KHADIM HUSSAIN TUNIO, J.---Through captioned jail appeal, the appellant has impugned the judgment dated 22.10.2011, passed by the I-Additional Sessions Judge Sukkur, whereby he has been convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 100,000/- (rupees one lac) to be paid to the legal heirs of the deceased, in default whereof to suffer rigorous imprisonment for six months more. The appellant was extended benefit of. Section 382-B, Cr.P.C.
2. Precisely, facts of the instant appeal arising in FIR No. 43 of 2004 are that the complainant's brother Farooq Ahmed had exchanged harsh words with the appellant/accused a few days prior to the incident, leaving them annoyed. On 21.09.2004, the complainant party was present at the land of one Mansoor Samejo when at about 7:00 p.m. they were approached by the appellant Abdul Latif who was empty handed, appellant Sajid Ali with a hatchet, accused Nadir Ali with a T.T. pistol and three unidentified persons accompanying them. After exclaiming their intent to murder Farooq Ahmed, appellant Abdul Latif instigated accused Nadir to fire at him with his pistol which he did so, causing Farooq Ahmed to fall to the ground while raising cries.
3. After conducting usual investigation, case was challaned by the police. A formal charge was framed against the accused to which they pleaded not, guilty and claimed to be tried.
4. At trial, prosecution examined in all six witnesses namely PW-01 SIO Ashfaque, PW-02 complainant Mehrab, PW-03 Din Muhammad, PW-04 mashir Allah Rakhio, PW-05 Dr. Muhammad Ismail and PW-06 SIO Saifullah and they produced numerous documents in their evidence, then prosecution side was closed.
5. Thereafter, statement under section 342, Cr.P.C. of the appellant was recorded wherein he denied the allegations levelled against him and examined himself on oath and also examined DW-01 Shah Nawaz and DW-02 Ghulam Rasool.
6. After hearing the learned counsel for the respective parties, the learned trial Court convicted and sentenced the appellant as stated in supra paragraph.
7. Learned counsel for the appellant has argued that he is innocent and has been falsely implicated by the prosecution; that prosecution has no ounce of evidence to support the charges levied against the appellant; that the FIR is delayed by almost 14 hours for which no plausible explanation has been given; that the learned trial Court has not taken into consideration the entire material available on the record; that the impugned judgment rests upon the testimonies of interested witnesses; that the learned trial Court has also failed to consider the testimonies of defence witnesses examined by the appellant; that the learned trial Court has erred in not applying its judicial mind in identifying that the evidence of interested witnesses lacked independent corroboration; that the complainant party failed to inform the police regarding the occurrence and left the dead body at the place of incident for almost 14 hours; that there are material contradictions in the evidence of the PWs. He therefore prays for the acquittal of the appellant.
8. Learned DPG on the other hand 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; that the trial Court has passed a speaking judgment by appraising all the evidence available on the record; that the delay in the lodging of FIR has been explained; that proceedings against Abdul Latif were abated due to his death and accused Nadir and Waseem were declared as proclaimed offenders; that both the defence witnesses are relatives of the appellant.
9. I have heard the learned counsel for the respective parties and perused the record available before me,
10. In the present case, there is an inordinate delay of almost 14 hours in the lodging of FIR. No explanation whereof was provided for the same and it holds great value in the defence case. The explanation furnished for the same was that the complainant was aged and waited for his brother's arrival from Multan to lodge the FIR. This stance in itself appears to be highly illogical as the least the complainant party could have done was inform the police of the incident promptly and lodge the FIR later on which would have set the procedural instances off, instead they chose to stay mum and let the body rot at the place of incident. This aspect of the case is admitted by the complainant Mehrab Ali is his cross-examination who deposed that "It is a fact that the incident
[had] taken place at 7.00 p.m. and FIR [was] lodged on the following morning day at 8.30 a.m. and throughout [that] time, nobody [had informed the police of the incident]. It is a fact that dead body was lying on the place of occurrence during such time of occurrence and registration of FIR at 9.00 a.m." It is also noteworthy to add that in a matter of two sentences, the complainant already contradicted himself on the time at which the FIR was lodged. Nonetheless, the delay is undisputed and its explanation is lacking. Reliance in this respect is placed on the case of Ayub Masih v. The State PLD 2002 SC 1048), wherein it has been held that:- "The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that 'the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Un-explained inordinate delay in lodging the FIR is an intriguin circumstance which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."
11. The role assigned to the appellant is mere presence at the place of incident while being armed with a hatchet, which too was not recovered by the police. The Investigation Officer also found only two footprints at the place of incident whereas the complainant party has alleged the presence of 7 culprits. The role of murder of the deceased Farooq Ahmed has been solely attributed to the accused Nadir Ali who allegedly fired at him with a T.T. pistol. There is no corroborative piece of evidence available with the prosecution to connect the appellant with the alleged offence. The complainant, in his cross-examination, has deposed that "It is a fact that in those days of occurrence of instant offence, the crop of cotton was standing in the lands of Mansoor Samejo and it was picking season of the crop and its height was above the length of [a] man." To contradict the same, PW-Din Muhammad in his cross-examination deposed that "It is incorrect to suggest that at that time the crop of cotton was standing at the length of above to the height of person. The same cotton crop] was standing at the height of trunk of [a] man. It is incorrect to suggest that the season of crop was picking season." With regard to the distance between the place of incident and nearby village and link road, the complainant has deposed in his cross- examination that "The Village Noraja is situated at the distance of about 80 paces from the place of incident." His deposition was contradicted by PW Saifullah who deposed that "The place of occurrence [is] situated in the lands at the distance of 10/15 paces from metalled road leading towards Noraja Village." Both their depositions were contradicted by PW Din Muhammad, who deposed that "The place of vardat is situated at the distance of one mile from our Village Noraja."
The complainant, again in his cross-examination, deposed that "The place of occurrence was situated 30/40 paces inside the land from link road leading from Noraja to Pano Akil Town." PW Din Muhammad again deposed in the cross-examination that "The place of incident [is] situated at the distance of half mile from [the] road where murder of deceased took place." Besides these contradictions which have already dented the prosecution case enough to warrant an acquittal, the motive as set up by the prosecution is rather confusing as well. Initially, the motive alleged in the FIR by the complainant was that 3 or 4 days prior to the incident, deceased had a heated argument with the accused which left them annoyed and they issued him threats of further consequences. However, there allegedly existed a dispute between the two parties over matrimonial issues as well. With regard to the initial motive, the complainant deposed in his cross- examination that "It is a fact that such exchange of hot words between my brother deceased and accused party [had] not taken place in my presence." In this regard, PW Din Muhammad also deposed that "I do not know if a quarrel [was created] between [both the] parties." 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 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."
12. The Court finds 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 offences charged beyond a reasonable doubt keeping the assertion of the FIR in juxtaposition of the evidence adduced by the prosecution. The involvement of the appellant has become dubious and the same cannot be termed as normal and routine looking to the discrepancies occurred in the evidence of prosecution witnesses. It feels rather illogical as well to note that the accused only shot the deceased once and did not choose to harm the prosecution witnesses and complainant even when the parties were known to each other and knowing full well that in the case of criminal prosecution, those same witnesses would lead to them being hanged for the murder. Reliance in this respect is made to the case of Muhammad Farooq v. The State (2006 SCMR 1707). Nothing of value to the prosecution case was recovered from the arrested accused/appellant. In this regard, we are fortified with decision made in the case titled as "Safdar Abbas and others v. The State and others" (2020 SCMR 219), whereby the Hon'ble Supreme Court has held as under:- "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 PetitionNo.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellant shall be released forthwith, if not required to be detained in any other case."
13. It is well settled principles 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. I am of the considered view that prosecution could not establish the guilt of appellant at home without reasonable doubt. In ease titled as "Tariq Ali Shah and another v. The State and others" (2019 SCMR 1391), the Hon'ble Supreme Court 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."
14. It is also a cardinal principle of criminal jurisprudence that the prosecution must prove its case beyond a reasonable doubt and it is not for the accused to disprove the case against him who may take any and as many defences as he likes to the allegations against him as the onus rests on the prosecution to prove its case beyond a reasonable doubt as held in the case of Muhammad Shah v. The State (2010 SCMR 1009) and if at any point there raise doubts in the prosecution case, the benefit of the same must go to the accused. As was held in the case of Tariq Pervez v. The State (1995 SCMR 1345) that even if there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. Such principle was recently reiterated by the Honourable Supreme Court in the case of Abdul Jabbar v. The State (2019 SCMR 129). Despite all these settled principles, trial Court committed grave illegalities by convicting the appellant Sajid Ali and accused/appellant Abdul Latif who expired during the pendency of the appeal. This failure of the judiciary led to the irreparable loss of life of one accused who, for most of his last years remained under constant threat of prosecution for a crime, on a balance of scales, did not commit. The strength of our criminal justice system depends on its accuracy -its ability to convict the guilty and to clear the innocent. In the absence of this accuracy, grave injustice occurs, not only to the accused/convict, but also to the victim of the case. The real culprit is not brought to justice and the wrongful convicts lose time of their lives which cannot be compensated for in any manner and the judicial system also loses credibility. The conviction recorded by the learned trial Court is rather shocking and cannot sustain.
15. For what has been discussed above, this Court has reached the undisputed conclusion that prosecution has failed to prove its case against the appellant Sajid, therefore instant Criminal Jail Appeal is allowed, the conviction and sentence of the appellant Sajid Ali, recorded by the learned trial Court, is hereby set aside and he is acquitted of the charge by extending him benefit of doubt.
He is present on bail, his bail bond stands cancelled and surety is discharged.