QAZI MUHAMMAD AMIN AHMED, J.:- Nisar Ahmad, a youth of about 25, hereinafter referred to as the deceased, went missing during the night between 10/11-9-2007, surprised by his absence, his father Niaz Ahmad (PW-13) started search and found him lying dead in a Jawar field at 2:30 p.m. The incident was reported at the spot through Ex.PC 4:00 p.m. Same day wherein suspicion was laid against Naseer Ahmad, Hasrat and Zaheer Ahmad, respondents. A suspected liaison between Tahira Bibi wife of Zaheer Ahmad and the deceased was cited as a motive for the crime.
Autopsy was conducted at 6:00 p.m. By Dr. Syed Sultan (PW-10), who noted fracture of hyoid bone with the swollen neck without any ligature mark accompanied by dislocation of alto axis joint; asphyxia due to strangulation was opined as cause of death.
2. Alleging bias to the Investigating Officer, Niaz Ahmad (PW-13) filed a private complaint wherein process was issued subsequent to submission of report under Section 173 Cr.P.C. Case set up in private complaint Ex.PJ and the one initially reported to the police in complaint Ex.PC is the same on all fours albeit with a no confidence in the Investigating Officer. As the accusation and set of accused, in State case as well as in the private complaint were the same, the learned trial Judge consolidated the both for the purposes of trial vide order dated 26-4-2008. As there was no direct evidence, the prosecution relied upon various pieces of circumstantial evidence comprising of last seen furnished by Atif Mahmood (PW-3) and Muhammad Mushtaq (PW-4) accompanied by an extrajudicial confession allegedly made by Zaheer Ahmad, respondent before Ishtiaq Hussain (PW- 7); Naseer Ahmad (PW-9) attempted to establish the motive; statements of these witnesses were recorded by the Investigating Officer on 13-9-2007 and 13-10-2007 respectively.
3. On the conclusion of trial, the learned trial Judge acquitted the respondents from the charge vide judgment dated 19-3-2009, vires whereof, are being impugned through this appeal when respondents were sent for by a learned Judge in Chamber on the plea of prejudice allegedly caused to the complainant on account of consolidation of State case with the private complaint.
4. Sheikh Zameer Hussain, Advocate, learned counsel for the appellant contends that the impugned consolidation, in the face of a dishonest investigation caused serious prejudice to the complainant as it deprived the complainant of an opportunity to impeach the credibility of Imdad Hussain, SI (PW-14) by way of cross-examination, thus resulting into miscarriage of justice warranting interference by this Court. Reliance is placed on the case Krishan A Murthi v. Krishn A Murthi (Viscount Denedin) AIR 1927 Privy Council 144.
5. Contrarily, the impugned judgment is defended by Sardar Muhammad Ishaque Khan and Mr. Tanvir Iqbal, Advocates.
6. Heard. Record perused.
7. Questions of bias and prejudice are of fundamental importance in the process of administration of justice which at all costs be free from all taints; steams of justice must run pure and clean to maintain people's faith in the judicial process, more importantly in processes involving corporal consequences. It is in this backdrop that question of bias or prejudice, in dispensation of criminal justice are more aptly seen from the angle of those, bracing the gallows as the process is adversarial in nature with an onus on the prosecution to drive home charge on its own beyond a shadow of doubt before forfeiture of freedom or life is inflicted upon the accused in the dock; this magnitude of enormity entitles him to a trial free from prejudice or bias through a procedure which is least embarrassing to him so as to conduct a meaningful defence and in so doing, prosecution is indeed to be afforded a reasonable opportunity to drive home charge against him on the strength of positive proof and thereby excluding every hypothesis of innocence before the noose is cast around his neck. A consolidated trial of State case with the private complaint where accusation and set of accused are identical does not militate against the law laid down in Noor Ilahi's case, (PLD 1966 S.C. 708) which ingeniously provides a way out in situations where positions taken in State case and private complaint are diametrically and irreconcilably different. The arrangement intellectually devised in the supra case is aimed at ensuring a fair trial to the two sets of accused. In the present case, the only distinguishing feature in private complaint and police case is complainant's annoyance with Imdad Hussain,SI (PW-14) which hardly furnished any justification to hand him over to the prosecution for cross-examination. This would have been against the concept of procedural fairness which by now is well entrenched in our jurisprudence.
The same view has been taken in the case of Atta Jillani Vs The State & another (1980 P.Cr.L.J. 901) followed by Noor Akbar Turk Vs. Raja Ashiq Hussain & 6 others (2008 M LD 728). Position taken by the learned counsel for the appellant is beside the mark. The prosecution of offences and infliction of corporal penalties is a State attribute, paramountcy of the State even in private complaint is not relegated in subordination to the complainant, no matter how grievously wronged.
Exclusion of various pieces of circumstantial evidence from consideration, relied upon by the prosecution, is also in accord with the settled norms of safe administration of criminal justice. The entire edifice of prosecution case was structured upon suspicion without positive proof, suspicions are after all suspicions, which cannot be graduated into a positive proof; witnesses of last seen and motive though closely related with the deceased came forward rather late in the day; it is also intriguing as to what prompted Zaheer Ahmad, respondent to make his breast clean in the absence of any compelling reason before Qazi Ishtiaq Hussain (PW-7), a man of no consequence, through a detailed narrative catering all peripheral needs of the prosecution so as to retract subsequently. Prosecution has not been able to adduce "proof beyond a reasonable doubt" and the respondents could not have been convicted on the basis of moral certainty alone as is held in the case of Muhammad Asghar alias Nannah & another Vs. The State (2010 SCM R 1706), relevant portion whereof is advantageously reproduced:- "----Moral certainty---scope---Proof beyond reasonable doubt cannot be described as proof to a 'moral certainty'----Moral certainty cannot be equated by jurors with 'evidentiary certainty'----If standard of proof is equivalent to 'moral certainty' without more, the jurors may think that he is entitled to convict if he feels 'certain' even though the State has failed to prove its case beyond reasonable doubt".
For the above reasons, we do not feel persuaded to interfere with the impugned acquittal which is reflective of a possible view, conferring a double presumption of innocence upon the respondents.
Consequently, Criminal Appeal No.307 of 2009 is dismissed.