MUHAMMAD YUNUS SURAKHVI, J.--- This appeal is directed against an order recorded by the Shariat Court of Azad Jammu and Kashmir on May 15, 1995 whereby the accused/respondent was acquitted of the offence under section 15, Islamic Penal Laws (Enforcement) Act.
2. The precise facts of the case, as disclosed in the written report, lodged by Maqbool Hussain, the first informant, on July 2, 1988, at Police Station Khoiratta, District Kotli are that on 1-7-1988 at about 8-30 p.m. He alongwith his father, Abdul Aziz and other members of his family was sleeping in his .Compound that the accused party, namely, Muhammad Lal, Muhammad Asad, Muhammad Afsar, Muhammad Faryad and Rehmatullah armed with hatchets and sticks unlawfully entered into his house with common intention of committing offences. They raised Lalkaras and initiated attack.
Accused Muhammad Lal (respondent herein) inflicted injury with his hatchet on the left arm of Abdul Aziz, the father of complainant, as a result of which his left arm was cut and bone was broken into pieces. Muhammad Lai accused also inflicted an injury on the head of his father with stick.
Rehmatullah accused inflicted a stick injury on his father. Muhammad Faryad accused also inflicted-an injury with stick on the right arm of his father. Abdul Aziz, the father of complainant, on account of injuries, fell down. Muhammad Afsar accused caused a stick injury on the head of complainant. The rest of accused also inflicted injuries with sticks on his arm and back. Mst. 2eenat Begum, the sister of first informant, intervened but she was inflicted a stick injury on her right eye by Asad accused. Accused Faryad also caused an injury on the back and right hand of his sister with stick. On the noise of injured persons Muhammad Bashtr, Khalid Hussain and Muhammad Hussain co-villagers were attracted at the place of incident who saw the occurrence and saved the injured persons from the clutches of the accused. The motive for the occurrence is stated to be a dispute between the parties over a Khalsa land. The father of the complainant wanted to get the partition of the said Khalsa .Land whereas the accused was opposed to it and wanted to deprive the father of the complainant from the said Khalsa land On account of the aforesaid enmity, the incident is stated to have taken place. On the report lodged by the complainant a case under sections 307, 448, 147. 148, 149, A.P.C. Read with section 15, I.P.L. (Enforcement Act) was registered against the respondent and the co-accused at Police Station Khoiratta.
3. The police after registration of the case and having concluded the investigation forwarded the respondent and co-accused for facing their trial in the aforesaid offences before Additional Tehsil Criminal Court, Kotli, which after conclusion of the trial vide its judgment, dated August 10, 1992, acquitted the accused except respondent who was convicted under section 15, Islamic Penal Laws (Enforcement Act) and awarded him the sentence of Rs.25,000 as Hakoomat-e-Adal. Feeling aggrieved with the conviction order recorded by Additional Tehsil Criminal Court, Kotli, the respondent (herein) preferred an appeal before the District Criminal Court, Kotli which vide its order, dated November 14, 1994, upheld the sentence awarded by the trial Court and dismissed the appeal. The accused/respondent then filed another appeal before the Shariat Court of Azad Jammu and Kashmir which vide its order, impugned in this appeal, dated May 15. 1995, was accepted and the respondent/accused was acquitted. Hence this acquittal appeal on behalf of complainant as of right.
4. Arguing the case on behalf of complainant, Ch. Muhammad Azam Khan, the learned counsel, submitted with vehemence that Shariat Court fell in error and committed a grave illegality in acquitting the accused/respondent.
According to the learned counsel the accused/respondent was fully connected with the offence under section 15, I.P.L. (Enforcement) Act and there was no material on record suggesting his innocence. The prosecution story, according to the submission, pressed into service by the learned counsel, stood fully proved in material particulars beyond any reasonable shadow of doubt but all the same the Shariat Court, on the basis of mere assumptions and superficial grounds acquitted the respondent. It was also emphasised by the learned counsel for the complainant that even if there were some minor contradictions in the evidence of the prosecution witnesses, the same, according to the learned counsel, do not materially affect the prosecution case and as such the conviction order recorded by the trial Court and upheld by the District Criminal Court was perfectly valid, warranting for no interference by this Court.
5. Controverting the arguments of the learned counsel for the complainant, Mr. Abdul Majeed Mallick, the learned counsel for the accused/respondent strenuously contended that the prosecution miserably failed to bring guilt home to the respondent. The precise contention of the learned counsel for the respondent is that the occurrence did not take place in the manner as it is alleged by the prosecution. It was emphasised that during the occurrence the accused/respondent was also injured and he sustained many injuries on his person but this significant aspect of the case was totally suppressed by the prosecution. According to the learned counsel the oral version of the prosecution does not find any support from the medical evidence.
Even the recovery allegedly affected from accused/respondent does not in any way corroborate the prosecution story. The origin of fight between the parties, as is apparent from the record, is shrouded in mystery. The learned counsel maintained that as a matter of fact the complainant party was the aggressor as it initiated the attack as a result of which the accused was also injured.
The learned counsel maintained that the Shariat Court committed no illegality in acquitting the accused/respondent and the accused /respondent, due to enmity, was en-roped in afalse case.
6. The prosecution in order to prove its case produced Maqbool Hussain, Abdul Aziz, Mst. Naseem Akhtar, Shaheen Akhtar and Mst. Zeenat Begum as injure eye-witnesses. Another set of eye- witnesses produced by the prosecution consists of Khalid Hussain, Muhammad Bashir and Muhammad Hussain whose names have been duly mentioned in the first information report. They are alleged to have witnessed the occurrence and were attracted at the place of incident on the noise of the injured persons. Muhammad Bostan and Khalid Hussain P.Ws., are stated to be the recovery witnesses of the hatchet produced by the accused/respondent. P.W. Sikandar Hayat A.S.I.
Partly conducted the investigation of the case who prepared the site plan and its explanations, Muhammad Gulfaraz Khan S.H.O. Recorded the F.I.R. Lodged by the complainant and prepared injury sheets of the injured witnesses as well as the accused/respondent. Dr. Ch. Muhammad Riaz examined the injured witnesses and accused /respondent and submitted his medico-legal reports. This is the surr total of the prosecution evidence produced in support of its case. Accused- - respondent when examined under section 342, Cr.P.C. Raised a plea that complainant party initiated the attack and injured him.
7. We have heard the points canvassed by the learned counsel for the parties and perused the record including the impugned judgment with care. The prosecution story, as disclosed in the F.I.R., starts with a clear assertion that the complainant alongwith his father Abdul Aziz and other members of his family was sleeping in his compound at 8-30 p.m. When the accused persons opened the attack and caused injuries on the members of the complainant party. It is further stated in the F.I.R. That accused unlawfully entered the house of the complainant, armed with hatchets and Lathis and initiated the attack but the evidence of the witnesses and the record reveals that both the accused and complainant party were talking with each other on their dispute over a Khalsa land at the relevant time that during the conversation some altercation developed on account of which the accused/respondent got flared up and caused injury on the left arm of Abdul Aziz, the father of complainant with his hatchet. Mst. Shaheen Akhtar, when appeared as a witness in the Court, deposed that both, the accused and complainant party were talking with each other in the compound of complainant regarding the partition of Khalsa land. The accused were called by the complainant to settle down the dispute and during their talks there was an exchange of hot words and abuses between the parties. Then the accused all of a sudden infuriated and inflicted injury on the person of Abdul Aziz and so on. This witness is closely related to complainant, as she is wife of Abdul Latif, the brother of the complainant. Similarly Zeenat Begum P.W., the daughter of Abdul Aziz and sister of complainant deposed that both the parties in the first instance exchanged abuses with each other and then a quarrel started. This witness was attracted at the place of occurrence from her house situated at a distance of about one furlong from the place of occurrence, as disclosed by her in her police statement Exh.D.D. In a portion marked as "A to A". The statement Exh.D.D. Was duly confronted to the witness during her cross--examination which she denied. Mst. Shameem Akhtar P.W., wife of Maqbool Hussain, complainant, another prosecution witness, deposed, when appeared in the Court, that when the quarrel started her husband and father-in-law were busy in taking their night meals. Maqbool Hussain, complainant, categorically stated in his statement before the Court that his father, Abdul Aziz, had gone to his house where both were sitting that the quarrel started. The above portions of the statements of witnesses have been narrated just to show that the occurrence did not precisely take place in the manner as is disclosed by the prosecution in the F.I.R. The other set of prosecution witnesses, namely, Khalid Hussain, Muhammad Bashir and Muhammad Hussain, who are duly named in the F.I.R., cannot be believed simply for the reason that after perusal of their evidence it became clear like crystal that they reached the occurrence after the injury with the hatchet had already been caused to Abdul Aziz, the father of the complainant. Khalid Hussain P.W. Clearly stated in his evidence that when he reached at the place of incident and separated Muhammad Lal and Rehmatullah accused front the complainant party Muhammad Lal accused had already inflicted injury with his hatchet on Abdul Aziz. He also agreed with the suggestion by admitting it as correct that when he reached the place of occurrence the hatchet was in the hand of Asad accused and not the Lathi Similarly Muhammad Bashir and Muhammad Hussain P.Ws. When appeared before the Court as prosecution witnesses, though they supported the case of the prosecution, yet the fact remains that in their police statements Exhs.D.B. And D.C. They stated that on their arrival at the scene of occurrence Abdul Aziz had already been injured and was lying on the ground in an injured condition. The statements of these witnesses recorded by the police as Exh.D.B. And. Exh.D.C. Were duly confronted to the witnesses to which they denied but the fact appears to be that Khalid Hussain and these two witnesses reached the scene of occurrence afterward, when Abdul Aziz had already sustained the injury. This aspect of the case shows that these witnesses who are closely related to the p, complainant have been made to appear as eye-witnesses having seen the whole occurrence.
3. Even the alleged recovery of hatchet from accused/respondent is not supportive to the case of the prosecution. Khalid Hussain a marginal witness of recovery stated in examination-in-chief that hatchet was recovered from Asad accused. Muhammad Bostan the other marginal witness deposed in a casual way that sticks and hatchets were recovered from the accused persons. This witness did not specifically state that any hatchet was recovered from the accused/respondent.
Sikandar Hayat, A.S.I. Stated in cross-examination that he directed the accused to produce the weapons of offence at the police station and on their doing so he recovered the same at police station. In our view this sort of I recovery effected by the Investigating Officer does not help the case of the prosecution. Moreso when the factum of recovery was not put to the accused under section 342, Cr.P.C. And no explanation was sought for from him. In this view of the matter the recovery of hatchet from the respondent cannot be taken into consideration and we consequently ignore it.
9. Another alarming and thought-provoking aspect of the case is that almost all the eye-witnesses are unanimous on the point that on account of hatchet injury on him the left arm of Abdul Aziz was cut and bone was broken into pieces. This suggests that the hatchet was used by the accused/respondent from its sharp side. The evidence of P.W. Khalid Hussain, Maqbool Hussain and Muhammad Bashir is clear in this regard. P.Ws. Shameem Akhtar and Zeenat Begum have categorically stated in their evidence that accused/respondent inflicted injury on Abdul Aziz with hatchet from its front side and both the bones were cut. Mst. Zeenat Begum even deposed that on account of injury the major portion of the arm was separated and a small portion of flesh remained intact. The oral version of the above stated eye-witnesses is totally contradicted by the evidence of Dr. Ch. Muhammad Riaz C.M.O., who examined the injured witnesses. The doctor observed two lacerated wounds on the person of Abdul Aziz, one on the middle scalp and the other on the left fore-arm. Both of them were caused by blunt weapon. The evidence of doctor being in conflict with oral version of the eye-witnesses positively suggests that the occurrence did not take place in the manner as it is alleged by the prosecution. During the course of fight between the two parties respondent/accused was also injured. His injury sheet Exh.P.G./2 is on the file which shows that he sustained 7 injuries. Dr. Ch. Muhammad Riaz examined the accused/respondent who found 4 injuries on his person. The medico-legal report of accused/respondent is on the file which is Exh.P.G./1. It is opined by the Medical Officer that respondent was injured with blunt weapon. It is significant to point out that neither the complainant nor any of the prosecution witness furnished any plausible explanation about the injuries caused to respondent during the fight. In fact the witnesses tried to suppress the injuries on the person of accused. Shameem Akhtar when suggested in the cross-examination admitted that Lal accused was also injured but she did not know as to who caused him the injuries. She expressed her inability as to who injured the respondent. Similarly Mst. Zeenat Begum and Shameem Akhtar also stated that accused was injured during the occurrence but they were not in a position to point out as to who caused the injuries. Sardar Gulfaraz Khan, S.H.O. Stated in the cross-examination that accused was injured and was got medically examined. The accused respondent also gave his own version of the incident which is mentioned in daily police diaries but the case was not registered. From the evidence of the prosecution as well as from the record it becomes clear that the accused-respondent also sustained injuries during the occurrence but the prosecution purposely suppressed the same.
Under law it was the paramount obligation on the part of the prosecution to explain as to how the accused was injured but the prosecution miserably failed in discharging its duty. In such a state of affairs when from the perusal of the record and the evidence of the prosecution witnesses it becomes doubtful as to which party initiated the attack and who first caused the injuries, the benefit of doubt must go to the accused.
10. In our considered view in the instant case, as the prosecution story goes it becomes highly doubtful as to which of two parties initiated the attack and injured the other. In such an eventuality as stated earlier, the benefit of doubt must go to the accused. The respondent, after thorough scrutiny and perusal of the record was acquitted by the Shariat Court. After an order of acquittal there is always a double presumption of innocence in favour of accused. In our view the Shariat Court has committed no illegality and the order recorded by it being perfectly valid and in consonance with law, requires no interference of this Court. The appeal, being devoid of any legal force stands dismissed.