IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal
Jail Appeal No.S- 100
of 2013
Before:-Mr.
Justice Amjad Ali Sahito
Appellant: Abdul Aziz S/o Raza
Muhammad Bhatti
through Mr. Muhammad Farooq Ali Jatoi, Advocate
Respondent: The State, through Mr.
AfzalHussainTalpur, Assistant Prosecutor General
Mr.
Sikander Ali Jatoi, Advocate for the complainant
Date
of hearing: 17.08.2018 &
03.09.2018
Date
of decision: 17.09.2018
J U D G M E N T
AMJAD ALI SAHITO, J-. The
above-named appellant was tried by learned 3rd Additional Sessions
Judge Mirpur Mathelo, in Sessions Case No. 168 of 2004, St.Vs. Abdul Aziz, for
an offence punishable under Section 302
PPC, vide Crime No.16/2004 registered with Police Station Yaro Lund, District
Ghotki, whereby he was convicted and sentenced to suffer imprisonment for life
under Section 302(b) PPC as Ta’zir
and to pay compensation of Rs.100,000/- to the legal heirs of deceased Mst.
Samina; in case of default of payment of compensation, to suffer S.I for six
months. However, the benefit of Section 382-B Cr.P.C was also extended to him
vide impugned judgment dated 28.10.2013.
2. The
concise facts as depicted in FIR are that on 06.06.2004 at about 1830 hours,
complainant Dur Muhammad Bhatti lodged FIR with Police Station Yaro Lund, in
which he has mentioned that his daughter Mst. Samina, aged 28/29 years, was
married to Abdul Aziz and in exchange
thereof the sister of Abdul Aziz namely Mst. Kamalan was got married with his
son Khan Muhammad. About 5/6 months prior Abdul Aziz along with his family had
migrated and settled in village Moula Dad Almani
and was Farmer of Syed Munir Hussain
Shah. On 05.06.2004, he (complainant) along with his wife Aamna, son Shoukat
Ali, daughter Mst. Kamalan went to visit Mst. Samina as Abdul Aziz used to
maltreat her on trifling matters when at
1500 hours accused Abdul Aziz came and demanded meals from Mst. Samina, she
made a bit late upon which Abdul Aziz started maltreating her, the complainant
party admonished him, but he immediately brought a shotgun and within their sight made direct fire upon Mst. Samina
which hit her and she fell down, then accused run away along with a shotgun. The complainant party went over Mst.
Samina and found that she had sustained firearm injury below her chest and was
bleeding and died within their sight. Leaving the P.Ws i.e his son and wife
over the dead body, he immediately went to the police
station where he lodged the FIR against the accused.
3. On 20.10.2004, the learned trial Court
after observing all the legal formalities
framed the charge against the present appellant at Ex.02 under Section 302 PPC,
to which he pleaded not guilty and claimed trial.
4. In order to establish accusation against
the appellant, the prosecution then examined PW-1 HC Samano Khan at Ex.04, he
produced a receipt at Ex.4/A; PW-2
complainant Dur Muhammad at Ex.11, he produced FIR at Ex.11/A; PW-3 Shoukat Ali
at Ex.12. Learned ADPP for State given up the evidence of PW Mst. Amna vide his
statement at Ex.13; Process-server PC Abdul Razzak at Ex.14, he has reported
that ASI Muhammad Ibrahim Channa and Inspector Lutufullah Hakro have expired;
PW-4 Tapedar Wahid Bux at Ex.16, he produced letter addressed to Mukhtiarkar
Mirpur Mathelo for deputing Patwari/Tapedar for preparing the sketch of place
of incident at Ex.16/A, sketch at Ex.16/B; PW-5 Dr. Najma Mangi at Ex.17, she
produced postmortem report at Ex.17/A, Lash-chakas
form at Ex.17/B; PW-6 ASI Nazeer Ahmed Leghari at Ex.18 he produced inquest
report at Ex.18/A, memo of arrest at Ex.18/B, roznamcha entry No.4 & 5 at
Ex.18/C, Chemical Examiner’s Report at Ex.18/D, F.S.L report at Ex.18/E.
Thereafter learned ADPP for the State closed the side of prosecution vide statement dated 04.10.2013 at Ex.19.
5. Statement of the accused was recorded under
Section 342 Cr.P.C at Ex.20, wherein he has denied the prosecution allegations
leveled against him and prayed for justice and stated that his wife had
committed suicide by means of a gunshot
when he was outside of his house. He did not examine himself on oath but has examined namely Mst. Zulekhan
(mother) and Mst. Kamalan (sister). As such DW-1 Mst. Zulekhan was examined at
Ex.21 and DW-2 Mst. Kamalan at Ex.22 and thereafter learned counsel for the
appellant filed statement dated 11.10.2013 and closed its side at Ex.23.
6. The learned trial Court after hearing the
learned counsel for the parties and going through the material brought on
record awarded conviction and sentence to the present appellant, which he has
impugned through an instant appeal before
this Court.
7. Mr. Muhammad Farooq Ali Jatoi, learned
counsel for the appellant contended that the impugned judgment is against the
law and facts of the case; that the present appellant is innocent and has been
falsely implicated in this case; that complainant and his eyewitnesses are not the eyewitnesses of the incident; that the presence
of the eyewitnesses at the place of
incident is doubtful as none of them physically intervened in order to save the
victim or apprehended accused at the spot; that the evidence of prosecution
witnesses is full of contradictions and discrepancies, which are fatal to the
prosecution case; that the ocular testimony is in conflict with medical
evidence; that the eyewitnesses have
suppressed the real facts from the Court as deceased has committed suicide;
that the defence plea taken by the
appellant is more plausible and fitting in the circumstances of the case then
the story narrated by the P.Ws; that the
trial Court has not decided the case of the appellant by keeping in juxtaposition
the defence evidence but has relied upon
the prosecution story and convicted the appellant. He lastly contended that the
prosecution has miserably failed to prove the case against the appellant and thus, according to him, under the above-mentioned facts and circumstances, the
appellant is entitled to his acquittal.
Support of his contentions, he relied upon the case of Shahzad Tanvir v. The State 2012 S C M R 172, Faisal Mehmood v.The State 2016 S C M R
2138, Nazeer Ahmed v. The State 2018 S C M R 787,
Muhammad Asif v. The State 2017 S C M R 486 and
Liaquat Ali v.The State 2008 S C M R 95.
8. Mr. Sikander Ali Junejo, learned counsel
for the complainant argued that there was no malafide on the part of
complainant to implicate the appellant in this case falsely; that the appellant
is named in the FIR with specific role of firing upon the deceased; that the
ocular testimony furnished by the complainant and the eyewitnesses are corroborated
with medical evidence as well as recovery of crime weapon. He further argued
that the learned trial Court has rightly appreciated the evidence with
recording conviction and sentence of the appellant in accordance with law and
thus he lastly prayed for dismissal of the instant appeal.
9. Mr. Afzal HussainTalpur,
learned Assistant Prosecutor General submits that it was a case of daylight occurrence that both the witnesses had
no previous grudge to involve the appellant in a false case and supported the
impugned judgment.
10. Having heard the learned counsel for the parties
and perused the record, I find that prima
facie, this is a case of two versions. Both the prosecution and the accused
admitted occurrence, as well as place thereof
but, have claimed different manner
thereof. At the outset, it may
safely be said that even in such like a situation
where the place of occurrence is a house of the accused, the liability of the
prosecution to prove the charge beyond a shadow
of a doubt by bringing on record the direct, natural and confidence inspiring evidence never stands discharged. Reference may
well be made to the case of Abdul
Majeed v. State 2011 SCMR 941 wherein the principle to deal with such
like the situation
was not only dealt but the criterion for liabilities of each was chalked out as:-
7. The basic principle of criminal law is
that it is the burden of the prosecution to prove its case against the accused
beyond reasonable doubt. This
burden remains throughout and does not shift to the accused, who is only
burdened to prove a defence plea, if he takes one. The strangulation to
death of the appellant’s wife in his house may be a circumstance to be taken
into account along with the other prosecution evidence. However, this by itself would not be sufficient
to establish the appellant’s guilt in the absence of any other evidence of the
prosecution connecting him to the crime. The prosecution has also not
been able to establish that the appellant was present in the house at the time
his wife was murdered. This, perhaps, distinguishes this case from that of
Afzal Hussain Shah v State (ibid) where the accuse4d
admittedly was present in the house when his wife was killed.
11. Thus,
legally it can well be said that in
such like the situation the status of the
witnesses of prosecution shall never be less than chance witnesses which
stood defined by honourable Apex Court in
case of Mst. Rukhsana Begum & Ors
v. Sajjad & ors 2017 SCMR 596
as:-
“chance
witness is one who, in the normal course is not supposed to be present on the
crime spot unless he offers a cogent,
convincing and believable explanation, justifying his presence there.
In the same case,
while following the golden principle of Criminal Administration of Justice, it was
further observed as:-
“…Single doubt
reasonably showing that a witness’s presence on the crime spot was doubtful
during the occurrence, it would be sufficient to discard his testimony as a
whole.
Thus,
it can safely be concluded that in instant case the prosecution witnesses were first required to have plausibly
established their presence at the place
of occurrence at a specific time and then
to make their claimed narration believable by all attending circumstantial evidences. Keeping in view the above principles, I would examine the prosecution case first because legally it is the
prosecution which remains under a constant duty to prove the case beyond any
reasonable doubt regardless of strength or weakness of defence. Since, the
prosecution witnesses claimed their presence
under a specific motive (reason)
therefore, same was also required to be established plausibly. However, a perusal of record shows that motive, so set up by the complainant in
his FIR (Exh.11/A), is that accused maltreated to the deceased Mst.Samina due
to delay in providing meal resulted in enraging the accused to such extent that
to kill his wife in presence of minor children. From the perusal of the
evidence, it appears that about 09 years back Mst. Samina married with the
appellant having children and previously she had not made any complaint against
her husband/appellant and before the day of the incident
the complainant, his son and wife came to
the house of the appellant for visiting
the house of her daughter and they (complainant party) was allowed to stay
without any resistance. Not only this but
before the alleged delay in providing meal the complainant party claimed not a single rift (exchange of hot words)
which prima facie negates earlier
claimed the existence of maltreatment or
harsh relations rather shows good terms between the parties, hence the real cause of occurrence remained shrouded in
mystery. In this context, reliance is placed on the case of Mst. Nazia Anwer
vs. The State (2018 SCMR 911), wherein the Hon’ble Supreme Court of
Pakistan has held that:-
“4…..I
have, thus entertained no manner of doubt that the real cause of occurrence was
something different which had been completely suppressed by both the parties to
the case and that real cause of occurrence had remain shrouded in mystery.”
12. It was claim of the complainant that on
06.06.2004 all the above witnesses were present in the house of appellant Abdul
Aziz at about 3:00 p.m, the appellant came and demanded meal from his wife Mst.
Samina but due to delay the appellant started beating her upon which
complainant and his wife tried to rescue her, but the appellant immediately took out one double barrel gun from his house
and directly fired at Mst. Samina which hit her on her lower part of the abdomen, she raised cries and fell down on the
ground and blood oozed and she died on the spot. Prima facie, there was a claimed resistance by the complainant
party (mother, father and brother) before
the death of the deceased in an alleged manner
but surprisingly there came no positive evidence
that these eye-witnesses physically intervened in order to save the life of the
deceased or apprehend the accused at the spot because neither clothes of any
prosecution witness got sustained with blood nor they received any scratch on
their bodies. It is also human psychology whenever he/she feels life in danger
that person will try to save the life and will even intentionally or unintentionally try to run away from the
place of the incident but in the entire
evidence no one has deposed so. There is another unexplained fact that when the I.O visited the place of the incident he found a the dead
body on the Cot although none of them had disclosed that whether she received
injuries in standing condition or while sitting on the Cot or as to who had
placed the dead body on the cot. If so, why such shifting not resulted in staining
the clothes of shifters with blood?. Such
circumstances always reflect upon the claimed
presence of the witnesses. Reliance in this regard may safely be made on the
case of Shahzad Tanveer v. State 2012
SCMR 172 wherein the Hon’ble Supreme Court of Pakistan has held that:-
“13. It
is strange that none of the accused carried any weapon except a small kitchen
knife, the total length and width of
which was 6-1 x ½ including its handle while going to commit a capital offence. It is also more
strange that none of the P.Ws dared to physically intervene in order to
save the victim or apprehend the accused at the spot. Neither the clothes of
any P.W got stained with blood nor had they received any scratch on their
persons. In this view of the mater the presence of the P.Ws at the time of
occurrence appears to be doubtful.
13. It is astonishing to note that the
second witness Mst. Amina wife of the complainant, who allegedly witnessed the incident was not examined by the
prosecution for no obvious reason, therefore, the presumption will be drawn
under illustration (g) of Article 129 of Qanoon-e-Shahadat Order 1984 that if
she had been produced and examined in the case, then the same would have been unfavorable to the prosecution case .If the
prosecution story is believed in toto yet
the same must find strength from other attending circumstances. It was further claimed by the prosecution that
after the occurrence, the complainant,
leaving both eye-witnesses at the place of incident, went to police station
Yaro Lund and lodged the FIR against the present appellant. After registration
of FIR, the complainant along with police
officials visited the place of incident and secured the blood-stained earth
from the place of incident and one empty cartridge of 12 bore and sealed the same on the spot. The dead
body of deceased Mst. Samina along with police letter was shifted to civil
Hospital Mirpur Mathelo for her postmortem and report, but it was Sunday,
therefore, a dead body was shifted to
civil hospital Sukkur where the postmortem
was conducted and subsequently the dead body was delivered to the complainant
for the funeral ceremony. Prima facie, there is an an inordinate delay in conducting the post-mortem examination. The day
of the incident, being Sunday could never be a plausible
ground for delaying the conduct of post-mortem. Further, Shoukat Ali, son of
the complainant, being one of the claimed
eye-witnesses, admitted that his
statement under Section 161 Cr.P.C was recorded on 12.06.2004, with a delay of six days but no plausible explanation
has been furnished by the PW Shoukat Ali for such a long delay. The abnormal
delay in the conducting post-mortem
report; delayed recording of statement under section 161 Cr.PC; shifting of a dead body on a cot without explanation
thereof are prima facie circumstances
which create doubts not only about the presence
of witnesses but leaves room for the possibility
of deliberation in setting up the story.
Reference may be made to the case of Muhammad Rafique v. State 2014
SCMR 1698 wherein the Hon’ble Supreme Court of Pakistan has held that:-
‘3. …Both the said eyewitnesses had claimed that although they lived about one
kilometer away from the scene of the crime yet they were present near the spot
because they were working as labourers at
a project regarding construction of the banks of Kanda Minor at the relevant
time which project was being undertaken quite close to the place of occurrence.
Before the learned trial Court the said eyewitnesses
had utterly failed to establish the stated reason for their presence near the
place of occurrence at the relevant time as much as they had failed to give any
detail of the project in issue and they did not even know the name of the
contractor who had hired them as labourers
for the purpose. We have noticed that although in the rough site plan of the
place of occurrence prepared by the investigation Officer an under construction
project and the Kanda Minor had been shown near the place of occurrence yet in
the formal site plan of the place of occurrence prepared by a Patywari
no such Kanda Minor or the under construction project were shown anywhere
close to the place of occurrence. It is an admitted position that no blood stained earth had been collected from the
stated place of occurrence and also that the FIR had been lodged with a
noticeable delay and post-mortem examination of the dead body had also been
conducted with significant delay in the
following afternoon. All these
factors had pointed towards a real possibility that the murder in issue had
remained unwitnessed and time had been consumed by the local police in
procuring and planting eyewitnesses and
in cooking up a story for the prosecution.
14. It may well be added that legally even one or two days unexplained delay in recording the
statement of eye-witnesses would be fatal and testimony of such witnesses
cannot be safely relied upon. Reliance may well be made to the case of Muhammad Asif v. State 2017 SCMR
486 wherein the Hon’ble Supreme Court of Pakistan has held that:-
“15. In a case of close relationship between the
complainant party / deceased and the accused, motive for murder crime assumes
considerable importance because no nearer and dearer would like to kill his
close relative without strong impulse by taking him into a boiling point
wherefrom, the retraction is impossible but in the case in hand the motive set
up was not only week and feeble but also not established because the girl
(daughter) of the complainant in whose presence the quarrel took place between the
deceased and the appellant, was not produced at the trial. Again there is
another doubtful aspect of the case because Nazar Hussain (PW 9), the father of
the deceased who according to the FIR was stated to be guarding the dead body,
on arrival of the local police to the post, however, in the very examination in
chief at page/20 of the paper book he has squarely stated that he joined the
investigation after one month and one day after the occurrence. There is a long line of authorities / precedents of this court and the
High Courts that even one or two days unexplained delay in recording the
statement of eye-witnesses would be fatal and testimony of such witnesses
cannot be safely relied upon.
15.
Furthermore complainant Dur Muhammad admitted in his cross-examination
that they left their village and boarded on the bus and finally they alighted
from the bus at the village of Sardar Ali Gohar Mahar wherefrom they proceeded by foot to the house of
appellant Abdul Aziz and arrived at the house of appellant Abdul Aziz at about
5:00 or 5:30 p.m. He also admits that at the time of incident brother of
appellant Arz Muhammad, mother Zulekhan ,sister
Kamalan, and elder son were present. The accused fired at the
deceased from the distance of 10/12 paces. He further admits that “Accused Abdul Aziz made a fire of gun at the distance of 10/12 paces away
from Mst. Samina” (deceased).
Shoukat Ali, son of the complainant being an eyewitness,
who in cross-examination admits that from Jacobabad to Sukkur and then to Mirpur
Mathelo they traveled in a bus and from there they took Rickshaw and proceeded
to the house of Abdul Aziz(appellant) and reached there at about 7:00 pm.The prosecution in order to prove the
version of the complainant party also
examined Senior Medical Officer Dr. Najma Mangi, who conducted a postmortem on the dead body of the deceased
Mst. Samina and found the following injuries:-
(i)
One Lacerated punctured wound of entry of firearm on the epigastric region measuring 2 cm in diameter,
circular in shape with inverted margins. Blackening and charring present.
(ii)
Lacerated wound of exit on the back of lower part of abdomen (sacral region) measuring 1 cm to each
other with averted margins.
16. Now the question is this, whether any fire is made from the distance of
10/12 paces blackening and charring can occur? As per Modi’s Medical
Jurisprudence and Toxicology (21st Edition) at page 354, if any fire
is made from the distance of 01 to 02 feet, then the blackening occurs. In this
context, the reliance is placed upon the case
of Muhammad Zaman v. The State (2014 SCMR 749), wherein the Hon’ble Supreme
Court of Pakistan has held that:-
“Firearm
entry wound “Blackening” – Scope- Blackening was found, if a firearm like a shotgun was discharged from a distance of not
more than 3 feet.
In
medical terminology, if a firearm is discharged very close to the body or in
actual contact subcutaneous tissues over an area of two or three inches around
the wound of the entrance are lacerated
and the surrounding skin is usually scorched and blackened by smoke and
tattooed with unburnt grains of gunpowder
or smokeless propellant powder. The adjacent hairs are singed and the clothes
covering the part of the body are burnt by the flame. At a distance of one to
three feet, small shots make a single aperture with irregular and lacerated
edges corresponding in size to the bore of the muzzle of the gun, as the shot
enter as one mass, but are scattered after entering the wound and cause great
damage to the internal tissues. The skin surrounding the wounds is blackened,
scorched and tattooed, with unburnt grains of power. On the other hand, at a
distance of six feet, the Central aperture is surrounded by separate opening in
an area of about two inches in diameter made by a few pellets of the shot,
which spread out before reaching the mask. The skin surrounding the aperture
may not be blackened or scorched, but tattooed to some extent. At the distance
of 12 feet, the charge of the shot spread widely and enters the body as
individual pellets producing a separate
opening in an area of five to eight inches in diameter depending on the choke,
but without causing blackening, scorching or tattooing of the surrounding skin.
This is also described in the characteristic of shotgun injuries at varying
ranges Q.4.22 of Section VI at Page 4.40 Fig 4.18 in PARIKHA’S TEXT of Medical
Jurisprudence, Forensic Medicine and Toxicology (8th Edition).
In
view of above-cited case-law and medical
jurisprudence books, it is impossible that if any fire is made at the distance
of 10/12 feet blackening and charring will occur even pellets will spread
widely and enters into the body as individuals producing separate opening but
in this case would of entry is 2 cm in diameter and wound of exit 1 cm to each
other, hence the presence of the complainant at the place of incident is
doubtful.
17. Now reverting to the case in hand, from
the perusal of postmortem report Ex.17/A, and the
evidence given by the prosecution witnesses which contradict to each other, whereas,
the medical evidence is not corroborating the ocular version. In this context, the reliance is placed on the case of Nazir
Ahmed vs The State (2018 SCMR 787)
wherein the Hon’ble Supreme Court of Pakistan has held that:-
4..…….instead of
providing support to the ocular account the medical evidence produced by the
prosecution had gone a long way in creating dents in the case of the
prosecution……..
Further, it reveals from the postmortem report
that the dead body of the deceased Samina was identified by Dur Muhammad (complainant) and Mst. Amina W/o Dur Muhammad, but from the perusal of the
evidence of complainant Dur Muhammad (PW-2) deposed that “ I
after leaving my son Shoukat Ali and wife over the dead body for taking care
went to P.S Yaro Lund where I lodged FIR against the accused”. He further
deposed that “we then took the dead body of deceased Mst. Samina along with
police to civil hospital Mirpur Mathelo for postmortem”. On the other hand eyewitness Shoukat Ali, PW-3 contradicted the
version of the complainant and claimed that he along with complainant and
police went for a postmortem of deceased
Mst. Samina. The presence of the eye-witness Shoukat Ali is creating more doubt
when he in his evidence has deposed that when the appellant demanded lunch/meal from the deceased Mst. Samina but due
to delay in providing lunch, he started beating her, his father and mother
tried to rescue her but deceased immediately took out a gun from the house and
directly fire upon her. The incident is
said to have been taken place at the village Moula Dad Almani surrounded by
houses, agricultural lands of Almani community and fish pond, yet no any
dweller from the said houses, fish pond or from the agricultural lands was
cited as witness to prove the version of the complainant party and the
witnesses cited in this case is the real son of the complainant as well as
brother of deceased. Thus, all these contradictions as pointed out above in the
evidence of prosecution witnesses discard the veracity of their statements, which
are sufficient to render the entire case of the prosecution
to be highly doubtful. In this context, the reliance is placed upon the case of
Zaffar v. The State
(2018 SCMR 326), wherein the Hon’ble
Supreme Court of Pakistan has held that:-
“11.
Having discussed all the aforesaid aspects of the case, it has been observed by
us that, medical evidence, motive, recovery and for that matter absconding of
appellant are merely supportive / corroborative
piece of evidence and presence of eyewitness
at the place of occurrence at the relevant time has been found by us to be
doubtful, no reliance can be placed on the supportive/corroborative
piece of evidence to convict the appellant on capital charge.”
18. Now its turn to discuss defence version adduced by the appellant
through statement recorded under Section 342 Cr.P.C that the appellant was
present outside the house after hearing the fire
shot, he came to his house, where he finds
his wife dead and committed suicide and went to police station for registration
of FIR, but subsequently SHO registered FIR against him and in the end he
claimed that he is innocent. In his defence,
he examined defence witness Mst. Zulekhan
(DW-1) and Mst. Kamalan (DW-2). In her evidence Mst. Zulekhan deposed that “we
were sitting outside the room of our house, along with complainant where
suddenly we heard gunshot fire inside the room of our house and on such gunshot
report we went inside the room and saw Mst. Samina lying dead having sustained
gunshot injury, the Gun was lying beside her” but DW-2 Mst. Kamalan has
given another version by saying that “after hearing the fire shot, we went
inside the room where we saw Mst. Samina lying dead and the double barrel gun
entangled with her right foot thumb”. The evidence adduced by the defence witness is not supporting to each other
as Mst. Zulekhan deposed that the gun was lying beside her, whereas, Mst.
Kamalan says that the gun was entangled with her right foot thumb, such version
is also not supported by the appellant, even for a moment of it is believed
that deceased Mst. Samina has committed suicide by pressing the trigger with
her right foot thumb then naturally the gun would have been lied on the legs or
beside her, but all above defence witness
uttered not a single word that the gun was stained with blood marks.
Furthermore, nowhere it is mentioned in Exh: 4 mashirnama of recovery of gun
that they did not found marks of blood on the gun, furthermore the deceased
Mst. Samina received wound of entry of firearm on the epigastric region measuring 2 cm in diameter and wound of exit on
the back of lower part of the abdomen
(sacral region) measuring 1 cm to each other. The exit wound shows that the
fire was made from upward to downward which also belied the version of the defence witnesses that Mst. Samina has
committed suicide, hence the defence plea
taken by the appellant is also not supporting to his own version. Appellant/accused husband alleged to have
killed his wife for not providing
meal/lunch, now the burden can be shifted upon the appellant to explain the
circumstances in which his wife had died in an unnatural death in his house. In
such a situation, I am taking the
guideline from the case of Nazir Ahmed vs. The State (2018 SCMR 787), wherein
the Hon’ble Supreme Court of Pakistan has held that:-
“……….We
have attended to this aspect of the case with care and
have found that when every other piece of evidence relied upon by the
prosecution has been found by us to be utterly unreliable then the appellant
could not be convicted for the alleged murder simply on the basis of a
supposition. The principle enunciated in the above
mentioned cases of Saeed Ahmed v. The State (2015 SCMR
710) and Arshad Mehmood v. The State (2005 SCMR 1524) was explained
further in the cases of Nasrullah alias Nasro v. The State
(2017 SCMR 724) and Asad Khan v. The State (PLD 2017 SC 681) wherein it
had been clarified that the above mentioned
shifting of some part of the onus to the accused may not be relevant in a case
where the entire case of the prosecution itself is not reliable and where the
prosecution fails to produce any believable evidence. It is trite that in all
such cases the initial onus of proof always lies upon the prosecution and if
the prosecution fails to adduce reliable evidence in support of its own case
then the accused person cannot be convicted merely on the basis of lack of
discharge of some part of the onus on him.”
19. The rule of benefit of the doubt is essentially a rule of prudence, which
cannot be ignored while dispensing justice in accordance with law. The conviction must be based on unimpeachable
evidence and certainty of guilt and doubt arising in the prosecution case must
be resolved in favor of the accused. The
said rule is based on the maxim “It is better that ten guilty persons be
acquitted rather than one innocent be convicted” which occupied a pivotal
place in the Islamic Law and is enforced strictly in view of the saying of the
Holy Prophet (PBUH) that the “mistake of Qazi (Judge) in releasing a
criminal is better than his mistake in punishing an innocent”.
20. The overall discussion involved a
conclusion that the prosecution has failed to prove the guilt against the
present appellant beyond any reasonable doubt and it is the well-settled principle of law that for creating
a shadow of a doubt, it is not necessary that there should be many circumstances.
If a single circumstance creates reasonable doubt in the prudent mind, then its
benefit is to be extended in favour of
the accused not as a matter of grace or concession, but as the matter of right.
The reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR
772), wherein the Honourable Supreme Court of Pakistan has held that:-
“4……Needless
to mention that while giving the benefit of doubt to an accused it is not
necessary that there should be many circumstances creating doubt. If there is a
circumstance which creates reasonable doubt in a prudent mind about the guilt
of accused, then accused would be entitled to the benefit of such doubt, not as
a matter of grace and concession but as a matter of right. It is based on the
maxim, “it is better that ten guilty persons be acquitted rather than one
innocent person be convicted”. Reliance in this behalf can be made upon the
cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam
Qadir and 2 others v. The State (2008 SCMR 1221),
Muhammad Akram v. The State (2009 SCMR 230) and
Muhammad Zaman v. The State (2013 SCMR 749).
21. In this case, the learned trial Court has
not evaluated the evidence in its true perspective and thus arrived at an
erroneous conclusion by holding the appellant guilty of the offense. Resultantly, the instant appeal is
allowed. The conviction and sentence awarded to the appellant are set aside and he is acquitted of the charge
by extending him the benefit of the doubt. The appellant shall be released forthwith if he is no more required in any
other custody case.
Judge
ARBROHI