AMJAD ALI SAHITO, J.---Through this single judgment, we intend to decide the captioned as Criminal Jail Appeal, Appeal against acquittal, as well as Criminal Revision Application together as all arisen out of one and same incident, FIR as well as a judgment passed by the learned trial Court hence involve common questions of facts and law.
2. Through Criminal Jail Appeal No.S-37 of 2016, appellants/accused Muhammad Hashim Shah, Dilthar Shah, Ashique Shah, Sikandar Shah and Mehmood Shah have impugned the judgment dated 1I.O3.2016, passed by learned Additional Sessions Judge, Matli in Sessions Case No.116 of 2013 (emanated from Crime No.56/2013, registered at Police Station Talhar, under sections 302, 147, 148, 149, 504, 114 P.P.C.), whereby after full-fledged trial, learned trial Court convicted them under section 302(b), P.P.C. and sentenced them to suffer Rigorous Imprisonment for life and to pay fine of Rs.500,000/-, in case of default thereof, the appellants were also ordered to suffer R.I for six months more. The benefit of section 382-B, Cr.P.C. was also extended to them.
3. Through Criminal Acquittal Appeal No.D-10 of 2016, appellants Syed Abdul Sattar and Mst. Asiya Ismail Shah have challenged the judgment dated 11.03.2016, passed by learned Additional Sessions Judge, Math in Sessions Case No.116 of 2013 (emanated from Crime No.56/2013, registered at Police Station Talhar, under sections 302, 147, 148, 149, 504, 114, P.P.C.), whereby he while extending the benefit of doubt acquitted the respondent/accused Mehboob Shah of the charge.
4. Through Criminal Revision Application No.D-66 of 2016, applicant. Syed Abdul Sattar assailed the legality and propriety of the judgment dated 11.03.2016, passed by learned Additional Sessions Judge, Matli in Sessions Case No.116 of 2013 (emanated from Crime No.56/2013, registered at Police Station Talhar, under sections 302, 147, 148, 149, 504, 114, P.P.C.), praying therein to enhance the sentence from imprisonment for life awarded to the respondents Nos. 1 to 5, to death.
5. According to complainant Syed Abdul Sattar on 06.06.2013 at 1100 hours, accused/appellants Muhammad Hashim Shah, Mehboob Shah (acquitted), Dilthar Shah, Ashique Shah, Sikandar Shah and Mehmood Shah duly armed with hatchets came at the land of Ismail Shah (brother of the complainant), situated in -Deh Talhar village Suleman Shah and while using abusive language at the instigation of co-accused Mehboob Shah, all remaining accused had attacked upon said Ismail Shah by causing sharp side hatchet blows on his head and other parts of the body, as a result thereof said Ismail Shah received grievous injuries and died at the spot. Thereafter, the complainant lodged FIR.
6. The police after registration of the FIR started the investigation, arrested the accused persons, made recovery of crime weapons and on completing the investigation, submitted the final report under section 173, Cr.P.C. (challan) against all accused persons before the competent Court of Law.
7. At trial, the charge against the accused was framed by the trial Court to which they pleaded not guilty and claimed to be tried at trial.
8. During the trial, the prosecution examined as many as 10 witnesses, who during their respective evidence/ examination-in-chief produced FIR, mashirnamas, the post-mortem report of the deceased as well as certain other documents. Thereafter, the prosecution closed its side vide Ex. 13.
9. Thereafter, statements of the accused were recorded under section 342, Cr.P.C, wherein they have denied all allegations of the prosecution and claimed their innocence. However, neither they examined themselves on oath nor led any evidence in their defence.
10. The learned trial Court after hearing the learned counsel for the respective parties, and appraisal of the evidence, convicted and sentenced the appellants in a manner as stated above, whereas co-accused Mehboob Shah has been acquitted by extending him the benefit of the doubt. The conviction and sentence, recorded by the learned trial Court, have been impugned by the appellants before this Court by way of filing the captioned criminal jail appeal.
11. Mr. Muhammad Hashim Leghari, learned counsel for the appellants in Cr. Jail Appeal No.S-37 of 2016 submits that the impugned judgment is against the law and facts of the case; that the appellants are innocent and they have falsely been implicated in the case; that all the material witnesses cited/examined in the case are closely related inter-se, hence are chance witnesses; that the medical evidence conflicts with ocular evidence; that unnatural conduct of the witnesses appeared in the evidence as they were three in numbers but they did not try to save the deceased; that no independent witness has been cited by the prosecution; that there are same mashirs in all the mashirnamas. He lastly prayed for acquittal of the appellants.
12. While refuting the above contentions, Learned counsel for the complainant as well as learned Additional Prosecution General, appearing for the State argued that the names of the appellants transpire in the FIR and they have actively participated in the commission of the offence; that the appellants have committed pre-planned and intentional murder of the deceased; that no proof of enmity was brought by the prosecution which may justify their false implication in this case by the complainant party being interested witnesses; that ocular account is consistent with medical as well as circumstantial evidence. He further argued that no material contradiction and discrepancy is pointed out by the learned defence counsel to show their false implication in this case, therefore. in such circumstances, the learned trial Court has rightly awarded the conviction and sentence to the appellants following the law. He lastly prayed for the dismissal of the instant appeals. In support of his contentions, learned counsel for the complainant has relied upon the cases of Talal Ahmed Choudhry v. The State (2019 SCMR 542), Muhammad Sharif and others v; The State and others (2019 SCMR 1368), Amanat Ali v. The State (2017 SCMR 1976), Ghulam Muhammad and another v. The State and another (2017 SCMR 2048), Zafar lqbal and others v. The State (NLR 2014 Criminal 1), Akhmat Sher and others v. The State (2019 SCMR 1365), Muhammad Akram alias Akrai v. The State (2019 SCMR 610), Abdul Rashid alias Sheda Mow and another v. The State (2003 SCMR 799), Ghulam Sarwar v. The Slate (2019 YLR 2530), Roshan Ali v. The State (2019 MLD 1542), Aijaz Nawaz alias Baba v. The State (2019 PCr.LJ 1775), Mobashar Ahmad v. The State (2009 SCMR 1133) Muhammad Sadlq v. The State (2011 SCMR 888), Muhammad Anwar v. The State (2017 SCMR 630), Afzal and another v. The State (2007 SCMR 315), Muhammad Riaz v.
Muhammad Zaman and Ishtiaq (NLR 2005 Criminal 514), Muhammad Shari}' v. Muhammad Javed alias Jeda Tedi and S others (PLD 1976 Supreme Court 452), Sh. Muhammad Abid. v. The State (2011 SCMR 1148), Lakhan alias Chalho and others v. The State and others (2017 PCr.LJ Note 258), Munir Ahmad v. The State (2020 SCMR 968), Muhammad Fazil v. The State (1995 SCMR 1330), Muhammad Younas and another v. The State and others (1990 SCMR 1272), Kouro and 5 others v. The State (2013 YLR 1215) and copy of judgment dated 20.04.2020, passed by this - Court in Special Criminal A.T. No.261 of 2018 and others.
13. Learned counsel for the complainant, who is also appearing on behalf of the appellants in Cr.
Acq. A. No.D-10/2016 and for the applicant in Cr. Rev. A. No.D-66/2016, while adopting the arguments put forwarded by learned A.P.G, contended that all present accused/appellants in furtherance of their common intention have committed the murder of the deceased while the acquitted accused Mehboob Shah has instigated them for doing so, hence all appellants as well as acquitted are liable to be awarded capital punishment; that the learned trial Court in its findings has held the appellants as responsible for the commission of the offence, however, has erred in law by not awarding capital punishment which is attracted in the circumstances of the instant case; that the findings rendered by the learned trial Court for not awarding capital punishment are improper, too flimsy, insufficient and ill logical, as all accused are equally responsible for murdering the deceased; that the trial Court while not awarding capital punishment to the present appellants in captioned Cr. Jail Appeal No.S-37/2016 and acquitting the respondent Mehboob Shah, respondent in Cr. Acq. A. No.S-10/2016 despite sufficient and supportive evidence brought on record by the prosecution, has seriously erred, hence the criminal revision and acquittal appeal may be allowed and the impugned judgment may be modified in the terms that all the accused / appellants / respondents are convicted and sentenced to death, and as a result, thereof the criminal jail appeal may be dismissed. As regards the Cr. Rev. A. No. D-66/2016, learned counsel has also placed reliance on the cases reported as Nawab v. The State (2006 SCMR 456), Danyal alias Dani v. The State (2017 MLD 1197), Muhammad Akbar alias Bhola and others v. The State and others (2019 SCMR 2036), Muhammad Mansha v. The, State (2016 SCMR 958), Khalid Iqbal v. Mirza Khan (2015 Cr.LJ 12), Muhammad Sher alias Malang v. The State (PLD 2001 Supreme Court 90) and Nawaz Ali and another v. The State (2001 SCMR 726).
14. We have heard the learned counsel for the respective parties and have gone through the evidence as well as record with their able assistance.
15. On careful perusal of material brought on the record, it appears that the prosecution case solely depends upon the ocular testimony adduced in the shape of evidence of complainant Syed Abdul Sattar and eye-witnesses Syed Anwar Shah and Sultan Shah (PWs-2 and 7) and supported by the medical evidence as well as circumstantial evidence.
16. On analysis of the material brought on record, it is discernible from the FIR Ex. 3/A that on 06.06.2013 complainant lodged FIR at 14:30 hours whereas the incident took place on the same date at about 11:00 hours with the delay of 03 hours and 30 minutes. Further as narrated by the complainant that he was not an eye-witness of the incident but was present in the High Court of Sindh, Circuit Court, Hyderabad being a practicing lawyer. At about 11-30 a.m. he received a mobile call from his brother Syed Anwar Shah that accused persons nominated in the FIR have committed the murder of Syed Ismail Shah in the agricultural land situated in Deh Talhar Village Suleman Shah. On hearing such a story, he reached at Rural Health Centre, Talhar where he saw his brother Ismail Shah lying dead in the mortuary and on the same day at about 02-15 p.m. he came to the police station and lodged the FIR against the accused persons nominated in the FIR. In cross- examination he admitted that in the cause list of High Court dated 06.06.2013, his matter was not fixed but he has tried to clarify that he intended to file the constitutional petition but he failed to disclose the names of the parties. It is important to note here that after the alleged incident the eye-witness of the incident had not shown the place of incident to him/complainant but only information was given to him. Whereas memo of the place of incident Ex-10/C reveals that the same was prepared by Pw-10 A.S.I Ghulam Shabir on the pointation of the complainant inspected the place of vardat on the pointing of complainant at 1600 hours situated at the land of deceased."
17. From the perusal of the record it reflects that PWs/eye-witnesses Syed Anwar Shah and Sultan Shah after the incident shifted the dead body to the Rural Health Centre Talhar for its postmortem report and such information was not given to the SHO of Police Station Talhar. PW-3 Dr. Rasool Bux has deposed contrary to the evidence of above eye-witnesses and stated that on 06.06.2013 he was posted as Medical Officer at Rural Health Centre Talhar. On that date, he received the dead body of deceased Ismail Shah at 12-30 noon times for postmortem examination and report through police letter No.56 of 20.13 Ex.5/A. In his evidence, he further disclosed that the dead body was brought by PC Haji Khan of P.S Talhar. The dead body was identified by Syed Abdul Sattar Shah and Mohib Ali Shah, the brother and cousin of the deceased not by the eye-witnesses. PW-10 I.O/ASI Ghulam Shabir deposed that on 06.06.2013 at 1430 hours complainant Abdul Sattar Shah came to Police Station for registration of FIR against the accused person. After registration of FIR, he visited the RHC Talhar. The dead body was shown by the complainant and prepared memo of injuries, so also prepared Danishtnama of the dead body. If the complainant has given the information to police at 1430 hours (for the first time) then who had informed the police about the incident when the doctor received the dead body 12.30 hours through P.C. Haji Khan.
18. From the above it's clear that neither the eye-witnesses informed the police about' the incident nor the doctor had informed the police that one dead body was lying in his mortuary. And it seems that all were waiting for the complainant to prepare the case against appellants/accused. In the instant case the FIR in question had been lodged after about 3 hours and 30 minutes and, thus, a possibility regarding deliberation before lodging of the FIR could not safely be ruled out of consideration. No explanation whatsoever has been given by the complainant Syed Sattar Shah.
Reliance is placed in the case of Nazeer Ahmed v. The State (2018 SCMR 787). The Hon'ble Supreme Court of Pakistan has held that: "3.......... An FIR in respect of the incident in question had been lodged after three hours and forty minutes and, thus, a possibility regarding deliberation before lodging of the FIR could not safely be ruled out of the consideration."
19. Further after the arrival of the complainant, the police and the doctor started the proceedings of the case. Every person has the right to get justice but with clean hands. In the instant case, it is appeared from discussion below that both the eye-witnesses/prosecution had not approached the court with clean hands rather became tools in the hands of the complainant.
20. PW-2 Syed Anwar Shah who claims to be the eye-witness of the incident deposed that in his presence the accused persons have inflicted the hatchet injuries to deceased Ismail Shah and such incident was also witnessed by the Syed Sultan Shah. They deposed that accused Hashim.
Shah caused the sharp side of hatchet blows on the head of Ismail Shah, accused Mehmood Shah caused hatchet blow with sharp side on the head of Ismail Shah and the finger of his right hand, accused Sikandar Shah also caused hatchet's sharp side blows to Ismail Shah on his head and the first finger of the right hand, accused Ashique Shah also caused sharp side hatchet blow to Ismail Shah on his head and face and accused Dilthar Shah caused sharp side blows to Ismail Shah on his head and the palm of the right hand and after receiving the above injuries Ismail Shah fell on earth and blood was oozing from his injuries. It can happen only in a film scene. But in real life, it is humanely impossible. This is not appealing to a prudent mind that after receiving 10 sharp cutting wounds on the head the deceased, still would remain in standing condition especially when he has received all injuries on his head and face. At the time of the incident deceased was aged about 49 years old. The complainant and his witnesses were moving around at the place of the incident but they did not receive a single injury in the commission of the alleged offence nor did they try to save the bother. As stated by the eye-witnesses that all the five accused persons were inflicting hatchet injuries to the deceased on his head, in such a situation it is difficult to ascertain who caused which injury upon the deceased but the complainant has disclosed in detail the identification of a particular accused with a particular injury. It is a typical culture of our society to throw the wide net to implicate as many family members as possible in the incident. In the instant case, the complainant has involved five sons and one father and has left no male member to pursue the case of appellants. For such a situation the case of Muhammad Zaman v. The State (2014 SCMR 749) can be relied upon.
21. PW Syed Anwar Shah disclosed that the place of incident was the land of the deceased but the doctor or I.O. of the case nowhere in their evidence disclosed that the dead body was with blood and mud as is claimed in evidence, "due to receiving injuries by Ismail Shah he falls down on the earth and blood was oozing from his injuries." The distance between the police station and the place of incident was only 213 kilometres and the time of incident was 11-00 a.m. but the dead body was received by the doctor at 12-30 noontime. The eye-witnesses have not disclosed where they consumed one and half hours and how they shifted the dead body of the deceased to the hospital.
22. PW-7 Syed Sultan Shah who is also the eye-witness of the incident admitted that at the land of deceased Syed Ismail Shah 3 to 4 houses of his Haries are also situated but not a single Hari-was associated as witnesses of the incident, to believe about the happening of the incident as disclosed by prosecution. The eye-witnesses and accused were residing in the same village Syed Suleman Shah. The distance between the place of incident and village was 800 to 900 feet and said village consist of 20 to 25 houses. The deceased Ismail Shah asked him to bring water from his house. Now question is that who had informed the Syed Anwar Shah about the presence of the deceased at his land. He has not seen the accused on the way but subsequently, he had seen the accused at the distance of 10-15 steps when he brought the water. But in the memo of the place of incident nowhere it is written that the police also secured a jug or glass. In cross-examination, he has admitted that "It is correct to say that in my statement under section 161, Cr. P. C. before the police I did not inform my mobile phone number to police through which 1 informed complainant about the incident so also in my statement recorded under section 164, Cr. P.C. It is correct to say that I did not inform the police about time of information about the incident to my brother complainant Sattar Shah......... I do not remember survey number of the land where the incident took place." In the instant case, the complainant and the eye-witnesses of the deceased are real brothers and both the eye-witnesses were chance witnesses who had failed to bring anything on the record to establish the stated reasons for their availability near the deceased at the relevant time. The reason shown by the eye-witness Anwar Shah that he was asked by the deceased to bring a water but he could not submit any evidence to believe that he had brought the water. The eye-witnesses admitted that there were houses of the Haris at the land of the deceased so also 20/25 houses are situated in Village Syed Suleman Shah, but not a single independent person has been produced by the prosecution to receive independent corroboration in this case. Reliance is placed in the case of Mst. Shazia Parveen v. The State (2014 SCMR 1197). The hon'ble Supreme Court of Pakistan had held that: "4....... All the witnesses produced by the prosecution were closely related to the deceased and they were admittedly chance witnesses who had failed to bring anything on the record to establish the stated reasons for their availability near the deceased at the relevant time. Such related witnesses had failed to receive any independent corroboration in as much as there was no independent evidence produced...."
23. It is surprising to note here that both the eye-witnesses namely Syed Anwar Shah and Sultan Shah were informing the complainant about the incident but they have not rushed to the police station when it was at a distance of 2/3 kilometre from the place of the incident to lodge FIR. PW Anwar Shah in his examination of chief deposed that "At about 1.45 pm to 2 p.m. complainant Abdul Sattar Shah reached at RHC Talhar, who also saw the dead body of deceased Ismail Shah and then he went to P.S. Talhar for lodging of the FIR. After lodging of the FIR, police recorded my statement under section 161, Cr. P.C. " Reliance is placed in the case of Zafar v. The State (2018 SCMR 326).
24. PW-3 Dr. Rasool Bux has also not performed his duty honestly. He produced a postmortem report as Ex.5/C.(1) Date/Time dead body received at RHC Talhar June 6, 2013, 12;30 pm (2)
Date/Time postmortem started June 6,2013, 03;30 pm. On general examination of the dead body, he found that a dead body of an adult male lying straight on the mortuary table of RHC Talhar, (1)
Injuries over the left side of the skull, right side of forehead, (2) right head and right forearm. Right eve closed, a left eye opened, mouth closed hands clenched, no post mortem lividity or rigour Mortis seen. Further doctor disclosed "NO Rigor Mortis" seen. The Rigor mortis appears approximately 2 hours after death in the muscles of the face and progresses to the limbs over the next few hours, completing between 6 to 8 hours after death. In the instant case, the time of death was 11-00 a.m. and the postmortem started at 3.30.p.m. It means four and half hours passed but no rigour Mortis developed. When the incident took place in the very hot weather month of June and the dead body was lying openly on the mortuary table, it should have been developed within two hours. PW-3 Doctor Rasool Bux also disclosed that "no post mortem lividity". The lividity means livor Mortis, it can help investigators to determine the time of death. The staining of tissue normally begins within the first two hours after death. A hot climate can accelerate lividity, while a colder air temperature can slowed down considerably. The process can reach its full peak in eight to twelve.
But the doctor says no lividity. The incident took place in June when normally in Sindh, it's very hot weather. Reliance is placed in the case of Mst. Shazia Parveen (cited supra) 4...... The medical evidence had gone a long away in contradicting the eye-witnesses in many ways. The duration of the injuries and death recorded by the doctor in postmortem examination report and rendered the time of death alleged by the eye-witnesses quite doubtful...." Things do not end here, he has made improvements and added six more injuries in the medical certificate. All the injuries received by the injured were external viz on the head and one injury on his face, but the doctor first has written four injuries and then increased up to 10 injuries. Normally the human head is admeasuring 8 x 8 inches. The injuries received by the deceased were not measured by him/doctor nor has shown the distance between the injuries. Even he has not disclosed that after removing the hairs from the head he has counted the injuries but it seems to be that on the direction of the complainant he has increased the number of injuries up to 10 injuries otherwise neither he has opened the abdomen nor thorax to believe that there were internal injuries and subsequently found the further injuries.
25. The danishtnama was also prepared at about 1430 hours in which the complainant Syed Abdul Sattar Shah disclosed that his brother Syed Ismail Shah has been murdered by Syed Hashim Shah and his sons but nowhere has disclosed the names of other accused persons. The complainant claimed that six persons have given hatchet blows upon the deceased but the instant case police arrested the accused Muhammad Hashim on the very same day at about 1845 hours and after two days he has produced the hatchet stained with human blood. It is against human phycology as in such circumstances accused always tries to destroy the evidence by removing blood stain from hatchets or clothes. The I.O. of the case denied the suggestion that accused Hashim Shah came at the police station for registration of FIR of the murder of his brother but he has arrested him. "It is incorrect to say that that on 6.6.2013 accused Hasim Shah came at P.S Talhar for lodging of the FIR of murder of his brother Ismail Shah but I arrested accused Hashim Shah at the instance .of the complainant of this case and involved him in this case." The accused Muhammad Hashim was arrested on 06.06.2013; he was produced before the Magistrate on 12.06.2013 after a delay of about 06 days for recording his confessional statement. In his confessional statement, he disclosed that deceased Ismail Shah was his halfbrother. His father contracted three marriages and he died in the year 1984 and deceased by committing fraud transferred all the land in his name. In the year 1999 again he committed fraud and transferred the agricultural land of his mother to his name on which he made so many complaints to the Assistant Commissioner Badin but subsequently deceased filed the case in Civil Court and presently it is pending before the High Court. On the day of the incident, he was present along with his half-brother Anwar Hussain on the land where deceased Ismail Shah came and abused him that why you are here and he had given a slap on his cheek as such he became angry and on that Syed Anwar Shah also became angry and gave Spade (Kodar) on his head and he also inflicted hatchet injuries upon the deceased Ismail Shah and subsequently he died. We have perused the confessional statement of accused Hasim Shah, recorded by the Magistrate in which he had not given the warning to the accused that in case he confesses or not, his custody will not be handed over to the Investigation Officer/ same police. In his evidence, he/ Magistrate tried to fill the lacuna by stating that he had informed him that if he will make or not make the confession, he will not be handed over to the same police. The confessional statement to be relied upon should not only be true, voluntary and believable but should be without fear, favour or any inducement. Further documentary evidence shall prevail over the oral statement made at subsequent stage, contradicting the contents of the documents. (2005 SCM R 515). In another case of Honourable Supreme Court of Pakistan, Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), it has been held that: "At the trial, the Recording Magistrate made crude attempts to rectify the wrong/illegalities, confessional statement (Ex.11). he had committed in -recording the two confessions however, the law of evidence is clear on this point that documentary evidence shall prevail over the oral statement made a subsequent stage, contradicting the contents of documents."
Alleged confessional statement of the accused which was recorded after six days of his arrest cannot be relied upon. Especially when five sons of the father had been booked in the murder case.
From the perusal of the confessional statement, it appears that if there was any dispute between the parties since 1984 then they did not kill the deceased and in the presence of both eye- witnesses killed him by leaving both the witness to depose against them.
26. From the perusal of judgment, the learned trial Court while considering the evidence acquitted the co-accused, Mehboob Shah, on the ground that the prosecution has failed to establish its case against him. As per the prosecution storey, he had instigated the other accused persons. After recording the evidence, the prosecution closed the side and thereafter the statements of appellants were recorded under section 342, Cr.P.C. wherein the different questions were put to the accused persons but they have denied the allegations levelled against them. The question No.6 put to the accused Muhammad Hashim reads as under: "It has also come in evidence that on 12.06.2013 you voluntarily confessed your guilt before the learned 2nd Civil Judge and Judicial Magistrate Badin, who recorded you What hive you to say?"
The answer was It is false and I did not voluntarily confess my guilt before the Magistrate." The provisions as contended in section 342, Cr.P.C. was enacted to safeguard the interest of the accused for the simple reason that the prime object of the section is to enable the accused to explain any circumstance appearing against him in the evidence. The intention of the provision is the furtherance of the ends of justice and to enable the Court to decide the question of the guilt of accused. The whole object for enacting this section is that attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desired to give. In the instant case except accused Muhammad Hashim no question was put to other -accused persons that co-accused Muhammad Hashim voluntarily confessed his guilt before the Magistrate.
As such this piece of evidence cannot be used against the other accused persons hence the evidence of PW-9 Muhammad Tahir, Civil Judge and Judicial Magistrate is discarded to the extent of other accused persons. No question was put to the accused persons concerning the motive set- up by the prosecution at the time of recording their statements under section 342, Cr.P.C. Section 342, Cr.P.C. mandates that all incriminating evidence is to be put to the accused in his statement under that section and the evidence which has not been confronted to accused, conviction cannot be based on such evidence and such evidence has to be rejected or accepted in toto. If any incriminating piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. for his explanation, the same cannot be used against him for his conviction. It is settled law that if any incriminating piece of evidence was not put to the accused in his statement recorded under section 342, Cr.P.C. for his explanation then the same could not be used against him for his conviction. Reliance is place in the case of Muhammad Shah v. The State (2010 SCMR 1009) and Muhammad Fayaz v. The State (2012 SCMR 522).
27. Turning to the motive as set-up by the complainant in his FIR and other eye-witnesses that there was a dispute over the landed property but PW-2 Syed Anwar Shah, an eye-witness of the incident in his cross-examination has denied the suggestion that deceased Ismail Shah filed different cases against the accused persons. He further added that "It is incorrect to suggest that I and my brother Ismail Shah filed different cases of civil and criminal nature before the different Courts and executive officers of the revenue." Therefore, the prosecution has failed to prove the motive (murder of deceased Ismail Shah) against the appellants hence, the real cause of occurrence remained shrouded in mystery. In this context, reliance is placed on the case of Mst.
Nazia Anwar v. The State (2018 SCMR 911) wherein the Hon'ble Supreme Court has held that;- "4....... . that the real cause of occurrence was something different which had been completely suppressed by the both the parties of the case and that real cause of occurrence had remain shrouded in mystery."
All the above material contradiction in the statements of alleged eye-witnesses would lead to obvious inference that the occurrence was neither witnessed by PW Syed Anwar Shah nor PW Sultan Shah and their presence at the spot was doubtful. The evidence of PWs does not appear to be trustworthy and inspired confidence. In this context, reliance is placed upon the case of Zafar v.
The Stare (2018 SCMR 326), wherein the Hon'ble Supreme Court of Pakistan has held that: --
11. Having discussed all the aforesaid aspects of the case, it has been observed by us that medical evidence, motive, recovery and for that matter absconding of appellant are merely supportive/corroborative piece of evidence and presence of eye-witnesses at the place of occurrence at the relevant time has been found by us to be doubtful, no reliance can be placed on the supportive/ corroborative piece of evidence to convict the appellant on capital charge.
(Underline by us)
28. It is a settled proposition of law that the prosecution is bound to prove its case beyond a shadow of a doubt. If a reasonable doubt arises in the prosecution case, the benefit of same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also a well-embedded principle of criminal justice that it is not necessary that there must be so many doubts in the prosecution case if there is a reasonable doubt arising out of the prosecution evidence pricking the judicious mind, the same would be considered sufficient for giving its benefit to the accused. In this respect, reliance can be placed upon the case of Mohammad Mansha v.
The State (2018 SCMR 772);- "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance in this behalf can be made upon the cases of Tarique Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."
30. In view of what has been discussed above, the Criminal Jail Appeal No.S-37 of 2016 is allowed the impugned judgment dated 1I.O3.2016, passed by learned Additional Sessions Judge, Matli in Sessions Case No.116 of 2013 (State v. Muhammad Hashim Shah and others) being the outcome of Crime No. 56 of 2013 registered at P.S. Talhar under sections 302, 147, 148, 149, 504, 114, P.P.C., is set aside and appellants namely Muhammad Hashim Shah, Dil Thar Shah, Ashique Shah, Sikandar Shah and Mehmood Shah are acquitted of the charge. Appellants are in jail, they shall be released forthwith if they are not required in any other custody case. Resultantly, the Criminal Acquittal No.D-10 of 2016 filed against the acquittal of co-accused Mehboob Shah and Criminal Revision Application No.D-66 of 2016 filed for enhancement of sentence are hereby dismissed. The case law relied upon the learned counsel for the complainant is quite distinguishable from the facts and circumstances of the present case hence do not apply to the present case.