This Criminal Appeal under section 417(2-A) Cr.P.C. Is lodged against the judgment dated 23.11.2010 passed by the learned Additional Sessions Judge, Okara, whereby Muhammad Ashraf, Muhammad Tufail and Riaz Shah respondents have been acquitted of the charge in a private complaint under Section 302, 34 PPC, of Police Station A-Division Okara.
2. Succinctly, prosecution case as set-forth in the private complaint (Exh.PC) filed by Zainab Bibi complainant it is alleged that her son namely Abdul Ghaffar aged about 28 years was employee of respondents Muhammad Mukhtar (died) and Muhammad Ashraf; that Muhammad Ashraf respondent used to treat him inhumanly; that whenever complainant's son asked for leaving the job, they threatened him; that on 07.3.2007, her son did not go to his work whereupon Muhammad Mukhtar and Muhammad Ashraf sent Muhammad Tufail respondent accused to the complainant's house, who took Abdul Ghaffar on his motorcycle from complainant's house in presence of Riaz Ahmed and Ahmed Ali P.Ws.; that at about 12:00 Noon the complainant received an information that her son is lying in the house of Riaz Shah respondent in injured condition; that the complainant along with P.Ws. Reached at the house of Riaz Shah respondent and found that her son was lying on the ground, who told the complainant in presence of witnesses that Mukhtar, Ashraf, Tufail and Riaz Shah accused inflicted injuries at his head with a hunter like danda; that the complainant took her to DHQ Hospital from where he was referred to General Hospital, Lahore, but later on he died on 14.3.2007.
The complainant lodged an application to the police for registration of criminal case but no case was registered, which constrained the complainant to file a petition under Section 22-A & 22-B Cr.P.C. Before the learned Ex-Officio Justice of the Peace but the same has also been dismissed on the basis of police report. The complainant has also approached to this Court by filing a writ petition wherein she was advised to approach the police but despite of said advise the police has not registered the case against the culprits and after running from pillar to post, the complainant filed this private complaint.
After filing of private complaint, the learned Additional Sessions Judge recorded the cursory statements of the witnesses and referred the matter to the learned Illaqa Magistrate for conducting an inquiry under Section 202 Cr.P.C. Wherein it has been reported that prima facie offence of murder is made out against the respondents, resultantly, the respondents were summoned to face the trial. Copies of statements/documents were delivered to the respondents in terms of Section 265-C Cr.P.C. And formal charge against the respondents was framed on 25.1.2010 to which they pleaded not guilty and claimed to be tried.
3. To prove the charge prosecution examined the complainant as PW-1, who reiterated the contents of private complaint in her deposition. Riaz (son in law of complainant) entered appearance as PW-2 and corroborated the complainant's version. Dr.Muhammad Akram DMS DHQ Hospital Okara appeared as PW-3, who provided medical facility to the deceased Abdul Ghafar when he was conveyed to emergency ward in injured condition. Dr. Muhammad Arfan Medical officer Neuro Surgery Unit-II LGH Lahore deposed as PW-4, who issued death certificate of deceased. The complainant has given up the P.Ws. Namely Ahmad Ali, Shahzad, Haleeman Bibi, Shahid Inayat Inspector and Younas Butt DSP being unnecessary vide her statement dated 16.9.2010. However, on the application of complainant Malik Dawood DSP CPO Office Lahore was examined as CW-1, who deposed as under:- "On 11.5.2007, he conducted an inquiry on the direction of Mian Muhammad Qasim , the then ASJ Okara and found that Abdul Ghaffar met with an accident and due to that reason he died. He also produced certified copy of his inquiry report CW-1/4."
4. At the conclusion of the prosecution evidence, the respondents were examined under section 342 Cr.P.C. Wherein they denied the prosecution allegations and pleaded innocence. In answer to question "Why this case registered against you and why the PWs deposed against you" they unanimously stated as under:- "That in fact son of the complainant met with an accident and after few days due to complication he was referred to General Hospital Lahore where he died because injuries sustain in road accident. The complainant did not report the matter to the police and buried her son. After more than a month she filed a petition under section 22-A/22-B Cr.P.C. Which was dismissed by ASJ Okara and writ petition against the said order was also dismissed by the Hon'ble Lahore High Court, Lahore. Subsequently an I.C.A. Was also disposed of from the Hon'ble Lahore High Court, Lahore. The instant private complaint was filed on 30.3.2009 after more than two years of the alleged occurrence. There is no direct or indirect evidence against us that we committed the murder. No recovery what so ever was effected. In police inquiry, it was proved that son of the complainant died due to a road accident. The complainant concocted a false story under legal advise and has filed instant complaint. No independent witness was produced by her to prove her case. The maximum evidence which was produced is of last seen and disclosure of the deceased before the complainant and his son in law. The story of last seen and disclosure of the deceased that the accused have beaten him is neither plausible, nor believable or fits in the circumstances of the case, and also get lie from the own evidence of the complainant. When the deceased was unconscious in the house of Riaz Shah accused then question of making dying declaration by him does not arise at all. Doctor Akram while appearing as PW-3 has totally demolished the case of the complainant by stating that injury was three days old and at the time of arrival of the deceased in emergency, he was conscious and he came along with relative. No independent witness was produced by the complainant from the locality to prove her version. The PW-2 is her son in law and due to his relations with the complainant and deceased he gave false evidence against the accused. Their evidence is not finding corroboration from any other evidence or circumstances.
The complainant has failed to prove her case, therefore, all the accused be acquitted from the charge."
The respondents have not made their statements on oath under section 340 (2) Cr.P.C. However, they produced copy of petition under Section 22-A/22-B Cr.P.C. Filed by the complainant (Exh.DA), copy of order passed on the said petition (Exh.DB) and copy of writ petition No.7998/2007 along with order passed thereupon (Exh.DC) in defence evidence.
5. It is argued by the learned counsel for the appellant that the prosecution has proved the case against the respondents to hilt through reliable ocular account; that the complainant or deceased have no enmity with the respondents; that delay in filing of private complaint is fully explained; that ocular account furnished by Zainab Bibi (PW-1) and Riaz (PW-2) is fully corroborated to each other; that there is no reason to falsely implicate the respondents in this case; that the respondents failed to prove their defence plea as required under Article 121 of Qanun-e-Shahadat Order, 1984 and that even they did not opt to appear under Section 340(2) Cr.P.C.
6. We have heard the arguments of learned counsel for the appellant and perused the record.
7. The entire prosecution case hinges upon last-seen evidence furnished by the prosecution.
Careful appraisal of comparative analysis of the prosecution's ocular account and medical evidence manifests material inconsistencies, discrepancies and deficiencies as under:-
(i) Prosecution has particularly alleged that Abdul Ghaffar deceased left the job against the wishes of Muhammad Ashraf and Muhammad Mukhtar respondent and on 07.3.2007 Muhammad Tufail respondent on the asking of Muhammad Mukhtar and Muhammad Ashraf respondent took Abdul Ghaffar along with her in presence of Riaz Ahmed (PW-2) and Ahmed Ali (given up). Zainab Bibi complainant while appearing before the Court as PW-1 deposed that 03.3.2007 Tufail respondent came to her house and took Abdul Ghaffar and after two hours she received an information that her son Abdul Ghaffar is lying in the house of Riaz Shah in unconscious condition. While facing the cross-examination she deposed that she took Abdul Ghaffar to the hospital in unconscious condition. Riaz (PW-2) deposed that on 07.3.2000 again said three years prior today he was present in the house of his in laws with Zainab Bibi, Ahmed Bakhsh and Haleema Bibi when Muhammad Tufail came there and took Abdul Ghaffar along with him on a motorcycle to settle a dispute over money. Further deposed that after one hour we received information that Ashraf and Mukhtar etc. Had beaten Abdul Ghaffar and on receipt of said information he along with Zainab Bibi went there and found that Abdul Ghaffar in injured condition was lying on the ground in the house of one Riaz Shah.
(ii) Admittedly Zainab Bibi (PW-1) and Riaz (PW-2) are closely related inter-se. Both the witnesses have not stated the exact date of alleged occurrence. It is also on the record that Zainab Bibi (PW- 1) deposed that they received information after two hours whereas Riaz (PW-2) stated that they received information after one hour after departure of Abdul Ghaffar from the house.
Simultaneously, Zainab Bibi complainant (PW-1) in her testimony remained silent with regard to any dispute of money between the deceased and respondents and this fact has been mentioned by Riaz (PW-2) in his statement. Zainab Bibi (PW-1) has failed to mention the presence of Haleema Bibi in house at the time of departure of Abdul Ghaffar whereas Riaz (PW-2) alleged her presence in the house. We have also noticed that Zainab Bibi (PW-1) alleged that she along with Riaz (PW-2) and Ahmed Ali PW (given up) in his deposition has alleged that he along with Zainab Bibi went to the house of Riaz Shah. These material contradictions in the testimonies of PW-1 and PW-2 create a strong doubt with regard to the alleged guilt of the respondents.
(iii) We have also noticed that the complainant alleged that Abdul Ghaffar in injured condition told him in presence of the witnesses that respondents tortured him with a hunter like danda but the complainant has failed to explain that why she remained failed to record his dying declaration to the police especially when he remained admitted in the hospital for such a long time. It is also important to note that Dr.Muhammad Akram DMS, DHQ Hospital Okara (PW-3) who attended the deceased in Emergency Ward has deposed that history of head injury, drossiness, anorexia was three days old. It is, therefore, obvious that the prosecution evidence on the dimension of last-seen is neither confidence inspiring nor reliable. Needful to mention here that Malik Daud DSP CPO Lahore appeared before the Court as CW-1 on the application of complainant, who categorically deposed that according to his inquiry Abdul Ghaffar deceased died due to road accident. The said witness was cross-examined by learned counsel for the appellant but remained failed to get utter even a single word in favour of prosecution. The postmortem examination on the dead body of Abdul Ghaffar deceased has also not conducted to determine his cause of death. This fact is also fatal to the case of prosecution.
8. Keeping in view the above noted material inconsistencies, discrepancies and deficiencies in the ocular account produced by the prosecution, it becomes crystal clear that the ocular account produced by the prosecution on the dimension of last-seen is neither confidence inspiring nor reliable. Prosecution has also failed to establish any reliable independent corroborative evidence in the shape of medical evidence to support the alleged circumstantial evidence. Last-seen evidence due to its inherent defects is fundamentally a weak type of evidence and the same fails to furnish any ground for conviction in the absence of any independent corroborative evidence. It is an established principle of law that in the case of circumstantial evidence it remains incumbent upon the prosecution to establish unbroken chain of circumstances from the stage of last-seen evidence till death of the victim. In the case of circumstantial evidence all pieces of evidence should be so linked that it should give picture of complete chain one corner of which should touch with the neck of the deceased and the other to the neck of the accused. Failure of one link destroys the entire charge. Reliance be made upon Altaf Hussain vs. Fakhar Hussain and another (2008 SCM R 1103).
9. In the instant case it is evident on the record that the deceased was neither last-seen in the company of the accused nor at the place of occurrence shortly before the time he was presumed to have met the death. Therefore the prosecution has not been able to establish the circumstances consistent only with the hypothesis of the guilt of respondents.
10. Crux of the above discussion is that the learned trial court discussing each and every piece of evidence and minutely examination the material and legal dimensions of the ocular account and medical evidence suffering from material inconsistencies and contradictions rendering it not confidence inspiring, has rightly granted acquittal in favour of respondents given benefit of doubt.
The impugned verdict of acquittal is, therefore, neither perverse nor result of misreading or non- reading of evidence.
11. It is cardinal principle of criminal law that prosecution remains under heavy burden to prove the charge against the accused beyond any shadow of doubt, whereas in the instant case it has failed to do so. For giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit as held in the case of Muhammad Akram v. The State (2009 SCM R 230). The learned trial court while appreciating the prosecution evidence in a salutary manner has rightly acquitted the respondent given benefit of doubt. We do not find any perversity, factual or legal infirmity in the impugned judgment of acquittal in favour of Muhammad Ansar respondent.
12. It is clarified that appeal against acquittal has distinctive feature and approach. To deal with appeal against conviction is distinguishable from appeal against acquittal because presumption of doubt innocence is attached in later case. This Court can only interfere in the order of acquittal when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, and led to gross miscarriage of justice. Suffice it to say that an order/judgment of acquittal given rise to strong presumption of innocence rather double presumption of innocence is attached to such an order Muhammad Haneef v.
Mst.Reshman and 3 others (1998 P.Cr.L.J. 1576), Feroze Khan v. Fateh Khan and 2 others (1991 SCM R 2220), The State v. Izzat Noor (1985 P.Cr.L.J. 457), Feroze Khan v. Captain Ghulam Nabi Khan and another (PLD 1966 Supreme Court 424). While examining the facts 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 Muhammad Ijaz Ahmed v. Raja Fahim Afzal and 2 others (1998 SCM R 1281). It is held by the Hon'ble Apex Courts that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must got to the accused, and the Court would never come to the rescue of prosecution to fill the lacuna appearing in the evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
Reliance is made upon Muhammad Akram v. The State (2009 SCM R 230) and Waqar Nazir and others v. The State (2007 SCM R 661).
13. For the above reasons, this appeal being devoid of any merit is dismissed in limine.