ZULFIQAR ALI SANGI, J.-- Through this Criminal Appeal, Appellants Anwar son of Surio Shar and Muhammad Haneef son of Khando Shar, assailed the judgment dated 21.10.2020 (impugned herein) passed by learned Additional Sessions Judge/MCTC Ubauro, in Sessions Case No.115/2017, re-"State v. Anwar and others", arising out of Crime No.25/2017, registered at Police Station Khenju, under Sections 302, 34, P.P.C., whereby the appellants were convicted and sentenced for the offence under Section 302(b) read with section 34, P.P.C. to suffer R.I. for life as Tazir and to pay compensation of Rs.200,000/- each to the legal heirs of deceased in terms of Section 544-A, Cr.P.C., in default thereof they shall suffer S.I for six months more. They were given benefit of section 382-B, Cr.P.C.
2. Concisely the facts of the prosecution case are that on 03.04.2017 complainant Zahid Hussain lodged FIR that there was dispute between them and accused party over children matter as such the accused party was annoyed with them. On 01.04.2017 at evening time complainant brother's Mehboob Ali had gone from the house to repair the wheat crop cutter machine. The complainant, his cousins Ahmed Khan and Mumtaz Ali were sitting at their shop at Adda, at 1100 hours (night) where they heard cries of complainant's brother Mehboob Ali coming from link road khenju near Dhani Bux Adda to which they rushed there and saw on charger lights Anwar with iron rod, Muhammad Haneef with lathi, Tariq alias Taqoo with gun and two unknown persons with guns. The accused armed with guns pointing their guns at complainant party asked them not to come near them as such due to fear the complainant party did not forward. Then accused Anwar caused iron rod blow to Mehboob Ali at his head while accused Muhammad Haneef caused lathi blow to Mehboob Ali at his head who raising cries fell down on the ground. Complainant party raised cries which attracted villagers and the accused persons ran away towards their houses. Complainant party then saw that his brother Mehboob Ali had died and blood was oozing from the head injuries.
They then brought the dead body to Taluka Hospital Daharki where formalities were completed and after getting free from funeral rites complainant lodged such FIR.
3. After conducting usual investigation challan was submitted against the accused. The trial court after completing legal formalities framed the charge against the appellants to which they pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution has examined 10 witnesses namely PW-1 complainant Zahid Hussain at Exh.6 who produced FIR at Ex.6-A, PW-2/eye-witness Ahmed Khan at Exh.7, PW- 3/eye-witness Mumtaz Ali at Exh.8, PW-4 mashir Saddam Hussain at Ex.9, who produced memo of inspecting the dead body, Danishtnama, memo of inspecting the place of incident and memo of arrest of accused at Exs.9-A to 9-D, PW-5 Investigating Officer ASI Godho Khan at Ex.10, who produced attested copy of roznamcha entry No.13, Form-25.39, memo of securing blood stained last worn clothes of the deceased at Exs.10-A to 10-C, PW-6 mashir PC Abdul Rahim at Ex.11 who produced memo of recovery of crime weapon viz. iron rod at Ex.11-A, PW-7 Inspector Mazhar Ali Jatoi at Ex.12, PW-8 HC Riaz Ahmed at Exh.13 who produced receipt of handing over the dead body to its legal heirs at Ex.13-A, PW-9 Dr. Kailash Kumar at Ex.14 who produced police letter and postmortem report at Exs.14-A and 14-B, and PW-10 Tapedar Ghulam Yaseen Malhan at Ex.15 who produced photo stat copy of police letter and the sketch at Exs.15-A and 15-B respectively.
Thereafter the prosecution closed its side vide statement at Ex.16.
5. The statements of accused under section 342, Cr.P.C. were recorded at Exs.17 to 19 wherein they had denied the prosecution allegations and claimed to be innocent and prayed for justice.
However neither they examined themselves on oath nor led any defence evidence. Later on accused Tariq Jumped over the bail and was declared absconder.
6. The trial court after hearing the parties and on assessment of evidence convicted and sentenced the appellants as stated above against which the appellants preferred this appeal.
7. Learned Counsel for the Appellants has contended that the Appellants are innocent and have falsely been implicated by the Complainant party; that there is delay of two days in registration of FIR which has not been explained by the complainant; that the FIR was registered after preparation of masirnama, letter to doctor and postmortem; that according to complainant the accused were identified on the light of solar bulb but mashirnama of place of wardat did not show any source of identification; that there is inconsistency between evidence of eye-witnesses and MO regarding number of injuries sustained by the deceased; that there are material contradictions in the evidence of prosecution witnesses; that the impugned judgment is result of misreading and non- reading of the evidence as well as against the law, facts, principles of natural justice and equity; that the learned trial court has erred in convicting the appellants by not taking into consideration the entire material as such the impugned judgment is liable to be set-aside. In support of above contentions reliance placed on the case law reported as Sajjan Solangi v. The State (2019 SCMR 872), Muhammad Asif v. The State (2017 SCMR 486), Abdul Hamid v. The State (PLD 1980 Peshawer 25), Muhammad lmran and others v. The State (2021 YLR 95) and Umar Hayat and 3 others v. The State (1997 SC MR 1076).
8. Learned Deputy Prosecutor General assisted by learned counsel for the complainant has contended that all the PWs have deposed in the same line; that the ocular evidence is in consistence with the medical evidence; that no major contradiction in the evidence of prosecution witnesses has been pointed out; that the prosecution evidence is reliable, trustworthy and confidence inspiring; that the delay in registration of FIR has been explained; that there is no question of mistaken identity as accused were already known to the complainant party; that preparation of mashirnama and conducting postmortem of deceased before registration of FIR is not against the law; that the appellants are assigned direct role of causing injuries to deceased.
Lastly he prayed that the appeal may be dismissed and conviction awarded to the appellants by the learned trial Court may be maintained.
9. I have heard learned Counsel for the Appellants, learned Deputy Prosecutor General, learned counsel for complainant and have carefully gone through the material available on record with their able assistance.
10. The incident took place on 01.04.2017 at about 2300 hours of the night and the deceased was brought before the doctor for examination and postmortem on 02-04-2017 at 12:25 A.m., the postmortem was conducted between 1-45 to 2-45 am (as per postmortem report), however the FIR was registered on 03.04.2017 with the delay of about three days and the same delay has not been explained by the prosecution properly. The complainant during cross-examination stated that the delay was caused as they were on hope that the matter would be settled out side of the court in jirga. The complainant during cross-examination stated that dead body was taken directly to the hospital and police officer had come at the hospital for completing formalities of the dead body. Complainant has not deposed a single word that any entry in respect of incident was recorded by the police. However, PW-5 ASI Godho Khan deposed that on 2-4-2017 he was duty officer and at 0050 hours complainant appeared at police station and informed that his son Mahboob Ali has been murdered near Dhani Bux Ada (stop) and further informed that they had shifted the dead body to the hospital to which he kept such entry No.13 which he also exhibited in his evidence. PW-5 during cross-examination admitted that the complainant had not disclosed him the name of the accused persons who committed the murder. The entry No.13 Ex. 10/A available at page 85 of the paper book has been examined carefully and found that the names of the accused persons are not mentioned, the manner in which incident took place (as stated in FIR) is also not mentioned, the names of the witnesses who as per FIR witnessed the incident are also not mentioned. It is mentioned in station entry that FIR would be registered after the funeral ceremony. PW-7 Inspector Mazhar Ali Jatoi the Investigation Officer during his cross-examination stated that "It is correct that on the date of incident, the complainant did not disclose the names of the accused persons on his first appearance at police station. On the next day of the incident, the complainant did not appear at the police station. The complainant had disclosed me that the incident occurred at night time and if the names of accused person will be cleared, then he would disclose the same to me." From perusal of the above evidence produced by the prosecution it reflects that the incident was an un-witness incident and the FIR was registered after consultation and deliberations by taking three days in it after the incident. The Honourable Supreme Court of Pakistan in the case of Pervaiz Khan and another v. The State (2022 SCMR 393) has held that "There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR, was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hour but even then the report was lodged in the hospital at 11:15 p.m. There, is no explanation as to why after reaching the hospital when both, the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant. There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but postmortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed postmortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case."
11. The identification of the accused persons at the time and place of incident in the present case is also doubtful. Admittedly the incident took place at 2300 hours of the night and the complainant party after hearing the crises of deceased went there and witnessed the incident on the torch lights. The complainant stated during the cross-examination that they all have the torches with them and other two eye-witnesses also deposed the same but surprisingly during the investigation such torch lights were not taken into possession by the Investigation Officer nor were the same produced before him or before the court by the prosecution witnesses which makes the identification of accused as doubtful. Further the doubt is visible in identification of the accused persons from the evidence of PWs. The complainant stated that he identified the accused persons from the distance of 20/25 paces, PW-2 Ahmed Khan stated that he identified the accused persons from the distance of 4/5 paces and the PW-3 Mumtaz Ali stated that he identified the accused persons from the distance of 30/40 paces. The identification of three accused persons amongst six with specific weapons and role during the night hours on the torch lights from the distance stated above by the witnesses creates very serious doubt in the prosecution case. Honourable Supreme Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) has held that "The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case.
In the case of Abdul Rahim v. Ali Bux and 4 others (2017 PCr.LJ 228), Division Bench of this Court has held as under: - "11. Record further reveals that the incident is alleged to have taken place in dark hours of the night and Complainant and PWs/eye-witnesses seen and identified the culprits/Respondents on 7 torch lights, but the said Torches were not produced in evidence, since the source of identification of the culprits is shown as torchlight, which as per verdicts of Superior Courts is weak type of source and unsafe to be relied upon. In this regard reference is made to the case of Hakim Ali, reported in 1996 PCr.LJ 231 (DB-Kar), and case of Aurangzeb, reported in 2008 PSC (Cr.)(sic).
12. Turning to the role assigned against the appellants by the prosecution witnesses that appellant Anwar caused iron rod blow to the deceased which hit at his head and then appellant Muhammad Haneef caused lathi blow to the deceased on the same place of head where blow of iron rod caused by appellant Anwar was hit, no one can believe such type of evidence of prosecution witnesses, as according to the prosecution witnesses the incident took place at night hours, the witnesses saw the incident on the torch lights from the distance as stated above in a such circumstance it is not possible to witnesses the incident in the manner as deposed by the prosecution witnesses. As per the evidence of Doctor Kailash Kumar PW-9, the deceased received solitary injury on his head showing fracture over franto parietal region of skull resulted into death of the deceased. From the evidence produced by the prosecution it is also not clear as to whose blow was hit to the deceased out of two accused. If the blows of both the accused Anwar and Haneef hit to the deceased then there must be two injuries on the person of deceased but as per postmortem deceased received only one injury as stated above. In the similar facts and the circumstances in the case of Muhammad Shafi alias Khuddoo v. The State and others (2019 SCMR 1045), the Honourable Supreme Court of Pakistan has held that "A variety of reasons weighed with the learned trial Judge to acquit the accused from the charge; inordinate delay in recourse to law being foremost, these include improbability of witnesses' presence; their enmity with the accused, as well as, contradictions in their depositions and thus he found it unsafe to return a guilty verdict.
None of the reasons cited by the learned trial Judge has been found by us as artificial or unrealistic. Even otherwise on an independent analysis, genesis of prosecution case does not appear to be free from doubt. Deceased was 70 years of age and in a chilled winter morning his presence at the crime scene within the view of witnesses, admittedly inimical towards the accused, available per chance and with formidable past has rightly been viewed with caution by the learned trial Judge. Ocular account is in conflict with medical evidence inasmuch as according to the crime report both the appellant, as well as, Abdul Razzaq, co-accused, are assigned one blow each to the deceased, whereas according to the initial medical examination, Medical Officer noted solitary injury on the head, its impact on the eye has been utilized by the witnesses to array the latter in the crime. Deputation of Sakina Bibi to monitor deceased's arrival so as to inform her son about deceased's arrival is also an aspect of the case that requires a pinch of salt. Certainly there was no occasion for the learned High Court to convert appellant's acquittal into conviction after it had itself disbelieved prosecution evidence qua two out of three accused. one with an identical role." It is observed that the medical evidence neither pinpoints the accused nor establishes the identity of the accused, and at the most can depict the locale of injury, duration, the weapon used etc. and medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered supporting evidence only to the extent of specification of the seat of injuries, the weapon used, duration, the cause of death etc., a reference in this context can be made to the cases of Muhammad Sharif and another v. The State (1997 SCMR 866), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Dildar Hussain v. Muhammad Afzaal alias Chala and others (PLD 2004 SC 663), Abdul Majeed v. Mulazim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State (2017 SCMR 986).
13. Coming to the recovery of iron rod allegedly used in the commission of offence by the appellant Anwar, on scanning the evidence of prosecution in respect of recovery, it is established that iron rod was foisted upon the appellant to strengthen the case of complainant. The mashir of recovery PW-6 namely PC Abdul Raheem deposed that he along with SHO Mazhar Ali Jatoi, PC Riaz Chandio, PC Arz Muhammad Malik and accused Anwar preceded on police mobile from police station vide entry No. 07 at 1100 hours and stopped the vehicle at the water course and alighted from the police mobile, thereafter led them into his otaq and took out an iron rod from its ceiling which was a thatched but type and produced the same before SHO Mazhar All Jatoi by disclosing that it was the same iron rod with which he had committed murder of deceased Mahboob. The iron rod was wrapped with a shining plastic and it was blood stained. This witness had not deposed a single word that after the recovery said iron rod was sealed. However he identified the iron rod present in court in sealed condition as same. The SHO Mazhar All Jatoi (Investigation Officer) had not stated a single word in his chief-examination that the iron rod was wrapped with a shining plastic and it was blood stained nor he stated a single word that he sealed the iron rod at the time of its recovery. He also not disclosed the names of other police officials who were with him at the time of recovery of the iron rod. The Investigation Officer also admitted that the date of recovery is not mentioned on sealing cloth of iron rod. The said iron rod was not sent for FSL nor was any report produced by the prosecution before the trial court. All these facts and the circumstances makes the recovery of iron rod from the appellant Anwar as doubtful. The incident took place on 01-04- 2017 and the appellant Anwar was arrested on 11-04-2017 whereas recovery of iron rod was shown on 16-04-2017, after about 16 days from the incident. and 5 days from the arrest of accused Anwar.
It is not expected from an accused person to keep such weapon (stained with blood) as souvenir because during the said period there was ample time to destroy or at least washout the said weapon. Reliance is placed on the cases Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) and Muhammad Asif v. State (2017 SCMR 486).
14. It is observed that the normal practice and conduct of culprits that when they select night time for commission of such crime, their first anxiety is to conceal their identity so that they may go scot-free unidentified and in that course they try their level best to conceal or destroy each piece of evidence incriminating in nature which, might be used against them in the future thus, human faculty of prudence would not accept the present story [of recovering the iron rod from the otaq of the appellant] rather, after committing crime with the iron rod, the appellant could throw it away anywhere in any field, water canals, well or other place and no circumstances would have chosen to preserve it in his own otaq if believed so because that was susceptible to recovery by the police.
Availability of the water course near the place of recovery has been admitted by the witness of recovery PC Abdul Raheem by stating that they left police mobile at the water course and alighted from the police mobile. Even otherwise, recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case as has been held by the Honourable Supreme Court in cases of Saifullah v. State (1985 SCMR 410), Ali Muhammad v. Bashir Ahmed (2003 SCMR 868), Israr-Ul-Haq v. Muhammad Fayyaz (2007 SCMR 1427) and Hayatullah v. State (2018 SCMR 2092).
15. It is a well-established principle of administration of justice in criminal cases that a 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 irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of the doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to a naught as has been held by the Honourable Supreme Court of Pakistan in case of Muhammad Luqman v. The State (PLD 1970 SC 10).
16. It is a well-settled principle of law that the prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession as has been held by Honourable Supreme Court of Pakistan in case of Tariq Pervez v. State (1995 SCMR 1345). The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep- rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments (hudood) when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him 'accused] let him have his way, because the leader's mistake in pardon is better than his mistake in punishment." The Honourable Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (peace be upon him) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." Reliance also is placed on the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
17. Keeping in view the said golden rule of giving the benefit of doubt to an accused person for safe administration of criminal justice, I am firm in the opinion that all the evidence discussed above is completely unreliable and utterly deficient to prove the charge against the appellants beyond a reasonable doubt. Resultantly, the Criminal Appeal No.S-68 of 2020 is allowed and the Judgment dated: 21.10.2020 passed by the Additional Session Judge/MCTC Ubauro in Session case No. 115 of 2017, FIR Crime No. 25 of 2017, P.S. Khenju, under sections 302, 147, 148, 149, P.P.C. (as per impugned judgment Sections 302, 34, P.P.C.) is set aside and the appellants Anwar son of Surio Shar and Muhammad Haneef son of Khando are acquitted of the charges. They shall be released forthwith if they are not required to be detained in some other custody case.
18. The above appeal is disposed of in the above terms.