1. SYED SHAHID BAHAR, J. Above titled appeal is directed against the judgment of Additional Tehsil Court of Criminal Jurisdiction Muzaffarabad dated 30.05.2019, whereby the accused/ respondents have been acquitted from the charges while extending them benefit of doubt.
2. Facts shortly stated are that on the application of the complainant (Sabir Hussain) a case under sections 10/11, 19 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was registered against the accused/respondents and others at Police Station Garhi Dopatta on 16.09.2010. After usual investigation, the challan was submitted before Additional Tehsil Court of Criminal Jurisdiction (Court No. II) Muzaffarabad on 11.12.2010. The accused/respondents were examined under section 242, Cr.P.C, who negated the charge and prosecution was ordered to lead evidence. After completion of evidence, the accused/respondents were examined under section 342, Cr.P.C. whereupon they refused to record their evidence and also negate to produce their version in defence. On completion of necessary proceedings and trial, the learned Additional Tehsil Court of Criminal Jurisdiction (Court No. II) Muzaffarabad (trial Court), after hearing the arguments of the learned counsel for the parties, acquitted all the accused/ respondents from the charges by giving them benefit of doubt vide impugned judgment dated 30.05.2019, hence, this acquittal appeal.
3. Despite repeated calls, nobody appeared on behalf of the learned counsel for the appellant as well as counsel for the acquitted-respondents, however, the learned A.A.G appearing on behalf of the State argued the case at some length and contended that accused have been acquitted from the charges against the law and facts, hence, the impugned judgment is liable to be set-aside. The learned A.A.G further contended that the prosecution has proved the case with cogent and convincing evidence, but the learned trial Court reached on wrong conclusion. The learned A.A.G prayed for acceptance of the appeal by setting aside the impugned judgment.
4. Be that as it may right of hearing, particularly, in a criminal case is never meant to prejudice the purpose of the Court i.e. to ensure free and speedy justice right of hearing cannot be expelled so as to frustrate the authority of the Court to regulate hearing of the matter fixed before it. In such like eventuality Court can competently proceed further on the basis of available record, thus, we take up the matter for adjudication in light of the available record.
5. I have gone through the record of the case with the assistance of the learned A.A.G appearing on behalf of State.
6. A perusal of record shows that a case under sections 10/11, 19 ZHA was registered against the respondents and other co-accused persons. After usual investigation, challan was submitted before the court of competent jurisdiction on 11.12.2010. On completion of trial and after hearing arguments of the learned counsel for the parties, the learned Additional Tehsil Court of Criminal Jurisdiction (Court No. II) Muzaffarabad (trial Court) acquitted the respondents Nos.2 to 5, herein, from the charges vide impugned Judgment dated 30.05.2019.
7. In the case, the prosecution in support of their version, out of 13 Prosecution witnesses, produced 11 P.Ws before the trial Court and got recorded their statements.
8. The complainant Sabir Hussain alleged that the accused-respondents and others abducted his daughter. The complainant in the cross-examination of his statement recorded before the trial Court stated that he did not see any accused / respondents for hatching conspiracy or abducting his daughter. He stated that the father of Nazim Hussain told him that his son committed wrong and he will mend the same within 2 hours.
9. The victim witness Rabia stated in her statement that the accused/ respondents took away her while covering her face with handkerchief in an unconscious condition, when she came in sense she saw a woman named Sehrish and a child standing near her and when she asked them where she is? They told her that they are in Rawalpindi city. Later on she was again turned into unconscious condition and at night when she again asked them that where they are going?, upon which she was told that they are going to Karachi. In the cross-examination she deposed that she does not know that Muhammad Azam, acquitted-respondent is her relative or not. During her statement an affidavit was shown to victim Rabia, whereupon a picture was affixed, which has been identified by her and said that it is her picture. She also disclosed that the signature upon the affidavit was signed by her forcibly. She admitted the aforesaid material Ex. DA and Exh.DB. In the statement of victim she has shown unawareness about Muhammad Azam, whereas on the other hand, Muhammad Azam described in his statement that she was her niece. Although the allegation against the acquitted-respondents was that they kidnapped her by intoxicating her or took her in unconscious condition by covering her face with cloth or handkerchief, but during investigation no such like material have been recovered by the Investigating Agency/Police.
10. Another witness Muhammad Azam in his statement recorded before trial Court deposed that on the day of incident i.e. 16.09.2010 at 4/5 a.m., he was standing near his house at Pulli, to go for Muzaffarabad, in the meantime, Nazam, Akhtar, Abdul Khalique along with two other girls and a child were coming towards Pulli/Bazar. When he asked Nazam, he told him that they are going to meet their relatives, however, we boarded on a vehicle/bus and descended at Domail Muzaffarabad. A perusal of statement of the aforesaid witness does not show that a woman or girl was in a senseless or unconscious condition. The victim/ alleged abductee did not make any hue and cry or did not show any reaction that she was kidnapped by the accused/acquitted- respondents.
11. The statement of Lady Doctor Farzana Faisal clearly reveals that no proof of `zina' has been found after examination conducted by her. In cross-examination she stated that "it is correct that no proof or sign of `zina' with the victim girl was found". The statements of other P.Ws. also do not support the alleged crime/offences.
12. Furthermore, the documents Ex.DA and Exh.DB, (Freewill affidavit and a Nikahnama) dated 18.09.2010 have been found on the face of record, which shows that a Nikah between Muhammad Nazim (accused) and Rabia Bibi (alleged victim) was conducted on the aforesaid date, whereas, she has admitted her picture and signed affixed on Free will-affidavit, which was attested by Justice of Peace Sakhar named Ghulam Qadir Somro. She also admitted his signature on Niakahnama and said Nikahnama was registered in Registrar office on the same day/date. In this way of the matter, the case of the prosecution became doubtful and it is celebrated principle of law that the benefit of a slightest doubt arising in the prosecution case must go to the accused.
13. I have perused the whole record of the case as well as evidence produced by the prosecution and found that the appellant has failed to prove his case against the respondents. The scrutiny of the record suggested that trial Court has reached on a just and right conclusion and committed no illegality, irregularity or perversity while recording the acquittal order in favor of the accused- respondents. The evidence produced by the complainant did not corroborate with his claim. The appellant has failed to prove his case through cogent and convincing evidence. In this eventuality there was no probability of conviction of the accused/ respondents. It is settled principle of law that until an acquittal order is found perverse, arbitrary and fanciful that cannot be interfered with. The prosecution failed to bring on record any concrete and cogent evidence to prove its case against the accused/acquitted respondents beyond any shadow of doubt.
14. It is well settled principle of law that with the acquittal, the presumption of the innocence of the accused becomes double, initially, that till found guilty accused is innocent and secondly that after trial a court below confirmed the assumption of innocence. The impugned acquittal order does not warrant any interference by this Court. It is settled principle of law pertaining to criminal dispensation of Justice, that onus to prove allegations is always upon shoulders of prosecution in a manner to prove the case against the accused without any shadow of doubt, any dent, loophole in the case is to be resolved in favour of the accused, that too acquittal enhances this presumption in his favour quo pressing his innocence. Rational of this principle of law is entrenched in Islamic Law of Criminal dispensation of Justice.
15. Double presumption acquired by the accused/ respondent in shape of acquittal quo his innocence cannot be shattered normally.
16. For the aforesaid reasons, the appeal filed by the appellant is without any substance, thus, the same stands dismissed.