ORDER SHEET

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr. Jail Appeal No.S-31 of 2011.

DATE ORDER WITH SIGNATURE OF JUDGE

For Regular hearing.

Date of hearing: 06.05.2011

Appellant : Dhani Bux s/o Bagh Lakhiar through

Respondent : The State

Mr. Ayatullah Khuwaja Advocate for the Appellant

Syed Meeral Shah Deputy Prosecutor General Sindh

Muhammad Ali Mazhar J: This Jail Appeal arises from the judgment dated 21.12.2010, passed by learned Sessions Judge, Dadu in Sessions Case No.759/2009, (Crime No.25/2009 registered at P.S Bhand Mari), whereby, the appellant has been convicted and sentenced under Section 302 (b) PPC to the imprisonment for life and to pay compensation of Rs.200,000/-.

2. Succinctly, the facts forming the background of this case are that on 03.10.2009, complainant Allahdino Lakhiar lodged a report that he has six daughters and four sons from his wife Mst. Islam Khatoon aged about 45/46 years. Complainant further stated that his uncle Dhani Bux who is aged person and not in a position to hear properly and his three brothers are residing in separate houses surrounded by one compound wall. According to complainant, his uncle Dhani Bux used to beat the complainant’s wife Mst. Islam Khatoon on petty matters on which he had restrained him, which annoyed Dhani Bux and he told the complainant that he will murder his wife at any time. On 03.10.2009, complainant and his son Zulfiqar were sitting in their house and his wife was cooking meal, when at about 8.00 a.m. on the cries of children, he saw his uncle accused Dhani Bux having hatchet in his hand was causing sharp side hatchet blows to his wife Mst. Islam Khatoon on her head and she was lying on the ground, meanwhile, the complainant and his son Zulfiqar rushed to him and snatched hatchet from accused Dhani Bux. His brother Noor Hussain had also come and accused went away towards his house. They saw that Mst. Islam Khatoon had received hatchet injuries on her head and was severely bleeding. They took the injured to Police Station, obtained letter for treatment and brought her to Taluka Hospital Mehar where she succumbed to injuries and died.

3. The appellant was arrested and after completion of investigation, case was challaned. Formal charge was framed by the trial court under Section 302 PPC to which, the appellant pleaded not guilty and claimed the trial.

4. In order to substantiate the case, prosecution had examined P.W.1, complainant Allah Dino, P.W. 2, Zulfiqar, P.W.3, Dr. Najma, P.W.4, Noor Hussain, P.W.5, Sharafuddin Lakhiar (Mashir), P.W.6, ASI Ghulam Akber, P.W.7, PC Gulzar Ali, P.W.8, ASI Ghulam Mustafa (I.O.), P.W.9, Arbab Ali and P.W.10, Mr. Fida Hussain Abbasi Civil Judge and J.M. Mehar, who had recorded 164 Cr.P.C statements of P.Ws, P.W.11 Tapedar Buxial.

5. The statement of the Appellant was recorded under Section 342 Cr.P.C in which he denied the prosecution allegations and claimed his innocence, however, he did not examine himself on oath nor led any defence evidence.

6. The trial court passed the impugned Judgment and convicted the appellant under section 265-H (ii) Cr.P.C. for life imprisonment and to pay compensation in the sum of Rs. 2,00,000/- and in case of non payment of compensation, the accused shall suffer R.I for six months more. In order to sift grain from the chaff, it is necessary to examine the evidence led in the trial court to find out the picture of complete chain, one corner of which should touch the neck of deceased and the other corner to neck of accused.

7. The complainant Allah Dino appeared as P.W-1 (Ex.6) who in his evidence deposed that deceased Islam Khatoon was his wife. On 3.10.2009, the incident took place. Accused Dhani Bux used to beat his wife on petty matters as such the complainant restrained him. On the day of incident his wife was preparing tea and he along with his son and other children was present in the room when accused Dhani Bux came. The complainant heard the cries and saw that accused was causing hatchet injuries to his wife. The complainant further stated that he along with his son snatched hatchet from accused Dhani Bux and he went out from the house. His wife was having hatchet injuries at her head and was bleeding. On the cries, complainant’s brother Noor Hussain also reached there. Complainant had produced FIR as (Ex.6-A). In the cross examination, he stated that the house of accused is at the distance of 500 paces from his house. He denied that he was not at home on the day of incident. The deceased was at the distance of about 10 to 12 paces from his room. He further denied that the eye sight of accused is weak but he is deaf. The complainant further stated that his son Zulfiqar, Noor Hussain accompanied him to police station for registration of FIR. He further denied that the police has written the contents of FIR on their own accord but he voluntarily said whatever he had disclosed the same was written by the police. He deposed in the cross examination that about five minutes the accused caused injuries to the deceased and after receiving the injuries she went unconscious. He denied that he had registered a false case against the accused as the accused had got share in the land and the complainant wanted to usurp the share of the accused hence he has involved the accused falsely in order to usurp his land.

8. The P.W-2 was Zulfiqar, the son of complainant (Ex.7), who deposed that the deceased was his real mother and the accused is uncle of his father. He confirmed the date of incident and further stated that he, his father Allah Dino deceased Mst. Islam Khatoon and other house inmates were available in the house. He further stated that they are four brothers and six sisters and accused was residing adjacent to their house who usually come to their house and they use to serve him with meal. The witness further stated that her deceased mother was usually saying that accused Dhani Bux is issuing threats that he will murder her and accused usually beat his mother on which his father forbidden the accused. He further stated that at the time of incident her mother was preparing meal and they heard the cries in the house on which they saw that accused was causing hatchet injuries to his mother on his backside of head. Thereafter they tried to intervene on which accused ran away. In the meanwhile his uncle Noor Hassan has also reached there. In the cross examination he deposed that he and his father Allah Dino were sitting in the landhi and his mother was present at the distance of about 15 paces from them. After receiving the injuries his mother was shifted to hospital. He remained in his house and his father took his mother to hospital for treatment. He denied the suggestion that his father has committed the murder of his mother and got registered a false case against the present accused in order to grab the share of the land of the accused. He further denied the suggestion that he did not personally see the incident but at the time of incident he was available in the house and he further stated that crime weapon viz. hatchet is not available in the court.

9. The P.W-3 was Dr. Najma (Ex.8), who deposed that on 30.10.2009, the dead body of deceased was brought by H.C Arbab Ali through a police letter for postmortem and report. On external examination of the dead body, Dr. Najma found the following injuries.

On external examination of the dead body, the doctor found the following injuries.

1. Incised wound measuring 12 c.m x 2 c.m X bone deep clinical fracture right parietal front region.

2. Incised wound measuring 10 c.m x 3 c.m X bone deep on left mastoid region.

3. Incised wound 12 c.m x 3 c.m X bone deep on occipital.

4. Incised wound measuring 15 c.m x 3 c.m X cavity deep with brain matters comes out.

5. Incised wound measuring 22 c.m x 3 c.m X cavity deep, brain matter comes out.

6. Lacerated injury measuring 1 c.m x 0.5 c.m X muscle deep on right side of forehead (blunt object) non lethal.

On internal examination, the doctor found the following damages/injuries.

Head and Neck: Fracture of skull bone, ménages cut.

Thorax and abdomen: Normal.

9/1. After examination, the doctor opined that from the internal as well as external examination of the body the injuries were found ante-mortem in nature, death occurred due to hemorrhage and shock and the injuries were sufficient to cause death in ordinary course of life. The injuries were caused by sharp cutting weapon. The examination in chief was reserved for want of original post mortem report and police letter, thereafter on 4.3.2010, the doctor in further examination in chief produced the attested copy of police letter as (Ex. 8-A) and postmortem report as (Ex.8-B). In the cross examination, the witness admitted that injuries No.1 to 5 were caused by sharp cutting weapon and injury No.6 with hard and blunt substance. She further denied the suggestion that it is not mentioned in the post mortem report that injury No. 1 to 5 were caused by sharp cutting weapon. The doctor further denied the suggestion that she had issued post mortem report on the basis of memo of injuries prepared by the police and she has issued a false post mortem report.

10. The P.W-4 Noor Hassan (Ex.9) deposed that the complainant is his brother and at the time of incident he was at the land for harvesting and he did not know anything about the incident and the complainant has made him witness in this case. On this statement, the learned DPP for the State declared the witness hostile and requested for cross examination and his request was allowed by the Court. In the cross examination conducted by DPP the witness deposed that accused Dhani Bux was his uncle and he was residing with his brother Allah Dino complainant. He further stated that the accused used to beat the deceased on petty matters and used to say that one day he will commit the murder of Mst. Islam Khatoon. He denied the suggestion that he heard cries and witnessed the incident but he had come in the house after the incident. He further denied the suggestion that he has stated in his statement recorded under section 161 Cr.P.C. that accused Dhani Bux caused hatchet injuries to the deceased in his presence. He further denied the suggestion that he is deposing falsely in order to save his uncle Dhani Bux. In the cross examination conducted by the counsel for the accused the witness admitted the suggestion that he had stated before the police that he does not know anything about the incident but the police has written his statement at its own accord.

11. The P.W-5 was Sharfuddin (Ex.10), who deposed that on 3.10.2009, police inspected dead body of deceased in his presence and co-mashir was Rafiq Ahmed. On 4.10.2009 police arrested Dhani Bux from village Bhand Mari in his presence and co-mashir was Rafiq Ahmed. The memo was prepared by I.O which he produced as (Ex.10-D). On 9.10.2009 police recovered hatchet used in the commission of offence form the bushes in his presence and the I.O prepared memo which he produced as (Ex.10-E). He further deposed that the accused and the case property viz. hatchet present in court are the same. In the cross examination, he stated that the complainant is his caste fellow and co-villager. He admitted the suggestion that at the time of preparing the memo of injuries and inquest report, so many persons were present there. He denied the suggestion that memo of injuries and inquest report were not prepared in his presence. He further stated that co-mashir Rafiq Ahmed is his caste fellow. He further denied that the accused was not arrested in his presence and further stated that hatchet was recovered at about 6:00 to 6.30 p.m from the bushes at the distance of about 2/3 feet from the house of accused on 9.10.2009.

12. The P.W-6, Ghulam Akbar, (Ex.11), deposed that on 3.10.2009, he was posted as ASI at P.S Bhand Mari. The complainant came at the police station and disclosed the offence regarding the murder of his wife as such he registered the FIR No. 25/2009. He was shown FIR (Ex.6-A) and he confirmed that it is same and bears his signature. He further stated that he handed over the FIR to investigation team for further investigation. In the cross examination he stated that complainant came at PS alone. He denied the suggestion that he in collusion with complainant has registered false FIR against the accused.

13. The P.W-7, Gulzar Ali (Ex12), deposed in his examination in chief that he was posted at P.S. Bhand Mari. H.C. Arbab handed over the clothes of deceased to ASI Ghulam Mustafa in his presence who prepared the memo to which he acted as mashir and co-mashir was Irshad Ali. He produced the memo as (Ex.12/A) and confirmed that the same is correct and bears his signature. He further confirmed that the clothes of deceased present in court are same. In the cross-examination, he deposed that no private person has been cited as mashir and prior to this incident, he has acted as mashir in three other cases of different police station. Finally he denied the suggestion that he is deposing falsely.

14. The P.W-8, Ghulam Mustafa (Ex.13) deposed that on 30.10.2009, he was posted as SIO P.S. Bhand Mari and received the FIR No. 25 of 2009 under section 302 PPC along with inquest report and memo of injures for further investigation. On 30.10.2009, he visited the place of incident and prepared the memo in presence of mashir. The blood stained earth was secured from the place of incident and sealed. He was shown memo Ex.10-C and he confirmed that it is same and bears his signature. He further stated that on the same day blood stained clothes of deceased were handed over to him and he prepared the memo in presence of mashir and he confirmed Ex.12-A which is same and bears his signature. He had also deposed that on 4.10.2009, he arrested the accused in presence of mashirs Sharfuddin and Rafiq Ahmed and prepared the memo Ex.10-D and confirmed that it is same and bears his signature. On 6.10.2009, he recorded the statement of P.Ws Noor Hussain and Zulfiqar under section 161 Cr.P.C. and sent the blood stained earth to chemical examiner and produced the report of chemical examiner as Ex.13-A. He further stated that on 9.10.2009, he recorded the statement of accused in which he confessed his guilt and became ready to produce the hatchet used in the commission of offence, therefore, he along with his subordinate staff and the accused left police station and reached at pointed place wherefrom accused voluntarily took out the hatchet from the bushes eastern side of the bank of wahur and produce the same. He prepared memo of recovery in presence of mashir Sharfuddin and Rafiq Ahmed and stated that the memo Ex.10-E is same and bears his signature. On 15.10.2009, the statements of P.W, Noor Hussain and Zulfiqar were recorded before the IIIrd Civil Judge and Judicial Magistrate Mehar under Section 164 Cr.P.C. in presence of the accused. The case property viz hatchet, sealed parcel of blood stained earth and clothes of deceased present in Court are same and the accused present in Court is also same. In the cross-examination I.O deposed that he visited the place of incident under roznamcha entry but he did not remember its number nor produced the same. He deposed that it is correct to suggest that mashirs were present with the complainant at the place of incident and they are his relatives. It is also correct to suggest that the mashirs of memo of injuries and place of incident are same. It is incorrect to suggest that hatchet was produced by the complainant and the same has been foisted upon the accused. It is correct to suggest that no private person has been cited as mashir of clothes of deceased. It is incorrect to suggest that hatchet present in Court is not blood stained nor the hairs are available on it. Voluntarily said that as per chemical report the hatchet was stained with human blood. After 2/3 days of the incident the hatchet was sent to the chemical examiner by hand. It is correct to suggest that report of chemical examiner does not show about the hairs on it. The statements of P.Ws under section 164 Cr.P.C. were recorded by the Magistrate in court in his presence, the same were written by the Magistrate in his hand writing. He admitted the suggestion that he had not recorded the statements of the persons from the locality regarding the incident.

15. The P.W-9, Arbab Ali H.C. (Ex.14) deposed that on 3.10.2009, he was posted at P.S Bhand Mari and was on night duty when at about 11.30 p.m complainant Allah Dino appeared at P.S. and disclosed that dead body of his wife is lying at Mehar hospital as such he along with ASI Ali Akbar reached at Taluka Hospital Mehar and ASI given letter for postmortem of the dead body. The lady doctor was not available at Mehar hospital therefore, the dead body was brought at civil hospital Dadu. After postmortem the dead body of deceased and clothes of the deceased were handed over to him. He handed over the dead body to the complainant and blood stained clothes to I.O. In the cross examination, he admitted that the post mortem was conducted by Women Medical officer Dr. Najma Shaikh and he further admitted that he has not disclosed in his examination in chief the name of doctor who conducted the post mortem.

16. The P.W-10, Mr. Fida Hussain, Ex.15, learned IInd Civil Judge and J.M Mehar, deposed that on 14.10.2009, SIO Bhand Mari had produced accused Dhani Bux along with witnesses Noor Hussain and Zulfiqar for recording their statement under section 164 Cr.P.C. He recorded the statements of both the witnesses under section 164 Cr.P.C. in which they implicated accused Dhani Bux for commission of offence. The opportunity of cross examination was given to the accused but the same was not availed. He further stated that he had appended certificate on the bottom of statement and produced the same as Ex.15-A and 15-B and also confirmed the same as correct and bears his signature. He further stated that the accused Dhani Bux who is present in court is same. In the cross examination, he admitted that it is a fact that P.W Zulfiqar has disclosed in his statement under section 164 Cr.P.C that the accused went away, they brought his mother at police station where she died. He further stated that it is also a fact that P.W Noor Hussain has stated in his statement that the deceased died at hospital.

17. The P.W-11, (Ex.16) was Buxial. He deposed that on 8.6.2010, he was posted as Tapedar Tapo Nari, Deh Bhand Mari, Taluka Mehar. The Mukhtiarkar (Revenue) Mehar directed him for preparation of sketch of place of incident and on 16.6.2010, he along with complainant visited the place of incident and prepared the sketch with the help of measuring tape. He produced the sketch as Ex.16-A. In cross examination he admitted that sketch does not show the place where the complainant and P.Ws were standing at the time of incident. He further admitted that the sketch does not bear the signature of complainant or any other person except him. He further admitted that the sketch does not show where the accused was standing at the time of incident.

18. On 26.6.2010, the prosecution closed its side by filing the statement (Ex.17) and on 6.8.2010, the statement of accused under section 342 Cr.P.C. was recorded in which he denied the allegations. To a question as to why P.Ws have deposed against him, he replied that they are related inter se. He denied to examine him on oath or to examine any witness in his defence.

19. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond shadow of reasonable doubt against the appellant therefore, he is entitled to be acquitted. The learned counsel further argued that there are material contradictions and discrepancies in the statements of eye witnesses. The motive has also not been proved. He further argued that the main prosecution witnesses are related inter se and interested witnesses therefore, their evidence is inadmissible.

20. The learned DPG fully supported the impugned judgment and he argued that the prosecution has satisfactorily proved the case without any shadow of doubt. The ocular evidence is also inconformity with the medical evidence and there is no glaring contradictions or discrepancies in the statement of witnesses which may suffice to acquit the accused. In support of his contention, the learned DPG has relied upon the following case law:-

1. 1975 SCMR 289 (Wazir Gul vs. State). In this case, the honourable supreme court has held that from the nature and the seat of the injury the intention to kill could be clearly spelt out. It is common knowledge that murders have been committed for no motive worth the name and at any rate on mere minor pretexts. No hard and fast rule could be laid down in regard to the determination of intention which can be spelt out from all the ambient circumstances taken together. A host of them including the highhandedness of the petitioner, the choice of the weapon of offence by him, the seat of injury and the damage done by it unmistakably establish the intention to kill or at least the knowledge that death could in all probability follow in consequence thereof.

2. PLD 2004 S.C 371 (Amal Sherin vs. State). In this case, the honourable supreme court relying upon its another judgment reported in 2000 SCMR 383 held that mere relationship of the witnesses with the deceased would not detract from their veracity who had absolutely no motive of their own to involve the accused. Conviction in a criminal case can be recorded even on the statement of the eye-witnesses alone without there being any corroboration provided their evidence inspires confidence.

21. I am fortified with the view that the statement of witnesses must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of reasonable prudent mind. If these elements are present then the statement of worst enemy of an accused may be accepted and relied upon without corroboration but if these elements are missing then statement of a pious man may be rejected without second thought. Reference can be made to 1995 SCMR 1627. While appreciating evidence, credence is always given to testimony of a witness whose presence on spot is established unless it is shown that witness has falsely deposed.

22. According to the judgment of honourable supreme court reported in PLD 2005 SC 484, material contradiction and discrepancies in the evidence in a criminal case may create doubt in the prosecution case and if the eye witnesses are inimical and interested, this doubt may lead to a reasonable possibility of the witnesses being not truthful or an inference can be drawn that they by suppressing the truth, made a dishonest statement but it is settled proposition of law that mere relationship or enmity is not sufficient to discard the evidence of a natural witness or hold him not truthful and trustworthy. This is not an inflexible rule that in all circumstances, such contradictions and discrepancies in the evidence must be treated to be injurious to the credibility of a witness and his evidence must be excluded from consideration or he must be held not truthful witness rather the ultimate test of veracity of a witness is the inherent merit of his own statement.

23. At this juncture, I would also like to mention that cardinal principle of criminal jurisprudence is that the burden of proving the case beyond doubt against the accused lies upon the prosecution. Similarly the presumption and probabilities, however, strong may be, could not take the shape of proof. The finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may be irresistible be drawn from the evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence of non-existence of a fact to prove the guilt of a person, the golden rule of benefit of doubt to an accused person which has been a dominant feature of the administration of criminal justice in this country which the consistent approval of the superior Courts will be reduced to a naught.

24. I am of the firm view that while awarding the conviction, the learned trial court has failed to consider some glaring contradictions and discrepancies in the evidence. No doubt that the incident was occurred inside the home where the presence of independent witnesses was not possible, however, two eye witnesses were cited by the prosecution, one is the complainant himself and another his son Zulfiqar. The complainant Allah Dino in his examination in chief stated that he along with his son and other children was present in the room when accused Dhani Bux came there and he heard the cries and saw the accused Dhani Bux was causing hatchet injuries to his wife and he further used the word “we” snatched hatchet from accused Dhani Bux and he went out from the house. In the FIR, he admitted that hatchet was snatched by him and his son. It was further stated by him in the examination in chief that on hearing the cries his brother Noor Hussain also reached there from his home and the accused went away. In the entire prosecution evidence it was nowhere stated that where the hatchet snatched by the complainant on the spot disappeared from the scene by which the offence was committed. It is also not stated whether the hatchet snatched on the spot was ever handed over to the police for chemical examination. This important aspect has also been overlooked and ignored by the trial court while passing the judgment.

25. It is also astonishing to note that I.O in his statement stated that on 9.10.2009, the accused voluntarily took out the hatchet from the bushes eastern side of the bank of wahur and produced the same. Now according to the complainant’s own evidence it has become a case of two weapons used for the commission of offence. When the incriminating hatchet was snatched by the complainant on the spot then how it could be recovered from the bushes on 9.10.2009, after six days of the date of incident. It is also an indispensable and crucial question which hatchet was sent for chemical examination by the police, the one snatched by the complainant from the appellant with the help of his son on the spot or the hatchet recovered from bushes after six days.

26. The I.O has also failed to investigate the factum of snatching the hatchet from the accused which fact was clearly mentioned in the FIR . The complainant in his cross examination stated that for about five minutes duration the accused was causing injuries to the deceased. It is highly strange to note that an old age person was continuously causing hatchet injuries for five minutes in presence of a son and husband of the deceased but regardless of snatching the hatchet they did not react and allowed him to depart from their house safely which seems to be extremely abnormal, anomalous and quite unnatural. It is a matter of record that in the FIR the complainant himself mentioned that the accused is an aged person and in presence of husband and 20 years old son, they did not react and allowed the accused freehand and without restraint to cause hatchet injuries for five minutes continuously without any resistance or natural reaction. In the statement of Zulfiqar son of deceased, he stated that on the date of incident he, his father, deceased Islam Khatoon and other house inmates were available in the house. The accused Dhani Bux usually used to beat his mother on which his father forbidden the accused. He heard the cries in the house on which they saw that the accused Dhani Bux was causing hatchet injuries to his mother on her backside of head, thereafter, they tried to intervene on which accused went away. In the meanwhile his uncle Noor Hussain also reached there. In the cross examination he admitted that he and his father Allah Dino were sitting in the landhi, (Katcha room/shade). He further stated in his cross examination that his father (complainant) went alone to the police station for registration of FIR while the complainant in his cross examination stated that his son Zulfiqar and Noor Hussain accompanied him to the police station for registration of FIR.

27. The third witness Noor Hussain, the brother of the complainant stated in his examination in chief that he was at the land for harvesting but he does not know anything about the incident and the complainant has made him witness in this case. The DPP declared this witness as hostile and requested for his cross examination in which he deposed that accused Dhani Bux is his uncle and was residing with his brother Allah Dino (complainant). He further stated that the accused Dhani Bux used to say that on one day he will commit murder of Mst. Islam Khatoon. He denied the suggestion of DPP that he heard cries and witnessed the incident but he stated that he had come in the house after the incident. He had further denied that to have stated in the statement recorded under section 161 Cr.P.C. that accused Dhani Bux caused hatchet injuries to the deceased in his presence. On the cross examination of counsel for the accused the witness again admitted that he does not know about anything but the police has written his statement on their own accord. The evidence of Noor Hussain made it clear that he reached at the spot after the incident and police has written his statement on their own accord. He further stated that accused was residing with his brother Allah Dino while Allah Dino stated in his statement that the house of accused was a distance of 500 paces from his house. The complainant stated in his evidence that on the cries his brother Noor Hussain also reached there while Noor Hussain in his cross examination to DPP stated that it is incorrect to suggest that I heard the cries and witnessed the incident but I had come in the house after the incident.

28. According to postmortem report produced by Dr. Najma in Court the injuries were caused by sharp cutting weapon and sufficient to cause death in ordinary course of life. In the cross examination she stated that the injuries No. 1 to 5 were caused by sharp cutting weapon and injury No.6 with hard and blunt substance. In the statement of the accused recorded under section 342 Cr.P.C. on 6.8.2010 his age was about 72 years which shows that on the date of incident he was about 71 years and in the impugned judgment also the trial court under mitigating circumstances and taking into consideration the age factor of the accused took a lenient view and sentenced him for life imprisonment. On 28.3.2011, he was brought in court and I found that he was so weak, feeble and infirm that he even could not walk by his own but with the help of two constable, he came at the rostrum on their shoulders but due to hearing-impaired, he was not able to talk or understand anything and nobody was appearing for the destitute appellant as his counsel, therefore, Mr. Ayatullah Khowaja advocate who was present in the court in some other case, voluntarily, offered to represent the appellant and sought time for preparation. Vide order dated 11.4.2011, this court directed the Chief Medical Officer of Central Prison Hyderabad to examine the appellant and submit his report, consequently the Chief Medical Officer submitted the medical certificate of appellant in which it was stated the appellant is old age person above 70 years and suffering from weakness, loss of hearing and vision. The admitted old age of the appellant creates further doubt that he can not cause five fatal injuries with sharp cutting weapon and one lacerated injury with hard and blunt substance and he continued this act for five minutes in presence of complainant and his twenty years old son who did not come to rescue the deceased and waited for five minutes allowing the appellant to first cause hatchet blows and then allowed him safely to went out the home without overpowering him.

29. In the similar circumstances, the honorable supreme court in the murder case, reported in 2009 SCMR 237, held that according to prosecution case at the relevant time P.W-9 Shahid Abbass and P.W-10 Zahid Abbass were present along with their father Ghulam Abbass deceased. However, they did not try to save their father. It does not sound to be natural that real sons would allow the assailants to kill their father in their presence as silent spectators, so their presence at the scene of occurrence at the relevant time is doubtful. In another case reported in 2008 SCMR 95, the honourable supreme court again in a murder case examined this aspect and held that the accused Liaquat Ali was not armed with a firearm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot, they could have easily overpowered him. This makes their presence at the spot doubtful.

30. It has been held time and again that the grain should be sifted from the chaff so as to arrive the truth of the occurrence, therefore, it would be necessary to appraise the evidence in entirety to sift grain from the chaff so that the essential portion of the testimony which has probability and reliability in the peculiar circumstances case could be believed or acted upon. All piece of evidence should be so linked that it should give picture of complete chain, one corner of which should touch neck of deceased and the other corner to neck of accused and failure of one link destroys entire chain. After evaluating the entire prosecution case, I have no hesitation to hold that the prosecution has failed to prove the case against the appellant beyond reasonable doubts and the contradiction appearing in the prosecution witnesses such as the complainant, his son, his brother and the I.O. though consistent on the point that the murder was committed but their evidence is contradictory with some major discrepancies. The appellant was not armed with a firearm which could have scared the witnesses away. It does not sound to be natural that husband and real son both would allow the assailant to kill a wife and mother in their presence as silent spectators, so their presence at the scene of occurrence at the relevant time is doubtful. The complainant deposed that about 30 persons were gathered at the place of incident but he does not know the names. No statement of any independent witness was recorded who had gathered at the place of incident. I am fortified by dictum laid down in 2009 SCMR 237 and 2008 SCMR 95 which are significant to the point.

31. It is a known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. The evidence of the prosecution witnesses is neither trustworthy nor confidence inspiring nor consistent to establish accusation against the appellant therefore the possibility of accused being falsely implicated cannot be ruled out. Where more than one possibilities appear in the case, then the possibility in favour of accused is always to be preferred for simple reason that benefit of doubt is never to be extended to the prosecution and is always given to the accused. Any room for benefit of doubt in the prosecution case will go to accused and not to prosecution. The rule of benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather than one innocent person be convicted. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously 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. Reference can be made to (PLD 1973 SC 418 and 2011 SCMR 664).

32. The upshot of this discussion is that the prosecution has failed to prove its case beyond reasonable doubt. Resultantly, this appeal is allowed, the impugned judgment dated 21.12.2010 is set aside and the appellant is acquitted of the charge. He shall be released forthwith unless he is detained in any other case.

Hyderabad

Dated.3.6.2011 Judge