1. The above captioned appeals are filed against the order passed by District Criminal Court, Mirpur on 31-10-2000, whereby Khursheed Ahmad accused is sentenced to 20 years; Sajid and Abaid-u--- Rahman accused to 10 years" rigorous imprisonment under section 302, Penal Code. The accused persons call in question the legality of the order while complainant Muhammad Aslam seeks enhancement of sentence.
2. The facts which culminated into filing challan against the accused persons before the trial Court on 17-12-1995 are that a case against them was registered at Police Station Mirpur on 2-12-1995 under F.I.R. No.347 of 1995 on the report of Muhammad Aslam who reported that Khursheed Ahmad visited his house on 2-12-1995 at 6-30 p.m and told Shakeel Ahmed to accompany him and that Sajid son of Abdul Majid and Ubaid--ur-Rehman's are also waiting for them near the graveyard.
Shakeel Ahmad went al ongwith Khursheed Ahmed in the presence of Muhammad Aslam.
Muhammad: Aslam went to mosque after a short while for offering Asha prayer during which Muhammad Farooq and Muhammad Kafeel came outside the mosque at 7-00 p.m. Called him out and Farooq told him that while coming home from dam side at 7-00 p.m. He saw near the shop of Abid and Atif accused persons Sajid and Ubaid-ur-Rehman's holding Shakeel Ahmed by arms while Khursheed fired on the left side of his head with .12 bore gun, who fell on the earth soaked in blood and all the three accused fled away. Atif and Sajid also came on spot on hearing the gun fire.
The motive for 'the offence as stated is that a few days before occurrence, exchange of hot words took place between Shakeel Ahmed and the accused persons on some transaction.
3. On completion of investigation the accused were challaned to face the trial. The accused did not plead guilty on which the prosecution produced fifteen witnesses before the trial Court out of twenty. Muhammad Farooq and Kafeel Ahmed eye-witnesses were not examined for being hostile and three others were given up as unnecessary.
4. The learned Advocates for the parties have filed written arguments in the case which have been duly considered in the light of the record and the judgment of the trial Court.
5. The facts which transpire after perusal of the record and written arguments filed by the learned Advocates for the parties are that Muhammad Aslam filed a report on 2-12-1995 on the basis of information received by him from Muhammad Farooq son of Muhammad Yasin who was accompanied by Muhammad Kafeel that Shakeel Ahmed was caught by arms by Sajid and Abaid-ur-Rehman's while Khursheed Ahmed fired on the left side of his head with .12, bore gun.
According to the record this occurrence took place near the graveyard adjacent to the shop of Sajid and Atif and it was witnessed by Muhammad Farooq and Muhammad Kafeel who were coming from the dam side. Muhammad Farooq and Muhammad Kafeel have not been produced by the prosecution as witness and they have filed affidavits before trial Court that they have not seen any occurrence. Sajid and Atif who reside near the place of occurrence and run a shop had been called from home by the accused for purchasing Nugdi (sweet) and after purchasing it the accused went towards graveyard alongwith deceased, while Sajid and Atif went to their home.
According to prosecution as soon as Atif and Sajid entered in the courtyard of their house, they heard a gun fire from the side of graveyard, they immediately rushed towards the spot and saw the accused persons running away through graveyard, however, they did not see anybody firing upon Shakeel Ahmed who had fallen dead on spot when they reached there. The gun with which the deceased was killed is licensed gun of Muhammad "Ayub who is partner of Sajid accused in running a poultry farm nearby and gun was recovered on pointation of Khursheed Ahmad from the poultry farm. Muhammad Ayub has also not been produced as witness neither has he been cited as such.
6. The arguments of the learned Advocates for the accused are that two alleged eye-witnesses Muhammad Farooq and Kafeel Ahmed have not been produced before the Court while the statements of prosecution witnesses are contradictory. According to them the case is concocted against the accused persons and a false story has been dug to implicate the accused persons. It is contended that it is impossible and illogical that the accused could have called upon the witnesses Sajid and Atif for purchasing "Nugdy" at the time of occurrence if they intended to kill Shakeel Ahmed and that too in the electric light. It is also contended that the doctor was very important witness from whom many questions regarding the fire, distance, pelts, injury etc. Could be asked, but he has not been produced before the Court. The learned Advocates have made reference to different parts of the statement of the prosecution witnesses on the basis of which it is contended that the accused could not be convicted on the basis of contradictory statements.
7. The learned Advocate for the complainant Muhammad Aslam in his written arguments has contended that the prosecution case is based on the statement of Muhammad Aslam in whose presence Shakeel Ahmed deceased accompanied Khursheed Ahmed accused from his residence to the place of occurrence, where Sajid P.W.3 and Atif P.W.4 have seen the deceased with the accused before the occurrence, at the time of occurrence and at the time the gun was fired by the accused. According to him ocular testimony of witnesses is supported by the recovery of .12 bore gun and crime empty on the pointation of accused and also by the recovery of blood-stained earth. The reports of fire-arms expert, Forensic Science Laboratory, injuries and inquest prepared by police, the site-plan prepared by the Revenue Officer are also pressed in written arguments as substantial proof of the prosecution case connecting the accused with commission of offence.
According to the learned Advocate ocular testimony supported by corroborative evidence proves the case against accused beyond reasonable doubt that Shakeel Ahmed deceased has been murdered by the accused persons with common object and intention. He has further contended that Muhammad Aslam P.W.1, Sajid P.W.3 and Atif P.W.4 are independent and impartial witnesses having no enmity with the convicts. The motive according to the learned Advocate is also explained by Muhammad Aslant P.W.1. According to him the prosecution witnesses support each other in every detail leaving no doubt. As for the failure of prosecution to produce Muhammad Farooq and Muhammad Kafeel is concerned the learned counsel contended that they were won over by the accused by bribe hence were not produced, as the case was otherwise proved. As for the non-production of doctor is concerned it is contended that he had left-for Saudi Arabia and his signature and handwriting is testified by Ishtiaq the record-keeper of the hospital. The witnesses according 'to the learned Advocate for the complainant, are found Adil and trustworthy and no reason is brought on record to believe that the accused are falsely implicated in the case.
According to him the ordinary sentence for a wilful murder is Qisas and in the absence of the direct evidence of two male witnesses, the ordinary sentence provided under section 3 read with section 24, I.P.L. Is death. According to him the case against the accused is proved beyond doubt, hence they are liable to death. He has relied upon 2001 PCr.LJ 524; 1999 PCr.LJ 116 and 1997 PCr.LJ 376. The Assistant Advocate-General has relied upon the written arguments of the learned counsel for the complainant.
8. I have gone through the file of trial Court and the police record besides the written arguments of the learned Advocates for the parties. None of the witnesses appearing for prosecution before the trial Court is eye-witness of the occurrence. In the absence of direct evidence of the occurrence due to non-production of alleged eye--witnesses Farooq and Kafeel, the case rests on the evidence of Muhammad Aslam, the complainant Sajid and Atif who were called from their house by the accused persons through Sajid accused to shop immediately before occurrence and their reaching on spot immediately at the place of occurrence on hearing gun fire; the recovery of .12 bore gun from Khursheed Ahmed and. Abaid-ur---Rehman's; the recovery of the crime empty; the post-mortem report, fire-arms expert's report and Forensic Science Laboratory reports etc. The recovery memos and the reports of the experts are read in support of the direct evidence, if any: If the ocular or direct evidence up stands the test of proof in a criminal case, the supporting or corroboratory evidence lends support to the prosecution ease. However, if the prosecution fails to lead or produce direct evidence or connectivity of circumstantial evidence is not maintained, the corroborative or supporting evidence becomes immaterial.
9. The F.I.R. Is lodged by Muhammad Aslam maternal uncle of Shakeel. He is not eye-witness of the occurrence. According to his report and his statement before the Court, Farooq Ahmed and Kafeel are the eye--witnesses and they informed him about occurrence when he was offering prayer in the mosque. The evidence of Muhammad Aslam is, therefore; relevant to the extent of Shakeel deceased, accompanying Khurshid towards the graveyard, the other part was to be ,proved by Farooq and Kafeel. Had the case of prosecution not been based on the eye-witness account of Farooq and Kafeel, the evidence on record would have been viewed from different angle, but the thrust of the prosecution is on the occurrence being witnessed by Farooq and Kafeel hence the case has to be judged on that touchstone as the prosecution is to prove the case in the manner it has asserted. The prosecution was bound to link Muhammad Aslam with Farooq and Kafeel who were to bare him out.
10. It is settled rule of circumstantial evidence that the failure of the prosecution to prove one link of the chain of circumstances destroys all links. In the case in hand the three important links set up by the prosecution connecting the accused with the commission of offence are missing i.e. Farooq and Kafeel having seen the occurrence and narrating so to Muhammad Aslam; secondly; their non-production as witnesses in the Court and thirdly material contradictions in the statements of Sajid and Atif before Court and police, regarding assertion that they saw the accused running through the graveyard after firing. It is held in Muhammad Akram and another v. The State PLD 1996 SC 263 that, " ....It is well-- established rule of law that where conviction is based on circumstantial evidence alone; the facts proved must be incompatible with the innocence of the accused and.
Are incapable of being explained upon any reasonable hypothesis other than the guilt of the accused". It further held in case titled 'Sarfraz Khan v. The State and 2 others 1996 SCM R 188 that:-- "is well-settled that circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence".
11. Farooq and. Kafeel are specifically mentioned in the F.I.R. To have seen the occurrence. However, none of them is produced in the Court, although Farooq was present in Court on 28-10-1997 but was given up on 16-1-1998 alongwith Kafeel by prosecutor stating to be hostile. Under the a celebrated rules of evidence a witness can be declared hostile under Article 150 of Qanun--e- Shahadat by the Court only when from the manner he gives evidence, the Court comes to the conclusion that he is not desirous of telling the truth to the Court. When he is declared hostile, he is to be cross-examined by both the parties and confronted with earlier statement, if any, reduced into writing. The witness cited but not produced in the Court cannot be said t9 be hostile, but withheld and not produced, adverse presumption of which has to be drawn that had he been produced he would have deposed against the party withholding him. The witness in this case, instead filed affidavits before the trial Court in person on 16-12-1997 swearing that they have no knowledge about any occurrence and they have been wrongly cited as witnesses. The police diary reveals that their statements under section 161, Cr.P.C. Have been reduced to writing. Neither the prosecution nor the complainant applied to call them through process of the Court, though they could call and cross-examine them under Article 140 of Qanun-e-Shahadat as to their statements reduced into writing, as they were the most important and direct eye-witnesses of the occurrence.
There appears a close proximity between the provision of section 161 3, Cr.P.C. And Article 140 of Qanun-e-Shahadat, in view of the identical words "reduced into writing" in two sections, which suggest that witness who resiles from his statement previously 'reduced into writing' under section 161(3), Cr.P.C. May be cross-examined under section 140 of the Qanun-e-Shahadat.
12. Sajid and Atif have stated that they had seen the deceased with the accused persons immediately before the occurrence when Sajid accompanied by other accused called them from their house to shop from where they purchase Nugadi and when they reached back to their home, they heard fire shot from the side of graveyard and immediately went on the site. Farooq and Kafeel according to the prosecution saw deceased being caught and fired by accused, before Sajid and Atif reached at the place of occurrence. The chain of event is broken by non-production of Farooq and Kafeel, the actual connectors. The prosecution is bound under Article 117 of the Qanun-e-Shahadat to prove the facts constituting the liability of the accused person in the manner the prosecution "asserts". If the prosecution fails to prove it in that manner, it is definitely failing in its duty to prove the guilt against the accused. It is held in Javaid Azam and 2 others v.
Muhammad Saleem and 10 others 1997 PCr.LJ 1865 that best evidence if available, has to be produced, though it is not obligatory that every person witnessing the occurrence be produced. In the case in hand only two persons were eye-witnesses, they were available, relied upon in report under section 173, Cr.P.C. But not produced and stated to be hostile, without putting them in witness-box. The burden lying on the prosecution never shifts. It is duty of the Court to require prosecution to prove every part of its case affirmatively by evidence on which it has built up its case. The prosecution cannot be given an edge to shift otherwise when it feels that evidence relied upon is not supporting it. It has to display its weapons before the Court and then leave it to Court to judge. Even if the Court finds that the proof adduced by prosecution leads to some suspicion but falls short of the assertion it has made, the case is doubtful, and its benefit goes to accused.
13. As per statement of Sajid and Atif recorded by the trial Court, they were in their courtyard making mud for the plaster of the house when Sajid accused called them to the shop and after giving them Nugdi, the moment they arrived back in the courtyard of the house, they heard a gun fire from the graveyard side, they went on the spot and saw Khurshid Ahmed running towards the village while Ubaid-ur-Rehman's towards the graveyard. In the cross-examination, Sajid states at page 101 of the Court file that when he saw towards the place from Where the fire was made two persons were running in the graveyard who saw their backs and not the faces and when they disappeared, he and Atif went towards the graveyard. Sajid in answer to a question in cross- examination, when confronted with his earlier statement under section 161, Cr.P.C. (D.A.) replied that he did not tell police that Farooq and Kafeel were at the place of occurrence and saw the occurrence as attributed to him in the statement. He further stated that he does not remember whether Farooq and Kafeel were on spot or not. He first deposed in answer to a question at page 90 of the Court file that Muhammad Aslam had come on spot on hearing noise or fire shot and then deposed at page 105 that he, Atif and other persons had gone to inform Muhammad Aslam.
Atif in his cross-examination admitted to have made statement before the police but denied having made any statement that Farooq and Kafeel saw the occurrence, though the police diary and the statement of Atif before police under section 161, Cr.P.C. Which is confronted to him as Exh.D.C. Do contain that Farooq and Kafeel had reached at the place of occurrence and saw the occurrence themselves. At page 116 of the Court file, in reply to a question he deposed that nobody can be seen in the path near the graveyard from their courtyard and at page 121 he states that if anybody is in graveyard he is totally out of sight if seen from his house.
14. As for the recovery of the gun is concerned though it is made on the pointation of Khursheed Ahmed accused, but is effected from poultry farm which is jointly run and possessed by Sajid accused and Muhammad Ayub. The gun is licensed belonging to Muhammad Ayub, who has not been cites nor produced as witness in the Court. Who kept the gun in the poultry farm? Accused Khursheed, Sajid or Ayub owners and co-- possessors of the farm, is a material doubt in the case.
Had Ayub appeared and stated that Khursheed or his partner Sajid had taken gun from him for Khursheed, the case could be seen from that perspective.
15. Another unlikely and unapprehend--able circumstance emerging from the perusal of the record is that Sajid and Atif were allegedly called from their house by the accused to the shop in the evening of December after 6-30 p.m. Which is almost dark and one cannot be recognised by face without, torch and electric light. Assuming the prosecution's story to be true that accused had enmity or dispute over some transaction with deceased Shakeel and he is killed by them intentionally, it is not believable that they would have called Sajid and Atif to shop under such circumstances and then killed him immediately thereafter without risking the occurrence being witnessed. Even a person of ordinary prudence who plans to kill a person cannot risk the occurrence being witnessed for which one can be sent to gallows.
16. As observed some where above that it was for the prosecution to prove its case under Article 117 of the Qanun-e-Shahadat in the manner it has set up the case and in the event of not proving the case in that manner. The prosecution case cannot be said to have been proved beyond reasonable doubt. In a case where doubt arises whether regarding commission of the offence, identity of the accused, withholding of direct evidence or by material contradictions in the statement of the prosecution witnesses vis-a-vis the case set up by the prosecution or in any other manner which does not maintain the connectivity of facts asserted by the prosecution, reasonable doubt arises and under the circumstances, it is better to err towards the side of accused in acquitting him than to convict him on doubtful evidence. Dr. Abdul Aziz Arnir in his famous book--- ------------------------------------------------------------------Part. II. Has reproduced a Hadith at page 62 as follows.----
17. The Supreme Court of Pakistan in the case reported as Faroze Khan v. Fateh Khan and 2 others 1991 SCM R 2220 has held:-- "The acquittal on the extension of benefit of doubt does not necessarily mean that the eye- witnesses had either not seen the occurrence or that they had deliberately falsely implicated the acquitted accused. It means that there are both the possibilities; namely, that they might have told the truth or they might have not told the truth. On account of this doubt while the accused becomes entitled to acquittal under the higher jurisprudential principles relatable to the theory of extension of benefit of doubt, the witnesses cannot be condemned to have told lies. In such-like cases, however, care is taken that for convicting the remaining accused, the witnesses are put to hardest test of scrutiny and depending upon the circumstances of each case attempt is made to see if their testimony is corroborated by independent circumstances. "
Similarly in Ashiq Hussain v. The State 1993 SCM R 417 it is held:-- "It is needless to repeat that it is bounden duty of the prosecution to prove the case against accused beyond doubt and this duty does not change or vary in the case which any defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same. Of course, defence plea is to be considered in juxtaposition with prosecution case and in the final analysis if defence plea is proved or accepted then prosecution case would stand shattered and discredited.
It would be enough if plea is substantiated to the extent of creating doubt in the credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false".
18. As for the evidence based on the report of the experts is concerned i.e. Inquest, post-mortem, fire-arms and Forensic Science Laboratory Reports, they are the reports on the facts subsequent to the occurrence. Similarly the recovery of the gun and fire empty are also subsequent, evidence.
These could be relevant and in fact reliable evidence had the direct evidence been produced as alleged or had the prosecution not asserted on the direct eye-witness account. (1) The evidence of the experts or the expert opinion is necessary when the occurrence is not witnessed by the eye- witnesses and the case entirely depends upon circumstantial evidence 1997 PCr.LJ 1865.
I may not to be understood to mean occurrence has not taken place or the witness appearing before the Court are not truthful or that the events subsequent to the occurrence have not happened, but the circumstances under which the accused are brought in are not proved in the manner the prosecution has set up the case. To me it appears that the police has either roped in the accused for the murder committed by some one else, or made the case against them doubtful by withhold the eye-witness or not risked to produce them for not supporting the prosecution version. Be that as it may, the suspicion creates a reasonable doubt. It is a sad story for which the one who is guilty and that who protects him has to suffer in this world and hereafter in the natural process, but to hold accused persons guilty for murder, Court has to rest on solid, cogent, believable and undoubtful evidence which is not available. Inferences, conjectures or probabilities cannot take place of proof.
19. The trial Court has not taken into account the effect of failure of not producing the eye- witnesses before the Court on which the prosecution rested its case. It has also not taken into account the contradictions in the statements of Sajid and Atif vis-a-vis the prosecution case. It has also failed to take notice of doubts arising in the case.
20. In view of above, the appeal filed by accused Khursheed Ahmed and others is accepted, the sentence passed by the District Court of Criminal Jurisdiction, Mirpur on 31-10-2000 against them is set aside and they are acquitted of the charges. They shall be released immediately unless required in any other case.
The appeal filed by Muhammad Aslam complainant is dismissed.