2018 PLP 277 (YLRN)

MUHAMMAD IQBAL MAHAR, J.

By this single judgment I intend to dispose of above caption appeals as both are arising out of one and same judgment. The appellants have impugned the Judgment dated, 26.08.2008 passed by learned Additional Sessions Judge Gambat, in Sessions Case No.261/2003, "Re-State v. Faiz Muhammad and others" emanating from FIR No.72/2003 of Police Station Ranipur, whereby they were convicted and awarded sentence as under: Appellant Faiz Muhammad alias Faizal and Zamir Hussain convicted for offence punishable under section 201, P.P.C. and sentenced to undergo R.I. for three years each and to pay fine of Rs.10,000/- each and in default whereof to further under go SI for one month. For offence under section 302(b), P.P.C. as Tazir and sentenced to imprisonment for life each and to pay compensation of Rs.100,000/- each to the legal heirs of the deceased Hyder Bux and in default whereof to undergo RI for one year. Appellant Faiz Muhammad alias Faizal is convicted for offence under section 404, P.P.C. and sentenced to undergo RI for three years and to pay fine of Rs.10,000/- and in default whereof to undergo SI for one month. All the sentences awarded to the appellants were ordered to run concurrently. The benefit of Section 382-B, Cr.P.C. was extended to them.

2. Precisely, prosecution case is that on 01.09.2003 complainant Nazir Ahmed and his brothers, namely, Aijaz Ali, Munir Hussain, Zahid Hussain, Shoukat Ali and Hyder Bux were present in their house. At about 11.00 pm door of their house was knocked on which Hyder Bux, having licensed gun in his hand, went to the door. He was followed by complainant and his other bothers. They came out and saw on the light of electric bulb, appellants Faiz Muhammad alias Faizal and Zamir Hussain acquitted accused Hamz Ali and Ghulam Mustafa. The accused persons called Hyder Bux on the pretext that they have to go with some work. In presence of complainant party, deceased Hyder Bux accompanied the accused persons but did not return back till morning and thereafter the complainant inquired from accused Faiz Muhammad alias Faizal who informed that he has gone out and would come back after two three days. The complainant party suspected about the murder of deceased at the hands of accused persons. On 09.09.2003 the complainant and PWs while searching Hyder Bux saw a piece of land suspecting to be the grave of their brother. Thereafter, the complainant lodged the FIR. On 15.9.2003 the spot was dug out and dead body of deceased Hyder Bux was taken out. The exhumation of dead body of Hyder Bux was conducted by Medical Board in presence of Judicial Magistrate.

3. The police after usual investigation submitted challan of the case in the Court of law against appellants and acquitted accused Hamz Ali and Ghulam Mustafa. Learned trial Court observed all legal formalities and framed the charge against the appellants at Ex.2 to which they pleaded not guilty and claimed trial.

4. To substantiate the charge, prosecution examined PW-1, complainant Nazir Ahmed Solangi at Ex.7, who produced FIR and receipt at Exs.8 and

9. PW-2, Zahid Hussain at Ex.10, who produced copy of NIC and 164, Cr.P.C. statement at Exs. 11 and

12. PW-3 Muhram Ali at Ex.13, who produced copy of NIC and 164, Cr.P.C. statement at Exs. 14 and

15. PW-4, Muhammad Suleman Solangi at Ex.16, who produced memo of wardat, memo of inspection of grave, memo of digging out dead body, memo of arrest of accused, memo of recovery of licensed gun of deceased from accused Faiz Muhammad alias Faizal and memo of recovery of spade from accused Zamir Hussain at Exs. 17 to

22. PW-5, SIP Hafiz-ul-Rahman at Ex. 24, who produced letter to Judicial Magistrate for 164, Cr.P.C. statements of witnesses, letter to Judicial Magistrate for confession of all accused and chemical report at Exs.25 to

27. PW-6, Abdul Shakoor Shar at Ex. 28, who produced sketch of place of wardat at Ex.29, PW-7, Dr. Mir Muhammad Sahto at Ex.30, who produced exhumation report, order of constitution of board, letter addressed to Chemical Examiner chemical report and final exhumation report of deceased Hyder Bux at Exs. 31 to

35. PW-8, SIP, Syed Zamir Hussain Shah at Ex.36, who produced roznamcha entries, letter to Judicial Magistrate, at Exs. 37 to

40. PW-9, Judicial Magistrate Muzafar Ali Rajput at Ex.41, who produced 164 Cr.P.C. statements of PW Zamir Hussain, Muhammad Anwar, confessional statements of appellants Faiz Muhammad, Zamir Hussain, acquitted accused Hamz Ali and Ghulam Mustafa at Exs. 46 to 49 and then learned DDA closed the side of prosecution vide statement at Ex.50.

5. After conclusion of the prosecution evidence, learned trial Court recorded the statements of appellants as required under section 342, Cr.P.C., at Exs. 51 to 54, in which they denied the allegations and stated that they are innocent and have falsely been involved in this case. They also examined themselves on oath at Exs. 55 to 58 respectively and denied the case of prosecution as well as confession recorded before learned Magistrate, however they did not examine any witness in their defence.

6. After hearing the arguments of learned counsel for the parties and appraising the prosecution evidence, learned trial Judge reached at the conclusion that the prosecution could not establish its case beyond reasonable doubt against Hamz Ali and Ghulam Mustafa and acquitted them from the charge by giving benefit of doubt. However, he found the case against the appellants to have been proved by the prosecution beyond any reasonable doubt and convicted them as stated above. The appellants feeling aggrieved by the said judgment preferred instant appeals.

7. Learned Counsel for the appellants contended that the impugned judgment passed by trial Court is against the law and criminal administration of justice; that the appellants are innocent and have falsely been involved in this case by the complainant with ulterior motives; that the prosecution evidence is deeply interested and consists of close relatives of the deceased and no independent witness of the locality has been cited as witness; that no body has seen the appellants while committing the murder of deceased or concealing the dead body; that there is unexplained delay of 8 days in lodging the FIR, 11 days delay in recording 161, Cr.P.C. statements of the witness and 12 days delay in recording confessional statements of the accused; that the confessional statements are defective; that the medical evidence is inconsistent with the ocular evidence which belies the prosecution case; that the prosecution evidence has already been disbelieved by learned trial Court in respect of Hamz Ali and Ghulam Mustafa, who have been acquitted by the trial Court, hence same set of evidence cannot be relied upon without independent corroboration, which is lacking in the case; that the recovery of gun and spade from the appellants were cooked up and recovery had no intrinsic value so as to support the prosecution case; that there are material contradictions in the evidence of PWs which create reasonable doubt in the prosecution case. He lastly concluded that the prosecution has failed to prove its case against the appellants beyond shadow of doubt, hence they deserve acquittal. The learned counsel for the appellants relied upon case of Muhammad Yousaf v. The State (1995 SCMR 351) Javaid Iqbal and another v. The State (1998 SCMR 32), Muhammad Khan v. Moula Bakhsh and another (1998 SCMR 570), Kirir and another v. The State (1969 SCMR 647), Iftikhar Hussain and another v. The State (2004 SCMR 1185), Khan Muhammad and another v. The State (1981 SCMR 597), Mah Gul v. The State (2009 SCMR 4) and Tariq Parvez v. The State (1995 SCMR 1345).

8. Learned DPG while refuting the contentions of learned counsel for the appellants supported the impugned judgment on the grounds that the prosecution has proved its case against the appellants beyond any shadow of doubt; that the witnesses are natural and they have fully supported the case; that the appellants made confessional statements before learned Magistrate which are corroborated by the medical evidence.

9. I have given exhaustive consideration to the arguments advanced by the learned counsel for the respective parties and have scanned the record minutely.

10. The prosecution examined in all nine witnesses to prove the case, out of them four are private witnesses, not only they are close relatives of the deceased but inimical towards the appellants, hence their evidence requires independent corroboration, which is lacking in the case. Furthermore, there is no direct evidence of the incident, only it has been alleged that the appellants and acquitted accused took away the deceased with them on the pretext of some work, which does not appeal that in existence of enmity, the complainant party would allow the deceased to go with their enemies at night time.

11. There is delay of 8 days in lodging the FIR and 11 days in recording 161, Cr.P.C. statements of the PWs which has not been explained. In absence of any explanation of delay in recording the statements of witnesses under section 161, Cr.P.C., their evidence could be ruled out of consideration. In this respect reliance can be placed upon case of Javaid Iqbal and another v. The State and Muhammad Khan v. Moula Bakhsh and another supra.

12. Adverting to confessional statements of the appellants, it is necessary to mention that there is delay of 12 days in recording the confessional statements of the appellants and acquitted accused. As per mashirnama, the appellants were arrested on 10.10.2003 and their confessional statements were recorded on 23.10.2003, though two times they were produced before learned Magistrate for remand, for which no explanation has been given by the prosecution and later on the confession was retracted by the appellants and acquitted accused. In case of Khan Muhammad and another v. The State supra the honourable Supreme Court has held that prosecution failing to explain the delay in recording the confessional statement would create doubt qua the confessional piece of evidence while in case of Mah Gul v. The State supra it has been held by honourable Supreme Court that belated retracted confessional statement of the appellant and the evidence of recoveries only which being purely of corroboratory in nature, are not capable to bring home charge against the appellant in absence of direct evidence.

13. The appellants and acquitted accused stated in their confessional statements that firstly they gave some intoxicant to the deceased in tea and later on committed his murder but as per chemical report no intoxicant was detected from the samples sent to the laboratory.

14. The allegation against the appellants and acquitted accused persons is that they went at the house of deceased and took him away and all the four made judicial confession but on the basis of same evidence Hamz Ali and Ghulam Mustafa have already been acquitted by the trial Court, means the prosecution evidence and confessional statements have been disbelieved, therefore, same set of evidence cannot be relied upon against the appellants without independent corroboration, which is lacking in the case. It is necessary to mention that the prosecution has not challenged the acquittal of Hamz Ali and Ghulam Mustafa. In case of Iftikhar Hussain and another v. The State, supra the honourable Supreme Court has held: " . It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, that evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. sifting of grain out of chaff i.e. if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against an other set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts."

15. The learned trial Judge has sought corroboration from recovery of gun of the deceased from appellant Faiz Muhammad alias Faizal and blood stained spade from appellant Zamir Hussain but it is necessary to mention here that the number of gun of deceased given in FIR is different than the number of gun recovered from the appellant. Per FIR the number of gun is DBBL, B-2334, -while mashirnama of recovery shows the number of gun as DBBL, 12 bore 112, therefore, it cannot be said that the gun belonging to deceased has been recovered from appellant Faiz Muhammad alias Faizal, hence mere recovery of gun would not connect the appellant with the commission of offence.

16. Adverting to the recovery of blood stained spade from appellant Zamir Hussain, it is stated that the appellants and acquitted accused in their confessional statements disclosed that they committed the murder of deceased with spade in the house and after digging the grave buried the dead body but the spade, up to its recovery on 17.10.2003, was found blood stained, which does not appeal to a lay man. Even otherwise, it has been held in case of Kirir and another v. The Crown supra that mere recovery of blood stained weapons without any other reliable evidence, cannot be made basis of conviction.

17. Apart from above there are many other contradictions and discrepancies in the evidence of prosecution witnesses, which cannot be ignored while deciding the case and on the basis whereof, no conviction could be recorded.

18. The sequel of the above discussion is that the case against the appellants is identical to that of Hamz Ali and Ghulam Mustafa, who have already been acquitted by learned trial Court. Neither there is direct evidence and nor there is any independent corroboration, thus the prosecution has also been failed to prove the guilt of the appellants/ accused beyond reasonable doubt and it is settled law that benefit of every doubt is to be extended in favour of the accused. In this respect, learned counsel for the appellants has rightly relied upon case of Tariq Parvez v. The State supra wherein it has been held by honourable Supreme Court that: "Benefit of doubt

Principles

For giving benefit of doubt it is not necessary that there should be many circumstances creating doubts

Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."

19. Keeping in view the above facts, circumstances of the case and case law referred above, benefit of doubt is extended in favour of the appellants and as a consequence whereof instant appeal is allowed and the appellants are acquitted of the charge. They are present on bail, their bail bonds stand cancelled and sureties discharged. JK/S-25/Sindh Appeal allowed.