Muhammad Mushtaq Chaudhary, J.-The above titled appeal has been directed against the judgment of District Court of Criminal Jurisdiction Kotli, dated 10.09.2009, whereby accused- Respondents Nos. 2 & 3 were acquitted of the charge while accused-Respondent No, 1 was proceeded under Section 512, Cr.P.0 and the case to his extent was consigned to the record till his arrest.
2. The precise facts forming background of this case are that Muzaffar Khan, complainant, lodged a written report at Sirsawa Police Chowki on 10.7.1998 alleging therein that he is resident of village Nainsukh. Today, at 12:00 p.m. He went to offer Jumma prayer in village Baroiyan, while his sons Masood and Naser werg present at home to supervise the laborers, who were working at his residence. After offering prayer, he came back home and started supervision of the laborers himself; meanwhile, at 5:00 p.m. Azhar Hussain asked him that his father Sain Muhammad Hussain is calling him down. Thereupon, he went towards Sain Muhammad Hussain, who told him that dead body of Masood is lying down. On- hearing this, he started hue and cry. In the meantime, many other people of the locality also gathered over there. His son was murdered with firearm by someone on account of enmity and marks of bullet injuries are present at right ear and left side of throat of his son. The dead body is lying on the spot.
3. On this report a case under Section 302, A.P.C. Was registered. At Police Station Kotli. During investigation, five photographs of Mst. Farzana d/o Sain Muhammad, 14 letters written on colour papers, 43 cassettes and a tape-recorder were recovered from the personal box of Muhammad Masood, deceased. Thereupon, Sain Azhar Hussain, Sain Asad Hussain and Sain Riaz Hussain were apprehended.
4. After usual investigation, the challan under Section 302 & 34, APC was submitted before District Court of Criminal Jurisdiction Kotli on 2.8.2000 and the accused-respondents were sent to face trial. The statements of accused-respondents under Section 242, Cr.P.C. Were recorded on 08.11.2000, who denied the guilt. Thereupon, the prosecution was ordered to produce evidence. The prosecution produced as many as 21 out of 37 witnesses in support of its case. After recording prosecution evidence, the salient feature of prosecution evidence was put to Sain Asad Hussain and Sain Riaz Hussain, accused-respondents on 4.3.2009, as required by Section 34, Cr.P.C., who .Once again denied the guilt and claimed to be innocent, whereas Sain Azhar Hussain, accused- Respondent No, 1 absconded, who was proceeded under Section 512, Cr.P.C.
5. T he District Court of Criminal Jurisdiction Kotli, after completion of trial, arrived at the conclusion vide its judgment dated 10.9.2009 that the prosecution could not prove its case against accused- Respondents No, 2 & 3; therefore, they were acquitted of the charge, whereas the case to the extent of Sain Azhar Hussain, accused-Respondent No, 1, was consigned to the record, which shall come up for further proceedings at his arrest.
6. Feeling aggrieved and dissatisfied from the aforesaid judgment dated 10.9.2009, Muzaffar Khan, complainant, filed instant appeal before this Court for awarding sentence to Sian Asad Hussain and Sian Riaz Hussain, acquitted accused-respondents.
7. Mirza Nisar Ahmad, the learned counsel for the complainant-appellant argued with vehemence that although it is an unseen occurrence but the prosecution fully established its case through circumstantial evidence because five photographs of Mst. Farzana d/o Sain Muhammad and 14 letters written between Muhammad Masood, deceased and Mst. Farzana were recovered from the personal box of Muhammad Masood, deceased. The learned Counsel also submitted that there were illicit relations between deceased and Mst. Farzana, sister of Sain Azhar Hussain accused; therefore, the motive of murder is proved. The learned Counsel pointed out that handwriting expert has clarified the writing, of Mst: Farzana. Kausar and Sain Azhar Hussain accused. The learned Counsel finally agitated that all three accused-respondents are liable to be punished and sentenced because they having common intention murdered Muhammad Masood, deceased, but the Court below failed to appreciate the evidence in its true perspective and wrongly acquitted the accused-respondents of the charge; therefore, the impugned judgment may be set-aside and the accused-respondents be awarded sentence.
8. The learned Additional Advocate General appearing on behalf of the State fully owned and supported the arguments raised by the learned Counsel for the complainant-appellant.
9. While controverting the arguments raised by the learned Counsel for the complainant-appellant, Raja Rafiullah Sultani, the learned Counsel for the accused-respondents submitted that the F.I.R was lodged with delay and the accused-respondents were not nominated therein. He pointed out that the complainant was informed about the occurrence by accused-respondents, who lifted dead body along with the complainant etc. And participated in the funeral ceremony of deceased, but later on they were falsely implicated in the case by the complainant with the connivance of Police merely on the suspicious recovery of some articles from the personal box of deceased. The learned Counsel also pointed out that no recovery of weapon of offence was made, which was an essential ingredient to prove the case. The learned Counsel further argued that according to statement under Section 242, Cr.P.C. No suggestion was- made about calling of Muhammad Masood deceased by the accused-respondents; therefore, the prosecution case is doubtful. The learned Counsel contended that the statement of Mst. Shaista Begum was recorded at belated stage, which is not trustworthy. The learned Counsel also submitted that accused-Respondents Nos. 2 & 3 have not been nominated in the statement of Mst. Shahnaz Bibi, which makes the prosecution ease feeble and baseless. The learned Counsel argued that according to two investigating officers Abdul Majeed SP and Musharraf Shah Inspector, nobody from locality told that the deceased was done to death by the accused-respondents; therefore, there is not an Iota of evidence against the accused-respondents. The learned Counsel finally submitted that the trial Court correctly appreciated the evidence and arrived at just and proper conclusion therefore, the acquittal order may be sustained. In support of his arguments, the learned Counsel placed reliance upon the following authorities:--
1. 2013 PCr.LJ 619;
2. 2013 PCr.LJ 1110;
3. 2013 SD 614;
4. 2013 SD 650;
5. 2013 SD 728;
6. 2013 YLR 2772;
7. 2013 YLR 2789;
8. 2013 YLR 2748;
10. We have heard the arguments addressed at Bar by the learned Advocates for the parties and gone through the record of the case with utmost muse.
11. At the very outset, we would like to mention here that now this is a settled, principle of criminal law that in appeals against acquittal the standards for assessing evidence are quite different from those laid down in appeals against conviction. In an appeal against conviction, the appraisal of evidence is done strictly, whereas in, an appeal against acquittal, such rigid method of appraisement is not to be applied. An order of acquittal can only be interfered with if the conclusion arrived at is wholly artificial of the judgment is perverse and against the record and law.
While examining the defects in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime because presumption of double innocence of accused is attached to the order of acquittal. Our aforesaid view finds support from a case titled Muhammad Ijaz Ahmad v. Raja Fahim Afzal (1998 SCM R 1281), wherein it was observed that: "Secondly, it may be seen that ordinarily scope of petition or appeal against the acquittal of accused is considerably narrow and limited. This Court in Ghulam Sikandar and another v.
Mamaraz Khan and others. PLD 1985 SC 11 has authoritatively ruled that while examining defects about order of acquittal, substantial weight should be given to the findings of subordinate Courts whereby accused were exonerated from committing the crime. Obviously approach for dealing with appeal against conviction would be different and distinguishable from appeal against acquittal, because presumption of double innocence is attached in the later."
12. It is important to note here that Sain Azhar Hussain, Accused-Respondent No, 1, during trial after obtaining bail absconded; therefore, the case to his extent was kept in abeyance by the trial Court till his arrest. So the only case of Sain, Asad Hussain and Sain Riaz Hussain is to be decided by this Court.
13. The prosecution case basically is based upon circumstantial evidence i,e, photographs of Mst.
Farzana d/o Sain Muhammad and 14 letters happen to be written between Mst. Farzana Bibi, sister of Sain Azhar Hussain (absconder), and Muhammad Masood deceased, which according to investigation were recovered from the personal box of Muhammad Masood, deceased.
14. It is worthwhile to mention here that the prosecution lodged F.I.R against some unknown person and later on during investigation when some photographs of Mst. Farzana Bibi and letters written between deceased and Mst. Farzana Bibi were recovered from the personal box of Muhammad Masood deceased, then the accused-respondents were implicated in fhe case and the role of accused-Respondents Nos. 2 & 3 was simply shown at abetment in the murder of deceased. As the accused-respondents were not nominated in that therefore, it is relevant to note that what its effect upon the prosecution case, because the F.I.R is an important document in a criminal case which furnishes the clue of possible truth of the allegation against the accused. Our this view is fortified from a case reported as Muhammad Irshad u. The State (2002 P.Cr.LJ 1541) wherein the following observation was made: b0I am cognizant of the fact that the F.I.R is not a sacrosanct document or a piece of substantive evidence and it can only be used for contradicting or corroborating the maker thereof. Yet it lays down the foundation of the prosecution case, therefore, any infirmity appearing in it has very important role of determination which is final outcome. In this view of the matter; the F.I.R. Is a most important document in a criminal case which furnishes the clue of the possible truth of the allegation against the accused but also causes affirm, impression of the prosecution case. F.I.R is a statement which is made soon after the occurrence hence, the memory of the informant is fresh and it is also unlikely that he had an opportunity of fabrication and specifically when it comes from a person who shows himself to be present on the scene, report has greatest value and must be held to militate against any contrary or varied subsequent version.
15. So non-mentioning of the names of accused-respondents in the F.1.R creates doubt upon the prosecution story.
16. Now we advert to this argument of the learned Counsel for the complainant-appellant that although it is an unseen occurrence but the prosecution fully established its case through circumstantial evidence because five photographs of Mst. Farzana Kausar Sain Muhammad and 14 letters written amongst Sain Azhar Hussain, accused, Muhammad Masood and Mst. Farzana Kausar were recovered from the personal box of Muhammad Masood, deceased; therefore, accused-respondents are fully involved the case. If for the sake of arguments, this contention of the learned Counsel for the complainant-appellant is accepted, even then there is no proof of involvement of Accused-Respondents Nos.2 & 3 in the case because circumstantial evidence does not disclose any clue of their involvement in the case. Moreover, there are a lot of contradictions, discrepancies and improvements in the statements under Section 161, Cr.P.C. And in the Court statement of prosecution witnesses. For instance, Muzaffar _Khan, complainant, deposed that he was told by Mst. Shaista Parveen that Masood was called by Azhar. Mst. Shaista Parveen P.W. Also stated that Sain Azhar called Masood, whereas P.W. Muhammad Irshad improved his statement and tried to involve Asad accused by saying that Masood was called by Sain Azhar, who went with Sian Azhar and Asad at their residence. Mst. Nisbat Jan P.W. Also nominates Azhar and Asad, but she does not show any enmity with them and says that before occurrence they used to come at each other residences. Muhammad Naser Javaid P.W. Deposed that Azhar and Asad called Masood, whereas the aforesaid witnesses mention the name of Azhar for calling Masood deceased. Mst. Shahnaz Begum and Mst. Zarina P.Ws. Testified that Azhar called Masood, but they do not disclose the names of Asad and Riaz accused-respondents, whereas Kamran Tabassu-n P.W. Does not mention about Azhar accused. Therefore, it is well settled law that when a witness makes improvement in his statement then his statement cannot be relied upon. Our aforesaid view finds support from a case reported as Nazer Abbbas v. The State (2013 YLR 2748) wherein it was observed as under: "It is by now well-settled law that if a 'witness makes dishonest improvements in his statement then he cannot be relied upon to maintain the conviction of an accused on a capital charge. "Reference in this context may be made to the case of "Muhammad Rafique and others v. The State and others (2010 SCM R 385) wherein, at Page 396, the Honble Supreme Court of Pakistan was pleased to observe as under: "24 This Court in the case of Saeed Muhammad Shah v. State 1993 SCM R 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCM R 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his statement."
17. Therefore, the statements of prosecution witnesses are not reliable to the extent of Asad and Riaz, Accused-Respondents Nos. 2&3, which create doubt in the prosecution case and it is well settled principle of law that even a single circumstance creating a reasonable doubt is sufficient to entitle an accused to acquittal. Our view finds support from a case reported as Riaz v. The State (1996 P.Cr.LJ 1575), wherein it was observed in the following manner: "It is not necessary under the law that there should be several circumstance to create a doubt about the prosecution case. Even one circumstance which creates a reasonable doubt is sufficient to entitle the accused to an acquittal."
18. In another cape reported as More v. The State (2013 PCr.LJ 1730), it has been enunciated as under: "From the above noted contradictions a reasonable doubt existed regarding guilt of the appellant.
It is well-settled law that for the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity, creating reasonable doubt in a prudent mind regarding the truth of the charge, is sufficient to give benefit of doubt to the accused."
19. We are also well aware of the fact that an accused can be convicted and sentenced merely on the basis of circumstantial evidence provided no link, of chain is found missing and all circumstances must lead to the guilt of accused. Moreover, if a single link of the chain is missing in such circumstance, the circumstantial evidence cannot be -relied upon. Every link in such like cases should be proved through cogent, convincing and reliable evidence and if not, then no conviction could be maintained or awarded to an accused. In order to claim conviction in a case depending upon circumstantial. Evidence, the prosecution must establish four basic requirements.
Our aforesaid view finds support from a case reported as Muhammad Iqbal v. The State & 3 others (2013 PCr.LJ 1683), where in it was observed as under : "(d) In order, however, to claim conviction in a case depending upon circumstantial evidence, the prosecution must establish four, basic requirements:--
(i) The circumstances from which the conclusions are drawn should be fully established.
(ii) All the facts must be consistent with the hypothesis.
(iii) The circumstances should be of a conclusive nature.
(iv) The circumstances should, to a moral sanctity, actually exclude every hypothesis, but the one, proposed to be proved.
' Muhabbat v. State 1990 PCr.LJ 73.
' These principles were also enunciated in the case of State UP v. Dr. Ravindra Parkash Miltal AIR 1992 Supreme Court 2045. The record of the case must show that a chain of events has been interwoven in such a way that its assessment would lead to inescapable conclusion that accused committed the offence. The evidence is of course to be of high quality. It should inspire confidence in the mind of the Judge because direct evidence is not before him."
20. In the present case, the circumstantial evidence prima facie involves Accused-Respondent No, 1, who is an absconder whereas no direct or circumstantial evidence is available against Accused- Respondents Nos. 2 & 3 on the basis of which they could b I convicted or sentenced by this Court.
21. This argument of learned Counsel for the accuse respondents that no recovery of weapon of offence was made, which was an essential ingredient for the prosecution to prove its case, also draws our attention. We find force in this argument of the learned Counsel for the accused- respondents and it would be suffice to mention here that any infirmity or weakness appearing in the prosecution case also weakens its case and strengthens the case of defense.
22. It is settled principle of criminal jurisprudence that prosecution has to succeed on its own merits and has to prove the case against the accused beyond reasonable doubt end very doubt is to be resolved in favour of the accused. As discussed above the prosecution story based upon suspicion.
Therefore, the following are the reasons and circumstances in favour of Accused-Respondents Nos.2 & 3:--
1. It is an unseen occurrence.
2. The complainant did not nominate the accused-respondents in the F.I.R.
3. It is a daylight occurrence which occurred in a populated area but nobody saw the occurrence.
4. There is no evidence against Sain Asad and Sain Riaz accused for committing murder of Muhammad Masood with the consultation of other accused.
5. The prosecution has itself admitted that there is no proof of involvement of Sian Riaz accused in the case.
6. The prosecution has not established its case against Accused-Respondents Nos. 2 & 3 through circumstantial evidence.
7. The statement. Of P.Ws. Under Section 161, Cr.P.C. Have been recorded at belated stage.
8. The witnesses have made many improvements in the Court statements but the prosecution failed to prove case against Accused-Respondents No, 2 & 3.
23. Thus, keeping in view the overall facts and circumstances of the case, we have arrived at the conclusion that the trial Court has not committed any illegality while acquitting accused- Respondents No, 2 & 3 from the charge of murder of Muhammad Masood, deceased.
Consequently, the appeal filed by the complainant-appellants stands dismissed and the impugned judgment recorded by District Court of Criminal Jurisdiction Kotli on 10.9.2009 is maintained.