RAJA SAEED AKRAM KHAN, J. --- The supra appeal has been addressed against the judgment of the Shariat Court dated 10.02.2009, whereby the appeal filed by Sultan Mubashar Saideen, accused- respondent for acquittal has been accepted, whereas, the appeal filed by the complainant has been dismissed and the murder reference submitted by the Trial Court has been refused.
2. Brief facts of the case are that a case under sections 302/324/337/447/34, and 506, APC, was registered against the accused-respondents at police station Afzalpur, on the complaint of Raja Zamin Abbas. It was reported that the complainant is resident of village Mehmoon Pur. He constructed a wall over his own land. On 03.01.2004, at 8 a.m., Saideen s/o Akbar Ali and Subteen s/o Javed, armed with lethal weapons came there and started to demolish the wall. The complainant tried to stop them, upon which they started abusing and beating him. On hue and cry, complainant's uncle Subedar Masood Ahmed, aunt, Jamshid Begum, Raja Shabbir Ahmed Khan and Asad Masood came there and asked the accused-respondents to refrain from demolishing the wall. The accused-respondents also attacked them. Accused-respondent, Saideen fired with 12-bore gun which hit Mst. Jamshid Begum at her face and neck, whereas, the fire made by Subteen hit her chest and other parts of the body. She fell down and succumbed to the injuries. The accused-respondents also attributed firing on the complainant, his uncle and Asad Masood, but they saved themselves by hiding under a wall. The occurrence was stated to be witnessed by Masood Ahmed Khan, Asad Masood, Shabir Ahmed Khan and other residents of the locality. Motive was shown previous enmity due to dispute over a piece of land and the involvement of the accused-respondents in illegal business of Narcotics.
3. After registration of the case, the matter was thoroughly investigated by the police and challan was presented in the District Court of Criminal Jurisdiction, Mirpur. On completion of the trial, the learned Trial Court vide judgment dated 29.06.2007 convicted the Sultan Mubashar Saideen, accused-respondent, and awarded him death sentence under Section 302(b), APC and 6 months' imprisonment under the Arms Act, 1965, whereas, the accused-respondent, Sultan Mazhar Subteen, was acquitted of the charge.
4. Feeling aggrieved from the judgment of the Trial Court, both the parties filed separate appeals before the Shariat Court. The accused-respondent, Sultan Mubashar Saideen, filed appeal for acquittal, whereas, the complainant filed appeal against the acquittal order of the accused- respondent, Sultan Mazhar Sabteen. Moreover, the Trial Court also submitted a reference before the Shariat Court for confirmation of the death sentence awarded to the accused-respondent, Sultan Mubashar Saideen. The learned Shariat Court vide impugned judgment dated 10.02.2009 accepted the appeal filed by Sultan Mubashar Saideen, accused-respondent for acquittal, whereas, dismissed the appeal filed by the complainant and the murder reference submitted by the District Court of Criminal Jurisdiction, Mirpur was refused. Hence, the instant appeal filed by the complainant.
5. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the complainant-appellants argued that the learned Shariat Court has committed a grave miscarriage of justice while acquitting the accused of the charge. He further contended that the learned Shariat Court while passing the impugned judgment ignored the overwhelming evidence available against the accused- respondents. He contended that the learned Shariat Court has also not.Taken into account the provision of section 34, APC. He submitted that all the prosecution witnesses made their statements in line with each other and fully supported the prosecution version. He contended that it was a case of direct evidence, but this aspect of the case has been overlooked by the learned Shariat Court. He further contended that both the accused were armed with fire-arm weapons and the same have been used in the occurrence. He submitted that a strong motive was established by the prosecution that the whole occurrence took place in the result of a dispute over a wall constructed by the complainant-appellant in front of his house. The accused-respondents tried to demolish the said wall due to which the harsh words were exchanged between the parties. On this, the accused-respondents flared up and murdered one Jamsheed Begum in the presence of Subedar Masood Ahmed, her husband, Shabir Ahmed Khan and Asad Masood. He added that Jamshed Begum only asked the accused-respondents not to demolish the wall, on this, they fired upon her in the result of which she died. He added that F.I.R. Was promptly lodged therefore, no question of false implication of the accused arises. He further added that the learned Trial Court appreciated the evidence according to the settled norms of justice and rightly came to the conclusion that the prosecution has succeeded to prove the case against Mazhar Saideen, accused, which has been upset by the learned Shariat Court without assigning any reason.
However, the learned Trial Court was not justified to acquit the accused-respondent No. 2 as on the strength of the same evidence accused-respondent No. 1 was convicted by the Trial Court. The learned Shariat Court instead of setting aside the acquittal order of accused-respondent No. 2, acquitted both the accused. In this way, a grave illegality has been committed by the learned Shariat Court. He contended that it is a case of pre-planning, that is why, the accused-respondents came at the scene of occurrence armed with lethal weapons to demolish the wall newly constructed by the complainant. He submitted that finding of the learned Shariat Court that no proof of ownership or possession of complainant regarding the land on which the boundry wall was constructed came on the record, is bad in law as in Abadi Deli, no place or site was entered in the record regarding specific ownership, rather the possession by itself was proof of one's ownership. He added that all the witnesses were held Adil in Tazkia-tul-Shahood by the Muzakki. He submitted that the ocular evidence was fully corroborated by the medical as well as the other circumstantial evidence. The recoveries were made in accordance with law, but the learned Shariat Court failed to consider all these aspects of the case. He maintained that mere relationship per se is no ground to discard the testimony of the witnesses until some or animosity is proved. All the PWs are independent in nature, therefore, the Trial Court rightly believed the same. He submitted that defence failed to point out any material discrepancy in the prosecution evidence.
He contended that the prosecution fully succeeded to prove the case through oral as well as documentary evidence. He lastly argued that in presence of un-rebutted evidence, there was no occasion to disbelieve the occurrence, therefore, the findings recorded by the Shariat Court are perverse, arbitrary and shaky in nature. He has relied upon the cases reported as Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2001 SCR 240], Zahir Hussain Shah v. Shah Nawaz Khan and 3 others [2000 SCR 123] and Muhammad Ramzan v. The State [1996 SCR 336].
6. On the other hand, Chaudhry Muhammad Reaz Alam, Advocate, the learned counsel for the accused-respondents strongly supported the impugned judgment while submitting that the same is perfect and legal. He submitted that the learned Shariat Court has rightly came to the conclusion that no evidence was available against the accused-respondents and in absence of that no conviction could be recorded. He further submitted that the whole prosecution story is doubtful, whereas, according to the settled principle of law a slightest doubt must go to the accused being a favourite child of law. He added that the learned Trial Court has committed grave illegality while recording the conviction against accused-respondent No. 1 as on the strength of the same evidence the other accused was acquitted of the charge. The learned Shariat Court has rightly set aside the conviction order recorded by the Trial Court. He submitted that the whole evidence of the prosecution is contradictory in nature which cannot be believed without strong corroboration. He maintained that all the prosecution witnesses are interested as they are close relatives. The evidence of such-like witnesses cannot be believed. He contended that the occurrence took place in a thickly populated area in the morning hours, but no independent witness was cited from the locality which itself makes the case doubtful. He further contended that according to the prosecution story, the occurrence took place over a dispute among the parties regarding the demolishing of a newly constructed wall belonging to the complainant-appellant, whereas, the prosecution has badly failed to prove that the land upon which the wall was constructed, was owned by the complainant-appellant. In absence of that. The story of the prosecution cannot be believed. He submitted that it is proved from the record that except the residential house no other property in the area is owned by the complainant-appellant. He submitted that on the day of occurrence, the police raided the house of the accused, seized the weapons of offence, other incriminating articles and also registered a case under the relevant provisions of law. The concerned Court proceeded with the matter and after conclusion of trial dismissed the case which shows that all the proceedings were fake in nature. Moreover, at the time of arrest of the accused- respondents, the recovery of fire-arm weapons alleged to have been used in the occurrence, was also made at their instance. It is highly doubtful that at the time of seizure of weapons, on the day of occurrence, how the recovery of some weapons was left by the police and later on shown to have been recovered at the instance of the accused-respondents. He further submitted that two reports of ballistic expert have been placed on record which are contradictory in nature and do not support the prosecution's version. It appears that such reports have been manoeuvered for false implication of the accused-respondents. While attacking the medical evidence he stated that the same is fabricated. The report was given after a considerable delay by the doctor on the direction of another doctor who was neither conducted the autopsy nor happened to be a member of the team who conducted the post-mortem. He further submitted that the doctor who signed the post- mortem report was not produced in the Court. The doctor who subsequently made the report stated that she was not in the knowledge of the fact that she had to submit the report. She also stated that she had no notes with her, thus, she submitted the report with the assistance of another doctor, who was not member of the team who conducted the post-mortem. In this way, the medical evidence is highly doubtful. He contended that the prosecution failed to offer any sort of explanation to the effect that in spite of the presence of complainant on the spot, he did not sustain any injury, as the complainant-appellant has alleged the enmity with the accused- respondents, therefore, the stance taken by the complainant in this regard does not appeal to a prudent mind. He maintained that according to the prosecution version, the complainant's mother died two days prior to the occurrence and the relatives and family friends visited his house for offering Fateha, but none of them was cited as a witness. He submitted that once the acquittal order has been passed by the Court of competent jurisdiction, the same cannot be interfered with unless the judgment is found capricious, arbitrary and fanciful, whereas, no such elements have come on the record in the present case. In absence of that, interference by this Court is not warranted under law as the accused after acquittal enjoys the double presumption of innocence.
He strongly argued that on the day of occurrence, due to cloudy weather, there was extreme fog and visibility was zero, nothing could be seen even from a distance of two or three yards. Therefore, the stance of the prosecution that witnesses saw the accused while firing from a distance of 60/63 yards is not possible. He submitted that no one has seen the occurrence, hence, it is a case of unseen occurrence. He added that it is alleged by the complainant that the accused-respondents were involved in the illegal business of Narcotics. The complainant always tried to refrain them, from doing that due to which they became annoyed. He added that when a specific motive has been established by the complainant, then it was obligatory for him to prove the same, but he has failed to do so. He further added that another plea was taken by the complainant regarding ownership of the disputed wall, but he failed to bring on record any document in this regard. He stated that no articles were taken from the place of occurrence and the Patwari has also supported the defence version. All the PWs stated that the whole proceedings against the accused-respondents have been initiated on the arrival of Raja Zamin which shows that at the time of occurrence, he was not present at the scene of occurrence. Moreover, Raja Zamin was Headmaster in a school and record shows that he was on duty on the relevant day. In this regard, he has relied upon the document, Exh.DF. He submitted that admittedly, the dead-body was removed from the place of occurrence, but no such explanation has come on the record that why the dead-body was lifted from the place of occurrence which itself shows that the place of occurrence is not the same as has been mentioned in the FIR. He submitted that all the evidence is full of padding which has been made just to strengthen the case. The important prosecution witness, i.e., DSP Riaz Ahmed Abbasi, was not produced in the Court by the prosecution, therefore, adverse inference can be drawn that the prosecution was under the impression that in case of his appearance the truth might have come on the record. He stated that the report of Forensic Science Laboratory is also disbelieved by both the Courts below which further makes the prosecution case doubtful. He has relied upon the cases reported as Muhammad Akram v. State [PLD 2012 SC 234], Gamoon and others v. State [PLJ 2012 Cr.C. (Karachi) 236], Niaz Ahmed v. The State & 2 others [2008 SCR 326] and Mian Talib Hussain v. State [1992 SCR 120].
7. Mr. Muzaffar All Zaffar, the learned Additional Advocate-General, also adopted the arguments advanced by the learned counsel for the complainant and submitted that it is a broad day light occurrence in which the FIR was promptly lodged, therefore, the question of substitution of the real culprit does not arise. He added that the judgment of the Trial Court is well-reasoned which has wrongly been disturbed by the learned Shariat Court without assigning any reasons.
8. We have considered the contentions raised by the learned counsel for the parties and also examined the record alongwith the impugned judgments through which the accused-respondents have been acquitted of the charge while giving the benefit of doubt. Law is almost settled on the point, that once acquittal order has been passed after due appreciation of evidence, there must be strong and overwhelming reasons to interfere with the same. In this regard, the superior Courts have laid down the principles of law in respect of the powers of the Courts to convert the acquittal into conviction. The parameters for interference in the appeal against acquittal and conviction are different as in the case of acquittal, the presumption of double innocence of the accused is attached to the order of acquittal. Reliance can be placed on a case reported as Munawar Shah v.
Liaquat Hussain & others [2002 SCMR 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."
Moreover, the acquittal order cannot be set aside in routine, as it is like to get a liberated bird who had flown away towards the limitless space and free air, back into the cage. This liberty is based on sound judicial principles of appreciation of evidence. It is recognized phenomenon of criminal jurisprudence that until the accused is found guilty, he has to be considered innocent. It is the duty of the prosecution to bring home the guilt of an accused person beyond reasonable doubt. Benefit of a slightest doubt must be granted to the accused as a matter of right and not grace. While dealing with the case in which the acquittal order has been passed, the Courts can only interfere with if after appreciation of evidence, the Courts come to the conclusion that the acquittal order is fanciful, perverse, arbitrary and resulted into miscarriage of justice. Reliance can be placed on a case reported as Shahid Abbas v. Shahbaz and others [2009 SCMR 237], wherein it has been held that:--- "It is now well-settled that there are different parameters for interference in an appeal against acquittal and appeal of conviction. In case of acquittal the presumption of innocence of the accused becomes doubt. The Supreme Court would not interfere unless the conclusion rendered by Courts below was such that no reasonable person would conceivably reach the same and grounds given by High Court are not supportable from the evidence on record, moreover, in case of acquittal Supreme Court only interferes to avoid grave miscarriage of justice and when judgment of acquittal is perverse, capricious or arbitrary as laid down by this Court in the case of Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928."
Similar view has been taken in a case reported as Ali Muhammad v. Muhammad Akram and another [2014 SCR 351], wherein it has been observed as under:--- "10. It is also apparent from the record that the accused and complainant are the real brother and there is a dispute over a piece of land between them. Therefore, possibility of false implication cannot be ruled out. As both the Courts below disbelieved the ocular account furnished by the prosecution and we are also convinced by the reasons recorded by both the Courts below while acquitting the accused, therefore, we are not inclined to discuss other pieces of evidence as the same have only the corroborative value. It is settled principle of law that until an acquittal order is found perverse, arbitrary and fanciful that cannot be interfered with."
In view of the guidelines provided in the supra cases, we intend to examine the evidence produced by the prosecution. In the case in hand, the prosecution has setup the story that accused- respondents trespassed and started demolishing newly constructed wall in front of the complainant's house. The complainant asked the accused-respondents not to demolish the wall, on which the accused-respondents started abusing and beating him. On hue and cry, Mst.
Jamshed Begum followed by Subedar Masood Ahmed, Shabir Ahmed Khan and Asad Masood appeared on the scene and asked the respondents not to demolish the wall. Upon this, the accused-respondent, Saideen fired with 12 bore gun which hit Mst. Jamsheed Begum at her face and neck while the fire made by the accused-respondent Subteen hit at her chest and other parts of the body. She fell down and succumbed to the injuries.
9. The FIR was lodged on the instance of Raja Zamin Abbas, who is a Headmaster by profession. The day of occurrence was not a public holiday. According to the averments of FIR, occurrence took place in the morning time when usually, Zamin Abbas had been gone to attend his professional engagement in the school. The defence took the stance that complainant-appellant did not saw the occurrence and his presence on the spot at the relevant time is doubtful. The prosecution failed to bring anything on the record to prove that on the day of occurrence, he was on leave. We have examined this fact in the light of evidence brought on record, but we failed to find out anything that on the day of occurrence, he was on leave or went to school in late hours. According to the school record brought on record regarding leave availed by the complainant, the day of occurrence is not included, thus, the same supports the version of defence.
10. Another important aspect of the case is that the dead-body was removed from the scene of occurrence. The explanation furnished by the prosecution in this regard is that after receiving fire- arm shots she was still alive, therefore, the paramount consideration was to save the life of the injured while bringing her to the hospital. We have examined the record in this regard. According to the statement of the complainant-appellant, the victim died on the spot. The relevant portion of the statement reads as under:- This piece of evidence cannot be ignored lightly as the whole case rests on the same. After going through the above-said statement, it appears that the stand taken by the defence that the scene of occurrence is not the same which has been narrated in the FIR, has substance. Moreover, no bloodstained earth clay has been taken from the spot which also strengthens the defence version.
Thus, the explanation offered by the prosecution is not convincing in nature.
11. Moreover, it is spelt out from the record that the mother of the complainant-appellant died two days prior to this occurrence. A number of persons from locality and other areas came there to offer Fateha. According to the prosecution story, at the time of occurrence, a number of persons was sitting there, but no one has been cited as a witness which also shows that the scene of occurrence is not same as stated by the prosecution. In this regard, no explanation has been brought on record that why the persons present there at the time of occurrence were not cited as witness and whether they were not willing to come forward and appear as witness or not. In this regard, reliance can be placed on a case reported as Zabir Maqsood alias Kashif Maqsood v. The State through Advocate-General, AJ&K, Muzaffarabad and another [2013 SCR 642], wherein it has been observed that:--- "23. The defence has challenged the testimony of eye-witnesses on the ground that independent witnesses were available on the place of occurrence. Only related witnesses have been produced and independent witnesses have been left. It is on record that the witnesses are related to the deceased and also inter-se related. The complainant and the S.H.O. Admit that the other witnesses were present at the place of occurrence but none of the independent witnesses has been cited as a witness or produced by the prosecution. We also agree with the contention of the learned counsel for the prosecution that the prosecution is not bound to produce each and every witness but in a murder case where independent witnesses are present and they are not produced but only related witnesses are produced, the testimony of such witnesses has to be scrutinized with great care and caution."
12. After examining the above two important aspects of the case we are not convinced with the argument advanced by the learned counsel for the complainant-appellants that the place and manner of occurrence are admitted, as same is not supported by any evidence, thus it creates serious doubt in the prosecution story, therefore, we are justified to gather the opinion that the true story has not been brought before the Court and the case has been invented to implicate the accused-respondents in the case.
13. We are also convinced with the argument advanced by the learned counsel for the accused- respondents that main enmity of the accused-respondents which has been alleged in the FIR was with the complainant-appellant. In this way, there was no occasion to kill a lady who has no enmity or played any role in the occurrence. According to the prosecution version, she tried to cool down both the parties, Furthermore, the complainant-appellant was also shown to be present on the spot, but the prosecution failed to prove his presence at the place of occurrence.
14. As we have observed in the preceding para that every possible doubt arising out of the prosecution ;tory must go to the accused being a favourite child of law, whereas. In this case, there are many doubts. Reference can be placed on a case reported as Abdul Khaliq v. State and another [2010 SCR 402], wherein it has been observed that:- "It is celebrated principle of law that doubt, if any, which arises in the case, shall go in favour of accused...... "
This view is further fortified from a case reported as Ali Muhammad v. Muhammad Akram and another [2014 SCR 351], wherein it has been observed that:- "8. After going through the statements, which have also been taken into consideration by the learned Shariat Court, while passing the impugned judgments, it is evident that the Trial Court has rightly observed that the said Sabir Hussain, shopkeeper, P.W-3, who 'categorically denied the presence of the co-accused made the case doubtful. It is settled principle of law that a slightest doubt must go to the accused."
15. Although, we are convinced that the prosecution story is not free from doubt even then we are intended to examine the other piece of evidence in a cursory manner. One of the prosecution witness, i.e., ,DSP, Riaz Ahmed Abbasi, who summoned by the Court on the application of the defence, appeared in the Court and made statement in the following manner:- {{Urdu Text}} Initially. The prosecution has given up the said witness and failed to produce him before the Court, however, the said witness was summoned by the Court on the application of defence. The said witness admitted in his statement that two reports of Forensic Science Laboratory were placed on record. In such-like situation, the Court was fully justified to draw the adverse inference under Article 129 (g) of the Qanoon-e-Shahadat Order, 1984. Reliance can be placed to an unreported judgment of this Court titled Muhammad Azam v. Pervaiz All and others (Criminal Appeal No. 45 of 2012, decided on 05.12.2013), wherein it has been observed that:- "10. According to the practice, common sense, and prudence, the most relevant report in this regard can be the report of radiologist. The prosecution has failed to bring on record this important piece of evidence. Due to withholding of the X-Ray sheet and its report despite being available, legally under the provisions of Article 129 of the Qanoon-e-Shahadat Order, 1984, inference can be drawn against the party who withheld the evidence. This Court in the case titled Muhammad Banaras v. The State [2008 SCR 552], on the ground of non-availability of the chemical examiner's report extended the benefit of doubt to the accused."
16. While examining the post-mortem report, it appears that the same was submitted after a considerable delay. The post-mortem was conducted on 03.01.2004, whereas, the report was prepared on 24.01.2004. The explanation furnished by the lady doctor is that it was not in her knowledge that she had to submit the report. Later on the Medical Superintendent, District Headquarter Hospital, asked her to prepare the same. Moreover, she stated that she sought help from another doctor who was not member of the team, which conducted the post-mortem. The relevant portion of her statement reads as. Under:- {{URDU TEXT}}
17. While adverting to the argument of the learned counsel for the accused-respondents that on the day of occurrence, the police raided the house of the accused-respondents, seized the weapons of offence, other incriminating articles and also registered a case under the relevant provisions of law, after arrest of the accused-respondents, the recovery of fire-arm weapons claimed to have been used in commission of offence was also made at their instance, makes the recovery doubtful. It is also spelt out from the record, that on the fateful day, the police raided the house of the accused-respondents and recovered the weapons and registered a case against them. Whereas, as per prosecution story, on the arrest of the accused-respondents the weapons of offence were recovered on the pointation of the accused-respondents from their house. In this regard, we agree with the finding of the learned Shariat Court that if the weapons were to be secured from the house, then why at first instance the police failed to seize the same from there. In our estimation, this part of the prosecution story is shrouded in mystery.
What has been discussed above we are of the view that the learned Shariat Court has not committed any illegality while extending the benefit of doubt to the accused-respondents. The prosecution has failed to fulfill its obligations to prove the case beyond reasonable doubt. While keeping in view the criteria/parameters determined by the Superior Courts for interference in the acquittal order, i.e., the elements of perversity, fanciful and arbitrary are not found in this case for interference in the impugned judgment. Resultantly, this appeal having no force stands dismissed.