RAJA SAEED AKRAM KHAN, J. --- The supra appeal has been addressed against the consolidated judgment of the Shariat Court dated 8.11.2013, whereby the appeal filed by the convicts- respondents, herein, for their acquittal has been accepted. The appeal filed by the complainant, Zaffar Hussain Malik, for enhancement of sentence has been dismissed.
2. Brief facts of the case are that the complainant lodged a written report at Police Station, Lawat on 20.7.2010 at 6:45 a.m., alleging therein. that he is resident of village Kanak. His real brother Muhammad Iqbal resident of village Pathara Walai Nallah Bhensa Wall installed a private Hydal Power Station at Joor Nahla and was supplying electricity to the villages Beinsan Wali, Kanak, Thanda Pani, Charri, Abdul Salam s/o Hussain Dar, resident of Charri was also intending to install a Hydal Power System in competition of the deceased's Hydal Power Station. Several times, he also Caused damage to the Hydal Power Station installed by the deceased. In this regard, many 'Jirgas' were also convened. The accused, Abdul Salam s/o Hussain Dar, Abdullah Dar, Farooq s/o Akbar Dar, Asghar Dar s/o Fateh Dar, Akbar Dar s/o Abdullah Dar, Bashir Dar s/o Muhammad Hanif Dar, Molvi Akbar Dar s/o Aziz Dar, Hanif Dar s/o Hussain Dar, resident of Chatrri, Manzoor Dar s/o Fazal Dar, resident of Batangi, intended to close the Hydal Power Station installed by the deceased, Muhammad lqbal. On 19/20.7.2010, at midnight, suddenly, the electric supply' was cut off. The brother of the complainant, Muhammad Iqbal, deceased, went to Joor HydaF Power Station from his house at 1:00 am. At about 1:30 am., his sister-in-law, Mst. Shamim Akhtar and his nephew, Rashid Altaf, heard a noise of firing, upon which they rushed towards Joor Hydal Power Station, where they found Muhammad Iqbal, deceased, laying dead socked with blood. They raised hue and cry and on this the Military Personnel from nearby Military Post came at the spot and also saw the deceased laying over there. The Hydal Power Station of the complainant's brother was switched off with planning and some person or persons have murdered the brother of the complainant with the pistol shot. The complainant showed his suspicion that the aforesaid persons had murdered his brother.
3. On this report, a case under Sections 34, 302, A.P.C., was registered against the accused- respondents. After registration of the case, the accused were apprehended by the police. After completion of the investigation, a challan was presented in the Court of competent jurisdiction on 16.9,2010. The accused pleaded not guilty and claimed the trial of the case. The Trial Court directed the prosecution to lead the evidence in support of its version. The prosecution produced twenty- seven witnesses in support of its case.
4. After completion of the prosecution evidence on 11.6.2011, the statements of the accused were recorded under Section 342, Cr.P.C. All the accused-respondents pleaded that false evidence has been produced against them and they have been falsely implicated in.the case and no recovery was made from them. The convict-respondent failed to produce the evidence in defence, however, they recorded their statements on oath under Section 340(2), Cr.P.C.
5. The learned District Criminal Court Neelum after hearing the parties vide judgment dated 18.3.2011 convicted and sentenced the accused, Abdul Salem, Abdul Majeed, Farooq Dar, Abdullah and Hanif Dar under Section 302(b), APC for 12/12 years' rigorous imprisonment each. The convicts were also given the benefit of Section 382-B, Cr.P.C. The convicts-respondents assailed the judgment of the District Criminal Court before the learned Shariat Court, whereas, the complainant also filed an appeal for enhancement of sentence. The learned single Judge of the Shariat Court, through the impugned judgment dated 8.11.2013, while accepting the' appeal set aside the conviction and sentence awarded to the convicts. They have been acquitted of the charge under Sections 34, 302, A.P.C. The appeal filed by the complainant for enhancement of the sentence was dismissed.
6. Mr. Mushtaq Ahmed Janjua, Advocate, the learned counsel for the complainant-appellant, argued that the learned Shariat Court has not appreciated the evidence in its true perspective. He further argued that the prosecution succeeded to prove its case beyond the reasonable doubt. All the prosecution witnesses made the statements in line with the prosecution story as narrated in the F.I.R. and no contradictory material was found on the record. He argued that the recovery of the crime-empties alongwith three cartridges coupled with the medical evidence showing injuries found on the dead-body of the deceased, are strong piece of evidence, which have been ignored by the learned Shariat Courts. He submitted that the Trial Court while awarding the sentence to the accused has not taken into account the evidence brought on record, whereas, they are liable to be awarded the capital punishment. He argued that the story of the prosecution has been narrated in a natural manner and nothing has been concealed. There was strong motive behind the commission of offence, which was proved keeping in view the circumstances of the case but all these facts have not been taken into consideration by the learned Shariat Court as well as the Trial Court. He submitted that the important witness, namely, Mst. Shamim Akhtar, P.W., wife of the deceased, identified the accused persons and she also offered oath on the Holy Qur'an in support of her version but the same was not accepted. In continuation of the argument, he submitted that the blood of the deceased was found on the clothes of Farooq, accused, which is also one of the strong corroboration but this piece of evidence has totally been ignored by the learned Shariat Court. He lastly argued that the deceased was aggrieved by the conduct of the accused, who were extending threats to him as they wanted to destroy the Hydal Power Project of the deceased. In this regard, a 'Jirga' was also convened.
7. On the other hand, Mr. Muhammad Noorullah Qureshi, Advocate, the learned counsel for the accused, strongly controverted the arguments addressed by the counsel for the complainant- appellant, while submitting that the judgment passed by the Shariat Court is perfect and legal, which is not open to be interfered with by this Court.
He averred that the weapon of offence was recovered from some deserted place and the same was not recovered on the pointation of the accused, therefore, such-like recovery cannot be made basis for recording the conviction. No evidence came on record that the accused were intending to install the Hydal Power Station in competition with the deceased's Hydal Power Station. He submitted that it was a blind murder and no one has seen the occurrence. All the prosecution witnesses are admittedly close relatives of the deceased and related to each other, therefore, their testimony cannot be believed. The learned counsel further contended that it is a case of improvements and padding. He further submitted that the statement of one, Jamsheed, under Section 161, Cr.P.C. was recorded after a period of one and a half month for which no explanation has been brought on record. Moreover, the statements of the witnesses of the alleged occurrence have been recorded under Section 161, Cr.P.C. after a period of seven days, which has no value in the eye of law.
8. We have heard the arguments of the learned counsel for the parties and also perused the record alongwith the impugned judgment. It is a case of murder of one Muhammad Iqbal, deceased, which was committed on 19/20.7.2010, at midnight. There is no eye-witness of the occurrence and the whole case is based upon the circumstantial evidence, therefore, before attending other aspects of the case, we intend to examine the important witnesses of the case.
9. Mst. Shamim Akhtar, P.W., one of the star witnesses of the case, stated that on the fateful night, the deceased was watching T.V. at home. Suddenly, the lights switched off. He left for the Hydal Power Station to ascertain whether there is any fault in the system. After his departure, Mst.
Shamim Akhtar, wife and the nephew of the complainant heard the voice of firing. They rushed towards the place of occurrence. Mst. Shamim Akhtar, P.W. wife of the deceased, deposed in her statement that at 1.00, a.m., she was sleeping and her son, namely, Rashid Altaf was watching T.V.
When the electric supply was cut off, the deceased, Muhammad Iqbal asked them that he is going to check out the problem, so he went to the Hydal Power Station. She further deposed that after few minutes, they heard a voice of fire shot, upon which they went towards the Hydal Power Station.
When they reached the place of occurrence, the accused-persons were bent upon the dead-body of the deceased. The prosecution witness deposed in her statement that she identified the accused in the torchlight. The relevant portion of the statement of Mst. Shamim Akhtar, P.W., is reproduced as under-- {{URDU TEXT}} After juxtapose examination of the statement of Mst. Shamim Akhtar,. P.W., and the site-plan, it does not appeal to a prudent mind that a lady travelled from her house and after reaching at the place of occurrence, she crossed a Nalah' and a road and witnessed the accused committing the offence. Certainly, a time would be consumed in the process and it seems 'un-natural that the accused after committing the offence were staying there to be witnessed someone regarding the commission, of offence. This part of the story seems to the doubtful. Mst. Shamim Akhtar and Rashid Altaf, P.Ws. have been shown empty handed and it not possible that on raising hue and cry by the P.Ws., the there so that they may be identified Moreover, the source of light, i.e,, torch was not recovered. Thus, the statement of Shamim Akhtar, P.W., cannot safely be relied.
10.Another witness of the case is Rashid Altaf, P.W. who while making the statement, deposed as under:--- {{URDU TEXT}} After going through the above-said statement of Rashid Altaf, P.W., it reveals that the occurrence took place in the midnight and the place of occurrence is a deserted area. It was not possible to identify the persons, who were running away after committing the offence, therefore, the statement of the prosecution witnesses cannot be relied upon.
11.Another important witness of the case is Zaffar Hussain, complainant, the real brother of the deceased, who stated before the Court that the occurrence took place in the night falling between 19th/20th of July and he did not remember the year. He deposed that at the time of occurrence, he was sleeping at his home and at about 4:00 a.m. got up because he had to go to the Court. When he reached near the place of occurrence, he saw his brother lying dead on the ground. He made a query from his nephew, Rashid Altaf, P.W., who told him the whole story. Zaffar Hussain, the complainant, made the statement in the following manner:--- {{URDU TEXT}} After going through the above-said portion of the statement of Zaffar Hussain, complainant, it seems that he is not a witness of the occurrence and the story narrated by him falls in hearsay evidence. He himself not witnessed the occurrence and the whole story has been established on the information received from Rashid Altaf, P.W. Even otherwise, no evidence has been produced by the complainant regarding the Court proceedings to which he was going to attend also createsserious doubt in the prosecution story. This evidence can be said as hearsay which has no value in the eye of law.
12.While adverting to the recovery of 30-bore pistol loaded with magazine which has not been effected on the pointation of the accused. According to the recovery memo., 30-bore pistol was recovered from the place of occurrence, therefore, such-like recovery also creates a serious doubt that no person can throw the weapon of offence after commission of murder at the place of occurrence so that the police can easily recover the same. Especially, in, the night hours, the accused could not take risk to flee away armless as there is a great that somebody may chase .him. Even otherwise, the recovery effected in the case cannot play any decisive role where the ocular account is disbelieved and the investigation is suspected one. The case-law referred to by the learned counsel is not helpful to the case in hand. In the light of the above discussion, we are fully convinced that the learned Shariat Court has rightly appreciated the evidence as suchlike evidence is not reliable and trustworthy.
13. After scanning the statements of the prosecution witnesses, we are unanimous on the point that it is a case of a number of doubts. The prosecution failed to make out unbroken links of chain, which is pre-requisite in the case of circumstantial evidence.
14. While adverting to the argument of the learned counsel for the appellant that his real brother Muhammad Iqbal was supplying electricity to the villages of the locality. Abdul Salam s/o Hussain Dar resident of Charri was also intending to install a Hydal Power System in competition of the deceased's Hydal Power Station. Several times, he also caused damage to the Hydal Power Station installed by the deceased. In this regard, many 'Jirgas' were also convened. The convicts- appellants, Abdul Salam s/o Hussain Dar, Abdullah Dar, Farooq s/o Akbar Dar, Asghar Dar s/o Fateh Dar, Akbar Dar s/o Abdullah Dar, Bashir Dar s/o Muhammad Hanif Dar, Molvi Akbar Dar s/o Aziz Dar, Hanif Dar s/o Hussain Dar, resident of Chatrri, Manzoor Dar s/o Fazal Dar, resident of Batangi, were intending to close the Hydal Power Station installed by the deceased, Muhammad Iqbal. The complainant did not make any complaint at the Police Station against the accused and also failed to produce any evidence in support of his version.
15.The testimony of related witnesses cannot be discarded merely on the basis of relationship, however, the testimony of an inimical witness has to be looked into with great care and caution.
Reliance can be placed on a. case reported as Ghulam Rasool & another v. The State & another [2011 SCR 324], wherein it has been observed as under:-- "22 It is settled proposition that the testimony of related witness cannot be discarded merely on the basis of relationship, however, the testimony of an inimical witness has to be looked into with great care and caution"
In another case reported as Masood Hussain & 2 others v. Ghazanfar Ali & 3 others [2005 SCR 272], it has been observed as under:-- "12. We have no quarrel with the learned counsel for the complainant that the testimony of the prosecution witnesses cannot be discarded merely on the ground of relationship with the complainant or the deceased. We also have- no quarrel with the proposition argued by them that in a criminal case even the conviction can be based on the statement of a solitary witness. Let us make it clear that the conviction can be based on the statement of such a person whose presence at the spot is not disputed and who was in a position to identify the offenders and against whom it cannot be said that there was any possibility of substitution by him. In such-like case, the statement of such person could be accepted without corroboration. But in the present case there are exaggerations in the statements of eye-witnesses and their velocity on account of material contradictions in their statements keeping in view their enmity with the accused party is doubtful"
16.Before proceeding further, we may observe here that in the case of circumstantial evidence, the pieces of evidence should have the unbroken chain of the events. All the links in the chain should be fully connected and interlinked. If any link of the chain is missing, then the Whole case falls on the ground. In a case resting upon the circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. If a single link of the chain is missing, in such circumstances, the evidence cannot be relied upon. Every link in such a case should be proved by cogent evidence, otherwise, no conviction to an accused can be awarded or maintained. In a case of circumstantial evidence, an accused cannot be held guilty on the basis of circumstantial evidence until the same is proved or incompatible with his innocence or incapable of explanation upon any reasonable hypothesis than that of his guilt. In this regard, the superior Courts have enunciated the principle of law in a number of cases one of them The State v.
Mst. Falawat Jan and another [1992 SCR 366], in which it has been held as under:-- It may be stated here that in case of circumstantial evidence, the evidence should be of such a degree and character that it should exclude the possibility bf innocence of an accused. Besides, it should link together all the chains of the prosecution story so as to convince the Court to reach an irresistible conclusion that the accused person was the culprit beyond any reasonable doubt. The evidence in the instant case is not only insufficient but the same is of such a nature that conviction is not sustainable upon the same for instance, the garments which allegedly belong to the accused-respondent were not found blood-stained. Thus, mere production of the clothes of the respondent, Muhammad Khaliq, by his wife, is no evidence against him. Similarly, the recovery of knife is not only suspicious, as indicated above, but it was also not proved to have been stained with human blood."
Reliance can also be placed on the case titled 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. If 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 evidence 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
17. In the light of the above-said discussion, we have come to the conclusion that the case of the prosecution is highly doubtful. It is celebrated principle of law that benefit of a slightest doubt must go to the accused, therefore, the convicts-respondents were entitled for the benefit of doubt as of right and not as a grace as laid down in a case reported as Tariq Pervez v. The State [1995 SCM R 1345], wherein it has been held as under:-- 5 . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
The upshot of the above discussion is that there being no satisfactory basis for upholding the conviction and sentence of the appellant, the appeal is allowed, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case."
18.It is also apparent from the record that there was a dispute over installment of Hydal Power Project between the parties, therefore, possibility of false implication cannot be ruled out. As the learned Shariat Court disbelieved the evidence furnished by the prosecution, hence, we are also convinced by the reasons recorded by the learned Shariat Court. It is settled principle of law that until an acquittal order is found perverse, arbitrary and fanciful that cannot be interfered with. Our this view finds support from the case reported as Muhammad Afzal v. Mst. Riaz Begum & 2 others [2004 SCR 140], wherein it has been held as under:--- "7. It may also be ,mentioned that in an appeal against the acquittal the Supreme Court would not on principle, ordinarily interfere and shall give due weight and consideration to the findings of Court acquitting the accused and the Court that avoid re-appraisal of evidence
19. After the acquittal, an accused enjoys double presumption of innocence; one before the trial and the other after the acquittal as laid down in a case titled Khan v. Sailed and 2 others [2004 SCM R 215], wherein it has been held as under:--- "2. It is to be noted that in criminal appeals filed against acquittal orders, the respondent who has been exonerated from the criminal charges, enjoys double presumption of innocence, the one available to him before conclusion of the trial and the second after the verdict of the Court declaring him not guilty and that is why it is always said that if at all the Appellate Court comes to conclusion to interfere in the acquittal order it should strictly follow the principles laid down in this behalf from time to time by superior Courts for the guidance of the Courts seized with the matter.
20.According to the celebrated principle of law, for setting aside an acquittal order, there must be some perversity, departure from law, arbitrariness, misreading or non-reading of evidence apparent on the face of record. There is a plethora of judgments of superior Courts on the point that once an accused is acquitted by the Court of competent jurisdiction for setting aside the same, there must be some extra-ordinary compelling reasons. Reliance can be placed on a case reported as Musarrat Begum v. Muhammad Abbass and another [2014 SCR 318], wherein it has been held as under:--- "8. According to the celebrated principle of administration of criminal justice, every person is presumed innocent unless proved guilty. After acquittal of accused-respondent by the Courts of competent jurisdiction, presumption of innocence has got judicial authenticity. According to the principles of administration of criminal justice, for setting aside an acquittal order, there must be some perversity, illegality or violation of the statutory provision or principles of law and justice but in the case in hand the appellant has failed to point out any such ingredients."
After scanning the prosecution evidence minutely, we have come to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The story narrated by the prosecution is highly doubtful and it is celebrated principle of law that benefit of a slightest doubt must go to the accused. We failed to find out any perversity in the impugned judgment of the Shariat Court, therefore, finding no force this appeal stands dismissed.