2025 PLP 1887 (MLD)

Muhammad Ayub Khan Tareen, J.

This appeal is directed against the judgment dated 25th May 2024, (hereinafter the "impugned judgment"), passed by the learned Additional Sessions Judge/Juvenile Justice Court, Khuzdar (hereinafter the "trial court"), in case No.01/2023 (FIR No.06/2022, Levies Station Karkh), whereby the appellant Hizbullah son of Lal Muhammad was convicted under section 319, P.P.C and sentenced to suffer imprisonment for five years without labour as Tazir and to pay compensation (Diyat) to the legal heirs of deceased Ikhlaq Ahmed, in default thereof, shall remain in jail till payment of Diyat amount, with the benefit of section 382-B, Cr.P.C.

2. Facts of the case are that in pursuance of the application (Ex: P/1-A) of PW-1 Abdul Kareem son of Imam Bakhsh (complainant), instant criminal case, vide FIR No.06/2022 (Ex: P/6-A), dated 10th September 2022, under sections 302 and 34, P.P.C. was registered at Levies Station Karkh, District Khuzdar, wherein he alleged that on the fateful day of the incident i.e. 7th September 2022, at about 3:00 p.m. Hizbullah (appellant) and three unknown accomplices took his son Ikhlaq to Bhalok stream on the pretext of taking bath, where they strangulated his neck and committed his murder; hence, this case and arrest of the accused.

3. On completion of the investigation, the challan of the case (Ex: P/7-C) was submitted, and the trial commenced. After framing the charge and denial on the part of the accused (appellant), the prosecution produced and examined the following witnesses: PW-1 Abdul Kareem (complainant), produced applications (Ex: P/1-A and P/1-B); PW-2 PW-2 Dr. Muhammad Rafique Sasoli, Medical Officer, produced Medico legal Report (Ex: P/2-A); PW-3 Mst. Khair Bibi (mother of deceased) is eye-witness of the incident; PW-4 Adnan (brother of deceased) is eye-witness of the incident; PW-5 Zahoor Ahmed is circumstantial witness of the incident; PW-6 Risaldar Nazeer Ahmed (First Investigation Officer), who produced FIR (Ex: P/6-A), site map (Ex: P/6-B), Marg report of deceased (Ex: P/6-C) and interim challan (Ex: P/6-D); PW-7 Naib Risaldar Muhammad Essa (Second Investigation Officer), who produced supplementary challans (Ex: P/7-A to Ex: P/7-C). Upon completion of prosecution evidence, the statement of accused (appellant) was recorded under section 342, Cr.P.C, wherein he disputed the prosecution story and pleaded his innocence; however, he did not opt to record his statement on Oath provided under section 340(2), Cr.P.C nor produced any witness in defence.

4. After hearing the arguments and evaluating the evidence, the learned trial court (Sessions Judge/Juvenile Justice Court Khuzdar) found the appellant guilty, as such, convicted and sentenced him for the period mentioned above.

5. Critical analysis of the evidence and its deep appreciation shows that the prosecution's case is not free from dents and doubts for the reasons that the alleged incident occurred on 7th September 2022, while the FIR was registered on 10th September 2022, after an unexplained delay of four days, which too by PW-1 Abdul Kareem (complainant), admittedly not an eye-witness of the alleged occurrence. PW-3 Khair Bibi was introduced as eye-witness of the incident, but she made material improvements in her statement before the court; she deposed that: While, confronting with her statement under section 161, Cr.P.C, she replied to question Nos. 32 and 33 that: The answer to question No.33 reflects that PW-3 Khair Bibi is not an eye-witness to the incident; rather she has been reached at the place of occurrence when the occurrence had ended and this fact has also been strengthened by PW-4 Adnan, who stated that: Thus, the statement of PW-3 namely Khair Bibi is not worth of credence. PW-4 Adnan is the sole eye-witness, he made massive improvement in his statement before the court by responding to questions Nos. 8, 9 and 10, that: PW-2 Dr. Muhammad Rafique Sasoli, Medical Officer, who examined the deceased Ikhlaq Ahmed and opined as under: "A body examination fully whole body external and minor scratches seen in abdomen No any ligature marks seen around the neck No any foreign bodies mark seen on both hand Rigor mortis seen. It was due to about 6-8 hours back expired. No any protrusion of both eyes seen. X-ray cervical spine AP and lateral shows intact anterior and posterior vertebral lines and intact spino lamellar line Atenolol exit distance is in normal limits. No cervical fracture seen in the provided views Nature of injury: Grievous Cause of death: Most probably Aspyxia." No post mortem was conducted.

6. It would be relevant to note here that in absence of any plausible explanation, the Supreme Court had always considered the delay in lodging of FIR to be fatal and it casted a suspicion on the prosecution story, extending the benefit of doubt to the accused. If there was any delay in lodging of FIR and commencement of investigation, it gave rise to a doubt, which, could not be extended to anyone else except to the accused. The Matter was reported to the Levies by the complainant (PW-1) on fourth day of the incident, despite the Levies Station being only twenty-four kilometers away from the place of occurrence. In the entire evidence, the prosecution had not explained the reason for such a delay in reporting the matter to the Levies for such delayed FIR on the part of the complainant deliberation and consultation could not be ruled out. The Hon'ble Apex Court in the case titled Khial Muhammad v. The State (2024 SCMR 1490) has held as under: "

8. A bare perusal of the record reflects that in the instant case the incident wherein the paternal cousin of the complainant was done to death, took place on 27.03.2016 at 6:20 p.m. However, the matter was reported to the police by the complainant on 28.03.2016 at 9:00 a.m. approximately more than fifteen hours after the incident, despite the police station being only one furlong away from the place of occurrence. In the entire evidence, the prosecution has not explained the reason for such a delay in reporting the matter to the police. Such delayed FIR on the part of the complainant shows dishonesty and that it was lodged with deliberation and consultation. Reference in this regard may be made to the case reported as Amir Muhammad Khan v. The State (2023 SCMR 566) wherein a delay of only five hours and ten minutes in reporting the matter to and lodging the FIR by the police was considered indicative of dishonesty on the part of the complainant. Even otherwise, the post-mortem was conducted on 28.03.2016 at 11:00 a.m. and the time in between death and post-mortem was within eighteen hours which also cast serious doubt on the part of the prosecution." Main object of prompt registration of FIR is to rule out the possibility of deliberation, consultation and inquiry. Element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval.

7. It is interesting to note that both the eye-witnesses Khair Bibi (PW-3) and Adnan (PW-4) were present at the place of incident their statements under section 161 Cr.P.C were recorded by the Levies after a delay of about 110 days. The occurrence as per FIR took place on 7th September 2022; however statements of both aforementioned eye-witnesses under section 161, Cr.P.C were recorded on 26th December 2022. It is well settled that recording the statement of witnesses under section 161 Cr.P.C at a belated stage casts serious doubts on the version of prosecution. Reference may be made to the case of Muhammad Khan v. Maula Bakhsh and another (1998 SCMR 570) wherein it has been held that: "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation." In the case at hand, no plausible explanation was rendered by the prosecution as to why statements of star witnesses were recorded after such a long delay and why their names were not mentioned in the FIR. This delay, by itself, casts substantial doubt on the reliability of the prosecution's case. When statement under section 161, Cr.P.C. is delayed; such evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded promptly soon after the occurrence. It is worth mentioning here that the accused was arrested on 16th December 2022 and the alleged eye-witness PW-4 Adnan has recorded his statement under section 161 Cr.P.C on 26th December 2022 almost 110 days of the occurrence and that too after the arrest of the accused. Thus, recording the statement of PWs under section 161 Cr.P.C after the arrest of the accused creates reasonable doubt in the case of prosecution and it appears that the witness was planted by the prosecution subsequently after the arrest of the accused. Reliance is placed on Naib Subedar Nasabuddin, Frontier Corps (South) and others v. Ali Nawaz and others (2019 PCr.LJ 1539), the relevant portion thereof reads as under: "It is well settled proposition of law that in a criminal case when 161, Cr.P.C. statement is delayed; such evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded promptly soon after the occurrence. Thus, recording the statements of PWs under section 161, Cr.P.C. after the arrest of the accused creates reasonable doubts in the case of prosecution and it appears that the witnesses were planted by the prosecution subsequently after the arrest of the accused/respondent."

8. Now coming to the medical evidence furnished by the prosecution. Occurrence statedly took place at about 3:00 p.m. whereas the autopsy was conducted at 6:30 p.m. Development of complete rigor mortis on the body of the deceased young boy in hot weather, belied point of time of assault given in the crime report. Opinion of doctor negating version of the complainant. In the present case the Dr. Muhammad Rafique Sasoli (PW-2) who conducted the medical examination of the deceased, while appearing as a witness before the trial court, submitted that, "Rigor Mortis seen, it was due to about 6-8 hours back expired". Considering the contention of the complainant that the injured was immediately taken to the hospital for treatment in a pick-up, question arose as to how rigor mortis was developed and six to eight hours elapsed. The statement of the doctor and his opinion did not support the contention of the complainant regarding immediate shifting of the injured to the hospital. Had the complainant and eye-witnesses been present at the place and time of the occurrence, the injured could have been taken to the hospital, without loss of time and thereby, rigor mortis could not have developed, rather the MLC suggests that the incident taken place much before as alleged by the complainant and eye-witnesses. Doctor further explained that no ligature marks seen around the neck, and cause of death was suggested "probably Aspyxia". On the contrary, the complainant and the eye-witnesses alleged that the appellant (accused) strangulated the deceased. Thus, in this regard too, reliance is placed on Noor Ahmed v. The State (2019 SCMR 1327), the relevant portion is as under: "Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather, belies point of time of assault given in the crime report." Prosecution had failed to establish its case against the appellant beyond a reasonable doubt. Medical evidence is only used for confirmation of ocular evidence regarding cause of death, time of occurrence etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove his culpability.

9. Adverting to the credibility of evidence furnished by the prosecution, it was not of high quality and good standard to connect the appellant with the commission of offence, credibility of witnesses cannot be treated as divisible and accepted against one and rejected against the other. If the honesty of a witness has been shown to be open to question, it cannot be accepted for one and rejected against the other.

10. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better than ten guilty persons be acquitted rather than one innocent person be convicted".

11. It is settled law that the prosecution primarily is bound to establish guilt against the accused without any reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the court to draw conclusion, whether the prosecution has succeeded in establishing accusation against the accused or otherwise? And if it comes to the conclusion that the charge so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. For the accused to be afforded the right of benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty. If a single circumstance created reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he shall be entitled to such benefit not as a matter of grace and concession, but as a right.

12. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must occur in favour of the accused as matter of right and not of grace. It was observed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Pervaiz v. The 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 creates 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 a matter of grace and concession but as a matter of right.

13. For the above reasons, the appeal filed by the appellant is allowed; the impugned judgment dated 25th May 2024 passed by the learned Additional Sessions Judge/Juvenile Justice Court, Khuzdar, is set aside and the appellant Hizbullah son of Lal Muhammad is acquitted of the charge by extending benefit of doubt in his favour. He is ordered to be released forthwith, if not required in any other case. JK/101/Bal. Appeal allowed.