' MUHAMMAD BASHIR JEHANGIRI, J.---This petition is directed against a judgment passed by the Lahore High Court, Rawalpindi Bench, in a murder case whereby Liaqat Hussain, an alleged paramour of Mst. Sughran Bibi, widow, Mst. Azhra daughter and Tanveer Shah son of Sarwar Shah, and one Mst. Shaheen Bibi, who is sister of Mst. Sughran were acquitted.
2. The facts of the case indicated in the petition for leave to appeal are that on 26-4-1994, the petitioner lodged an F.I.R. At 3.45 p.m. At Police Station Industrial Area, Islamabad about disappearance of his brother Sarwar Shah about five months earlier. His wife Mst. Sughran Bibi accused had told him that Sarwar Shah had gone to cattle market for purchasing a buffalo and had advised her that "she should not disclose about him for 6/7 days". The petitioner and his elder brother Anwar Shah searched for their brother Sarwar Shah at different places of Punjab and with their relatives but they could not find him. The petitioner came to know on 26-4-1994 that the relations between Sarwar Shah deceased and his wife Mst. Sughran Bibi were strained. The petitioner stated that he strongly believed that his brother Sarwar Shah had been murdered by the respondents in prosecution of their common object. On the registration of F.I.R., the accused/respondents were arrested.
3. The investigation in this case was conducted by Syed Hassan Ran Shah, Inspector/S.H.O. (P.W.9)
Police Station, Industrial Area, alongwith other police officials who went to the spot for investigation.
On the arrest of Liaquat Hussain respondent on 27-4-1994 and during the interrogation all the said accused are alleged to have disclosed to the Investigating Officer that they had murdered Sarwar Shah and also that Tanvir Shah accused was with them; that they could point out the place where they had killed Sarwar Shah. It is claimed that the Investigating Officer got recovered the dead body from a place called "Jungle" duly buried near a filth depot from a ditch covered by rubbish.
The hatchet, 'Gainti' and a spade were also got recovered whereupon the accused allegedly led the police to the house of Sarwar Shah. The photograph of the dead body and of the ditch were taken. The postmortem was conducted on the spot and site plan of the place was got prepared by a draftsman. The Investigating Officer recorded the statement of the P.Ws. And altered the offence from section 364/34, P.P.C. To sections 302, 201 and 149, P.P.C.
4. After usual investigation, the respondents were challaned and sent to the Court of Session to stand their trial. On perusal of evidence, the learned Sessions Judge observed that the case in hand rested "on circumstantial evidence and that too merely of recoveries". While relying on Allah Ditta v. The State (PLD 1958 SC (Pak.) 290), the learned Sessions Judge further observed that circumstantial evidence in the instant case was not "of such a nature that no reasonable hypothesis of innocence of accused was possible". According to him the motive on the part of the accused to murder Sarwar Shah deceased did not seem to have been proved inasmuch as Munawar Shah complainant (P.W.8) did not mention in his complaint Exh.PA any illicit liaison between Mst. Sughran Bibi and Liaquat Hussain accused-respondent.
5. After recording the prosecution evidence and statement of the accused under section 342, Cr.P.C., the learned Sessions Judge, Islamabad recorded an otder of acquittal of all the accused vide his judgment dated 30-1-1999. According to the learned trial Court even in the witness-box Munawar Shah (P.W.8) had admitted during cross-examiantion that he did not know about any illicit relations between the abovementioned two accused. As to the recoveries, it was noticed that the same were made on 27-4-1994 and that after two days, the accused were remanded to the judicial custody. The challan is stated to have been filed in the Court on 2-6-1994; the statement of Abdul Ghani (P.W.4) was recorded on 1-6-1994. He had stated that he had seen Mst. Sughran. Bibi and Liaquat Hussain accused quarrelling to each other and that he separated them. According to the learned Judge Mst. Sughran respondent at that time was wearing no Shalwar. It was observed that Abdul Ghani was resident of Dhoke Iqbal and it was queer to note that he knew one fact but it was known to the complainant who is brother of the deceased. Although it was the information of Abdul Ghani (P.W.4) that the complainant-petitioner had based the prosecution case to the effect that the accused/respondent wanted to get rid of Sarwar Shah. Reliance was placed on Muhammad Iqbal v. The State (1984 SCM R 930) and Allah Din and another v. The State (1976 P.Cr.L.J 249) to hold that the statement of witnesses recorded that delays could not be taken into consideration. The recovery of hatchet was doubted on the ground that no mention was made of its being blood-stained which was recovered on 27-4-1994 and sent to the Chemical Examiner on 17-5-1994 but the constable delivered them on 18-5-1994. According to the learned trial Judge, the recovery of hatchet after lapse of five months of the commission of the offence and their delayed sending to the Chemical Examiner and admitting that those were not bloodstained were of no consequence. Even on legal plane, the recovery of the incriminating material was held to be shrouded with doubts, particularly when the recovery of the dead body or of the incriminating articles was made out at the pointation of the accused from a place accessible to the public. On the above reasoning, the learned trial Judge came to a definite conclusion that the prosecution has miserably failed to prove any motive on the Part of.The accused to get rid of Sarwar Shah deceased and also convinced this Court to believe the fairness of the recovery of incriminating articles and that of the dead body on the pointation of the accused. All the accused/respondents were, therefore, acquitted of the charge by giving them the benefit of doubt.
6. The petitioner, feeling aggrieved, filed an appeal before the Lahore High Court, Rawalpindi Bench, against the judgment of acquittal of the accused/respondents recorded by the learned Sessions Judge, Islamabad.
7. The learned Division Bench seized of the appeal against the acquittal of the accused/respondents, after hearing the learned counsel for the parties and perusal of the record, concluded that the complainant/appellant had appeared as P.W.8 at the trial but did not make any mention of the illicit liaison between Mst. Sughran and Liaquat Hussain respondents in the F.I.R.
Exh. PL. The motive part of the prosecution case was introduced for the first time on 1-6-1994 in the statement of Abdul Ghani (P.W.4) recorded under section 161, Cr.P.C. Just a day before submitting the challan before the trial Court. According to the learned Judge, the delay in recording the statement of Abdul Ghani (P.W.4) by the police was not at all accounted for. Again it was observed that a number of persons of the locality had gathered at the time of -recovery of the incriminating articles and the dead body of the deceased but none of them was associated to witness the recovery Muhammad Miskeen (P.W.3) and Salim Akhtar (P.W.5) who were associated with the recoveries belonged to distant places and, therefore, their presence at the time of recovery of the articles and the dead body could not be termed in ordinary course as natural. In the such-like suspicious circumstances, according to the learned Judges of the Division Bench, the acquittal of respondents recorded by the trial Court by extending to them the benefit of doubt was legally sound. The appeal was thus dismissed.
8. Syed Akhtar Abbas learned Advocate Supreme Court, in support of this petition, has reiterated before us the contentions which had been raised before the learned Division Bench of the Lahore High Court but were repelled on solid grounds. Right from lodging of the F.I.R. Till the conclusion of the trial every step taken by the complainant and the Investigating Agency was not confidence- inspiring and was of no evidentiary value under the law. The reasoning that prevailed with the learned trial Judge duly upheld by the learned Judges of the Division Bench in repelling the propriety of the delay in lodging of F.I.R., the motive, the discovery of the dead body andother incriminating material was rightly disbelieved and for cogent reasons. Be that as it may, it is conceded that it was case of circumstantial evidence. It was, therefore, necessary that cumulatively its effect should be to exclude any reasonable hypothesis of innocence of the accused. In the case of Allah Ditta (supra), this Court had long ago laid down the principle as to how circumstantial evidence in a case should be dealt with and if those principles laid therein are not followed then circumstantial evidence in the case would be of no avail. It is queer to note that if the motive part of the prosecution evidence is accorded credence, it does not sound reasonable that the son and daughter of the deceased would join hands with their mother to kill their real father when the motive is said to be the existence of illicit liaison between their real mother, Mst.
Sughran and Liaquat Hussain accused/respondent. In order to believe such an eventuality, complete depravity of the conduct and character of the son and the daughter had to be proved.
Nothing of this sort was brought on the record so as to convince us that the motive of the occurrence was correct and murder had taken place in the manner it was tried to be substantiated. In the case of Allah Ditta supra, which was noticed by the learned Judges of the Division Bench also it was held that where the claim of circumstances established against the accused person raises a strong probability that he is guilty of the offence charged, thus constituting a strong case which may be placed before a jury, it is not sufficient for the accused to suggest a mere hypothesis or a remote possibility in order to rebut that case. It was held that in order to gain a favourable verdict, it would be necessary for the accused to set up facts upon which he may rely as exculpatory circumstances sufficient to cast a reasonable doubt over the prosecution case. From the record of the present case, such impunity and exculpatory circumstances stare in one's face. In a recent case of Muhammad ljaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCM R 1281) a Bench of learned three Judges while relying upon Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), held that in a case where there is no ocular evidence connecting any of the respondents with the commission of the offence alleged against them it would not be safe to record conviction of the accused particularly when any link in the chain in the circumstantial evidence is missing. The delay in recording the statement of Abdul Ghani (P.W.8), was also held to have raised serious doubt about its genuineness and propriety of his testimony.
9. Be that as it may, the ordinary scope of petition or appeal against acquittal of the accused/respondents is considerably narrow and limited. On the examination of the order of the acquittal as a whole credence should be accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the crime. It is an established principle of law that obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from that against acquittal because presumption of double innocence of the accused is attached to the order of acquittal. On reappraisal of evidence and scrutiny of the record, we genuinely feel that prosecution could not substantiate the accusations or produce tangible evidence reasonably connecting the accused respondents for causing murder of deceased Sarwar Shah. We have not been able to notice in the instant cake any impropriety, illegality or infirmity in the concurrent findings of the learned Courts below which are based on sound and cogent reasons which may warrant our interference.
10. We accordingly find no substance in the petition which stands dismissed and leave is refused.