ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Appeal No.S – 80 of 2023
(Bakhtiar Ali Domki v/s The State)
Criminal Appeal No S – 81 of 2023
(Bakhtiar Ali Domki Versus The State)
______________________________________________________
DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE______________
1. For hearing of main case
Before
Mr. Justice Nisar Ahmed Bhanbhro
Appellant: Bakhtiar Ali Domki
Through Mr. Sadam Hussain Kalhoro, Advocate.
(In Appeal No 80 of 2023 and 81 of 2023)
Complainant: Qurban Ali Domki
Through M/s. Nihal Khan, Saeed Ahmed Dashti, Advocate
(In Appeal No 80 of 2023)
The State: Through Mr. Muhammad Noonari
Deputy Prosecutor General, Sindh.
Date of hearing: 19-05-2025
Date of Decision: 26 -05-2025
J U D G M E N T
Nisar Ahmed Bhanbhro J.-Through this common judgmentI, propose to decide the fate of captioned appeals No 80 of 2023 and 81 of 2023 filed by the appellant/ Convict Bakhtiar Ali Domki, as both the appeals are result of the conviction in a murder case and offshoot recovery case of weapon used in the commission of crime passed by the same Trial Court. The Appellant / Convict through these appeals has attacked the judgment dated 29-08-2023 passed by the Court of Learned Additional Sessions Judge-I/MCTC Jacobabad (Trial Court) in Sessions Case No 334 of 2021 and Sessions Case No 237 of 2021 Re “The State Versus Bakhtiar Ali Domki”.In Appeal against conviction bearing number 80 of 2023 the appellant has been convicted for the charge of an offence punishable under section 302, 114, 34 PPC and sentenced to suffer Rigorous Imprisonment (RI) for life and to pay compensation amount of Rs.10,00,000/- to the legal heirs of deceased, in failure thereof to further suffer Simple Imprisonment (SI) for one year, with the benefit of section 382-B Cr.P.C. In Appeal against conviction bearing number 81 of 2023 Appellant has been additionally convicted for the charge of an offence punishable under section 23 (i) (a) and 25 of Sindh Arms Act 2013 and sentenced to suffer Rigorous Imprisonment for 10 years and imposed fine of Rs 50,000/, in default of payment of fine to further suffer Simple Imprisonment for One Year more.
2. Facts germane to prosecution story as narrated in FIR lodged 09.05.2021, by complainant Qurban Ali on are that there was dispute between the Complainant and accused Mazari Domki parties on landed property. Saith Alibrother of complainant came to visit him at Jacobabad on 08.05.2021. Complainant along with Seengar Ali, Saith Ali and Saddam Hussain went to Mouladad bus stop/Anaj (grain) Mandi chowk, tosee off Saith Ali for Baluchistan. They were waiting for transport when at about 12:00 noon time, accused Bakhtiar, Bilawal and Mazari, all by caste Domki came there. On instigation of accused Mazari Domki, accused Bakhtiar and Bilawal took out TT pistols from shalwar fold and accused Bakhtiar fired TT pistol shots at Saith Ali, which hit him on his right side of chest, accused Bilawal on instigation of accused Mazari fired TT pistol shots at deceased Saith Ali, which hit himon right side of neck, right shoulder and right side of chin, who fell down the ground. Due to fear of weapons complainant party remained silent. Accused made escape good to northern side after commission of crime. Complainant arranged vehicle and removed Saith Ali to Civil Hospital Jacobabad in injured condition. He informed police about the incident, Saith Ali succumbed to injuries on way to Hospital. On arrival at Civil Hospital Jacobabad, Police of City Police Station arrived there and conducted necessary formalities at hospital. After post-mortem dead body was handed over to complainant for burial. After performing burial rituals of deceased, complainant appeared at police station and recorded his complaint against the accused named above due to annoyance over landed property committed the murder of deceased Saith Ali.
3. Investigation took its course, Investigation Officer inspected the place of incident, recorded 161 CrPC statements of prosecution witnesses, arrested the nominated accused Bakhtiar Ali and recovered weapon used in the commission of crime. Separate FIR No 45 of 2021 at police station City Jacobabad under section 23(i)(a) and 25 of Sindh Arms Act 2013 was recorded by the IO Sikandar Ali on behalf of state. IO sent bloodstained earth, bloodstained clothes, recovered empties and crime weapon for forensic analysis. On completion of investigation IO submitted separate reports under section 173 CrPC before the concerned Magistrate. The Learned Magistrate on taking cognizance of case and completion of formalities sent up both the cases before the Court of Learned Sessions Judge, Jacobabad for disposal in accordance with law, which were made over to the Learned Trial Court.
4. Both the cases were tried separately,in compliance to requirement of section 265-C-Cr.P.C police papers were supplied to the accused, he was indicted for Charge, to which he pleaded not guilty and claimed Trial. In Sessions Case No 334 of 2021 to prove the charge of murder, prosecution examined PW-1 Tapedar Kamil at Ex.09, he produced sketch of the place of incident, PW-2 Complainant Qurban Ali at Ex.10, he produced copy of receipt of receiving dead body of deceased Saith Ali and FIR, at Ex.10-A to 10-B, respectively, PW-3 Seengar Ali at Ex.11, he produced memo of dead body of deceased at Ex.11-A, danistnama (inquest report) at Ex.11-B, memo of wardhat at Ex.11-C, PW-4 PC Ali Aijaz at Ex.12, PW-05 Ghulam Murtaza at Ex.13, he produced attested photostat copies of roznamcha entries No.4,5,6,7,8,9 & 09-A (one Sheet) at Ex.13-A, attested photo state copies of roznamcha entries No.11,12,13,14,15 & 16 (one Sheet) at Ex.13-B, dead body inspection form at Ex.13-C, memo of blood stained clothes of deceased at Ex.13-D, PW-6Dr.Bilal Ahmed at Ex.14, who produced post mortem report of deceased at Ex.14-A. PW-7 PC Ahsan Ahmed at Ex.15, he produced memo of arrest and recovery at Ex.15-A, memo of place of wardhat of recovery and arrest at Ex.15-B, PW-08 SIP Sikander Ali at Ex.16, he produced roznamcha entries No.18,19 & 20 (one sheet) at Ex.16-A, CR.41.2021 dated 17.05.2021 at Ex.16-B, permission letter of SSP Jacobabad at Ex.16-C, attested photo state copy of FIR No.45/2021 at Ex.16-D, roznamcha entry No.15 at Ex.16-E, roznamcha entries No.18 & 19 (one sheet) at Ex.16-F, ballistic expert report at Ex.16-G, chemical report at Ex.16-H. Thereafter, learned DDPP for State closed side of prosecution evidence vide statement at Ex.17.
5. In Sessions Case No 237 of 2021 to prove its case for the charge of recovery of illicit weapon used in the commission of murder, prosecution examined PW-1 PC Ahsan Ahmed at Ex.5, he produced carbon copy of memo of arrest and recovery at Ex.5-A, carbon copy of memo of inspection of place of recovery and arrest at Ex.5-B, PW-02 SIP Sikander Ali at Ex.6, he produced Copy of FIR at Ex. 6-A, attested copy of roznamcha entries No.18,19 & 20 (two pages) at Ex.6-B, ballistic expert report at Ex.6-C. Thereafter, learned DDPP for State closed side of prosecution evidence.
6. Statement of accused under section 342 Cr.P.C was recorded at Ex.18, wherein he denied prosecution allegations, professed innocence. He did not examine himself on oath under section 340(2) Cr.P.C. He produced two photographs of “Vsh” News Jacobabad which show that some armed persons fired in Anaj Mandi in which one Saith Domki has been murdered, and he also examined defense witness namely LPC Feroz Gul, but he only brought some original entries and documents, as per his evidence, he stated in his cross that he has been posted at PS City Jacobabad for last 9 months. Thereafter, learned defense counsel closed the side of defense evidence,vide statement at Ex.20. Accused professed innocence and prayed for justice. Learned Trial Court after hearing the Prosecution and Defense convicted the appellant and sentenced him to suffer RI for Life and pay compensation amount of Rs 10,00,000 to Legal Heirs of deceased, in default of payment to further suffer SI for One Years for the charge of offence under section 302(b) PPC. The Appellant was also convicted for the charge of an offence under section 23(i)(a) and 25 of Sindh Arms Act 2013 to suffer RI for Ten years and pay fine of Rs 50,000, failure thereof to pay fine to suffer SI for one year more.
7. Mr. Sadam Hussain Kalhoro, Learned Counsel for the appellant contended that the prosecution has failed to prove its case beyond shadow of doubt. There are glaring contradictions and improvements in the prosecution story. He contended that the incident has taken place during day time at 12:00 noon in a busy place over bus stand in Jacobabad City but none from the public has been cited as witness. The medical evidence is at variance to the ocular furnished through FIR and statement of the prosecution witnesses. The recovery of pistol has not established as both the witnesses of recovery have contradicted each other on material points. The witnesses in the case are set up and interested and the motive as alleged has not been proved. He placed reliance upon the case of Amin Ali Versus The State (2011 SCMR 323), Safdar and 3 others Versus The State (2006 PCrLJ 1870), Qurban Ali Versus The State (2024 PCrLJ 1601), Shakeel Ahmed Memon Versus The State (2020 PCrLJ Note 73) andAfaq Ahmed Versus The State (2020 YLR 676).He prayed for acquittal of the appellant/convict.
8. Mr. Muhammad Noonari Deputy Prosecutor General, Sindh assisted by M/s. Nihal Khan and Saeed Ahmed DashtiLearned Counsel for the Complainant contended that the incident is day time, the parties are known to each other being relatives, question of misidentification or wrong identification of the accused does not arise, the accused has been assigned the specific role of causing fire arm injury over the chest of the deceased which finds support from medical and ocular account. The motive stands established and the pistol used in the commission of crime was recovered from the possession of accused which was sent for forensic analysis and pistol was matched with the crime empties secured from the place of incident. They prayed for maintaining the conviction and sentence.
9. Heard Learned Counsel for the parties, examined evidence and perused material on record with their able assistance.
MOTIVE
10. Per prosecution story motive behind the commission of murder of deceased Saith Ali was dispute over landed property. The Prosecution witnesses in the case are brothers of deceased Saith Ali, in their evidence recorded before Trial Court Complainant PW 2 Qurban Ali deposed that the disputed land was agricultural and situated in Chhatt near Naari in Baluchistan Province and the said land was cultivable on rain water. PW 3 Seengar Ali deposed that disputed land was a plot of 5000 square feet situated in Dera Murad Jamali Baluchistan. This contradiction in the statement of prosecution witnesses being real brothers is material in nature, as the witnesses failed to mention the particular location of the land, as such an inference can be drawn that there existed no dispute over lands between deceased and accused party. Even to the admission of both the witnesses that no any case of civil nature was lodged against the accused persons. Even the title of lands or plot was not brought on recordof Trial Court to establish that land or plot actually belonged to deceased on which the dispute was going on between the parties. No any witness from the place where the alleged land is situated, was examined to lend support to the prosecution claim and to establish the motive that prompted the accused to assassinate the brother of complainant. The motive of the case remained shrouded in mystery and could not be established by the prosecution, to believe that deceased was done to death for an enmity on lands.
11. In the Case of Tariq Mehmood Versus the State, reported in 2025 S C M R 780 Honorable Supreme Court of Pakistan extended the benefit of doubt in favor of accused when prosecution failed to prove motive. Excerpts from the judgment are reproduced below.
11. The most crucial aspect of the case, in our view, being that the prosecution has miserably failed to prove any motive in the instant matter. It has nowhere been stated as to what prompted the accused to kill the two brothers as neither was there any enmity alleged to be between the parties nor there was any report with regard to any scuffle which took place between them prior to the incident.
12. In light of the above observations, we are of the view that the instant matter is shrouded with doubts and in such eventuality, it would be legally and factually justified not to confirm the death sentence awarded by the two Courts below. Hence, in view of the above facts and depositions of the PWs, this appears to be a fit case of acquittal on the ground of extending benefit of doubt to the said accused.
OCCULAR ACCOUNT
12. It is the case of the prosecution that incident occurred in the heart of city Jacobabad over a bus stop, wherefrom the transport plied between different parts of Country to and from Jacobabad. Place of incident is situated near Anaj Mandi where shops and hotels were located and were open at the time of the incident. The complainant as per prosecution story has deposed in the Court that incident occurred in his presence and he identified the perpetrators of the crime as Bakhtiar Ali (Appellant) and Bilawal who came there at about 12:00 Noon on 08.05.2021 and fired upon deceased with pistol upon the instigation of Mazari domki. He was taken to hospital but succumbed to injuries in the way. He informed the police about the incident promptlyand police party from Police Station City Jacobabad reached the hospital, inspected dead body, inspected place of incident and after post mortem handed over the dead body to the Complainant. It is a matter of record that Complainant and witnesses remained with the police party for about more than 3 hours but they did not record the facts of incidents to the police and turned up to record FIR on next day viz. 09.05.2021.In reply to a question PW 5 ASI Ghulam Murtaza deposed that he asked the complainant to record FIR but he refused and said that he will lodge the FIR later on after consultation. The FIR of the incident was recorded on 09.05.2021 at about 1500 hours with a delay of about 27 hours same also remained unexplained as per record police reached at the hospital just within 10 minutes of the incident, Complainant party remained with police party until the dead body was delivered for burial, during the intervening period, the policerecorded at least 05 inspection memos but in none of the inspection memos the details of incident were given.The Complainant has claimed enmity with Mazari Domki but the evidence of PW 6 Dr Bilal Ahmed tells a different story, he deposed that the dead body was brought to hospital by Qurban Ali and Razi Khan son of Mazari Domki. Question arises that had the accused Mazari Domki and his brothers Bakhtiar Ali and Bilawal committed murder, why son of Mazari Domki would have been present at the place of incident and removed the dead body to hospital. The inference can be drawn that the eye witnesses were not present at the place of incident when this incident occurred and appeared at police station later and recorded the FIR.
13. In the case of Muhammad Jahangir reported in 2024 S C M R 1741 Honorable Supreme Court of Pakistan has been pleased to hold as under:
15. Apart from dishonest improvements in the version of complainant, perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution.
16. Dr. Sadia Habib (PW-7) furnished the medical evidence in the present case. According to the prosecution version Muhammad Iqbal constable took the dead body of the deceased to the hospital, the last worn clothes were handed over to him by the doctor and he produced those articles before the I.O. As per the post-mortem report, it was Mushtaq Muhammad constable who received the dead body and other articles from the doctor. It casts doubt on the post-mortem report and raises the question that who actually received the aforementioned articles once the post-mortem was done.
17. Thus, the minute scrutiny of the evidence of PW-5 and PW-6, the eye-witnesses, makes their presence at the spot highly doubtful.
18. Qua medical evidence, it corroborates the version of the complainant as stated in the FIR but the same is of no assistance in this case as medical evidence by its nature and character cannot recognize a culprit in case of an un-witnessed incident. The eyewitness account relied upon by the prosecution is unreliable and untrustworthy as observed above, therefore, the petitioner's conviction cannot sustain on the basis of medical evidence alone.
14. The ocular account as furnished by Prosecution before Learned Trial Court was in variance to Medico Legal Report regarding injuries to the deceased. The witnesses PW 2 Qurban Ali and PW 3 Seengar Ali deposed that the deceased sustained four injuries, while per statement of PW 6 Dr Bilal Ahmed deceased sustained 5 injuries which were through and through. Witnesses PW 2 Qurban Ali and PW 3 Seengar Ali deposed that deceased died while in the way to Hospital, but per deposition of PW 6 Dr Bilal Ahmed deceased died instantaneously. PW5 ASI Ghulam Murtaza who conducted the initial investigation, he prepared inquest report in hospital,prepared memo of inspection of injuries, secured lost worn clothes of deceased, handed over the dead body to Complainant, visited place of incident and prepared inspection memo on the very day in the company of complainant and witness through a Roznamcha Entry 9 – A which he produced before Learned Trial Court while recording his evidence to establish that he departed from the police station soon after the incident. Page number 02 of Roznamcha entry book produced by this witness evidenced all entries in the book on the relevant day start from entry No 4 to 9, there is no other entry having A , B excepting this entry, which creates doubt on the movement of PW 5 ASI Ghulam Murtaza from police station and recording of the memos in presence and company of complainant party, it appears that all the memos were managed at police station. PW 8 SIO Sikandar Ali denied of existence of such in entry in police record. He deposed that at police station roznamcha entries are recorded in acceding order of 1,2,3 and not by 1A, 1B. he deposed that there was no any entry 9 – A available in police station or shown to him by PW 5 ASI Ghulam Murtaza.This piece of evidence rendered by PW8 SIO Sikandar Ali belied the movement and departure of PW 5 ASI Ghulam Murtaza from Police Station to the place of incident and hospital. The inspection memo of place of incident reflected that incident occurred in front of the shop of one Sikandar Ali Domki but he was not examined during investigation. Even none from the public was examined by the Investigation Officer to establish veracity of the incident. It was incumbent upon investigation officer to record statements of persons acquainted with the facts of case, it was a day time incident, occurred at verybusy place, a public thoroughfare, even the help of CCTV cameras could have been taken to trace out the real culprits. PW5 ASI Ghulam Murtaza deposed that he went to place of incident where blood was found but it was not in a position to be secured for laboratory analysis, 7 empty shells of 30 bore TT pistol were secured from the place of incident and sealed on spot in presence of complainant and witnesses. Surprisingly PW 08 IO Sikandar Ali has deposed that bloodstained earth was collected from the place of incident and sent to laboratory for analysis wherefrom report was received that it was a human blood. These dishonest improvements and exaggerations in the prosecution case create serious dent in the story, for which the benefit has to be given to the accused who is blue eyed child of the criminal law.
15. Honorable Supreme Court of Pakistan in the case of Muhamad Akhtar and others Versus the State reported in 2025 S C M R 45 has held as under:
“12. The statements of complainant/ PW. 14, PW.16 Muhammad Akhtar and the injured witness (PW.15) are suffering from dishonest improvements and material contradictions rendering their testimony doubtful.
13. The infirmities in the case of the prosecution and the contradictory statements of the prosecution witnesses, which are also suffering from dishonest improvements, have created reasonable doubt in the case of the prosecution. According to settled principle of law, benefit of reasonable doubt has to be extended in favour of accused.
16. Honorable Supreme Court of Pakistan in the case of Muhammad Riaz and others Versus The State reported in 2024 SCMR 1839 has held as under:
“13. From the above-stated facts and circumstances, it is abundantly clear that in this particular case, the prosecution version is burdened/ loaded with major discrepancies, which create serious doubts about its authenticity. The prosecution version with regard to the manner of killing, the medical evidence and the recoveries, contradict each other on material points creating serious cracks in the prosecution version. The prosecution has failed to bring on record any convincing material to establish that it was the appellants who had committed the occurrence. It is an established principle of law that to extend the benefit of the doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons.
RECOVERY OF WEAPON USED IN CRIME
17. Learned Prosecutor contended that the weapon used in the commission of crime was recovered from the possession of accused which was sent for chemical analysis and matched with the crime empties secured from the place of incident. The witnesses of recoveryPW 7 PC Ahsan Ali deposed that Appellant was arrested on 16.05.2021 from Eidgah Chowk, pistol was secured from his shalwar fold and such recovery memo was prepared by ASI Sikandar Ali in presence of witnesses PC Ahsan Ahmed and PC Umeed Ali at 1700 hours.PW 8 IO Sikandar Ali Bhutto did not depose a single a single word in examination in Chief about arrest of accused and recovery of TT pistol from possession of appellant in murder case wherein he produced memo of recovery and arrest, forensic and ballistic reports, however in offshoot case he deposed that recovery was affected from the accused in presence of witnesses Umeed Ali and Ahsan Ali from Eidgah Road. The contradictory versions of the witness in two cases belied the recovery proceedings. It is very strange that appellant was roaming in Jacobabad city just about a kilometer away from police station carrying pistol after commission of heinous offence of murder. The report of Chemical laboratory that empties matched with the recovered weapon was also of no significance as crime empties were sent to forensic laboratory on 19.05.2021 along with TT Pistol allegedly recovered on 16.05.2021. To establish that the empties were actually recovered from the place of incident, the sealed parcel should have been sent on the day of incident, but actually was sent on 19.05.2021 along with recovered pistol which created doubt as to the safe custody of case property, thus casts doubt and renders chemical report inadmissible in evidence. Moreso recovery of weapon is a corroborative piece of evidence it does not lend support to identify the offenders. The Prosecution was required to prove through convincing evidence that the recovery so affected was actually the weapon used in the commission of crime and for that purposes should have sent the empty shells recovered from the place of incident on the very day.
18. Honorable Supreme Court of Pakistan in the case of Muneer Malik Versus The State reported in 2022 SCMR 1494 has held as under:
“Furthermore, the record shows that eight empties of Kalashnikov and six empties of T.T. pistol were recovered from the scene of occurrence on the same day i.e. 17.05.2007 through recovery memo but the said crime empties were neither kept in safe custody nor sent to Chemical Examiner immediately after recovery. The weapons of offence and the crime empties were jointly sent to the office of Chemical Examiner after a delay of more than two months i.e. on 13.07.2007 for which no plausible explanation has been given by the prosecution. In these circumstances, the recoveries are inadmissible in evidence and cannot be relied upon to sustain conviction of the appellants. We, therefore, set aside the conviction of the appellants under section 13(e) of the Arms Ordinance.”
FAILURE TO EXAMINE NEUTRAL WITNESS
19. The Complainant in his evidence and FIR alleged that the incident had taken place during the peak hours of the day and witnessed by Seengar Ali, Saddam Hussain and complainant himself. Witness Seengar Ali is brother of Complainant and Saddam Hussain was relative. Saddam Hussain was not examined during trial, he was neither given up nor summoned to appear in the witness box. His evidence was crucial for the prosecution case as two other witnesses were brothers inter se and inimical towards accused. Non examination of the witness Saddam Hussain leads to a presumption that his appearance in the witness box would not have favored prosecution, as envisaged under article 129(g) of the Qanun e Shahadat Order 1984. By withholding this best piece of evidence the prosecution itself created a doubt in its story, benefit of which will accrue in favor of the accused as a matter of right.
BENEFIT OF DOUBT
20. No doubt both the witnesses being brothers and the legal heirs of the deceased are the competent witnesses and their evidence cannot be discarded on account of enmity alone or to tag them as interested witness, but it is the axiomatic principle of law that the evidence of interested witness particularly when there is an element of enmity existing between the parties has to be examined with huge caution and care. In the facts and circumstances of the present case, when the incident took place during busy hours of the day in the month of May and the place of incident was located at a walking distance of 500 meters from the police station, the FIR was not promptly lodged which raises doubts as to the veracity of complainant and creates a reasonable doubt that the FIR was recorded after due deliberations and consultations, particularly when ASI Ghulam Murtaza in his statement before Court frankly conceded that complainant was insisted to record FIR but he refused on an excuse that he wanted registration of FIR after consultation. The complainant as evidences from the inspection memos prepared on the day of incident has remained in the company of police throughout the day, but in none of the papers including the Daily Dairy Report 9 – A, he has named any one responsible for murder of his brother. Though per settled law,mere delay in registration of FIR would not be fatal to the prosecution case, but prosecution is required to furnish plausible explanation in that regard, which is missing in the instant case,creating dent in the prosecution story.
21. Honorable Supreme Court of Pakistan in the Case of Abdul Qadeer Versus the State reported in 2024 SCMR 1146 has been pleased to hold as under:
22. All the above circumstances have created reasonable doubt in the case of the prosecution but benefit of same has not been extended to the petitioner by the courts below. According to settled principle of law even if a single circumstance creates a reasonable doubt in a prudent mind about the guilt of an accused he/she shall be entitled to such benefit not as a matter of grace and concession but as of right.
23. According to settled principles of law the prosecution has to stand on its own legs and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down.
22. To bring guilt of the accused home, the prosecution is required to adduce the evidence, which without a second thought convincingly depicts a picture of the offence surrounding the neck of the accused.The proof beyond reasonable doubt should be of such a nature that requires no hesitation in making a decision as the guilt of the accused to face off the presumption of innocence attached thereto until a finding of guilt.Unless the Court is satisfied and convinced that burden of proof has been successfully discharged after a thorough and impartial examination of evidence on record, the burden of proof cannot be shifted to otherside. In the present case there are major inconsistencies in the prosecution evidence that were overlooked by the Learned Trial Court, which demonstrated that the prosecution failed to prove its case against the appellant beyond any reasonable doubt.It is settled exposition of law that conviction cannot be recorded based on mere assumptions and presumptions, surmises and conjectures. If a single circumstance creating reasonable doubt in the prudent mind appears in the prosecution case, it would be sufficient to discredit the prosecution case, the existence of multiple circumstances was not required. Under the criminal trial, prosecution has to stand on its legs. Prosecution is duty bound to prove its case beyond shadow of doubt through confidence inspiring oral or documentary account, which if they fail would make its case doubtful. The Benefit of doubt if any in the prosecution case would tilt in favor of the accused being the blue-eyed child of criminal law.The crux 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 accrue in favour of the accused as a matter of right and not as that of grace this principle of law has been repeatedly reiterated the courts of the Country.
23. In the case of Rehmatullah and 2 others Versus the State reported in 2024 S C M R 1782 Honorable Supreme Court of Pakistan has been pleased to hold as under:
13. We have, therefore, come to this irresistible conclusion that the circumstantial evidence produced in this case is not worthy of reliance and the prosecution has miserably failed, to prove its case against the appellants beyond the shadow of doubt. It is by now well settled that even a single circumstance, which creates reasonable doubt in the prosecution evidence, is sufficient to discard the prosecution case whereas the instant case is replete with number of circumstances, which have created serious doubts about the prosecution story.
24. The case laws relied upon by the Learned Counsel for the Appellant though are relevant for the purposes of this case but narrating the principles highlighted herein above, need not be reproduced and discussed for the sake of brevity.
25. For what has been discussed herein above, I am of the considered opinion that the prosecution has failed to prove its case against the appellant beyond shadow of reasonable doubt, the Learned Trial Court has failed to appreciate the evidence in accordance with the parameters and guidelines settled by Honorable Apex Court, there is serious misreading and nonreading of the evidence requiring interference by this Court. Case for indulgence by this Court under its appellate Jurisdiction in favor of accused is made out. Consequently theCriminal Appeal No.S-80 of 2023 Re Bakhtiar Ali Domki Versus the State and Criminal Appeal No S – 81 of 2023 Re Bakhtiar Ali Domki Versus the State are allowed and the impugned dated 29.08.2023 passed by the Court of Learned Additional Sessions Judge – I Jacobabad / MCTC Jacobabad in sessions case No 334 of 2021 Re The State v. Bakhtiar Ali Domki (Crime No 41 of 2021 of Police Station Jacobabad for offence under section 302, 34, 114 PPC)and impugned judgment dated 29.08.2023 passed by the Court of Learned Additional Sessions Judge – I Jacobabad in sessions case No 237 of 2021 Re The State v. Bakhtiar Ali Domki (Crime No 45 of Police Station are hereby set aside. The Appellant Bakhtiar Ali Domki is acquitted of the charge in both the referred cases,he shall be released forthwith if not required in any other case.
The appeals stand disposed of in above terms.Office is directed to place the signed copy of the judgment in the Court file of Appeal No S – 81 of 2023.
JUDGE
Asghar/P.A