IN THE HIGH COURT OF SINDH AT KARACHI
MR. JUSTICE SALAHUDDIN PANHWAR
Criminal
Appeal No.489/2010
Appellant : Mst. Shehnaz,
Through
Gulzar Husain Bukhari, advocate.
Respondent : The
State,
through Ms.
Akhtar Rehana, Addl. P.G.
………………..
Criminal
Appeal No.499/2010
Appellant : Khadim Hussain,
Through
Mr. Habib Ahmed, advocate.
Respondent : The
State,
through Ms.
Akhtar Rehana, Addl. P.G.
………………..
Criminal Revision
Application No.179/2010
Applicant : Falak Sher,
In
person.
Respondents : Khadim
Hussain and 2 others,
Ms. Akhtar
Rehana, Addl. P.G. for State.
………………..
Date
of hearing: 6th and 14th February, 5th
March, 2014.
Date
of judgment: 21.03.2014
J U D G M E N T
SALAHUDDIN PANHWAR, J: We intend to dispose of captioned appeals and
revision for enhancement of sentence filed by the rival parties against the
impugned judgment dated 14th October 2010, passed by learned
Sessions Judge, Malir, Karachi in Sessions Case No.327 of 2006 [Re-The State
vs. Khadim Hussain & another], whereby the appellant Khadim
Hussain was convicted u/s 302(b) PPC and sentenced to imprisonment for life and
fine of Rs.50,000/- and in case of default to suffer R.I for two(2) years more;
while appellant Mst. Shahnaz was convicted u/s 109 PPC and sentenced to suffer
imprisonment for ten (10) Years and fine of Rs.20,000/- (Twenty thousands) and
in default whereof to suffer R.I for one year more.
2. Brief facts of prosecution case are
that on 08.7.2006 at 1100 hours, Falak Sher lodged FIR at Police station
Ibrahim Hyderi wherein stating that he is contractor, his nephew Naseer Abbass
had to receive Rs.15000/ from Khadim Hussain and such litigation was going-on
between them. On the last evening (from date of incident) his nephew Naseer
Abbas informed him that he is going to Punjab in morning and while leaving he
will collect amount from Khadim Hussain and if not, complainant should collect.
On 08.7.2006 the complainant was present at his house when at 0900 hours a boy
of Mohalla namely Kashif came to house and informed complainant that his nephew
Naseer Abbas is murdered at the house of Khadim Hussain. Listening so, he
immediately reached at
3. After usual investigation police
submitted the challan in Court whereby accused Khadim Hussain and Mst. Shahnaz
were sent up to face their trial while accused Mohammad Ashraf and Ghulam
Hussain were shown in column-II of the challan / charge sheet.
4. After compliance of Section 265-C
Cr.PC, charge was framed against both accused / convicts at Ex.2 to which they
pleaded not guilty and claimed trial vide their pleas, recorded at Ex.2/A and
2/B respectively.
5. To substantiate the charge, the prosecution
examined complainant Falak Sher as PW-1 at Ex.3 who produced mashirnama of
inspection of dead body at Ex.3-A, inquest report at Ex.3/B, FIR at Ex.3/CV,
memo of inspection of place of incident and recovery at Ex.3/D and mashirnama
of arrest of accused and personal search at Ex.3/E; PW-2 Mohammad Ramzan at
Ex.4 who produced receipt of handing over dead body of deceased at Ex.4/A; PM-3 Mohammad Rafique at Ex.5; PW-4 Mr.
Mohammad Afzal , Civil Judge & JM who produced letter at Ex.6/A and
confessional statement of accused Khadim Hussain at Ex.6/B, PW-5 ASI Amir Bux
at Ex.7 who produced mashirnama of arrest of accused at Ex.7/A; PW-6 ASI
Mohammad Aslam at Ex.8; PW-7 Shoukat Hussain at Ex.9; PW-8 Investigation
officer namely SIP Saeed Ghani at Ex.11; PW-9 Dr. Zafar Siyal at Ex.13 who
produced post mortem report at Ex.13-A and certificate of cause of death at
Ex.13/B and PW-10 Dr. Talat Afridi at Ex.15 who produced medico legal
certificate of accused Mst. Shahnaz at Ex.15/A. Thereafter, prosecution side
was closed by DPP vide statement at Ex.16.
6. The statements under section 342 Cr.PC of
the accused / convicts were recorded at Ex.17 and 18 respectively. Accused /
convict Khadim Hussain, in his statement, denied allegation of murder of
deceased Naseer Abbas and recording of confessional statement. He claimed that
said confessional statement was result of pressure of the police. Accused
/convict Mst. Shahnaz, in her 342 Cr.PC, also denied allegation leveled against
her. The accused / convict Khadim Hussain examined himself on Oath U/s 340(2)
Cr.PC but did not examine any witness in his defence where accused / convict
Mst. Shahnaz did not come forward to examine herself on Oath nor led any
evidence in her defence.
7. Mr. Habib
Ahmed, learned
counsel for the appellants / convict Khadim Hussain, has, inter-alia, argued that case is unseen one and the witnesses are
arranged, set-up one; the witnesses though are closely related to the deceased
but have failed to establish their presence at the spot; witnesses have not
supported each other on any point hence ocular account is not worth believing
therefore no conviction could legally be maintained. It was also argued that
mere alleged recovery of ‘danda’ is
not sufficient to hold the conviction particularly when the recovery thereof
was not worth believing. ; confession was recorded after delay of nine days,
thus the same losses its evidentiary value, confessional statement reflects
that second warning was not given to the accused thereby mandatory procedure
has been violated by the Magistrate; prosecution has failed to prove the case
beyond reasonable shadow of doubt, therefore, appellant is entitled for
acquittal. In support of his contention he relied upon the case laws reported
as NLR 1998 449, NLR 1993 94 and PLD 1996 SC 274, PLD 1987 Lahore 432, 1973
PCrLJ 387, 2010 YLR 1445, PLJ 1978 SC 293, PLD 1991 FSC 53, 2005 SCMR 515, NLR
1988 Cr. 284 and 1987 PLD FSC 43.
8. While Mr. Gulzar Hussain Bukhari
learned counsel for appellant Mst. Shehnaz has pleaded that there was no iota
of evidence against the appellant, thus conviction awarded to her is not
sustainable under the law.
9. Conversely,
learned APG while disagreeing with the above contentions, has argued that the
trial Judge considered all aspects while awarding the sentence to the appellants;
admittedly place of incident is the house of both accused wherefrom dead body
of deceased was found, plea of sudden provocation is not attracted in this case
as there was no sufficient evidence that deceased outraged the modesty of
appellant’s wife; ocular evidence is confidence inspiring, hence can be relied
without any corroboration; judgment of conviction is well reasoned and learned trial
court judge has properly appreciated all the available material hence
conclusion drawn by learned trial court judge is not open to interference.
10. Heard
the counsel and perused the record.
11. After consideration of contentions raised
by learned counsel for the respective parties and scanning the evidence, it is
pertinent that in the instant matter prosecution has brought on record four kinds
of evidences i.e. ocular, medical, recovery and confessional statement to prove
the charge against the appellants / accused.
12. Since the value and status of evidences
of medical and recovery in offences related to human body is always
corroborative in its nature which by standing alone cannot hold the conviction.
Therefore, it is always the ocular account and circumstances which plays a
decisive role in a criminal charge so it would be conducive to refer the
relevant portion of evidence brought on record by the prosecution to prove
it’s’ case and examine as to whether sufficient evidence is available to hold
the conviction.
13. Let’s examine the root of prosecution
case i.e first information report to know on what allegation the
prosecution started its case. The perusal of the FIR shows that complainant
Falak Sher has alleged that accused Khadim was to pay an amount of Rs.15,000/-
to his nephew (Naseer); who had told him that he is going to Punjab, so in
morning he will collect the amount else you (complainant) can collect. On 08.7.2006 he was available at his house
when at 09.00 am local boy namely Kashif arrived and informed him that
nephew of complainant Naseer Abbass has been murdered at house H.No.H-47 of
Khadim Hussain. On which he
immediately rushed to Jinnah hospital and found dead body of his nephew Naseer
Abbass at mortuary. Complainant’s other nephews namely Ramzan and Shoukat were available near
the dead body who disclosed that at 5:30 am Khadim Hussain alongwith his
accomplices Ashraf, Riaz and Mst. Shahnaz committed murder of Naseer Abbas by
inflicting danda blows.
From the above it is evident that while recording the
FIR, the complainant Falak Sher has not claimed himself to be eye-witness nor
claimed to have seen any proceeding at place of incident wherefrom dead body
was recovered and sent to mortuary of Jinnah Hospital, where complainant for
first time saw dead body of deceased.
14. Thus, let’s see what the complainant
deposed in the court. For which the relevant portion of examination-in-chief of
complainant Falak Sher (PW-1) is reproduced hereunder:-
‘On 08.7.2006 I had gone to the house of
the deceased Naseer Abbas to see off him as he was going to Punjab, but
when I reached there at his house, it came to know that he had gone to the
house of the accused Khadim Hussain then I
proceeded towards the house of the accused Khadim Hussain and when I reached there I saw that accused
Khadim Hussain and his wife Mst. Shahnaz , Riaz, Ghulam Hyder and Muhammad Ashraf
were beating the deceased miserably with Dandas, while the accused Ashraf had
hammer in his hand. The deceased
Naseer Abbas was seriously injured and blood was oozing from his injuries and
then he fell down on the ground. Then the deceased Naseer Abbas was
taken away by the accused persons to another room of the said house. On seeing all the incident I came out
and then informed to some plumber who was working there in the street
who informed the police about the incident. When I reached at my house, my neighbourer Kashif informed
me on my mobile phone that some police constable namely Soomro had called me at
police Post, where I reached and saw the accused with handcuffs in the police
custody who informed me that he had murdered my nephew deceased Naseer Abass. I
informed the police about the incident accordingly and nominated all the
accused persons whose names are given above. Then I went to the JMPMC where the investigation officer inspected
the dead body of the deceased Naseer Abbas in my presence. Such memo
was also prepared at J.P.M.C which I signed the same. I produce the said memo
of inspection of dead body as Ex.3/A, which is same, correct and bears my
signature, besides the signature of the co-mashir Ramzan Inquest report of the
dead body was also prepared at spot, which I signed…. Thereafter, I came back
to police station where I lodged the FIR which I …. . Investigation officer of
the case inspected the place of incident in my presence and prepared such
mashirnama at spot which I signed then and there. I produce…. Thereafter, the
accused Khadim Hussain, Muhammad Ashraf and Mst. Shahnaz were arrested in my
presence at police station ….’
From perusal of the above
examination-in-chief of the complainant, it appears that while deposing in the
Court the complainant materially improved his statement in respect of:
(i) going to house of deceased to see him off;
and then to proceed to house of accused Khadim Hussain;
(ii) claimed to have seen appellants / convicts
and two others while seriously beating the deceased;
From
above improvements the complainant attempted to come forward as an eye-witness
of the incident. This position becomes further clear from admission of the
complainant in his cross-examination that:
“I had recorded another FIR No.131/2006 at Police
Station Ibrahim Hyderi against the same set of the accused. ……… It is correct
to suggest that in the instant FIR I have pointed out to have intimated the
incident to me by Kashis whereas in FIR No.131/2006 I had disclosed to have
seen the incident myself. It is correct to suggest that the said FIR was
cancelled in (C) Class”
15. The claim of the complainant to be an
eye-witness also stood contradicted by PW Mohammad Ramzan, real brother of
deceased, who in his cross-examination stated that ‘I had not informed Falak Sher
about murder of my brother Naseer Abbas. Voluntarily says Falak Sher on knowing
the incident himself came at
‘It is correct to suggest that when I had seen the
accused Khadim Hussain, his wife Mst. Shahnaz, Riaz, Ghulam Haider, Muhammad
Ashraf and Noor Din were beating Naseer Abbas, I had made no vociferation nor
made a telephone call to ‘15’ Madadgar”
Without
prejudice to such strange and illogical conduct, what appears from his
examination-in-chief is that “he claimed to have gone to house of accused
Khadim Hussain alone” however, during course of cross-examination he
took summersault by saying that:
‘After offering Fajar prayer on 08.7.2006, I had gone
to the house of deceased Naseer Abbass. Muhammad Ramzan, Muhammad Rafique and
other persons informed me that Khadim Hussain had taken away Naseer Abbas.
Listening so, I alongwith Rafique, Muhammad Ramzan, Riaz, Shaukat, Asif and 3/4
other persons had gone to the house of accused Khadim Hussain”
16. The prosecution claims above persons to be
eye-witnesses of the incident, therefore it would be germane to examine the evidence (s) of above witnesses
with regard to reason which made them to go the house of accused Khadim
Hussain. Out of above persons, PW-2 is real brother of deceased hence his
evidence is also of much importance so let’s examine the same.
PW-2 Mohammad Ramzan
“On 08.7.2006, the
wife of accused Khadim Hussain made a telephone call to my brother Naseer Abbas
and directed him to come and receive back amount from them. After some time
Khadim Hussain himself came at our house and asked my brother Naseer Abbas to
give him company toward later’s house for receiving the amount. My brother
Naseer Abbas went with Khadim Hussain towards his house. After some time I,
alongwith Rafique, uncle Falak Sher, Shaukat, Asif Riaz and Niaz followed my brother to the house of
accused Khadim Hussain for taking certain articles from there. We were
doing the work of meson, our meson instruments were lying at the house of
accused Khadim Hussain, we went three (there) to take back the said articles. When we reached at the door of house of
accused Khadim Hussain, noticed somebody was beaten by Khadim Hussain, Ashraf,
Riaz, Haider and Mohammad Noor, whereas Mst. Shahnaz, wife of accused Khadim
Hussain was standing there. Shaukat knocked the door of house of Khadim
Hussain. Khadim Hussain came at his door. He informed us to have already
dropped our articles at the shop of Naseer Abbas, when we inquired from him to
whom they are beaten, Khadim Hussain informed us that it relates to his family
affairs and then he closed the door. Then my uncle Falak Sher asked a plumber
who was working near the house of accused Khadim Hussain, the said plumber made
a telephone call to police. After some time police came at the venue, they went
inside the house of Khadim Hussain and brought out the dead body of my brother
Naseer Abbas from the said house. Then the police dispatched the dead body to
JPMC Karachi, where its post mortem was conducted and thereafter delivered dead
body to me by the Administrator of Jinnah Hospital. I produce……”
Examination
of above would show that this witness though claimed to have seen full scene
yet do not claim to have identified the person to whom beating was being made.
However, this witness attempted to give a justification for their joint
reaching to house of accused Khadim Hussain by saying that ‘their meson articles were lying at house of accused Khadim Hussain so
they had gone to collect the same’. While examining this ‘pleaded
justification’ whereby chance witnesses claimed to have reached at a
particular place at a particular time. We can say that it is not unusual to
drop or keep articles at the house of others. However, in such situation this
would require better relationship between the two. Let’s see what the
complainant and PW Mohammad Ramzan (blood relations of deceased) say through
which relationship and understanding can be gathered.
Complainant Falak Sher in
his cross:
‘It is correct to
suggest that accused Khadim Hussain and Mst. Shahnaz are my villagers and I
known them since long. It is correct
to suggest that prior to the instant murder there was dispute on money
transaction between us and Khadim Hussain.
The
above admission of the complainant makes it clear that the parties were not on
such terms that claim of prosecution witnesses is believed that their masonry
articles were being kept at house of accused Khadim Hussain.
17. Since it stood established that the
complainant party has not been resident near house of the accused Khadim
Hussain hence they are not the natural witnesses of the incident but came
forward as chance witnesses but failed to justify the reason of their presence
at such time. However, since to consider the evidence of a chance witness two
ingredients are required to be established i.e 1, if he reasonably explains his presence
at the spot; then ii) narration of incident should inspire confidence, such
witness will not be termed as chance witness as held in case of Anwar Shamim v.
The State (2010 SCMR 1791).
18. It appears that witnesses have not been
able to reasonably establish their presence at the spot, however, as abandon
caution we proceed further to see whether narration of incident by them is
confidence inspiring or otherwise. In the instant matter complainant party, including blood –
relations, claimed to have seen incident but in a quite illogical and in a
manner which is against normal human
reaction. However, let’s see what PW Mohammad Rafique, another claimed eye witness
of incident, say. The relevant portion is referred hereunder:-
“ ..Shoukat made a knock at the closed door of house of
Khadim Hussain. The later came out from the house, whom Shoukat and other asked
to deliver them there (their) masonry instruments. As we noticed blood spot on
the cloths of Khadim Hussain, therefore, inquired from him about it, he
informed it relates to his family affairs. He further informed that articles
had already dropped at the shop of Naseer Abbas, so we will go there, then he
closed the door. We had heard noise from inside the house of Khadim Hussain.
Thereafter, piped (peeped) from the door inside the house & saw Khadim
Hussain, Ashraf, Riaz , Noor, Hyder and Shahnaz, dragged certain thing inside
the room but we could not identify it. After short time police came there…”
From above, it appears that this witness does not support the claim of other
witnesses namely Falak Sher, Mohammad Ramzan and Shoukat with regard to:
i)
opening of the door of house of
accused;
ii)
seeing accused persons causing
beating;
iii)
manner of seeing the incident;
However,
either claims of the private witnesses with regard to their presence and that
of having seen incident becomes doubtful with reference to evidence of ASI
Mohammad Aslam, who in his cross-examination stated that :
‘When we entered into the house of the accused noticed
accused Khadim Hussain, his wife Mst. Shahnaz and Ashraf only. During
our stay at the place of incident Arif Hussain and so many other persons
numbering 30 to 45 arrived there’.
(complainant party claimed to have remained present
outside the house at all times; did not allege leaving of any person from house
but nominated accused Riaz and Ghulam Hyder were not found in house )
(Further as per
mashirnama of arrest, personal search, recovery and seizure (Ex.7/A) shows
presence and arrest of accused Khadim Hussain only)
The
PW Amir Bux in his cross examination stated that:
“When I had reached at the house of the accused no body
was available outside the house’
This
witness in his cross-examination further stated that:-
It is correct to suggest that complainant party also
came at the place of incident during our stay there’
19. This seriously casts doubt about claim of
their presence at place of incident and even the narration of incident by
complainant party is not confidence inspiring hence the ocular account, so
furnished by the complainant party, is not worth relying. Because, it was claim
of the complainant party that accused Khadim Hussain had taken deceased towards
his house and complainant party had just reached at house of accused while
following them (accused and deceased) hence if complainant party had seen
accused persons causing beating to some one (even if it is believed that
complainant party did not identify person, being beaten which is hard to
believe) yet circumstances were crying for an intervention or least an inquiry
about such beaten person. Even
otherwise, the complainant party during trial proceedings, as discussed above,
made serious attempts to bring their case in line by making material
improvements hence such witnesses cannot be said to be witnesses of truth
because one who keeps making conflicting statement looses the status of a
truthful witness. Reference can well be made to the case of Muhammad Nadeem v.
State (2011 SCMR 1517). Further, the alleged eye witnesses were not examined
immediately after registration of FIR and it was held in the case of Imran
Ashraf Vs State (2001 SCMR 426) that:
‘This court has already held in 1993 SCMR 550 and 1995
SCMR 127 that if no plausible explanation is offered by prosecution to record
the statement of eye-witnesses immediately after the registration of the case
then the evidence of such witnesses becomes incredible”
20. As regards to the evidence of recovery, the
prosecution claimed to have recovered a ‘danda’
with which the accused Khadim Hussain allegedly committed murder of
deceased. It was claim of the complainant party that :-
PW
Mohammad Ramzan admitted in his examination-in-chief that:
“After some time police came at the venue, they
went inside the house of Khadim Hussain and brought out the dead body of my
brother Naseer Abbas from the said house.
PW Shoukat Hussain
‘….The said pipe
fitter through mobile phone called the police. Police came within 15 minutes. The police went inside the house, but
did not allow us to enter into the house. After some time we noticed
blood stained water flowing from the house.
The
above claim of the witnesses’ show that the police had reached at the spot
shortly within 15 minuets which is further evident from cross-examination of
the PW Ameer Bux that:
‘I had received message from Police station Ibrahim
Hyderi at about 8.20 a.m whereas I had reached at the place of incident at
about 8.30 a.m”
Thus,
within such short period of time a man, who had just killed a person, not only
succeeded in getting his senses normalized but also got the blood washed from
all places of houses including from crime weapon i.e ‘danda’ . Such piece appears to be not believable. It is also quite
surprising that even the bed-sheet on which the deceased was allegedly found
lying dead was not stained with blood, as is evident from admission of the PW
Ameer Bux that “It is correct to suggest that the bed sheet was not stained with the
blood. The recovery of crime weapon i.e ‘danda’ also appears to be doubtful. Even otherwise, recovery
evidence by standing alone is never sufficient to hold the conviction. It is
worth to add here that the death to be un-natural is not disputed but it, no
manner, can help the prosecution to identify the culprit hence this piece of
evidence also does not improve the case of prosecution.
21. So far as to the confessional statement
of the accused Khadim Hussain, it is worth to say that retracted confession
even found to be voluntary one cannot be held sufficient to hold conviction if
same does not fit in the given version by prosecution. Moreover, such delayed confessional
statement of the accused Khadim Hussain was recorded after about 9 days of his
arrest and even such confessional statement of the accused is not fitting in
story, detailed in such confessional statement. Per confessional statement “the bolt of the door was opened from
inside’ meaning thereby that entrance of deceased allowed by accused Mst.
Shahnaz herself which stood denied from further words of confessional statement
i.e ‘..was embracing my wife Shahnaz by
holding with her arms and my wife was saying leave me…leave me”. Whereas the
medical examination of accused Mst. Shahnaz, conducted by PW-10 shows that:
‘I had examined the said lady, could not find mark of violence on her body.
On P.V examination, external geniteria normal, vestibule nor congested, no
tenderness, hymen old, torn and heal, vagina admitting two finger, bleeding positive
and her LMP four days back”
(Underlining is
provided for emphasis)
This
also makes it evident that confessional statement of the accused Khadim Hussain
also does not fit with given story hence cannot be safely relied upon to
convict the accused, particularly where prosecution failed to prove its
case. At this point, we would like to
refer the case of Azhar Iqbal vs State (2013 SCMR 383) wherein honourable
Supreme Court held:
“It had not been appreciated by the
learned courts below that the law is quite settled by now that if the
prosecution fails to prove its case against an accused person then the accused
person is to be acquitted even if he had taken a plea and had thereby admitted
killing the deceased. A reference in this respect may be made to the case of
Waqar Ahmed v. Shoukat Ali & Ors (2006 SCMR 1139).
Further,
it was also held that:
“The law is equally settled that the
statement of an accused person recorded under section 342 Cr.PC is to be
accepted or rejected in its entirety and where the prosecution’s evidence is
found to be reliable and the exculpatory part of the accused person’s statement
is established to be false and is to be excluded from consideration then the
exculpatory part of the accused person’s statement may be read in support of
the evidence of the prosecution. This legal position stands amply demonstrated
in the cases of Sultan Khan vs. Sher Khan and others PLD 1991 SC 520), 2006
SCMR 577). It is unfortunate that the Lahore High Court,
22. Now
let’s examine the case of the defence statement of the accused party by putting
in juxta-position. The accused Khadim Hussain has claimed in his defence that
it was complainant party who attacked upon accused and during such assault
deceased received injury at hands of complainant party. The evidence of PW
Ameer Bux couple with mashirnama of arrest, recovery and seizure would show
that ‘on fateful day at 0820 hours 15
Madadgar Korangi received call from Sim No.0333-3097685 that in house No.H-47
Bhitai colony some persons have entered and police aid is required” and it
was such call because of which the police had reached at the house. Further,
the PW Ameer Bux claimed to have prepared three documents at the place of
wardat at one and same time i.e mashirnama of dead body, inquest report and
mashirnama of recovery and arrest of accused Khadim Hussain but in documents
relating to death the mashirs are shown as Complainant Falak Sher and PW
Mohammad Ramzan who, both per their evidence, did not enter into house nor
participated in such proceedings. There was only single independent witness i.e
mashir Arif (mashir of mashirnama of arrest and recovery) but he was not
examined hence presumption also goes against prosecution for with-holding such
evidence. The above facts, which have never been denied or explained, support
the defence, taken by the accused Khadim Hussain. Since it is well settled
principle of law that when there are two possibilities one favourable to the
accused has to be taken. Reference is invited to case of Mohammad Akram Vs
State (2012 SCMR 440) wherein honourable Supreme Court held that:
“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 vs.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
the 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 a matter of
grace but as a right because the prosecution has not proved its case beyond
reasonable doubt. The aforesaid principle has been further elaborated in the
case of “Nadeem ul Haq Khan and others vs. The State (1985 SCMR 510).”
23. We
are quite conscious of the legal position that where prosecution is relying on
direct evidence it should not only be direct but should also successfully stand
to be natural and confidence inspiring and in the instant case though
prosecution claimed direct evidence but
not under cloth of ‘natural and confidence
inspiring hence conviction cannot sustain. Reference can be made to the
case of Muhammad Ashraf v. The State (2012 SCMR 419)
24. In
view of what has been discussed, we are of the view that prosecution failed in
establishing the charge against the accused persons beyond reasonable shadow of
doubt hence the conviction cannot be legally sustained. Accordingly both Appeals
are hereby allowed and impugned judgment dated 14th October 2010 is
hereby set-aside. The appellants shall be released forthwith if not required by
any other case crime. Whereas captioned Criminal Revision Application for
enhancement of sentence being devoid of merits is dismissed.
J U D G E
J U D G E
Sajid