2019 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

By captioned appeal, appellants have assailed judgment dated 24th October, 2016 passed by learned IV Additional Sessions Judge, Hyderabad in Sessions Case No.593/2011 whereby appellants were convicted under section 302, P.P.C. and appellant Ashhab was sentenced to death while appellant Asadullah to life imprisonment as Ta'zir and further they were directed to pay fine of Rs.200,000/- each to the legal heirs of deceased as compensation as required under section 544-A, Cr.P.C. and in case of default thereof; to undergo R.I. for six months; both were extended benefit of section 382-B, Cr.P.C.

2. Briefly, case of prosecution is that on 05.06.2011 at 2030 hours complainant Nazeer Ahmed appeared at Police Station Baldia, Hyderabad and lodged report stating 'that he is a teacher in Education Department, they are four brothers, his elder brother Manzoor Ahmed was employee in UBL at Karachi, on 05.06.2011 in afternoon he along with his father Muhammad Bux, brother Manzoor Ahmed Nonari, his maternal uncle Razik Dino Noonari were present in the house; at about 1400 hours door of their house was knocked which was opened and they found Ashhab son of Ubedullah Helepoto standing there, who told that his computer has gone out of order, send his brother Manzoor Ahmed to repair his computer; the house of Ashhab Halepoto is at a short distance from the house of complainant. The complainant and his brother Manzoor Ahmed accompanied Ashhab, reached at his house at 1405 hours where they saw Ashhab's father Obedullah and his brother Asadullah Helepoto available near kitchen of their house; Obedullah abused his son Ashhab and enquired why he has brought them at their house, on which Ashhab replied that they had exchanged hot words with him, therefore, he has brought them here to teach lesson today, Obedullah Halepoto instigated Ashhab to kill them whereupon Asadullah instantaneously caught hold of Manzoor Ahmed from the neck and took him into kitchen and Ashhab took out pistol from his fold of shalwar and aimed at the chest of Manzoor Ahmed and fired. The complainant tried to hold his brother Manzoor Ahmed but accused Ashhab Helepoto extended threats of murder to him; due to fear the complainant ran away from the house of accused persons and arrived at his house where he informed his maternal uncle Razik Dino and father Muhammad Bux about the incident whereupon they reached at the door of Ashhab and found all the three accused persons dragged the dead body of Manzoor Ahmed and threw him out of the door in the street. All the accused persons came down and accused Ashhab aimed his pistol at complainant party and then they fled away. The complainant and PWs found Manzoor Ahmed dead, they removed his dead body to Civil Hospital where doctors confirmed his death. Police also arrived in the hospital and conducted codal formalities and after post mortem handed over the dead body to complainant. After leaving the dead body at house, the complainant reached police station and lodged FIR.

3. A formal charge at exhibit-3 was framed against accused Ashhab, Obedullah and Asadullah who pleaded not guilty and claimed trial.

4. During trial prosecution examined PW 1 complainant Nazeer Ahmed who produced FIR at Exh.4-A, PW-2 Muhammad Bux at Exh.5. PW 3 Razzak Dino at Exh.6, PW 4 Shahzado at Exh.7, who produced mashirnama of dead body at Exh.7-A, danistnama at Exh.7-B, mashirnama of clothes of accused at. Exh.7-C, mashirnama of place of incident at Exh.7-D and mashirnama of arrest of accused Obedullah and Asadulah at Exh.7-E, PW 5 ASI Hasan Ali at Exh.8 who produced lash chakas form Exh.8-A, letter for conducting post mortem at Exh.8-B, receipt of handing over the dead body at Exh.8-C, roznamcha entries at Exh.8-D and entry No.26 at Exh.8-E, PW 6 Dr. Muhammad Ayoub at Exh.9 who produced police letter at Exh.9-A, lash chakas form at Exh.9-B and post mortem report at Exh.9-C, PW-7 Tapadar Pir Bux at Exh.10, PW-8 learned Civil Judge and JM Farhat Mehtab at Exh.11, she produced confessional statement of accused Ashhab at Exh.11-A, PW 9 Tapadar Syed Sikandar Ali at Exh.12 who produced sketch in quadruplicate at Exh.12-A, PW-1 ASI Javed Hayat at Exh.13 who produced entry No.27 at Exh.12-A, photographs of place of incident at Exh.13-1 to 13-9, entry No.38.- B, entry No.12 at Exh.13-C, letter issued to concerned Mukhtiarkar at Exh.13-D, chemical report at Exh.13-E, entry No.7 at Exh.13-F, mashirnama of arrest of accused Ashhab at Exh.13-G, entry No.14 at Exh.13-H, entry No.21 at Exh.13-I, entry No.23 at Exh.13-J, mashirnama of recovery at Exh.13-K, entry No.25 at Exh.13-L, entry No.7 at Exh.13-M, entry No.16 at Exh.13-N, entry No.17 at Exh.13-O and photocopy of FSL report at Exh.13-P. P.W-11 PC Habibullah at Exh.14 and thereafter prosecution closed its side vide statement at Exh.15.

5. Statement of accused Ashhab, Obedullah and Asadullah were recorded at Exhs. 16, 17 and 18 respectively wherein they denied prosecution allegations against them and claimed their false implications in the case; none of the accused examined himself on oath as required under section 340(2), Cr.P.C. however accused Obedullah and Asadullah examined Fayyaz Ahmed at Exh.19 who produced invitation card of marriage ceremony at Exh.19-A: advocate Balmiyo was examined at Exh.20. However during trial accused Obedullah son of Haji Abu Bakar had expired hence proceedings against him stood abated vide order dated 07.09.2016.

6. We have heard learned counsel for the appellants and that of complainant as well learned D.P.G. and carefully gone through the record.

7. Learned counsel for appellants argued that FIR was lodged with delay of six hours and 25 minutes with consultation and deliberation to cook up a false story; that only eye-witness of the alleged crime, is real brother of deceased and PW Muhammad Bux father of deceased while PW Razik Dino is uncle of deceased and they all are interested witnesses and their evidence cannot be believed; there are major contradictions in testimony of prosecution witnesses and resulting benefit of doubt is to be extended to the accused/appellants; that alleged pistol is easily available and has been foisted upon the accused by police; that co-accused namely Obedullah and Asadullah are respectively father and brother of accused Ashhab and they were in custody at the time of arrest of accused Ashhab therefore under compelling circumstances alleged confession was made which is not voluntary and if believed to be true the alleged confession of accused Ashhab shows that the fire was made accidentally due to mistake; that accused Asadullah was not present at the vardat and he along-with Obedullah had gone to Jaindo Halepoto to attend reception given in honour of marriage of ZuIfiqar Ali with daughter of deceased accused Obedullah and such plea of alibi was taken by them during investigation and they were let off by police but learned Judicial Magistrate took cognizance against them also; entire case of prosecution is highly doubtful and cannot be believed as true. Learned counsel has relied upon 2004 SCMR 1185, 2011 SCMR 474, 2010 SCMR 101, 1988 SCMR 1532, PLD 2004 Karachi 602, 2009 SCMR 1410, PLD 1978 SC 200, AIR 1952 SC 354, PLD 1970 SC 56 and 1998 PCr.LJ 464.

8. Learned counsel for complainant has argued that there is ocular medical and circumstantial evidence including recovery of crime weapon on pointation of accused; such ocular evidence of complainant Nazeer Ahmed is supported by PWs Muhammad Bux and Raziq Dino; that killing of deceased Manzoor Ahmed is not disputed by accused but he accused namely Ashhab in his judicial confession recorded by concerned learned Civil Judge and Judicial Magistrate has tried to convert Qatl-i-amd to Qatl-i-Khata in which he has miserably failed; that medical evidence is inconsistent with ocular evidence adduced by the complainant; that the crime weapon being unlicensed pistol has also been recovered at the pointation of accused from his house; that the delay of about 6 hours in lodging the FIR is natural as dead body was brought at Civil Hospital where doctors confirmed the death and conducted post-mortem hence after funeral ceremony FIR was lodged; Learned counsel has relied upon PLD 2006 SC 354, 2015 SCMR 856, PLD 1964 SC 813, 2004 SCMR 477, 2004 SCMR 1493, 2016 MLD 1042, PLD 2006 SC 219, 2010 SCMR 457, PLD 2005 SC 168 and PLD 2005 SC 477.

9. Learned D.P.G. while adopting the arguments of learned counsel for the complainant, has supported the conviction and sentenced awarded to the appellants.

10. The perusal of the record shows that it was always a case of two versions one, which was claimed by the complainant while other was one, which came to surface through the confessional statement of the main convict Ashhab whereby he had claimed death of deceased from his hands alone but accidentally. The co-accused persons, including deceased accused Obedullah had also taken plea of alibi to their extent only without making any comment onto innocence or guilt of accused Ashhab. The Investigating Officer himself had not believed the version of the complainant as shall stand evident and clear from referral to relevant portions of cross-examination of the Investigating Officer (PW-10 Javed Hayat) which is: "It is correct that after conducting full investigation it was proved that both the accused namely Asadullah and Obedullah are innocent." The co-accused Obedullah and Asadullah took an independent plea of alibi which even was accepted by the investigating officer, as mentioned above. Thus, it would be appropriate to first discuss their case by putting it in juxta position with that so set-up by complainant.

11. Before attending the merits, we would say that we are quite conscious of the well-established principle of law that the prosecution story being the foundation on which edifice of the prosecution case is raised occupies a pivotal position in a criminal case. It should, therefore, stand to reason and must be natural, convincing and free from any inherent improbability. It is neither safe to believe a prosecution story which does not meet these requirements nor a prosecution case based on an improbable prosecution story can sustain conviction. Reference may be made to the case of Mst. Shamim and 2 others v. The State and another 2003 SCMR 1466. Further, it is also equally well established principle of law that mere close relationship with deceased would neither stamp the words of such a witness as trustworthy nor would be sufficient to disbelieve the same but criterion shall always be "whether the evidence of a witness is probable and consistent with the circumstances of the case or not". Reference in this regard may well be made to the case of Lal Khan v. State 2006 SCMR 1846 wherein it is held as: "... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not."

12. Now, we would go to examine the respective pleas. We however will take the prosecution case first. At this juncture, it may be pertinent to mention (sic.) reproduce the relevant portion/version of the complainant contended by him in his FIR which goes to say as under:- "...... At about 1400 hours, door of our house was knocked. I opened the door, so; the person named Ashhab son of Obedullah Halepoto was standing outside, he said that; his computer has become out of order; send your brother Manzoor Ahmed along with me to repair my computer, so, the house of Ashhab Halepoto is situated at a calling distance from our house, so, I called to Manzoor Ahmed, then I and my brother Manzoor Ahmed at 1405 hours, reached along with Ashhab at the house of Ashhab, where, we witnessed that near the kitchen of the house of the Ashhab Halepoto, Obedullah Halepoto the father of Ashhab, his brother named Asadullah Halepoto were standing, so, Obedullah the father of Ashhab while abusing to his son Ashhab said that as to why you have taken them in the house upon which, Ashhab replied that they have exchanged harsh words with us, today I have taken them to teach the lesson, upon which Obedullah Halepoto said to capture them and kill them, upon which at once Asadullah Halepoto having caught hold to my brother Manzoor Ahmed from his neck, took him in the kitchen and Ashhab having taken out pistol from the fold of his Shalwar, made straight fire at the chest of my brother Manzoor Ahmed, so I wanted to hold (rescue) to my brother, so, Ashhab Halepoto said that if you came near, then, you will also be killed, so I due to fear ran outside from their house and having rushed at our house, disclosed to maternal uncle Raziq Dino and father Mohammad Bux, having taken them together, we reached at the door of the house of Ashhab, so we witnessed that above three accused persons while dragging to my brother Manzoor Ahmed from the stairs of their house, thrown him below in the street outside the door, accused Ashhab along with his father and brother Asadullah alighted down and Ashhab while aiming the pistol towards us, all three accused persons fled away, so we saw to our brother, he had died away, we having put to our brother Manzoor Ahmed, took him to Civil Hospital for our satisfaction, .... From above, it appears that: i) complainant sets-up motive as exchange of hot words with them (deceased and complainant); ii) deceased accused Ubedullah instigated to kill them both (complainant and deceased Manzoor Ahmed); iii) the accused Asadullah dragged deceased Manzoor Ahmed by holding him of his neck; iv) accused Ashhab made single fire shot at deceased Manzoor Ahmed and let the complainant to go to call others; v) complainant along with his father and uncle returned instantly and they all saw all three accused persons throwing dead body; vi) instant removal of dead body to hospital by these three witnesses; We will take each separately. First, would take: i) complainant sets-up motive as exchange of hot words with them (deceased and complainant); The exchange of words only was never worth believing particularly when the complainant admitted in his cross-examination as: "The accused used to exchange hot words with me and my deceased brother last since about three months before registration of above case." Though, alleged motive was claimed to be continue for last three months which even per complainant, was so serious that it motivated in murdering deceased Manzoor Ahmed but the facts, circumstances and even conduct and attitude of respective parties had negated importance of such motive. Admittedly the accused Ashhab knocked at the door of the complainant party and had asked for company of deceased Manzoor not only from elder brother but father and uncle of the deceased Manzoor Ahmed. Neither complainant himself nor his father or uncle resisted for a single moment to allow deceased Manzoor Ahmed to go in company of accused Ashhab. Such conduct and behaviour of the complainant party entirely negates existence of any harm to deceased Manzoor Ahmed in company of the accused Ashhab even inside his house. Even otherwise, there came nothing on record to establish that such act of the accused Ashhab was with knowledge and notice of the co-accused persons. Thus, the motive was never so serious rather was a trivial and insignificant hence it was never worth believing that it could have motivated a father to commit murder of deceased in such a manner so as to bring lives and liberty of all under serious threat. Reference may be made to the case of Muhammad Altaf v. State 2002 SCMR 189 wherein while defining the word `knew.' it was observed as: "

9. In the light of the arguments addressed and in view of the factual aspect of the case it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of section 149, P.P.C., and its application to the facts of the case. As this section stands, its ingredients have to be established by the prosecution. The liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained. In this case the motive which allegedly prompted the accused to launch their attack was a dispute between the deceased Ghulam Murtaza and P.W Asghar Ali on one hand and accused Mujahid Nawaz on the other over the pigeons. "The word 'knew' occurring in the second part of section 149, P.P.C. requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder. In this back ground it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grand-father, their son and their grand son would form an unlawful assembly with the only object to commit murder. Therefore, in these circumstances section 149, P.P.C. cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack." However, leaving it here we would proceed further: ii) deceased accused Obedullah instigated to kill them both (complainant and deceased Manzoor Ahmed); iii) the accused Asadullah dragged deceased Manzoor Ahmed by holding him of his neck; iv) accused Ashhab made single fire shot at deceased Manzoor Ahmed and let the complainant to go to call others; These perhaps were included so as to show the common intention of the deceased accused Obedullah. Before going any further, it would be appropriate first to refer criterion, chalked out by the Apex Court so as to examine the application of section 34, P.P.C. in the case of Shoukat Ali v. State PLD 2007 SC 93 as:

8. After having gone through almost entire law qua the provisions as contained in section 34, in our considered view the following are the prerequisites of the section 34 before it could be made applicable:-- "a) It must be proved that criminal act was done by various persons; b) The completion of criminal act must be in furtherance of common intention as they all intended to do so; c) There must be a pre-arranged plan and criminal act should have been done in concert pursuant whereof; d) Existence of strong circumstances (for which no yardstick can be fixed and each cases will have to be discussed on its own merits to show common intention; e) The real and substantial distinction between 'common intention' and 'similar intention' be kept in view' The complainant himself had negated any pre-planning and even knowledge of the accused Obedullah by himself saying in his FIR as well his examination-in-chief as: "It was about 02-05 p.m., where I noticed in the kitchen of the house accused Obedullah and Asadullah, the father and brother respectively of Ashhab were standing. Said Obedullah while abusing his son Ashhab said why he had brought me and my brother Manzoor Ahmed there. The reply of Ashhab was that both me and my brother Manzoor Ahmed used to quarrel with him, therefore, he had brought us there to teach lesson." Such responses were always sufficient to indicate that deceased co-accused Obedullah and Asadullah, even per complainant had no knowledge or notice of the act of the accused Ashhab. On seeing the Manzoor Ahmed (deceased) and complainant inside the house, the immediate reactions of co-accused Obedullah and Asadullah were always sufficient even to conclude that even bringing of the deceased and complainant was not with knowledge of the deceased accused Obedullah and Asadullah nor did they have any concert in such act of the appellant Ashhab. Be as it may, it is quite illogical and unbelievable that the instigation of the deceased Obedullah, who instigated his sons (appellants Ashhab and Asadullah) only in respect of the deceased Manzoor Ahmed while the complainant was not caused any harm rather was allowed to go safely although as per the complainant himself the grievance and instigation of killing was with use of word 'them'. The accused Asadullah though allegedly was holding the deceased Manzoor Ahmed but neither received any injury nor were his clothes stained with blood of deceased, as investigation officer never recovered such blood-stained clothes of the accused Asadullah rather had believed such claim of these accused persons by finding them innocent. Further, it was also not attempted by the complainant that accused Asadullah had any knowledge and notice of future act of the accused Ashhab i.e to kill the deceased by taking pistol from his fold. Mere act of holding the deceased by neck or dragging him does not necessarily establishes the common intention of the accused Asadullah because had the accused Asadullah knew that accused Ashhab would use pistol there had been no necessity to hold the deceased Manzoor Ahmed thereby putting himself into danger of being exposed to a fire-shot being made from a very short distance. Not only this but the alleged other two eye-witnesses stated in their examination-in-chief(s) as: Ex.5 PW-2 Muhammad Bux. "After a short while Nazeer Ahmed came crying and informed that in his house, accused Ashhab had fired at Manzoor Ahmed and thereby had caused his death." Ex.6 PW-3 Raziq Dino. "After a short while, Nazeer Ahmed came running and informed that Manzoor Ahmed was killed by accused Ashhab. This also prima facie establishes that even per other two witnesses the complainant at first had not named the co-accused persons nor even referred their presence at the spot. This also makes the story, so set-up by the complainant, thereby involved these accused persons doubtful. Not only this, but the manner in which the complainant was let go free despite every opportunity of killing him too is not logical because in a pre-arranged plan culprits do keep their safely and possibility of avoiding consequences of law in view.

13. Be as it may, let's take up other two portions of complainant's story which are: v) complainant along with his father and uncle returned instantly and they all saw all three accused persons throwing dead body; vi) instant removal of dead body to hospital by these three witnesses; These portions never found strength from the material, so produced by the prosecution itself. The complainant in his cross-examination had admitted that: "At the time when the accused, deceased and we were present, nobody else arrived there. It is correct that the place of incident is located in a populated residential area. Perhaps my maternal uncle Razigdino had informed the police about the incident. Perhaps information was passed to the police by him on mobile phone." The incident was of day time hence a fire-report as well running of a crying boy must have attracted to people/neighbourers. Such inevitable consequences were deliberately denied by complainant party. Be as it may admittedly the complainant claims that first phone call after throwing of dead body within their presence was made by his uncle Raziqdino (PW-3) to police who (PW Razicidino) even himself admitted in his cross-examination that: "We raised cries, after which I informed the police on mobile phone. I called for ambulance" hence it can never be believed that such alleged eye-witness would inform the police but would not: a) name the injured/deceased; b) name the accused / culprit; c) disclose his name / identity; what the prosecution itself produced speak otherwise. Worth to note that PW 5 Hassan Ali, who had initially-received information, deposed as: "On 05.6.2011, I was posted as SIP operation wing at Police Station Baldia. On the same day at about 1450 hours I received telephone call from unknown person who informed that one person was lying in injured condition in front of the house of one Ubedullah Halepoto in Baldia Colony Hyderabad within jurisdiction of Police Station Baldia". He admitted in his cross-examination that: "I received the telephone call from unknown person being duty officer I enquired about identity for caller but he did not reply and drop the call. Not only had this, but the prosecution itself exhibited as Ex.9-D. For which the PW-10 Investigation officer categorically stated as: "It is correct that it is mentioned in entry No.15 that one unknown person had informed the police on telephone about the availability of dead body of unknown person. It is correct that there is no name of any witness of the incident mentioned in entry No.15 Ex.9-D."- Further, the Danistnama at Ex.7/B dated 28.12.2013 available at page 151 of paper book, in its fifth column reads as under:- 1. 2. 3. 4.

5. When police received information about murder of deceased, who gave information and what has been stated. Unknown person gave information through phone call that one dead body is lying outside the house of accused Obedullah Halepoto at Baldiya Colony, Hyderabad in the street and blood is oozing. All the above are sufficient to conclude that first information was communicated to the police at "1450 hours" which too by an unknown person whereby information was given about availability of an injured person in front of the house of the accused Obedullah Halepoto. These documents were always sufficient to negate or least bring the manner of happening of incident, claimed by the complainant and eye-witnesses that incident took place at "1405 hours" and that it were they alone who witnessed incident and had informed the police. Besides, the complainant and witnesses admitted reaching of the police at hospital shortly after their arrival. The complainant admitted in his cross-examination as: "I do not remember accurately but, may say after about 15 minutes, the police had arrived at hospital after our arrival."

14. It is always logical and even within lines of common behaviour that the blood-relations shall shout instantly the name of the culprit (killer) seeing the police but the record was otherwise. As per the Investigating Officer they (complainant party) were never in a position to name the culprit or manner of the incident till the FIR was lodged. This will be evident from admissions, made by the Investigating Officer (PW-10) during his cross-examination that: "It is correct that on 5.6.2011 till 6-30 p.m. I did not find the name of accused Ashhab in the documents of the police which I had perused. It is correct that all the documents prepared by me during investigation I have not mentioned the name of any eye-witness." "It is correct that it is mentioned in entry No.17 that father of the deceased was asked to lodge the FIR at PS. It is correct that it is mentioned in entry No.17 that the father of the deceased had replied that his relatives were coming from the village and he will lodge the FIR after due consultation with them." Thus, the failure of blood-relations to report the matter despite asking casts serious doubt on their veracity. Reference may be made to the case of Wajahat Ahmed v. State 2016 SCMR 2073 wherein it is held that: "7. ....Rather in his cross-examination he has stated that he along with his injured wife visited PS Gogera at about 1.30/2 p.m. on 26.10.2010 i.e almost immediately after the occurrence but did not make any statement regarding the occurrence. The failure of complainant (PW1) to report the incident to the police when he visited the police station along with his injured wife (deceased Mst. Surayya Bibi) casts serious doubt on the veracity of his statement made before the learned trial Court. Further, conduct, displayed by the said witnesses has been found by us to be far from being satisfactory, usual or even natural because their claimed actions and omissions, so detailed above, are not so which a normal person would do seeing his blood-relation killed. The words of a blood-relation shall never be worth believing blindly unless the same stand well with criterion, insisted in the case of Lal Khan supra. Thus, their evidence was never worth believing safely. Reference may be made to the case of the Muhammad Ismail v. State 2017 SCMR 898 wherein it is held as: "4...... The Waj-takar evidence was provided by Muhammad Arshad (PW9) who ordinarily resided about 100 miles away from the place of occurrence and the stated reason for his presence in the village of occurrence during the fateful night had remained far from being established through any independent evidence whatsoever. The prosecution had produced Haq Nawaz (PW4) and Abdul Shakoor (PW5) who had claimed to have seen some of the appellants throwing two dead bodies in a well during the fateful night which throwing of the dead bodies had statedly been seen by them in the light of a torch. The conduct displayed by the said witnesses has been found by us to be far from being satisfactory, usual or even natural because on their own showing the said witnesses had, after witnessing throwing of the dead bodies in a well, gone to their own houses and had slept during the night and when they returned to the relevant place in the morning the local police had already reached there. The presence of these witnesses was not natural hence their status was one of `chance witness'. It is by now a well settled principle of law that a single doubt, showing reasonable doubt regarding presence of a witness on crime spot, is sufficient to discard his evidence. Reference may be made to the case of Mst. Rukhsana Begum and others 2017 SCMR 596 wherein it is held as: "A single doubt reasonably showing that a witness/witnesses' presence on the crime spot was doubtful when a tragedy takes place would be sufficient to discard his/their testimony as a whole. ..." These were always sufficient to safely conclude that manner in which these witnesses claim their presence was neither direct nor natural or least was full of doubts. Further, there is another aspect which completely negates the set-up claimed of the complainant party. The complainant at one hand claimed happening of the incident at or near the kitchen as is evident from admission, made by the Investigating officer that: "It is correct that as per FIR the incident had taken place at 2-05 p.m. It is correct that as per FIR the place of incident is shown inside the kitchen of the house of accused Ashhab located at Baldia Colony, Hyderabad." and complainant in his FIR claimed that: "above three accused persons while dragging to my brother Manzoor Ahmed from the stairs of their house, thrown him below in the street outside the door." If the incident had taken place inside the kitchen then there was no need for the accused persons to immediately take the dead-body upstairs for throwing it outside the house rather they were to prefer their escape by leaving the dead body inside the house particularly when they let claimed eye-witness (complainant) go unharmed who was sure to bring witnesses. This piece of prosecution story is also not fitting with common human behaviour and conduct. Not only this, but if things are believed as it is claimed then by no stretch of imagination the accused persons had any time to attempt washing-out the blood-stained flooring as was so found by investigating officer while preparing mashirnama of sirzamin. This will stand evident from relevant portion of the evidences of Investigating officer which is:- "On 05.6.2011 I was posted as ASI at Police Station Baldia Hyderabad. On such date, I had received FIR No.77 of 2011, lash Chakas....... from ASI Hassan for investigation of the case. On the same date, I left the police station vide entry No.17 for visiting place of incident in presence of complainant, which was located in the house No.___ in Colony and is the house of accused Ashhab. We visited the place of incident and found that blood stained was tried to clean from the earth in the house. I secured the cleaner and blood stained mud from the place of incident and sealed the same.

15. The above makes it clear that there was also made an attempt to clean (wash-out) the blood from the place of incident which undeniable fact is sufficient to cut at the root of the complainant's story which (story) does not provide any room for the accused persons to make an attempt to clean/wash the blood-stained.

16. The ocular account prima facie has failed but since the unnatural death inside the house of the accused persons is not disputed which requires an explanation from the accused persons. Thus, it would be appropriate to examine the available material keeping such legal position in view.

17. Admittedly the first stand of the appellant Ashhab was different from that of his brother (appellant Asadullah) and dead accused Ubedullah. Therefore, it would be appropriate to examine the respective stands separately. Before starting, we would add that law is by now well established that in a criminal case it is duty of the court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of whole evidence the court is of the opinion that there is reasonable possibility that the defence, put forth by the accused, might be true then such a view reacts on the whole prosecution case. Reference may be made to the case of Muhammad Akram v. State 2012 SCMR 440 wherein it is held at Rel. Page-445 as: "It is cardinal principle of law that in such like cases of two versions, one is to be believed in toto and not in piecemeal. This proposition of law is well settled by now as reflected in the case of Safdar Ali v. Crown (PLD 1953 FC 93) wherein it has been held that in a criminal case it is duty of the court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of whole evidence the, court is of the opinion that there is reasonable possibility that the defence put forth by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt not as a matter of grace but as of right because the prosecution has not provided is case beyond reasonable doubt. The aforesaid principle has been further elaborated in the case of 'Nadeem-ul Haq Khan and others v. The State (1985 SCMR 510)."

18. It is a matter of record that the appellant Asadullah and deceased Ubedullay from very beginning never disputed the happening of the incident within their house but had taken specific plea of their being in a feast, held by their relative Fayaz Ahmed in his house situated in village Jiando Halepoto in respect of marriage of Surhiya (sister of appellant Ashhab and Asadullah). This plea was believed by the investigating officer and the appellant Asadullah and dead accused Ubedullah were released under section 497, Cr.P.C. The investigating officer did state so during his examination-in-chief as: "On recording such statements of the above named witnesses and after the approval of SSP investigation Hyderabad I had released accused Ubedullah and Asadullah under section 497, Cr.P.C. under entry No.17 which I produce as Ex.13-O". During trial even these witnesses examined witnesses to establish such plea but the learned trial court judge did not believe the same merely with reference to an entirely illogical reasoning i.e: "Had there been reception in hour of marriage of Mst. Sumaya in the house of DW-Fayyaz Ahmed, what was the reason for accused Ashhab not to attend the same, when the entire family was invited..." Leaving one of the family members in a house is not unnatural rather is a common practice hence the learned trial Court judge was not justified in disbelieving the plea of appellant Asadullah and deceased accused Ubedullah on such illogical reason alone particularly when the story of the complainant party was never standing well with required criterion of ocular account to be direct, natural and confidence inspiring. Reference may well be made to the case of Mehboob-ur-Rehman v. The State 2013 SCMR 106 wherein it is held as: "

6. The most significant aspect of the matter as noted by us is the fact that the appellant/accused had himself surrendered before P.W.10 S.I./I.O. Muhammad Ashraf Khan along with the letter from the Commanding Officer of Gilgit Scouts dated 17.8.2000 to the effect that the appellant was on duty in Gilgit on the day of occurrence which was produced in evidence as Exb.P.W.10/2 by said witness. Similarly under cross-examination he has also produced the statement of five persons from the appellant's unit namely .... to the effect that indeed the appellant was on duty with them in Gilfit on the day of incident. This would therefore mean that at the earliest opportunity the appellant had insisted upon his plea of alibi before the police authorities and also stated as much in his statement under section 342, Cr.P.C. before the learned trial Court. PW-10. S.I./I.O. Muhammad Ashraf Khan was not declared hostile or cross-examined by the Prosecution insofar his evidence regarding the appellant's alibi is concerned. In this regard it is well settled that the accused while raising a defence plea is only required to show that there is a reasonable possibility of his innocence and the standard of proof is not similar to that as expected of the prosecution which must prove its case beyond any reasonable doubt.

19. The so far discussion and a comparative examination of prosecution case and plea of the appellant Asadullah as well dead accused Obedullah, we are of the firm view that there had never been sufficient material to convict them. A single reasonable doubt is always sufficient to earn the acquittal not as a matter of grace but as right. Reference may be made to case of Hashim Qasim and another supra wherein it is held as:

20. Even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts is bedrock principle of justice. Reference may be made to the case of Riaz Masih Mithoo v. The State 1995 SCMR 1730. Now, we would take, up the plea of the appellant Ashhad which he had introduced, per prosecution material, on the next day of his arrest which was that: "On 05.6.2011 about 1:00 pm I was available in my house. My family members had gone to village Jiyando Halepoto in a feast (DAWAT). My friend Manzoor Ahmed came to see as we both had to go for getting computer repaired. I had my pistol. I and my friend were kidding by showing pistol to each other. There was a bullet in the chamber of the pistol which we did not know. Pistol was in my hand when accidentally it fired which hit to Manzoor because of which he died instantly. I was very much worried. I placed his dead body out of the house in street. Due to fear, I hid the pistol beneath the water- tank; tried to wash/clean the blood stains but didn't. Thereafter, I due to fear went to Karachi. After two/three days I came to know that an FIR has been lodged against me and my brother. I returned from Karachi and now I am giving my statement that accidentally it fired from me......

20. Though, the appellant Ashhab retracted from his said statement but since it is equally well established principle of law that even if a retracted confession stands proved from other unchallenged or proved circumstances then the same can be believed. Reliance can safely be made to the case of Hashim Qasim and another v. State 2017 SCMR 986 wherein it is held as:

11. The confession of appellant, Khayam Khurshid, recorded on 9.3.2007 by the Magistrate, namely, Shah Waliullah (PW 15) is the most suspicious piece of evidence in the whole case, besides having been retracted one. It might be right, as was argued by the learned counsel for the complainant, that retracted confession, if corroborated by independent evidence of reliable nature, can be made basis for conviction on a capital charge but it must be subject to the above cardinal principles.

21. The above statement completely fits and finds support from following established material which are: i) the death happened inside the house of accused Ashhab; ii) dead body was first reported to be lying in street which was reported by an unknown person to police; iii) the investigating officer did find attempt of washing/cleaning the blood-stains; iv) the pistol was recovered at pointation of the appellant Ashhab beneath the water-tank, as was stated by the Investigation office as:- ...I along with my subordinate staff with accused Ashhab went to place of incident i.e the house of accused Ashhab vide entry No.23, which I produce as Ex. 13-J. When we reached there, the accused had taken us on the roof of house and took out a pistol of .30 bore along with one live bullet which was lying under the water tank of the house. v) the accused Ashhab was alone and his family members had gone in a feast at place which is named in confession;

22. Since, it is also equally established principle of law that statement of defence is either to be rejected or taken as a whole therefore, we are persuaded to accept happening of the incident in the manner which the appellant Ashhab introduced particularly when no logical and reasonable motive was ever established which could have motivated the appellant Ashhab to commit murder of his friend Manzoor Ahmed. Accordingly we are of the considered view that this is the case of Qatl-i-Khata and not Qatl-i-amd. Accordingly instant appeal is partly allowed. The conviction awarded to appellant Asadullah is hereby set-aside and he is acquitted from the charge by extending him benefit of doubt. The death` sentenced awarded to appellant Ashhab is also modified and is altered to Qatl-i-Khata punishable under section 319, P.P.C. and is sentenced to pay Diyat amount to the legal heirs of the deceased as well to suffer imprisonment for five years. The appellant prima facie has been in jail more than a period of five (05) years and per legally established principle of law one cannot be detained for want of payment of Diyat (calculated by the Nazir of this court) therefore, the appellant if furnishes security to pay Diyat amount in four instalments within two years before Nazir; he shall be released, by jail authorities if not required in any other crime case. The appellant Asadullah however shall be released forthwith if not required in any other crime. Hence the murder reference is also answered as not proved, thus is responded in negative. Legally on death all the pending inquiries/trial proceedings stand abated as was done in respect of accused Ubedullah, however, since there had also been findings against the accused Ubedullah, hence we feel it proper to make it clear that same are also un-warranted under the law and shall have no consequences. JK/A-144/Sindh Order accordingly.