Mazhar Khan Versus Muhammad Sajid Hussain

1. Chaudhary Khalid Rasheed, J .--- The Supra titled appeal has been directed against judgment passed by the learned Additional District Court of Criminal Jurisdiction, Rawalakot dated 25.05.2019, whereby accused respondents have been acquitted of the charges by extending them the benefit of doubt.

2. Facts which culminated into filing of the captioned appeal briefly stated are, complainant Mazhar Khan son of Muhammad Hussain filed a written application Exh.PA at Police Station Rawalakot on 10.05.2007, wherein it was stated that on 20.10.2006 his real brother Zaffar Iqbal went out of home to attend the phone call of brother Munawar Hussain but did not come back. On 21.10.2006 at 07:00 a.m. the dead body of Zaffar Iqbal was found hanging with a tree, whereupon he reported the matter at Police Station Rawalakot on the same day. During proceedings, under section 174 Cr.P.C., it appeared that Sajid, Afraz Ali and Zahid with the connivance of Muhammad Saleem have murdered his brother and hanged his dead body with the tree. The motive behind the occurrence was mentioned that accused persons were used to come to the house of Zaffar Iqbal who many times forbade them but they pay no heed and due to that the accused persons quarreled with Zaffar Iqbal two times in presence of witnesses.

3. On this report, FIR No.107/2007 Exh.PB was registered at Police Station Rawalakot in offences under sections 302/109 and 34-APC. After formal investigation report under section 173 Cr.P.C. was submitted before Additional District Court of Criminal Jurisdiction Rawalakot on 20.06.2007. Charge was framed under section 265-D Cr.P.C. on 11.08.2007, accused persons claimed innocence and refuted the allegations, whereupon prosecution was directed to lead evidence in order to prove their guilt. Upon completion of prosecution evidence, the statements of accused persons under section 342 Cr.P.C. were recorded on 09.04.2019 who again refuted prosecution evidence by claiming innocence. At the conclusion of trial, the learned trial Court acquitted the accused persons from all the charges by extending them the benefit of doubt vide its impugned judgment dated 25.05.2019, hence, the captioned appeal.

4. The learned counsel for the complainant/appellants vehemently argued that accused persons did extra-judicial confession before P.W.14 Muhammad Javaid and other prosecution witnesses which fact has been proved by the statement of Muhammad Javaid and other witnesses in whom presence extra-judicial confession was made. The learned advocate further argued that motive behind the occurrence is also substantiated in a legal fashion. He contended that the prosecution successfully proved the allegation levelled against the accused/ respondents but the Court below miserably failed to appreciate the relevant evidence in its true perspective and wrongly acquitted the accused/ respondents, hence requested that the appeal be accepted and the accused/ respondents be convicted.

5. The learned counsel for the respondents supported the impugned judgment on all counts by submitted that the prosecution has failed to prove its case, hence the Court below rightly acquitted the accused/respondents.

6. The learned AAG adopted the arguments advanced by the learned counsel for the complainant.

7. We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

8. As per the case setup by the prosecution, the accused/respondents have developed illicit relations with the niece of deceased Fakhira whereupon the deceased forbade them to come to his house which resulted into the enmity between them and consequently they murdered the deceased. The whole prosecution story rotates and depends upon the extra-judicial confession of the accused/respondents allegedly made before the prosecution witnesses, whereas the accused persons have denied their extra-judicial confession. Muhammad Javaid Khan allegedly in whose presence extra-judicial confession was made got recorded his Court statement on 08.11.2016 but he did not utter any word that accused persons made any extra-judicial confession in his presence rather deposed that Sajid told him through telephonic call that he did not murder the deceased Zaffar rather girls murdered him. He further deposed in his Court statement recorded on 11.12.2018 that the accused confessed his offence in his presence at Police Station, thus any confession in custody of police is of no legal value. The Court below has rightly observed that merely extra-judicial confession cannot be made basis for recorded conviction unless it was strongly corroborated by tangible evidence coming from an unimpeachable source because the extra-judicial confession is a weak piece of evidence and rightly relied upon 2016 PCr.L J 240.

9. The learned Court below also accurately observed that motive alleged in the FIR that accused have developed illicit relations with Fakhira niece of the deceased whereupon the deceased forbade them to come to his house and quarreled earlier is also not established because the important witnesses in order to prove said motive Mst. Fakhira, Mst. Sughra and Mst. Motian Begum have not been produced before the Court. The prosecution has also failed to prove any quarrel between the deceased and the accused prior to the incident, thus the motive behind the occurrence remained shrouded in mystery, hence in our considered view the Court below has rightly observed that the prosecution miserably failed to prove its case against the accused/respondents, hence accurately acquitted them of the charges. It is a bedrock precept of law that conviction can be recorded only if the allegation is proved beyond shadow of any reasonable doubt, no other hypothesis is borne out from the evidence of the prosecution except the murder of deceased by the accused and if a slightest doubt is created in the prosecution story the benefit of the same has to be extended in favour of accused which resulted into acquittal. In the instant case, the prosecution story is highly doubtful as the allegation has not been proved through trustworthy and confidence inspiring evidence.

10. It may be stated that, principle regarding appreciation of evidence in appeal against acquittal are quite different as compared to appeal against conviction and it is a well settled precept of law that acquittal carries double presumption of innocence. Every accused person is presumed to be innocent unless proved guilt and this presumption is further strengthened by his acquittal order by a court of competent jurisdiction. The appellate Court would interfere in the acquittal order only if it is established from the record that the same is perverse and the reasons listed in support of acquittal are artificial or ridiculous. Reliance may be placed on 2005 YLR 2203, 2004 PCr.LJ 1349, 2010 SCMR 495. We do not find any abnormality, perversity or arbitrariness in the impugned acquittal order which may cause injustice, hence, the appeal merits dismissal.

11. The sum and substance of the above debate is, Ratio decidendi of the acquittal order entails to be upheld, the instant appeal as having no essence is hereby send away.

12. JK/1/HC(AJ&K) Appeal dismissed.