M. TABASSUM AFTAB ALVI, C.J.---The supra titled appeal has been filed against the impugned judgment dated 11th August, 2006, recorded by the learned. Additional District Court of Criminal Jurisdiction, Mirpur, whereby, accused-respondents Nos,1 to 3, were acquitted of the charge.
2. The facts of the case, as per report/dying declaration of Abdul Aziz, complainant-deceased, are that on the night of 26th November, 2001, he along with his wife Mst. Shah Begum, was sleeping at the roof of his house, meanwhile, suddenly three unknown persons, who could be identified by appearance, came there. Amongst them, one was of large and other was of small height. The accused-persons asked him to stand up and also threatened to take his life. The accused having small height, was armed with .12-bore rifle, who, pointing rifle near to his belly, fired a straight shot, due to which, he sustained severe injury and fell down. The accused-persons, while jumping down from roof, fled away. The complainant further stated that for the long time there was a land dispute. between him and Asghar, resident of Haveli Bagal, which was subjudice in the Court, however, a few days ago, Raja Qurban resident of Haveli, asked him to withdraw case, otherwise it would not be better for him. He suspected that amongst the aforesaid three accused-persons, one was Raja Qurban. The occurrence was committed on behest of Asghar. Besides, complainant the occurrence was also witnessed by his wife Mst. Shah Begum.
3. As per the aforesaid dying declaration/report, a case bearing FIR No,42/2001, in offences under sections 324, 337, 458, 109 and 34, A.P.C. was registered at Police Station, Dudyal, on 26th November, 2001. However, later on, complainant, succumbed to injuries; therefore, an offence under section 302,A.P.C. was added. The postmortem of the dead body was conducted by Dr. Liaquat Ali, CMO THQ Hospital, Dudyal. The police started investigation and related articles were recovered. During investigation, accused Banaras, Allah Ditta and Sabir, were apprehended by Police, and after usual investigation, a challan in offences under sections 302, 458 and 34, A.P.C. was submitted before concerned District Criminal Court. The accused were examined under section 242, Cr.P.C. on 15th August, 2001, who denied the guilt. Thereafter, prosecution produced evidence in support of its case. After completion of prosecution evidence, accused were examined under section 342, Cr.P.C. on 7th July, 2006, who again pleaded not guilty and claimed acquittal. The learned trial Court after hearing, recorded the impugned judgment dated 11th August, 2006, through which, accused- respondents were acquitted of the charge, while extending them the benefit of doubt, hence, the instant appeal.
4. The learned counsel for appellants, despite repeated notices, is not present, however, the learned counsel for respondents and the learned Additional Advocate General, representing the State, submitted that the instant appeal is awaiting disposal since 26th September, 2006; therefore, after perusing the record, the same may be decided on merits.
5. The prosecution story, as per dying declaration/report of Abdul Aziz, complainant-deceased, is that on the night of 26th November, 2001, complainant along with his wife Mst. Shah Begum, was sleeping at the roof of his house, meanwhile, at about 1:00 a.m., three unknown persons,to whom complainant could identify by appearance, came there. Amongst them, one was of large and other was of small height. The accused-persons asked him to stand up and also extended threats to take his life. The accused having small height, was armed with .12-bore rifle, who, pointing rifle at his belly, fired a straight shot, due to which, he sustained severe injury and fell down. The accused- persons, while jumping down from roof, fled away. The complainant further averred that a land dispute was existed between him and Asghar resident of Haveli Bagal, for a long time, which was subjudice in the Court, however, few days ago, Raja Qurban resident of Haveli, asked him to withdraw from the case, otherwise it would not be better for him. The complainant suspected that amongst the aforesaid three accused-persons, one was Raja Qurban and occurrence was committed on behest of Asghar.
6. At the very outset, it is significant to observe here that as per statement of investigating officer, dying declaration was not recorded by doctor himself, rather it was written by I.O. and we are alive that a police officer should not be encouraged to record dying declaration in a case in which he is investigating himself, however, when the medical officer is not available, he may record the actual spoken words or gestures of the victim. The aforesaid view finds support from a case reported as Imran Ashraf v. The State [2012 YLR (F.Sh.C) 325], wherein, it was observed as under:- "We are conscious of the fact that a police officer should not be encouraged to record dying declaration in a case which he is investigating himself. He could have been influenced by the course of events in favour of one or the other party but of course, there can be situation, when the medical officer is not readily available and the witnesses are either not present at the spot or if accessible around the victim yet they are unable to record the statement. In such an eventuality the police officer may, instead of relying upon mere memory, take down notes or may even record the actual spoken words or gestures of the victim. The document so prepared can then be proved by the scribe formally during the trial, subject to scrutiny in cross-examination."
Whereas in the instant case, as per statement of investigating officer, concerned doctor was present but he did not record the same, rather he only signed it. Thus, such type of dying declaration cannot be believed.
However, it was obligatory for investigating agency to trace out real culprits and include the persons in investigations, who were nominated by deceased, but a minute perusal of the statement of Zulqarnain Khan SHO/DSP Investigation Kotli, dated 27th March, 2006, indicates that Asghar, was arrested by him on 27th April, 2001 and was kept in custody till 10th May, 2001, however, neither his remand was taken nor any remand form was placed on record and later on he was released without giving him benefit of section 169, Cr.P.C. The statement of the aforesaid P.W. also reveals that he, in, answer to a question, after examining police record for about 10 minutes, replied that Raja Qurban, was neither arrested nor investigated, as his arrest was not necessary. He deposed that accused-respondents, Allah Ditta, Banaras and Sabir, were arrested on basis of doubt. He further deposed that the doubt against accused Sabir, was that, a 'Chadar' was taken into possession from the place of occurrence, which, as per spy report, belonged to Sabir, whereas the doubt against Allah Ditta and Banaras, accused-respondents, was that, they were seen accompanied by Sabir, before occurrence. The P.W, however, admitted that in proof of the aforesaid version, statement of a single witness was not recorded. The other witness, Raja Rabnawaz Khan, DSP, deposed in his statement dated 02nd March, 2006, that a small butt of 12- bore rifle, one 'Chadar' and a dagger were taken into possession from the place of occurrence, which were important pieces for investigation, on basis of which Qurban and Asghar, were not accused. Therefore, a perusal of entire evidence reveals that accused-respondents were implicated in the case on the basis of recovery of a small butt of rifle, a dagger and a 'Chadar' from the place of occurrence, and police could not bring on record any sufficient proof of their involvement in the case, rather investigating agency committed negligence in conducting fair investigation of the instant case.
7. It is pertinent to observe here that according to prosecution story, there is only one eye-witness in the instant case, namely, Mst. Shah Begum, whose statement is very important to decide fate of the instant case; therefore, her statements, made before police on 26th April, 2001 and 07th November, 2001, respectively, and before Court on 11th May, 2005, have been scrutinized. She deposed in her statement recorded 'before police on 26th April, 2001, that at about 1:15 a.m., she heard some noise, due to which, she awoke and saw that her husband in an injured condition had fallen down and three unknown persons fled away by jumping down from the roof. In this statement she neither nominated any person nor deposed that accused-persons had masked their faces with 'Chadars'. She, however, by making improvements in her later statement, recorded before police on 07th November, 2001, deposed that three accused-persons, who had masked their faces, were pulling her husband and during scuffle, two 'Chadars' of accused-persons, had dropped at spot. As per police investigation one 'Chadar' was recovered. In this statement, she once again did not nominate any person. However, in her Court statement, dated 11th May, 2005, she made further improvement that accused Sabir, fired at her E husband and she saw him while firing shot. She also did not know whether dying declaration of her husband was recorded or not. In such state of affairs, she does not fully support the prosecution case.
8. It is important to observe here that as per dying declaration of deceased, out of three unknown accused-persons, one was armed, with .12-bore rifle, whereas study of record reveals that police recovered 02 rifles P-1 and P-1/1, from Banaras and Sabir, accused-respondents. Moreover, as per police investigation, a double edged dagger was F recovered from Allah Ditta, accused, whereas as per note of the trial Court, the relevant parcel was opened in the Court and a common 'Chhurri', used for domestic task, was found in it, which facts also create serious doubt in prosecution case.
9. The recoveries of a small butt of rifle, a dagger and a 'Chadar' from the place of occurrence and rifles from accused-respondents, Banaras and Sabir, are also doubtful, as deceased indicated one rifle, whereas police recovered two, and police recovered one 'Chadar' whereas, as per statement of Mst. Shah Begum, two 'Chadars' of accused had dropped at spot. Moreover, the recovery witnesses are closely related to deceased and despite availability of independent witnesses, police, did not bother to associate them with the recovery proceedings.
10.Therefore, all the above mentioned discrepancies and contradictions create reasonable doubt in prosecution case and according to settled principle of administration of justice, in criminal cases, the jurists have a different approach regarding the conviction and acquittal of a guilty. It has been settled in some criminal cases that it is better to acquit an accused-person rather to convict an innocent one and this English maxim basically provides a safeguard to the accused against whom the prosecution story becomes doubtful. In the instant case, as discussed above, there are lot of contradictions in the statement of prosecution witnesses, which makes the prosecution case suspicious and it is well enunciated principle of law that if a single doubt appears in prosecution evidence, its benefit goes in favour of accused. The aforesaid view finds support from a case reported as More v. The State (2013 PCr.LJ 1730), wherein, the following principle was enunciated:- "From the above noted contradictions a reasonable doubt existed regarding guilt of the appellant.
It is well-settled law that for the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity, creating reasonable doubt in a prudent mind regarding the truth of the charge, is sufficient to give benefit of doubt to the accused."
The same view was reaffirmed by the apex Court in a case reported as Ali Muhammad v.
Muhammad Akram and another and Ali Muhammad v. Qabir Ahmed and 4 others (2014 SCR 351), wherein it was observed as under:- "It is settled principle of law that a slightest doubt must go to 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."
The apex Court reiterated the aforesaid principle in case titled Muhammad Jamroze v. Raja Muhammad Sabir and another (2016 SCR 1150).
11. It is imperative to observe here that after acquittal, an accused enjoys double presumption of innocence and acquittal order is not interfered with until and unless it is found perverse. This view is fortified from a case reported as Muhammad Ismaeel Khan v. Sajjad Hussain and 14 others (2014 SCR 442), wherein, it was held as under:- "It is settled principle of law that the acquittal order passed in favour of an accused has double presumption of innocence. Until the acquittal order is found perverse, arbitrary and fanciful, the Courts always are reluctant to interfere with the same. There is 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 acquittal order, there must be some extraordinary compelling reasons."
The same view was reaffirmed by the apex Court in a case titled Abdul Majeed and 4 others v.
Muhammad Latif and 3 others (2016 SCR 1306).
12.Thus, in the light of above detailed discussion, we do not find any misreading/non-reading of the evidence or any legal infirmity in the impugned judgment and the conclusion arrived at by the trial Court is neither arbitrary nor perverse, rather it is based on material available on record.
Therefore, we are at considered view that the trial Court has rightly acquitted the accused- respondents of the charges, while extending them benefit of doubt, vide its judgment dated 11th August, 2006, which is maintained.
13. The crux of above discussion is that finding no force in the instant appeal, it is hereby dismissed.