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2017 DIGILAW 674 (JK)

State v. Mohd. Hanif S/o Abdul Rashid

2017-08-19

SANJAY KUMAR GUPTA, TASHI RABSTAN

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JUDGMENT : Sanjay Kumar Gupta, J. 1. State is aggrieved of the acquittal earned by Mohd. Hanif S/o Abdul Rashid R/o Village Tharal, Tehsil Mahore, District Udhampur ( for brevity ‘accused’) vide impugned judgment dated 22.12.2005 of learned Additional Sessions Judge, Reasi in case FIR No.35/2001 registered in Police Station Mahore for the offence under Section 302/307/452 RPC & 7/25 Arms Act, therefore, Cr. Acq. Appeal No.24/2006. 2. As per the prosecution, FIR No.35/2001 for offences under Sections 302/307/452 RPC & 7/25 Arms Act was registered on 30.03.2001 in the Police Station Mahore; it has been stated therein that an information was received on 30.3.2001 from reliable source that on night intervening 29th & 30th of March, 2001 some unidentified militants entered into the house of Abdul Rashid and opened indiscriminate firing. In the said firing Ghulam Fatima W/o Abdul Rashid expired on the spot, where as Abdul Rashid sustained grievous injuries and thereafter succumbed to the same. In the said occurrence, Mst. Zaitoon Bano D/o deceased Abdul Rashid also sustained injuries. 3. After the investigation, police came to the conclusion that the accused Mohd. Hanif was having inimical relations with the deceased Abdul Rashid as they were having dispute over land for a long time and it is due to this enmity the accused persons namely Mohd. Hanief, Mohd. Hussain and Gulam Hussain entered into the house of deceased Abdul Rashid at 8 p.m. on 29.03.2001 and committed the offence. Finding the accused guilty of the offences, the challan was filed by the Police against the accused persons in the Court. 4. Accused Mohd. Hussain and Gulam Hussain could not be apprehended and so were proceeded u/s 512 Cr.P.C by committal court on 23.7.2001. 5. After hearing the learned APP and learned counsel for the accused, the trial Court came to conclusion that prima facie offences under Sections 302/307/452/325/324/109 RPC is made out against the accused Mohd. Hanif. Accordingly, he was charged for the said offences vide order dated 08.02.2002. The charge was read over and explained to the accused, he denied his guilt and claimed trial. 6. From the perusal of file, it reveals that prosecution, in support of its case, has examined Zaitoon Akhtar PW1, Shamim Bano PW2, Mohd. Sharif PW3, Hasan Din PW4, Dr. Zahida Mir PW5, Mohd. Hussain PW6, Bashir Ahmed PW7 and8 Jatan Ji PW. The charge was read over and explained to the accused, he denied his guilt and claimed trial. 6. From the perusal of file, it reveals that prosecution, in support of its case, has examined Zaitoon Akhtar PW1, Shamim Bano PW2, Mohd. Sharif PW3, Hasan Din PW4, Dr. Zahida Mir PW5, Mohd. Hussain PW6, Bashir Ahmed PW7 and8 Jatan Ji PW. Out of these witnesses Zaitoon Bano, Shamim Akhtar have been cited as eye witnesses. Court below after appreciating all evidence, disbelieved the statements of these eye witnesses. This court has full power to re appreciate the evidence in order to come to conclusion as to whether Court below has rightly appreciated the evidence or not. 7. A brief resume of the statements of eye witnesses namely Zaitoon Bano PW1 and Shamim Bano PW2 and other witnesses is as under; - Zaitoon Bano PW1 is the daughter of deceased Abdul Rashid, deposed that she is unmarried and lives in her parental house. She knows the accused. Accused Mohd. Hanif is related to her. On the night 29/30.03.2001 i.e. at about 7.55 pm we were sitting in our house. He mother told her to go to the kitchen and prepare food, and she went to do so in the kitchen. When her father came home, her younger brother and Sisters Shamim Bano, Parveen Akhter, Shabir Ahmed, Farooq Ahmed, Riaz Ahmed and Shahbaz were present at home. At that time the voice came from outside saying to open the door. She recognized the voice to be of the accused Mohd. Hanif. Her father said that since it is night time not to open the door. She said it is Hanief whereupon her mother said that there could be other unknown persons present along with him, so not to open the door. During this period, three men broke opened the door and entered into the house. In the light of lamp she recognized those persons to be Mohd. Hanif, Mohd. Hussain and Ghulam Hussain. The children hid under the bed. Ghulam Hussain and Mohd. Hussain had small sized rifles with them. Mohd. Hanif was empty handed. Both the accused Ghulam Hussain and Mohd. Hussain on entering the house opened firing and murdered her mother Ghulam Fatima. Her father Abdul Rashid was injured. The accused fired upon her also. She sustained bullet injury on her hip. Ghulam Hussain and Mohd. Hussain had small sized rifles with them. Mohd. Hanif was empty handed. Both the accused Ghulam Hussain and Mohd. Hussain on entering the house opened firing and murdered her mother Ghulam Fatima. Her father Abdul Rashid was injured. The accused fired upon her also. She sustained bullet injury on her hip. In the first instance, the accused had fired 5/6 bullets at her but she had not got injured whereupon when the accused were going outside, Hanif had told them that the girl is alive and to kill her. Thereupon, the accused Ghulam Hussain had fired upon her. She bandaged her leg and went to her grand father Abdul Gaffar’s house who lives at a distance of one kilometer. At the house of her grand father, Hassan Din and Mohd Qasim were present and she told them about the occurrence. They got frightened and did not come there. She came back home. Her father was in a state of pain and blood was oozing out which could not be stopped. Thereafter at 3 a.m. she sent her sisters Shamim Akhter and Parveen Akhter to her grand father’s house with a message that her father is dying. Thereafter at 5 a.m. her grandfather, Hassan Din, Mohd Qasim and Mohd. Irfan came on the spot. At that time her father was alive. Hassan Din and other brought her father outside. Her father informed her grand father Abdul Gaffar that his children are under his care from now onwards. Thereafter, at 5.30 a.m. her father expired. There was a dispute between her father and accused Mohd. Hanif over land and that is why the accused Mohd. Hanif with the accused persons conspired to murder her parents. The police came on spot. She was sent to the medical hospital at Jammu for her medical treatment. Her statement was not recorded at that time since she was in an injured condition. She remained in the hospital for one month and thereafter came back to her village. Her statement was recorded in the police station. In cross examination, she has deposed that in July, 2000 accused Mohd. Hanif had attacked us when we had gone to cut grass from the land. FIR was registered by both the sides but the same were not decided. The land in dispute belongs to the grand father of the accused Mohd. Her statement was recorded in the police station. In cross examination, she has deposed that in July, 2000 accused Mohd. Hanif had attacked us when we had gone to cut grass from the land. FIR was registered by both the sides but the same were not decided. The land in dispute belongs to the grand father of the accused Mohd. Hanif, out of which, one side had been given to her parents and the other side of the land had been given to the father of the accused. After the accused had left, she had informed her sister as to the names of the accused. She had informed her grand father only about the occurrence but had not given him the names of the accused. At that time she had informed her grand father that some persons had come and after firing killed her mother and injured her father. At that moment Qasim and Hassan who are her uncles were present in her grand father’s house. She did not inform them also about the identity of the accused at that time. When these people came to their house in the morning she had informed them about the names of the accused. Thereafter Hasan Din had gone to the police to file the report. At the time of filing the report, they did not know the names of the accused. They had brought the police at 7 a.m. Blood had come out from her injuries. She had not informed the police at that time about anything. Doctor from Mahore had come on the spot. She was a lady doctor. She had not talked to the lady doctor. Qasim and Iqbal were looking after her. But no conversation had taken place regarding the occurrence. Police had not come to her in the hospital. She remained in the hospital at Jammu for one month. The police did not visited her there. When she went home after getting alright, Dy.SP of the police had called her to the police station and taken her statement over there. In the morning lot of persons had come to the house but she had not informed anyone even then. It is incorrect that she did not tell her grand father about the names of the accused as she had not identified them. In the morning lot of persons had come to the house but she had not informed anyone even then. It is incorrect that she did not tell her grand father about the names of the accused as she had not identified them. However, it is correct that she knew the accused but did not inform her grand father and uncle. Shamim Akhter PW2 deposed that she knows the accused persons. On 29.03.2001 she along with her family was present in the house. At night about 7.55 pm some one knocked at the door and we were restrained from opening the door by our mother. However, on the door being broken, her parents ran into the room where the animals were tied. The lamp was burning. Three accused came inside the house. Accused Ghulam Hussain and Mohd. Hussain are the militants. Ghulam Hussain is the brother of Mohd. Hanif. Ghulam Hussain and Mohd. Hussain were armed with small rifles. The accused Mohd. Hanif was unarmed. There after, Ghulam Hussain and Mohd. Hussain fired at her parents. Thereafter accused went outside. Then one of the accused said one of her sister namely Zaitoon Bano is alive. Then Ghulam Hussain fired at Zaitoon Bano who was injured on her leg. Thereafter the accused ran away. Going into the kitchen, she saw that her mother Ghulam Fatima had sustained two bullet injuries and was dead. Her father Abdul Rashid was wounded on his leg and was alive. Zaitoon tied her wound and went to the house of her grand father Abdul Gaffar. Thereafter Zaitoon Bano came back and told her that nobody is willing to come as they are afraid. In the morning, they sent her younger sister Parveen to their grandfather’s house. Thereafter her grand father Abdul Gaffar, Hassan Din, Mohd. Qasim and Mohd. Irfan came on the spot. They picked up her father and took him outside. At that time her father was alive and he expired at 5 a.m. Her father informed her grand father that the children are now in his custody. The police came at approximately 7 a.m. Her sister Zaitoon Bano was sent to Jammu for medical treatment. The accused Mohd. Hanif and her father Abdul Rashid had a dispute over the land. A fight had taken place last year also. Her mother Ghulam Fatima is related to Mohd. Hanif. The police came at approximately 7 a.m. Her sister Zaitoon Bano was sent to Jammu for medical treatment. The accused Mohd. Hanif and her father Abdul Rashid had a dispute over the land. A fight had taken place last year also. Her mother Ghulam Fatima is related to Mohd. Hanif. It is due to this dispute that accused Mohd. Hanif had conspired with accused Ghulam Hussain and Mohd. Hussain to murder the family of Abdul Rashid. Police has recorded her statement. Zaitoon Bano was admitted in the hospital for one month. In cross examination, this witness deposed that her grand father had sent Hasan Din to give the information to the police as also to her brother Mohd. Sharif. Police was informed about the occurrence by her grand father and Zaitoon Bano, then said police came and sent Zaitoon Bano to Jammu. She had informed police about the occurrence. When the accused had broken the door, she was in the kitchen and had not hidden herself. She was standing in the kitchen room. Her parents were shot in the kitchen room. When there was a knock at the door, Zaitoon Bano had recognized the face of the accused Mohd. Hanif and her parents had gone into the room housing the animals. She knows the accused. However, Zaitoon Bano had said that the attackers were the accused. The police has recorded her statement. Her statement under section 161 Cr.P.C. is correct that she along with her brother and sister were hiding under the bed and could not see the faces of three persons. However, Zaitoon Bano had informed about the names of the attackers. Ten minutes after the attackers had gone away, she had come out and she was informed about the identity of the attackers by Zaitoon Bano. Till then she did not know the identity of attackers. In the morning at 5 am when her grand father along with Qasim, Hasan Din etc. had come on the spot, Zaitoon Bano had informed them about the occurrence. When the police had come she had informed them about the occurrence. She had not gone to Jammu with Zaitoon Bano. Zaitoon Bano was looked after by her uncle Iqbal and Qasim at Jammu. had come on the spot, Zaitoon Bano had informed them about the occurrence. When the police had come she had informed them about the occurrence. She had not gone to Jammu with Zaitoon Bano. Zaitoon Bano was looked after by her uncle Iqbal and Qasim at Jammu. It is correct that till her relatives and police had come, she did not know about the names & identity of the attackers and nor she was told about the same by Zaitoon Bano. PW Mohd. Sharif is son of deceased, who has deposed that his father -the deceased had gone to his house on intervening night of 29th and 30th march 2001 at Tharal; he lives at Mahore; On 30.3.2001 at 8AM was informed to come to house as his father was injured; he went home and saw his parents were dead and sister Zaitoon Bano was injured; on inquiry his sister Zatoon told that at 7.55 pm in the evening, there was knock on door ; her mother asked not to open the door ; door was broken; accused entered accused Ghulam Hussain and Mohd. Hussain fired at his parents; his mother died; his father sustained injuries and succumbed to injuries; accused Mohd. Hanief told that girl (Zaitoon) is still alive, than Ghulam Husain fired upon her. 8. After appreciating the entire evidence, the trial Court has ultimately recorded a judgment of acquittal in favour of the accused on the grounds that there are contradictions, discrepancies and omissions in the case of prosecution. 9. We have given our thoughtful consideration to whole aspects of matter. 10. The scope of power of appellate court in case of acquittal has been highlighted by Apex Court in case AIR 2014 SC 2200 in case titled ‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which reads as under :- 10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which reads as under :- 10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5], Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above. 11. In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offence charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the established of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral certainty, every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit to acquit the accused, because it is better that several guilty person should escape than that one innocent person suffer. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. The weakness in defence established by the accused persons is no help to prosecution, because the prosecution has to prove its case beyond all shadow of doubt. Mere creation of suspicion is not enough. There is inevitably long distance to travel between ‘may be true’ and ‘must be true’. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 12. More the heinous offence, strict proofs are required. The fact in issue can be established by direct evidence or by indirect evidence. Mere fact that eye witnesses have spoken against the accused before court would not be enough to convict a person in heinous offence. There are certain cardinal principles of criminal law enumerate from time to time by Apex court and High Court, while dealing with such cases. 13. Court below has held that no doubt occurrence of firing took place and two persons namely Abdul Rashid and his wife Ghulam Fatima have died; but looking on statements of eye witnesses Zaitoon Bano and Shamim Akhtar, it reveals that case has falsely been made against the accused person/respondent. 14. 13. Court below has held that no doubt occurrence of firing took place and two persons namely Abdul Rashid and his wife Ghulam Fatima have died; but looking on statements of eye witnesses Zaitoon Bano and Shamim Akhtar, it reveals that case has falsely been made against the accused person/respondent. 14. Court below has held that Zaitoon Bano has stated that she recognized the accused person at the time of occurrence, but she did not narrate the names of accused to Abdul Gaffer her grandfather and her uncle Hasan Din in the morning when they came house; Court observed that PW Hasan Din went when to police station to file report at that time they did not know the name of assailants; this witness has also stated that police had come on spot and sent her to medical hospital jammu where she remained for one month, she told the names of assailants to I/O, but police did not arrest any one of them. Further statement of this witness has been recorded in terms of section 161 Cr.P.C on 30.4.2001 after one month. 15. Similarly court has disbelieved the statement of other eye witness Shamim Akhtar on the grounds that her statement has been recorded by police on 10.5.2001 after more than 40 days, whereas she has stated that name of assailants were told to her by her sister Zaitoon Bibi, still I/O did not record her statement at earliest. 16. Court below also disbelieved the statements of these witnesses on the ground that I/O recorded the statement of PW Hassan Din on same day on 30.3.2001, where he has stated that some unidentified militants have fired upon his parents. 17. Court below has relied upon 2005 (1) CRIMES 146 SC in case titled State of UP v. Satish; AIR 1979 SC 135 case titled Ganesh Bhavan Patel v. State of Maharashtra; and 2003 JKJ (3) 506 Prem Singh v State, with regard to delay in recording the statements of material witnesses. 18. We have gone through the citations; correct law has been cited by Court below. Because, it has always been impressed upon the investigation officer to record the statement of material witnesses at earliest especially in heinous offence. Because delay in recording the statements of material witnesses crate a doubts in the mind of court with regard to their creditability. 19. We have gone through the citations; correct law has been cited by Court below. Because, it has always been impressed upon the investigation officer to record the statement of material witnesses at earliest especially in heinous offence. Because delay in recording the statements of material witnesses crate a doubts in the mind of court with regard to their creditability. 19. Further in LAW HEARLD SUPREME COURT 2016(1) case titled Shahid Khan v state of Rajasthan, it is held that :- “The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt. 12. Consequently, the appeals are allowed and the conviction and sentence of the appellants is hereby set aside. The appellants are on bail. Their bail bonds shall stand discharged. 20. In famous case reported in AIR 1988 SC 1883 in case titled Kehar Singh AND OTHERE v. STATE OF DELHI ADMININSTATION, it is held “69. With this we are now left with the evidence of Amarjit Singh who is an important witness as per the prosecution. It has come on record that his statement during investigation was recorded thrice; twice by police under section 161 and then under sect. 164 Cr. With this we are now left with the evidence of Amarjit Singh who is an important witness as per the prosecution. It has come on record that his statement during investigation was recorded thrice; twice by police under section 161 and then under sect. 164 Cr. P.C. The first statement is Ex.PW 44 which was recorded on November 24, 1984, after 25 days of the incident and the second statement PW 44 DB was recorded on December 19, 1984. On December 21, 1984 the third statement PW 44A under Sec. 164 of the Code came to be recorded. In the first statement there is no involvement of Balbir Singh. The second statement according to the witness was recorded at his own instance. He states that it did not occur to him that assassination was the handwork of balbir Singh and Kehar Singh. After he had learnt about the firing and death of Smt. Indira Gandhi he recalled certain things and went to Shri R.P. Sharma who recorded his statement on 24.11.84. According to him, he recalled bit by bit and that was the reason, he gave the subsequent two statements. If we carefully peruse these statements it is clear that the entire approach of the High Court appears to be erroneous. 70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In this second statement he has tried to introduce things against him. This apparently is a clear improvement. It is well-settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such witness alone.” 21. So finding of Court below with this regard is neither perverse nor against the law. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such witness alone.” 21. So finding of Court below with this regard is neither perverse nor against the law. Court below has also held that Ziatoon Bibi has stated that her father Abdul Rashid and accused Mohd. Hanief were inimical to each other. We have gone through the cross examination of this witness, she has stated that in 2000 accused has attacked on them when they had gone to cut grass; both parties lodged FIR. Enmity is always considered double edged weapon; it can form basis of crime or it can also made person to involve in false case. This aspect of enmity in a criminal case has to be appreciated along with other attending circumstances of case. 22. In present case when we have gone through the other attending circumstances of case; it can be inferred that respondent-Mohd. Hanief has falsely been implicated. Rest of witness Mohd.Sharif is son of deceased who has stated that his sister told that accused has killed his parents. He is hearsay witness; further in his statement recorded on same day he has stated that some unidentified militants have committed crime. So he has made material improvement in his statement when he appeared before court. PW Hasan Din brother of deceased has stated that militants have committed crime. PW Zahida Mir is doctor who conducted postmortem of deceased. Pw Bashir Ahemed has stated that firing took place in intervening night of 29.3.2001 in the house of Abdul Rashid, in which Abdul Rashid and his wife died. He is witness to seizure of empty cartridges of AK -47; seizure of clothes of dead bodies; plain and stained soil; receipt of dead bodies; superdnama of ring; seizure memos. In this way he has stated nothing against the accused. PW Mohd Hassan is I/O who has concluded the challan after collecting the evidence. No conviction can be based on statement of IO. 23. The courts while appreciating the evidence in criminal cases have to see the decree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused Court should not go on convicting the accused. 24. 23. The courts while appreciating the evidence in criminal cases have to see the decree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused Court should not go on convicting the accused. 24. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. The law does not permit the Court to punish the accused on the basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 25. Viewed, thus, finding no merit in the appeal on hand filed by the State, the same is dismissed.