IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
Criminal Jail Appeal No.S-315 of 2019
Present:
Mr.
Justice Zulfiqar Ali Sangi.
Appellants: Roshan
son of Allah Jurio Shaikh and Rajab son of Gul Muhammad Shaikh Through Mr. Mazhar Ali Laghari, advocate.
The State: Through
Mrs.
Rameshan Oad, Assistant Prosecutor General
Date of hearing : 11.08.2023.
Date of decision : 11.08.2023.
J U D
G M E N T
Zulfiqar
Ali Sangi, J.– The
appellants/accused named above have preferred instant Crl. Jail Appeal, whereby
they impugned the judgment dated 21.10.2019, passed by 1st Additional
Sessions Judge, Tando Muhammad Khan, in Sessions Case No.31/2019 (Re. The State
Vs. Roshan Ali and another) arising out of FIR No. 123/2019, offence u/s 376(ii)
and 34 PPC, registered at P.S Tando Muhammad Khan, whereby they were convicted
and sentenced R.I for ten (10) years and to pay fine of Rs.50,000/- (Fifty thousand)
each with benefit of 382-B Cr.P.C.
2.
Precisely, the case of prosecution
as unfolded in the FIR lodged by the complainant Mitho is that he has a
daughter Shirimati Jamna aged about 13 years, some days prior to the incident
they have migrated to Tando Muhammad Khan for doing labor and built a temporary
hut behind Noonari Petrol Pump. On 07.06.2019, daughter of complainant Mst. Jamna
went to city for buying things and did not return though considerable time
passed, complainant and his son Shabbir went for her search. It was about 1630
hours, they saw Mst. Jamna, who was in intoxicated condition and walking lamely
in the Sugar Mill ground, complainant took her to Civil Hospital Tando Muhammad
Khan, where complainant left his son Shabir with his daughter Jamna, went to PS
and informed the facts to police and got medical letter for her treatment.
Thereafter, complainant went back to Civil Hospital, where his daughter’s first
treatment was carried out and she become conscious. On interrogation, she
disclosed that at 1200 hours, when she reached at Sugar Mill, accused namely
Roshan son of Allah Jurio Shaikh and Rajib Ali @ Jugnu son of Gul Muhammad were
standing near bushes, who called her and said they had a piece of work with
her, accused persons took her towards the bushes side beside the mill and they administered
wine, then removed her clothes and committed Zina with her. Thereafter, they
went away leaning her in unconscious condition, wherefrom she was brought at
Civil Hospital Hyderabad. After getting treatment, complainant appeared at PS
and lodged FIR as stated above.
3. On
the conclusion of usual investigation, challan was submitted against the
appellants/accused for offence U/S 376(ii) PPC and by completing legal
formalities, the trial Court framed the charge against accused to which they pleaded
not guilty and claimed to be tried.
4. The
prosecution in order to prove the case has examined 09 witnesses; they have produced
certain documents and items in support of their evidence. Thereafter, the side of the prosecution was
closed. The appellants were examined in terms of section 342 Cr.PC, wherein they
have denied the allegations leveled against them and pleaded their innocence.
5. After hearing the parties and assessment
of the evidence recorded by the trial court against the accused they were convicted
and sentenced as stated above, against the said conviction accused preferred
instant appeal.
6. Learned counsel for the appellants/accused
argued that accused are innocent and have falsely been implicated in this case
by the complainant, that
there is no any eyewitness of the incident as neither the complainant nor any
other PWs have claimed to witnessed the incident; that there are material
contradictions in the evidence of prosecution witnesses, which destroy the
whole case of prosecution; that the trial Court has failed
to appreciate the factual as well as legal aspects of the case while convicting
the appellants/accused; that the learned trial court has passed the impugned
judgment without application of judicious mind. Lastly, he prayed for acquittal of the appellants.
7. Conversely, Mrs. Rameshan Oad, Assistant Prosecutor
General for the State contended that the prosecution has successfully proved
its case against the accused beyond a reasonable doubt and all the witnesses
including victim have fully implicated the appellants/accused in their evidence
recorded by the trial Court; that all necessary documents including the medical,
FSL as well as DNA reports have been produced at the trial; that evidence
adduced by the prosecution at the trial is properly assessed and evaluated by
the trial Court which was sufficient to warrant conviction against the
appellants/accused; that during the cross examination counsel had not shaking
their evidence; that there are no major contradictions in the evidence of
prosecution witnesses. Lastly, she submitted that appellants were rightly
convicted by the trial Court and she prayed that appeal of appellants/accused
may be dismissed.
8. I have heard learned Counsel for the
appellants/accused, learned A.P.G for the State and have examined the record
carefully with their able assistance.
9. The meticulous perusal of the evidence brought on record is entailing
that all the witnesses have tried to support the case of prosecution but their
evidence on deeper analysis was found unreliable coupled with material
improbabilities. The broad features involved in this case are that the
complainant is the real father of victim who in the FIR claimed that on
07-06-2019, his daughter Jamna went to city for buying things and did not
return after passing considerable time then he and his son left the house for
search of his daughter and when at 0430 hours in the evening, they saw his
daughter Jamna, who was in intoxicant condition and was walking lamely in the Sugar
Mil ground. They brought his daughter at Civil Hospital, Tando Muhammad Khan,
where he by leaving his daughter approached at police station obtained letter
for medical treatment. After that he came back at hospital where his daughter
came into conscious condition and informed him about the incident. When this
witness appeared in the witness box for recording his evidence he completely
changed his version by making dishonest improvements. In chief-examination he
deposed that he was in Jati where he received information that one girl belongs
to Jati city admitted in hospital, it was second day of missing of his
daughter. On Saturday, he reached at Tando Muhammad Khan hospital where found
her daughter in the hospital who disclosed him that two persons kidnaped her on
motorcycle, brought her in the quarters where committed Zina with her. He also
deposed that he cannot say that whether they committed Zina or not as he was
not an eye-witness. His daughter disclosed him the names of accused as Roshan
and another whose name he does not remember. He further deposed that some
person made movie and filming in Civil Hospital Hyderabad. As per his evidence
the police came at Hyderabad Hospital and it was first time when police came
and they were taken to Tando Muhammad Khan by the police from Hyderabad. During
the cross-examination, he stated that he arrived in Tando Muhammad Khan
Hospital in the evening time on Saturday and whatever written in the FIR it was
written by the police on their own accord. He further states that neither had
he showed the place of incident to the police nor he himself even saw the same.
It is clear from the above discussed evidence of the complainant who is the
real father of the victim girl that he gave false evidence and made dishonest
improvements in his evidence and on that basis conviction cannot be maintained.
The Supreme Court of Pakistan in the case of Muhammad
Mansha v. The State (2018 SCMR-772), has held as
under:-
“Once the Court
comes to the conclusion that the eye-witnesses had made dishonest improvements
in their statements then it is not safe to place reliance on their statements.
It is also settled by this Court that whenever a witness made dishonest
improvement in his version in order to bring his case in line with the medical
evidence or in order to strengthen the prosecution case then his testimony is
not worthy of credence. The witnesses in this case have also made dishonest
improvement in order to bring the case in line with the medical evidence (as
observed by the learned High Court), in that eventuality conviction was not
sustainable on the testimony of the said witnesses. Reliance, in this behalf
can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others
(2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali
and others v. The State (2008 SCMR 6), Khalid Javed and another v.The State
(2003 SCMR 1419), Mohammad Shafique Ahmad v.The State (PLD 1981 SC 472), Syed
Saeed Mohammad Shah and another v.The State (1993 SCMR 550) and Mohammad Saleem
v. Mohammad Azam (2011 SCMR 474).”
The Supreme
Court of Pakistan in the case
of Muhammad
Mansha (supra) also
held as under:-
“In that eventuality, the conviction upon the statements of the
witnesses who, in the assessment of the High Court, made dishonest improvements
and their divergent stances in the FIR and the private complaint made them
doubtful then there was no legal justification to convict the appellant
Muhammad Mansha on the same set of evidence without independent corroboration
conspicuously lacking in the instant case, as held by this Court in the cases
of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11),
Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others
v.The State (2004 SCMR 1185), Akhtar Ali and others v.The State (2008 SCMR 6),
Muhammad Ali v.The State (2015 SCMR 137), Mst. Sughra Begum and another v.
Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v.The State (2016 SCMR
1763). The above principle has been appreciated by the High Court in the
instant case, but erroneously convicted the petitioner against the said settled
principle.”
10. After
the evidence of complainant who is the real father of victim girl been
discarded only remain the victim herself whose evidence is very important to be
taken into consideration for deciding the guilt or innocence of the appellants.
The victim during the investigation was produced before the Magistrate for
recording her statement under section 164 Cr.P.C and on 10-06-2019 it was
recorded wherein she stated that it was Friday she came from Jati to Tando
Muhammad Khan for begging. The accused present in the court (she does not take
name of any accused and for one stated that he is friend of Kodo Shaikh) took
her on motorcycle towards old bungalows where they administered her wine and
remove her cloths and committed Zina with her. Afterwards they threw her near
the ground. She did not state a single word
as to who took her to the hospital nor did she disclose about her father and
the brother who claimed that they took her towards hospital. When she appeared
in the witness box before the trial court she also gave contradictory evidence
and made dishonest improvement. She in her examination-in-Chief deposed that
about two months back in the night of Friday in the dark night her sister
Qursha maltreated her, therefore she left the house and came to Tando Muhammad
Khan where shops were open and she started begging being hungry. Accused
persons took her on motorcycle towards the old bungalows and in one old
bungalow they forcibly administered her wine and then removed her cloths,
committed Zina with her and she became un-conscious. The accused took her from
there and throw her at open space. She does not know who brought her to the
hospital. When she regained in the senses police recorded her statement and was
also produced before a Magistrate where her statement was also recorded. She
had not supported her own version recorded by the Magistrate during the
investigation and from her own evidence and the evidence of her father it
becomes doubtful as to when she left her house either at the night time or the
day time. Their version in respect of leaving the house is also doubtful on the
fateful day as her father in FIR stated that on 07-06-2019, his daughter Jamna
went to city for buying things and did not return after passing considerable
time then he and his son left the house for search of his daughter and when at
0430 hours in the evening, they saw his daughter Jamna, who was in intoxicant
condition and was walking lamely in the Sugar Mill ground. However the victim
stated that she in the dark night on Friday left the house when she was
maltreated by her sister Qursha. It is also not believable that when the victim
left her house in the dark night then how it is possible that her father found
her in intoxicant position at the evening time. She in her cross-examination
also stated that it was about 12 am in midnight when accused kidnaped her and
she was thrown by them in the night time after committing Zina. She in
cross-examination stated that one Papoo Baloch saw her in open place where accused
person already throw her and he shifted her to the hospital in one ambulance
from the said place. Said Papoo Baloch was not examined/investigated during the
investigation by the investigation officer nor was he produced before the trial
court. The victim herself contradicted her own version in respect of leaving
her house during the cross-examination where she while replying the suggestions
stated that on Thursday she left Jati when her sister maltreated her and it was
day time when she left the house. She came from Jati and arrived at Tando
Muhammad Khan at one Petrol Pump and the incident took place on Friday. The identification of the accused
persons at the time of committing Zina/rape with her is also doubtful as she
herself stated during the cross-examination that she does not know the accused
persons and she saw the accused persons first time in the Hyderabad Court where
police brought them, their names were disclosed by the police to her. She
further admitted that as per the medical report she was not under wine at the
time of examination. She denied
the suggestion that she used to get register false FIRs against different
persons to get amount/cash from them.
11. It is settled
law that the Court(s) must never be influenced with severity of the offence
while appreciating evidence for finding guilt or innocence because severity of
an offence could only reflect upon quantum of punishment. Therefore, even such
like tragic cases, the Courts are always required to follow the legally established
position that it is intrinsic worth and probative value of evidence which plays
a decisive role in determining the guilt or innocence and not heinousness or
severity of offence. Reliance can be placed on the case of Azeem
Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of the doubt is essentially a rule of prudence
which cannot be ignored while dispensing justice following the law. The
conviction must be based on unimpeachable evidence and certainty of guilt and
doubt arising in the prosecution case must be resolved in favour of the
accused. The said rule is based on the maxim. "It is better
that ten guilty persons be acquitted rather than one innocent be
convicted" which occupied a pivotal place in the Islamic Law
and is enforced strictly because of the saying of the Holy Prophet (PBUH) that
the "mistake of Qazi (Judge) in releasing a criminal is better
than his mistake in punishing an innocent". It is well
settled by now that the prosecution is bound to prove its case against the
accused beyond any shadow of reasonable doubt, but no such duty is casted upon
the accused to prove his innocence. It has also been held by the Superior
Courts that the conviction must be based and founded on unimpeachable evidence
and certainty of guilt, and any doubt arising in the prosecution case must be
resolved in favour of the accused. In the case of Wazir Mohammad v.
The State (1992 SCMR 1134), it was held by the Supreme Court that
"In the criminal trial it is the duty of prosecution to prove its case
against the accused to the hilt, but no such duty is casted upon the accused,
he has only to create doubt in the case of prosecution.” The Supreme Court in another
case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held
that "The prosecution must prove its case against the accused beyond
reasonable doubts irrespective of any plea raised by the accused in his
defence. Failure of prosecution to prove the case against accused, entitles
him/them to an acquittal. The prosecution cannot fall back on the plea of an
accused to prove its case. Before, the case is established against the accused
by prosecution, the question of burden of proof on the accused to establish his
plea in defence does not arise. "Reliance is also placed on case of Naveed
Asghar and 2 others v. The State (PLD 2021 SC 600). It is further observed that it is always the direct evidence
which is material to decide a fact (charge). The failure of
direct evidence is always sufficient to hold a criminal charge as ‘not proved’ but where the direct
evidence holds the field and
stands the test of it being natural and confidence-inspiring then the
requirement of independent corroboration is only a rule of abundant
caution and not a mandatory rule to be applied invariably in each case.
Reliance can safely be placed on the case of Muhammad Ehsan vs. the State
(2006 SCMR-1857). In the present case the direct evidence produced by
the prosecution as discussed above is not of such slandered to maintain the
conviction.
12. After
the above discussed ocular/direct evidence there remains only medical evidence
and the circumstantial evidence brought on record by the investigation officer.
Before discussing the medical evidence of the case in hand it is necessary to discuss
the value of the medical evidence and its necessity in proving and disproving the
case. The medical
evidence is in the nature of supporting,
confirmatory or explanatory of the direct or circumstantial evidence, and
is not “corroborative evidence” in
the sense the term is used in legal parlance for a piece of evidence that
itself also has some probative force to connect the accused person with the
commission of the offence. Medical evidence by itself does not throw any light
on the identity of the offender. Such evidence may confirm the available
substantive evidence concerning certain facts including the seat of the injury,
nature of the injury, cause of the death, kind of the weapon used in the
occurrence, duration between the injuries and the death, and presence of an injured
witness or the injured accused at the place of occurrence, but it does not
connect the accused with the commission of the offence. It cannot constitute
corroboration for proving the involvement of the accused person in the
commission of the offence, as it does not establish the identity of the accused
person. Reliance can be placed on the cases of Yaqoob Shah v. State (PLD 1976
SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994
SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. State
(1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar
Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam
Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain
(2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the
cases of Rape/Zina the evidence of a victim is sufficient to hold the accused
guilty or innocent. Negative reports do not
reflect upon the veracity of prosecution case for reasons more than one. D.N.A.
profile generation though a most meticulous method with unfailing accuracy,
nonetheless, requires an elaborate arrangement about storage and transportation
of samples, a facility seldom available. Even a slightest interference with the
integrity of samples may alter the results of an analysis and, thus, the fate
of prosecution case cannot be pinned down to the forensic findings alone,
otherwise merely presenting a corroborative support, hardly needed in the face
of overwhelming evidence, presented by the prosecution through sources most
unimpeachable. Penetration is sufficient to constitute the offence and there
are many factors, physical as well as psychological, that may intervene during
a carnal assault, impeding complete consummation of carnal assault. Such
subsequent failures do not redeem the enormity of initial assault, a case otherwise
established to the hilt. The question that no semen grouping was made and
therefore, it is difficult to prove that by whom Zina-bil-Jabr was committed.
It is worth mentioning that semen grouping is not essential in such like cases
and at the best it can be considered as lapse on the part of Investigating
Officer and the prosecutrix cannot be held responsible for it. It is
well-established by now that "omission of scientific test of semen status
and grouping of sperms is neglect on the part of prosecution which cannot
materially affect the other evidence." The above principles settled by the Supreme
Court of Pakistan in the cases of Haji Ahmad v. State (1975 SCMR 69), Shahid Malik
v. The State (1984 SCMR 908), Abdul Ghani v. The State (2022 SCMR 544) and
Shakeel and 5 others v. The State (PLD 2010 SC 47).
13. Turning to
the medical evidence produced by the prosecution in the present case it is
observed that as per the FIR this incident took place on 07-06-2019 at 1200 hours
and the FIR was registered on the same day at 2230 hours which reflects that
complainant after the admission of victim in hospital came at police station
and lodged the same. Complainant in his examination-in-chief deposed another
story that he came to know about the incident after one day and on information he
came at hospital where his daughter narrated him the incident and then the FIR
was lodged by him, but he clearly deposed that police registered the FIR with
their own accord. The victim in her examination-in-chief deposed that the
incident took place at night time whereas as per the Provisional Medical
Certificate issued by the Dr. Tahreem Ismail the victim was examined on 07-06-2019
at 5.00 pm and she was referred by the police of police station Tando Muhammad
Khan. As per the MLC she received 11 injuries caused by hard and blunt
substance and the duration of said injuries was more than 06 hours. None of the
witness including the victim claimed she was beaten by the accused persons with
hard and blunt substance. Victim was further referred to Hyderabad Hospital and
final opinion was reserved. DNA and other relevant tests were also conducted.
The result of DNA report is as under:-
Result:
The male DNA profile obtained from human semen stains/sperm fractions
identified on item 2.0 (Cloths of victim Jamna D/O Mitho Faqeer) does not
shares the required alleles with the DNA profiles obtained from item 4.0 &
6.0 (Blood sample of accused Rajab Ali Urf Jugno S/O Gul Muhammad Shaikh &
Blood sample of accused Roshan S/O Allah Jurio Shaikh).
Conclusion:
The accused Rajab Ali Urf Jugno S/O Gul Muhammad Shaikh (item 4.0) &
Blood sample of accused Roshan S/O Allah Jurio Shaikh (item 6.0) are not the
contributors of Human semen stains/sperm fractions identified on Cloths of
victim Jamna D/O Mitho Faqeer (item 2.0).
Dr.
Tahreem Ismail after receiving all the medical history and the reports she
issued final opinion which she admitted during the cross-examination the same
is as under:-
OPINION:-
On
the basis of the foregoing reports Shrimati Jamna D/O Mitho Faqeer has not
consumed Alcohol. It is further stated that a recent sexual intercourse has
been committed on/by her however the Male DNA profile obtained from human semen
stains/sperm fractions identified on clothes of victim Jamna D/O Mitho Faqeer
Sami does not share the required alleles with the DNA profiles obtained from
Blood sample of accused Rajab Ali Urf Jugno S/O Gul
Muhammad Shaikh & Blood sample of accused Roshan S/O Allah Jurio Shaikh.
Thus based upon the
above discussion it can safely be concluded that the medical evidence is not in
support of the ocular evidence produced by the prosecution. The direct evidence
as discussed above has already not been found to be reliable, trustworthy and
confidence inspiring.
14. Turning to the
evidence of investigation officer Inspector Salahudin who deposed that on
07-06-2019 complainant Mitho arrived at police station and disclosed that he
found her daughter Jamna in unconscious condition and left her in hospital for
treatment on such information he issued letter for her treatment as per entry
no. 09 at about 1645 hours dated: 07-06-2019. This piece of his evidence is not
supported by the Mitho complainant who in his evidence stated that he came to
on the second day of incident that one girl belongs to Jati has been admitted
in hospital and on approach he found that girl to be his daughter Jamna. During
the investigation, he arrested accused persons and nothing was recovered from
them. They were brought by him to hospital for their checkup. He then visited
the place of incident which was shown to him by the victim and her father
however both denied during their evidence that the place of incident was shown
by them to the investigation officer. As per his evidence he produced victim
before the Magistrate who recorded her statement under section 164 Cr.P.C.
During the interrogation, he recovered the motorcycle from the otak of accused
Rajab which claimed to be used in the commission of offence. The said
motorcycle was never been identified the victim as the same on which she was
kidnaped nor it was shown to her. Investigation officer during his examination-in-chief
had deposed that he neither received the final medical certificate, DNA report
nor the report of chemical examiner and without such reports he submitted the
challan before the court. During the cross-examination, he stated that when the
complainant came for a letter for treatment of his daughter and he not
disclosed to him as to when victim was found by him and when she was brought in
the hospital. I.O also admitted during the cross-examination that he did not
inspect the place where from the victim was found and brought to the hospital.
The investigation officer admitted that as per report of DNA and Chemical
examiner the semen which was received from accused and the victim did not match
each other. The investigation officer failed to collect any evidence during the
investigation which independently connects the accused with the commission of
offence. The
opinion of a Police Officer who had investigated the case as to the guilt or
innocence of an accused person is not a relevant fact, and is therefore not
admissible, under the Qanun-e-Shahadat Order, 1984; as he is not an
"expert" within the meaning of that term as used in Article 59 of the
Qanun-e-Shahadat Order, 1984. Even the Criminal Procedure Code (Cr.P.C) does
not authorize him to form such an opinion. To determine guilt or innocence of
an accused person alleged to be involved in the commission of an offence is a
judicial function that can only be performed by a court of law. This judicial
function cannot be delegated to the Police Officer investigating the case. The
Police Officers are empowered under the provisions of Chapter XIV of the
Cr.P.C, only to investigate the non-cognizable offence with the order of a
Magistrate and the cognizable offence without such order. This power of
investigation, in no way, includes the power to determine guilt or innocence of
the accused persons. An investigation, as defined in section 4(1)(l) of the
Cr.P.C., includes all proceedings under the Cr.P.C. for the collection of
evidence conducted by a Police Officer or by any other person authorized by a
Magistrate. This definition makes it clear that the assignment of a Police
Officer conducting an investigation is limited to the collection of evidence,
and the evidence when collected has to be placed by him before the competent
court of law. Only the court has the power and duty to form an opinion about
the guilt or innocence of an accused person and to adjudicate accordingly on
the basis of evidence produced before it. An opinion formed by the
investigating officer as to the non-existence or existence of sufficient
evidence or reasonable ground of suspicion to justify the forwarding of an
accused person to a Magistrate under sections 169 and 170 of the Cr.P.C does
not tantamount to opinion as to the guilt or innocence of the accused person.
And despite such opinion of the investigating officer, the final determination
even as to the existence or non-existence of sufficient ground for further
proceeding against the accused person is to be made by the Magistrate under
sections 173(3) and 204(1) of the Cr.P.C. on examining the material available
on record, and not on the basis of that opinion of the investigating officer.
Since the evidence of the eye-witnesses of the case and the medical evidence
being non supportive to the said direct evidence is not believed by this court
as discussed above then the evidence of investigation officer which is too weak
in the present case and is not sufficient to maintain conviction. Reliance is
placed on the case of Muhammad Idrees
and another v. The State and others
(2021 SCMR 621).
15. The ruthless and ghastly offence of Zina
committed with a girl aged about 13 years by the accused persons is a crime of
heinous nature but the frightful nature of crime should not blur the eyes of
justice, allowing emotions triggered by the horrifying nature of the offence to
prejudge the accused. The rule is that the cases are to be decided on the basis
of evidence and evidence alone and not on the basis of sentiments and emotions.
The gruesome, heinous or brutal nature of the offence may be relevant at the
stage of awarding suitable punishment after conviction; but it is totally
irrelevant at the stage of appraising or re-appraising the evidence available
on record to determine guilt of the accused, as possibility of an innocent
person having been wrongly involved in cases of such nature cannot be ruled
out. An accused person is presumed to be innocent till the time he is proved
guilty beyond reasonable doubt, and this presumption of his innocence continues
until the prosecution succeeds in proving the charge against him beyond
reasonable doubt on the basis of legally admissible, confidence inspiring,
trustworthy and reliable. No matter how heinous the crime, the constitutional
guarantee of fair trial under Article 10-A of Constitution of Islamic Republic
of Pakistan, 1973, cannot be taken away from the accused. It is, therefore,
duty of the Court to assess the probative value (weight) of every piece of
evidence available on record in accordance with the settled principles of
appreciation of evidence, in a dispassionate, systematic and structured manner
without being influenced by the nature of allegations. Any tendency to strain
or stretch or haphazardly appreciate evidence to reach a desired or popular
decision in a case must be scrupulously avoided or else highly deleterious
results seriously affecting proper administration of criminal justice will
follow, as has been held by the Supreme Court of Pakistan in case of Naveed
Asghar and 2 others v. The State (PLD 2021 SC 600). It is a well-established principle of
administration of justice in criminal cases that a finding of guilt against an
accused person 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 the doubt" to an accused person, which has been a
dominant feature of the administration of criminal justice in this country with
the consistent approval of the Constitutional Courts, will be reduced to a
naught as has been held by the Honourable Supreme Court of Pakistan in case of Muhammad
Luqman v. The State (PLD 1970 SC 10).
16. The over-all discussion
arrived at conclusion that the prosecution has miserably failed to prove the
guilt against present appellants beyond shadow of any reasonable doubt. Resulting
upon above discussion, I am of the judicious view that the trial Court has not
evaluated the evidence in its true perspectives and thus arrived at an
erroneous conclusion by holding present appellants as guilty of the offence.
Thus, the instant criminal appeal is allowed; the conviction and sentence
recorded against the appellants by way of impugned judgment could not be sustained,
the same are set aside and the appellants are acquitted of the charge.
17. The above are the reasons
of my short order dated: 11-08-2023.
J U D G E