1. ' SARDAR ABDUL HAMEED KHAN, J.---Above titled appeal has been directed against the judgment of District Court of Criminal Jurisdiction, Mirpur dated 20-10-2006, whereby the respondent was acquitted of the charge by giving him the benefit of doubt.
2. ' Brief facts forming background of the appeal are that a case under sections 302, 459, APC and 17(4) EHA was registered against respondent on 8-5-2006 at 6:15 AM at Police Station Islam- garhon the complaint of Khadim Hussain. It was stated that the complainant is the resident of Mera Kandi. It is further stated that his nephew Jahangir is living near his house at the distance of about 100 yards. It was reported that on previous night his nephew along with his wife Mst. Naseeba Bibi and daughter Malaika aged three years were sleeping in their house. At about 2:45 a.m. Some noises came out from the house of his brother-in-law Haji Matloob Hussain. He started running towards the house of Haji Matloob Hussain and when he reached there, his wife Sakeena Bibi told him that look out, why Muhammad Jahangir did not come back. Thereafter the complainant ran towards the house of Jahangir and he saw two unknown persons while riding on motorbike. He reached in the house, of Muhammad Jahangir and saw that Muhammad Jahangir, his daughter Malaika and wife Mst. Naseeba Bibi were dead and soaked with blood. He started hue and cry that somebody has murdered the aforesaid deceased persons with knife or sharp edge weapon.
3. ' On this report a case under FIR No.33/2006 for the offences under sections 302 and 459,APC was registered against the respondent. The post-mortem of the deceased persons were conducted.
4. Blood stained clothes and other articles were recovered from the place of occurrence by the police. During investigation, the respondent Muhammad Saghir alias Shabir nick name Kodowas arrested in another case under FIR No.20/2006 for the same offences by the police, at Police Station Naar. The respondent/accused also disclosed that he committed the aforesaid murder and on his pointation crime weapon (axe) was recovered. After completion of investigation, the challan was submitted 'against him before District Court of Criminal Jurisdiction Mirpur. The accused- respondent was examined under section 265-D, Cr.P.C. Wherein, he pleaded not guilty, whereupon the prosecution was ordered to lead evidence in support of their claim. The complainant in support of his claim produced Khadim Hussain, Mst. Nabeeda Hussain, Mst. Sakeena Bibi, Nazar Hussain, Naib Hussain, Mahmood Hussain constable, Shabir Hussain Shah MHC, Mujeeb-urRehman Patwari Halqa, Muhammad Maroof, Ghulam Rasool, Muhammad Rafique, Muhammad Siddique, Dr. Arshad Mahmood CMO, Zulfiqar AJi ASI, Munir Hussain ASI, Raja Nasrullah Khan DSP, Irfan Salem DSP, Muhammad Aslam Constable, Muhammad Tayab SDM Mirpur, Zafar Haider Shah SHO, Mirza Arshad Jarral SDM Kotli one also got recorded their statement. On 0-9-2006, the accused- respondent was examined under section 342, Cr.P.C, who once again denied the allegation of the complainant and alleged that he was malafidely roped in a false case by the prosecution.
5. ' On completion of trial and after hearing the evidence and arguments of the learned counsel for the parties, the trial Court has acquitted the respondent while giving him the benefit of doubt, hence the above titled appeal.
6. ' Mr. Younas Arvi, advocate, the learned counsel for appellant contended that the acquitted- respondent was connected with the case in light of previous case wherein the accused was apprehended and in light of the statement under section 164, Cr.P.C. Recorded in that previous case the accused made voluntarily confession and the whole case of the prosecution is well established when seen in the light of statement under. Section 164,Cr.P.C. Of the acquitted- respondent. The learned counsel vehemently contended that the trial Court has passed the impugned judgment on surmises and conjectures which cannot be termed as judicial order in a legal sense. The learned counsel contended that FIR is just a usual document to set the machinery of law in motion and in FIR. It is not possible for the complainant to state each and every detail of the occurrence. The learned counsel further contended that the evidence of recovery pertaining to crime weapon has totally been misread. It is further contended that the Court order pertaining to last seen evidence and the identification parade is against the law and as well as established principle of appreciation of evidence in criminal cases. The learned counsel further contended that the impugned order is a slipshod order and the order of trial Court to the extent of statement of the accused-respondent recorded under section 164,Cr.P.C. Is illegal, ab-initio and the trial Court have passed the impugned order on farfetched and self-made observations, which is liable to vacation.
7. The learned counsel further contended that the trial Court has erred in appreciating the evidence in a legal manner. It is further contended by the learned counsel that the identification parade was conducted after making of video picture of the accused was not fatal to the prosecution, hence, the trial Court wrongly rejected the same. The learned counsel further contended that it is clear case of non- reading and misreading of evidence. He further contended that ghair-adil witness is competent witness in the cases short of Qisas. He further contended that the learned trial Court has also erred in holding that the prosecution has given up some important witnesses. The learned counsel contended that even in this situation this may not fatal to the prosecution case, it is only the choice of the prosecution to produce any number of witnesses more than the number of witnesses legally required to prove the evidence and not the whole of the witnesses named in witnesses calendar or a large number of witnesses. The learned counsel further contended that on the strength of statement recorded under section 164, Cr.P.C. The District Court of Criminal Jurisdiction Kotli has convicted the accused-respondent but the learned District Court of Criminal Jurisdiction Mirpur has erred under law while acquitting the accused on the strength of some evidence, whereas the accused had committed more than one offences on the same night in a brutal manner just to collect money for marriage with a lady of his own choice. The learned counsel seriously criticized the impugned order of the acquittal of the trial Court and prayed for setting-aside the impugned judgment and sentencing the accused under law.
8. ' On the other side, Abdul Razzaq Chaudhary, the learned counsel for respondent/acquitted accused while controverting the arguments advanced on behalf of appellant defended the impugned judgment on all four corners and summed up briefly with full zeal that this is a case of no evidence. The learned counsel further contended that the whole case is based on circumstantial evidence and it is a golden principle of criminal justice that where a case is of circumstantial evidence then every limb of the evidence should have been chained properly with the other, whereas any slightest breakage of chain of circumstances is found would be fatal to the whole prosecution case. The learned counsel further contended that in the instant case no any single piece of evidence is linked with the other and the trial Court was left with no choice except to pass the impugned order. The learned counsel further contended that the alleged statement of the accused recorded under section 164, Cr.P.C. Has not been recorded in the instant case, moreover, the aforesaid statement which has been recorded on oath is not admissible under law because under section 164, Cr.P.C. Read with section 364, Cr.P.C. It is the statement which was to be recorded for taking the voluntarily confession/ statement of the accused which could not be recorded on oath. The learned counsel further contended that crime weapon, recovered articles, ornaments etc. Are not helpful to the prosecution and concluded that the appeal of the appellant merits no consideration and prayed for dismissal of the appeal and referred the following case-law:--
(1) 2001 SCM R 424
(2) 2001 PCr.LJ (SC AJK) 827
(3) 2000 PCr.LJ 1452
(4) 2009 SCR 390
(5) 1994 SCR 275
(6) 2014 SCR 35
(7) PLD 1982 FSC 4 ' We have heard the learned counsel for the parties and gone through the record of the case, perused the contents of the impugned acquittal order and to dispose of the case we formulates the following questions to determine the fate of the case:-
(1) Any last seen evidence identification of the accused at the place of occurrence.
(2) Any belonging of the accused or clothes of the accused left behind at the scene of occurrence (as it was stated in the case that the accused was naked at the scene of occurrence).
(3) Motive alleged.
(4) Whether the crime weapon was recovered, if so. Whether it was blood stained if so what is result of chemical examiner and Serologist.
(5) Whether the statement/confession recorded under section 164, Cr.P.C. In another case and that on oath too, is sufficient evidence against the accused.
(6) Whether any incriminating material recovered from the person of the respondent.
(7) Effect of non-production of some prosecution witnesses as envisaged under Article 129(g) of Qanun-eShahadat Order 1984.
9. ' In light of above stated questions we have minutely scrutinized the case of the prosecution and gone through the evidence of the prosecution as well. The reasons listed in the impugned acquittal order by the trial Court are spelt out from the record which has been passed in light of the record in a legal manner. We may also sum up by stating that in this case as developed by the prosecution that the accused was seen in naked position while running from house of Matloob Hussain, the relative of the deceased persons and as alleged by the prosecution that the accused after committing the murder of the deceased persons further committed zina with the deceased but nothing is on record that any items of clothes of the convict were recovered from the place of occurrence.
10. ' The next is crime weapon. In the case of circumstantial evidence it is the century old maxim:- {{URDU TEXT}} We have gone through the record of the case but in this unfortunate incident the crime weapon is neither blood stained nor the injuries inflicted on the bodies of the deceased persons are matched with the crime weapon. Therefore with heavy heart we are forced to conclude that in this case the weapon of offence and the blood of the deceased persons, both remained silent. It is also pertinent to note that the statement of the accused recorded under section 164, Cr.P.C. Is not worth consideration as it has been recorded on oath which may not of any help to the prosecution.
11. It is further added that the evidence of identification parade is also of doubtful character which can be termed as preidentified/pre-investigated case. Motive alleged, is that the accused committed murder of innocent lives just to take money for marriage with a lady of his own choice, when looked into the scene of occurrence and the bodies of the deceased persons with their watches and the ornaments present on their bodies even after their death this fact casts a heavy cloud of doubt on the story of prosecution.
12. ' The prosecution produced twenty witnesses out of twenty five, and also got recorded their statements. We have scrutinized the whole evidence brought, before the Court by the prosecution.
13. The statements of the P.Ws. Are contradictory with each other and cast doubt upon the truthfulness of the prosecution story. The alleged recovery was also doubtful.
14. ' The statement of P.W. Zafar Haider Shah, Investigating Officer, is considerable. He deposed that he did not register the FIR on telephone call of Muhammad Rafique because the people often telling lie. He further deposed that Khadim Hussain told him that he heard the sound of starting of bike. He further states in his statement that on 8-5-2006, on the day of occurrence, he remained whole night there but the complainant did not tell him regarding the stolen ornaments and amounts which were shown to be recovered, in the instant case.
15. In our view, the trial Court has reached the right conclusion that the accused was roped in 'merely on the apprehension of commission of same like offences in the adjacent area in short span of some days but the investigation agency has failed to bring on record any tangible evidence. In this view of the matter, without dilating upon and discussing each and every piece of evidence and contents of judgment we are of the firm view that acquittal order passed by the trial Court is justified on the touch stone of appreciation of the evidence in a criminal cases. Keeping in view the basic principle of ac administration of criminal justice that the prosecution is not only bound to prove the each offence rather is duty bound to prove each and every ingredient of each offence alleged against the accused beyond any shadow of reasonable doubt. It is pertinent to add that it is also golden principle of criminal justice once an accused is acquitted by the Court of competent jurisdiction then he has the double presumption of innocence. The above findings are fortified by the following case-law:-- ' In a case titled "Tufail Hussain Shah v. The State" (1994 SCR 275), it has been held as under:-- "There is an important aspect of the case. Muhammad Sharif, Patwari who prepared the site plan has stated as prosecution witness that the time of preparation of the site plan Ghulam Mustafa, P.W, had told him that the shot was fired from the rifle accidently. No request was made by the Public Prosecutor for declaring this witness hostile. Therefore, the possibility, especially in view of the circumstances indicated above, is that the death of Sajawal, deceased, might have been caused by an accidental fire while the accused-appellant was holding the rifle. It is well settled principle of law that the prosecution has not only to prove the act which resulted in death of a person but it has also to prove all the ingredients of an offence. Considering the admission of Muhammad Sharif, Patwari, stated above, and in view. Of of doubtful account given by Ghulam Mustafa, Constable, it is equally possible that the death of Sajawal might have been caused by accidental fire. It is settled law that if there are two hypothises which are equally possible, one favourable to the accused is to be given preference. In the instant case, in view of the statement of Patwari, Muhammad Sharif, and the attending circumstances we are of the opinion that the rifle went off due to the negligence of the accused-appellant, the fact is also substantiated by the statement of Ghulam Mustafa, P.W. Who has stated that he told the accused-appellant that he should not handle the rifle because it was loaded. This implies that the accused-appellant picked up the rifle and was handling the same. Thus, it cannot be said that the accused fired at Sajawal, deceased, with the intention of killing him, especially so when there appears to be no motive whatsoever on the part of the accused-appellant to do the same.
16. ' In a case reported as "Azmat Khan v. The State" PLD 1982 FSC 4, it has been held in the following manner:-- "Mr.Amirzada Khan, the learned Assistant Advocate General has pressed into service copy of the FIR No.153 dated 20-11-1979, Ex.P.I, as a corroborative piece of evidence to bring home guilt to the accused-appellant. This document does not serve his purpose in that at the most it shows that the accused-appellant, who was a complainant in that case, entertained fear that the brother of the complainant, Jehangir Khan intended to murder him on the suspicion of his having illicit liaison with his wife but killed Speen Khan, a brother of the accused-appellant in his stead. From the said alleged motive it has been attempted on behalf of the State to establish that the liaison existed even at the time Of the occurrence in this case. Needless to say motive for certain offence could only be that which is found by the trial Court from the evidence brought before it during the trial and not from the allegations of the complainant made in the first information report. Moreover, a first information report is never as substantive piece of evidence in itself even in that trial which ensues in its wake. Motive for a crime mentioned in an earlier FIR therefore cannot corroborate a subsequent commission of offence. What it at the most shows is that similar suspicion was once, at an earlier stage, also entertained by the opposite party as well. Multiplicity of suspicion no matter how frequent and in what number by itself would not prove the fact of the commission of an offence."
17. ' In another case titled "Haq Nawaz v. The State (1999 PCr.LJ 1381), it has been observed as under:-- "Therefore respectfully following the dictum laid down by the Honorable Supreme Court in Muhammad Bakhsh's case we hold that recording of confessional statement of an accused on oath or solemn affirmation is illegal and opposed to public policy and cannot be accepted as a voluntary confession despite consent or willingness of the accused to make a statement on oath or willingness of the accused to make a statement on oath or solemn affirmation."
18. ' In a case titled "Tariq Pervaiz v. The State" (1992 PCr.LJ 955), it has been enunciated as under:-- "On this point it was held in the case of Muhammad Bux v. State PLD 1956 SC 420 that administration of an oath to an accused person is an express statutory illegality by reason of section 5 of the Oaths Act and it must make the confession inadmissible, having been obtained in an illegal manner and its rejection must follow as a matter of course. In such a situation Arshad Ahmed Mughal is not worthy to retain power as a Magistrate and the Provincial Government be moved to withdraw his criminal powers. For aforesaid reasons I do not place any reliance on the evidence of judicial confession Exh.25."
19. ' In a case titled "Ghulam Rasool Shah v. State and 10 others" (2009 SCR 390), it has been observed as under" :-- "If anyone would have told him, even then his evidence would not have been admissible because it would have been a hearsay evidence and hearsay evidence could not be considered unless and until it is also stated by that person who told him that he narrated the story to him. The evidence of this witness is neither hearsay nor he has witnessed the occurrence, but it is just based on presumptions. It is well settled principle of law that where two interpretations of evidence are possible, then the one favourable to accused should be adopted. The prosecution did not produce Motor Vehicle Examiner or any expert before the Court as a witness to prove that the accident did not take place due mechanical fault, while under law it was the bounden duty and moral obligation of the prosecution to prove its case beyond any doubt. The prosecution has to stand on its own legs and every benefit of oubt will go to the accused. It is well settled principle of law that surmises and conjectures cannot take place of proof."
20. ' In case titled "Rafiullah Kakar and 2 others v. State 2000 PCr.LJ 1452, it has been held zs under:-- "Robery, house trespass and zinabil-jabr---Offences of---Conviction for---Challenge for--- Dishonest investigation---Effect Occurrence took place in the night of 23-2-1999 and FIR was lodged on 26-2-1999---Accused sustained injuries on varioius parts of bodies---According to police, they sustained injuries by falling on stones when they tried to decamp---Accused. Were arrested on 25-2-1999 and were examined by Doctor on 27-2-1999---Duration of injuries were different as some of them were caused 2 to 3 days before and some of them had duration of 12/24 hours---Held: This all was suggestive of the fact that police came in motion before lodging FIR and made arrest--- They caused torture to teenager accused, but could not discover anything incriminating---Such type of dishonest investigation was deprecated---Held further: Complainant's statement that he was interrogated by police before lodging FIR was indicative that SHO was acquainted to complainant and he was in contact with police before lodging FIR--Such situation destroys case of prosecution as these are basic foundations and are uprooted in entire structure---Such lapses a deprecated situation so far as part of police is concerned-Appeal allowed and sentence set-aside."
21. ' In a case reported as "Ali Muhammad v. Muhammad Akram and another" [2004 SCR 351(sic)], it has been observed by Apex Court of AJ&K in the following manner:-- "The principles regarding appreciation of evidence in appeal against an acquittal are much different than in an appeal against the conviction. The record of the case shows that the Courts below have not committed any illegality while passing the impugned judgments. It is settled principle of law that a slightest doubt must go the accused. After going through the record of this case, we are of the view that this is the case of number of doubts and even a single doubt is sufficient to acquit the accused. It is settled principle of law that until an acquittal order is found perverse, arbitrary and fanciful that cannot be interfered with. This view finds support from a recent unreported judgment of this Court titled Khalid Mehmood and others v. Arshad Mehmood and others (Criminal Appeal No.55 of 2010 decided on 14-3-2013).
22. Keeping in view the above case-law we are in agreement to hold that the whole structure of this alleged crime is based on the alleged statement of the accused/ respondent recorded under section 164, Cr.P.C,, which is not admissible and cannot be relied upon, which fell on ground due to its inherent defects therefore, whole the structure of prosecution case built upon this foundation eventually also has fallen to earth.
23. ' For what has been stated above, the prosecution has failed to point out any illegality, irregularity or perversity in the impugned judgment. The acquittal order passed in favour of the respondent by the trial Court is in right direction which warrants no interference by this court. Resultantly, the impugned judgment/ acquittal order is kept intact and finding no force in this appeal, it is hereby dismissed.
24. ' Order announced. The file shall be consigned to record after due completion by sending back the record of the case.