AMJAD ALI SAHITO, J. By filing the instant Crl. Appeal, the appellants Muhammad Eissa and Muhammad Yousif have assailed the judgment dated 14-09-2009 passed by learned IInd Additional Sessions Judge Khairpur in Sessions Case No. 326 of 2008 Re: "The State v. Muhammad Eissa and others" arising out of Crime No. 136/2008, offence under sections 302, 324, 147, 148, 189 and 120-B, P.P.C., registered at Police Station Kotdiji, District Khairpur, whereby co-accused Irshad, Amb alias Habibullah, Khamiso and Shareef have been acquitted, while the appellants/accused Muhammad Eissa and Muhammad Yousif - have been convicted for the offence under section 302 (b), P.P.C. as Ta'zir and sentenced to suffer Imprisonment for life and to pay fine of Rs.50,000/- each to the legal heirs of deceased Karim Dad and in default thereof, to further undergo R.I for six months and further convicted for the offence under section 324, P.P.C. and sentenced to suffer R.I for 7 years and to pay fine of Rs. 5000/- each and in default whereof to further undergo R.I for 3 months; simultaneously there were also convicted and sentenced for an offence under section 337-A (iv), P.P.C. to undergo R.I for 5 years and to pay the amount of Rs. 10,0001- each as Arsh to injured Mst.
Khanzadi for the offence under section 337-F(iii), P.P.C. to undergo R.I for 3 years and to pay a fine of Rs. 10,000/- each as daman to injured Mst. Khanzadi, with the benefit of section 382-B, Cr.P.C.
2. The brief facts of the prosecution case is that complainant Muhammad Ramzan Shambani lodged the FIR on 27-05-2005 alleging therein that Karim Dad aged about 35 years was his son, who has contracted love marriage with Mat. Khanzadi (daughter of accused Muhammad Eissa).
According to private Faisla, the complainant party give the hand of one girl and Rs. 150,000/- in lieu of that marriage. Despite Failsa, Muhammad Eissa and his relatives were annoyed with the complainant party and expressed that they will murder Karim Dad. On the day of the report, after eating the night meal, Karim Dad along with his wife Mst. Khanzadi were present on the roof of the house; Karim Bux another son of the complainant and other house inmates went to sleep in the courtyard of the house. At about 11-00 pm the complainant woke up on the noise and barking of the dogs, where they saw and identified accused Irshad, Amb, Yousif alias Kevro (Present appellant), Muhammad Eissa, Shareef all by caste Shambani armed with guns entered in the house and overpowered upon the complainant party. Due to fear of weapons, the complainant remained silent. The accused persons with the support of a ladder went over the roof and made "straight fires upon Karim Dad and Mst. Khanzadi to commit their murder. The complainant party raised cries, which attracted co-villagers, the accused persons on seeing them, escaped away from the spot. The complainant party found that Karim Dad sustained firearm injuries at his chest and left arm, blood was oozing and he has died while Mst. Khanzadi sustained firearm injuries at her right shoulder, mouth/jaw and blood was oozing. The dead body of the deceased Karim Dad and injured Mst. Khanzadi was brought to the police station and lodged the above FIR.
3. During the investigation, police secured 02 empty cartridges of 12 bore and bloodstained earth from the place of the incident. On 10-06-2008 police arrested accused Muhammad Eissa and Muhammad Yousif alias Kevro, who on 22-06-2008 voluntarily produced unlicensed single barrel guns of 12 bore from under the bushes near the house of accused Muhammad Shareef in village Bahar Shambani and both the accused disclosed that their guns were the same which they used while murdering Karim Dad and caused injuries to Mst. Khanzadi. On 24-06-2008 statement under section 164, Cr.P.C of PWs namely Karim Baldish and Mst. Khanzadi were recorded by learned 1st Civil Judge and J.M Kotdiji. After conducting the usual investigation the I.O. submitted a report under section 173, Cr.P.C (Challan) before the court of law showing accused Muhammad Eissa and Muhammad Yousif alias Kevro in custody, while accused Irshad, Amb alias Habibullah, Khamiso and Shareef were shown as absconders, who subsequently appeared and joined the trial.
4. After supplying the case papers, the charge against the accused Muhammad Eissa, Muhammad Yousif alias Kevro, Irshad, Amb alias Habibullah, Khamiso and Shareef was framed, to which they pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has examined all the material witnesses i.e Complainant Muhammad Ramzan Shambani, PWs Karim Bakhsh, Mst. Khanzadi, medical officer Syed Hassan Shah, Magistrate Mr. Muhammad Murad, PW/mashir Abdul Khaliq, women medical officer Dr. Zahida Parveen and investigation officer SIP Imam Bux Korai. All the prosecution witnesses have produced their respective documents during recording evidence before the learned trial court, thereafter the prosecution has closed its side. Accused Muhammad Eissa and Muhammad Yousif alias Kevro have examined themselves and they produced a copy of the judgment passed in under Arms Ordinance case, in which they both have acquitted. Accused Irshad, Amb alias Habibullah, Khamiso and Shareef have also recorded their statements under section 342, Cr.P.C, however, neither they examined themselves on oath nor any defence witness. After hearing learned counsel for the parties, the learned trial Court passed the Judgment dated 14-09-2009 by acquitting the accused Irshad, Amb alias Habibullah, Khamiso and Shareef while appellants/accused Muhammad Eissa and Muhammad Yousif were convicted as above, hence this appeal. During the pendency of the appeal, appellant/accused Muhammad Eissa was expired due to natural death inside the Jail, such report received from the Superintendent Central Prison Khairpur, which is also available on record, hence the case against appellant/accused Muhammad Eissa was abated vide order dated 30-11-2016, while the appeal proceeded against appellant Muhammad Yousif.
6. Mr. Noor Muhammad Soomro advocate for appellants/accused contended that appellants arc innocent and have falsely been implicated in this case by the complainant due to a dispute over the matrimonial affairs, which the complainant himself has admitted in the FIR; that perusal of FIR shows that no specific role was attributed against any of the accused and general allegations were leveled against all the accused persons; that through the same set of evidence co-accused Irshad, Amb alias Habibullah, Khamiso and Shareef were acquitted while appellant/accused Muhammad Yousif and deceased accused Muhammad Eissa was convicted; that appellant/accused was acquitted from the offshoot case of Arms Ordinance; that the alleged incident has taken place in the dark hours of the night, hence the identification of accused is doubtful; that prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore he prays for acquittal of the appellant/accused. In support of his contention, he placed his reliance on cases reported as 2005 PCr.LJ 364 (Munwar Iqbal v. The State), 2010 MLD 864 (Khuda Bux v. The State), 2013 YLR 1619 (Mumtaz Ali and another v. The State), 2006 SCMR 1605 (Umar Farooque v. The State), 2006 SCMR 06 (Akhtiar Ali and others v.
The State), 2016 SCMR 1763 (Shahbaz v. The State), 2017 SCMR 486 (Muhammad Asif v. The State), 2019 SCMR 1448 (Shewaiz Rasool alias Shabbi v. The State and others), 2019 SCMR 2006 (Munir Ahmed and others v. The State and others), 2021 SCMR 455 (Liaquat Ali and others v. The State and others).
7. On the other hand, learned Additional Prosecutor General assisted by Mr. Aijaz Ali Maitlo Advocate for the complainant argued that the complainant and witnesses have fully implicated the accused in the commission of the offence and fully supported the prosecution case; that there are no material contradictions in the evidence of prosecution witnesses, hence prosecution has proved its case against the accused beyond a reasonable doubt, therefore the judgment passed by learned trial Court does not require any interference and same may be maintained.
8. I have heard learned counsel for the parties and have minutely gone through the material available on record with their able assistance.
9. On the evaluation of the material brought on the record, it appears that a person was killed and a lady was injured just for the reason that they have contracted a love marriage. The perusal of the FIR and other material shows that the complainant has not attributed a specific role against any of the accused and he has leveled general allegations against all the accused persons and it was a dark night incident. The question arises as to how in a dark night, the witnesses were able to identify the accused and the weapon in their hands-on lantern light. The motive set-up was not only weak and feeble but also not established. The impugned judgment shows that on the same set of evidence, the learned trial Court has acquitted co-accused Irshad, Amb alias Habibullah, Khamiso and Shareef while the appellants were convicted. Once prosecution witnesses were disbelieved with respect to a co-accused, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature. The FIR shows that the accused persons went over the roof where the deceased Karim Dad and his wife Mst. Khanzadi has slept, and the question arises as to how the complainant and PW Karim Bux saw the accused persons while committing the occurrence when they were sleeping in the courtyard of the house. A Court of law cannot grant a license to a witness to tell lies or to mix truth with falsehood and then take it upon itself to sift the grain from the chaff when the law makes perjury or testifying falsely culpable offence. It may be observed in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. If a witness found by a Court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude invariably be proceeded against the committing perjury, therefore I am cognizant that it is doubtful that the occurrence was unseen. The possibility cannot, therefore, be dismissed that an actual eyewitness might have shared his account with the Deceased's family while refusing to become a witness himself, and thereafter false witnesses were planted in order to state and affirm the anonymous witness account narrated to them. Even in such circumstances, a court cannot affix guilt on the basis that while the witnesses may not be truthful or eyewitnesses to a crime at all, their account of the events that transpired and claimed the life of the deceased seems plausible. If a single circumstance created a reasonable doubt in a prudent mind regarding the guilt of the accused, the benefit of the doubt must be granted to the accused. The accused is entitled to the benefit of such doubt not as a matter of grace, but as a matter of right. No matter how heinousness of the crime in question should not influence the mind of the Judge as the court is under a duty to assess the probative value of every piece of evidence in a dispassionate, systematic and structured manner without being influenced by the nature of allegations. The conjecture and probability were not substitutes for proof and if courts were to decide criminal matters on high probabilities "the golden rule of granting benefit of the doubt to the accused person, which is a dominant feature of the criminal justice system. The court should punish the guilty once the guilt is proved in accordance with the law and not to punish someone suspected of having committed a crime". This definition is essential to ensure the safety of the criminal justice system, as at stake on the one hand is the ability of criminal justice to bring the offender to justice and on the other hand what is at stake is human life and liberty. guaranteed by Article 9 of the Constitution. 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 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 Aram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."
10. The complainant had disclosed that all nominated accused persons in the FIR fired upon Karim Dad and Mst Khanzadi. Karim Dad died on the spot while Mst Khanzadi survived. He further disclosed that after the incident with the help of the witnesses took deceased Karim Dad and injured Mst. Khanzadi appeared at the police station and lodged the FIR on the same day at about 1200 hours a night. Whereas in his evidence he deposed that after the incident along with neighbours including Dr. Mushtaque went to the police station and lodged FIR. At about 12-00 midnight police visited the place of incident and prepared the memo of the place of incident and took the dead body to hospital for post mortem on the same night and on next day Mst. Khanzadi was taken to the hospital for treatment. In cross-examination, he admitted that he reached the police station at about 12-30 midnight. Police came on the spot at about 11-00 or 12- midnight. "We had taken Mst Khanzadi to Nawab Shah hospital on next day of incident, where she remained admitted for 5/6 nights.... We went to police station in Datsun Pickup. Datsun was brought by police, in that Datsun, we went to P.S for registration of FIR." There was dispute of deceased Karim Dad with Imtiaz over the street and Karim Dad had shown the pistol to Imtiaz.
11. P.W-2 Dr. Syed Hassan Shah has not supported the version of the complainant in his evidence he disclosed that on 28.05.2008 he was posted Medical officer at RHC Kotdiji and on the same day he received the dead body of deceased Karim Dad through PC Manzoor Hussain for post mortem at about 7 a.m he started the post mortem and completed at 8.00 am and found six firearms injuries on the dead body. The duration between injury and death was 1/2 hours and between death and post mortem was 8 to 9 hours. He produced a letter of police Ex-10 shows overwriting on the date.
In cross-examination, he admitted that he received the dead body at about 0645 am. Whereas PW-3 Karim Bakhsh has deposed contrary to the evidence of the doctor as well as the complainant. He stated in his evidence that the dead body was taken at about 12.00 or 12.30 midnight to the hospital for post mortem. They received the dead body in the morning time after post mortem. He further admitted in his cross-examination that we took the injured Mst. Khanzadi to Kot Bangalow Hospital and then brought her at Khairpur hospital where she remained admitted for two days and therefrom she was taken to Hyderabad Hospital... The distance between police station and our house will be about 200 or 250-kilo meters or even more. I and Muhammad Ramzan had gone to police station on motorcycle for giving information to police... Police came on the spot in Government mobile.... We had taken Mst. Khanzadi to Hospital along with dead body. We reached Hospital at about one (I) a.m of the same night". It is strange to note here that the PW further admitted that the doctor started post mortem and they remained in the hospital for about 2 hours. After post mortem, the dead body was returned to them and Mst Khanzadi/injured was with them.
12. From the perusal of the FIR it appears that after taking a meal the deceased and his wife were sleeping on the roof of the house and the complainant and his son/PW Karim Bux were sleeping in the courtyard of the house and on the barking of the dogs they woke up and witnessed the incident but both have not disclosed they were accompanied with the accused person on the roof.
Whereas injured/PW Mst Khanzadi disclosed that the accused caused the murder of her husband Karim Dad and injured her by fire shots. During their crises, her father-in-law and bother-in-law came there. In her cross-examination, she deposed that "I was unconscious when I was taken to Kotdiji P.S. I do not know how I was taken to police. None of villagers came on the spot at the time of incident. My father-in-law and Karim Bux took me. I do not remember time when 1 reached Khairpur Hospital when I left hospital I came in sence on next day of the incident at evening time".
13. The I.O of the case secured 2 empty cartridges from the place of the incident. During the investigation, the police arrested the accused namely Yousif and Muhammad Essa. On 22.06.2008 both accused person-produced their crime weapons viz, guns to the I.O. of the case. It is important to note here that the I.O. of the case has not produced the Chemical Examiner report nor Ballistic Expert report in his evidence but the same was produced through statement Ex-59 by the learned DDPP.
14. In the instant case the learned trial court convicted the appellants by relying upon the evidence of the complainant, eyewitnesses, police officials and medical evidence so also Balastic expert's report received from the office of the Forensic Science Laboratory, On the same set of evidence acquitted the appellants Irshad, Amb alias Habibullah, Khamiso and Shareef on the ground that no specific role has been assigned against them. The complainant/State had not filed an acquittal appeal against them. Only the difference between the conviction of the appellant and acquittal of the co-accused was that the recovery was effected from the appellant and the same was sent to the office of Forensic Science Laboratory and received the report in positive. On the other hand, the appellant Yousif while recording his statement denied the allegation and produced the judgement dated 23.06.2009 passed in crime No. 174 for an offence under section 13 (e) A.O of P.S Kotdiji, wherein the learned Civil Judge and J.M Kotdiji acquitted the appellant and no acquittal appeal was filed by the complainant or State. It is settled law that medical evidence, motive, recovery and for that matter absconding of the appellant are merely supportive/corroborative pieces of evidence. There can be no denial to the legal principle of law that it is always the direct evidence which is material to decide a charge. The failure of direct evidence is always sufficient to hold a criminal charge as not proved. In the matter in hand, no direct evidence is available on the record to maintain the conviction and sentence against the appellant. In this context, reliance is placed upon the case of Zaffar 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 pieces 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.
15. The prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. if the prosecution fails to discharge the benefit of that doubt is to be given to the accused person as of right, not as of concession. Its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person. The rule of giving benefit of doubt to the accused person is essentially a rule of caution and prudence and is deep-rooted in jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "Ten guilty persons should be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments [hudood] when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way because the leader's mistake in pardon is better than his mistake in punishment". Reliance is placed on cases reported as "Muhammad Luqman v. State" PLD 1970 SC 10, Tariq Pervez v. State, 1995 SCMR 1345, Musnad Abi Huthayfa, Hadith No.4. Kitab ul Hadood, p. 32, relied upon by the Federal Shariat Court in Kazim Hussain v, Stare, 2008 PCr.LJ 971, Mishkatul Masabili (English Translation by FazI ul Karim) Vol. g p. 544, relied upon by the Federal Shariat Court in State v. Tariq Mahmood, 1987 PCrLJ 2173; Sunnan Tarimzi. Hadith No, 1344, Kitab ul Hadood. Jail Petition No.147 of 2016 30 him) in Ayub Masih v. State 37 in the English translation thus: "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
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 the prosecution story is adduced by the prosecution. I am of the view that in the present case, the prosecution story is engulfed under the thick clouds of doubt and the learned trial Court has not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding the appellants guilty of the offence. Resultantly, an instant appeal is allowed. The conviction and sentence awarded to the appellant Muhammad Yousif are hereby set aside and he is acquitted of the charge by extending him the benefit of the doubt. The appellant is present on bail his surety is discharged. The office is directed to return the surety paper (whatsoever documents) to the surety after proper verification and identification.