Criminal Appeal No.91 of 2015

J U D G M E N T

Heard on 24^th February, 2016.

Mr. Muhammad Hanif Kashmiri, Advocate for appellant.

Mr. Abrar Ali Khichi, A.P.G.Sindh.

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SYED MUHAMMAD FAROOQ SHAH, J.:- This Criminal Appeal is directed against the judgment dated 14.03.2015, passed by learned IInd Additional Sessions Judge, Karachi-Central in Session Case No.70 of 2012, whereby the appellant has been convicted under section 302(b) PPC and sentenced to suffer life imprisonment with fine of Rs.1,00,000/- in default whereof to suffer SI for six months more, however benefit of section 382-B Cr.P.C. was extended to the appellant. The appellant has prayed for setting aside of the said judgment, conviction and sentence and for his acquittal from the charge of the case, on the facts, grounds mentioned in the appeal.

2. Prosecution story in nutshell is that on 14.01.2012 while complainant Zaheen Muhammad Taj was in his house situated in Bilal Colony, Korangi, Karachi he received a phone call at 08:30 a.m. from his maternal uncle Noor Rehman who resides in Shafiqe Colony informing him that someone had caused murder of his younger brother namely Rafique Muhammad Taj with ‘Churri’ blows. On such information, he rushed to the house of his maternal uncle situated at the Shafique Colony where on his enquiry he was told that his younger brother Rafique Muhammad Taj was stabbed with ‘Churee’ by his maternal cousin namely Safiullah. His statement was recorded under section 154 Cr.P.C.; the case was registered against the accused, who was arrested. On completion of usual investigation, the appellant was charge sheeted by the police. At trial, charge was framed by the court to which the accused pleaded not guilty and claimed trial.

3. To support its case, prosecution examined in all nine witnesses. Pw-1 Muhammad Zaheen Taj brother of deceased as Exh:3, who produced his statement under section 154 Cr.P.C. as Exh: 3/A, Inquest report as Exh:3/B, Memo of date body as Exh:3/C, Receipt of dead body as Exh:3/D and memo of place of incident as Exh:3/E. PW-2 Anwer Zaib who has produced the Mashirnama of arrest of appellant as Exh:4/A, PW-3 Noor Rehman, the father of appellant, who deposed that on hearing the noise outside of his house he found the dead body of Rafique Muhammad Taj lying on the ground. He produced the memo of arrest as Exh: 4/A, PW-4 ASI Nadeem Shah is the witness of recovery of knife. He identified the Churri in Court. He produced memo of recovery as Exh:7/A, PW-5 Muhammad Ayaz nephew of the complainant deposed about removal of dead body to hospital, PW-6 Dr.Shiraz Ali has produced the post mortem report as Exh: 11/B, death certificate as Exh:11/C and letter of police as Exh:11/D, PW-7 ASI Muhammad Javed produced the FIR bearing No.3/2012 as Exh:12/B, PW-8 SI Khalid Mughal and PW-9 SI Muhammad Arif produced chemical report as Exh:14/H, 14/I and 14/J he has also produced the photographs of dead body.

4. On conclusion of prosecution evidence, statement of the accused was recorded under section 342 Cr.P.C. and it appears that neither he examined himself on oath under section 340(2) Cr.P.C. nor lead any evidence in his defense.

5. It is argued by learned counsel for the appellant that the appellant has falsely been implicated in this case as there is no eye-witness of the incident; that the impugned judgment has been passed against the very spirit of law and basic requirement of the natural justice and is the result of misreading and mis-appreciation of the evidence; that the learned trial court has failed to consider and appreciate that the incident took place on 14.1.2012 at 0700 hours whereas the investigation was conducted by preparing the inquest report, memo of dead body, cause of death and other proceedings prior to the recording of statement under section 154 Cr.P.C. which was recorded with a delay of 6 hours i.e. at 1300 hours on 14.1.2012 and no explanation of such delay has been explained. He contended that all the prosecution witnesses made conflicting evidence, that there is no direct evidence against the appellant and medical evidence also does not connect the appellant with the commission of crime. Learned counsel while relying upon the case of KHALID JAVED & ANOTHER V/S THE STATE (2003 SCMR 1419) further submitted that blood stained ‘Churri’ does not match with the blood group of deceased victim, as such this piece of evidence is not sufficient for conviction and not to be relied in favour of the prosecution case. Learned counsel next submitted that the prosecution case is resting entirely on circumstantial evidence then each piece of evidence collected must provide all links making out one straight chain. To support his above contentions learned counsel relied upon the case of IMRAN @ DULLY & ANOTHER V/S THE STATE & OTHERS (2015 SCMR 155), NAWAB ALI V/S THE STATE (2014 P.Cr.L.J. 885), MUHAMMAD FAROOQ & ANOTHER V/S THE STATE (2006 SCMR 1707) and MUHAMMAD ASHFAQ V/S THE STATE (2014 P.Cr.L.J.1531).

6. Learned Assistant Prosecutor General, Sindh did not found able to controvert the submissions made by learned counsel for the appellant, rather conceded the arguments of learned counsel for appellant and did not support the impugned judgment. Learned Assistant Prosecutor General, Sindh submitted that it is a case without ocular or last seen evidence. Hence consented for acquittal of appellant by extending him benefit of doubt.

7. I have given due consideration to the record and argument of learned counsel for appellant and learned Additional Prosecutor General, Sindh and I have gone through the evidence produced by the prosecution. Admittedly, it is a case of unseen incident as no ocular testimony is found available. To reach at the exact conclusion, it would be appropriate to discuss the veracity and authenticity of prosecution evidence available on the record.

8. The prosecution case hinges upon the statement of brother of the deceased i.e. complainant PW Muhammad Zaheen Taj, who is not the eye-witness. He deposed that he received information of the incident on telephone call made by PW Noorur Rehman father of the appellant who informed that somebody stabbed the victim. He reached the place of incident and found there dead body. He deposed in his examination-in-chief that PW Noorur Rehman who is his ‘Mamoo’ informed him that his brother victim was stabbed by the accused safiullah. This PW is also Mashir of inquest report under section 174 Cr.P.C. and Mashir of dead body. He did not disclose the name of any other witness of incident. He deposed whatever allegedly disclosed to him by the PW Noorur Rehman.

9. PW Noor Rehman stated in his examination-in-chief that he is not an eye-witness of the incident. He deposed that he called his nephew complainant on telephone; police arrived at the place of incident, took the dead body at the police station alongwith the complainant and PW Anwar Zaib and then to Abbasi Shaheed Hospital. He further deposed that the contents of his statement under section 161 Cr.P.C. and memo of arrest was not read over to him by the police. PW Anwar Zaib is not an eye-witness of the prosecution case; he is witness of memo of arrest of the appellant which he signed at Police Station. He is also Mashir of report under section 174 Cr.P.C. and memo of inspection of dead body prepared at the place of incident with the complainant. He did not produce memo of inspection of deed body and the memo of 174 Cr.P.C. report, except that he has seen the said documents. This witness admitted that he is not the eye witness and signed this document at the Police Station. PW HC Nadeem Shah who is Mashir of recovery of ‘Churri’ and place of incident stated that incident had taken place on 14.1.2012, accused surrendered himself and police arrested him on 21.1.2012. The recovery of ‘Churri’ was affected on 22.1.2012 after nine days of the incident from ‘Kachra kundi’ at Shafique colony. PW Muhammad Ayaz is nephew of complainant. This PW is also not an eye witness. He reached at the place of incident alongwith the complainant where father of appellant told him that his son had murdered the victim Rafique. He admitted in the cross-examination that “it is correct that I have not named any person of the mohallah who were present at the place when the father of the accused was announcing and telling us that his son had murdered Rafique”. PW Dr. Shiraz Ali deposed on behalf of the doctor Nizam Ghouri who was out of country and he has conducted the post mortem. PW Muhammad Javed was Duty Officer at the Police Station where he received a message from mobile of Khalid Hussain Mughal i.e.PW-8 and he made entry in the ‘Roznamcha’ at 08:40 a.m. He reached the place of incident at 09:00 a.m. where the inquest report and memo of inspection of dead body were prepared which was signed by the complainant. The dead body was taken to the hospital at 11:50 a.m. The 154 Cr.P.C. statements was recorded by him at 1300 hours and then reached at the Police Station and FIR was accordingly registered at 1400 hours though time of incident was shown in the FIR at 07:00 a.m. PW- SI Khalid Mughal disclosed that he reached at the place of incident at 05:30 a.m. and found the dead body lying therein. He informed the police at 05:30 a.m. whereas the entry was made at 08:40 a.m. with the delay of three hours and 10 minutes. PW- Muhammad Arif SIP is the Investigating Officer of the case. He admitted in his cross that he did not conduct the finger print procedure of the accused nor the murder weapon and he did not receive report from the Chemical Examination Department. This witness further stated in his cross that Anwar Zaib was present at the time when Safiullah, the accused killed the victim Rafique Taj whereas Anwar Zaib contradicted this fact and made statement that he reached at the place of incident after commission of offence on telephonic information. He admitted that the complainant did not accept the allegation; therefore, his statement under section 164 Cr.P.C. was not recorded by the Magistrate.

10. Statement of the appellant under section 342 Cr.P.C. was recorded but the evidence which the learned trial court relied is that the father of accused Safiullah said that “his son has murdered Rafique Taj and ran away” was not put to the accused in his statement under section 342 Cr.P.C. as such relying the said fact which is also not available in the case of the prosecution is illegal and unlawful.

11. Suffice is to say that prosecution story is not trustworthy and the depositions of PW’s are not beyond the shadow of reasonable doubt as there are lot of loop holes and material contradictions in the prosecution, which are sufficient to observe that the prosecution has failed to prove its case against appellant beyond any shadow of doubt, the benefit of which must go to the appellant. It is established law that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused but the trial Court has failed to appreciate the evidence brought on record by convicting the appellant which is against the law. It is also settled that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the case of TARIQ PERVEZ V/S THE STATE (1995 SCMR 1345), MUHAMMAD SAEED V/S THE STATE (2008 P.Cr.L.J. 1752), GHULAM MURTAZA V/S THE STATE (2010 P.Cr.L.J. 461). In the case of FARZAND ALI V/S THE STATE (2012 MLD 882), recovery of weapon of offence made on the pointation of accused was held to be inconsequential as there was no positive report from Forensic Science Laboratory. It appears that the evidence of prosecution witnesses has been recorded by the police at belated stage without furnishing any plausible explanation. The Hon'ble Supreme Court in the case of RAHAT ALI V/S THE STATE (2010 SCMR 584) held that the said lacuna is fatal to prosecution case and the statement of such witnesses were not to be relied upon. In the case of SULTAN & OTHERS V/S THE STATE (1987 SCMR 1177) the Hon'ble Supreme Court held that Investigating Officer is bound to secure the attendance of independent witnesses to attest the recovery of crime weapon at the pointation of accused and failure to do so would cause doubt on the factum of recovery. In the present case parties are closely related to each other and deposed that mohallah people were present at the place of incident but without any explanation of the prosecution with regard to non- availability of independent person of the locality has been cited as witness. It is well known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless to the fact as to whether he has taken any such defense plea or not.

12. The law developed in our country is based on maxim that it is better that ten guilty persons be acquitted rather than one innocent person be convicted, reference in this regard may conveniently be placed on citations of Apex Court reported as THE STATE V/S MUSHTAQ AHMAD (PLD 1973 SC 418) and KHALID MEHMOOD V/S THE STATE (2011 SCMR 664). It is also an established principle of administration of criminal justice coupled with Muhammadan shahria law that conviction cannot be based on any other type of evidence unless direct or substantive evidence is available and the guilt of accused cannot be based on high probabilities that may be inferred from evidence in a particular case. In the instant case sufficient discrepancies are appearing in the statements of prosecution witnesses and the memos of place of occurrence and recovery, prepared during investigation, appear to be suspected.

13. From perusal of the impugned judgment, it appears that learned trial court recorded the conviction of appellant based on recovery of weapon on the pointation of accused which as per report of Chemical Examiner was stained with human blood, however, admittedly blood found on said ‘Churri’ did not match with the blood of deceased. By recording the impugned judgment the learned Additional District & Sessions Judge has further observed that both the parties are closely related to each other and people of locality did not come forward to give evidence but held the appellant involved in commission of murder of Rafique Muhammad Taj. In view of aforementioned prosecution evidence, the conviction and sentence of imprisonment for life and fine of Rs.1,00,000/-, in default SI for six months is not sustainable in law. It would not be out of context to mention here that the criminal cases involves life and death of a citizen and the fate of citizen is to be decided by carefully analyzing and scrutinizing the evidence adduced by prosecution. The time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of accused beyond reasonable doubt, a conviction cannot be passed on the accused. A criminal Court cannot afford to deprive an accused of his life without having at least a reasonable level of certainty that he was the real culprit. The witnesses account regarding committing of crime by appellant does not have sufficient corroboration from the medical evidence, place of incident, motive and other circumstantial evidence; hence appellant is liable to be given the benefit of doubt. It is also a well-established principle that each criminal case has to be proved on its own facts and circumstances. Learned Trial Judge being senior officer of judicial hierarchy needs to learn criminal law and art of judgment writing.

14. After hearing the learned counsel for the parties, by a short order dated 24.2.2016, the appeal in hand was allowed; consequently, the impugned judgment of the trial court convicting and sentencing the appellant was set aside and appellant was acquitted from the charge of this case and was ordered to be released forthwith, if not required in any other case. Above are the reasons for the said short order.

15. Registrar of this Court to send copy of this judgment to concerned Trial Judge for information and her guidance.

*Aamir/PS* J U D G E