' SYED MUHAMMAD FAROOQ SHAH, J.---This Criminal Appeal is directed against the judgment dated 26-7-2011, passed by learned Sessions Judge Malir, Karachi in Sessions Case No, 369 of 2003, whereby the appellant Muhammad Nadeem has been. Convicted under section 302(b), P.P.C. .And sentenced to suffer life imprisonment with benefit of section 382-B, Cr.P.C. The appellant has prayed for setting aside of the said judgment, conviction and sentence and for his acquittal from the charge of the case, on the facts, grounds mentioned in the appeal in light of the rulings of Hon'ble Supreme Court.
2. Prosecution story in nutshell is that Mst. Noreen daughter of complainant Muhammad Ashraf was found killed on 29-7-2003 in the house of her father. On receiving the telephonic message about the murder of his daughter Noreen, the complainant returned from Punjab and on 30-7-2003 lodged the F.I.R. Against his son-in-law accused Muhammad Nadeem who came back from Dubai and sent a divorce deed by post to Mst. Noreen but since she was pregnant, the same was not given effect to and thereafter accused Nadeem changed his mind and expressed his willingness to take back Mst. Noreen to Punjab but she was not willing to go with him. It is alleged by the complainant that he was informed by Muhammad Khalid on telephone about the tragic incident hence he returned back from Punjab and lodged the F.I.R., in which he claimed that accused Nadeem had caused death of his daughter at the instance of his brothers namely Muhammad Iftikhar and Muhammad Arif. Police registered the case against all the three accused persons by lodging the F.I.R. No 61 of 2003 under sections 302/109/34, P.P.C. At Police Station Steel Town, Bin Qasim Town, Malir Karachi.
3. On completion of usual investigation, the appellant and his brothers were charge-sheeted by the police. The learned trial Court supplied copies of police papers under section 256(c), Cr.P.C. And charge was framed against them on 16-10-2004 but they denied its contents and claimed trial.
4. To support its contention prosecution examined in all nine witnesses. P.W.1 Mst. Zareena mother of deceased as Exh.3, who produced Mashirnama of securing the documents (application as Exh.3/A), P.W.2 Hafiz Muhammad Rehan (Exh.8), P.W.3 Complainant Ch. Muhammad Ashraf (Exh.9), who produced the F.I.R. (Exh.9/A), Memo of Inspection of place of occurrence and seizing of blood- stained clothes (Exh.9/B), Memo of pointation of place of occurrence and recovery of crime weapons (Exh.9/C), Mashirnama of arrest of accused Nadeem (Exh.9/D), P.W.3 Raja Muhammad Yousuf has been examined (Exh.10), P.W.5 Muhammad Khalid (Exh.11), who produced the inquest report including inspection of injuries on person of deceased (Exhs.11/A and 11/B), respectively, P.W.6 Investigating Officer, SIP Muhammad Suleman has been examined (Exh.12), who produced Mashirnama of securing of documents (Exh.12/A). P.W.7 Khalil Ahmed Jalil (Exh.14), P.W.8 ' Dr. Summaiya Tariq MLO JPMC Karachi (Exh.16), she produced postmortem report (Exh.16/A) and medical certificate of cause of death (16/B), P.W.9 SIP Tahir Aziz Abbasi was examined as Exh.18, who produced the report of Chemical Examiner (Exh.18/A) and four photographs of deceased (Exh.18/B).
5. On conclusion of prosecution evidence, statements of the accused were recorded 'under section 342, Cr.P.C. And it appears that neither they examined themselves on oath under section 340(2), Cr.P.C. Nor led any evidence in their defence.
6. It is argued by Mr. F.M. Javed, Advocate for appellant Muhammad Nadeem that the appellant has been falsely implicated in the matter, no ocular evidence is against him, circumstantial evidence is doubtful of fake nature and cannot be relied upon, and particularly it has got no corroboratory evidence. Mere on suspicion appellant has been implicated in the matter due to his strained relation with his in-laws and deceased. No recovery or any incriminating articles used in the commission of offence have been recovered, neither from the place of incident nor from the possession of appellant. The prosecution evidence has been misread and misappreciated by the learned trial Court. The lamed defence counsel stated about the material contradictions amongst the statements of prosecution witnesses. In support of his contentions, he has relied upon the cases of TARIQ PERVEZ v. THE STATE (1995 SCM R 1345), MUHAMMAD SAEED v THE STATE (2008 PCr.LJ 1752), GHULAM MURTAZA v. THE STATE (2010 PCr.LJ 461), FARZAND ALI v. THE STATE (2012 M LD 882), RAHAT ALI v. THE STATE (2010 SCM R 584), SULTAN AND OTHERS v. THE STATE (1987 SCM R 1177), ALLAHDAD ALIAS SAJJAD AND ANOTHER v. MST. NAJMA AND ANOTHER (2009 YLR 788), DHANI BUX v.
THE STATE (2011 M LD 1419), SIKANDAR v. THE STATE (2008 PCr.LJ 1468), SHAHZAD TANVEER v. THE STATE (2012 SCM R 172) and the case of MUHAMMAD ASLAM v. MUHAMMAD ZAFAR AND 2 OTHERS (PLD 1992 Supreme Court 1).
7. Mr. Zafar Ahmed Khan, learned Additional Prosecutor-General, Sindh, on the other hand, argued the matter in support of the prosecution and supported the judgment impugned in the appeal.
According to him the evidence led by the prosecution was sufficient to hold the appellant guilty and learned trial court rightly concluded the trial, fairly held the appellant guilty and the conviction and sentence by way of impugned judgment, which is thus, not open to any interference and appeal is liable to be dismissed. However, when confronted he has half-heartedly admitted the contentions made by learned counsel for the appellant and stated. That this case based upon circumstantial evidence without any ocular testimony.
8. I have given due consideration to the record and argument of learned counsel for appellant and learned Additional Prosecutor-General, Sindh and I have gone through the evidence produced by the prosecution.
9. Admittedly, it is a case of unseen incident as no ocular testimony is found available. To reach at the exact conclusion, it would be appropriate to discuss the veracity and authenticity of prosecution evidence available on the record. P.W. Zareena, the mother of deceased, stated in cross-examination that police secured the case property in the month of august, 2003 in her presence but did not seal it. Further stated in cross that she has given the case property viz. 'Bat' to the police after the arrest of accused Nadeem Bhatti in the year 2006, i.e, after years together. She has also admitted in cross that Nadeem Bhatti (appellant) was arrested from Gujranwala.
However, Mashirnama of arrest of accused Nadeem (Exh.9/D) depicts that he was arrested from Platform number 2, Landhi Railway Station, Karachi. P.W.2 Hafiz Muhammad Rehan stated in his Examination-in-chief that when Noreen Ashraf was murdered, appellant Nadeem on 29-7-2003 was not available in the house. In cross-examination, this witness deposed that at the time of incident he was 16 or 18 years of age and owner of the building disclosed him that the door is locked from inside and when he entered in the house he found her murdered. He has further stated that he has not seen anything with his own eyes. He has next stated that police reached at the place of incident at 05/06:00 morning. P.W. Muhammad Khalid (Exh.l1) stated that his daughter Zumera used to reside with her (deceased) in night time and one tenant of complainant disclosed him that the door of Noreen was found locked from inside and she was not opening the door. It is stated that he also knocked the door of Noreen but she did not open the door. He then informed the Security of Gulistan-e-Hadid, who came and broken the door of the room of Noreen and found that she was murdered. In cross-examination, this witness stated that he did not intimate about the murder of Noreen to her parents at Punjab. Complainant who is father of the deceased deposed that the case property was not sealed and not signed by him. He has also admitted that there is no eye-witness of the incident. He has produced the memo of place of occurrence and recovery as Exh.9/B which bears his signature, memo of pointation of the place of occurrence and recovery (Exh.9/C), was prepared on 20-1-2006 after about 2-1/2 years. This memo of recovery shows that pan `TAWA' and a `Bat' are the crime weapon, allegedly used in commission of offence, were recovered in presence of Mashirs, who are parents of the deceased. There is nothing on the record to explain the reason of recovery of 'Bat' and `TAWA' after years together and there is also no reason whatsoever about violation of section 103, Cr.P.C. As no independent person of the locality acted as witness/Mashir of recovery of crime weapons.
10. At the most, the star witness of the prosecution P.W. Khalil Ahmed Jalil (Exh.14) who has lastly seen the accused, deposed that on 28-7-2003 he saw son-in-law of Muhammad Ashraf standing outside the gate of house and on 29-7-2003 after Asr' time he saw gathering in front of the house of complainant where he came to know that the daughter of Ch. Muhammad Ashraf has been murdered. At that time Ch. Muhammad Ashraf was not available in the house and P.W. Khalid intimated him about the murder of Noreen. In his cross, this witness has stated that he do not remember whether his statement was recorded by the police on 13-8-2003. He has further stated that he never saw the son-in-law of Ch. Muhammad Ashraf but Muhalla people told him that the name of son-in-law of Ch. Muhammad Ashraf is Nadeem. He has further stated that he never went to the house of Ch. Muhammad Ashraf and it was not in his knowledge that Nadeem had divorced Mst. Noreen on 18-4-2003.
11. Besides above contradictions, it appears that the F.I.R. Was lodged on 30-7-2003 and on the same day, police visited the place of occurrence and prepared memo of place of Vardhat and recovery but the crime weapons were recovered on pointation of accused on 20-1-2006, after about 30 months, which were neither wrapped in cloth nor put in bag and sealed or sent for examination to the Chemical Examiner. Clothes of deceased have also not been dispatched to Serologist for examination and report. Doubt appears when contradiction is found in between the deposition of prosecution witnesses and circumstantial evidence, discussed above.
12. From perusal of the case file, it appears that prosecution has withheld the best available evidence of Security Incharge who broke open the door and recovered dead body, tenant who informed about locked door and the person residing at upper storey who informed to P.W.2, beside other inmates/tenants residing in the said house who could be the best evidence. Learned counsel for the appellant has rightly contended that if the prosecution withheld the evidence of material witnesses, the presumption will be that they will not support the prosecution as provided under Article 129 of Qanun-e-Shahadat Order. There is no explanation brought by the prosecution on the record about locking the door of the deceased from inside which was broken by the security officials and deceased was found killed inside. It is not attracting to common sense that a person after causing murder of somebody can lock the door from inside and in this regard there is no clarification on the record brought by the prosecution. The incriminating articles which allegedly used in commission of offence have not been sent to the Chemical Examiner/Serologist, which fact alone is creating reasonable doubt, which cause dent to the story.
13. As per prosecution evidence, Security Supervisor of Gulshan-e-Hadid who broke opened the door of the room of House' No,A-865, Phase-H, Gulshan-e-Hadid, Karachi and recovered dead body of Mst. Noreen has not been examined. It has come in evidence that door was locked from inside and no person from the locality including tenants residing in the said building/house heard any commotion or quarrel in between accused (husband) and deceased (wife), in result of which by adopting extreme method she was murdered brutally. Moreso, the prosecution evidence belied the charge framed against three accused, wherein it is alleged that three accused were inside the said house and committed murder of Mst. Noreen though dead body was recovered from a room locked inside. It has also come in evidence that accused Nadeem had divorced deceased, therefore, there was no justification of his being with her. Evidence of P.W.7 was recorded after delay of 15 days who is the only person lastly seen the accused in front of the house of occurrence from distance. Inclusion of names of two brothers of accused in amended charge framed by the trial Court shows mala fide and ulterior motive on 'the part of complainant side due to animosity, and particularly no prosecution witness deposed a single word against remaining two accused, hence by concluding the judgment the learned trial Court acquitted the co-accused Iftikhar son of Muhammad Rafi under section 265-H(i), Cr.P.C. On the ground that prosecution has failed to prove the case against him and on death of accused Muhammad Arif proceeding against him stood abated.
14. Suffice is to say that prosecution story is not trustworthy and the depositions of P.W's. Are not beyond the shadow of reasonable doubt. It is settled that if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. Reliance in this regard is placed on the case of TARIQ PERVEZ v. THE STATE (1995 SCM R 1345), MUHAMMAD SAEED v. THE STATE (2008 PCr.LJ 1752), GHULAM MURTAZA v. THE STATE (2010 PCr.LJ 461). In the case of FARZAND ALI v. THE STATE (2012 M LD 882), recovery of weapon of offence made on the pointation of accused was held to be inconsequential as there was no positive report from Forensic Science Laboratory. It appears that the evidence of prosecution witnesses has been recorded by the police at belated stage without furnishing any plausible explanation. The Hon'ble Supreme Court in the case of RAHAT ALI v.
THE STATE (2010 SCM R 584) held that the said lacuna fatal to prosecution case and the statement of such witnesses were not to be relied upon. In the case of SULTAN AND OTHERS v THE STATE (1987 SCM R 1177) the Hon'ble Supreme Court held that Investigating Officer is bound to secure the attendance of independent witnesses to attest the recovery of crime weapons at the pointation of accused and failure to do so would cause doubt on the factum of recovery. In the present case both recovery witnesses of crime weapons are real parents of the deceased, without any explanation of the prosecution with regard to non-availability of independent person of the locality.
It is well-known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless to the fact as to whether he has taken any such defence plea or not. The prosecution evidence appears to be not trustworthy nor consistent to establish accusation against the appellant, therefore, his false implication in this case due to his strained matrimonial relations with the deceased and her parents and his involvement in this case due to animosity with complainant party cannot be brushed aside.
15. The law developed in our country is based on maxim that it is better that ten guilty persons be acquitted rather than one innocent person be convicted, reference in this regard may conveniently be placed on citation of apex Court reported as PLD 1993 SC 418 and 2011 SCM R 664. It is also an established principle of administration of criminal justice coupled with Muhammadan sharia law that conviction cannot be based on any other type of evidence unless direct or substantive evidence is available and the guilt of accused cannot be based on high probabilities that may be inferred from evidence in a particular case. Sufficient discrepancies are appearing in the statement of prosecution witnesses and the memos of place of occurrence and recovery, prepared during investigation, appears to be suspected.
16. In view of the foregoing reasons and on the criterion as mentioned above, the appeal in hand is allowed and impugned judgment of the trial Court dated 26-7-2011 passed in Sessions Case No 369 of 2003 under section 302(b), P.P.C., cannot be sustained hence the conviction and sentence awarded to the appellant is set aside. The appellant is acquitted from the charge of this case. He is in custody and shall be released forthwith, if not required in any other case.