MUHAMMAD TARIQ AFRIDI, J.- State through Advocate-General, Khyber Pakhtunkhwa, Peshawar, has assailed the judgment dated 22.9.2021, rendered by learned Additional Sessions Judge-I, North Waziristan at Bannu, whereby the accused/respondents were acquitted in case FIR No.21 dated 15.5.2020, under Sections 302, 311, 201/34 P.P.C read with Section 20 of the Prevention of Electronic Crimes Act, 2016 of Police Station Razmak, District North Waziristan.
2. Brief resume of facts of prosecution case, as disclosed in the FIR, is that on 15.5.2020 at 18:10 hours, complainant Loye Daraz Khan S.H.O (PW-3) of Police Station Razmak, on receiving information about an incident, went to the crime village, where he was informed that two girls, one the daughter of Rokha Din and the other daughter of Radol Khan, both from South Waziristan were murdered by unknown cousin on the pretext of honour and their dead bodies were transported to South Waziristan, where they were buried. Motive for the offence was stated to be a viral social media video showing the two females kissing Umar Ayaz, resident of Bobali, Tori Khel, Garyum, North Waziristan. Initially, accused Umer Ayaz alongwith another unknown murderer were charged for the offence. On 18.5.2020, the complainant S.H.O arrested accused Umar Ayaz, Radol Khan, Rokha Din and Fida Ullah, in the instant case, whereas accused Muhammad Aslam was arrested on 20.5.2020.
3. Investigation in the case was conducted by Muhammad Nawaz SI (PW-4). He proceeded to the spot where he prepared site plan Ex:. PB, through a search light. He recovered and took into possession blood stained earth from the places of both the deceased. He took into possession one spent bullet near the place of deceased and a piece of cloth having blood stains. He recorded statements of PWs u/s 161, Cr.P.C. On 16.5.2020, he took into possession a USB, prepared by ASI, Farman Ali, containing viral video depicting obscene acts between involving the accused and the deceased. On 18.5.2020, he approached the Court of Sessions Judge, North Waziristan for exhumation of the dead bodies through an application Ex:. PW 4/1. On the same day and date, he added sections of law under the Prevention of Electronic Crimes Act (PECA), 2016 to F.I.R. On 19.5.2021, he produced accused Umer Ayaz, Fida Ullah, Radul and Rekha Din before the Illaqa Judicial Magistrate for recording their confessional statements. Only accused Umer Ayaz recorded his confessional statement, while the other accused refused to record their confessional statements. During physical custody, accused Muhammad Aslam confessed his guilt before the I.0 and he recorded his statement u/s 161 Cr.P.0 as well as in the CD cassette. On 16.7.2020, he produced accused Radul and Mir Palim before the Illaqa Judicial Magistrate expressing their unwillingness regarding exhumation proceedings. He sent the incriminating articles to the F.S.L. On 12.8.2020, the I.0 took possession of a mobile set galaxy 17 from accused Fida Ullah, alleging that the accused Umer Ayaz used the device for recording the obscene video with the deceased ladies. He sent the USB to the F.S.L and received the F.S.L report along with photographs and placed the same on file. He also received F.S.L report regarding blood-stained earth, blood-stained piece of cloth and deform crime bullet of 9mm bore and placed the same on record. He sent the recovered mobile phone to Cyber Crime headed back to his house. He informed his friend and co-villager accused Fida Ullah about the video and warned him not to show it to anyone or share it with others as it could lead to humiliation and defamation. He asked accused Fida Ullah to delet the video. The accused Umar Ayaz Khan stated that he did not charge the accused Fida Ullah for sharing the video on social media as it was possible that someone else might have shared the video with who the accused Fida Ullah share it. He further stated that he was informed by his maternal cousin that the video had been uploaded to the internet and that after the video was made public, he consulted his family and decided to approach the family of the deceased and ask for the hands of the deceased girls in marriage. According to the accused Umar Ayaz Khan, before his family arrived at the deceased house-hold, they were informed that the two ladies had been murdered.
He stated that both the deceased girls were willing to marry him and that he had not coerced them into marriage as evidenced by the video recording.
5. It is worth mentioning that on 25.9.2020, Mr. Zahid Ali Khan, Judicial Magistrate-I, South Waziristan at Tank, on the direction of Sessions Judge, South Waziristan, went to Larahmi Qabristan, situated near Spina Maila, South Waziristan, for exhumation of dead bodies of deceased Jasmina Bibi and Saeeda Bibi. According to said Judicial Magistrate, 10/15 elders of the Tribe along with mothers of both the deceased ladies and father of deceased Jasmina Bibi appeared before him and informed him that a Jirga had decided that they would not permit exhumation of the dead bodies it would humiliate and disrespect the corpuses of their females, which is against Islamic teachings and their customs. That the mothers of both the deceased ladies showed their inability to identify the graves by stating that according to their customs females are prohibited from visiting the graveyard. The learned Magistrate concluded that, since the police failed to produce and convince anyone from the local community to identify the graves and deceased bodies during the proposed exhumation, the legal requirements for exhumation of the dead bodies had not been met, the procedure could not be carried out. The Judicial Magistrate submitted report alongwith statements to the Sessions Judge, South Waziristan at Tank for information.
6. On completion of the investigation, complete challan was put before the trial court, where upon the commencement of trial, copies of the relevant documents were provided to the accused, in compliance with Section 265-C, Cr.P.C. Charge was framed against the accused, to which they pleaded not guilty and claimed trial. In order to substantiate charge against the accused, the prosecution produced and examined as many as 05 witnesses. Following the conclusion of the prosecution's evidence, statements of accused under section 342, Cr.P.C. were recorded wherein they professed innocence and false implication. However, they neither opted to be examined on oath in terms of Section 340(2), Cr.P.C. nor did they produce defence evidence. The trial Court, after hearing arguments, vide impugned judgment dated 22.9.2021, acquitted the accused/respondents, hence, the instant criminal appeal.
7. Arguments of learned counsel for appellant were heard in motion. Record gone through.
8. It is cardinal principle of criminal law and natural justice that every person, accused of an offence, is to be considered innocent, unless and until proved guilty on the basis of legal and unimpeachable evidence. However, after facing full-fledged trial, if an accused of a crime is acquitted by the competent Court of law, then a presumption of his innocence gets doubled and very strong and exceptional circumstances are required to overturn the conviction judgment. At the same time, the rules and principle of appreciation of evidence in appeal against conviction is different to that of appeal against acquittal. In appeal against conviction the evidence has to be apprised and evaluated in a rigid and strict manner whereas in appeal against acquittal such stringent method of appreciation of evidence cannot be carried out. In this respect guidance is derived from the case of "Amin Khan Vs. Janab Gul and others" reported in 1984 SCMR 937, wherein it was held that: "We have heard the learned counsel for the appellant as well as the learned State counsel at length We have also gone through the impugned judgment as also the relevant portions of the evidence on the record. We are in respectful agreement with the view taken by the High Court in the impugned judgment It is Amin Khan appellant (complainant) against whom the accused- respondents sought the revenge for having beaten their father and if he had been present along with Gul Fraz (deceased) they would have fired at him rather than the deceased and would not have allowed him escaped unhurt. We also respectfully agree with the view taken by the High Court that the medical evidence contradicts the version given by the eye-witnesses. We feel that it is an un-witnessed occurrence and the accused-respondents were named merely on suspicion.
We do not find any flaw in appreciation of the prosecution evidence by the High Court and as such do not consider it a fit case for interference. The appeal is consequently dismissed".
9. It is well settled by now that while dealing with an appeal against acquittal, the appellate Court is to see as to what illegality the trial Court has committed in acquitting the accused and as to whether the judgment impugned is arbitrary, mechanical and perverse. The appellate Court is under its bounden duty to reappraise the evidence and after application of judicial mind, decide the fate of an appeal, so that miscarriage of justice could be avoided. It is equally true that to upset the findings arrived at by a trial Court, extraordinary care is required especially, in an appeal against acquittal. The apex Court in the case of "Muhammad Riaz v. Khurram Shehzad and another" reported as 2024 SCM R 51, held that: "In the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), this Court laid out the most important and consistently followed principles with respect to the presumption of double innocence and stated that (1) In an appeal against acquittal the Supreme 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 than that in an appeal against conviction when leave is granted only for the reappraisement 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. It was further held that the Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to a conclusion different from that of the Court acquitting the accused, provided both the conclusions are reasonably possible. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 SC 554) this Court, while considering numerous pronouncements of the Supreme Court held that it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled".
10. It is evident from the record that in the present case, unfortunately two young girls had lost their lives, however, this alone would not be sufficient to absolve the prosecution of its liability to prove its case beyond reasonable doubt. In the present case, the occurrence allegedly took place on 14.5.2020 at 14:00 hours, whereas the matter was reported on 15.5.2020 at 18:10 hours. Undeniably, the occurrence is unseen one and complainant Loye Daraz Khan, on receiving information about the murder of two ladies, rushed to the crime village where it was told to him that they were murdered by their cousin, reportedly due to their objectionable video with accused Umer Ayaz, which had gone viral on social media. According to the prosecution version, the motive behind the offence was allegedly the objectionable video featuring the two deceased women and the accused Umer Ayaz. Although said mobile phone was taken into possession during investigation of the case which was sent to the F.S.L, however, there is no report on file to confirm that the said mobile phone belonged to the accused and the alleged video was recorded using that phone and more particularly that the video featured the accused and the two deceased women.
11. So far as confessional statement of accused Umer Ayaz is concerned, suffice it to say that the statement of accused (Ex: PW 3/1) as recorded by Sher Hassan, Judicial Magistrate, wherein he acknowledged friendship with the deceased women, does not constitute a confessional statement, specially given that the accused has not been charged with the murder of the two women.
12. For the aforesaid reasons, we have come to an inevitable and unavoidable conclusion that the prosecution was unable to prove its case against the respondents/accused beyond any reasonable shadow of doubt and therefore, the learned trial Court was justified to extend the benefit of doubt to the respondent. The impugned judgment is based on sound reasoning, which is not open to any exception. Accordingly, this criminal appeal, being meritless, is dismissed in limine.