ZULFIQAR AHMAD KHAN, J. Appellant Muhammad Hanif Mughal was tried by learned Sessions.
Judge, Mirpurkhas in Sessions Case No. 10 of 2011, arising out of Crime No.236/2010 registered at Police Station, Satellite Town, Mirpurkhas for offences under Sections 302 and 34, P.P.C., whereby the appellant was convicted under section 265-H (2), Cr.P.C. for offence punishable under section 308, P.P.C. and sentenced to suffer imprisonment for life with direction to pay compensation of Rs.8, 00,000/- to the legal heirs of deceased. In case of default thereof, he was to suffer rigorous imprisonment for one year more. However, benefit of Section 382-B, Cr.P.C. was extended to the appellant.
2. Factum probans of the prose-cution case are that complainant Muhammad Maqbool lodged FIR with PS Satellite Town Mirpurkhas on 14.11.2010 at 1000 hours alleging therein that he resides at above address, his elder brother Haseeb resides in Gulshan Colony, Mirpurkhas and his deceased sister Mst. Nazia Bibi was also residing along with her husband Muhammad Hanif Mughal in Gulshan Colony but at some distance from house of brother complainant. Complainant's sister deceased Mat. Nazia aged about 30 years, was married with Muhammad Hanif Mughal about two years ago. Muhammad Hanif often used to maltreat sister of the complainant. On 12.11.2010 complainant went to his brother Muhammad Haseeb at Gulshan Colony and while returning to his house from house of his brother at about 2315 hours complainant reached near rented house of his sister Mst. Nazia Bibi where he heard cries of his sister Mst. Nazia Bibi. Upon which complainant brought his brother Muhammad Haseeb while running and then they knocked at door but no one opened the door. Complainant and his brother entered in house by jumping over the wall of house where they found that in a room that their brother-in-law Muhammad Hanif and his sister Mst.
Naseem are giving kicks and fists blows to sister Mst. Nazia Bibi and their sister Mst. Nazia Bibi was lying unconscious on the bed. Complainant party raised cries upon which Muhammad Hanif and his sister Naseem fled away. Thereafter, complainant party checked their sister and found many marks of wounds on her body and there was also mark of strangulation around her neck that within sight of complainant party died. Thereafter, complainant informed his brother Muhammad Yaseen at village deh-333 Taluka Kot Ghulam Muhammad through mobile phone, who after arranging conveyance, reached Gulshan Colony and after consultation complainant lodged the FIR with the said Police Station.
3. After usual investigation case was challaned by the police before the court of Magistrate concerned, wherein showing the accused Muhammad Hanif as arrested, while accused Mst.
Naseem as absconder in the relevant columns of the challan/charge sheet. The learned Magistrate i.e. Civil Judge and Judicial Magistrate-I, Mirpurkhas conducted the proceedings under section 512, Cr.P.C. against the absconding accused and having been satisfied about no immediate prospect of absconding accused Mst. Naseem being arrested in the near future, the learned Magistrate declared her (accused Mst. Naseem) as proclaimed offender vide order dated 21.12.2020. Since the offence under section 302, P.P.C. is exclusively triable by the court of Sessions, therefore, the case was later submitted to the Court. In compliance of provision of Section 265-C, Cr.P.C, the copies were supplied to the accused Muhammad Hanif vide Ex.4.
4. The trial Court framed charge against accused as Ex.5, to which, he pleaded not guilty and claimed to be tried vide his plea recorded at Ex.5/A.
5. At the trial, prosecution in order to prove the charge against accused examined PW-1 complainant Muhammad Maqbool at Ex.10, who produced FIR as Ex.10/A, PW-2 Muhammad Haseeb at Ex.11, PW-3 Muhammad Yaseen at Ex.12, who produced mashirnama of sirzamin, mashirnama of clothes of deceased and mashirnama of arrest at Ex.12/A to 12/C, PW-4 Dr. Rehana, who conducted post mortem of deceased and produced letter of police for post mortem, post mortem report of deceased Nazia Bibi, receipt of handing over dead body to police, her letter dated 15.12.2010 addressed to SHO PS Satellite Town Mirpurkhas and Histopathological report at Ex.13/A to 13/E, PW- ASI Riaz Ali at Ex.14, PW-6 Inspector Attaullah, I.O. of the case at Ex.15, he produced Danishnama, Lash Chakas form, receipt of delivery of dead body to Muhammad Haseeb and chemical report at Ex.15/A to 15/D and PW-7 Tapedar Mehboob Ali at Ex.18, he produced original map with two copies and letter No.Crl./3321/2012 for his evidence at Ex.18/A to 18/D. Thereafter, prosecution side was closed vide statement at Ex.19.
6. Statement of accused was recorded under section 342, Cr.P.C. at Ex.20, in which accused claimed innocence and denied the prosecution allegation in respect of murder of deceased Nazia.
He further stated that he married deceased Nazia on 13.02.2009. He produced attested photo copy of Nikahnama at Ex.20/A. Deceased Nazia had some dispute over inherited properties with her brothers and she moved some application in this regard, as well as her sister Samina also moved application to Mukhtiarkar Revenue, Kot Ghulam Muhammad and DDO Kot Ghulam Muhammad.
He produced attested photo copies of the applications at Ex.20/B and 20/C. Then a notice was issued by Mukhtiarkar to the complainant party. He also produced attested photo copy of the notice at Ex.20/D. He further stated that a dispute arose in between him and Nazia as such he divorced her on 13.04.2010 in writing. He produced attested photo copy at Ex.20/E and said it was correct and bore his signature. He, therefore, claimed that brothers of deceased became annoyed and kidnapped him and an FIR No.84/2010 on 26.04.2010 was registered against Yaseen Arain and others. He produced attested copy at Ex.20/F. On 30.04.2010 parties compromised and it was decided that minor daughter Fatima would be in the custody of Nazia till she turns 08 years old. He produced Punchayati Faisla at Ex.20/G. He further stated that he was not living in the house of Mst.
Nazia and to have been falsely implicated in this case. He prayed of justice, however, he did not opt to examine himself on oath or to lead evidence in his defence as provided under section 340(2), Cr.P.C.
7. After hearing the learned counsel for the respective parties and examining the evidence available on record, through its judgment dated 20.11.2012 convicted and sentenced the appellant as stated supra.
8. Learned advocate for appellant contended that appellant being innocent has been falsely involved in this case. Per learned counsel, complainant Maqbool has deposed that when he entered in the house, he saw deceased was lying on the bed and accused and his sister were standing near the bed, he thus has not seen any incident. He next contended that post mortem (Ex.13-B) shows address as Wandat Colony while alleged incident took place at Gulshan Colony.
Per cross-examination of doctor, which showed nine injuries on the person of deceased while PWs- 1 and 2 deposed about two injuries on neck and other on back. PWs-1 and 2 have not mentioned in their statements or evidence or in the FIR that any saliva was discharging from mouth of deceased.
Doctor further deposed in cross-examination that the mark on neck was of not rope or wire while complainant deposed that deceased was strangulated with help of a rope. He continued that as per doctor, clothes of deceased were not stained with blood but chemical report says that Articles 5 to 8 were stained with human blood. Complainant stated in his cross-examination that house of deceased was situated in same street where house of his brother Muhammad Haseeb is situated, while PW-2 Muhammad Haseeb deposed in his cross-examination that house of his sister is situated after two streets of his house, hence both contradicts each other. He while attacking investigation contends that no where during course of investigation it is alleged that daughter of deceased was available at place of incident. Admittedly, daughter aged about 2 years is in custody of the accused at present. Brother of deceased PW-3 Yaseen had dispute with the deceased over inherited property for which FIR No.84/2010 was registered by relative of accused against brother of complainant for kidnapping of accused Muhammad Hanif, which accused produced at Ex.20/F; Faisla held between parties on 30.04.2010 (Ex.20/G) and a Bakshishnama (Ex.20/B) was executed by deceased in favour of complainant on 30.03.2010 and she filed an application for cancellation of same (Ex.20/C). Complainant in cross-examination admitted that when he reached at place of incident he found many people gathered there, but he has not stated so in the FIR. Complainant deposed that deceased was wearing blue colour dress at the time of her incident, while clothes, produced in court, were of black and multicolour. All private witnesses deposed that ASI conducted entire investigation while record shows that SHO investigated the matter. He lastly contended that there are material cntradictions in respect of direction of place where dead body was lying and Sul PWs being related and inter-se, falsely involved the accused, therefore, he prayed that appellant be acquitted the charge.
9. Conversely, learned Deputy Prosecutor General Sindh half-heartedly opposed the appeal on the ground that though there are minor contradictions in the evidence of prosecution witnesses otherwise prosecution examined seven witnesses and the complainant is not eyewitness in the case. He prayed for dismissal of the appeal.
10. I have heard the learned counsel for the respective parties and perused the entire evidence minutely with their assistance.
11. Following points are framed for my determination:-
(i) Whether deceased Mst. Nazia has died on 12.11.2010 an unnatural death ?
(ii) Whether on 12.11.2010 at 2315 hours in the rented house of accused Muhammad Hanif situated in Gulshan Colony, Mirpurkhas, accused Muhammad Hanif and absconding accused Mst. Naseem in furtherance of their common intention committed the murder of his wife Mst. Nazia by intentionally causing- fists and kicks blows to her so also by strangulation through rope etc?
(iii) What offence, if any, the accused has committed?
12. My findings on the above points are as follows:- Point No. 1. As under.
Point No.2. In negative.
Point No.3. Appellant is acquitted from charged REASONS
13. The evidence of PW-1 complainant Muhammad Maqbool, who is brother of the deceased stated in his examination-in-chief that on 12.11.2010 he went to visit his brother Muhammad Haseeb at his house in Gulshan Colony, Mirpurkhas and after visiting him he went to the house of his sister Nazia, as soon as he reached at the door or her house, he heard noises of crying, therefore, he knocked the door, but no one opened the door, then he immediately returned to his elder brother Muhammad Haseeb and disclosed him about the facts and brought him with him and again knocked the door, but no one opened the door. Then he and his brother climbed the wall and entered into the house and went in room where he saw that his sister Nazia was laying on the bed and her husband along with his sister Mst. Naseern were standing near the bed. He checked his sister and found her dead. He also found mark of rope on her neck and her neck was broken. He also found injuries on her left arm. Thereafter he called his younger brother Muhammad Yaseen living at village in deh 333, taluka Kot Ghulam Muhammad through his mobile phone and informed him about the incident. His brother and sisters arrived at the place of incident. Then they negotiated with her mother, went to police station Satellite Town where he registered FIR. He produced such FIR at Ex.10/A and say it is same correct and hears his signature. Thereafter he brought the police officers at the place of incident where police officer inspected dead body of his sister as well as inspected place of incident. In his cross-examination he stated that the house of his deceased sister is situated in the same street where house of his brother Muhammad Haseeb is situated at the distance of only five minutes by walk. On the day of incident, he went to the house of his elder brother at about 09.15 pm. He left house of his brother at 11.10 p.m. It was second marriage of his deceased sister with accused Hanif. Voluntarily says that it was third marriage of accused Hanif. There was no issue from first marriage of his deceased sister. He admitted that at the time of marriage of his deceased sister with accused Hanif, we informed the accused that their sister Nazia was virgin. There is one daughter of his deceased sister from accused Hanif and she was 13 months old at the time of incident. Voluntarily says that his sister was seven months pregnancy at the time of her murder. He does not remember the name of daughter of his deceased sister. At the time of incident her daughter was with her in the house. He also admitted that it is not mentioned in the FIR that daughter of his deceased sister was not available in the house. He also does not remember the mobile phone number of his brother Yaseen. He denied the suggestion of defence counsel that an FIR No.84/2010 has been registered against him for kidnapping of accused Muhammad Hanif.
He also denied the suggestions that it was alleged in FIR that as accused Hanif has divorced his sister and he kidnapped him. He denied that on 13.04.2010 accused Muhammad Hanif has given written divorce to his deceased sister and at that time his daughter was aged about four months.
He denied that his deceased sister Nazia has filed any application to DDO Revenue for cancellation of Bakhshishnama related to properties of their father and there was no dispute amongst himself and his brothers and sisters related to property of father. Voluntarily says his father has distributed his property in his lifetime in between their family members. There was no share of his sister in their property. He denied to have stated that his deceased sister executed any Bakhshishnama in his favour for her share in the property. Voluntarily says she has sold out her share of property viz. 1-1/2 acres to him and for the amount of share, he contracted marriage with accused Hanif. He denied that at the time of incident, his deceased sister was divorced from accused Hanif. He admitted that there are houses situated in surrounding of his sister's house (place of incident). The Muhalla people were gathered at the place of incident after hearing voice before his arrival and his brother Yaseen arrived at place of incident at about 1.30 a.m. (night time). At the time of incident, his sister was wearing blue colour dress. The Muhalla people were available when he brought police officer at the place of incident. There was only one bed along with other furniture in the room of his deceased sister.
14. PW-2 Muhammad Haseeb, who is also real brother of the deceased stated in his examination- in-chief that on 12.11.2010 he was available at his house. Complainant Maqbool was also going back from his house when he reached near the house of his sister Nazia, he heard cries of quarrel as well as physical beating from the house of his sister, then his brother return back to his house and he accompanied with him to the house of his sister. They entered in the house by climbing the wall where they saw that the accused Hanif and his sister Naseem were beating his sister Nazia and his sister was unconscious. As soon as they arrived, the accused Hanif and his sister Naseem fled away. They checked his sister but she was expired. He found mark on her neck as well as marks on her back. He also found that her neck bone was in broken condition. On the next day, complainant Maqbool had registered the FIR and brought police officials, who inspected the place of incident.
Thereafter dead body of deceased had been taken to hospital for post mortem. After post mortem they received dead body for burial. Police had recorded his statement under section 161, Cr.P.C. at the place of incident. In his cross-examination, he stated that his brother came to his house at about 12.00 midnight for visiting him. The house of his sister is situated two streets of his house. His brother has brought police along will him for inspection of place of incident and police officer has recorded his statement at the place of incident. For inspection of place of incident, three police officials came at the spot. His statement was recorded by one journalist namely Mehmood Sultan Chandio. Police officer has spent about one hour for completing proceedings at the place of wardat. He stated that his sister has contracted first marriage with accused and she has one eight months daughter at the time of her murder and she was pregnant for eight month. The name of daughter of his sister is Fatima and minor baby was at home on the bed of his sister at the time of incident. He does not know whether the same is not written in his 161, Cr.P.C. statement. Minor baby Fatima has been handed over to the mother of accused after a statement. When he reached at the house of his sister after mid night many people were gathered at the place of incident. He admitted that his sister filed application for cancellation of Bakshishnama before D.D.O Kot Ghulam Muhammad. He does, not know that his brother Maqbool has any dispute with his younger brother Yaseen. He admitted that on 13.04.2010 accused Hanif has divorced his deceased sister Nazia. He also admitted that he accompanied with police when they had taken dead body of his deceased sister for post mortem to hospital. He does not know cloths which were wearing by his deceased sister at the time of incident and also any case has been registered against his brother Yaseen for kidnapping of accused Hanif.
15. PW-4 Dr. Rehana in her evidence stated that on 13.11.2010 she was as WMO at Civil Hospital, Mirpurkhas. On the same day police of St Town Mirpurkhas; brought dead body of deceased Nazia Bibi for post mortem examination under letter. On the same day she started post mortem of deceased at 2.30 p.m and finished the same at 5.00 p.m. Post mortem lividity was present on back of chest abdomen and buttock. Rigor mortis was present in both upper and lower limps. The duration between death and injuries was instantaneous.
Condition of clothes. Infact black printed shirt with orange and gray flower plane black shalwar, black brazer and printed Dupatta.
General Examination. An average height and built middle age lady lying straight on mortuary table, eyes closed, face bluish in colour and abdomen bulky, blood oozing from left ear, discharge from mouth and nose, face neck edematous body was cold.
Surface wounds and injuries. Face and neck swollen. Two bruises radish in colour present on right and left lateral side of neck. Neck was freely moveable. A bluish bruise and contused swelling was present on right wrist joint above on dorsal aspect of right wrist joint, small laceration on right thumb.
Internal examination. Neck open, blackish blood and ecymosis on the neck muscle both side was present.
Abdomen. Opened all the abdominal viscera found intact and congested along with their usual contents; liver piece, stomach and spleen and right kidney was preserved in normal saline for chemical examination from Karachi. Eight months pregnancy about (32 weeks) IUD male baby removed from uterus and handed over to police. After external and internal examination of deceased Nazia reserved her opinion and issue such post mortem report. After conducting post mortem examination, she handed over the dead body to ASI Rafique Babar of concerned police station under receipt. Thereafter she received the reports and as per reports received from chemical examination Karachi and histopathology department LMC, Jamshoro and other reports she was of the opinion that Nazia Bibi was died due to asphyxia and the cause of asphyxia was throttling. In her cross-examination, she stated that the dead body of deceased has been received at 12.45 pm at hospital. She admitted in her cross that time of receiving of dead body is not mentioned in post-mortem eport. She does not mention in post mortem report the time of death of deceased when she received the dead body for post mortem. She does not remember the duration of time of sustaining injuries by the deceased before the post mortem examination. She found nine injuries on the person of deceased. In general examination, she mentioned that slawiva was discharging from mouth and nose of the deceased. The cause of death was throttling as she found neck bone was moving freely and was seemed broken. The marks found on the neck of deceased were not of rope or wire, The radish bruises found on neck of the deceased were can be seen due to pressing the neck by hand or cloth. She admitted that clothes of deceased were not in torn condition and cloths of deceased were not blood stained.
16. PW-5 ASI Riaz Ali deposed that on 13.11.2010 he was available at police station as duty officer. On the same day at about 10.00 am Maqbool complainant arrived at PS along with his brothers namely Yaseen and Haseeb and disclosed that accused Muhammad Hanif has his sister Naseem on 12.11.2010.
17. PW-6 Inspector Attaullah stated in his evidence that on 13.11.2010 ASI Riaz has handed over FIR No.236/10 for investigation on the same day at 10.00 a.m he left police station along with police staff and complainant for inspection of place of incident on the pointation of complainant where they reached at 10.30 a.m and inspected the place of incident. Thereafter we taken dead body to civil hospital, Mirpurkhas for post mortem where he submitted letter to MLO, which he produced at Ex.13/A. On 14.11.2010 he recorded statement of witnesses namely Shoukat Ali and Yaseen and on the same day he received spy information that accused required in Crime No.236/10 was available near Chandni Chowk, therefore, he left station for Chandi Chowk where they found the accused was standing near chandni chowk. They arrested the accused and he prepared memo of arrest and recovery in presence of mashirs Yaseen and Shoukat. In his cross-examination, he stated that when he received FIR for investigation, no person was available with complainant at police station.
There were two police officers along with him when he went to inspect place of incident. He admitted in his cross that at the time of departure from police station they used to keep such entry in Roznamcha, but he did not produce the said Roznamcha entry for his departure to the place of incident from police station. The dead body was lying on cot in Varandha and at the place of incident only Muhalla people were available, but he did not recorded statement of any person from Muhalla people about the owner of the house. There are houses from both sides of the house of deceased and he found bloodstains on the clothes of deceased. The clothes of deceased available in the court are not having bloodstains. He admitted in his cross that during investigation the minor baby of deceased was not available. The place of arrest of accused is thickly populated area. He admitted that he did not produce roznamcha entry before the court when he left the police station to arrest the accused and the mashirs Yaseen and Shoukat are relatives of the complainant party.
They reached at hospital at 12.00 noon on 13.11.2010 along with dead body. He did not collect any document or rent agreement to show that the place of incident was house of accused.
18. The most alarming aspect of the case is that according to the evidence of complainant, PW-2 Muhammad Haseeb and PW-3 Muhammad Yaseen who are real brothers of the deceased, the incident took place on 12.11.2010 at 11.15 am and FIR was lodged on 13.11.2010 at 10.00pm after about 11 hours without any explanation when the victim had died on the spot, and they reached at the place of incident, they saw that the dead body was lying on the bed and her husband along with his sister Mst. Naseem were standing near the bed and they found the deceased having marks of rope on her neck and also found injuries over her body which did not appear during post mortem, thereafter they negotiated with her mother and went to PS and lodged such FIR at Ex.10/A. Whilst the doctor WMO in her evidence stated that on 13.11 2010 as per the report of WMO she started post mortem of deceased at 2.30 pm and finished the same at 5.00 pm, however, the post mortem report does not speak about the time of arrival of the dead body in the hospital, thus there is serious discrepancy in their evidence of PWs, fatal to the case of the prosecution. Another troubling aspect of the case is that the WMO in her examination has admitted that rigor mortis was visibly present in the body and it is established position having supported by the Book of Medical Jurisprudence and Toxicology with A Concise Medical Dictionary, that usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. As the incident took place in winter and dead body already showed signs of rigor mortis, it suggests that the death must have taken place any time in him past 24 to 48 hours, which contradicts prosecution's story. Another important aspect of the case is that WMO did not mention time of the death as well as she did not indicate that what was the gap between the incident and death, as she only mentioned the date and time of starting of post mortem and finishing the same, meaning thereby she neither bother to find out what was the exact time of the death, nor chose to mention it in the post mortem, this unholy alliance with prosecution is confidence bulldozing, least to say. In all such cases, benefit will naturally go to the accused. Also it is strangely troublesome to note that PW-7 who is concerned Tapadar, stated in his evidence that he visited the place of incident on 04.09.2012 along with complainant Maqbool and on his pointation he prepared map of the place of incident, however, when he stood for examination-in-chief on 07.09.2012, which was nearly two years and two months after the incident. He also admitted that he has not mentioned that the place of incident was situated in the jurisdiction of concerned police station or not.
19. From the perusal of evidence of PWs, it appears that the prosecution has miserably failed to establish their case against the appellant beyond any shadow of doubt, therefore, I am of the view that due deliberation and consultation cannot be ruled out in this case and the learned trial Court had convicted the appellant on flimsy and self-contradictory evidence that was not corroborated with any reliable, confidence inspiring and trustworthy evidence, as the only piece of evidence of PWs was that appellant was standing near her bed along with his sister Mst. Naseem, however, it is an admitted position from the evidence available on record that none was present at the scene of offence nor committing the murder of Mst. Nazia at the place of wardhat. Even otherwise, the prosecution had failed to explain such inordinate delay in the lodgement of FIR, therefore, I am very surprised and shocked that trial Court had relied upon the contents of FIR and ignored material contradictions in the evidence of prosecution witnesses amongst each other. Under the law, FIR is not a substantive piece of evidence and no conviction can be recorded on the basis of an FIR alone. I have gone through the evidence of P.Ws, which is not confidence inspiring as contradictory statements have been made. In the absence of any direct evidence and in the absence of any corroborative piece of evidence, learned trial court had wrongly convicted the appellant and sentenced him, when it is a matter of record that mere presence of the appellant was shown at the place of incident and nobody had seen him throttling the deceased Mst. Nazia, which fact goes in favour of the appellant. In the absence of any cogent, reliable and confidence inspiring evidence, not supported by any independent corroborative piece of evidence, the conviction awarded by learned trial court in my view is without any justification.
20. It is once again noted with astonishment that as usual the learned trial Court disbelieved the version of the accused/appellant as to the dispute between the victim and her brothers. The fact that the victim died in the house of her brothers speaks volumes about their (any) possible role.
The learned trial Court also (conveniently) in the haste of awarding conviction ignored that during post mortem MLO found an eight months old IUD of a male baby from the victim's uterus. It is an established position that the appellant after having married the victim on 13.02.2009 divorced her on 13.04.2010 and she was murdered on 12.11.2010 (i.e. about 7 months after her divorce). Then whose baby she was carrying. A DNA test may have proved as to the paternity of the unborn child, who left this world un-noticeably. Prosecution has not bothered to solve this murder either.
21. As seen from the above, there are many other infirmities and discrepancies in the prosecution case, which need not to be mentioned here just to save the space, but these are not at all considered by the trial Court, while passing its impugned judgment dated 20.11.2012, which patently suffers from misreading and non-reading of the evidence. In case of Akhtar Ali and others v. The State (2008 SCMR 6), the Hon'ble Supreme Court of Pakistan has held that:- It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805.
21. In the case of Muhammad Ilyas v. State (1997 SCMR 25), the Hon'ble Supreme Court of Pakistan has held that: - It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of sucha doubt had to be given to the accused without any reservation. In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt".
23. In the case of Ghulam Qadir v. State (2008 SCMR 1221), the Hon'ble Supreme Court of Pakistan has held that: - "It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful.
Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt end this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case.
Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10."
24. In the case of Muhammad Akram v. State (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan has held that:- "it is an axiomatic principle of law that in case of doubt, the benefit thereof must accrued in favour of accused as matter of right and not of grace. It was observed by this Court in the case of Tarique Pervez v. State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as matter of grace, and concession but as a matter of right."
Same view has also been taken in the case reported as Muhammad Mansha v. State (2018 SCMR 772), wherein it was also held that "it is better that ten guilty persons be acquitted rather than one innocent person be convicted."
25. In view of what has been discussed above, I am of the considered view that this case is marred with endless discrepancies, illegalities and many questions remain un-answered, as the prosecution has failed to prove its case against the appellant beyond a reasonable doubt, therefore, the conviction and sentence awarded to the appellant vide impugned judgment dated 20.11.2012, passed by the learned Sessions Judge, Mirpurkhas, cannot sustain, hence the same are liable to be set aside. Resultantly, instant appeal is allowed and impugned judgment dated 20.11.2012 is set aside and the appellant Muhammad Hanif son of Muhammad Rafique is acquitted from the charge. Appellant is in custody, he shall be released forthwith, if not required in any other custody case. Above are the reasons of my short order dated 25.04.2022.