Dr. Khurshid Igbal, J.
1. The instant appeals (Cr.A No. 155-M12018 & Cr.A No. 154-M12018) were filed by Aman Khan, the complainant, against the judgments of the learned Additional Sessions Judge/Judge Juvenile Court, Kabal, Swat, both dated 07.05.2018, whereby he has acquitted the respondents/accused, Ghazan Khan alias Ghazan and Shoaib, from the charge leveled against them.
2. On 21.11.2016, Aman Khan, the complainant, reported to the local police that yesterday (20.11.2016 at evening time), Suliman, his deceased son, left the house. He was informed the next day morning (i.e. on 21.10.2016 at 07:00, a.m.,), that his son was killed in Khwar at a place Kanro Hazara, whose dead body was lying there. Acting on such information, he reached to the aforesaid place, where he found his son dead. He also found that a heavy stone was lying on the dead body of his son.
Initially, he charged unknown accused for the murder of his son. On 22.11.2016, he recorded his statement u/s. 164, Cr. P.C., and nominated the respondents/accused, Ghazan Khan alias Ghazan and Shoaib, (juvenile co-accused), for the commission of the offence.
3. After arrest of the respondents/accused in the instant case and on completion of the investigation, challan was submitted before the learned trial Court against them. Copies were supplied to the accused facing trial u/s. 265-C, Cr. PC. Charge was farmed against them, to which they pleaded not guilty and claimed trial. During proceedings, challan under the Juvenile Justice System Ordinance, 2000, was submitted against the co-accused, Shoaib, being his tender age.
Charge was re-framed against him, to which he pleaded not guilty and claimed trial.
4. The prosecution examined as many as fourteen (14) PWs. Statement of the respondents/accused u/s. 342, Cr. PC, were also recorded, in which they were afforded an opportunity of evidence in defence and/or statements on oath but they did not avail it.
5. After hearing arguments of the learned A.P.P and learned counsel for the parties, the learned trial Judge acquitted the respondents/accused through his impugned judgments passed on 07.05.2018.
6. We have heard arguments of learned counsel for the appellant and perused the record.
7. We shall begin with the appraisal of the testimony of Aman Khan, the complainant/father of the deceased, (PW-6). In the Murasila (Ex PW 12/1), he simply reported that Suliman, his deceased son, yesterday (on 20.11.2016), had left the house at evening time. He stated that the next day morning (21.10.2016 at 07:00, a.m.,), he got information that his son was murdered in Khwar at a place Kanro Hazara, whose dead body was lying there. He recorded his statement u/s. 164, Cr. P.C., before the Judicial Magistrate on 22.11.2016. In that statement, the story he narrated was that the night Suliman left the house, a quarrel took place between Suliman and two accused, Shoaib s/o Ahmad alias Kaka and Ghazan Khan s/o Afsar, both residents of village Hazara, Tehsil Kabal. He charged both the aforesaid accused for the murder of his son. In his statement recorded before the trial Court as PW-6, he narrated another story, stating that it was evening time at which Suliman came to house after Isha prayer. At that time, he added, the accused called him on phone. The deceased went out of the house in response to that call. He went out after him and saw that the deceased was present with the accused. The deceased went away with the accused. The next day morning, he came to know that the deceased was murdered with knives and a big stone was lying on his dead body. He introduced rather, materially improved his version right from the Murasila to his statement recorded Ws. 164, Cr. P.C., and finally in his disposition at the trial. This is a dishonest improvement, most particularly in order to bring in line his evidence with the evidence of two other PWs, namely, Niaz Ali, (PW-4) and Sher Shah, (PW-5), which could not be relied upon in the circumstances of the case. Reliance in this respect may be made to the case of Akkhar Ali and others v. The State reported as 2008 SCMR 6. In this case, it was observed: "It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness."
8. PWs-4 & 5 were friends of the deceased. In their respective statements recorded u/s. 164, Cr. P.C., as well as at the trial, they deposed that on 20.11.2016, before Isha prayer, the deceased came to the Hujra of one Umar Hayat (maternal uncle of PW-4) and told them that Shoaib and Ghazan had an altercation with him. The deceased further disclosed to them that both the accused have threatened him to take his life. Both the PWs have categorically deposed that they were not witnesses of the quarrel between the deceased and the accused. They have differed on the presence of other persons in the Hujra of Umar Hayat. PW-4, Niaz Ali, stated that he, Sher Shah (PW- 5) and the deceased were present in the Hujra and none else was there. Sher Shah (PW-5) deposed that he, the deceased and Niaz Ali, were present in the Hujra. In the evening time, the deceased disclosed to them that the accused have quarreled with him and threatened him for taking his life. Niaz Ali (PW-4), was not the eyewitness of the quarrel. He deposed that Sher Shah (PW-5) told him that the deceased and the accused had quarreled with each other and during the quarrel, knives were shown to each other. Sher Shah (PW-5) had disentangled them at the time of the quarrel. The crucial aspect is that both the PWs are not the eyewitnesses of the incident of the murder. Both are also not the witnesses of the last seen evidence because the deceased came to the Hujra of Umar Hayat at Isha time and informed them that his life was under threat from the accused. Their version is that the deceased left the Hujra for his house. All that they significantly unveiled is that there was a quarrel and that there was a threat to the life of the deceased. This is circumstantial evidence at the most. It is very much important to note here that none of these PWs informed the parents of the deceased and even of the accused, nor did they pass on information to the police, which could have prevented the unfortunate incident. Moreso, the evidence of these PWs is in contradiction with the evidence of Aman Khan, (complainant/ father of the deceased). In the case of Muhammad Abid v. The State and another (PLD 2018 Supreme Court 813), the august Supreme Court observed: "The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime 4. no possibility of third person interference. 5. motive. 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime."
9. Another key aspect of the case is the disclosure by both the accused and the recovery of the knife as the weapon of offence during interrogation. Both the accused were arrested on 22.11.2016, the next day the report was lodged and the second day of the occurrence. Both made disclosure to the I.O. on 23.11.2016. The memos of their disclosure were prepared (copy of which are Ex PW 10/21 and Ex PW 10/23). The memos reveal that at the relevant time, when a quarrel ensued between the deceased and the accused, the deceased, as per the contention of the accused, took out a knife, which the accused snatched from him and stabbed with him one after the other. The knife was recovered from the place of the occurrence. A big stone which the accused allegedly put on the chest of the dead body of the deceased was also recovered on their pointation vide recovery memo Ex PW 10/24. Two aspects are worth noting from the memos: firsly, the accused have made no confession and secondly, one Muhammad Waqas, a marginal witness of the memos was examined as PW-11. He deposed that on the third day of the occurrence, (23.11.2016), he visited his village Sarhad University, Peshawar, and was present with his friends in the Khwar at Mazigar vela, where the police party came. The police asked him to go close to them. He showed his university card to the police and told them that he was not present on the day of the occurrence in his village. The police told him that he should simply listen to the statements of the accused. Later on, the police asked him to put his signature on the memos (Ex PW 10/21, Ex PW 10/23 and Ex PW 10/24).
In his cross-examination, he deposed that the memos were already prepared by the police and he simply put his signature on them. This blows away whatever circumstantial evidence was in this case. In the case of Muhammad Hussain v. The State (2011 SCMR 1127), the august Supreme Court of Pakistan has held: "Admittedly, it is a case of circumstantial evidence, therefore, as rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall, by itself, be sufficient to establish the guilt. However, each circumstance shall be so connected with each other that it shall make one complete chain, without there any broken link.
As it has been discussed hereinabove, there are completely broken links of chain to connect the appellant with the commission of murder of deceased, therefore, he would be entitled to benefit of doubt."
In Muhammad Ishaq v. The State (2009 SCMR 135), it was observed: "It is the settled principle of law that death sentence can be awarded on circumstantial evidence, provided that circumstances constituted a chain and its no link is missing and their combined effect is that the guilt' of the accused established beyond any shadow of doubt."
It would be safe administration of criminal justice for the Courts to very consciously consider the circumstantial evidence produced by the prosecution and to ensure that whether the 'chain' of the pieces of the circumstantial evidence produced by the prosecution clearly connects the accused with the commission of the offence or not. But in the present case, it has not been proved through reliable evidence. As such, the prosecution has badly failed to prove its case against the respondent/accused. Needless to say, material doubts float in their evidence. It is settled principle of law that the prosecution is duty bound to prove the charge against an accused person beyond shadow of a reasonable doubt. Any single infirmity in the prosecution case capable of creating a reasonable doubt in a prudent mind must be considered and the benefit thereof must be given to an accused person. In this regard, reliance is placed on the case titled as Usman Shah v. The State reported as 2022 YLR 821, wherein it was held: "For extending the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. Single circumstance, creating reasonable doubt in the prudent mind about the guilt of accused, makes him entitled to its benefit, not as a matter of grace or concession, but as a matter of right."
In Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), the august Supreme Court observed: "It needs no reiteration that for the purpose of given benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge, makes the whole case doubtful."
10. Even otherwise, an accused person, as a matter of right, is presumed to be innocent before trial unless the charge is proved against him/her. Acquittal at the trial gives rise to double presumption of innocence for an accused. An appellate Court needs to be cautious while considering the evidence and should avoid reversal of an acquittal, unless it finds that the acquittal is perverse, conjectural, arbitrary, jurisdictionally defective and prompted by mis-reading or non-reading of evidence. Even if a contrary view is formed on re-appraisal of evidence, it should not be used to disturb an acquittal, provided convincing evidence is available on the record to reverse acquittal.
In this respect, reference may be made to Jehangir v. Aminullah & others (2010 SCMR 491). In this case, it was observed: "It is well-settled by now that there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well settled that "Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous". The view taken by this Court in Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 is well-known that "in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah PLD 1997 SC 569, State v. Farman Hussain PLD 1995 SC 1, Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11, Ahmad v. Crown PLD 1951 FC 107, Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426, State v. Bashir PLD 1997 SC 408, Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, Shahzado v. State PLD 1977 SC 413; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261."
11. In light of the above discussion, we have reached to the conclusion that the learned trial Judge has rightly acquitted the respondents/accused from the charge leveled against them. Resultantly, the instant appeal and the connected Cr.A No. 154-M of 2018, being devoid of any merit, are dismissed in limine