IN THE HIGH COURT OF SINDH AT KARACHI

 

PRESENT:          MR. JUSTICE GHULAM SARWAR KORAI, &

                       MR. JUSTICE SALAHUDDIN PANHWAR

                 

 

Criminal Appeal No.489/2010

 

 

Appellant          :      Mst. Shehnaz,

                                Through Gulzar Husain Bukhari, advocate.

 

 

Respondent      :      The State,

                                through Ms. Akhtar Rehana, Addl. P.G.

 

………………..

 

Criminal Appeal No.499/2010

 

Appellant          :      Khadim Hussain,

                                Through Mr. Habib Ahmed, advocate.

 

 

Respondent      :      The State,

                                through Ms. Akhtar Rehana, Addl. P.G.

 

………………..

 

Criminal Revision Application No.179/2010

 

 

Applicant          :      Falak Sher,  

                                In person.

 

 

Respondents     :      Khadim Hussain and 2 others,

                                Ms. Akhtar Rehana, Addl. P.G. for State.

 

………………..

 

Date of hearing:             6th and 14th February, 5th March, 2014.

 

 

Date of judgment:          21.03.2014

 

 

 

 

J U D G M E N T

 

SALAHUDDIN PANHWAR, J: We intend to dispose of captioned appeals and revision for enhancement of sentence filed by the rival parties against the impugned judgment dated 14th October 2010, passed by learned Sessions Judge, Malir, Karachi in Sessions Case No.327 of 2006 [Re-The State vs. Khadim Hussain & another], whereby the appellant Khadim Hussain was convicted u/s 302(b) PPC and sentenced to imprisonment for life and fine of Rs.50,000/- and in case of default to suffer R.I for two(2) years more; while appellant Mst. Shahnaz was convicted u/s 109 PPC and sentenced to suffer imprisonment for ten (10) Years and fine of Rs.20,000/- (Twenty thousands) and in default whereof to suffer R.I for one year more. 

2.         Brief facts of prosecution case are that on 08.7.2006 at 1100 hours, Falak Sher lodged FIR at Police station Ibrahim Hyderi wherein stating that he is contractor, his nephew Naseer Abbass had to receive Rs.15000/ from Khadim Hussain and such litigation was going-on between them. On the last evening (from date of incident) his nephew Naseer Abbas informed him that he is going to Punjab in morning and while leaving he will collect amount from Khadim Hussain and if not, complainant should collect. On 08.7.2006 the complainant was present at his house when at 0900 hours a boy of Mohalla namely Kashif came to house and informed complainant that his nephew Naseer Abbas is murdered at the house of Khadim Hussain. Listening so, he immediately reached at Jinnah Hospital and found dead body of Naseer Abbas lying in the mortuary. He sustained injuries at his head, left eye and left leg and blood was oozing. His nephews Ramzan and Shoukat were also present near the dead body who informed complainant that today at 0530 hours Khadim Hussain alongwith his companions namely Ashraf and Riaz and his wife Shahnaz committed murder of Naseer Abbas by causing him danda injuries. After legal formalities conducted by police and autopsy on the dead body of deceased the body was taken away by his brother Ramzan and others to Punjab for burial purpose. Thereafter complainant appeared at police station and lodged FIR that Khadim Hussain, Mohammad Ashraf, Riaz and Mst. Shahnaz committed murder of Naseer Abbas by causing him danda injuries due to dispute over money.

 

3.         After usual investigation police submitted the challan in Court whereby accused Khadim Hussain and Mst. Shahnaz were sent up to face their trial while accused Mohammad Ashraf and Ghulam Hussain were shown in column-II of the challan / charge sheet.

 

4.         After compliance of Section 265-C Cr.PC, charge was framed against both accused / convicts at Ex.2 to which they pleaded not guilty and claimed trial vide their pleas, recorded at Ex.2/A and 2/B respectively.

 

5.         To substantiate the charge, the prosecution examined complainant Falak Sher as PW-1 at Ex.3 who produced mashirnama of inspection of dead body at Ex.3-A, inquest report at Ex.3/B, FIR at Ex.3/CV, memo of inspection of place of incident and recovery at Ex.3/D and mashirnama of arrest of accused and personal search at Ex.3/E; PW-2 Mohammad Ramzan at Ex.4 who produced receipt of handing over dead body of deceased at Ex.4/A;  PM-3 Mohammad Rafique at Ex.5; PW-4 Mr. Mohammad Afzal , Civil Judge & JM who produced letter at Ex.6/A and confessional statement of accused Khadim Hussain at Ex.6/B, PW-5 ASI Amir Bux at Ex.7 who produced mashirnama of arrest of accused at Ex.7/A; PW-6 ASI Mohammad Aslam at Ex.8; PW-7 Shoukat Hussain at Ex.9; PW-8 Investigation officer namely SIP Saeed Ghani at Ex.11; PW-9 Dr. Zafar Siyal at Ex.13 who produced post mortem report at Ex.13-A and certificate of cause of death at Ex.13/B and PW-10 Dr. Talat Afridi at Ex.15 who produced medico legal certificate of accused Mst. Shahnaz at Ex.15/A. Thereafter, prosecution side was closed by DPP vide statement at Ex.16.

 

6.         The statements under section 342 Cr.PC of the accused / convicts were recorded at Ex.17 and 18 respectively. Accused / convict Khadim Hussain, in his statement, denied allegation of murder of deceased Naseer Abbas and recording of confessional statement. He claimed that said confessional statement was result of pressure of the police. Accused /convict Mst. Shahnaz, in her 342 Cr.PC, also denied allegation leveled against her. The accused / convict Khadim Hussain examined himself on Oath U/s 340(2) Cr.PC but did not examine any witness in his defence where accused / convict Mst. Shahnaz did not come forward to examine herself on Oath nor led any evidence in her defence.

 

7.         Mr. Habib Ahmed, learned counsel for the appellants / convict Khadim Hussain, has, inter-alia, argued that case is unseen one and the witnesses are arranged, set-up one; the witnesses though are closely related to the deceased but have failed to establish their presence at the spot; witnesses have not supported each other on any point hence ocular account is not worth believing therefore no conviction could legally be maintained. It was also argued that mere alleged recovery of ‘danda’ is not sufficient to hold the conviction particularly when the recovery thereof was not worth believing. ; confession was recorded after delay of nine days, thus the same losses its evidentiary value, confessional statement reflects that second warning was not given to the accused thereby mandatory procedure has been violated by the Magistrate; prosecution has failed to prove the case beyond reasonable shadow of doubt, therefore, appellant is entitled for acquittal. In support of his contention he relied upon the case laws reported as NLR 1998 449, NLR 1993 94 and PLD 1996 SC 274, PLD 1987 Lahore 432, 1973 PCrLJ 387, 2010 YLR 1445, PLJ 1978 SC 293, PLD 1991 FSC 53, 2005 SCMR 515, NLR 1988 Cr. 284 and 1987 PLD FSC 43.

8.                     While Mr. Gulzar Hussain Bukhari learned counsel for appellant Mst. Shehnaz has pleaded that there was no iota of evidence against the appellant, thus conviction awarded to her is not sustainable under the law.

9.                     Conversely, learned APG while disagreeing with the above contentions, has argued that the trial Judge considered all aspects while awarding the sentence to the appellants; admittedly place of incident is the house of both accused wherefrom dead body of deceased was found, plea of sudden provocation is not attracted in this case as there was no sufficient evidence that deceased outraged the modesty of appellant’s wife; ocular evidence is confidence inspiring, hence can be relied without any corroboration; judgment of conviction is well reasoned and learned trial court judge has properly appreciated all the available material hence conclusion drawn by learned trial court judge is not open to interference. 

10.       Heard the counsel and perused the record.

11.       After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, it is pertinent that in the instant matter prosecution has brought on record four kinds of evidences i.e. ocular, medical, recovery and confessional statement to prove the charge against the appellants / accused.

 

12.       Since the value and status of evidences of medical and recovery in offences related to human body is always corroborative in its nature which by standing alone cannot hold the conviction. Therefore, it is always the ocular account and circumstances which plays a decisive role in a criminal charge so it would be conducive to refer the relevant portion of evidence brought on record by the prosecution to prove it’s’ case and examine as to whether sufficient evidence is available to hold the conviction.

 

13.         Let’s examine the root of prosecution case i.e first information report to know on what allegation the prosecution started its case. The perusal of the FIR shows that complainant Falak Sher has alleged that accused Khadim was to pay an amount of Rs.15,000/- to his nephew (Naseer); who had told him that he is going to Punjab, so in morning he will collect the amount else you (complainant) can collect. On 08.7.2006 he was available at his house when at 09.00 am local boy namely Kashif arrived and informed him that nephew of complainant Naseer Abbass has been murdered at house H.No.H-47 of Khadim Hussain. On which he immediately rushed to Jinnah hospital and found dead body of his nephew Naseer Abbass at mortuary. Complainant’s other nephews namely Ramzan and Shoukat were available near the dead body who disclosed that at 5:30 am Khadim Hussain alongwith his accomplices Ashraf, Riaz and Mst. Shahnaz committed murder of Naseer Abbas by inflicting danda blows.

 

From the above it is evident that while recording the FIR, the complainant Falak Sher has not claimed himself to be eye-witness nor claimed to have seen any proceeding at place of incident wherefrom dead body was recovered and sent to mortuary of Jinnah Hospital, where complainant for first time saw dead body of deceased.

14.       Thus, let’s see what the complainant deposed in the court. For which the relevant portion of examination-in-chief of complainant Falak Sher (PW-1) is reproduced hereunder:-

On 08.7.2006 I had gone to the house of the deceased Naseer Abbas to see off him as he was going to Punjab, but when I reached there at his house, it came to know that he had gone to the house of the accused Khadim Hussain then I proceeded towards the house of the accused Khadim Hussain and when I reached there I saw that accused Khadim Hussain and his wife Mst. Shahnaz , Riaz, Ghulam Hyder and Muhammad Ashraf were beating the deceased miserably with Dandas, while the accused Ashraf had hammer in his hand. The deceased Naseer Abbas was seriously injured and blood was oozing from his injuries and then he fell down on the ground. Then the deceased Naseer Abbas was taken away by the accused persons to another room of the said house. On seeing all the incident I came out and then informed to some plumber who was working there in the street who informed the police about the incident. When I reached at my house, my neighbourer Kashif informed me on my mobile phone that some police constable namely Soomro had called me at police Post, where I reached and saw the accused with handcuffs in the police custody who informed me that he had murdered my nephew deceased Naseer Abass. I informed the police about the incident accordingly and nominated all the accused persons whose names are given above. Then I went to the JMPMC where the investigation officer inspected the dead body of the deceased Naseer Abbas in my presence. Such memo was also prepared at J.P.M.C which I signed the same. I produce the said memo of inspection of dead body as Ex.3/A, which is same, correct and bears my signature, besides the signature of the co-mashir Ramzan Inquest report of the dead body was also prepared at spot, which I signed…. Thereafter, I came back to police station where I lodged the FIR which I …. . Investigation officer of the case inspected the place of incident in my presence and prepared such mashirnama at spot which I signed then and there. I produce…. Thereafter, the accused Khadim Hussain, Muhammad Ashraf and Mst. Shahnaz were arrested in my presence at police station ….’

 

 From perusal of the above examination-in-chief of the complainant, it appears that while deposing in the Court the complainant materially improved his statement in respect of:

(i)       going to house of deceased to see him off; and then to proceed to house of accused Khadim Hussain;

 

(ii)      claimed to have seen appellants / convicts and two others while seriously beating the deceased;

 

From above improvements the complainant attempted to come forward as an eye-witness of the incident. This position becomes further clear from admission of the complainant in his cross-examination that:

 

“I had recorded another FIR No.131/2006 at Police Station Ibrahim Hyderi against the same set of the accused. ……… It is correct to suggest that in the instant FIR I have pointed out to have intimated the incident to me by Kashis whereas in FIR No.131/2006 I had disclosed to have seen the incident myself. It is correct to suggest that the said FIR was cancelled in (C) Class”

 

15.       The claim of the complainant to be an eye-witness also stood contradicted by PW Mohammad Ramzan, real brother of deceased, who in his cross-examination stated that ‘I had not informed Falak Sher about murder of my brother Naseer Abbas. Voluntarily says Falak Sher on knowing the incident himself came at Jinnah Hospital’. However, attitude of the complainant whereby he remained changing his stances, itself brings serious doubts towards his credibility. The complainant, in his such improved statement, specifically claims that he had seen the accused persons causing serious beating to his (complainant’s nephew) yet the complainant did not bother to make any effort to rescue deceased nor bothered to call for police help but he (complainant) surprisingly asked a working plumber in street to inform police and then he (complainant) went to his house. We, in no way, find ourselves to swallow such attitude of the complainant because a blood-relation cannot be believed to act in such a manner which appears to be alien to normal human conduct and experience particularly he admitted in his cross examination that :

‘It is correct to suggest that when I had seen the accused Khadim Hussain, his wife Mst. Shahnaz, Riaz, Ghulam Haider, Muhammad Ashraf and Noor Din were beating Naseer Abbas, I had made no vociferation nor made a telephone call to ‘15’ Madadgar”

 

Without prejudice to such strange and illogical conduct, what appears from his examination-in-chief is that “he claimed to have gone to house of accused Khadim Hussain alone” however, during course of cross-examination he took summersault by saying that:

‘After offering Fajar prayer on 08.7.2006, I had gone to the house of deceased Naseer Abbass. Muhammad Ramzan, Muhammad Rafique and other persons informed me that Khadim Hussain had taken away Naseer Abbas. Listening so, I alongwith Rafique, Muhammad Ramzan, Riaz, Shaukat, Asif and 3/4 other persons had gone to the house of accused Khadim Hussain”

 

                                                                                                                            

16.       The prosecution claims above persons to be eye-witnesses of the incident, therefore it would be germane to  examine the evidence (s) of above witnesses with regard to reason which made them to go the house of accused Khadim Hussain. Out of above persons, PW-2 is real brother of deceased hence his evidence is also of much importance so let’s examine the same.

 

PW-2 Mohammad Ramzan

“On 08.7.2006, the wife of accused Khadim Hussain made a telephone call to my brother Naseer Abbas and directed him to come and receive back amount from them. After some time Khadim Hussain himself came at our house and asked my brother Naseer Abbas to give him company toward later’s house for receiving the amount. My brother Naseer Abbas went with Khadim Hussain towards his house. After some time I, alongwith Rafique, uncle Falak Sher, Shaukat, Asif Riaz and Niaz followed my brother to the house of accused Khadim Hussain for taking certain articles from there. We were doing the work of meson, our meson instruments were lying at the house of accused Khadim Hussain, we went three (there) to take back the said articles. When we reached at the door of house of accused Khadim Hussain, noticed somebody was beaten by Khadim Hussain, Ashraf, Riaz, Haider and Mohammad Noor, whereas Mst. Shahnaz, wife of accused Khadim Hussain was standing there. Shaukat knocked the door of house of Khadim Hussain. Khadim Hussain came at his door. He informed us to have already dropped our articles at the shop of Naseer Abbas, when we inquired from him to whom they are beaten, Khadim Hussain informed us that it relates to his family affairs and then he closed the door. Then my uncle Falak Sher asked a plumber who was working near the house of accused Khadim Hussain, the said plumber made a telephone call to police. After some time police came at the venue, they went inside the house of Khadim Hussain and brought out the dead body of my brother Naseer Abbas from the said house. Then the police dispatched the dead body to JPMC Karachi, where its post mortem was conducted and thereafter delivered dead body to me by the Administrator of Jinnah Hospital. I produce……”

 

 

Examination of above would show that this witness though claimed to have seen full scene yet do not claim to have identified the person to whom beating was being made. However, this witness attempted to give a justification for their joint reaching to house of accused Khadim Hussain by saying that ‘their meson articles were lying at house of accused Khadim Hussain so they had gone to collect the same’. While examining this ‘pleaded justification’ whereby chance witnesses claimed to have reached at a particular place at a particular time. We can say that it is not unusual to drop or keep articles at the house of others. However, in such situation this would require better relationship between the two. Let’s see what the complainant and PW Mohammad Ramzan (blood relations of deceased) say through which relationship and understanding can be gathered.

Complainant Falak Sher in his cross:

‘It is correct to suggest that accused Khadim Hussain and Mst. Shahnaz are my villagers and I known them since long. It is correct to suggest that prior to the instant murder there was dispute on money transaction between us and Khadim Hussain.  

 

The above admission of the complainant makes it clear that the parties were not on such terms that claim of prosecution witnesses is believed that their masonry articles were being kept at house of accused Khadim Hussain.

 

17.       Since it stood established that the complainant party has not been resident near house of the accused Khadim Hussain hence they are not the natural witnesses of the incident but came forward as chance witnesses but failed to justify the reason of their presence at such time. However, since to consider the evidence of a chance witness two ingredients are required to be established i.e 1, if he reasonably explains his presence at the spot; then ii) narration of incident should inspire confidence, such witness will not be termed as chance witness as held in case of Anwar Shamim v. The State (2010 SCMR 1791).

 

18.       It appears that witnesses have not been able to reasonably establish their presence at the spot, however, as abandon caution we proceed further to see whether narration of incident by them is confidence inspiring or otherwise. In the instant matter complainant party, including blood – relations, claimed to have seen incident but in a quite illogical and in a manner which is against normal human reaction.  However, let’s see what PW  Mohammad Rafique, another claimed eye witness of incident, say. The relevant portion is referred hereunder:-

..Shoukat made a knock at the closed door of house of Khadim Hussain. The later came out from the house, whom Shoukat and other asked to deliver them there (their) masonry instruments. As we noticed blood spot on the cloths of Khadim Hussain, therefore, inquired from him about it, he informed it relates to his family affairs. He further informed that articles had already dropped at the shop of Naseer Abbas, so we will go there, then he closed the door. We had heard noise from inside the house of Khadim Hussain. Thereafter, piped (peeped) from the door inside the house & saw Khadim Hussain, Ashraf, Riaz , Noor, Hyder and Shahnaz, dragged certain thing inside the room but we could not identify it. After short time police came there…”


From above, it appears that this witness does not support the claim of other witnesses namely Falak Sher, Mohammad Ramzan and Shoukat with regard to:

i)                   opening of the door of house of accused;

ii)                 seeing accused persons causing beating;

iii)              manner of seeing the incident;

 

However, either claims of the private witnesses with regard to their presence and that of having seen incident becomes doubtful with reference to evidence of ASI Mohammad Aslam, who in his cross-examination stated that :

‘When we entered into the house of the accused noticed accused Khadim Hussain, his wife Mst. Shahnaz and Ashraf only. During our stay at the place of incident Arif Hussain and so many other persons numbering 30 to 45 arrived there’.

 

(complainant party claimed to have remained present outside the house at all times; did not allege leaving of any person from house but nominated accused Riaz and Ghulam Hyder were not found in house )

 

(Further as per mashirnama of arrest, personal search, recovery and seizure (Ex.7/A) shows presence and arrest of accused Khadim Hussain only)

 

 

The PW Amir Bux in his cross examination stated that:

“When I had reached at the house of the accused no body was available outside the house’

 

This witness in his cross-examination further stated that:-

It is correct to suggest that complainant party also came at the place of incident during our stay there’

 

 

19.       This seriously casts doubt about claim of their presence at place of incident and even the narration of incident by complainant party is not confidence inspiring hence the ocular account, so furnished by the complainant party, is not worth relying. Because, it was claim of the complainant party that accused Khadim Hussain had taken deceased towards his house and complainant party had just reached at house of accused while following them (accused and deceased) hence if complainant party had seen accused persons causing beating to some one (even if it is believed that complainant party did not identify person, being beaten which is hard to believe) yet circumstances were crying for an intervention or least an inquiry about such beaten person.  Even otherwise, the complainant party during trial proceedings, as discussed above, made serious attempts to bring their case in line by making material improvements hence such witnesses cannot be said to be witnesses of truth because one who keeps making conflicting statement looses the status of a truthful witness. Reference can well be made to the case of Muhammad Nadeem v. State (2011 SCMR 1517). Further, the alleged eye witnesses were not examined immediately after registration of FIR and it was held in the case of Imran Ashraf Vs State (2001 SCMR 426) that:

‘This court has already held in 1993 SCMR 550 and 1995 SCMR 127 that if no plausible explanation is offered by prosecution to record the statement of eye-witnesses immediately after the registration of the case then the evidence of such witnesses becomes incredible”

 

 

20.       As regards to the evidence of recovery, the prosecution claimed to have recovered a ‘danda’ with which the accused Khadim Hussain allegedly committed murder of deceased. It was claim of the complainant party that :-

 

PW Mohammad Ramzan admitted in his examination-in-chief that:

 

After some time police came at the venue, they went inside the house of Khadim Hussain and brought out the dead body of my brother Naseer Abbas from the said house.

 

           

PW Shoukat Hussain

‘….The said pipe fitter through mobile phone called the police. Police came within 15 minutes. The police went inside the house, but did not allow us to enter into the house. After some time we noticed blood stained water flowing from the house.

 

The above claim of the witnesses’ show that the police had reached at the spot shortly within 15 minuets which is further evident from cross-examination of the PW Ameer Bux that:

‘I had received message from Police station Ibrahim Hyderi at about 8.20 a.m whereas I had reached at the place of incident at about 8.30 a.m”

 

Thus, within such short period of time a man, who had just killed a person, not only succeeded in getting his senses normalized but also got the blood washed from all places of houses including from crime weapon i.e ‘danda’ . Such piece appears to be not believable. It is also quite surprising that even the bed-sheet on which the deceased was allegedly found lying dead was not stained with blood, as is evident from admission of the PW Ameer Bux that “It is correct to suggest that the bed sheet was not stained with the blood. The recovery of crime weapon i.e ‘danda’ also appears to be doubtful. Even otherwise, recovery evidence by standing alone is never sufficient to hold the conviction. It is worth to add here that the death to be un-natural is not disputed but it, no manner, can help the prosecution to identify the culprit hence this piece of evidence also does not improve the case of prosecution.

 

21.       So far as to the confessional statement of the accused Khadim Hussain, it is worth to say that retracted confession even found to be voluntary one cannot be held sufficient to hold conviction if same does not fit in the given version by prosecution. Moreover, such delayed confessional statement of the accused Khadim Hussain was recorded after about 9 days of his arrest and even such confessional statement of the accused is not fitting in story, detailed in such confessional statement. Per confessional statement “the bolt of the door was opened from inside’ meaning thereby that entrance of deceased allowed by accused Mst. Shahnaz herself which stood denied from further words of confessional statement i.e ‘..was embracing my wife Shahnaz by holding with her arms and my wife was saying leave me…leave me”. Whereas the medical examination of accused Mst. Shahnaz, conducted by PW-10 shows that:

‘I had examined the said lady, could not find mark of violence on her body. On P.V examination, external geniteria normal, vestibule nor congested, no tenderness, hymen old, torn and heal, vagina admitting two finger, bleeding positive and her LMP four days back

 

(Underlining is provided for emphasis)

 

This also makes it evident that confessional statement of the accused Khadim Hussain also does not fit with given story hence cannot be safely relied upon to convict the accused, particularly where prosecution failed to prove its case.    At this point, we would like to refer the case of Azhar Iqbal vs State (2013 SCMR 383) wherein honourable Supreme Court held:

            “It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shoukat Ali & Ors (2006 SCMR 1139).

                        Further, it was also held that:

“The law is equally settled that the statement of an accused person recorded under section 342 Cr.PC is to be accepted or rejected in its entirety and where the prosecution’s evidence is found to be reliable and the exculpatory part of the accused person’s statement is established to be false and is to be excluded from consideration then the exculpatory part of the accused person’s statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan vs. Sher Khan and others PLD 1991 SC 520), 2006 SCMR 577). It is unfortunate that the Lahore High Court, Lahore had failed to apply the settled law to the facts of the case in hand.

22.       Now let’s examine the case of the defence statement of the accused party by putting in juxta-position. The accused Khadim Hussain has claimed in his defence that it was complainant party who attacked upon accused and during such assault deceased received injury at hands of complainant party. The evidence of PW Ameer Bux couple with mashirnama of arrest, recovery and seizure would show that ‘on fateful day at 0820 hours 15 Madadgar Korangi received call from Sim No.0333-3097685 that in house No.H-47 Bhitai colony some persons have entered and police aid is required” and it was such call because of which the police had reached at the house. Further, the PW Ameer Bux claimed to have prepared three documents at the place of wardat at one and same time i.e mashirnama of dead body, inquest report and mashirnama of recovery and arrest of accused Khadim Hussain but in documents relating to death the mashirs are shown as Complainant Falak Sher and PW Mohammad Ramzan who, both per their evidence, did not enter into house nor participated in such proceedings. There was only single independent witness i.e mashir Arif (mashir of mashirnama of arrest and recovery) but he was not examined hence presumption also goes against prosecution for with-holding such evidence. The above facts, which have never been denied or explained, support the defence, taken by the accused Khadim Hussain. Since it is well settled principle of law that when there are two possibilities one favourable to the accused has to be taken. Reference is invited to case of Mohammad Akram Vs State (2012 SCMR 440) wherein honourable Supreme Court held that:

            “It is cardinal principle of law that in such like cases of two versions, one is to be believed in toto and not in piecemeal. This proposition of law is well settled by now as reflected in the case of Safdar Ali vs.Crown (PLD 1953 FC 93) wherein it has been held that in a criminal case it is duty of the court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of the whole evidence the, court is of the opinion that there is reasonable possibility that the defence put forth by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt not a matter of grace but as a right because the prosecution has not proved its case beyond reasonable doubt. The aforesaid principle has been further elaborated in the case of “Nadeem ul Haq Khan and others vs. The State (1985 SCMR 510).”

23.         We are quite conscious of the legal position that where prosecution is relying on direct evidence it should not only be direct but should also successfully stand to be natural and confidence inspiring and in the instant case though prosecution claimed direct evidence but not under cloth of ‘natural and confidence inspiring hence conviction cannot sustain. Reference can be made to the case of Muhammad Ashraf v. The State (2012 SCMR 419)

24.       In view of what has been discussed, we are of the view that prosecution failed in establishing the charge against the accused persons beyond reasonable shadow of doubt hence the conviction cannot be legally sustained. Accordingly both Appeals are hereby allowed and impugned judgment dated 14th October 2010 is hereby set-aside. The appellants shall be released forthwith if not required by any other case crime. Whereas captioned Criminal Revision Application for enhancement of sentence being devoid of merits is dismissed.

 

                                                                                J U D G E

 

J U D G E               

Sajid