2016 PLP 1763 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Criminal Miscellaneous Application No. 750 of 2009 For the reasons mentioned in this miscellaneous application the same is allowed and the delay in filing of Criminal Appeal No. 315 of 2010 is condoned. Disposed of. Criminal Appeal No. 315 of 2010

2. According to the prosecution on the fateful day and time Shahbaz appellant had stabbed Aftab Akhtar deceased twice in his chest whereafter the appellant and his co-accused namely Muhammad Abbas had caused many other injures to the deceased with their respective chhurris. Muhammad Abbas co-accused had been acquitted by the trial court and the role attributed to him by the eye-witnesses produced by the prosecution was identical to that attributed to Shahbaz appellant. As a matter of fact the motive set up by the prosecution was more relevant to Muhammad Abbas co-accused than to the present appellant. The acquittal of Muhammad Abbas co-accused had not been challenged by the complainant party or the State before the High Court. The acquittal of Muhammad Abbas co-accused and acceptance of such acquittal on the part of the complainant party shows that the eye-witnesses produced by the prosecution were capable of falsehood and in the present case they had implicated not only Shahbaz appellant's real brother namely Muhammad Abbas co-accused but also their mother. In the same incident Shahbaz appellant had also sustained injuries but his sustaining of injuries had been completely suppressed by the prosecution. The High Court had categorically held that the version of the incident advanced by Shahbaz appellant had also been established through the statement of the concerned doctor and the Medico-legal Report issued in respect of the appellant's injuries. The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant.

3. For what has been discussed above a conclusion is irresistible that the prosecution had failed to prove its case against Shahbaz appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/S-22/SC Appeal allowed.