Raja Saeed Akram Khan, C.J. The instant appeal has been directed against the judgment dated 10.01.2020 passed by the learned Shariat Appellate Bench of the High Court (High Court) whereby the appeal filed by accused-respondent No. 1, herein, has been accepted and he has been acquitted of the charge by extending the benefit of doubt.
2. The relevant facts, briefly stated, are that the accused was implicated in a case registered under FIR No. 56, involving charges in the offences under Sections 337, 324, 147, 148, and 149, APC, at the City Police Station Muzaffarabad, on 11.02.2003. During the course of investigation, the complainant, Malik Riaz, passed away, leading to the addition of offence under Section 302, APC, in the case.
After completing the investigation and fulfilling all procedural requirements, a challan was presented in the trial Court. The trial Court on completion of the proceedings sentenced the accused-respondent to 20 years' rigorous imprisonment under Section 302(c), APC. Additionally, the convict was ordered to pay Rs. 1,500,000/- as compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. The Court also granted him the benefit of Section 382-B, Cr.P.C., allowing a deduction for the period already spent in custody. However, he was acquitted of the charges under Sections 13/20/65 of the Arms Act, 1965 vide judgment dated 30.01.2018. Dissatisfied with the trial Court's decision, the accused-respondent filed an appeal before the High Court. Upon hearing the appeal, the learned High Court accepted it, set aside the trial Court's judgment dated 30.01.2018 and acquitted the accused-respondent of all charges by extending the benefit of the doubt.
3. Ch. Shoukat Aziz, the learned Advocate for the complainant-appellants, argued that instant case is based on direct evidence, which was fully corroborated by additional supporting evidence. He asserted that the learned High Court erred in law by overturning the trial Court's well-reasoned judgment. According to him, the prosecution successfully proved its case by producing cogent evidence which went unchallenged by the defense. He further maintained that the deceased's own statement alone was sufficient for conviction, yet additional corroboration was provided by other prosecution witnesses, as well as the medical report, all of which supported the prosecution's version regarding the events. The learned counsel contended that given the substantial and consistent evidence presented, there was no occasion for the High Court to acquit the accused- respondent. He argued emphatically that the deceased, Malik Riaz, had clearly stated that three shots were fired at him while he was being moved into the vehicle. The defense, he claimed, attempted to misrepresent this by suggesting that only two shots were fired, but this was refuted by the deceased's own words. Continuing his argument, the counsel pointed out that after regaining consciousness, the deceased recorded a statement under Section 161, Cr.P.C., which was categorically supported by a key prosecution witness, Sardar Bashir. The trial Court rightly relied on this crucial statement, yet the High Court did not give it adequate' consideration. He further argued that an FIR serves merely to initiate the investigative process and does not constitute substantive evidence unless supported by additional corroboration. This important legal principle, he submitted, was overlooked by the High Court. In support of his arguments, the learned Advocate cited the cases reported as Syed Kamran Hussain Shah vs. State and another (2022 SCR 365), Husnain Nazir vs. The State and another (2023 SCR 356), and Aftab Ali vs. The State and another (2023 SCR 1069), and requested the Court to accept the appeal.
4. Mr. Tahir Aziz Khan, the learned- counsel for the accused-respondent, forcefully rebutted the arguments presented by Ch. Shoukat Aziz, counsel for the complainant-appellant. He emphasized that this appeal challenges an acquittal, and under well-established legal principles, an acquitted person carries "double presumption of innocence." He argued that unless the impugned judgment is demonstrated to be perverse, arbitrary, or capricious, it cannot be set aside, and any interference by this Court would be unwarranted by law. The learned counsel further argued that the deceased, who was the primary witness in this case, specifically stated that he sustained only two bullet injuries. According to Mr. Tahir Aziz Khan, the prosecution later altered its stance while attempting to implicate the accused-respondent by introducing the statement of a police officer, Sardar Bashir, who claimed that the deceased, while fully conscious, recorded a statement under Section 161, Cr.P.C., in which he alleged that Muhammad Idrees, the accused-respondent, fired a third shot as he was being moved into the vehicle. He contended that these findings by the trial Court were not based on the case record, as no documentation of the deceased's alleged statement exists in the Court file, nor was it ever presented to the accused during his statements recorded under Sections 242 and 342, Cr.P.C. and this fact is not refuted by the counsel for the complainant-appellants. In support of his arguments, the learned Advocate cited the precedents, including the case reported as Khalid Javed and another vs. The State (2003 SCMR 1419), Wassem Hussain and 2 others vs. Muhammad Rafique and another (2017 SCR 428), Muhammad Asghar alias Nanah and another vs. The State (2010 SCMR 1706), Mst. Asia Bibi vs. The State and others (PLD 2019 SC 64), Kewro and others vs. The state (1999 P Cr.LJ 1619), Ghulam Rasool Shah vs. State and 10 others (2009 SCR 390), Khalid Javed and another vs. The State (2003 SCMR 1419)
Muhammad Shah vs. The State (2010 SCMR 1009), Muhammad Khan and others vs. The State (1999 SCMR 1220), Azeem Khan and another vs. Mujahid Khan and others (2016 SCMR 274) to reinforce his position.
5. Sheikh Masood Iqbal, the learned Advocate-General, endorsed the arguments presented by the complainant-appellant's counsel, submitting a copy of the deceased's statement recorded under Section 161, Cr.P.C., however, he stated that this statement is part of the police file and not the Court file.
6. We have heard the arguments of the learned counsel or the parties at some length and gone through the record made available along with the other material. Before attending to the arguments addressed by the counsel for the parties, we intend to observe that the parameters of acquittal and conviction are quite different and in this regard the arguments addressed by the counsel for the respondent is convincing in nature that until the impugned judgment is shown to be perverse arbitrary and capricious, the same cannot be interfered with. It is settled principle of law that after acquittal an accused carries double presumption of innocence, and an acquittal order cannot be interfered with until and unless the non-reading of evidence or any other perversity or miscarriage of justice is pointed out. We have taken into account the yardstick for interference in the acquittal and for the purpose we scanned the evidence and other material available on record. Before adverting towards the statement of 6 eye-witnesses, we intend to dilate upon the statement of the deceased, Malik Riaz, recorded at the time of occurrence and on the strength of which the requisite FIR was' registered. It would be advantageous to reproduce the relevant portion of the FIR, which reads as under: In the statement (supra), Malik Riaz, deceased, only mentions two gunshots being fired end makes no reference to a third shot. Without any corroborative testimony or evidence to support the appellants assertion, their claim regarding third fire shot remains unsubstantiated and speculative.
Since the deceased specifically noted only two Gun-shots, this discrepancy casts doubt on the credibility of the prosecution's account and weakens its position.
7. There is no cavil with the proposition that mere FIR cannot be a substantial piece of evidence and same cannot be made basis for conviction solely until, the same is corroborated with other evidence i.e the ocular evidence and medical evidence, but at the same time when other reliable evidence is available on record that cannot be taken lightly. The argument which is strongly advanced by the counsel for the complainant-appellants whereby he tried to build up the case that three gunshots were fired instead of two gunshots as stated in the first information report (F.I.R). During the course of arguments, the learned counsel for the complainant-appellants was queried, whether the deceased's statement recorded subsequently under Section 161, Cr.P.C., was put to the accused while recording the statements under Sections 243 and 342, Cr.P.C., and whether this statement was part of the trial Court's file. The counsel admitted that this statement was neither presented to the accused nor made part of trial Court's file, but nonetheless argued that it cannot be disregarded due to the subsequent death of the deceased. It is essential to note here that the trial Court failed to differentiate the police file and the Court file. Any document contained solely within the police file, though potentially relevant for cross-examination purposes, holds no evidentiary value unless properly introduced and made part of the Court record.
Therefore, this argument lacks merit, as it conflicts with established legal principles and the fair administration of justice. Consequently, we confine our consideration to the relevant portion of the deceased's statement, who explicitly stated that he sustained two gunshot wounds. He further clarified that the second shot was inflicted when he was being moved into a vehicle. This detailed account from the deceased regarding his injuries, particularly his clarification of the circumstances surrounding the second gunshot, provides significant insight. Accordingly, we are fully satisfied that the learned High Court correctly appreciated this crucial part of the deceased's testimony.
Furthermore, the argument put forth by the learned counsel for the complainant-appellants that the deceased's death resulted by a third gunshot wound sustained by him while being moved into the vehicle, is not supported by the record. The post-mortem report directly refutes this claim, as the doctor explicitly concluded that the cause of death was due to delayed complications arising from gunshot wounds to the abdomen, inflicted on 11.02.2003. For further clarity, the relevant portion of the doctor's report is reproduced herein below: "The cause of death is late complications of bullet injuries abdomen inflicted on 11.02.2003. Both lungs and lever were severely congested, gall bladder was distended and full of bile seretions.
Stomach and intestines had lost their normal structures and had become a single shrinked mass due to multiple adhesion. Both the kidneys were also congested and enlarged in size. This all picture had resulted into failure of vital systems of body. These all systematic changes were the result of the bullet injuries abdomen. Therefore, the cause of death is directly attributed to bullet injuries abdomen. The manner of death is homicidal with distant range of fire i.e. beyond one yard or three feet."
9. There is another important aspect of the case which is pointed out by the counsel for the accused-respondent that the deceased remained admitted in PIMS Islamabad and in this regard he referred to the relevant portion of the evidence i.e. post-mortem-report which is not rebutted by the counsel for the complainant-appellants. It is also surprising that during the post-mortem no bullet was retrieved from the deceased's body and the nature of the injuries as per postpartum report did not support the prosecution's account regarding the manner of occurrence.
10.Turning to the statements of the eye-witnesses, we identified glaring inconsistencies and contradictions that suggest the prosecution attempted to pad up its case. It is also pertinent to note that, at the time the deceased, Malik Riaz, was being moved into the vehicle, both; the DSP and his driver, were present on the spot, yet they neither made any statement regarding the third gunshot fired by the accused-respondent. Given these observations, it is reasonable to conclude that either party failed to present a wholly accurate account, and the case appears to be shrouded in mystery, casting serious reservations on the prosecution's narrative. In matters of acquittal, the accused is treated as the favourite child of law and once acquitted, enjoys a double presumption of innocence. Even a slightest doubt must be extended to him not as a matter of grace but as a matter of right.
11. It is a well-established principle of law that the prosecution bears the burden of proving its case against the accused beyond a reasonable doubt. Any element of doubt in the prosecution's case must be resolved in favour of the accused and not the prosecution. We are fortified in our view from the case reported as Imran and others vs. State and others (2024 SCR 155). The relevant portion of the referred judgment reads as under: "It is an admitted principle of law that the benefit of slightest doubt arising in the case goes in favour of the accused. Reliance in this regard, can be placed on a case reported as "Asif Hussain vs. Muhammad Rafique" (2019 SCR 632) wherein, it has been held by this Court as under: "7. Law is well settled that the prosecution has to prove its case against the accused person beyond the shadow of doubt. If there is any room of doubt in the prosecution case, the same is liable to be resolved in favour of the accused and not the prosecution."
Similarly, in another case reported as Waseem Hussain and 2 others vs. Muhammad Rafique and another". (2017 SCR 428) wherein, it was observed as under: '
"It is well established principle of law that benefit of every possible doubt is sufficient to acquit the accused of the charge."
The entire review of the prosecution case and evidence leads us to the conclusion that the prosecution has not been able to prove its case beyond any shadow of doubt. Therefore, the learned High Court has committed no illegality while handing down the impugned judgment. The complainant-appellants have failed to point out any illegality in the impugned judgment, hence, the same warrants no interference by this Court.
For the above stated reasons, finding no force this appeal is hereby dismissed.
CHIEF JUSTICE JUDGE (II)
Raza Ali Khan, J. It has been my distinct privilege to review the proposed judgment authored by the Hon'ble Chief Justice. While I wholeheartedly concur with the points outlined in the judgment, I feel compelled, in the course of considering this matter, to address a troubling societal trend that warrants reflection. The tragic incident in question has resulted in the loss of a precious life and has left another individual grievously injured, with reports indicating the possibility of permanent disability. The emotional scars borne by the affected families are deep and enduring, and the broader implications of such events reveal unsettling patterns within our societal fabric.
In instances like this, there is a disconcerting tendency to implicate innocent individuals often casting a wide net over those associated with the accused. Driven by societal pressures and the rush for swift retribution, this approach frequently results in the acquittal of the true culprits. Equally alarming is the role of law enforcement, which, rather than conducting impartial and thorough investigations, may at times yield to external pressures. When the police whose primary duty is to uphold justice become instruments of vested interests, the integrity of the justice system as a whole is compromised. Such practices pose a grave threat not only to the legal process but to the very foundations of our society. In the pursuit of justice, it is imperative that law enforcement remains unwavering in its commitment to impartiality, diligence, and integrity. True justice is not solely about convicting the guilty; it is about ensuring that truth prevails through a fair, unbiased, and transparent process. A just legal system fosters trust and stability within the community, ensuring that every individual, regardless of background or influence, is afforded a fair hearing.
Only by adhering to these principles can we cultivate an environment of peace and trust. While we must acknowledge the profound gravity of this incident, the tragic loss of life, the potential for lifelong disability, and the immense suffering endured by the families involved, it is paramount that the courts base their decisions solely on credible, substantiated evidence. In the absence of conclusive proof, Islamic criminal jurisprudence instructs that any reasonable doubt must be resolved in favor of the accused. Therefore, while extend our deepest sympathies to the victims and their families, we must, with impartiality and respect for the rule of law, uphold the reasoned judgment of the High Court. Only by adhering to these principles can we ensure that justice is fairly administered, and that our legal system remains a true pillar of society.