CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal has been directed against the consolidated judgment of the Shariat Court dated 16.2.2006, whereby the appeal filed by accused-respondent has been accepted and he has been acquitted of the charge, whereas the counter appeal filed by the complainant for enhancement of sentence awarded to the accused-respondent, has been dismissed.
2. The relevant facts involved in the instant appeal are that a case for commission of offences under Sections 302 and 34, A.P.C., was registered against the accused-respondent, Muhammad Fayyaz and his father Muhammad lqbal, at Police Station, Afzalpur, on the complaint of Ch. Javed lqbal, father of the deceased. It was reported that the complainant and his family are British Nationals. They are residing in U.K. Shagufta Nazli, the daughter of the complainant-appellant was married to the accused Fayyaz Ahmed, 6 years prior to the occurrence. During this period, she gave birth to two kids. The spouses were not enjoying good relations for the last sometimes clue to which the alleged victim left Pakistan to live with her parents. On this, the accused-respondent and his father threatened the appellant's relatives for serious corollary and to divorce Mst. Shagufta Nazli, Upon this, the complainant-appellant sent back his daughter to live with her husband. On the intervening night of 27th/28th March, 2005, the complainant-appellant came to know that his daughter has died. He came back to Pakistan. It was alleged that the accused-respondent and his father while hatching conspiracy, administered the poison to his daughter and did not inform him or his other family members about her death. It was further alleged that without informing the Police and conducting the post-mortem, the accused-respondent and his family tried to bury her which is the proof of their guilt. The dead-body was taken into custody by the Police and post- mortem was conducted. It was further alleged that the accused are habitual criminals and they have killed his daughter. According to the complainant-appellant's version, he was aware of the unpleasant relations between his daughter and son-in-law.
3. After completion of investigation, a challan for commission of offences under Sections 302 and 337, A.P.C. was presented in the District Criminal Court against the accused-respondent, however,.
Muhammad lqbal the father of the accused-respondent was given benefit under Section 169, Cr.P.C. The charge was framed against the accused-respondent on 22.8.2005. He pleaded not guilty and the prosecution was ordered to lead evidence in support of its case. Nineteen (19) witnesses were produced before the Court in support of the prosecution case. After conclusion of trial, the District Criminal Court arrived at the conclusion that the prosecution succeeded in proving its case against the accused-respondent. The accused was convicted under Section 302, A.P.C. and awarded 25 years' rigorous imprisonment. Dissatisfied from the judgment of the District Criminal Court, the parties filed separate appeals in the Shariat Court. The accused-respondent challenged the conviction awarded to him, whereas, the complainant requested for enhancement of sentence. The leaned Shariat Court, after necessary proceedings, through the impugned judgment, while accepting the appeal filed by the accused-respondent, acquitted him of the charge, whereas the appeal filed by the complainant has been dismissed. The complainant- appellant has now challenged the judgment of the Shariat Court through the instant appeal before this Court.
4. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the complainant-appellant, argued the case at some length. He discussed in detail the background of the incident and submitted that the acquittal of the accused by the 'Shariat Court not only is unwarranted but also very strange.
Despite such stated circumstances of the case it has been observed by the Shariat Court that the motive has not been proved. He submitted that although there is no direct evidence in the occurrence but the evidence produced by the prosecution regarding the pre and post incident conduct of the accused, fully establishes the commission of offence by him, while ruling out any other possibility. In such-like cases, the circumstantial evidence is of great importance. In this case it is proved beyond the shadow of doubt from the post-mortem report and the medical evidence that the cause of death is the poisoning. On the pointation of the accused-respondent, the bottle containing the poison has been recovered which is also corroborated by the chemical examiner's report. There is also a video cassette, a piece of evidence which fully connects the accused- respondent with the commission of offence. It is also submitted that the recovery on the pointation of the accused has fully been proved by the recovery witnesses from their depositions made in the Court. In support of his arguments, he has placed reliance upon the case reported as Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1] and finally argued that in view of such a strong legal evidence, acquittal of accused is against the principles of administration of criminal justice, hence, restoration of conviction proposed by the Trial Court is necessary to meet the ends of justice.
5. Ch. Mehmood Ahmed, the learned Assistant Advocate-General, representing the State supported the version of the counsel for the complainant-appellant.
6. Mr. Khalid Rashid Chaudhry, Advocate, the learned counsel for the accused-respondent strongly defended the impugned judgment and submitted that the same is quite in accordance with the principle of administration of criminal justice. He submitted that there is no legal evidence to connect the accused with the commission of the alleged offence. The argument of the learned counsel for the complainant-appellant regarding the conduct of the accused is also baseless as the accused himself has brought his wife to hospital for treatment. If there was any male fide on his part, then he should have not brought her to the hospital for treatment. The accused-respondent has not absconded rather he remained fully associated with the investigation. The circumstantial evidence also is not of wroth consideration. The only piece of evidence which can be made basis for establishing the connection of accused-respondent with the alleged commission of offence was the so-called recovery of bottle containing the poison, but amazingly, the same has not been proved. The prosecution on one hand claimed that parcel No. 2 of the recovered bottle containing poison was prepared and sent to chemical examiner but on the other hand, this parcel has been withheld and not produced in the Court. Thus, according to law, presumption goes against the prosecution. The recovery is also not believable as allegedly, the bottle containing poison has been recovered after almost two months time of occurrence. The accused-respondent was arrested on 15.5.2005, whereas, the alleged incident is stated to be of 27th March, 2005. A fictitious recovery is effected on 25.5.2005, therefore, according to the prosecution's own story, the report of chemical examiner was obtained on 29,4,2005 referring the cause of death as by poisoning. If the accused- respondent would have involved in criminal act, how it was possible to keep the bottle safe to be recovered by the polite. Thus, the recovery of bottle is fake and manufactured by the prosecution which has no sanctity. Despite all this, the prosecution has railed to produce the so-called bottle alongwith its parcel in the Court. He submitted that according to the celebrated principle of law, in case of circumstantial evidence, the prosecution is heavily burdened to prove each and every chain of the story and evidence beyond shadow of doubt. If any link is missing, the accused cannot be convicted on the basis of such-like circumstantial evidence. In support of his arguments, he has placed reliance upon the cases reported as Nazir Ahmed v. The State and another [2002 P.Cr.LJ.
149] and Sher Khan v. The State [1983 P.Cr.LJ 349] and submitted that the appeal has no substance and, is liable to be dismissed.
7. We have paid our utmost attention to the respective arguments advanced at bar and also examined the record of the case. According to the admitted position, in this case, no direct ocular evidence regarding the commission of offence is available, The prosecution has produced the witnesses regarding the pre and post incident conduct of the accused. Although, it has also been established that the cause of death is poisoning but the post mortem report contains the provisional opinion of the medical expert which speaks that the cause of death appears to be due to poisoning and excessive intake of the sedative. Be that as it may, it has been established that the victim died due to poisoning. The most of the witnesses produced by the prosecution deposed in their Court statements some pre or post incident, conduct of the accused and strained relations between the spouses. In our considered view, if the statements of all these witnesses are accepted as correct, even despite that, the same does not furnish a definite ground for conviction of a person unless it is established and proved through legally admissible evidence that the victim has been poisoned by the accused-respondent For awarding punishment in this case the prosecution has to establish the act of administration of poison to the victim by the accused. In the whole prosecution story, there is not a single witness of the fact that in presence of someone the poison has been administered by the accused to the victim. The prosecution has tried to connect the chains of the story through the circumstantial evidence i.e. the recovery of poison's bottle on the pointation of the accused. This could be a very strong piece of evidence to establish the fact and act of the accused-respondent for administering the poison to the victim, if the recovery on the pointation of the accused and the recovered crime article and its poisonous status by the expert report is satisfactorily stood proved. But unluckily in the case in hand, the prosecution has failed to satisfactorily prove this important piece of circumstantial evidence by furnishing a very important chain of the prosecution story for the reason hereinafter discussed.
8. First of all the recovery of the crime poisonous article on the pointation of accused by itself is doubtful. According to the prosecution, the incident took place in the night between 27th/28th March, 2005. The F.I.R. was registered on 29th March, 2005 which clearly speaks of the cause of death pointed out by the accused. The accused-respondent remained free till 15th May, 2005 when for the first time he was arrested in this case. The fact of poisoning was further affirmed by the chemical examiner's report dated 29.4.2005. Despite all these facts known to the accused, the fact that he kept the poison powder bottle saved in a drawer of dressing table for the purpose to point out strong piece of evidence for effecting recovery of the same by police, does not appeal to the mind of a prudent person. Be that as it may leaving aside this aspect, another very material dent in the prosecution case is that according to the prosecution, this poisonous bottle was recovered and sealed in parcel No. 2. The same was sent to the chemical examiner but amazingly it has not been taken back from the chemical examiner for producing the same in the Court so that the recovery witness may testify that the same bottle was recovered and sent to the chemical examiner for opinion. Thus a very basic and important chain of circumstantial evidence is missing.
9. The prosecution has furnished explanation that the whole poisonous powder has been utilized during analysis. If this logic is accepted as correct, then the question arises that the poison powder may have been utilized but the bottle cannot be utilized or dissolved during the process of analysis.
Parcel No. 2 containing the recovered bottle must have been returned for production of the same in the Court so that the recovery witness may identify that the same bottle had been recovered which was sent for the chemical examination. Regrettably, the prosecution has failed to prove this important chain of the story, it is a dent which casts serious doubts in the prosecution case.
10. After century's deliberation, there is a universal unanimity among the Courts administering criminal justice that the benefit of doubt always goes to the accused. It is also settled that for setting aside an acquittal order there must be strong reasons supported by evidence on record.
Even otherwise, after acquittal, the accused enjoys double presumption of innocence. In this regard reference can be made to a latest judgment in the case reported as Muhammad Saleem v. Abid Hussain & others [2013 PSC (Crl.) 346], wherein this Court has enunciated the principle of law on the subject in the following manner:--- "12. It is by now settled principle that to get an acquittal order converted into conviction, is a difficult job for the prosecution; it is like a liberated bird who had flown away towards the limitless space and free air, but now prosecution wants to get him back again into the cage. In the light of principle of law enunciated by the superior Courts of the country, an acquittal order can only be interfered with when it is proved that it has been delivered with foolish appreciation of evidence, with perverse actions and where the reasons adduced for the release an accused were not acceptable to the mind of a prusent man. Our this view finds support from the case titled Muhammad Yousaf v.
Muhammad Idrees, reported as 2004 M LD 910.
The Federal Shariat Court, in the reported case titled State v. Faisal Munir [PLJ 2009 FSC 284], while dealing with the proposition of setting aside the acquittal order has observed that:---
11. ....The accused, as a matter of right and not the complainant, is entitled to benefit of doubt. A genuine doubt even on one crucial point can secure acquittal of the accused. There is unanimity of judicial opinion that perversity arbitrations or capriciousness in the judgment under question must be established before reversal of acquittal could be claimed. The Appellate Courts are loath to interfere unless it is established that i/misreading of evidence or ii/lack of consideration of material evidence or iii/reception of evidence illegally or iv/ violation of legal provisions or v/jurisdictional defects or vi/ reliance placed on matters, extraneous to the record or vii/ material witnesses for the prosecution were not recorded or viii/ the acquittal order on the face of it is contradictory or ix/the order of acquittal was passed without hearing the prosecution or x/ the principles governing appreciation of evidence have been violated or xi/ the acquittal judgment was based upon surmises, suppositions and/or conjectures or xii/ acquittal is based upon reasons which do not appeal to the reasonable mind or xiii/ for that purpose there are gross mis statements appearing in the judgment under review.
12. The acquittal order of the lower Court is entitled 'to respect and it cannot be interfered with solely on the reason that another opinion could be possible on the given set of evidence and circumstances. However, instances are not lacking where the Appellate Courts have reversed the finding of acquittal, A judgment can be faulty and defective."
In another case reported as Shahid Nadeem & another v. Muhammad Mansha and another [PLJ 2012 SC (AJ&K) 74], while dealing with the proposition this Court observed as under:--- "10. He further admitted in cross-examination that a large number of residents of village Chak Noor were available and present there. The prosecution has failed to record the statement of any of independent witness regarding the recovery of the crime weapon, Thus the cumulative analysis of statements of recovery witnesses also leads to the conclusion that their statements are neither trustworthy nor confidence inspiring. It is now almost settled principle of law that benefit of every doubt goes to the accused, therefore, the appellants have not succeeded to p. it out any illegality in the impugned judgments of the Courts below or to satisfy that the judgments are the result of misreading and non-reading of evidence. It is the basic duty of the prosecution to prove the case beyond any shadow of doubts it is the consistent centuries old principle of law followed by the Courts all over the world."
The apex Court of Pakistan, in a case reported as Jehangir v. Aminullah & others [2010 SCM R 491], while dealing with this legal proposition has enunciated the principle of law in the following manner:--
6. It is well-settled by now that "there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well-settled that Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light should be found wholly as artificial, shocking and ridiculous". The view taken by this Court in Ghulam Sikander v. Mamaraz Khan (PLD 1985 SC 11) is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give clue aid and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions; one initial, that, till found guilty, the accused is innocent: and too that again after the trial a Court below confirm the assumption of innocence. This will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally."
The Federal Shariat Court, in the case reported as State v. Faisal Munir [PLJ 2009 FSC 284], while dealing with the proposition has observed as follows:---
11. The accused, as a matter of right and not the complainant, is entitled to benefit of doubt. A genuine doubt even on one crucial point can secure acquittal of the accused. There is unanimity of judicial opinion that perversity arbitrations or capriciousness in the judgment under question must be established before reversal of acquittal could be claimed. The Appellate Courts are loath to interfere unless it is established that i/ misreading of evidence or ii/ lack of consideration of material evidence or iii/ reception of evidence illegally or iv/ violation of legal provisions or v/ jurisdictional defects or vi/ reliance placed on matters extraneous to the record or vii/ material witnesses for the prosecution were not recorded or viii/ the acquittal order order on the face of it is contradictory or ix/ the order of acquittal was passed without hearing the prosecution or x/ the principles governing appreciation of evidence have been violated or xi/ the acquittal judgment was based upon surmises, suppositions and/or conjectures or xii/ acquittal is based upon reasons which do not appeal to the reasonable mind or xiii/ for that purpose there are gross mis- statements appearing in the judgment under review.
12. The acquittal order of the lower Court is entitled to respect and it cannot be interfered with solely on the reason that another opinion could be possible on the given set of evidence and circumstances. However, instances are not lacking where the Appellate Courts have reversed the finding of acquittal. A judgment can be faulty and defective."
The same principle has been enunciated by this Court in the case reported as Muhammad Yousaf v. Tariq Mehmood & another [2008 SCR 345] wherein it has been observed as under:--- "23. It will not be out of place to mention here that the prosecution witnesses changed their version after nine months of the occurrence and during this period they did not approach police or any other authority that their statements under Section 161, Cr.P.C, have not been recorded according to their version. There is a lot of difference between the statements recorded under Section 161, Cr.P.C. before the police and the statements recorded by the Court. These statements create doubt and it is well-settled principle of law that the benefit of doubt always goes to the accused. It is the legal duty of prosecution to prove the case beyond any reasonable doubt."
11. It has been also argued on behalf of the accused-respondent that in the Trial Court it has been argued that the prosecution has not established the act of purchasing the poison by the accused- respondent. Although, it is not an easy task to prove such-like facts but according to the peculiar facts of this case, this aspect is also of great importance and if remains unproved, it may result into breaking another important chain of the prosecution case. In our considered view all other evidence regarding strained relations of the spouses, previous conduct of the accused-respondent and death of victim by poisoning, if accepted even then keeping in view the whole prevailing circumstances of human behaviour-possibility of taking poison by the victim herself in reaction of all such circumstances or under the psychological conditions cannot be ruled out. In view of these facts, the prosecution has come forward with the version of poisoning of victim by the accused- respondent, but another possibility also is there that the victim may have taken the poison herself under the unbearable circumstances and under the psychological conditions and reaction of such-like act which amounts to suicide and not homicide. According to the celebrated principle of law, when there are two possible probabilities, or hypothetical possibilities, one which favours the accused has to administration of the criminal justice. In this regard, the superior Courts have enunciated the principle of law in number of cases one of them is State through Advocate-General Azad Jammu and Kashmir Muzaffarabad v. Talib Hussain and 2 others [2013 SCR 192], wherein it has been observed as under:-- "It is also a settled principle of administration of criminal justice that if there are two hypothesis and possibilities, the Court will adopt one which is favourable to the accused. Our this view finds support from the judgment of this Court titled Muhammad Yousaf v. Tariq Mehmood and another (2008 SCR 1), wherein it has been held as following:--- "19. It would not be out of place to mention here that where the Appellate Court, on the basis of scrutiny of evidence, arrived at a conclusion that the prosecution version and the defence version were be placed side by side and the Court had to judge which of them was plausible. It both the versions were possible, then the one favourable to the accused is to be preferred. This view finds support from a case reported as Muhammad Sultan v. Muhammad Aslam and another [1988 SCM R 857) wherein at page 858 it has been observed as under:--- The Appellate Court on the basis of this Scrutiny of evident correctly arrived at the conclusion that it was a case in which the prosecution version and the defence version were to be placed side by side and then the Court had to judge which of them was more plausible and if both such versions were possible, the one favourable to the accused was to be preferred.'
As in this case although the prosecution witnesses have made statements in support of prosecution story regarding the identification of the accused, the serious doubt has been created from their statements. It has been categorically deposed by hereinabove referred three prosecution witnesses that the alleged offence was committed by unknown persons. Thus following the principle hereinabove discussed version which favours accused is to be followed and thus possibility that some other unknown persons have committed the offence. It is also now more emphasized on the principle of law that the benefit of doubt always goes in favour of the accused.
On this point there are plethora of judgments of this Court, in some of which one is 2008 SCR 345, 552 and 1
12. We have also gone through the impugned judgment of the Shariat Court which is based upon proper appreciation of evidence. The complainant-appellant could not succeed to point out any departure from the statutory provisions or settled principles of administration of criminal justice.
The learned Shariat Court after discussion of the relevant evidence, in our opinion has rightly pointed out in para-14 of the impugned judgment that in view of the peculiar facts of this case, the omission of the prosecution to cite the chemical examiner as witness in the calendar of witnesses is also fatal for the prosecution especially when parcel No. 2 of the recovery of poisonous bottle has not been returned by the chemical examiner. If the chemical examiner is cited as witness, then in case of any doubt, the legislature has empowered the Court with the discretion to call the chemical examiner as a witness. Thus, the Shariat Court has rightly drawn the conclusion that such omission of prosecution has cast serious doubt upon the prosecution story.
13. So far as the case-law referred to by the learned counsel for the complainant-appellant reported as Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1] is concerned, having distinguishable legal and factual proposition is not applicable to the case in hand, hence, the same is not helpful to the case of the appellant.
The case-law referred to and relied upon by the counsel for the respondents in the cases reported as Nazir Ahmed v. The State and another [2002 P.Cr.LJ 149] and Sher Khan v. The State [1983 P.Cr.LJ 349] need not be discussed separately as we have no cavil with the principle of law laid down in these reports.
14. It is almost now settled that for awarding punishment on the basis of circumstantial evidence, the Court must take proper care and caution and if such evidence creates doubt or if any of the links of chain of the circumstantial evidence is missing, the awarding of conviction will be against the principles of administration of criminal justice. In this regard there is number of authoritative judgments one of which is reported as Muhammad Munawar and 2 others v. lmran Waseem and another [2013 SCR 374 wherein has been observed as under:-- "7. Admittedly, this is a case of unseen occurrence and the whole case hangs on the circumstantial evidence. Originally nobody was nominated in the F.I.R. It was lodged after a considerable delay and in this regard. no explanation has been brought on the record. Although, there is no bar on recording conviction on the basis of the circumstantial evidence but for that purpose the principles settled by the superior Courts must be kept in mind while analyzing the evidence. Even, death penalty can also be awarded on circumstantial evidence but it should be beyond any shadow of doubt. The chain of facts be such that reasonable interference can be drawn that the accused has committed the offence. All the facts established should be consistent only with the hypotheses of guilt of the accused. If any link is missing that will destroy the whole lings of such evidence and all the links of the circumstances must lead to the guilt of the accused. It is not a such type of evidence, but it is sufficiency and quality which matters. The circumstantial evidence should be so interconnected that it forms such a continuous chains that its one end touches the dead-body and the other the neck of the accused thereby excluding all hypothesis of his innocence as laid down in the case reported as Samar Ja William and others v. The State [2002 MLD 102], in which it has been observed as under:--- It is now well-settled that circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead-body and other neck of the accused thereby excluding all the hypothesis of his innocence "
In a case titled Imran Ashraf and 7 others v. The State [2002 SCM R 424], it has been held as under:-- "The proposition of accepting circumstantial evidence to establish guilt against the accused has not to be accepted merely in view of the arguments unless any unimpeachable circumstantial evidence is brought on record to justify the inference of guilt against them.
The circumstantial incriminating evidence must be incompatible with the innocence of accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt....."
In a case titled Muhammad Aslam v. Muhammad Zafar and 2 others [PLD 1992 SC 1], it has been observed as under:--- It is well-settled that no accused can be held guilty on the basis of circumstantial evidence unless the facts proved are incompatible hypothesis than that of guilt "
In the case titled Samar Jan William and others v. The State [2002 M LD 1027], it was observed as under:-- it It is by now well-settled that circumstantial nevidence should be so interconnected that it forms such a continuous chain that its one end touches the dead-body and other, neck of the accused thereby excluding all the hypothesis of his innocence."
In another case titled Akbar Khan v. The State [2003 P.Cr.LJ. 1071], it was held as under:-- A case rests upon circumstantial evidence is required to be so transparent that by no hypothesis there could be any doubt regarding any chain of the circumstantial evidence.'
Similarly, in a case titled Rehmat Ali v. Samundar Khan and another [2009 SCR 252], it was observed by this Court as under:-- ".....Since there is no direct evidence and in a case of circumstantial evidence where no enmity is alleged between the parties, no motive is alleged by the prosecution for commission of the offence then the Court has to examine the evidence with due care and caution and while securitizing the evidence, if the Court reaches on the conclusion that from the circumstantial evidence the facts are proved then no hypothesis consistent with the innocence of the accused can be suggested and if the facts alleged can be reconciled with the reasonable hypotheses with the innocence of the accused then the case has to be considered one of no evidence.'
Reliance can also be placed on a case titled Sh. Muhammad Amjad v. The State [PLD 2003 SC 704], In this case on the basis of circumstantial evidence, the death penalty awarded by the Trial Court was upheld upto the Supreme Court. It is consistent view of the superior Courts of Pakistan as well Azad Jammu and Kashmir that with circumstantial evidence, there must be unbroken chains of links. This case is referred to highlight the principles laid down for evaluating the circumstantial evidence."
15. As we have discussed hereinabove that in this case the interconnected chains of prosecution story have not been proved before the Court rather important pieces of circumstantial evidence are missing, thus, the principle of law laid down in the referred judgment is fully applicable.
For the above detailed reasons, the complainant-appellant has failed to point out any illegality in the impugned judgment, thus, finding no force, this appeal stands dismissed.