Abdul Qayoom & Ors (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH'

CIRCUIT COURT HYDERABAD

Before:, tvl.. .lr"ti"" Mohammad Karim Khan Agha

Cr. Appeal No.S-170 of 20 15

Abdul Qayoom and another

Versus

The State

Appellants : Abdul Qayoom Through Mr. Nandar-r A Kella, Advocate and another Respondent: The State Through' Mr. Shahid Atrrred Shaikh,

A.P.G.

Complainant: Natho Through Mr Wali Muharnrnacl,-Iamari, Advocate

Date of hearing : 26.O4.2017

Date of judgment 27.04.2017

) J UDGMENT

MOHAMMAD KARI M KHAN A GHA J.- Appellants Abdul QaYoom and Daleel were tried by learned Additional Sessions Judge, Tando Muhammad Khan, in Sessions case No.616 of 2oll , arising out of crime No.89 of 20 11, registered at Police Station Buh'i shah Kar-im, under sections 322 and 201 PPC. Accused / appellants were found guilly by judgment dated 21.1i.2015 (the impugnecl judgment-) and were convicted and sentenced' u/s 3O2 PPC to suffer rigorous imprisonment for 1O years and to pay hne of Rs'1OO'00O/- each as compensation to be paid to the legal heirs of deceased minor' in case

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of default in payment of fine the accused' / appellants shall undergo I. for O1 year. The benefit of section 382-8 Cr'P'C' was also extended ). to the accused / aPPellants.

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2.Briefly, the facts of the prosecution case are thaL complainant Natho on 12.05.2011 lodged F'I'R' stating therein that "I am hari' about 20 years back we entered into marriage with our uncles as

exchange marriage, in which we gave the hand of our sister Mst' Uzoo to Hussain son of Laiq and in exchange the sister of Hussain was i

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year, married with my brot-her Khair Muhammad and thereafter in the 1996 Hussain Lund has,murdered my brother Abdul Mqieed and he

wassentencedandpresentlyheisconfinedinjailandnrysisterMst. Uzoo was residing in her brothers-in-1aw's house namely Al-rdul Qayoom and Dalel. On 18.04.2011 I was available in my house' where Juman son of Mubarak Lund and Alam son of Adam Lund disclosed that we and Abdul Qayoom are residing adjacent and at night. we were available and at o9.o'clock there was hue aud cries of the lady from the house of Abdul Qayoom, upon which they went nrut.ring and saw that Abdul Qayoom was duly armed with Bamboo atlrl lre was beating your sister Mst. Uzoo and Dalel was holding her [r'on.t her' lrairs and both of them were beating her and the lady was giving the name of Almighty Altah that don't beal her but the accused persons told that we will kill you and we raised hakals but they tolcl us clon't come nearer as such they did not go nearer and the lacly l-racl died. on hearing such facts, I proceeded to Police station Bulri shah l(arim, where I gave such kind of information and at that time S'H'O Nand Lal Maheshwari reached at the place of wardat and took the deacl body at RHC Bulri Shah Karim, where postmortem was conducted and the parts taken out from the body, were dispatched t.o chemical analyzer Karachi and after receiving the chemical report tlee WMO has issued final postmortem report, which reveals that Mst. Uzoo has died due to torture and fear as such today I .have corne at P.i::l a.trcl tllal<e the complaint that accused,Abdul Qayoom and Dalel have tortured my sister Mst. Uzoo aged about 33134 years and clue to torture, she has died and the accused have suppressed the crime and have spread the news that Mst. uzoo has.taken the poison and has committed suicide, investigation be made.

3.After completing the usual investigation, police submitted the challan against above named accused.

4.Formal charge against the accused was framed by trial court Accused pleaded not guilty and claimed to be tried.

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5.In order to substantiate its case the prosecution exatnined 08 prosecution witnesses (PW',s) and thereafter prosecution ctosed its sicle vide statement dated 17.10.2015 atEx.I2.

6.Thereafter, statements of accused / appellants under Section 342 Cr.P.C. were recorded vide Exs.14 and 15, wherein they denied the prosecution case claiming ttreir innocence stating that they have Yy

been falsely implicated in this case as the complainant wanted to usurp their agricultural land and on account of enmity' They however' did not examine themselves on oath nor led any evidence in their defence.

7.The learned trial court after hearing the learned counsel for the parties and on the assessment of the entire evidence convicted ald t- sentenced the accused , / appellants as slated in the impugned judgment.

8.Thefactsoft}riscaseaSwellasevidenceprodtrceclbybotht}re parties before the trial court find an elaborate lnentiou in the judgment passed by the trial Court therefore the same may not be reproduced here so as to avoid duplication ancl unnecessary repetition.

g. Learned counsel for the appellants contencled that the only eye witness was not confidence inspiring, reliable or trr-tstworthy and as such his evidence should be discarded; in particular leis conduct did not appeal to reason as he failed to intervene when he saw his aunt being beaten and killed Qy the appellants; that the incident allegedly took place at 9pm howevqr there was no evidence that there was any light available for the eye witness to see the murder of the deceased; that t].e FIR was registered after an inordinate delay of 2l days by the > complainant; that a day after the incident when the complainant made an NC of the incident at the relevant'PS he did not mentiou the names of Juma as an eye witness and instead mentioned that Rasool Bux Lund informed him that the deceased had. been poisoned; the medical evidence did not support the case of the prosecution and that the appellants had been falsely implicated in this case due to enrnit5r and in order to usurp their lands and for all the above feasons the prosecution had failed to prove its case against the appellants beyoncl a reasonable doubt and as such their appeal should be allowed and the appellants should be acquitted.

10.In support of his contentions, learned coulfsel for appellants has )' relied upon the cases of Muhammad Riaz and 2 others v. The state and another (2013 PCT.LJ ll22l, Zafat v. The State (2015 PCr'LJ 424),Riaz Hussain v. The State (2013 PCr'[J l42S)' Sami Ullah and others v. The State and others (2015 PCr'LJ 416), Mst' Shazia Parveen v. The State (2014 SCMR llg7l, Sajiad Ahmcd v' The State and 3 others (2015 PCT.LJ 585), Ishtiaq Masih alias Bobi v' The State (2015 PCr.lJ 797), Shahbaz v. The State (2008 YLR 4871' Zilan vr)

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Iqbal allas Zafrl and, another v. The State (2015 PCr'IJ 285), Tariq l Azizv. The State (2011 YLR L8441, Tazeem Akhtar v' The State (2002 YLR 768), Muhammad Wasif Khan and other* v' The State and others (2011 PCT.LJ 47O) and Muhammad Raflque v' The State

(2014 SCMR 1698).

11.Learned A.P.G. while supporting ttre impugned judgment has contended that the prosecution had proved its case lleyond a reasonable d.oubt through ocular evidence which hatl been duly corroborated by the medical evidence; that the appellants could be convicted on the testimony of eye witness Jutna alotte r't l'r [us eriicleuce was reliable and confidence inspiring; that there was a mistake in the original NC as the complainant was illiterate; that all the prosecution evidence is corroborative and there are no major contradicLior-rs in the same and thus for all the above reasons tJre impugned judgment should be upheld and the appeal dismissed.

L2. In support of his contention, learned APG has relied upou the cases of Muhammad Ehsan v. The State (2006 SCMR 1B57)' Naik Muhaumad alias Naika and another v. The State (20o7 SCMR 1639), Anwar Shamim and another v. The State (2010 SCMR l79ll, Arif v. The State 'arrd 2 others (PLD 2006 Peshawar 5), Ttre State through Muhammad Afzal and others v. Waheed lqbal and others (2005 PCr.u 1384).

13.Learned counsel for the complainant adopted the arguments of the APG and relied upon the cases of The State v" Haider Zaidi and 2 others (2oo1 scMR 1919) and Dildar Hussain v. Muhammad Afzaa-l alias Chala alrd 3 others (PLD 2OO4 Supreme Court 663)-

14.I have considered th" of learned counsel, perused the ".gr*".rts record and the case law cited by them at the bar.

15.It would seem to me that the key issues in this case are how the deceased died i.e her cause of death and whether the appellants were responsible for her death bearing in mind that the prosecution has to prove its case based on,,the evidence lead against tlee appell.ants at trial beyond a reasonable doubt and that any ber-retiL o[ the doubt must go to the appellants,

16.It is well settled law that an accused may be convicted based on the testimony of one eye witness alone provided that the evidence of such a witness is unimpeachable and confidence-inspiring and ,{i

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corroborated by medical evidence. Reference in this respect can be made to the case of Muhammad Ehsan v. The state (2006 SCMR 18s7)

L7. I however do not find the sole eye witness Pw 2's eviderece to be either unimpeachable, credible, trust worthy or confidence inspiring for the following reasons when such reasons are read as a whole 1- especially when the other prosecution evidence is also considered:

(a)That the complainant is his maternal uncle and his family have enmity with the appellants and may well be interested in falsely implicating the appellants.

(b)He lives about Yz an acre away from the house (PW 7 Ali Ahmed) wherethedeceasedwast<iuedyethewasabletohearhercries.

(c)After hearing the her cries he was still able to reach the house where the deceased was killed after covering at least I 12 an acre and be in time to witness the deceased being beaten and kilted by the appellants in his presence.

(d)That despite the time being 9pm he was able to clearly witness the beating and killings despite there being no evidence of any available light and the house where he witnessed the beatings and murder being > surrounded by a hedge. He could also allegeclly hear what the ng to the victim from outside the hor:se. Witl-r regard to a lack of light reference may be made to the cases of Mst. Shazia Parveen v. The State (2014 SCMR ll97l, Saiiad Ahmed v. The State and 3 others (2015 PCT.IJ 585), Muhammad Riaz and 2 others v. The State and another (20 13 PCT.LI 71221 and Sami Ullah and others v. The State aud others (2015 PCr.tJ 416)

(e)In his 5.161 statement which was put to him he stated that l-re heard the hue and cries on 18-04-201L when the incident occurred on 17-4-2011 which is a glaring contradiction.

(f)In cross examination he also states that the appellants inflicted

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lathi blows on the entire body of the deceased however as per the medical evid.ence the deceased received 3 bruise inir-rries and tnost importantly none of which caused the death of the deceased as per the medical evidence.

(g)allegedly he was accompanied by another eye witness PW Aalam who also saw the murder however this most important witness who wv

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would have corroborated him was not called by tlee prosecution be that despite being named in the challon as a witness' It mav well such witness would not have supported the version of PW Juman especially as he lived 4/5 KM from his house and he disclosed for the first time during cross examination that PW Aalam was staying over night as his guest.

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(h)More signiticantly in my view there are certain aspects of the unnatural conduct/actions of eye witness PW Juman after witnessing the incident (if in fact he did witness ttre incident which in my view seems highly doubtfut based on the evidence) which clo trot seem to appeal to reason. Firstly the deceased was his aunt and according to his evidence he heard her crying out, heard the appellants say they were going to kill her, saw her being beaten by a lathi (which cannot be equated to such a darlgerous weapon to himself such as a hre arm) and was with Alam yet )neither he nor Alam made any attempt to intervene to stop the beating and murder of his ar-rnt. Secondly, traving witnessed the brutal murder of his aunt he made no effort to immediately report this .most serious of incidents to the police. According to him he went home, told his mother of the incident and then went to bed and slept soundly. before going to the house of the victims brother in the morning where he related the events of the t previous night to him. It is not understandable in tny view wlryJuman did not register the FIR immediately (if in fact he was an eye witness) especially as the PS was only about lO KM's away connected by a pacca road as per PW 5 Nand Lal).According to his cross exatnination he told his mother about the incident i.e the murder o[ her sister but his mother did not react at all and did not even go and see the deceased's body despite them living close by' His mother was also not called as a prosecution witness to corroborate this aspect of his evidence. In my view none of the above conduct appeals to a reasonable man. As was recently held by the Hon'ble supreme court in ttre case of Muhammad Asif v. The state (2017 S C M R 486) which found as under in respect of such incidents at Para's 7 and Lo.

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"Para7.........This lady, was aged about 50/5i years' whileherhusbandwasT0yearsofageatrclwlretltl-retlvo eye-witnesses not produced at the trial namely Iltikhar u.".,d Tajr**4l, weie close friends of the deceased then why she being an aged lady and her husband, wbo was at thJ advancea ,.g" of his life followed them' If they were apprehending somethirrg abnorma', -*", would havg conveniently told the above two friends of the deceased that being late dark night time, it was not advisable to

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take the deceased outsi4el No couvincing and plausible reasor has been advanced as to why they both followed the' deceased and his two friends and urhat was the obJect behlnd it. The conduct of both these alleged eye-witnesses runs counter to normal human behaviour and habit in the given circumstances and in the absence of plausible explanation, no prudent mind would believe such fantastic story which appears to be the hand-Art of the local police because in a night occurrence of this nature, remaining un-witnessed, the police imprudently indulges in such like tactic* t?{ mislead the court of law and justice. (bold added) E

10.l[Ie fail,to understaad that in the presenee of the two close frleads accompanying the deceased and parents, how such tragedy urith a son eould happen without any intervention on theit part to eome to rescue ofthe deceased when they were not far away as shown in the site plan.o (bold added)

(i)According to eye witness Juman the appellanls murdered his aunt with a lathi however the appellants rnade no effort to hide or conceal the lathi which according to him was the murder weapon and left it at the scdne of the crime. Likewise the appellants made no'efforts to dispose of the body of the deceased which presumably the appellants woulcl have krrown on a post mortem would have shown that the c-leceasecl wa:; beal-en to death with a weapon such as a latl-ri which wherr lbund was uot even blood stained. Neither was there any blood stains fouud at the house which ought to have been expected after a severe beating and pulling of hair which lead to the cleath of the deceased. In my view again such behaviour/conduct of the appellant's action does not appeal to reaso11. Again a.s was held in the case of Muhammad Asif (Supra) at Para 17 "17. lt is, normal practice and conduct of culprits that when they select night time for commission of such crime, their first anxiety is to cancei their identity so that they L may go scot-free unidentified and in that course they tty their level best to conceal or destroy each piece ol'evidence incriminating in nature which, migllt lre usecl against them in the future thus, human faculry r'rl'['rrrrlerrce would not accept the present story rather, aftet t.:t-rmtnitting critte with the dagger, the appellant could throw it away anyurhere in any field, water canals, well or other place and no circumstances would have chosen to preserve it in his own shop if believed so because that was susceptible to recovery by the police," v;)"

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18.Thus, having found the evidence of the sole eye witness PW 2 Juman to be neither unimpeachable, credible, trLlst worthy nor confidence inspiring I now turn to examine the oLl-rer available evidence.

19.PW 1 was Jano @ Natho who is the complainaut in this case' He admits that there is enmity between.the appellants and himself. He is not an eye witness and .according to- the original version o[ events he was informed by Rasool Bux on 18-04-2011 at his house that his sister had expired at the appellant's house after drinl<ing poison. On receiving this information he went to PS Bulri Shah Kareem and registered a NC which is reproduced,as under for ease of reflerence.

Note ArrivallO-27 At this time we Insp./S.H.O Nan d Lal Maheshwari came Iiom Quarter in the office of P.S and became busY in oflicial work.

No.6 Note At this time appeared one Natho son of Entry of Mooso by caste Lund r/o village Haji departure Sawan Lund near Manikwa-Forwa Road, Taluka Bulri Shah Karim who disclosed that his sister Mst. Uzoo who was married with my maternal uncle's son namely Hussain son of L,aiq I-rtrttl aborrt l7/18 years ago. In year 1996, Hussain party

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murdered my brother Abdul Majeed, thereafter are not in agreem.en[. He was It

sentenced in my brother's r-nttrder" case and is presently confined in Jail. Whereas my sister Mst. Uzoo, who is resitling wit-h brothers of her husband Abdr-rl Qayoom and others. Today in the morning when I was in my house Rasool Bux Lund and Rustam Lund informed me about mY

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sister Mst. Uzoo" He uras informed by her husband's brother Abdu.l Qayoom party that my sistet has 'exptre<l rlue to drinkinf of poison. On this news ,I am now appearing at the P"$ that I have doubt that my sister migtrt have been killed. The such informatiolr was entered

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and I S.H:O-Nandalal Mahesl-rwari along with staff and official vehicle No'SP 5952 and along with WHC departed for the SITE' ----Not leeible--- is tvith us. ASI ---noL leeible-at the Police Station.

Sd/- in English LTI S.H.O Nand tal Natho s/o Mooso Lund

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20.This NC does not mention the 'names of Juma and Alam comlng to his house and nor does it mention that his sistef was L]eaten to death. Rather it says that his sister died of poisoning'

21.According to the complainant this error was made beca'use he was an illiterate man and was not able to read the NC.I{owever the NC was recorded by sHo Nand Lal whg was also the first Io of the case and appeared as PW 5 and in his evidence confirrred that the NC recorded exactly what was narrated to him by the complainant' PW 5 Nand Lal was not contradicted on this point. Furthermore, no evidence L has been brought on record that there was any enmity l'retween SHO Nand Lal and the complainant or any other police officer associated with this case for there to be any reason for them to not to accurately record t].e complainants NC. In fact the versiol-t of the complainant and in his evidence and in his NC recorded the day after the incident are so different that there can be no case of any inacctlracy. The only explanation for the difference is that the NC was deliberately and matefidely recorded by Nand Lal to show a completely dilTelent story and there is no evidence that this was the case or Nand Lal had any reason to do so. This, raises further doubt on PW 2 Jurrran the alleged eye witness that he went to see PW 1 the complainant and narrated to him the events of the earlier night since his (Juman's) version is v^ completely different to the NC.Juman ancl Alam are not rnentioned in the NC and there is no,allegation of the complainarrl's sisl.er being beaten to death. Instead the NC referred to his sister beio.g proisoned. ,y In fact if Pw 2 Juman had narrated the story of the beating to death of the complainants sister to the complainant tleen why did the complainant not record an FIR to this effect? This is not b{ q

understandable. According to PW 5 (Nand Lal the initial IO) in his evidence this was because the complainant only had suspicions of the murder of his sister but even at that time the complaina,nt did not disclose to him (PW 5 Nand Lal) that the appellants hac-l r:aused lathi blows to his sister. Despite being illiterate this was something which the complainant could have easily orally told Nand Lal the initial IO but quite incredibly it appears that he failed to do so'

22.In the event an FIR was registered by the complainant 25 days after the incident against the appellants for beating his siste[ to death and 5 days after the receipt of the post mortern report whiclr clelay is not explained in the FIR .Such a long delay in filing the IrlR is a serious flaw in the prosecutions case especially as such delay has not been adequately explained. Even if it can be said that the complainant was waiting on the final medical report there was still an unexplainecl delay of 5 days in lodging the FIR. It is well settled law that such a long unexplained delay in lodging the FIR can seriously clarnage thc complainants case or even be fatal to it since the delay gives the complainant, other interested witnesses and the police plenty of time to cook up a false case against the accused. There is a plethora of case law on this point however. for the time being reference may be rnade to the cases of Muhammad Sharifan Bibi and others v- illuhammad Yasin and others (2012 SCMR 82), Iftikhar Hussain and others v" The State (2004 SCMR 1185), Muhammad Raj[lquc v- T'he State (2014 SCMR l698l.Zafar lqbal alias Zatui alnrd" another v. The State (2015 PCT.LJ 285), Tariil Aziz v. The State (2011 YLR 1844) and Shahbaz v. The State (2008 YLR 487)

23.There is even case law to the etfect that no reliance can be placed on an FIR after a preliminary investigation. In this respect reliance is placed on Tazeem Akhtar v. The State (2002 YLR 768) and that such a practice opened up the dangers of improving, the prosecution case and trying to align it with the medical evidence as and when it became avajlable as appgars to be the case in this instant case. In this respect reference is made to the case of Muhammad r lllasif Khan and others v. The State and others (20 1 I PCr.u 470).

2+. In my view little, if any, reliance can be placed on the evidence of the complainant for the reasons discussed above and it appears that he has tried to tailor his case to fit in with the medical evidence as the irl

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case develooed.

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25.With regard to the medical evidence in my view this is highly unreliable and does not appear to support the prosecutiore case'

26.As per the police Danishnarma dated LB-O4-2O11 it was opined that the deceased died due to drinking poison and a post mortem was recommended.

27.PW 3 Dr.Zubeda carried out the post rnortem and in her evidence she states that the death was caused dtte to Asphlxia as was informed to her by the police which is contrary to the opinion of the police in the Danishnarma and was denied by the initial Ir) Prr,\/ 5 Nancl Lal who stated that he never told Dr.Zubeda that the cause of death was Asph5rxia. Interestingly in her post mortem notes at 3.3O pm on L8-O4-2OI1 Dr.Zubeda has noted the cause of death as, "asph1Dria." And later "reseryed (the cause of death) until t-l-re report of samples (visera's) from the chemical analyst laboratories." Therc also appears to be some over writing on the time and date where asphyxia is opined. In my view this contradiction brings the medical evidence ancl report of Dr.Zubeda in doubt. In any event it appears that asphyxia is more related to strangulation ttran to being beaten by a lathi.

28.Dr.Z:ubeda finds 3 bruised injuries but she does not opine whether these are caused by hard substancL or sharp cutting weapon- She specifically gave evidence however that,

(It is correct that due to bruises as mentioned in the post mortem report in ordinary course a person cannot die" 29. ln my view such a statement would seem to indicate that even if the deceased was beaten by a lathi this r,rras not the canse of her death.

30.Dr.Zubeda furtlrer states in her evidence as under "[t is correct that viscera of the deceased were sent for expert opinion as I was not sure about cause of death of deceased. There is no such instrument which can disclose the exact cause of death. It is correct that I was not sure ahout the cause of death of deceased Mst. Azoo after the postmortem, at the time of handing over the deail body to the poIice.........

It is correct that there was no rupture of bloocl vessels in the body of deceased. It is correct that there lvas rlo r:[ot irr lhe dead body of deceased".

31.The chemical report for poisoning came back negaLive. V;i

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32.However in her final Post Mortem' report dated 07-o5-2O11 (5 days later the complainant filed the FIR) Dr.Zubeda finds the cause of death as under,

"Cardio pulmonary arrest due to fear of the signs of violence" r).> J\-., In my view, although I am not a medical expert, I find it difhcult to understand as to how Dr.Zubeda had reached such opinion especially as she was not an eye witness and had been told by the police, according to her, that the deceased died on account of poisoning.

34.I cannot even understand as to how someone on a simple post mortem carl conclude that someone died due to fear of the signs of violence which apparentty brought on a cardio pulmonary'

35.I find such an opinion to be confusing and certainly not corroborative that the deceased died due to a lathi attacls as she herself (Dr.Zubeda) had already opined.

36.Thus, I find the' medical evidence to be of little, if any, Corroborative value to the ocular evidence which as I have already discussed in terms of the eye witness PW 2 Jurna-n. and the complainant PW 1 Jano @ Natho to be completely unconvincing.

37.It is also relevant that absolutely no tnotive has t:otrte on l.ecor.d as to why ttre appellants would want to murder the deceased especially as it appears that her young minor daughter was living happily with them. No evidence of dny fights between the appellants and the deceased or any other motive has come on record as to why the appellalts would want to murder the deceased which may also be damaging to the prosecution case when the evidence is read as a whole. In this respect reliance is placed onZafar v. The State i2015 PCr.l^J 424)

38.The Mushir's were interested persons and the new IO PW 8 t- Muhammed Iqbal who was appointed after filing of the FIR on L2-O5- 2O11 recorded the statements of Alam and Juman.These statements were recorded more than 25 days after the incident ancl as such Lhe t., delay in recording them especially as they were both eye witness rnay be fatal to the prosecutions case. Referenie in this respect may be made to the case of Muhammed Asif (Supra).Even otherwise a.s mentioned earlier for unexplained reasons Alarn was not called as a Yy l2

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vardat was witness despite being on the witness list' Since the inspected days after the incident such an inspection in my view is of lqbal little, if any, relevance. On 14-05-2011 PW I Muhammed arrested appellant Abdul Qayoom at a busy area bul did nol- associate noon) and there any independent Mushir despite it being day time (l'2 is no evidence to suggest that he attemPted to associate any independent mushir.

39.It would appear from my assessment of the evidence that the is that she main linkage of the appeltants to the death of the deceased was found in their house. A part from that Lra secf on tnl' earlier' be very little' i[ discussion of the evidence and the law there appears to appellants any, credible, reliable and trust worthy evidence against the for the offense for which they have been convicted'

40.I agree with the well settled legal proposition that an eye witness deceased' should not be disbelieved simply because he is related to the but in this case enmity has come on record between l-he appellants PW 2's and the complainant side and in my view as discussed above or evidence (the only eye witness) is not at all trust wort-hy' reliable to be confidence inspiring. Like wise as a rule minor contradictions are ignored but in this case in my view the 3 key prosecution witnesses (PW 1 the complainant Jarno @ Natho, PW 2 the eve witness 'Iuman and PW 3 Dr'Zubeda's evidence is completelv unreliable' untrustworthy and not confidence ihspiring and as such cannot be safely relied upon what to speak of any potential minor contradiction'

41.Even other wise it is a well settled principle of criminal law that it is for the prosecution to prove its case against the accused beyond a case shadow of a doubt and if there is any doubt in the prosecution's the benefit of such doubt, as set out in the case of Tariq Pervez v"

The State (1995 SCMR 1345) must go to the appellant as of right as opposed to concession' However in considering this aspect of the case I

am also guided by the case of Faheem Ahmed Farooqui V State (2008 SCMR 1572) where it was held as under at P' 1576 at Para D "It needs no reiteration that for the purpose of givireg . benefit of doubt to an accused person, more than one infirmity is not i"q.ti."a, a single infirmity creating reasonab'le douhtthe in thi mind of a reasonable and prudent mind fegarding truth of the charge makes the whole case doubtful' Merely because the burden is on the accused to prove l-ris innocence it does not absolve the prosecution from its duty to prove its Yt

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case against the accused beyond any shadow of doubt.'(bold added)

42.In the recent supreme Court case of Hashim Qasim V State (Crinrinal Appeals No.115,'and 116 of 2013) dated l2b April 2OI7 tt-re l lon'ble supreme Court in respect of the benefit of doubt held as under at Para 2O

"Even a single doubt,. if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts is bedrock principle of justice. Reference may be made to the case of Riaz Masih Mithoo v. The State (NLR 1995 Crl. 694)." -.i r'!

43.In this case for the reasons discussed above primarily being the non credible, untrustworthy and non confidence inspiring evidence of PW 1,2 and 3, the unexplained contradictgry NC initially filed vis a vis the FIR finally filed 25 days later, the lack of motive on the part of the appellants, the delay in filing of the FIR which went completely unexplained, the high probability that this case was improved if not corrct)cted after the preliminary investigation but before filing of the FllR, enrnity between the parties I have no doubt in my mind tJlat when tl're evidence is read and considered in totality there would be t'nore than a reasonable doubt in a reasohable and prudent person's mind that the appellants were not guilty of the offenses for which they have been convicted by the trial court.

44 " '[hus, for the reasons discussed above I find that ' the prosecution has failed to prove its case beyond a reasonable doubt a.gairtst the appellants and that the appellants are entitled to the benefit of the doubt and as such set aside the impugned judgmeni'and up hold the appeals of both appellants Abdul Qayoom and Daleel ;

45.As such the appeliants Abdul Qayoom and Daleel aIe hereby acquitted in the above case and the concemed jait authorities are hereby ordered to immediately release them from custody provided t_-- that they have not been convicted ot'been placed behind bars in any )^ other case. :

I-Iyderabad:

Dated: 27-O4-2O17

. ,, ., "t5: ,ll tr'.Jr I' Sd/- hUrt^1UMA! XAriIIvl tuiilN AGHAT

JUXGE.

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