MUHAMMAD AZAD Versus MUHAMMAD SALEEM

RAZA ALI KHAN, J.--- The captioned appeals have been filed against the judgment passed by the learned District Court of Criminal Jurisdiction, Kotli on 29.12.2012 whereby, the accused-respondent has been acquitted of the charge under sections 302, 341, A.P.C. and 13/20/65 A.A. by extending him the benefit of doubt.

2. Precise facts forming background of the appeals are that complainant, Muhammad Azad filed written application Exh.PA at Police Station Khuiratta on 04.12.2009 alleging, therein that he is resident of Village Samlar. That day i.e. 04.12.2009 at 8:00 p.m., his brother Muhammad Rukhsar was going to the house of his maternal grandfather, on the way, when he reached near Gorha graveyard, one Muhammad Saleem son of Muhammad Aziz, who had way laid, stopped him and opened fire with his lethal weapon on Muhammad Rukhsar, which hit him at different parts of the body, who succumbed to the injuries on the spot. The occurrence was stated to be witnessed by Muhammad Gul Bahar and Muhammad Nazakat and other people of the locality. The motive behind the occurrence was stated to be a land dispute.

3. On this report, a case in offences under sections 302, 341, A.P.C. and 13/20/65, Arms Act vide FIR No.222/ 2009 was registered at Police Station Khuriratta. After usual investigation, challan was presented before District Court of Criminal Jurisdiction Kotli on 29.12.2009. The charge was framed under section 265-D, Cr.P.C. on 05.01.2010. The accused pleaded not guilty, whereupon, the prosecution was directed to lead evidence in support of its case. The prosecution examined 14 P.Ws. out of 20 and 6 P.Ws. were abandoned. At the completion of prosecution evidence, the statement of accused-respondent under section 342, Cr.P.C. was recorded on 01.12.2012, wherein, he again pleaded not guilty and submitted that false evidence has been produced against him, however, denied to produce evidence in defense and did not opt to get recorded his statement under section 340(2), Cr.P.C. At the conclusion of the trial, the learned Court below acquitted the accused-respondent of the charge by extending him the benefit of doubt through the impugned judgment dated 29.12.2012, hence the instant appeals.

4. Yasir Hussain, Advocate, the learned counsel for the appellant/ complainant, vehemently argued that this is a case of direct evidence and the occurrence was witnessed by two prosecution witnesses mentioned in the FIR, therefore, only the statements of eye-witnesses were sufficient to convict the accused/respondent, but the learned Court below treated the same as case of circumstantial evidence and failed to give weight to the statements of eye-witnesses. The learned Advocate further argued that the prosecution produced sufficient evidence including eye-witnesses of the occurrence to prove the allegation, but the Court below failed to appreciate the evidence in its true perspective. The learned counsel for the complainant submitted that prosecution succeeded to prove the guilt against the accused-respondent, however, the learned trial Court acquitted him in fanciful manner without appreciating the evidence of prosecution, mere on flimsy basis. He contended that accused-respondent who was specifically nominated in a prompt FIR which was corroborated by the evidence of two independent eye-witnesses, but the Court below mere on minor contradictions acquitted him which is not permissible under criminal law. The learned counsel vehemently argued that although, it is not necessary to prove the motive in case of ocular evidence but prosecution has also proved that animosity between the accused-respondent and deceased. The learned counsel maintained that the weapon of offence i.e. Kalashnikov was also recovered by the police on the pointation of accused-respondent and 4 empties recovered from the place of occurrence were matched, as evident from the report of Forensic Expert, Exh.PS. The learned Advocate further submitted that discrepancies in the statements of prosecution evidence pointed out by the Court below are natural and did not go to the root of the case, hence, were liable to be ignored. He lastly contended that the prosecution proved its case beyond any shadow of doubt; therefore, the accused was liable to be convicted for brutal murder of one Muhammad Rukhsar, brother of the complainant. The learned Advocate in support of his submissions placed reliance on the following case law:

1. 2018 SCR 532,

2. PLD 1992 SC (AJ&K) 20, 3. 2002 PCr.LJ 668, 4. 2013 YLR 1418, 5. 2014 PCr.LJ 1123, 6, 2001 YLR 236, 7. 2005 PCr.LJ 1352, 8. 1995 SCR 233 and 9. 2000 YLR 302.

5. On the other hand, Rafiullah Sultani, Advocate, the learned counsel for the accused-respondent, while controverting the arguments raised by the learned counsel for the appellant/ complainant argued with vehemence that the prosecution has miserably failed to prove the allegation levelled against the accused-respondent, therefore, the Court below rightly acquitted the accused-respondent of the charge through the impugned judgment which is supported by reasons, hence, is liable to be maintained. The learned Advocate on the merits of the case, reiterated the arguments relised before the trial Court which are sufficiently mentioned in the impugned judgment at pages 13 to 19, hence, need not to be reiterated. The learned Advocate supported his arguments by relying upon following case law:

1. 2019 SCR 149, 2. 2019 MLD 1383, 3. 2005 YLR 1770, 4. 2018 MLD 1072, 5. 2018 MLD 410, 6. 2018 PCr.LJ Note 199, p.231, 7. 2016 SCR 1306, 8. 2017 SCR 428, 9. 2014 SCR 983, 10. 2014 SCR 351,

11. PLD 2012 SC (AJ&K) 32,

12. PLD 1994 SC 679, 13. 2019 PCr.LJ 172, 14. 2013 YLR 2789, 15. 1995 SCMR 127, 16. 2015 SCR 1, 17. 1996 PCr.LJ 1722 and 2020 PCr.LJ 328.

6. The learned A.A.G. adopted the arguments advance by the learned counsel for the complainant/appellant.

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

8. A contemplate perusal of the record reveals that according to the prosecution story, it has been alleged that on 04.12.2009 at 8:00 p.m., accused-respondent, who had way laid and was waiting for Muhammad Rukhsar (deceased) to arrive at the place of occurrence and when deceased arrived there, he opened fire with lethal weapon which hit him at different parts of his body who received seriously injured and died on the spot. The prosecution has also alleged that the occurrence was witnessed mainly by two persons namely Muhammad Gulbahar and Muhammad Nazakat along with other people of the locality. Motive has also been alleged by the prosecution that due to land dispute, the accused-respondent murdered Muhammad Rukhsar.

9. So, according to the prosecution story, this is a case of direct (ocular) evidence and mainly rests upon the statements of P.Ws. Muhammad Gulbahar and Muhammad Nazakat, who have been stated to be eye-witness of the occurrence. Besides these two P.Ws, the prosecution has also produced twelve P.Ws. namely Muhammad Azad (complainant), Rehmatullah, Muhammad Faisal, Muhammad Farooq, Ghulam Ghoas, Muhammad Aziz, Dr. Muhammad Zubair, CMO, Muhammad Sharif (Patwari), Shafaat Hussain (constable No.116), Muhammad Ayaz (ASI), Abid Hussain Khan (constable), Sohail Yousaf (SI/SHO), whereas, six remaining P.Ws. were abandoned by the prosecution. At the very outset, we will scrutinize the statements of some important prosecution witnesses.

10. P.W. Muhammad Azad, who is also the complainant in this case, appeared before the trial Court and got recorded his statement wherein he initially narrated the story as alleged in the FIR. For having true appreciation, the relevant captions of the statements of complainant and other P.Ws. are usefully reproduced as under:--

P.W. Muhammad Azad:--

11. It may also be stated here that before appreciating evidence of witnesses examined in case, it would be instructive to refer to the criteria for appreciation of oral evidence, while appreciating the evidence of a witness, the approach must be emphasized that the evidence of the witness read as whole appears to have a ring of truth. Once the impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence, keeping in view the deficiencies, discrepancies and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenure of the evidence or not. Minor discrepancies not touching the core of the case, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily made base for the rejection of evidence as a whole, normal discrepancies in evidence is a natural phenomenon. These discrepancies due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock at the time of occurrence and even sometime threat to life, but improvements in earlier version are made at the trial in order to give boost to prosecution cannot be permitted, therefore, it is the prime duty of the Court to separate falsehood from truth. It is well settled principle of law that in criminal cases, the burden of proving the case rests on the prosecution which is duty bound to prove the case against the accused beyond all reasonable doubts, this duty does not change or vary even in a case in which any specific defense plea is taken by the accused. It is duty of the prosecution to prove its case beyond doubt could not be diminished even if the defense plea is not proved or is found to be palpably false. Reliance can be placed on 1993 SCMR 417 in a case titled "Ashiq Hussain v. The State", wherein it was held as under;- "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 in which any defense plea is taken. Burden of prosecution to prove its case beyond doubt remains the same."

12. We have noted one unusual and inconceivable feature which projects its shadow on the evidence of P.W.2 Muhammad Gul Bahar son of Muhammad Zaman and P.W.3 Muhammad Nazakat son of Muhammad Rasheed and casts a serious doubt about undue delay in recording statement under section 161, Cr.P.C. as being eye-witnesses of the occurrence. Although these witnesses were or could be available for examination when the ASI, Ayaz. P.W. 18, visited the scene of occurrence soon thereafter, however, their statements under section 161, Cr.P.C. were recorded on 06.12.2009. Furthermore, it may be stated here that the simplicities in recording the statement of eye-witnesses amounts to serious infirmity, especially in the circumstances where there is no explanation of delay of recording statements under section 161, Cr.P.C. of eye-witnesses found on record. A prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have reversed especially when we observe the following factors in juxtaposition;-

"(i) Both the eye-witnesses are closely related (real cousin) to complainant and deceased.

(ii) They not only made improvement in their statements but their statements are also self contradictory.

(iii) According to FIR many persons were shown present at the place of occurrence who also witnessed the occurrence, however, no independent witness amongst them was neither cited nor produced by the prosecution.

(iv) Prosecution has also alleged that after the occurrence many persons were arrested, however, their names were not mentioned and even no proceeding was initiated against them.

(v). Moreover, although, it has been alleged in the FIR that accused was armed with lethal weapon; but failed to mention any specific weapon and how many shots were fired. The statements of P.Ws. under section 161, Cr.P.C. were recorded after the postmortem. P.W. Ayaz, A.S.I. deposed in his statement that soon after the occurrence, he arrested the accused under section 54, Cr.P.C., while the complainant deposed that he has filed the application before Sohail Yousaf, S.H.O. for registration of case, whereas, Sohail Yousaf, S.H.O., stated in his statement that when he reached at Police Station, the dead-body of the deceased was in Hospital."

For convenience, section 54, Cr.P.C. is reproduced as under:

"54. When police may arrest without warrant. (1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest:

Firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;

Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking;

Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government;

Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;

Fifthly, any person who obstructs a police-officer while in the execution of his duty or who has escaped, or attempts to escape from lawful custody;

Sixthly. any person reasonably suspected of being a deserter from the armed forces of Pakistan;

Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed in Pakistan, would have been punishable as an offence and, for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan,.

Eighthly, any released convict committing a breach of any rule made under section 565, subsection (3);

Ninthly, any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition."

So, it appears from the perusal of the statements of P.Ws., the initial inquiry/investigation was conducted by the Police before the registration of the case, which is not permissible by law which is sufficient for making the whole story doubtful. Thus, when ocular evidence is disbelieved in the instant case, then the recovery of weapon of offence does not prove the prosecution case. A reference may be made to the case of "Dr. Israr-ul-Haq v. Muhammad Fayyaz and another' reported as [2007 SCMR 1427], wherein it was held as under;-

"It is also a settled law when ocular evidence is disbelieved in a criminal case then the recovery of an incriminating article in the nature of weapon of offence does not by itself prove the prosecution case."

However, as an abundant caution, we would like to discuss other pieces of evidence as relied and referred to by the learned counsel for the appellant/ complainant and brought by the prosecution in trial.

13. Another aspect of the case which goes against the prosecution for proving the guilt against the accused-respondent is that P.W. Rehmat, appears to be the witness, who has been alleged to the accused-respondent before the occurrence, however, he failed to prove his stance that he saw the accused before the occurrence. There are a lot of contradictions in his statement. The other P.W. Adalat, cited as a witness, who has been alleged to see the accused-- respondent after the commission of the offence. In his initial statement recorded under section 161, Cr.P.C. before the police, he deposed that he saw the accused-respondent while he was running armed with Kalashnikov, however, this witness did not appear before the trial Court for recording his statement. Moreover, the postmortem Ex.PH of the deceased was also conducted and there is quite difference between conclusion drawn by the Doctor and the deposition of P.Ws. about the place where from the fire was shot. The report of Forensic Science Laboratory was received after one year and the same was produced before the Court after four months of its receipt.

14. It is pertinent to note here that motive was also alleged by the prosecution that due to land dispute the accused-respondent murdered Muhammad Rukhsar, however, it transpires from the examination of evidence that the prosecution failed to bring home the motive alleged, because, the eye-witnesses and complainant although have initially taken a stance that due to land dispute the accused committed the occurrence, however, during their Court statements they deviated from their stance. It reveals from the record that complainant had filed a civil suit against the deceased, whereas, deceased also filed a suit (Exh.DC) against the complainant, therefore, parties had also a dispute with each other. So, it appears that P.Ws. have some litigation with the deceased and also with the accused; but prosecution failed to prove that there was any land dispute between the accused and deceased. We, therefore, hold that prosecution has failed to establish any motive as alleged in FIR. Although, it is not necessary to set up any motive, yet once it is set up then it becomes the duty of the prosecution to prove the same, otherwise it will adversely affect the prosecution case. In the instant case, the motive of the case was not established by the prosecution although it was specifically pleaded as the only reason for the accused to commit the alleged offence.

15. The recovery memo Exh.PF of crime weapon i.e. Kalashnikov, was allegedly made on the pointation of accused-respondent and it has been alleged by the prosecution that the same was used by the accused during the occurrence it appears from the record that the occurrence took place on 04.12.2009 and the accused-respondent was arrested soon thereafter, however, the recovery of the crime weapon was made on 16.12.2009 after twelve days of the occurrence, which casts serious doubt upon the prosecution case. Furthermore, the alleged recovery is shown to be made in presence of two P.Ws. namely Muhammad Aziz and Muhammad Abdul, however, only one witness i.e. Muhammad Aziz appeared before the trial Court for recording his statement, who is real maternal grandfather of the complainant and second witness was abandoned by the prosecution, therefore, the recovery of Kalashnikov became more doubtful when the prosecution failed to produce P.W.11 Muhammad Abdul son of Kala, witness of recovery memo Exh.PF, so an adverse interference under illustration (g) to Article 129 of Qanun-e-Shahadat Order, 1984 could easily be drawn that in case he is produced he would not have supported the prosecution version about recovery of Kalashnikov. We may refer here the judgment of apex Court of Pakistan titled "Muhammad Rafique and others v. State and others" reported as [2010 SCMR 385], wherein, the Supreme Court of Pakistan in para 33 of the judgment has observed that:

"It is well settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali would have been examined, his evidence would have been unfavourable to the prosecution. Be that as it may, the prosecution examined Muhammad Ramzan P.W.14 to prove the conspiracy. The learned High Court examined this aspect of the case and rightly reached the conclusion that the prosecution failed to prove this piece of evidence."

Admittedly, Kalashnikov was recovered after 12 days of arrest of accused, not from his exclusive possession, but from an open place in a heap of dry grass which is easily accessible to everyone. Prosecution failed to prove the recovery of Kalashnikov beyond the shadow of doubt, therefore, conviction cannot be made upon the basis of such doubtful recovery.

15. According to prosecution version, four crime empties were recovered from the spot and the same were sent to Forensic Science Laboratory (FSL) along with Kaashnikov recovered on pointation of accused and positive result of FSL fully corroborates the story of prosecution, but we find no difficulty to hold that FSL report (Exh.PS) has lost its evidentiary value for reason that empties were not sent to the Forensic Science Laboratory till the gun was recovered and then gun and empties both retained in Police station and later on after the recovery of Kalashnikov the empties and the gun were sent together to FSL i.e. on 18.12.2009, after the inordinate delay. We have found nothing on record which suggests any explanation in this regard, as to where the crime empties were lying during that period, therefore, it is not safe to give any weight to the FSL report as the possibility of substitution of empties cannot be ruled out. Delay of 14 days in sending empties and Kalashnikov surely destroy the evidentiary value of FSL report. Reliance can be placed on a case titled "Ali Sher and others v. The State", reported as 2008 SCMR 707, wherein, the Hon'ble Supreme Court of Pakistan in para 11 of the judgment has observed that:

"11. The crime empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of defence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony."

Moreover, two P.Ws. were mentioned in the recovery of crime empties, but, only one witness appeared before the Court for recording his statement and the second P.W. namely Shahpal was abandoned by the prosecution. Although, prosecution has a liberty to produce or abandon any witness, but for proving any recovery at least two witnesses is demanded by law.

17. It may also be stated here that almost all the witnesses are closely related to the deceased and seems to be interested witnesses; therefore no reliance can be placed upon them. It will not be out of place to mention here that the statement of an interested witness ordinarily needs corroboration which is always used to support the statements of witnesses, when the Court reaches the conclusion that the version of P.Ws. is prima facie, correct, but in the instant case no corroboratory or confirmatory evidence is available against the accused persons. Reliance is placed on a judgment of the apex Court of Pakistan on:

1. 1998 SCMR 25 and 2. 1994 SCMR 1030.

18. It may be observed here that, in Administration of Criminal Justice, an accused is presumed to be innocent unless such presumption is rebutted by the prosecution by producing the evidence to prove him to be guilty of the offence with which he is charged. Further, if two views are possible on the evidence produced in the case, one indicating the guilt of accused and other to his innocence, the view favourable to the accused is to be accepted, and in cases, where Court found reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused. At the same time, the Court must evaluate the prosecution evidence as a whole having regard to totality of the evidence. In appreciating evidence, the approach of the Court must be integrated not isolated, in other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind which coming to the conclusion as to the guilt or otherwise of the accused.

19. It is the golden principle of Islamic law that the Court should let off hundred guilty but should not convict one innocent person. Hon'ble Supreme Court of Pakistan in celebrated judgment titled "Ayub Masih v. The State" reported in PLD 2002 SC 1048, has held as under:

"Doubt must be reasonable and not imaginary---Said rule was based was based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" and occupied a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet Muhammad (PBUH) that the 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

20. In the instant case, as discussed by the trial Court in detail, there are so many circumstances which create serious doubts in the prosecution case and benefit of which has been extended to the accused-respondent by the learned trial Court. Besides, this an appeal has been filed against acquittal and standards of assessing evidence in appeal against acquittal are quite different from that of appeal against conviction. Marked difference exists between appraisal of evidence in appeal against conviction is always done strictly but in appeal against acquittal such strictness and rigid method of appraisal should not be applied because there is already finding of acquittal given by trial Court after proper analysis of evidence on record, scope of appeal against acquittal of accused is considerably narrow and limited. Unless the judgment of acquittal is perverse, patently illegal and on perusal of evidence decision can be given except the accused is guilty or there has been complete misreading and non-reading of evidence leading to miscarriage of justice.

21. It is further held that the duty of prosecution is to establish its case against accused by leading convincing and plausible evidence free from all hypotheses. When case against accused was highly doubtful, then he would be entitled to the benefit of doubt as a matter of right and not a matter of grace. This view further affirms in a case titled "Muhammad Arshad v. The State" [2002 PCr.LJ 1541], wherein it is held as under;--

"The prosecution failed to produce independent and natural witnesses having no animus or relation with either of the parties. Therefore, it will not be safe to rely on such evidence to hold anyone guilty of offence of murder as the prosecution has failed to discharge the burden to prove the case against the appellant beyond any reasonable doubt with the result that the appellant is entitled to get the benefit of such doubt. In this view of the matter, the Court below has failed to assess the evidence in a legal and proper manner, thus, conclusion drown by the Court below is contrary to the evidence on record and against the settled norms laid down by the superior Courts from time to time."

22. It is now well settled that though appellate Court has full powers to review the evidence upon which an order of acquittal founded it is equally well settled that the presumption of innocence of the accused person reinforced by his acquittal order recorded by the trial Court and the views of the trial Court as to the credibility of the witnesses must be given proper weight and consideration and the slowness of an appellate Court in disturbing a finding of fact arrived at by a trial Court who had the advantage of closely seeing witnesses must also be kept in mind and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of trial Court.

23. Before parting with case, it may be stated here that the State has also filed Appeal No.74/2013, against the acquittal order passed by the learned District Court of Criminal Jurisdiction, Kotli, which is not maintainable, because under section 417(1), Cr.P.C. only public prosecutor can file appeal on behalf of the State against the acquittal order, captioned appeal is filed by the A.A.G., and at that time he was not authorized by the State to act as a prosecutor, whereas, the Advocate General, Additional Advocate General or Assistant Advocate General are excluded from the definition of Public Prosecutor for the said purpose. Reliance can be placed on a case titled "State v. Rustam Khan and others reported as 2018 PCr.LJ 34, wherein it was held as under:--

"In this regard, it may be stated here that the statutory provision of law referred to by the learned counsel for the appellant i.e. section 417(1), Cr.P.C., is fuly applicable which clearly manifests that for the purpose of filing appeal against acquittal order, the Government can only appoint the Public Prosecutor and as per scheme of legislature the Additional Advocate General or Assistant Advocate General do not come within purview of the Public Prosecutor within the meaning of section 417(1), Cr.P.C., to file acquittal appeal, therefore, it can safely be said that the learned High Court has committed no illegality while interpreting the provisions of sections 417 and 492, Cr.P.C., in para 9 of the impugned judgment while holding that the appeal, on behalf of the State against the acquittal order can only be filed by the Public Prosecutor, whereas, the Additional Advocate General is excluded from the meaning of Public Prosecutor according to statutory provision (supra)."

Therefore, in view of the above dictum of the apex Court, the appeal filed on behalf of the State is not maintainable.

The case law cited by the learned counsel for the appellant/complainant are not applicable due to distinguishable facts, therefore need not to be discussed.

Crux of the above detailed discussion is that, finding no force in these appeals, these are hereby dismissed. A copy of the instant judgment shall be annexed with other relevant file.

JK/16/HC(AJ&K) Appeals dismisse