CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal has arisen from the judgment of the Shariat Court dated 24.2.2010, whereby the appeal filed by Imran Khan, complainant against the judgment of District Criminal Court Kotli dated 14.11.2005, has been dismissed.
2. The relevant facts briefly stated are that on 24.1.2002, Maqsood Begum, P.W.1 lodged a report in shape of statement at Police Station Narr at about 4% a.m. after midnight, wherein she averred that she is resident of Chafloti Kajlani, Tehsil and District Kotli. She averred in her statement that her two daughters Sabina Begum and Nagina Begum were sleeping in a room of the house. Her husband, Muhammad Khan alongwith servant, Zaffar was sleeping in the veranda whereas she was sleeping on the other side of the veranda. At about 2 a.m. she woke up on hearing someone walking. The lights were off. She saw that 3/4 unknown persons were dragging her husband towards the stairs.
She raised hue and cry for help that some unknown persons have killed her husband. In the meantime, one of the accused-persons shot at her husband, Muhammad Khan (deceased) with a lethal weapon which hit him at the left side of the chest. The accused persons ran away from the place of occurrence through stairs. On listening the sound of fire, hue and cry, her daughters came out from the room and other residents of the locality also reached on the spot. Her husband was put on the cot and was found dead. She stated that there was no enmity of her husband with anybody. The dead-body is lying in the civil hospital Narr. She requested the Police for registration of case.
3. On this report, an F.I.R No. 7/2002, against unknown persons for commission of the offences under sections 302/34, A.P.C., was registered. Thereafter, the Investigating Offer went to the Rural Health Centre and started necessary investigation. After the post-mortem, the dead-body was handed over to the heirs. The Police collected necessary circumstantial evidence and after recording the supplementary statement of the complainant, the police arrested the accused-respondents. On the pointation of Mubeen Khan 12-bore gun (Repeater) was recovered. Another Rifle 222-bore, unlicensed was also recovered on the pointation of Sarfaraz whereas a 30-bore pistol was recovered from Shahid lqbal.
4: After necessary proceedings, the Police submitted challan before the Court of competent jurisdiction on 14.3.2002. The statements of accused under Section 242, Cr.P.C. were also recorded on 30.4.2002. They pleaded not guilty and claimed the trial. The prosecution was directed to lead evidence in support of its case. After the evidence produced by the prosecution, the statements of the accused-respondents were recorded under Section 342, Cr.P.C. on 12.9.2005. The accused- persons refuted the prosecution evidence and again reiterated their innocence.
5. After completion of the proceedings, the Trial Court acquitted the accused-respondents of the charge of murder vide judgment dated 14.11.2005. Feeling dissatisfied from the judgment of the Trial Court, the appellant herein filed an appeal in the Shariat Court which was dismissed through the impugned judgment, hence this appeal.
6. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the complainant-appellant argued the case at some length. After discussion of material facts of the case, he submitted that the acquittal order passed by the Courts below appears to be failure of the proper appreciation of the prosecution evidence. The prosecution has brought on record the evidence connecting every chain of the prosecution story to bring home the guilt of the accused-respondents. The Investigating Agency during investigation on 24.1.2002 prepared the mould of foot print obtained from the sight of occurrence which is a circumstantial piece of evidence directly connecting the accused with the commission of offence. Similarly, the witness has also been produced who identified the accused from the tune of his voice being well conversant with the accused as being operator of the Public Call Office, The most stressfully argued point is that the accused party entered into compromise with the complainant-party. The compromise was duly filed in the Court.
Sikander, the son of the deceased waived to his extent and compromised with the accused whereas the other legal heirs and the appellant refused to compromise. The statements were recorded by the Court in support of the compromise filed in the Court, thus, it was sufficient proof of the commission of the offence because compromise can only be effected when there is commission of offence. But this important piece of evidence has been ignored by the Courts below.
The impugned judgment is not maintainable. While accepting this appeal the accused respondents be awarded appropriate punishment according to law.
7. Conversely, Raja Muhammad Shafique Khan,Advocate, the learned counsel for the accused- respondents refuted the arguments of the learned counsel for the appellant and submitted that the Courts below have passed the acquittal order after proper appreciation of the material which is unexceptionable. The appellant has failed to point out any ground for interference of this Court.
He further submitted that according to the celebrated principle of law and administration of criminal justice, it is duty of the prosecution to prove its case beyond shadow of doubt whereas in this case, the prosecution has miserably failed to bring on record any evidence connecting the accused with the commission of the alleged offence. He submitted that so for as the argument of learned counsel for the appellant regarding compromise process is concerned, as neither the case has been decided on the basis of the compromise nor the same has been put as an incriminating piece of evidence to the accused while recording the statement under Section 342, Cr.P.C. Thus, the incriminating piece of evidence which has not been put to the accused cannot be read against him. Moreover, this argument has no substance as the Trial Court has not accepted any compromise or conducted the proceedings on the basis of compromise rather the Trial Court opted for recording the evidence of the prosecution. He further submitted that after acquittal, there is double presumption of innocence in favour of accused, hence, this appeal has no substance and is liable to be dismissed.
8. We have heard the arguments of learned counsel for the parties and also examined the record made available. Admittedly, according to the prosecution story, there is no direct evidence of the incident. The occurrence of incident remained unseen and un-witnessed. Same like, no one was nominated in the F.I.R. The report was registered against the unknown persons. After investigation, on the basis of some circumstantial and other evidence, the accused persons have been challaned.
9. We have also carefully examined the judgment of the Trial Court. The prosecution has enlisted 25 witnesses to prove the guilt of the accused but out of these, the prosecution has not succeeded to produce the witnesses namely, Anser Mehmood, Arfaq and Hidayatullah, who were left over and treated as unnecessary. Whereas the witnesses, Zafar lqbal, Sikander, Sabina, Nagina, Nazir Ahmed and Habeeb have also not been produced before the Court. Hence, ultimately, the prosecution evidence to the extent of these witnesses had been closed vide order dated 6.9.2005. Same like the other witnesses, i.e. chemical examiner and the Director Forensic Science Laboratory have also not been produced.
10. Another very important piece of evidence which also has broken the chain of prosecution story is negative report of the Forensic Science Laboratory, Exh. "PB" which clearly speaks that the alleged recovered crime empties have not been fired from the short gun allegedly recovered from the accused. The Trial Court has made deep appreciation of the evidence and the material in its true spirit and perspective. Nothing has been pointed out that in the judgment of the Trial Court, the material evidence has not been properly attended or appreciated. The evidence produced by the prosecution is neither of such standard to prove the case beyond shadow of doubt nor certainly connect the accused with the commission of the alleged offence.
11. As it has already been observed that there is no direct evidence. The whole case rests upon the circumstantial evidence but out of this circumstantial evidence, very important piece of evidence is the recovery of alleged crime weapons. The fire-arms expert's report shows that the recovered crime empty is not fired from the recovered gun which creates serious doubt upon the prosecution case. The main oral evidence brought forward by the prosecution is statement of the complainant, Mst. Maqsood Begum. It is also doubtful because the improvements made in her statement at different stages of the case in her statement has shaken the credibility of her statement.
12. Another aspect of the case which also cannot be over-sighted is, that the prosecution has failed to produce the material witnesses mentioned hereinabove including Sabina Begum and Nagina Bibi, daughters of the deceased who were shown as witnesses of the occurrence. Same like Zafar, servant of deceased was also shown as witness of occurrence and Sikander, the witness of previous conduct of the accused have not been produced by the prosecution. The non-production of these witnesses, especially when the case is one of circumstantial evidence lacking the direct evidence creates serious dent in the prosecution case. There is no other evidence, which certainly connects the accused with the commission of alleged offences.
13. According to the celebrated principle of administration of criminal justice, it is not safe to convict a person against whom the prosecution has not succeeded to prove the case beyond shadow of doubt. According to this universally celebrated principle of administration of criminal justice, it is primary duty of the prosecution to prove its case beyond shadow of doubt and benefit of doubt must have to be given to the accused. The concurrent findings recorded by the Courts below are based upon proper appreciation of the evidence which are according to the principle of law and administration of justice.
14. So far as the argument of learned counsel for the appellant regarding the compromise proceedings is concerned, the examination of the proceedings of the Trial Court reveals that on 2.10.2004, the complainant, Maqsood Begum stated before the Court that the attempts to effect a compromise are in progress. Subsequently, one of the heirs of the deceased, his son, Sikander, got his compromise statement recorded whereas a commission was also appointed for recording the compromise statements of the other legal heirs including the complainant but they refused to compromise. Thus, it appears that the story of compromise on refusal of complainant and other heirs came an end to its logical conclusion and thereafter, Trial Court opted for recording of evidence to dispose off the case on merits. If for the sake of argument, contention of the learned counsel for the appellant is considered that the compromise proceedings are part of the record and the same can be considered for passing the conviction order against the accused, even then, there is still another obstacle which has to be faced by the prosecution as the compromise proceedings have not been put to the accused while recording the statements of accused under Section 342, Cr.P.C. According to the celebrated principle of law, any incriminating piece of evidence which has not been put to an accused for explanation, cannot be read against him for passing the conviction order.
15. In view of the peculiar facts of the case and the nature of the prosecution evidence, well- reasoned judgment has been recorded by the Trial Court which has been concurred by the Appellate Court. Therefore, we do not feel any necessity of any detailed discussion of the evidence or recording of unnecessary detailed judgment.
As the prosecution has not dischdrged its duties to prove the case beyond shadow of doubt, the acquittal order has rightly been passed which do not suffer from any illegality or infirmity, therefore, finding no force, this appeal stands dismissed.