1. ' CHAUDHRY MUHAMMAD TAJ, J.--- This acquittal appeal has been preferred against the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir whereby the appeal filed against the judgment of the Additional District Criminal Court, Pallandri convicting the respondents was accepted and the accused-respondents were acquitted of the charge of murder.
2. ' The facts are that a case under section 5, Islamic Penal Laws Enforcement Act read with section 34, A.P.C. Was registered against the respondents and another accused Muhammad Afsar. All the accused persons were sent to face trial before the Additional District Criminal Court, Pallandri and later on the same was transferred to the District Criminal Court, Kotli. The trial Court after conclusion of the trial acquitted all the accused persons. An appeal filed before the Shariat Court of Azad Jammu and Kashmir was dismissed. However, a further appeal before the Supreme Court of Azad Jammu and Kashmir was accepted and the case was remanded to the trial Court to decide the case afresh in accordance with law.
3. ' The Additional District Criminal Court, Pallandri in the second round concluded the case convicting all the accused. The respondents were sentenced to 14 years' R.I. Each. The convicts filed their appeals before the Shariat Court of Azad Jammu and Kashmir against their conviction and sentence. The complainant also filed an appeal for enhancement of the -sentence. The appeal filed by the respondents including that of the other accused (not before this Court) was accepted while the appeal filed by the complainant was rejected. Thus, the accused-respondents were acquitted. Hence this appeal.
4. ' According to prosecution the occurrence took place on 15-9-1982 at 6-30 p.m. The F.I.R. Was lodged by Muhammad Ayub P.W. At Pallandri Police Station therein that he had gone. To the house of Amir Muhammad and later on when he was on his way to his house alongwith said Amir Muhammad, he reached near Nallah at 6-30 p.m. And saw that Sattar Muhammad deceased was being attacked by respondents Khadim Hussain, Nazir Ahmed and another accused Muhammad Afsar. Muhammad Afsar was armed with a hatchet and he started inflicting injuries on the person of Sattar Muhammad while Khadim Hussain and Nazir Ahmed were exhorting Muhammad Afsar to put the life of Sattar Muhammad to an end. On the hue and cry raised, by Sattar Muhammad deceased Mst. Farooq Jan and Mohabat Khan, were also attracted to the spot. The motive as alleged in the F.I.R. Was that one Mst. Rashida Begum was previously married to Muhammad Afsar accused, subsequently got a decree for dissolution and married to Qurban Hussain the son of deceased Sattar Muhammad. Mst. Rashida Begum was the sole heir of her father. Thus, Durban Hussain her husband was constructing a house at the site where previously the house of the father of Mst. Rashida Begum was constructed. The incident of second marriage gave rise to the enmity in the minds of the respondents and other accused by taking the vengeance from Sattar Muhammad the father of Qurban Hussain by putting his life to an end. It was further stated that after the incident Sattar Muhammad got his dying declaration recorded and shortly after he succumbed to the injuries. Muhammad Ayub the first informant, Amir Muhammad, Mst. Farooq Jan and Mohabat Khan are stated to be the eye-witnesses of the occurrence. The complainant Muhammad Ayub is also reported to have recorded dying declaration as well.
5. ' The prosecution produced as many as 10 witnesses namely Muhammad Ayub complainant, Sub.
6. Jan Muhammad, Mst. Farooq Jan, Amir Muhammad Khan, Mohabat Khan, Muhammad Abbas Khan, Muhammad Ramzan Patwari, Dr. Anayat Ullah C.M.O., Amjad Hussain, Head Constable and Javid lqbal, S.H.O. In support of the prosecution version.
7. ' It may be stated that in the first round both the trial Court (District Criminal Court) and the appellate Court (Shariat Court) acquitted the accused-respondents but the conviction was recorded by the Additional District Criminal Court, Pallandri in the second round when the case was remanded to the above Court by the Supreme Court after setting aside the acquittal recorded by the District Criminal Court, Kotli and the Shariat Court.
8. ' The Shariat Court of Azad Jammu and Kashmir while accepting the appeal against the conviction mainly based its order on the statements of witnesses which were regarded as contradictory. The motive was also considered not to be proved. The Court further observed that in the circumstances of the case particularly the medical evidence and the statement of Muhammad Ayub first informant the dying declaration was also doubtful. The time mentioned in the first information report and in the statements of the witnesses was also doubted by the Shariat Court in view of the place of occurrence and other circumstances shown in the prosecution case.
9. ' Raja Sher Muhammad Khan, the learned counsel for the appellant has assailed the judgment of the Shariat Court on the following main grounds:--
(i) that Shariat Court in its judgment has failed to appreciate and construe the evidence recorded in light of well-settled principles of law which is based on surmises and personal analysis;
(ii) that trial Court i,e, the Additional District Criminal Court after appreciating the evidence came to the conclusion that the accused-respondents are guilty of offences and, therefore, conviction was recorded accordingly; Kh. Muhammad Yusuf Saraf and Mr. Ishfaque Hussain Kiyani, the learned counsel appearing for the respondents maintained:--
(a) that the appeal has been filed on behalf of complainant. State has not preferred any appeal, therefore, complainant under law is debarred from filing an appeal against the order of acquittal.
10. The appeal entails dismissal;
(b) that the F.I.R. Is reported to have been lodged by Muhammad Ayub who in the first instance has supported the prosecution case but later on has resiled. He moved an application before the trial Court alongwith an affidavit stating therein that he is not the scribe of the first information report and has also not seen the occurrence rather he was compelled by the police to become a prosecution witness and a witness of dying declaration. It was emphasised that police concocted the case against the respondents;
(c) that the prosecution witnesses Amir Muhammad. Mohabat Khan and Farooq Jan are closely related inter se and to the deceased as well; apart from the fact that they are chance witnesses.
11. Therefore, their evidence in the circumstances of the case cannot be relied upon;
(d) that the dying declaration is recorded by Muhammad Ayub who in his application moved before the trial Court has stated that he has neither got recorded the F.I.R. Nor dying declaration even otherwise the dying declaration does not appear to be genuine one particularly in presence of nature of injuries sustained by the deceased he was unable to speak;
(e) that the motive alleged in the prosecution case is not proved;
(f) that the whole evidence is contradictory, full of doubts and does not confer any confidence; and
(g) that Shariat Court of Azad Jammu and Kashmir after the appraisal of evidence acquitted the respondents and this Court does not enter into reappraisal of evidence.
12. ' Before adverting to the merits a preliminary objection raised by Kh. Muhammad Yusuf Saraf with regard to the incompetence of the appeal filed by the complainant may firstly be attended to. The learned counsel for the respondents has maintained that a complainant or an aggrieved person cannot prefer an appeal against an order of acquittal, it is the State alone which is competent to file an appeal. The learned counsel laid a stress that appeal may be dismissed on this sole ground.
13. ' The right of appeal is provided under the provisions of Islamic Penal Laws Act and is exercisable by complainant or any other aggrieved person. The proposition came under consideration before this Court in a case titled Abdul Karim and 6 others v. Tahir-ur-Rehman 1990 PSC 735. After surveying the whole case-law this Court arrived at the conclusion that the complainant or any other aggrieved person can competently file an appeal against the acquittal order of the Shariat Court in a case registered under Islamic Penal Laws Act. This point was also urged in the instant case in the earlier round by the same respondents before this Court and while disposing the appeal it was observed at page 9 of the judgment in the following words:-- "The distinction between the right of appeal against an order of acquittal and conviction envisaged in the Code of Criminal Procedure is not recognised by the provisions contained in the Islamic Penal Laws (Enforcement) Act, 1974. Thus, we hold that a complainant or an aggrieved person is not debarred from preferring an appeal against an order .Of acquittal. The Shariat Court should have disposed of the appeal as such instead of treating the same as revision. The view taken in case reported as Abdul Karim v. Tahir-ur-Rehman 1990 PSC 735 so far as it conflicts with the view taken in the case in hand stands overruled."
14. ' In view of the settled law discussed above and the observations made in the case the preliminary objection merits no consideration and is hereby repelled.
15. ' The other points raised by the counsel for the parties relate to the appreciation of evidence. So far as the question of scope of appreciation or appraisal of evidence is concerned, the superior Courts have consistently laid down that in an appeal against an acquittal the Supreme Court would not on principle ordinarily interfere and shall give a due weight and consideration to the findings of the Court acquitting the accused and the Court shall avoid reappraisal of evidence as held in Ghulam Sikandar and another v. Mumaraz Khan and others PLD 1985 SC 11:-- "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.
16. This approach is slightly different from 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. The acquittal will not carry the second presumption and will also thus loose 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."
17. ' The matter also came under consideration in case reported as Yar Muhammad and Iothers v. The State 1992 SCMR 96, wherein it was observed:-- "In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing an acquittal appeal and the principles of setting aside an order of acquittal are now well- settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."
18. ' In another case reported as Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305, the following observation was made:-- "Trial Court's judgment having been supported by sound reasons Supreme Court could not substitute its own findings in place thereof unless it reached the conclusion that the findings of the trial Court as well as those of the High Court were "artificial, shocking, ridiculous, based on misreading of evidence and leading to miscarriage of justice."--- No legal error was found in the judgments of the lower forums after scanning the evidence."
19. ' In view of the state of law discussed above we would have avoided the reappraisal of evidence.
20. However, in the safe administration of justice it was deemed expedient to appraise the entire evidence particularly in the circumstances when the trial Court in the first round acquitted all the accused persons but in the second round convicted all the accused including the respondents, herein, and in appeal the Shariat Court acquitted all the accused persons including the respondents. The following are the important features arising out of the evidence:--
(i) Muhammad Ayub complainant in the first instance supported the prosecution case but subsequently he resiled from his statement. He moved an application supported by an affidavit stating therein that he has neither seen the occurrence nor he has got recorded the first information report and further submitted that the dying declaration allegedly brought on record is not recorded by him. This witness was duly cross-examined by both sides while recording his subsequent statement after being declared as hostile witness. The Shariat Court did not rely on any part of his evidence,
(ii) the evidence of eye-witnesses reveal that there are serious contradictions in their statements particularly in the statement of Sub. Jan Muhammad who claims to be present in the house of Sattar Muhammad immediately after the occurrence but knows nothing about the accused persons, their identity or the manner of incident.
(iii) that the alleged dying declaration is not free from serious doubts and its genuineness is doubted in the following circumstances:--
(a) Muhammad Ayub scribe of the dying declaration allegedly recorded immediately after the occurrence at the residence of Sattar Muhammad deceased has denied of its being recorded by him;
(b) In the medical report made by the Doctor the following injuries are mentioned:--
(i) Incised wound of 2-1/2" x 1" on right forearm 3" above the right wrist joint. Radius underlying structure were cut;
(ii) Incised wound on neck on Rt. Side at the level of cricoid cartilade Trachea was cut on Rt. Side.
21. External cavoted artery and muscle.
(iii) Incised wound 5" x 2-1/2" x 2-1/2" on Rt. Side of neck just starting from Rt. Supra cleniculor region and going the underlying structures was completely cut;
(iv) Incised wound 6" x 2" x 2" on scalp on Rt. Parietal region. Skull bones were fractured and brain substance was damaged;
(v) Incised wound 3" x 1/2" x 1/2" on occipital cutting scalp bones/damaging brain substance; and
(vi) Incised wound on Rt. Side of face with cutting Rt. Mandible 3" x 2" x 2" in oblique direction."
22. ' Keeping in view the injuries sustained by the deceased Sattar Muhammad it was hardly possible for him to speak after sustaining such injuries particularly the injuries Nos.3 to 5.
(iv) the site plan and ocular evidence provide a description of the residential houses of deceased and the accused persons and also indicate the place of occurrence, it is thought provoking that the occurrence can take place in such an open place at this time particularly when the enmity is claimed by the prosecution against the accused persons,
(v) all the prosecution witnesses are closely related inter se and to the deceased as well. The statements of eye-witnesses contradict each other on important points which has been discussed in detail by the Shariat Court in the impugned judgment,
(vi) there is no evidence against the respondents of causing any injury to the deceased rather there is no allegation as such the respondents were empty-handed as alleged by the prosecution.
(vii) the respondents are real brothers of principal accused Muhammad Afsar who is attributed of causing injuries to the deceased and is absconding since an appeal against his acquittal by Shariat Court, is filed.
23. A perusal of the impugned judgment shows that Shariat Court appreciated the evidence in a legal fashion and we do not find any illegality or infirmity so far as the case of the respondents, herein, is concerned.
24. ' In view of the above discussion the appeal fails and is hereby dismissed.