KHADIM HUSSAIN TUNIO, J. Through captioned appeal, the appellant has impugned the judgment dated 04.05.2019, passed by the IIIrd Additional Sessions Judge, Hyderabad, whereby he has been convicted under section 265-H(ii), Cr.P.C., punishable under section 302, P.P.C. and sentenced to death and to pay fine of Rs.200,000/- payable to the legal heirs of the deceased, in case of default in payment, he is to suffer RI for 6 months more.
2. Briefly, facts of the instant appeal arising from FIR No. 35 of 2012 are that on 15.04.2012, the complainant along with his nephews Syed Hyder Ali and Arshad Ali were approached by Faheem, accompanied by two unknown persons, who inquired about complainant's brother, Mairaj, upon which the complainant asked his nephew Hyder to look for him in the room at the upper floor and inform him that Faheem was there to see him. Hyder returned and asked Faheem to meet Mairaj in his room. After about 15 minutes the complainant and his nephews heard noise coming from Mairaj's room and rushed towards the room and saw the companions of Faheem holding the hands of Mairaj while Faheem was causing sharp dagger blows to Mairaj. Upon seeing the complainant party, the accused threw away the dagger and fled away. Mairaj, due to being injured, was lying in a pool of blood and was immediately taken to the Civil Hospital, where the doctors pronounced him dead. Thereafter, the complainant, after performing the funeral ceremony of his brother, appeared at the police station and complained, mentioning therein that some time ago there had been a quarrel between Faheem and his deceased brother Mairaj and its compromise was affected, but despite that Faheem held a grudge, out of which on 15.04.2012, Faheem committed the murder of his brother Mairaj by causing dagger blows, along with two unidentified persons who were said to be recognized if seen again, in the FIR.
3. After conducting usual investigation, case was challaned by the police. A formal charge was framed against the appellant/accused to which he pleaded not guilty and claimed to be tried.
4. At trial, prosecution examined in all seven witnesses namely PW-01 complainant Syed Shahid Hussain Naqvi, PW-02 Syed Arshad Ali, PW-03 Muhammad Imran, PW-04 Muhammad Shamroz, PW-05 Syed Zahid Hussain, PW-06 Dr. Hoto Mal, PW-07 Tapedar Peer Bux, who produced numerous documents in their evidence. Thereafter prosecution side was closed.
5. Statement, under section 342, Cr.P.C. of the appellant was recorded wherein he denied the allegations levelled against him and stated that he came to know regarding this incident through newspaper Jurrat dated 16.04.2012 with a photograph of the deceased and that the deceased had committed suicide. He further stated that he is being falsely implicated in this case and nothing was recovered from his possession. However, he did not examine himself on oath.
6. After hearing the learned counsel for the respective parties, the learned trial Court convicted and sentenced the appellant as stated supra.
7. Learned counsel for the appellant has argued that he is innocent and has been falsely implicated by the prosecution; that the incident was un-witnessed and the prosecution has no ounce of evidence to support the charges levied against him; that allegedly only one accused held a knife, yet the complainant party did not attempt to stop him from committing the murder of the complainant's brother and neither tried to apprehend the accused; that the complainant has admitted that the name of the deceased was not mentioned in column No.4 of the Danishnama, neither was it mentioned that his clothes were blood-stained and consisted of cut marks; that both the eye-witnesses are interested in the case due to being close relatives of the complainant; that in the newspaper Jurrat it was reported that the deceased had committed suicide; that as per the prosecution story it is alleged that 5 people were sitting on one motorcycle which is not possible considering that they carried an injured person on the motorcycle; that there is dispute over landed property between the two parties, which creates serious doubt in the case of the prosecution; that the impugned judgment rests upon the testimonies of interested witnesses; that the learned trial Court has also failed to consider the defence plea taken by the appellant; that the learned trial Court has erred in not applying its judicial mind that the evidence of interested witnesses lacked independent corroboration. She therefore, prays for the acquittal of the appellant.
She has referred the case law reported as Muhammad Sharif and 2 others v. The State (2020 SCMR 1818), Abdul Qayyu m v. The State (2020 YLR 1649), Muhammad Imran v. The State (2020 SCMR 857), Muhammad Ryas v. Ameer Ali (2020 SCMR 305), Hashim Qasim v. The State (2017 SCMR 986), Wajahar Ahmed v. The State (2016 SCMR 2073), Sada Buz v. The State (2016 YLR 463), Irfan Ali v. The State (2015 SCMR 840), Pathan v. The State (2015 SCMR 315), Ali Sher v. The State (2015 SCMR 142), Rahat Ali v. The State (2010 SCMR 584), Muhammad Rafique v. The State (2010 SCMR 385), Noor Muhammad v. The State (2010 SCMR 97), Rahimullah Khan v. Kashif (PLD 2008 SC 298), Muhmmad Farooq v. The State (2006 SCMR 1707), Iftikhar Hussain v. The State (2004 SCMR 1185), Abdullah v. The State (1999 SCMR 1034) and Mehmood Ahmed v. The State (1995 SCMR 127).
8. Conversely, learned D.P.G. has supported the impugned judgment while arguing that the evidence of the witnesses was natural and inspired confidence; that all the evidence proved the culpability of the Appellant. He has relied on the case law reported as Muhammad Nadeem v. The State (2011 SCMR 872). Learned counsel for the complainant has argued in the same line as argued by learned D.P.G.
9. We have heard the learned counsel for the respective parties and perused the record available before us.
10. On the touchstone, case of the prosecution is that during the occurrence, the appellant stabbed the deceased multiple times with a dagger and the medico-legal officer found, in all, over 18 different wounds on the person of the deceased. Perusal of the record reveals that allegedly two unidentified accused held the deceased by hands while he was being stabbed. Upon seeing the complainant party, the appellant allegedly threw the dagger away and all three culprits ran away at the same time. Prosecution has produced two eye-witnesses i.e. the complainant Shahid Hussain and PW-2 Arshad Ali, both the witnesses are closely related to the deceased, the complainant being the deceased's cousin and Arshad Ali being his nephew, thus for safe administration of justice, their evidence will have to be appreciated with great care and caution. It is settled law that evidence of a witness cannot be discarded merely on the basis of a relationship or being interested inter se, however if the testimony of a related/interested witness finds no corroboration by independent pieces of evidence, then in such circumstances the evidence furnished by a related/interested witness can be discarded. A strange aspect of the case here is that the two unknown culprits were shown to be empty handed and accused Fahim was allegedly armed with a dagger which he also threw away after the commission of offence at the crime scene, thus making him empty handed as well before running away from the place of incident. This Court fails to understand why the three persons including two PWs and complainant himself made zero efforts to even try and catch hold of the culprits who were empty handed and allowed all three accused to run away from the room which has only one door and it was occupied by the complainant since the complainant and his nephew have entered the room from the same door.
So also, they were said to have ran down the same set of stairs they came up from, thus also proving a hindrance in their escape yet still the complainant party did not chase the culprits. The complainant Shahid Hussain in his cross-examination merely stated that "We did not try to apprehend the accused." In this regard, PW-2 Syed Arshad Ali deposed in his cross-examination that All three of us reached the room of deceased Mairaj Hussain. Deceased was lying on the ground at the time of us entering the room. As we went in a state of shock, we would not apprehend the accused." The Hon'ble Apex Court had disbelieved the statement of such witnesses with unusual conduct in the case of Muhammad Khan and another v. The State (1999 SCMR 1220). In a similar case before the Hon'ble Supreme Court reported as Muhammad Imran v. The State (2020 SCMR 857), it was observed in relation to conduct of complainant party that:- "These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to' the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments."
(emphasis supplied)
11. The FIR was lodged with a delay of 24 hours even though the police station is said to be at a distance of only 1 kilometer. The occurrence took place on 15.04.2012 at about 1630 hours whereas the FIR was lodged on the next day i.e. 16.04.2012 at about 1700 hours. It is astonishing to note that when the deceased was declared dead upon arrival at the hospital, what prevented the complainant from going to the police station on. the same day and lodging the FIR. Needless to say that such a delay cannot simply be D brushed aside as it assumes great significance and it could be attributed to consultation, taking instructions and calculated preparations of report, keeping in view the name of the assailant open to involving such persons who ultimately the prosecution might wish to nominate. Reliance in this respect is placed on the case law reported as Akhtar Ali v.
The State (2008 SCMR 6) and Muhammad Rafique v. The State (2014 SCMR 1698). Moreover, there was also a delay of over 4 days in recording the statement of the witnesses. Delay in recording the, statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witnesses was not relied upon in the case of Syed Muhammad Shah v. The State (1993 SCMR 550).
12. Now adverting to the corroborative piece of evidence i.e. the Dagger used in the commission of offence that was recovered from the crime scene. The Investigating Officer in the present case failed to collect finger prints from the Dagger so as to establish at a later stage that the same was indeed used by the appellant in the commission of offence. PW-8 SIP Muhammad Tariq in this regard deposed that "It is also correct that neither fingerprints were taken from the weapon of offence, recovered from place of wardat nor the same were sent ,for expert opinion. " No fingerprints G having been taken off the murder weapon mean that nothing is available on the record to link the appellant with crime weapon i.e. Dagger. In these circumstances, circumstantial evidence linking the appellant to the offence is entirely lacking and certainly does not meet the guidelines. In this respect, reliance is placed on the case law reported as Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). Therefore, this piece of prosecution evidence i.e. Dagger, being highly doubtful does not benefit the prosecution case, particularly, when the direct evidence of the prosecution has already been disbelieved by us. Additionally, the case property including Dagger and last worn clothes of deceased were sent to the chemical examiner after 4 days had passed from the day of occurrence. During this time, the said property was said to be deposited in the malkhana per the deposition in cross-examination of PW-8 SIP Muhammad Tariq, however he simultaneously also deposed that "it is a fact that case it (case property) was not in my safe custody. The Incharge of malkhana is not witness in this case." These admissions by the I.O. himself followed by the fact that no entry of Register No.19 kept at police station as per Form No.22.70 of Chapter XXII of Police Rules, 1934 regarding deposit of case property in malkhana is produced raise further doubts in the prosecution case and completely shatter the admissibility of any case property produced before the trial Court.
13. On scrutiny of evidence on the motive of the incident, it has been observed by us that the motive as set out by the complainant, initially was very vague and eventuality. the prosecution witnesses while deposing before the trial Court made improvements in the evidence to attribute motive, and in their efforts completely changed it from one initially attributed. Initially, the motive in the FIR was that the occurrence had taken place due to a quarrel between the appellant Fahim and deceased which was resolved in the past, but Fahim held the grudge and then murdered the deceased Mairaj. But PW-3 Muhammad Imran introduced another motive, he deposed that co-accused Asif had a dispute with his cousin Shamroz and deceased Mairaj was supporter of his cousin Shamroz, therefore, co-accused Asif had assigned the task to the appellant to murder the deceased. Co- accused Asif has been acquitted by the trial Court and neither the complainant nor the State has filed appeal against acquittal of co-accused. In these circumstances, the motive set out by the prosecution remained far from being proved. While motive generally does not hold ' much value but in cases involving murder especially like the one in hand, it holds great importance. In the case of Pathan v. The State (2015 SCMR 315), the Hon'ble Apex Court has been pleased to observe that:- "True that, motive in legal parlance is ordinarily not considered as a principal or primary evidence in a murder case, however, in some rare cases like the present one, the, motive would play a very vital and decisive role for committing a murder. As the motive has almost disappeared for want of proof and being entirely feeble. artificial and not at all appealing to a prudent mind, therefore it has rendered the entire episode of the tragedy doubtful. On this score, too, the prosecution case is liable to be discarded as a whole."
14. In the case of Safdar Abbas and others v. The State and others (2020 SCMR 219) by the Hon'ble Apex Court that:- "Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant... In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge... Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case."
15. Additionally, the prosecution gave up the third eye-witness of the incident namely Syed Haider Ali. This fact clearly establishes that best possible evidence has been withheld and as such a negative inference comes on the record in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984. Reliance in this respect is placed on the case of Lal Khan v. The State (2006 SCMR 1846), wherein it has been held that:-- "The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
16. It is well settled principle of criminal administration of justice that no conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story is adduced by the prosecution. We are of the considered view that prosecution could not establish the guilt of appellant at home without reasonable doubt. In case titled as "Tariq Ali Shari and another v. The State and others" (2019 SCMR 1391), the Hon'ble Supreme Ceurt has held as follows:- "Witnesses do not appear to have come forward with the whole truth and given the formidable past hounding both sides, patent discrepancies cannot be viewed as trivial... It would be unsafe to maintain the conviction. Criminal Appeal No.299-L/2017 is allowed; impugned judgment is set aside; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case. As a natural corollary, Criminal Appeal No. 298-L / 2017 is dismissed."
17. We find that the incident had not taken place in a manner as stated by the prosecution. There are strong circumstances in the prosecution case which expose reasonable doubt and led us to hold that the prosecution has not proved its case against the appellant for the offence charged beyond a reasonable doubt keeping the assertion of the FIR in juxtaposition of the evidence adduced by the prosecution. It is trite law that in case of doubt, the benefit must be given to the accused as a matter of right and not as a matter of grace, and even there is no requirement to suggest many circumstances to create a doubt as even a single circumstance creating a reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit. Reliance in this respect is placed on the cases of Muhammad Ikram v. The State (2009 SCMR 230), Tariq Pervaiz v. The State (1995 SCMR 1345) and Haji Kasim Khan v. Qadeer Khan (2018 YLR 282).
17. For what has been discussed above, this Court has reached the undisputed conclusion that prosecution has failed to prove its case against the appellant Fahim, therefore instant Criminal Appeal No. 74/2019 is allowed, the conviction and sentence of the appellant Muhammad Fahim recorded by the learned trial Court is hereby set aside and he is acquitted of the charge by extending him benefit of doubt. He shall be released forthwith if not required in any other custody case.
18. Accordingly, Confirmation Case No. 07/2019 is answered in the NEGATIVE.