2016 PLP 1 (YLRN)

Ss. 302, 380, 381-A & 411

Criminal Procedure Code (V of 1898), S.417

Qatl-i-amd, theft in dwelling house, theft of car or other motor vehicle, dishonestly receiving stolen property

Appeal against acquittal

Reappraisal of evidence

Contradictions, highlighted by the Trial Court in the statement of the prosecution witnesses were not ignorable

Alleged recoveries were made after 22/23 days of the occurrence

Prosecution had failed to prove said recoveries through reliable solid evidence

Recoveries and medical evidence, were the only supporting piece of evidence

No recovery of jewellery and cash had been effected from accused

Impugned judgment, which resulted into acquittal of accused persons, was the result of correct appreciation and evaluation, and other material available on record

Judgment of acquittal, could only be interfered with, if it was found on the face of it, illegal, perverse, capricious, artificial, ridiculous, speculative, and based on misreading or non-reading on record, and that too, with a view to avoid miscarriage of justice

Impugned judgment, warranted no interference. [Paras. 7, 9, 10 and 11 of the judgment]

Circumstantial evidence

Scope

Circumstantial evidence was a weak type of evidence; and conviction could be based on such evidence, only if the same was duly corroborated by each evidence, which would maintain a complete chain of the circumstances directly relatable to each other

When any link in the chain was missing in a case of circumstantial evidence, it would not be safe to record conviction. [Para. 8 of the judgment] Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

Benefit of doubt

For extention of benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubts

If a single circumstance, would create reasonable doubt in a prudent mind about guilt of accused then he would be entitled to such benefit, not as a matter of grace and concession, but as of right. [Para. 9 of the judgment] Tariq Pervaiz v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 ref. Muhammad Asghar Gill, DPG for the State. JUDGMENT KHALID MAHMOOD MALIK, J.--By way of this appeal, judgment dated 25.6.2014, passed by the learned Additional Sessions Judge, Bahawalnagar, has been called in question, whereby respondents have been acquitted of the charge in case FIR No.122/2013 dated 23.2.2013, registered under Sections 302/380/381-A/411, P.P.C., at Police Station, Sadder Bahawalnagar.

2. The facts of the case as narrated by Ali Sher complainant (PW-6) in his application (Ex.PC) upon which FIR (Ex.PC/I) was registered are that he is residing in Mauza Kot Ghulam Muhammad Shah along with his children, father Muhammad Sadiq and sisters Sharifan Bibi, Naziran Bibi and is doing cultivation. On 23.3.2013 at 11.00 a.m. he along with his family members except father Muhammad Sadiq went to the Darbar of Baba Sher Shah situated in Mauza Munian Wala. The keys of the house were handed over to Muhammad Sadiq. When they came back at 7.00 p.m. they saw that his father was lying on cot under a Chapper. A rope was fastened around his neck and blood was oozing from his nose and mouth. When, the complainant, his son Muhammad Ahmad and brother Manzoor Ahmad attended Muhammad Sadiq, he was found murdered. They also saw that the lock of the door was opened and motorcycle Honda 125-CC Model 2012 was missing from the room. The lock of iron Petty was also opened. On Checking, net cash Rs.2,00,000/- and gold ornaments were also found stolen. Unknown persons committed the murder of his father and committed theft of net cash, gold ornaments and motorcycle. After leaving his brother Manzoor Ahmad and son Muhammad Ahmad to guard the dead body, the complainant went to the Police Station to report the occurrence.

3. After completion of investigation, challan was submitted before the learned Trial Court and learned Trial Court, after observing legal formalities, framed the charge against the respondents to which they pleaded not guilty and claimed trial. Thereafter the prosecution was directed to produce its evidence. The prosecution has produced as many as 13 witnesses i.e. Amjad Ali 590/HC (PW-1), Abdul Latif 286/C (PW-2), Muhammad Safdar-1578/C (PW-3), Abdul Sattar-626-C (PW-4), Rana Saeed Ahmad Draftsman (PW-5), Ali Sher complainant (PW-6), Bashir Ahmad (PW-7), Allah Ditta (PW-8), Muhammad Ashraf (PW-9), Muhammad Rafique (PW-10), Muhammad Ahmad (PW-11), Doctor Umar Malik, Medical Officer (PW-12) and Taufeeq Hassan Khan Sub-Inspector (PW-13). In documentary evidence the prosecution tendered in evidence report of Forensic Science Agency regarding rope and piece of shirt as Ex.PK, report of Forensic Science Agency regarding hyoid bone as Ex.PL and report of Forensic Science Agency regarding viscera as Ex.PM and closed the prosecution evidence. "I have been falsely involved in this case by the complainant. PWs are related inter-se. In fact, the complainant party substituted the real accused after receiving handsome money from them in connivance with the police. I have no concern whatsoever with the alleged occurrence." The respondents did not choose to produce defence evidence and to make their statements under Section 340(2), Cr.P.C.

4. Learned counsel for the appellant has argued that impugned judgment is against law and fact of the case and the learned Trial Court has not appreciated the evidence produced by the prosecution in its true perspective. The case of the appellant is based on strong circumstantial evidence supported by last seen evidence, extra judicial, confession, recoveries and medical evidence. The learned Trial Court has without any justification discarded the positive evidence, extra-judicial confession made by the respondents and recoveries and respondents have un-justifiably been acquitted.

5. Arguments heard and record perused.

6. Admittedly, the FIR was lodged against the un-known culprits who committed theft, cash, gold ornaments and Motorcycle Honda 125 CC Model 2012 and committed murder of Muhammad Sadiq, father of the complainant. The case of prosecution is based on circumstantial evidence comprising of last seen evidence, extra-judicial confession and recoveries. With regard to last seen evidence, the case of prosecution is that on 24.3.2013 Allah Ditta (PW-8) and Muhammad Abbas informed the complainant that they had seen the accused on motorcycle on the fateful day. Muhammad Abbas is first cousin (Phophizad) of the complainant, who is living at a distance of 8 K.M from the house of the complainant. Moreover, said Muhammad Abbas was not produced in the witness box, while Allah Ditta (PW-8) stated that he informed the complainant on the next day of occurrence. The said witnesses did not visit to the house of the complainant on the day of occurrence. He further did not appear before the police on the day of occurrence and remained silent. Even he did not join investigation on the day of occurrence. No explanation with regard to his non-appearance before the police on the day of occurrence is given by the prosecution side. The learned Trial Court after appreciating the facts and circumstances, rightly held that last seen evidence is doubtful and not reliable, there is no legal infirmities in the findings and observations of the Trial Court.

7. The prosecution in support of extra-judicial confession made by the accused produced Muhammad Asharaf and Muhammad Rafique (PW-9 and PW-10). Muhammad Ashraf (PW-9), who is first cousin (Phophizad) of the complainant and is residing in Mohallah Farooq Abad, Bahawalpur which is situated at a distance of about 8/9 K.M from the house of complainant. Both PWs are not the lambardar of the village or Councilor or respectable of the village and prosecution has failed to establish that what were the compelling circumstances of the accused who travelled long distance of 8/9 K.M to make statement to confess guilt of the offence before the persons, who were not known to PWs. The contradictions highlighted by the learned Trial Court in the statements of PWs are not ignorable. The complainant while appearing in the witness box, did not state about the alleged extra-judicial confession made by the accused persons. The alleged recoveries i.e. motorcycle P-4 and Trouzer (Shalwar) P-5 and Shirt P-6 were allegedly recovered after 22/23 days of the occurrence , while Trouzer P-5 and Shalwar P-6 were recovered from the bushes on the pointation of the accused. The prosecution has failed to prove said recoveries through reliable solid evidence. Even otherwise, recoveries and medical evidence are only supporting piece of evidence. No recovery of jewellery and cash has been effected from the accused and this fact is admitted by the Investigation Officer in his statement.

8. It is an established principle of law that circumstantial evidence is a weak type of evidence and conviction can be based on such evidence only if the same is duly corroborated by such evidence which maintains a complete chain of the circumstances directly relatable to each other. When any link in the chain is missing in a case of circumstantial evidence it would not be safe to record conviction. Reliance in this behalf may be placed on the case of Munawar Shah v. Liaquat Hussain and others (2002 SCMR 713) and Sh. Muhammad Amjad v. The State (PLD 2003 SC 704).

9. The impugned judgment, which resulted into acquittal of Muhammad Younas and Imtiaz Hussain respondents, is the result of correct appreciation and evaluation of evidence and the other material available on the record. It is well settled principle of law that to extend benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If a single circumstance creates reasonable doubt in a prudent mind about guilt of an accused, then he will be entitled to such benefit not as a matter of grace and concession, but as of right. In this regard, reference may be made to the case of "Tariq Pervaiz v. The State" (1995 SCMR 1345) and "Ayub Masih v. The State " (PLD 2002 SC 1048).

10. At present, presumption of double innocence is available to the respondents. One was at the pre-trial stage that every accused is considered to be innocent, unless proved otherwise. The second is the judicial verdict in his favour. It is well settled by now that a judgment of acquittal can only be interfered with if it is found on the face of it, illegal, perverse, capricious, artificial, ridiculous, speculative and based on misreading or non-appraisal of the evidence on record and that too, with a view to avoid grave miscarriage of justice. In this regard, reliance can be placed upon the case titled "Nawaz-ul-Haq Chowhan v. The State and others" (2003 SCMR 1597), Muhammad Tasveer v. Hafiz Zulqarnain and 2 others (PLD 2009 SC 53), Iftikhkar Hussain and another v. The State (2004 SCMR 85), Haji Khan v. Munir Ahmad (2010 SCMR 222) and Noor Khatoon v. Khalil Ahmad and others (2014 PCr.LJ 272).

11. The impugned judgment towards acquittal of the respondents does not contain any of the above mentioned defects, hence warrants no interference. Resultantly, the appeal in hand being devoid of any force and merit is dismissed. HBT/A-193/L Appeal dismissed.