MUHAMMAD RAZZAQ Versus MUHAMMAD EJAZ
CHAUDHARY KHALID YOUSAF, J.--- The captioned appeal has been directed against the judgment recorded by the learned District Court of Criminal Jurisdiction, Kotli, dated 16.10.2014 whereby, the accused-respondents were acquitted of the charges by extending them benefit of doubt.
Brief facts forming background of the instant appeal are that Muhammad Razzaq, complainant-appellant lodged an FIR at Police Station Kotli on 22.06.2011, alleging therein that on 21.06.2011, at 09:00 p.m. his son Waqas Ahmed was present at home, who told him that someone called him on telephone, therefore he went towards Ellahi Ravine and when he did not return back home at night complainant tried to contact him on his cell phone but the same was found switched off. Thereupon, early in the morning the complainant along with his family members searched him and at 7:00 am, They found his dead body lying in Ellahi Ravine. The dead body is present on spot. It is further alleged that some unknown person/ persons have killed his son and his dead body was thrown from rock.
2. During investigation the accused-respondent No.1 Muhammad Ejaz being suspect apprehended by the police and on his disclosure accused-respondent No.2, Mst. Faheema, was also investigated and her statement under section 164, Cr.P.C. got recorded. Thereupon, sections 109, 201, 202 were added and report under section 173, Cr.P.C. was submitted before District Court of Criminal Jurisdiction, Kotli on 11.08.2011. The statements of accused-respondents, as required by section 265(D), Cr.P.C, were recorded on 25.08.2011, wherein, they denied the guilt, thereupon, prosecution was ordered to produce evidence. The prosecution produced 23 out of 30 witnesses as incorporated in the calendar of witnesses. On completion of prosecution's evidence, the statements of accused-respondents under section 342, Cr.P.C. were recorded on 23.08.2014, who once again denied the guilt.
3. The District Court of Criminal Jurisdiction, Kotli, while concluding the case acquitted the accused-respondents by extending them benefit of doubt vide impugned judgment dated 16.10.2014, hence this appeal.
4. Sheikh Noman Akhter, Advocate, learner counsel for the complainant-appellant vehemently contended that although it is a blind murder, however, prosecution proved its case through cogent and convincing circumstantial evidence but the trial court wrongly acquitted the accused-respondents. The learned counsel further contended that at the first instance the FIR was lodged against unknown persons which shows that, there is no mala fide intention on the part of complainant for implication of the accused respondents. He submitted that during the investigation the accused respondents were found involved in the case. Learned counsel further submitted that co-accused Mst. Faheema confessed her guilt through confessional statement recorded under section 164, Cr.P.C, wherein she categorically confessed that she had illicit relations with accused Ejaz and after marriage he often used to come at her home, she further deposed in her statement that accused Ejaz called her and told that he pushed the deceased from the rock, but the learned trial Court failed to consider this important piece of evidence. Learned Counsel further submitted that prosecution's witnesses, PW2 Muhammad Nisar, PW3 Muhammad Mushtaq, PW 4 Muhammad Shifaqat and PW5 Saqib Mehmood deposed in their statements that they saw deceased Waqas along with accused Ejaz at the fateful night. Learned Counsel submitted that last seen evidence fully connected the accused-respondents with the commission of alleged offences, hence prosecution proved its version against the accused respondents beyond any shadow of doubt, however, trial Court wrongly acquitted them, therefore by accepting the instant appeal the accused respondents may be convicted with capital punishment. The learned Counsel placed his reliance upon following case law:- i. 2017 SCR 1005; ii. 2002 MLD 1459; iii. 1993 MLD 281; iv. 2001 PCr.LJ 1766; v. PLD 1996 SC 305; vi. 1973 SCMR 258; vii. PLD 1997 SC 515;
5. Sardar Mazhar Iqbal, learned AAG appearing on behalf of the State fully owned the arguments advanced by the learned counsel for the complainant and contended that prosecution's story is fully corroborated by prosecution's witnesses but the learned trial court failed to appreciate the evidence in its true prospective therefore, by setting aside the impugned judgment the accused-respondents may be punished in accordance with a law.
6. Messrs Raja Abdul-Rauf and Malik Habibullah Zia, Advocates, learned counsel for accused-respondents forcefully argued that accused-respondents were not nominated in FIR and they are falsely implicated in the case later on. Learned counsel further contended that the occurrence took place on 21.06.2011 and the alleged confessional statement of co-accused Faheema was recorded on 29.07.2011 after a considerable delay hence same is not reliable. The learned defence counsel further contended that statement of accused respondent No.2 recorded under section 164, Cr.P.C. is not admissible because the requirements provided in the procedure were not observed by the Magistrate while recording the aforementioned statement. Learned counsel further submitted that confessional statement was recorded due to torture of the police and same was detracted by the co-accused Faheema before the Court therefore, it has no value in the eye of law. They further contended that last seen evidence produced by the prosecution is being contradictory is not reliable. Learned defence counsel submitted that postmortem report is not corroborated with the prosecution version. They further submitted that prosecution has abandoned the P.W's Nos. 9 to 12 and 16 which creates doubt in the prosecution story. The learned defence counsel stressed on the point that no direct evidence is available in the instant case and chain of circumstantial evidence was also missing, therefore, the learned trial Court has rightly acquitted the accused-respondents by giving them the benefit of doubt. The defence counsel placed his reliance upon the following case law. i. 2010 PCr.LJ 1567; ii. 2017 PCr.LJ 185; iii 2016 SCR 1176; iv. 2016 SCMR 260; v. 2018 SCR 335 and vi. 2019 SCR 105.
7. We have heard the learned counsel for the parties as well as learned AAG, and gone through the record of the case with utmost care.
8. This is not a case of ocular evidence prosecution's case rests upon circumstantial evidence. Law is well settled on the point that conviction can be made on the basis of circumstantial evidence provided that such evidence confidence inspiring, where all the circumstances must be interlinked in a shape of unbroken chain and if a single link is missing the whole case of the prosecution falls on the ground, like a house of cards. Reliance can be placed on the case law reported as "Wazarat Hussain v. Nazir Akhtar and another" 2010 PCr.LJ 1567 wherein, the Hon'ble Apex Court held as under:-
"The instant case rests solely on circumstantial evidence. The Circumstantial evidence is conclusive only when it can possibly tend to no other inference except the guilt of accused and the facts should exclude any reasonable hypothesis of innocence of accused before conviction can be based on such evidence. The circumstances must unmistakably point towards guilt of accused and the circumstances shall be so connected that these shall form a chain of events and every link of chain in the circumstances must be proved. If any link in the chain is missing then the whole chain breaks."
In another case law reported "Rashid Hussain v. The State and another, Master Javaed Iqbal and 7 others v. Rashid Hussain and others [2018 SCR 260] wherein, the Hon'ble Apex Court held as under:--
"We have heard the learned counsel for the parties and gone through the record along with impugned judgment. Before attending the merits of the case we deem it proper to mention here that it is a case of circumstantial evidence and under law in such cases the evidence must be of the nature, where all circumstances must be interlinked to make out a single unbroken chain, one end of which touches the dead body and the other to the neck of the accused. Any missing link in the chain would destroy the whole case and would render the same unreliable for recording a conviction on a capital charge. Reliance may be placed on a case reported as Muhammad Latif Butt v. Shehtab and 4 others [2009 SCR 432]."
In another case law reported "Muhammad Khalid and another v. State and another". "Muhammad Javed Khan v. Ali Pasha and another" [2018 SCR 356], wherein, the Hon'ble Apex Court, held as under:-
"It is celebrated principle of law that conviction on the basis of circumstantial evidence can be passed but such evidence should be free from doubt, confidence inspiring and based upon such pieces which form a chain of unbroken events. In the case reported as Javaid Akhter v. Muhammad Zubair and 3 others [2015 SCR 533]."
9. Since the Prosecution's case based upon last seen evidence therefore first of all we would like to discuss this piece of evidence. It has been alleged by the prosecution that on the fateful night PW-2 Muhammad Nisar, PW-3 Muhammad Mushtaq, PW-4 Muhammad Shifaqat and PW-5 Saqib Mehmood saw deceased Waqas Ahmed with accused respondent No.1, it is astonishing fact that in the early morning everybody came to know that Waqas was murdered by someone unknown however the aforesaid PWs kept mum for long seven days, during this period police came there, time and again for investigation but they did not disclose that they saw the deceased with accused respondent No.1 on 21.06.2011 the night he was murdered. Their statements under section 161, Cr.P.C. were recorded on 26.06.2011, after the lapse of seven days, which creates doubt in the prosecution case. It is important to note here that these PWs used the almost same way/area at the same time but they did not come across each other. Furthermore, all these PW's are closely related to the deceased. Although the statements of related witnesses cannot be discarded merely because they are closely related to the deceased. In the instant case, as per prosecution stance these PWs saw the accused along with deceased at 11:00 p.m., then question arises that when at early in the morning the dead body of deceased found from Ravine why they did not disclose this important fact to the police. In these circumstances reliance on such closely related witnesses would not be safe. Since last seen evidence is the weakest type of evidence and in the case of circumstantial evidence conviction cannot be recorded on the strength of last seen evidence.
10. Motive as alleged by the prosecution is that accused respondent No. 1 had illicit relations with accused respondent No.2 (wife of deceased) who wants to get marry with Mst. Faheema, accused-respondent No.2, so he murdered the deceased to achieve his goal. It has been stated by the investigating officer that accused Ejaz developed illicit relations with Faheema co-accused, thereafter accused Ejaz arranged marriage of Mst. Faheema with deceased Waqas. This stance of prosecution is self contradictory, if accused Ejaz wanted to get marry with Faheema and as per prosecution he had relations with her prior to her marriage then obviously he did not arrange her Nikkah with deceased Waqas. Perusal of record reveals that it is only investigating officer who deposed in his statement that co-accused had illicit relations with accused respondent No.1, whereas, none of the other witnesses uttered even a single word about it. Investigating officer deposed in his statement that he narrates the story of illicit relations as per disclosure of PW6 Mst. Zeenat Begum mother of the deceased, whereas the said witness appeared before the Court and she did not even say a single word about the story narrated by the investigating officer which makes the allegations doubtful.
11. Another piece of evidence relied upon by the prosecution is the statement of co-accused Faheema recorded under section 164, Cr.P.C. At very outset it is pertinent to observe here that the requirements of sections 164 and 364, Cr.P.C. were not observed by the Magistrate while recording the same. Co-accused produced before Magistrate in police custody and after recording the statement, the custody was again handed over to the police. It is also evident from the record that the Magistrate while recording statement under section 164, Cr.P.C. has not taken necessary precautions to remove accused respondent from the influence of police, no time was given by Magistrate to accused to consider whether she would make a confession or not, no question even recorded by Magistrate that if she did not make confession her custody would not be handed over to police and she would be sent to judicial lockup. Furthermore, in the present case the confessional statement implicates the co-accused, therefore we have to see that whether conviction of accused can be based on confession of co-accused alone, as per law confessional statement only implicates accused himself, however, it may be considered as a corroborative piece of evidence against co-accused provided that there is other independent evidence connecting co-accused with commission of offence, which is missing in the present case. It is settled law that confessional statement "alone" cannot be used for conviction of co-accused. It is noticed that co-accused retracted from her confessional statement, although retracted confession could be accepted provided that the same was voluntary and true and also corroborated by some other reliable evidence but in the instant case no such evidence is available on record. Even otherwise, contents of that statement are not sufficient enough to implicate the co-accused with the commission of offence.
12. It has been alleged by the prosecution that accused Ejaz mixed the sleeping pills in alcohol and gave to deceased and when he becomes unconscious, accused caught hold his throat to kill him and pushed him from the rock due to which he died. In this regard (liquor, empty glasses, drinks) alleged to be recovered from the place of occurrence but prosecution remained failed to produce the recovery witnesses of the said alleged recovery. Evidence of recovery witness Muhammad Khalil PW11 was closed on 12.08.2014 whereas Iftiaj PW12 was abandoned by the prosecution, as both of the recovery witnesses were not produced by the prosecution before the Court, hence recovery is not proved. Furthermore, stomach contents of deceased were sent for chemical examination but prosecution failed to place on record the report of chemical examiner, which further weakened the prosecution's case.
13. It is settled principle of criminal jurisprudence that benefit of doubt always goes to accused and prosecution has to prove its case beyond reasonable doubt, each and every doubt arises in the prosecution case to be resolved in favour of the accused, there is no need that there should be several circumstances to create a doubt in the prosecution story and even a single doubt is sufficient to entitle an accused to be acquitted of the charges. Reliance can be made upon the case law reported as Riaz v. The State (1996 PCr.LJ 1575) wherein it was observed in the following manner:-
"It is not necessary under the law that there should be several circumstances to create a doubt about the prosecution case. Even one circumstance which creates a reasonable doubt is sufficient to entitle the accused to an acquittal."
In another case reported as More v. The State (2013 PCr.LJ 1730), it has been enunciated as under:-
"From the above noted contradictions a reasonable doubt existed regarding guilt of the appellant. It is well-settled law that for the purpose of benefit of doubt to an accused more than one infirmity is not required. A single infirmity, creating reasonable doubt in a prudent mind regarding the truth of the charge, is sufficient to give benefit of doubt to the accused."
14. This is an acquittal appeal and it is celebrated principle of criminal jurisprudence that every accused is presumed to be innocent unless otherwise proved. After acquittal accused respondents enjoy double presumption of innocence. We are cognizant of the fact that acquittal order can be set aside provided that the same is found perverse and reasons given by the trial Court for acquittal of accused-respondents are artificial. After minute scrutiny of evidence we are of the opinion that last seen evidence produced by the prosecution is not confidence inspiring, recoveries are not proved, motive has rightly been disbelieved by the trial Court because same was not supported by any independent evidence, retracted confessional statement of co-accused Mst. Faheema Bi rightly discarded by the learned trial Court as the same was not recorded as per standard prescribed for it.
From the above discussion, it cannot be said that the reasons given by the trial Court for acquittal of accused---respondents are perverse or artificial. Prosecution failed to prove its case beyond reasonable doubt, therefore, the acquittal order passed by the learned trial Court is allowed to stand. Resultantly, this appeal is dismissed.
JK/34/HC(AJ&K) Appeal dismissed.