SHAMSUDDIN ABBASI, J. Ahsan, appellant, has challenged the vires of the judgment dated 02.10.2021, handed down by the learned Additional Sessions Judge-I, Jacobabad, in Sessions Case No.522 of 2019, arising out of FIR No.97 of 2019 registered at Police Station A-Section, Thus, for the offences punishable under Sections 365-B, 336 337-F(v), 337-A(iii), 452 and 34, P.P.C., through which he was convicted and sentenced as under:- "In the light of decision of point No.1, I am of the considered view that prosecution has proved its case against present accused namely Ahsan Ali son of Gul Muhammad by caste Golo which connecting him with the offences punishable under sections 452, 365, 336,- 337-A(iii) and 337- F(v), P.P. C., therefore, he is convicted under section 265-H(2), Cr.P.C. and sentenced for offence under section 452, P.P.C. to suffer R.I. for five years with fine of Rs. 50,000/-, he is also convicted for offence under section 336 read with section 337-U, P.P.C. to suffer R.I. for seven years and to pay Arsh amounting to Rs.8,52,241/ -as one-twentieth of Diyat amount, the accused is also convicted for offence under section 337-A(iii), P.P.C. to suffer R.I. for five years as Tazir and to pay Arsh amounting to Rs.4,26,120/- being 10 percent of Diyat amount and he is further convicted for offence under section 337-F(v), P.P.C. to suffer R.I. for five years as Tazir and also to pay Daman amount of Rs. 1,00,000/. The accused is ordered not tb be released till the payment of Arsh and Daman to the victim Mst. Rafia even after completion of sentence of imprisonment. All the sentences are ordered to be run concurrently and benefit of section 382-B, Cr. P. C. is extended to present accused. Accused Ahsan Ali Golo is produced in custody from District Jail Shikarpur, hence he is remanded to Central Prison, Larkana, through Superintendent District Jail, Shikarpur together with warrant of commencement of sentence in order to carry out sentence, accordingly".
2. First Information Report in this case has been lodged on 10.07.2019 at 5:00 pm whereas incident is shown to have taken place on 09.07.2019 at 1:00 pm. Complainant .Tahir Hussain son of Riaz Ahmed has stated that on the fateful day he was present in the house of his father-in-law, situated at Rakhiyal Shah Colony, Thul along with Mst. Rafia, his sister-in-law, Waqar Hussain (brother-in-law), Zahoor Ahmed (relative) and other inmates of the house. It was about 1:00 p.m. Ahsan son of Gul Muhammad, Saleem son of Niaz Ahmed and an unknown lady entered into the house. Ahsan and Saleem took out pistols from the folds of their shalwar and asked them to keep quite. Saleem caught hold Rafia and dragged her out of the house, started motor bike, parked outside the house, while Ahsan got Mst. Rafia seated in between him and Saleem and took her with them on motorcycle with intention to commit Zina, whereas the unknown lady went away on foot taking advantage of narrow streets. Tahir Hussain reported the matter to police and lodged FIR.
3. The duty officer HC Balach Khan registered a case vide FIR No.97 of 2019 for offences punishable under Sections 365-B, 452 and 34, P.P.C. on behalf of the complainant on 10.07.2019 at 5:00 p.m.
4. Pursuant to the registration of FIR, the investigation was followed and in due course the challan was submitted before the Court of competent jurisdiction under Sections 365-B, 336, 337-F(v), 337- A(iii), 452 and 34, P.P.C., whereby appellant was sent up to face the trial whereas accused Saleem was shown as absconder.
5. A charge in respect of offences punishable under Sections 365-B, 336, 337-F(v), 337-A(iii), 452 and 34, P.P.C., was frmed against appellant, to which he pleaded not guilty and claimed trial.
6. At trial, the prosecution has examined as many as eleven (11) witnesses. The gist of the evidence, adduced by the prosecution, is as under.
7. Rafia (abductee/victim) appeared as witness No.1 Ex.9, Tahir Hussain (complainant) as witness No.2 Ex.10, Waqar Hussain (victim's brother) as witness No.3 Ex.11, Dr. Abdul Rashid as witness No.4 Ex.12, HC Balach Khan as witness No.5 Ex.13, HC Muhammad Murad as witness No.6 Ex.14, Imran as witness No.7 Ex.15, PC Abdul Shakoor as witness No.8 Ex.16, ASI Muhammad Hand as witness No.9 Ex.17, ASI Muhammad Bux as witness No.10 Ex. 18 and ASI Muhammad Saleh as witness No.11 Ex.
19. All of them were subjected to cross-examination by the defence. Thereafter, the prosecution closed its side vide statement Ex.2A
8. Appellant was examined under 'Section 342, Cr.P.C. at .Ex.21, wherein he has denied the allegations imputed upon him by the prosecution, professed his innocence and stated his false implication at the instance of one Ayaz (uncle of complainant), who was declared as "Karo" with wife of his father's uncle namely Shahban Golo, but no FIR was lodged. He opted not to make a statement on Oath under Section 340(2), Cr.P.C. nor produce any witness in his defence. .
9. The trial culminated in conviction and sentence of the appellant as stated in para-1 {supra}, hence necessitated the filing of the listed appeal.
10. It is. contended on behalf of the appellant that he is innocent and has been falsely roped in this case by the complainant party at the instance of one Ayaz, the uncle of complainant, who was declared as "Karo" with wife of his father's uncle as otherwise he has nothing to do with the alleged offence and has been made victim of the circumstances. The witnesses being interested and related to each other have falsely deposed against the appellant whose testimony cannot be relied upon without support of an Independent corroboration. The prosecution has neither cited nor produced any independent witness to substantiate its case. Per learned counsel, the occurrence has taken place at 1:00 pm on 09.07.2019 but the FIR has been lodged at 5:00 p.m. on 10.07.2019 and that too without furnishing any plausible explanation, hence possibility of false implication with mala fide intention cannot be ruled out. The learned trial Court based conviction solely on the testimony of interested and related witnesses without support of independent corroboration. The matter needs sympathetic consideration with regard to innocence of the appellant more particularly when ocular account furnished by the related and interested witnesses was not corroborated by any independent witness. The ocular account furnished by the prosecution contradicts the medical evidence adduced by PW.4 Dr. Abdul Rashid, who admitted that Mst. Rafia might have sustained injuries in road traffic accident. It is the case of the prosecution that Mst.
Rafia sustained injuries while throwing from the motorcycle. The material available on record does not justify the conviction and sentences awarded to the appellant and the same is not sustainable in the eyes of the law. The statements of the prosecution witnesses are full of discrepancies and contradictions made therein are fatal to the case of the prosecution. The prosecution has failed to .discharge its legal obligation of proving the guilt of the appellant as per settled law and the appellant was not liable to prove his innocence. The impugned judgment is bad in law and facts and based on assumptions and presumptions without giving valid and strong findings. The witnesses being interested and related to each other have falsely deposed against the appellant.
They were inconsistent with each other rather contradicted on crucial points benefit whereof must go to the appellant. The learned trial Court while passing the impugned judgment has deviated from the settled principle of law that a slightest doubt is sufficient to grant acquittal to an accused.
The Investigating Officer had conducted dishonest investigation and involved the appellant in a case with which he has no nexus. The learned trial Court did not appreciate the evidence in line with the applicable law and surrounding circumstances and based its findings on misreading and non-reading of evidence and arrived at a wrong conclusion in convicting the appellant merely on assumptions and presumptions. The impugned judgment is devoid of reasoning without specifying the incriminating evidence against appellant. The learned trial Court totally ignored the plea taken by the appellant in his defence. Per learned counsel, the appellant has not done any offence and in his Section 342, Cr.P.C. statement too he has denied the whole allegations levelled against him by the prosecution. The learned trial Court did not consider the pleas taken by the appellant in his Section 342, Cr.P.C. and recorded conviction ignoring the neutral appreciation of whole evidence.
The material available on record does not justify the conviction and sentences awarded to the appellant and the same are not sustainable in the eyes of the law. The learned counsel while summing up his submissions has emphasized that the impugned judgment is the result of misreading and non-reading of evidence and without application of a judicial mind, hence the same is bad in law and facts and the conviction and sentences awarded to the appellant, based on such findings, are not sustainable in law and liable to be set-aside and the appellant deserves to be acquitted of the charge and prayed accordingly.
11. The learned State counsel, assisted by the learned counsel for complainant, while controverting the submissions of learned counsel for the appellant has submitted that the FIR has been lodged nominating the appellant with specific role in the commission of offence. The witnesses while appearing before the learned trial Court remained consistent on each and every material point.
They were subjected to lengthy cross-examination but nothing adverse to the prosecution story has been extracted which can provide any help to the appellant and the minor discrepancies in the light of direct evidence have no value in the eye of law and the same can be ignored. Mere fact that the witnesses are related to each other is not sufficient to discard their evidence and they could be termed as independent witness.. Ocular version is corroborated by medical evidence. The role of the appellant is borne out from the evidence adduced by the prosecution. The prosecution in support of its case has produced oral evidence duly supported by the independent evidence adduced by PW Imran, which was rightly relied upon by learned trial Court. The findings recorded by the learned trial Court in the impugned judgment are based on fair evaluation of evidence and documents brought on record, to which no exception could be taken. The plea taken by the defence that appellant had no nexus with the occurrence does not carry weight vis-a-vis providing help to the defence. The prosecution has successfully proved its case against the appellant beyond shadow of any reasonable doubt, thus, the appeal filed by the appellant warrants dismissal and his conviction and sentences recorded by the learned trial Court are liable to be maintained.
12. I have heard the learned counsel for the parties at length, given my anxious consideration to their submissions and have also scanned the evidence and other material available on record carefully with their able assistance.
13. Before touching the evidence brought on record by the prosecution, I deem it conducive to review the charge framed against the appellant by the learned trial Court, which is that:- "I, Munawar Ali Lodhi, Sessions Judge Jacobabad, do hereby charge you accused Ahsan son of Gul Muhammad by caste Golo as follows: That on 9-7-2019 at 01:00 p.m., you along with absconding accused Saleem and one unknown culprit duly armed with weapons, in furtherance of your common intention trespassed in the above house of abductee situated in Rakhiyal Shah Colony, Taluka Thul and having made preparation for causing him hurt, thereby committed an offence punishable under section 452, P.P.C. read with Section 34 and within cognizance of this Court.
Secondly, that on the above date, time and place you along with abovenamed absconding accused and one unknown culprit in furtherance of your common intention on force of weapons kidnapped Mst. Rafia, the sister in law of the complainant with intention to commit zina with her and went away on motorcycle, thereby committed an offence punishable under section 365-B, P.P.C. read with Section 34, P. P.C. and within cognizance of this Court.
Thirdly, that on the above date, time after kidnapping Mst. Rafia thrown her from motorcycle on the road near Udi and she sustained itlaf-i-udw, itlaf-i-Salahiat-i-udw as her teeth, and so also legs and arms broken by fallen on the road and she sustained injuries on her head and other parts of body, thereby committed an offence punishable under sections 336, 337-A(iii), F(v), P. P.
C. read with Section 34, P.P.C. and within cognizance of this Court.
And I hereby direct that you be tried by this Court on the abovesaid charge".
14. Reviewing the contents of the above charge, it is noted that, in essence, there are three major allegations against the appellant. Firstly, that he along with his two companions trespassed into the house of abductee Mst. Rafia having preparation to cause harm, secondly, the appellant with the help of his two companions kidnapped Mst. Rafia with intention to commit Zina with her and thirdly thrown her from motorcycle resultantly her teeth, legs and arms were broken. On the other hand, Mst. Rafia while appearing before the learned trial Court has deposed that after her abduction when they reached at Udi Road, accused Ahsan beaten her mercilessly with iron rod and she became unconscious and regained senses in Taluka hospital, Thul, where she was examined by the Doctor. Police and her relatives also arrived at hospital. From Taluka hospital, she was referred to CMS hospital, Larkana, but her relatives took her to Aga Khan hospital, Karachi for further treatment. This statement of Mst. Rafia clearly shows that she sustained injuries with the blows of with iron rod and not due to throwing from the motorcycle. Surprising to note that the entire charge is silent with regard to the allegation of torture and inflicting injuries with the blows iron rod. It only specifies that accused persons while taking Mst. Rafia thrown her from the motorcycle resultantly she sustained injuries. The charge, thus, is in conflict with the statement of Mst. Rafia recorded before the learned Civil Judge and Judicial Magistrate, Thul under Section 164, Cr.P.C. as well as her evidence adduced before the learned trial Court. Likewise, while examining the appellant under Section 342, Cr.P.C. the learned trial Court did not put a single question to the appellant as to causing torture to Mst. Rafia and inflicting injuries to her with the blows of iron rod.
Here I deem it appropriate to reproduce the appellant's statement under Section 342, Cr.P.C., which reads as under:- "Q. No.1. You have heard the prosecution evidence recorded in open Court in your presence. It is alleged against you that on 9.7.2019 at 1:00 p.m. you along with absconding co-accused Saleem and one unknown culprit, being armed with weapons, in furtherance of your common intention trespassed in the house of abductee situated in Rakhiyal Shah Colony Taluka Thul having made preparation for causing him hurt, on the force of weapons kidnapped Mst. Rafia, the sister-in-law of the complainant with intention to commit zina with her and went away on bike, after kidnapping Mst. Rafia thrown her from bike on the road near Udi and she sustained injuries on her teeth and also legs and arms broken by fallen on the road and she sustained injuries on her head and other parts of body?
Ans. No Sir, it is false.
Q.2 Why the PWs have deposed against you?
Ans. All PWs are related inter-se and interested and they have deposed against me at the instance of one Ayaz who is nekmard as well as uncle of complainant as said Ayaz was declared as Karo with wife of my father's uncle Shahban Golo, but no such FIR was lodged for.
Q.3 Do you want to lead any witness in your defence?
Ans. No Sir.
Q.4 Do you want to examine yourself on Oath?
Ans. No Sir.
Q.5 Have you to say anything else?
Ans. I am innocent and have falsely implicated due to enmity, hence I pray for justice".
15. It is a settled principle of Criminal Law that each and every material piece of evidence brought on record by the prosecution against an accused must be put to him at the time of recording of his statement under Section 342, Cr.P.C. so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused defeats the ends of justice. It is also equally settled that a failure to comply with this mandatory requirement vitiates a trial. I have truly been shocked by the cursory and casual manner in which the learned trial Court had handled the matter of framing charge and recording of the appellant's statement under Section 342, Cr.P.C. which are completely shorn of the necessary details which were required to put to the appellant. It goes without saying that the omissions on the part of the learned trial Court, noted above, were not merely an irregularity but had vitiated the appellant's conviction.
16. Adverting to the evidence of prosecution witnesses, suffice to observe that they have contradicted each other on crucial points. PW.1 Mst. Rafia is the victim/abductee. Though she has supported the case of the prosecution with regard to her abduction by the accused persons, but did not depose a single word as to the case of the prosecution that the injuries on her person were caused while throwing from the motorcycle. She further deposed that on 22.07.2019 police came at Aga Khan Hospital and obtained her LTI because her right arm was broken. She recorded her 161, Cr.P.C. statement to police and also appeared before the learned Magistrate on 31.07.2019 and got her examined under Section 164, Cr.P.C.
17. PW.2 Tahir Hussain is the complainant. He has supported the case of the prosecution with regard to abduction of victim by the accused persons on 09.07.2019 at 1:00 pm and deposed that on the same day of incident at about 2:00 pm they came to know that Mst. Rafia is admitted in Taluka hospital, Thul in injured condition. He along with his relatives went to the hospital and saw Mst. Rafia in injured condition. The MLO referred Mst. Rafia to Larkana hospital, but her relatives took her to Aga Khan Hospital, Karachi due to her serious condition. On next date (10.07.2019) he went to P.S. and lodged FIR at 5:00' p.m. ASI Muhammad Hanif inspected the place of incident on his pointation at 6:00 p.m. in presence of mashirs Abdul Ghaffar and Imran Khoso. On 25.11.2019 he handed over the X-ray reports to MLO Taluka Hospital, Thul.
18. PW.3 Waqar Hussain is the brother of Mst. Rafia. He is said to be the eye-witness of the incident and deposed in the same line as that of the complainant.
19. PW.4 Dr. Abdul Rashid is the Senior Medical Officer posted at Taluka Hospital, Thul. He deposed that on 09.07.2019 Mst. Rafia, aged about 22 years, was brought at hospital by Head Constable of P.S. A-Section, in injured condition. He examined the injured in presence of Medical Superintendent,.
Taluka Hospital, Thul at 1:45 pm and noted four injuries on her person caused by RTA. The injured was then referred to, CMS Hospital, Larkana for further treatment. He received opinion of Dentist of Taluka Hospital, Thul as well as reports from Aga Khan Hospital, Karachi.
20. PW.5 HC Balach is the witness who registered a case on 10.07.2019 and lodged FIR on the complaint of Tahir Hussain.
21. PW.6 HC Muhammad Murad is the witness, who under the direction of SHO visited Taluka Hospital, Thul, on 09.07.2019 and inspected the injuries on the person of Mst. Rafia caused due to an accident.
22. PW.7 Imran is one of the mashirs of memo of site inspection conducted on 10.07.2019. He is also one of the mashirs of memo of arrest of accused prepared on 11.07.2009 at 4:00 pm. He further deposed that on 30.07.2019 he along with Waqar Hussain (eye-witness), Tahir Hussain (complainant) and Abdul Ghaffar took Mst. Rafia to P.S. A-Section, Thul where ASI Muhammad Bux Buriro prepared memo of recording 164, Cr.P.C. statement of Mst. Rafia.
23. PW.8 PC Abdul Shakoor is one of the mashirs of memo of injuries on the person of Mst. Rafia.
24. PW.9 ASI Muhammad Hanif is the witness who conducted initial investigation and recorded statements under Section 161, Cr.P.C. He also conducted site inspection on 10.07.2019 and arrested accused on 11.07.2019.
25. PW.10 ASI Muhammad Bux is the second Investigating Officer. He deposed that on 30.07.2019 Mst. Rafia appeared at P.S. accompanied by Imran and Abdul Ghaffar. He prepared memo of appearance. He produced Mst. Rafia before Civil Judge and Judicial Magistrate, Thul for recording her 164, Cr.P.C. statement, which was recorded on 31.07.2019.
26. PW.11 ASI Muhammad Saleh is the last investigating officer. He received final MLC of Mst. Rafia from WMO, Taluka Hospital, Thul, on 15.11.2019. On the same day he recorded further statement of complainant and after completing the usual .investigation submitted challan in Court.
27. Reviewing the evidence of prosecution witnesses, it is noted that none of them have supported Mst. Rafia that injuries on her person were caused with the blows of iron road and she was subjected to torture by the accused persons. PW.4 Dr. Abdul Rashid (Ex.12), who examined Mst. Rafia and issued Provisional Medical Certificate (PMC) has deposed that the case was seen by him in presence of M.S. and other relevant staff. The injured was in acute emergency condition caused by RTA appeared in Taluka Hospital, Thul. He, however, admitted that Mst. Rafia was examined by him in presence of M.S. and other relevant staff, but did not deny that such injuries were caused in road traffic accident. According to him Mst. Rafia was brought at Taluka Hospital, Thul, on 09.07.2019 at 1:45 pm by Head Constable of P.S. A-Section. There was swelling on her right and left legs and thigh, upper and lower teeth were broken and a lacerated wound measuring 4 cm x 2 cm with heavy bleeding and swelling, all were caused in RTA. Mst. Rafia was referred to CMS Hospital, Larkana, but her relatives took her to Aga Khan Hospital, Karachi. He issued final MLC vide No.310 dated 25.11.2019 on the basis of X-ray and other reports issued by Aga Khan Hospital, Karachi, and admitted that such injuries might be sustained during scuffle or in a road traffic accident. The whole evidence of Medical Officer and the documents brought on record by him are silent with regard to sustaining injuries due to torture or inflicting blows with iron rod. The evidence of Medical Officer, thus, negates the story narrated by Mst. Rafia while appearing before the learned trial Court as well as in her Section 164, Cr.P.C. statement recorded by learned Magistrate. In view of this background of the matter, I am not convinced with the story narrated by Mst. Rafia that when she was, abducted for Zina purposes and accused successfully kidnapped her while taking on motorcycle, instead of committing Zina they brutally tortured her and inflicted serious injuries on her arms, legs, neck, ribs and mandible, which were broken. It does not appeal to a prudent mind that when she was abducted for Zina why such an act was not committed and she was set free by the accused persons only after causing injuries on road. She has narrated a different story that after kidnapping she was subjected to torture by the accused persons and caused injuries by inflicting iron blows. On the other hand, the Medical Officer has given entirely a different story which reflects in provisional certificate that this is a acute case of RTA and MLO also stated in his evidence that injuries on the person of Mst. Rafia might have suffered in RTA, which finds support the plea taken by the appellant for his false implication owing to matrimonial dispute. There is no eye- witness of incident to the extent of injuries sustained by victim Mst. Rafia incident except evidence of PW Rafia. The only evidence of victim is contradictory with the medical evidence.
At this juncture when evidence of victim is contradictory with medical evidence then proprietary of safe administration demands that its benefit goes in favor of accused.
28. The another intriguing aspect of the matter is that according to Medical Officer, Mst. Rafia was brought at hospital in injured. condition on 09.07.2019 at 1:45 pm whereas PW HC Muhammad Murad (Ex.14) in his deposition has stated that he was present at P.S. at 1:30 pm when SHO informed him about arrival of an injured at Taluka Hospital, Thul, with the history of road traffic accident and directed him to go there. He went to hospital and issued letter for providing medical treatment to Mst. Rafia. By stating so, he has contradicted Medical Officer in respect of time of arrival of Mst. Rafia in Taluka Hospital, Thul. Surprising to note that according to Medical Officer Mst. Rafia was brought at hospital at 1:45 pm, but memo of inspection of injuries, prepared by HC Muhammad Murad and placed on record at Ex. 14/A, shows its time of preparation at 1:40 pm. How it is possible that such a memo was prepared at hospital before arrival of Mst. Rafia at hospital, she according to Medical Officer was brought at hospital at 1:45 pm. The complainant (Tahir Hussain) while appearing before the learned trial Court has contradicted the story narrated by him in his FIR by deposing that on 09.07.2019 at 2 p.m., when he reached at hospital and saw Mst. Rafia in injured condition and due to seriousness of injuries she was shifted to Aga Khan Hospital, Karachi, but he suppressed this fact in FIR which was registered by him on next day (10.07.2019) at 5:00 pm which itself make out a case as doubtful. He also contradicted P.W Waqar in his cross-examination that he reached the house of his in-laws before 10 minutes of the incident whereas according to PW Waqar Hussain, Tahir Hussain (complainant) came to their house before one hour of the incident. According to complainant the police informed him about the admission of Mst. Rafia in Taluka Hospital, Thul, whereas PW Waqar Hussain in his cross-examination has admitted that PC Sikandar is their close relative who informed him about the admission of Mst. Rafia in Taluka Hospital, Thul, in presence of complainant. The complainant has stated that there are 15 to 16 houses adjacent to the house of his in-laws whereas according to Waqar Hussain only 3 or 4 houses are situated near to his house.
They have further been contradicted by Mst. Rafia, who in her cross-examination has stated about 4 to 5 houses are situated in their Mohallah. PW Imran in his examination-in-chief has deposed that on 30.07.2019 he along with Waqar Hussain, Tahir Hussain and Abdul Ghaffar brought Mst.
Rafia at P.S. A-Section, Thul, where ASI Muhammad Bux prepared memo of recording 164, Cr.P.C. statement of abductee/victim. On the other hand, ASI Muhammad Bux in his cross-examination has stated that Mst. Rafia came alone at P.S. and her relatives reached after 30 to 45 minutes of her arrival on his call. PW Imran in his deposition has stated that memo. of recording 164, Cr.P.C. statement of Mst. Rafia was prepared by ASI Muhammad Bux Buriro in his presence and in presence of Abdul Ghaffar whereas according to Investigating Officer ASI Muhammad Bux such a memo was prepared by WHC Sahab Nawaz on his dictation. It is the case of the prosecution that when accused persons entered into the house of victim, they took out pistols from the folds of their shalwar and forcibly abducted Mst. Rafia on the show of pistols. The victim Mst. Rafia though has supported this aspect of the matter in her evidence before the learned trial Court, but narrated a differen story in her Section 164, Cr.P.C. statement by stating that Ahsan fired from his gun when entered entering in her house. None of the witnesses have deposed a single E word in her support that Ahsan was armed with gun and he fired a shot from his gun inside the house of victim.
29. At this juncture, it is very difficult fOr me to give due weight to the evidence of prosecution witnesses. The comparison of the statements of Tahir Hussain (complainant), Mst. Rafia (abductee/victim) and Waqar Hussain (eye-witness) established that they not only contradicted each other, but altogether narrated a different and conflicting story. It is, thus, difficult for a prudent mind to ascertain otherwise under the facts and that who was 'deposing true facts, when circumstances of the case, they are the star witnesses of the prosecution and being the central figures, the entire prosecution case revolves upon their testimony, but due to glaring contradictions and discrepancies, noted above, their testimony cannot term to be worth credence. Thus, in no way the statements of either of the witnesses is helpful to the prosecution rather caused a big and irreparable dent and damage to the prosecution case.
30. The prosecution has claimed that appellant was arrested on 11.07.2019 from Benazir Kanto in presence of mashirs Waqar Hussain and Zaheer Ahmed, who are related to complainant party. PW ASI Muhammad Hanif in his cross-examination has admitted that place of arrest of accused was a busy place, but he did not take any effort to join an independent person to act as mashir. This admission, on the face of it, indicates that arresting officer had sufficient opportunity to join an independent person from the place of arrest, but did not bother to associate an independent source to strengthen the case of the prosecution by collecting an independent evidence either at the time of arrest of appellant or during the whole investigation. No doubt the evidence of a related cannot be discarded merely on the ground of his relationship with the complainant party, but his evidence must be scrutinized with a greater degree of circumspection. There is no denial of the fact that the prosecution had sufficient opportunity to collect an independent witness to strengthen the case of the prosecution by corroborating the related witnesses, but no such attempt was made. No explanation in this regard has been furnished by the prosecution and so also no efforts were made by the prosecution to secure the independent witness. It is by now well established principle of law that despite of availability of independent/ neutral witnesses, their non-association draws an inference in view of Article 129(g) of Qanun-e-Shahadat Order, 1984.
Non-compliance of provision of Section 103, Cr P.C. creates serious doubt in the prosecution story.
In this respect, guidance has been taken from the cases of Mushtaq Ahmed v. The State reported in PLD 1996 SC 574 and The State through Advocate General, Sindh v. Bashir and others reported in PLD 1997 SC 408.
31. Insofar as to the contention of learned State counsel that prosecution has produced PW Imran (Ex. 15), who is an impartial and disinterested witness, thus his testimony cannot be discarded merely on the basis, of minor discrepancies, suffice to observe that it is not necessary that a witness, who is neither related to complainant nor inimical towards the accused, always speaks true, but it is the duty of the Court to scrutinize the statement of such witness with utmost care and caution. Reliance may well be made to the case of Muhammad Saleem v. The State (2010 SCMR 374), wherein it has been held as under:-- "The acid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequence. Reference is invited to Muhammad Rafique v. State 1977 SCMR 457 and Haroon v. State 1995 SCMR 1627. Applying the test to the prosecution witnesses, we find that their statements do not come within the ambit of above rule of acceptance of evidence, therefore, no implicit reliance can be placed on such type of evidence without any corroboration which is lacking in the present case".
32. The incident which formed basis of the instant case is shown to have taken place on 09.07.2019 at 1:00 pm and undoubtedly the FIR was lodged at 5:00 pm on 10.07.2019 i.e. after 28 hours of the incident. The prosecution has not been able to furnish any explanation with regard to delay in lodging of FIR. Hence, presumption would be drawn that FIR had been lodged after due deliberations and consultations. It is a well settled principle of law that FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime, thus it has a significant role to play, hence if there is any delay in lodging of FIR and commencement of investigation, It gives rise to a doubt and benefit thereof is to be extended to the accused. Reliance may well be made to the case of Zeeshan alias Shani v. The State (2012 SCMR 428), wherein it has been held by Hon'ble apex Court that delay of more than an hour in lodging of FIR give rise to an inference that occurrence did not take place in the manner projected by the prosecution and time was consumed in making efforts to give a coherent attire to prosecution case, which hardly proved successful.
33. In criminal cases, the evidence produced by the prosecution should be in chain and if the chain is not complete or any doubt which occurred in the prosecution's case that is sufficient to demolish the structure of evidence the benefit thereof must go to the accused especially when the accused had taken a stance of his false implication on account of enmity, which cannot be brushed aside in view of contradictions and discrepancies, referred herein above. In appeal against conviction, the Court is under heavy obligation to assess by thinking and rethinking, lest an innocent person tall a prey to my ignorance of facts and ignorance of law. The Court must not close its eyes to human conducts and behaviours while deciding criminal cases, failing which the result will be drastic and impacts will be far from repair. The cardinal principle of justice always laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons along with guilty one by the prosecution, otherwise, the golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused. In this regard, reliance is placed on a view held by the Hon'ble Supreme Court in the case of Riaz Masih alias Mithoo v. The State (1995 SCMR 1730) and Sardar Ali v Hameedullah and others (2019 PCr.LJ 186).
Likewise, it is a well settled principle of law that involvement of an accused in heinous nature of offence is not sufficient to convict him as the accused continues with presumption of innocence until found guilty at the end of the trial, for which the prosecution is bound to establish its case against the accused beyond shadow of any reasonable doubt by producing confidence inspiring and trustworthy evidence. It is a cardinal principle of administration of justice that in criminal cases the burden to prove its case rests entirely on the prosecution. The prosecution is duty bound to prove the case against accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is either taken or established by the accused and no benefit would occur to the prosecution on that account and its duty to prove its case beyond reasonable doubt would not diminish. The prosecution has not been able to bring on record any convincing evidence against appellant to establish his involvement in the commission of offence charged with beyond shadow of reasonable doubt. Rather, there are so many circumstances, discussed above creating doubts in the prosecution case and according to golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the maxim "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent".
34. The epitome of whole discussion gives rise to a situation that the appellant has been convicted without appreciating the evidence in its true perspective, rather the prosecution case is packed with various discrepancies and irregularities, which resulted into a benefit of doubt to be extended in favour of the appellant. Accordingly, the conviction and sentences recorded by the learned trial Court through impugned judgment dated 02.10.2021 are set-aside and the appellant is acquitted of the charge by extending him the benefit of doubt. He shall be released forthwith if not required to be detained in connection with any other case.