong, whereas no such element is available in this appeal.
The complainant-appellant failed to point out any mis-reading or non-reading of evidence which has not been dealt by taking into consideration by the two Courts below, while passing the impugned judgments. Resultantly, this appeal has no force, the same is dismissed.