SHAMSUDDIN ABBASI, J. Rizwan Abdul Kalam, Imran Abdul Kalam and Kamran Abdul Kalam, appellants, have challenged the validity of the judgment dated 10.01.2020, penned down by the learned Additional Sessions Judge-VII [Model Criminal Trial Court-II (MCTC-II), Karachi Central) in Sessions Case No.36 of 2018 (FIR No.171 of 2017) registered at Police Station Hyderi Market, District Central; Karachi, for offences under Sections 302, 109 and 34, P.P.C., through which they were convicted and sentenced and sentenced as under:- "(a) Accused Rizwan son of Abdul Kalam is sentenced under S. 302(b), P.P.C. to suffer "imprisonment for life" with direction to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased. In case of default, he shall have to undergo 01 year SI.
(b) Accused Kamran son of Abdul Kalam is sentenced under S. 302(b), P.P.C. to suffer "Imprisonment for life" with direction to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased. In case of default, he shall have to undergo 01 year SI.
(c) Accused Imran son of Abdul Kalam is sentenced under S. 302(b), P.P.C. to suffer "Imprisonment for life" with direction to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased. In case of default, he shall have to undergo 01 year SI.
(d) The benefit of Section 382-B, Cr.P.C is extended to the accused.
(e) The certified true copy of the judgment is supplied to above named accused free of cost on receipt".
The learned trial Court, however, acquitted co-accused Abdul Kalam from the charge of instigation extending him the benefit of doubt through same judgment.
2. First Information Report in this case has been lodged on 09.12.2017 at 3:10 pm at P.S. Hyderi Market, Karachi, on the basis of statement under Section 154, Cr.P.C. of Muhammad Binyamin, recorded at Jinnah Hospital, whereas the incident is shown to have taken place on 08.12.2027 at 8:00 pm.
Complainant Muhammad Binyamin has stated that his sister Aasia was married to Rizwan Abdul Kalam (appellant No.1) about 2 1/2 years ago and out of the said wedlock a baby namely, Anabia was born, who is now aged about 1 1/2 years. About 6/7 months ago his sister made a complaint of a quarrel with her husband and other in-law, but on the intervention of elders the matter was resolved. On 08.12.2017 he received a phone call from Abbasi Shaheed Hospital that his sister has been brought at hospital in critical injured condition having pregnancy of about 8 1/2 months so he contacted Rizwan (husband of Aasia) on his phone, who firstly informed him (complainant) that Aasia is at home and he (Rizwan) is outside the house and when complainant disclosed about receiving of call from Abbasi Shaheed Hospital then Rizwan disclosed that they are in Taruma Centre and shifting Aasia to another hospital and soon thereafter disconnected the phone, which created doubt in his mind so he contacted Imran, brother of Rizwan, who disclosed that he is on the way to M.S. Hospital, Urdu Bazar, and disconnected the phone by saying that he would inform the situation after reaching the hospital and after some time complainant received a phone call from Imran, who informed the complainant that his brother Kamran caused injuries to Aasia stabbing her blows with churrie and she expired at hospital during treatment. The complainant immediately went to Abbasi Shaheed Hospital in order to enquire from the nurse as to what happened but she was not available at hospital so he met with MLO, who disclosed that due to non- availability of lady MLO they referred the dead body to Jinnah Hospital and on reaching there he came to know that dead body of his sister was shifted to Cold storage, Chippa Centre, Saddar, therefore, he went there and saw the dead body of his sister and brought back her at Jinnah Hospital, where post- mortem was conducted. Police also reached at Jinnah Hospital and recorded his statement under Section 154, Cr.P.C., which was later on incorporated in FIR Book, wherein he disclosed that Rizwan and Imran at the instigation of their brother Kamran and father Abdul Kalam committed murder of his sister Aasia stabbing her blows with churries and she succumbed to her injuries and died at hospital during treatment.
3. 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 the above referred Sections, whereby the appellants and co-accused were sent-up to face the trial.
4. A charge in respect of offences under Sections 302, 109 and 34, P.P.C. was framed against appellants and co-accused Abdul Kalam. Ali of them pleaded hit guilty to the charged offence and claimed to be tried.
5. At trial, the prosecution has examined as many as nine witnesses. The gist of evidence, adduced by the prosecution in support of its case, is as under:-
6. Muhammad Binyamin (complainant) appeared as witness No.1 Ex.4, Dr. Muhammad Saleem as witness No.2 Ex.5, WMLO Noor un Nisa as witness No.3 Ex.7, Muhammad Aslam as witness No.4 Ex.8, Muhammad Sohail Azam as witness No.5 Ex.10, SIP Muhammad Shakeel Anwar Khan as witness No.6 Ex.11, SIP Muhammad Kafaqat Butt as witness No.7 Ex.12, SIP Manzoor Ali as witness No.8 Ex.13 and SIP Rasheed Ahmed (Investigating Officer) as witness No.9 Ex.14. All of them have exhibited certain documents in their evidence and also subjected to cross-examination by the defence.
Thereafter, the prosecution closed its side vide statement Ex.15.
7. Appellants and co-accused Abdul Kalam were examined under Section 342, Cr.P.C. at Ex.16 to Ex.19. They have denied the allegations imputed upon them by the prosecution, professed their innocence and stated their false implication by the complainant due to previous grudge. They opted not to make a statement on Oath under Section 340(2), Cr.P.C. but examined Aziz ur Rehman and Syed Naeem Abbas as their defence witnesses.
8. Upon completion of the trial, the learned trial Court acquitted co-accused Abdul Kalam but found the appellants guilty of the offences charged with and, thus, convicted and sentenced them as detailed in para-1 (supra), which necessitated the filing of the listed appeal.
9. The learned counsel appearing on behalf of appellants Rizwan and Imran has contended that they are innocent and have falsely been implicated in this case by the complainant on account of previous grudge as it was a love marriage and the complainant was not happy with the marriage of his sister Aasia (deceased) with appellant Rizwan; that deceased might be done to death. by accused Kamran, who is a psycho patient and found present near the place where deceased was lying injured; that the complainant due to his previous grudge took advantage of an unseen incident and falsely roped the entire family in the commission of murder of his sister; that FIR has been lodged after more than 19 hours of the incident without furnishing any plausible explanation, hence the possibility of consultations and due deliberations particularly in the background of the previous grudge cannot be ruled out; that the incident is unseen and none of the witnesses including complainant have stated that they have seen the appellants committing murder of the deceased; that the witnesses examined by the prosecution are interested and inimical to the appellants as such they have falsely implicated them in an unseen incident on account of previous grudge; that they were inconsistent with each other rather contradicted on crucial points benefit whereof must go to the appellants; that nothing incriminating has been recovered from their possession and the alleged recovered "churries" have been foisted upon them; that the medical evidence is not in line with the statement of complainant and mashirs of inspection of dead body; that no iota of evidence has been brought on record to substantiate that the deceased was done to death by the appellants; that the Investigating Officer has conducted dishonest investigation and failed to dig out the truth; that no independent witness has been produced by the prosecution to corroborate the evidence of the interested witnesses, who being inimical to the appellants have falsely deposed against them; that the impugned judgment is the result of misreading and non- reading of evidence and without application of a judicial mind, hence the conviction and sentence awarded to the appellants, based on such findings, are not sustainable in law and liable to be set- aside and the appellants deserve to be acquitted of the charge and prayed accordingly.
10. The learned counsel for appellant Kamran has argued that he is a psycho patient and his disease has been diagnosed as "schizophrenia"; that the appellant in his statement under Section 342, Cr.P.C. though admitted the commission of offence but denied the same while framing the charge, hence in such eventuality his admission before Court is of no legal effect and he cannot be convicted on sole basis of his admission; that the incident is unseen and none including the co- accused have seen him causing injuries to deceased with churrie; that only presence of appellant at the place is not sufficient to base conviction; that no churrie has been recovered either from his possession or pointation with whom he allegedly caused injuries to deceased; that the learned trial Court failed to appreciate the evidence adduced by the appellant in his defence and convicted him only on his admission, that no iota of evidence has been brought on record to substantiate that the deceased was done to death by the appellant; that the impugned judgment is the result of misreading and non-reading of evidence and without application of a judicial mind, hence the conviction and sentence awarded to the appellant, based on such findings, is not sustainable in law and liable to be set-aside and the appellant deserves to be acquitted of the charge and prayed accordingly.
11. In contra, the learned counsel for the complainant while controverting the submissions of learned counsel for the appellants has submitted that the delay in lodgment of FIR is of no importance in view of the peculiar facts and circumstance of the case; that the witnesses have supported the case of the prosecution and remained consistent on each and every material point; that they were subjected to lengthy cross-examination by the defence but nothing adverse to the prosecution story has been extracted which can provide any help to the appellants; that the prosecution has brought on record medical as well as circumstantial evidence in shape of recoveries of crime weapons and the same has rightly been relied upon; that the prosecution has successfully proved its case against the appellants beyond shadow of any reasonable doubt, thus, the appeal filed by the appellants deserves to be dismissed and the conviction and sentences awarded to the appellants are liable to be maintained.
12. The learned APG has adopted the same arguments as advanced by the learned counsel for the complainant and submitted that the impugned judgment is based on fair evaluation of evidence and documents brought on record and the appellants have failed to shatter the evidence adduced by the prosecution during cross-examination and they have also not placed on record any evidence or material to substantiate their case and disprove the case of the prosecution and the plea taken in defence that deceased was done to death Kamran is after thought, hence the impugned judgment calls for no interference.
13. Heard learned counsel for the respective parties at length, given my anxious consideration to their submissions and also scanned the record carefully with their able assistance.
14. The prosecution machinery came into motion when complainant Muhammad Binyamin reported an incident of commission of murder of his sister Mst. Aasia alleged to have taken place in House No.A-231, Block-H, Street No.10, Chaudhary Rehmat Ali Road, North Nazimabad, Karachi, nominating four persons of a family i.e. father and his three sons as killer. Admittedly, the incident reported to police is an unseen occurrence and none has come forward claiming to be an eye- witness of the incident and such an FIR has been lodged after 19 hours of the incident and that too without furnishing any plausible explanation. No direct evidence has been brought on record to substantiate the involvement of appellants in the commission of offence and the only piece of evidence that has come on record is the circumstantial evidence in shape of recoveries of crime weapons viz churries on the pointation of appellants Rizwan and Imran and other incriminating articles viz dupatta, towel, bed sheets etc., stained with blood, seized during the course of site inspection as well as the confession of appellant allegedly made by them before police in presence of complainant Muhammad Binyamin and PW.4 Muhammad Aslam.
15. It is well settled that a crime cannot be proved by an extra-judicial confession made by an accused before police and the witnesses. The verdict of guilty and a subsequent conviction cannot be sustained upon an extra-judicial confession only. The rule is that an extra-judicial confession of an accused must be corroborated by independent proof of the crime. An extra-judicial confession of an accused, if voluntary, can be relied upon along with other evidence in convicting an accused but subject to its prove like any other evidence. The value of a confession depends upon the veracity of the witnesses before whom it is made. In the case in hand, it is observed that appellants have been shown arrested on 09.12.2017 on the pointation of complainant and during interrogation they confessed the commission of offence before police in presence of complainant and PW.4 Muhammad Aslam, who admittedly is a friend of complainant, on 14.12.2017. The question arises why the appellants made admission when there was no palpable reason for them to make an extra-judicial confession before police in presence of complainant and PW.4 Muhammad Aslam, whose conduct is also a relevant factor for determining credibility of extra-judicial confession allegedly made by the appellants. Surprising to note that the complainant is not an eye-witness of the incident despite be nominated the appellants as killer of his sister in his FIR recorded on 09.12.2017 whereas as per prosecution case itself the appellants admitted the commission of offence before him on 14.12.2017. The question arises as to from which source he came to know that his sister was murdered by her in-laws and no explanation to that extent has been brought on record. No doubt, an extra-judicial confession is a weak evidence and it has to be examined by the Court with deep care and caution because it can be procured easily. The Hon'ble Federal Court in the case of Ahmad v. The Crown (PLD 1951 FC 107) and Abdul Latif v. Crown (PLD 1952 FC 113), which was subsequently affirmed by the Hon'ble Supreme Court in Sajid Mumtaz and others v.
Basharat and others (2006 SCMR 231) holding as under:- "22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra judicial confessions have almost become a norm when the prosecution 'cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all is the position or authority held by the witness."
16. In the case in hand, the conduct of the complainant seems to be doubtful because he has implicated four persons of a family claiming them to be the killer of his sister before making extra- judicial confession by the appellants in custody of police in his presence more particularly when he is not an eye-witness of the incident. This finds support the specific plea taken by the appellants in their defence that it was a love marriage and complainant was unhappy of the marriage of his sister Aasia with Rizwan and he also not attended the marriage ceremony of his sister, therefore, he has falsely implicated them in the commission of murder of his sister owing to previous grudge.
The record is also suggestive of the fact that PW.4 Muhammad Aslam before whom the alleged confession was made by the appellants is a friend of complainant, hence there is every likelihood that being a friend he has supported the complainant and deposed falsely against appellants. It is well settled that when an accused made an admission before police about his guilt then it is obligatory upon the police officer before whom he made such a confession to produce him before a competent Court of law for recording his statement under Section 164, Cr.P.C. which has not been done, therefore, the alleged confessions of appellants before police would amount to confession before police. The entire record is silent as to what were the circumstances which made the appellants to confess. If for the sake of arguments, it is believed that such confessions were actually made by the appellants even then same being inadmissible in evidence in terms of Articles 38 and 39 of Qanun-e-Shahadat Order, 1984 could not be used against them in a case providing capital punishment.
17. The prose heavily relied on the recoveries of crime weapons allegedly recovered on the pointation of Rizwan and Imran and claimed that after confession as to his involvement in the commission of crime, appellant Rizwan on the same day (14.12.2017) voluntarily led the police to the place of pointation and got recovered a knife, used in the commission of offence, lying under a wooden foundation of fridge. On the hand, the complainant, who is one of the mashirs of recovery of knife, in his deposition has stated that Rizwan led the police party towards his house and got recovered a knife from beneath the fridge. He has not uttered a single word as to wooden foundation under the fridge. He has also not disclosed the specific date and time when Rizwan produced knife to police on his pointation. This statement of complainant is belied by PW.5 Muhammad Aslam, who while appearing before the learned trial Court has deposed that during interrogation Rizwan disclosed that he had thrown churrie under the refrigerator and voluntarily led the police to his house where SIP obtained key from the owner of the house and opened the house and thereafter Rizwan took them towards the Refrigerator and got recovered a churrie lying under the chowky whereas the complainant did not disclose any detail as to obtaining key from the owner of the house and only deposed that Rizwan .voluntarily led the police to his house and produced knife from beneath the fridge. The record is also suggestive of the fact that police arrested appellants on 09.12.2017 from Outside their house and during interrogation at spot, Imran disclosed about the knife, used in the commission of offence, hidden alongside the gate of his house and got it recovered on his pointation. On the other hand, the complainant, who is one of the mashirs of memo. of recovery, while appearing before the learned trial Court has deposed that after his arrest Imran led the police party inside his house and got recovered a knife whereas PW.5 Muhammad Sohail Azam in his deposition has stated that police recovered the knife from behind the main gate of the house on the pointation of Imran. The complainant and mashirs in their respective depositions have furnished squarely different versions and contradicted each other as to the exact place of recovery and which one is true would be best known to them, however, it create serious doubts about the arrest of Rizwan and Imran and recovery of alleged knives on their pointation. The record is also suggestive of the fact that the alleged recovered knives/churrie were not confronted to Rizwan and Imran at the time of recording their statements under Section 342, Cr.P.C. It is trite that examination of an accused under section 342, Cr.P.C. is not a formality but a legal requirement whose primary purpose is to apprise him of all the incriminating material that has been brought against him during the E trial and provide him an opportunity to explain his position with respect to it. In Muhammad Shah v. The State (2010 SCMR 1009) the Hon'ble Supreme Court held that if a piece of evidence is not put to an accused while recording his statement under Section 342, Cr.P.C. it cannot be used against him while awarding conviction. This view is also reiterated in the cases of Muhammad Saddique v. The State (2018 SCMR 71) and Imtiaz alias Taj v. The State and others (2018 SCMR 344). Mere recovery of crime churries in absence of any direct or any other incriminating evidence except that churrie allegedly recovered on the pointation of Rizwan was sent to Forensic Division and his finger prints were matched cannot be made basis for convicting an accused in a crime of capital punishment in view of admitted delay in sending the alleged recovered churrie to the office of Forensic: Division and that too without furnishing any plausible explanation as well as in absence of any evidence or any other material to substantiate that such finger prints were of Rizwan more particularly when such an incident alleged to be based F on suspicion and previous grudge. Even otherwise, the recoveries of incriminating articles viz crime weapons and blood-stained articles as well as availability of finger print are always considered to be a corroborative piece of evidence and such kind of evidence by itself is not sufficient to bring home the charges against an accused especially when no direct evidence has been brought on record and the other material put-forward by the prosecution in respect of guilt of the appellants has been disbelieved. Reference may well be made to the cases of Imran Ashraf and 7 others v. The State (2001 SCMR 424) and Dr. Israr-ul-Haq v. Muhammad Fayyaz and another (2007 SCMR 1427).
18. The learned trial Court while awarding conviction to the appellants has also relied upon the evidence adduced by Medical Officer PW.4 Noor un Nisa, who conducted postmortem examination of the deceased. In the peculiar facts and circumstances of the case, when no direct evidence has been brought on record and the circumstantial evidence has already been disbelieved, the conviction cannot be based solely on medical evidence. The medical evidence is not a corroborative piece of evidence rather confirmatory in nature, which can be used to confirm or contradict the medical evidence with the other piece of evidence. It cannot be considered as a corroborative piece of evidence connecting an accused with the crime, but only confirms the location, kind of weapon used in the commission of offence and timing of the injuries inflicted.
Reliance in this behalf may well be made to the case of Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), wherein the Hon'ble Supreme Court held as follows:- "It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime."
The above view has been reaffirmed in the case of Muhammad Mansha v. The State (2018 SCMR 772) and Hashim Qasim and another v. The State (2017 SCMR 986).
19. In like cases, the evidence produced by the prosecution should be so strong or solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand 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 same has been built up on the basis of feeble or shaky evidence.
20. The appellants, on the other hand, have specifically denied the prosecution case and pleaded their innocence in their statements under Section 342, Cr.P.C. They have not only involved Kamran in the commission of murder of Mst. Aasia stabbing her blows with churrie, but also produced his medical history through DW.2 Syed Naeem Abbas, Counselor of Psychiatrie unit of Wasti Psychiatric Hospital. They have also sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear cut manner and remained consistent on their plea of defence. Here it would be conducive to reproduce the relevant excerpts of their statements as follows:- Appellant Imran:- On the day of incident I was residing along with my brothers Rizwan and Kamran (psycho patient), my father my mother, my sister, my deceased sister in law and my niece at the place of incident. I was present along with my father and baby Anabia at the time of occurrence. At about 08:15/08:30 am we heard some cries and we all rushed to the street facing gallery of our house, but there was nothing. Then, we again heard cries and we went at the end of our house where kitchen is situated and saw that accused Kamran had already injured deceased Aasia and he said it has happened because she refused to give him food and used abusive language, due to which, he injured her and said to me to call police. Then, I and my father tied up my brother Kamran with the rope and I called my friend Aziz ur Rehman who came there within 5/10 minutes. I and Aziz ur Rehman took the deceased at Saifi Hospital: After giving first aid treatment because of the nature of the case, doctors of Saifi Hospital told us to go to Government Hospital at Abbasi Shaheed Hospital. During the treatment in Saifi Hospital my brother Rizwan who was driving Careem car came there on my call at about 08:40 pm. I, Rizwan and my friend Aziz ur Rehman took deceased Aasia to Abbasi Shaheed Hospital where the doctors advised us to arrange the blood, on which I and my friend Aziz ur Rehman firstly tried to arrange blood from Hussaini Blood Bank and KKF Blood Bank near Abbasi Shaheed Hospital but the same was not available in the both blood banks and they referred to Hussain Blood Bank near Mumtaz Hospital, situated at North Nazimabad. At about 10:30 pm at our turn they told us that the blood O, Positive can be arranged in one hour after matching the same. At about 11:30 pm we received two bottles of blood and rushed towards MS Hospital where Aasia was referred for Ventilator as per information received from my brother Rizwan who was all the time trying to maximum medical treatment and facilitates from the respective hospitals. We reached at MS Hospital at 11:45 am where we came to know that my brother's wife had expired at 11:40 pm''.
21. Appellant Rizwan and co-accused Abdul Kalam (acquitted by the learned trial Court), have taken the same plea in their statements under Section 342, Cr.P.C. and deposed on the same line as that of Imran. They have also implicated Kamran in the commission of murder of Mst. Aasia and categorically stated that Kamran is suffering from mental disorder and he is diagnosed as to be a patient of "schizophrenia". They have also been supported by DW.1 Aziz ur Rehman (Ex.20), who while appearing before the learned trial Court has narrated the same story and deposed on the same line as that of appellants. Here question arises why a father and two brothers would implicate his real son and their real brother in an offence of providing capital punishment more particularly when such an incident was not witnessed by anyone except them. It also does not appeal to a prudent mind why a husband would commit murder of his wife having 8 1/2 months baby in her womb and had already a daughter, aged about one year from her. The record is also suggestive of the fact that the plea taken by the appellants and co-accused in their statements that he was Kamran who caused injuries to his "Bhabhi" Asia stabbing churrie blows has also been supported by Kamran in his statement under Section 342, Cr.P.C. For the sake of convenience relevant excerpt is reproduced below:- "On the day of incident at about 07:00 pm I was in my room struggling with my psychiatrics condition of schizophrenia. I had severe hallucinations of threats to myself and fantasy of being Injured or harmed by anyone amid the family members. To overcome this condition I usually eat a lot to divert my focus. At around 08:00 pm I went into the kitchen looking for something to eat and thought that the dinner might be ready but when I entered the kitchen I saw the deceased Aasia still preparing the dinner which was not cooked yet. Experiencing this, my hallucinations and fantasy of threats got extreme, I lost my mind, lost control of my thoughts, got into a server argument with deceased Aasia and then I took the kitchen knife, stabbed her multiple times resulting in her severe injuries. During this incident I did not had the slightest hint, what I was doing, why I was doing, with whom I did not and the consequences of my act. When deceased Aasia started shouting in order to save herself the rest of the family members rushed into the kitchen, my father Abdul Kalam got hold of me, grabbed my left hand with which I was holding the kitchen knife/churn, while Imran tried to putt me away from deceased Aasia. The first thing my family members did was that they tied me up and tried to stop the intense bleeding of Aasia.
Meanwhile, I was all tied up and was unable to move, not in my senses, not thinking about what I did, still under the severe hallucinations caused by my psychiatric condition. I did not know about what was going on around me and what havoc I had created. All around 11:00 pm my father Abdul Kalam called a police helpline and I was handed over to the police at the very same night of the incident. I have history of medical treatment for schizophrenia and because of my psychiatric condition, I also have a history of running away multiple times from my home to the hallucinations and the threats caused to me because of my mental condition.
22. Reviewing the statements appellants and co-accused, referred herein above, in the background of the evidence adduced by DW.2 Syed Naeem Abbas, Counselor of Psychiatric Unit of Wasti Psychiatric Hospital, who while appearing before the learned trial Court has deposed that Kamran is suffering from mental disorder and upon examination his disease is diagnosed "schizophrenia" and he remained under his treatment and admitted in hospital from 2008 to 2010. It is, thus, established that Kamran is a patient of schizophrenia and such a patient can do anything.
If both the story one put forward by the prosecution and the other one put forth by the defence, are considered in a juxtaposition, then the story put-forth by the appellants seems more plausible and convincing and near to truth while the case of the prosecution appears to be doubtful.
23. It is also well-established principle of safe administration of justice in criminal cases that finding of guilt against an accused cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt" to an accused, which has been a dominant feature of the administration of criminal justice. The prosecution is under obligation to prove its case against the accused 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 its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused, the benefit of that doubt is to be given to the accused as of right, not as of concession. The rule of giving benefit of doubt to an accused is essentially a rule of caution and prudence and is deep rooted in our jurisprudence for safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted".
24. The cumulative effect of what has been discussed above is that this Court reaches to an inescapable conclusion that the prosecution has miserably failed to prove the appellants Rizwan and Imran guilty of the offences charged with. Accordingly, the appeal insofar it impugns conviction awarded to them through impugned judgment dated 10.01.2020, are without appreciating the evidence in its true perspective, rather the same are packed with various discrepancies, which resulted into a benefit of doubt to be extended in their favour, the same are, therefore, set-aside and the appellants Rizwan and Imran are acquitted of the charges by extending them the benefit of doubt. They shall be released forthwith if not required to be detained in connection with any other case whereas the appeal insofar it impugns conviction against Kamran, is dismissed. It is, however, made clear that Kamran being a patient of "schizophrenia" needs continuous care and attention of a Doctor as well as proper medication till his disease is cured, therefore, this Court deem it appropriate to remand him to Sir Cowasjee Psychiatric Hospital, Hyderabad to serve remaining period of his sentence there. He shall be entitled to the benefit of Section 382-B, Cr.P.C. and shall also earn all remissions as per jail rules. The I.G. Prison is directed to maintain his record in respect of his disease and remaining period of sentence including remissions and after completion thereof he shall be released/discharged forthwith if not required to be detained in connection with any other. It is, however, made clear that his release shall be subject to the final opinion of his Doctor that his disease is cured and he is completely fit. It will not be out of place to mention here that in case as per opinion of Doctor that he is fully cured of his disease before completion of his remaining sentence, then he shall be sent to Jail to carry out his remaining sentence. The Jail Superintendent is directed to make necessary arrangements and report compliance.
25. This Criminal Appeal No.124 of 2020 stands disposed of in the foregoing terms.