' MALIK HAQ NAWAZ, J.---Since both the criminal appeals bearing No, 31/2016 and 32/2016 are arising out of the same subject matter, therefore, these are being disposed of by this single judgment.
2. The brief facts of the occurrence are mentioned in para 2 of the judgment handed down by the learned Sessions Judge Hunza on 17.5.2016, which is reproduced for ready reference.
"Pithily, stated the background of the case against the accused as 'narrated in challan Exh. PW-4/B are that in the year 2006 ASI Muhammad Shakir was serving as In-charge, Police Post Sost while accused Fazil Hussain as SGC on 23.5.2006, they proceeded to village Chupurson along with two constables Sadiq Shah and Safdar Hussain for the arrest of accused Muhammad Diyar involved in case FIR No,05/2006 under section 337-A(ii)/506, P.P.C. Of P.S. Gulmit, but, he was not available in the village. They came to know that the accused had gone to the mountainous grazing pasture situated in Ziarat side as such they also went towards Ziarat. On their way to Ziarat they found the road blocked for vehicular traffic at a place namely Yashkogar, therefore, they sent the two constables towards Ziarat on foot while they themselves along with the driver of the vehicle waited there. After quite some time accused Muhammad Diyar reached there with his nephew Sher Karim.
ASI Muhammad Shakir disembarked from the vehicle and approached the accused a little distance ahead of the vehicle. He scolded the accused for causing injuries on the person of one Mohabat Shah and told that the victim was in serious condition in the hospital and he has to bear his treatment expenses as well as the fare of the jeep. He then left the accused with SGC Fazil Hussain and went ahead to look for the constables. Sometime later accused Muhammad Diyar with the apology of attending call of nature went to a side and did not return. SGC Fazil Hussain and the persons in the vehicle searched the accused but he was nowhere. However, they found his coat on the barrier of a nearby wooden bridge. In the meantime, ASI Muhammad Shakir also reached and together with civilians police searched the accused everywhere without success. In the wake of this development ASI Muhammad Shakir sent a murasila, on the basis of which case FIR No, 06/2006 dated 24.5.2006 under sections 223/224, P.P.C. Registered at Police Station, Gulmit against accused Muhammad Diyar and SGC Fazil Hussain."
3. As reflected in the judgment of learned trial Court the case file remained dormant from 2009 till 2013, when local police after recording supplementary statements of witnesses incorporated section 322, P.P.C. And booked present respondents under section 322, P.P.C.
4. In order to prove the charge prosecution examined 12 witnesses and after closure of prosecution case, the statements of respondent/ accused under section 342, Cr.P.C., and under section 340(2), Cr.P.C., were recorded. After hearing the arguments the learned trial Court announced the judgment of acquittal in favor of respondents, which has been challenged by the State as well as by the complainant by filing appeals under sections 417, Cr.P.C. And 417(2A) respectively.
5. The learned Dy. A. G., submitted at bar that the prosecution has established a prima facie case against the respondents, and the evidence brought on record when examined in peculiar circumstances of the case was sufficient to convict the present respondents, which has been ignored by the trial Court, causing miscarriage of justice. The learned Dy.A.G, further stated that arrest of missing Muhammad Diyar on the fateful day is established and it has also come on record that missing Muhammad Diyar was threatened to face dire consequences of his misdeeds, which compelled the deceased to commit suicide by jumping into the river?
6. The learned counsel for the complainant Mr. Rehmat Karim adopted the arguments of learned Dy. A.G., and added that by extending the benefit of doubts to the respondent the learned trial Court fell into error and judgment is perverse, arbitrary and liable to be set aside in the larger interest of justice. The learned counsel further stated that statement of PW Sher Karim is natural and any improvement if found should be ignored as the same are not deliberate but result of human error due to lapse of time.
7. On the other hand the learned counsel for respondents while rebutting argued that a false case has been cooked up against the respondent as there is no evidence on record that missing person Muhammad Diyar was ever arrested by the respondents and nobody(sic.) search memo, which is an immediate requirement after arrest is available on record. The learned counsel further submitted that there is no worth reliance evidence to prove the death of missing person Muhammad Diyar and in order to prove the offence under section 322, P.P.C., the prosecution is bound to prove the death, which is a prerequisite and when death is not proved, how the respondent could be held responsible and punished under section 322, P.P.C. The learned counsel submitted that the learned trial Judge has rightly acquitted the respondents after scanning the whole evidence, and acquittal is in accordance with the law laid down from time to time by the Superior judiciary. Moreover, the appeals in hand are appeals against acquittal, which, are decided on different parameters as the initial presumptions of innocence become double after earning acquittal from a Court of competent jurisdiction. In support of his contention the learned counsel for the respondent relied on PLD 1995 Karachi 459 (Alamgir v. The State), 1998 SCMR 570 (Muhammad Khan v. Mula Baksh), 2009 SCMR 237 (Shahid Abbas v. Shahbaz), 2007 YLR 534 (Muhammad Yaqub v. The State), 2009 PCr.LJ 1999 (State v. Tanveer Hassan etc.), 2010 SCMR 584 (Rahat Ali v. The State), 2010 MLD 5 (Muhammad Tufail v. Addl. Sessions Judge), 2011 PCr.LJ 895 (Abdul Hamid v. The State), 2011 YLR 2141 (Amjad Riaz v. Addl. Sessions Judge), PLD 2011 SC 554 (State v. Abdul Khaliq etc.).
8. I have heard both the parties at length and available evidence on the record has also been examined minutely. The main thrust of A arguments of the learned Dy.A.G, and counsel for complainant were that PW-1 Sher Karim in Court statement has charged the present respondent responsible for the missing of his Uncle. The statement of said PW was examined threadbare. A careful scrutiny of the statement of said PW, shows that he has made some material dishonest improvements with a malicious and sinister motive to bring the case in line with the prosecution story. The occurrence took place on 24.5.2006. The P.W. Sher Karim kept mum for a period of over 3 years. His first statement under section 161, Cr.P.C., was recorded on 11.10.2009 and second statement was recorded on 01.09.2013. Both these statements are devoid of any legal force and prosecution cannot reap any benefit from both the statements of this PW. In Court statement during cross-examination the PW admitted that his uncle was a regular visitor of Afghanistan and same admission has been made by PW-2 Zahid Ali, real son of missing person Muhammad Diyar that his father was visiting Afghanistan in connection with his businesses. It is stated by the accused Muhammad Shakir in his statement recorded under section 340(2), Cr.P.C., that when he came across Muhammad Diyar he de-boarded from the vehicle but very strangely the driver of vehicle Muhammad Jan was not examined. Had he been examined, the truth might have been unearthed. Non-examination of driver of jeep, who was the natural witness of the occurrence, is to be marked in negative, against prosecution.
9. As observed by the learned trial Court that the case is of two versions. One advanced by the prosecution and other has come on record, through the statements and deposition of own witnesses of prosecution that deceased was a frequent visitor of Afghanistan in connection with his business and it has come on record that near the place of occurrence and from Ziarat a road/track was leading to Wakhan (Afghanistan) and the missing person Muhammad Diyar was familiar of the track leading to Afghanistan due to his business activities. Mere recovery of his coat hanging over a bridge near the place of his missing cannot be a reason and made a base to believe that Muhammad Diyar has committed suicide, by jumping into the river especially when witness of recovery of jacket has disowned the recovery memo Exh. PW-1/A in trial Court.
10. In criminal dispensation of justice the onus to prove the case is always on prosecution and this responsibility remains on the shoulders of prosecution and never shift. The prosecution cannot take advantage of any lapses/weakness of the defense. In a criminal case when there are two probabilities, the probabilities which favors the accused will be accepted, as accused is a favorite child of law and presumption of innocence remains with the accused till proven guilty by a Court of competent jurisdiction. In the present case, when there is not an iota of evidence that missing person Muhammad Diyar has died, then the other possibility that Muhammad Diyar might have gone to Afghanistan through Ziarat as
11. He was a frequent visitor of Afghanistan also cannot be ruled out. No one in a criminal case can be convicted on the basis of mere presumption. The presumption how much strong cannot take place of legal evidence. The guilt of accused has to be proved by the prosecution through convincing and cogent evidence beyond any reasonable doubt. The prosecution miserably failed to adduce any evidence to demonstrate that missing person Muhammad Diyar is no more in the world, which was mandatory but it has not been proved.
11. After scanning whole of the prosecution evidence it reveals that the learned trial Court's judgment is well reasoned and based on correct appreciation of evidence. The judgment does not warrant any interference of this Court and same is upheld.
12. The appeals filed by the State and complainant are dismissed being meritless. File.