FAIZAN ALI S/O DILDAR ALI (Appellant) VS THE STATE & ANOTHER (Respondent)

L>aii13 ' Fra4-, + Lt"cV\,. '*-q- kn .t, { .eERrII*lAru g{ ftlffie]-ffirNPH' IUBACHI 2oB Criminal APPeal No-l49 of 2024

VB.

IJICl"t QOURr 0r SINDH

Mr. Justice Mohammad l(arlrn Khan Agha

Dates of hczu.ing : 19-l l-2024

Decided r:n : 26 -1 1-2fi24

(a)Judgment approved for Reporting Yes

CERTIFICATE.

*/Order is based upon or enunciates a principle of iarv Certified thut the judgment I */decides a question of law which is of first impressionldistinguishes/. Over-nrles/ reverseslexplains a previous decision.

t Strike out whichever is not applicable.

NOTE: - (i) Tliis slip is only to be used wlten some aotioir is to be taken.

(iit If the slip is used, the ReaCer must attach it to the top of the first page of tlre judgrnent.

(iii)Reader nrnst ask the Judge wliting the Juclgurent u4rether the Judgnrent is approved for reporting.

(iv)Tltose dircctions wlrich nre not to be usecl shoulcl he deleted.

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IN THD I{IGI{ COURT OT SINI}H AT KARACHI

{\!or Criminal Appeal No. 2o 2A bVo

FAIZAN AIJI

Son of Dildar Ali, Muslinr, Adult, Resident of Karachi PRESENTLY Confined at Cerrtral prison Karachi APPELLANT

VERSUS

I. THE STATE

2, Lcarned Trial Court Additional *t District And Session Judge I Karachi East RESPONDENTS

FIR NO 136120 l7 "*wmOz*prc

I P,S GUI-STAN E JOHAR KARACHI

APPEAL UNDB R SECTION 410 C.R.PC

Being aggr:ieved and dissatisfied with the judgment dated 20.1.202A passed by the learned traiI conrt 1" Additional District 8L Sessions Judge East at Karachi in Session Case No.l4l9l2017 vide FIR No.136120l7 under section 302 PPC, it is rospectfully prayed that this honorable court may k ind ly bc pleasecl to set aside the judgment dated 20,1,7020 passed by the learned traiI court in which trail court awarded life iruprisonment twice to accused and 2 lacs finc and in case of default further 6

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months simple imprisonment and after hearing both the

t Z\ c IN E HIG H COURT F SIhIDH AT KARA CHI

Prcsent;

Mr, lustlcc Mohnnuuad Karim Klmn Agha

cllrMlNsL AI'I:paL FI0.149 OF ?02q.

Appr'llnrrt: Ilalznn Ali son of Dilclar AIi through Mr. Abdul Qaclir Soomro, Advocate"

Cornplaitt;rnt: Wajalrat Ali son of Dildar AIi through Mr. $amiullah Abbasi, Advocate

Responrlut'tt: The State through Mr. Muhammad Iqbal Awan, Addl. Prosecutor General Sindh

Date of l{earirrg: 79.11..2024

Date of Announcement; 26.11,.2024

T U P-G M.E.ry T

Maha.nunad Ksrirtr-glt4rn 4gl!4. ,[: Appellant Faizan Ali was tried in the 1 Court of Addl. Disfrict & Sessions ]udge-I, Karachi East in Sessions Case No. 14L9 of 2017 in respect of Crime No. 136 af. 2017 registered under Section 302 P.P.C. at P.5. Gulistan-e-]aul'rar, Karachi and #ter a full- fledged trial vide judgrnent dated 20,01.2020 he was convicted uncler sectian 30:l(b) P.P.C. for committing Qatl-e-amd and sentenced to suffer imprisonment for life on two counts, In addition to that the accusecl is required to pay compensation to tune of Rs.2,00,000/- to the legal heirs of each clccerrseel. In case of failure of payment of fine/compensation, the accuscd shall further undergo sir:rple inrprisonnrent for six months.

2.TI"rc brief facts of the casc, ils pcr FIR loclged by cornplainant Wajahat AIi sor-r of Dilclar AIi arc tirat on 23.03.2017 he rvas 1'rresent on his duty anrl at al:out 1530 hours, Irc was tnlking rvith his wife on mobile phone; during cotlvtrr$iltion lris wife infurnreq.{ him that his stepbrother Faizan AIi hncl fircd upon his brothur Dilawar l-Iussain and his father Dildar Ali. On rtcciving suclr inforrnatir:n, he inrr:rediately rushed to Dar- ul-Sehat Flospital wliere he founcl his brother Dilawar in dead conclition, while his father Dilclar was lying injuret'l, wl'ro was shiftecl to Agha Khan Hospital. .After ferv lrours his fattrrer also succurnbed to his iniuries. He,

had been informed that accused Faizan Ali had fired uPon them' Thereafter', both the dead bodies were shifted to Civil Hospital Karachi where he had given statement to ASI Naimat AIi that he does not want to conduct postnrortem of botlr dead bodies. ASI Naimat Ali recorded his statenrent under Srrction 154 Cr,P.C. irr emergency ward of Civil Hospital Karachi. l{ence, on tlre trasis of hls stntement under Section 154 Cr.P.C. such FIR rvas lodged against the above named accused'

3.After usual investigation the matter was challaned and the appellarrt rvas scnt up to face trial. He pleaded not guilty and claimed his trial. + r

4.In ,rrtler to prove this case, the prosecution examined g witnesses and exhitritetl various documents and other items. The appellant recorded his stateffr€flt under Section 342 Cr.P.C. whereby he claimed that he was innocent. However, he did not give evidence on oath or call any witness in support of his defence.

5.After appreciating the evidence on record, the learned rriai Court convicted and sentenced the appellant as set out earlier and hence, the appellant has filed this appeal agairut his conviction and sentence.

6.Le;uned counsel for the appellant has contended that he is innocent of any vvrong doing and that he has been falsely implicated in this ca.se by the complainant partl; that the cause of death of the deceased has not been established as no post mortem was conducted; that the sole eye witnesses evidence cannot be s#ely relied upon and should be excludecl frorn consideration; that three of the PW's were declared as hostile as they u/ere not supporting the prosecution case and as such no reliance could be placed on their evidence; that the dying declaration cannot be believed; that the pistol was foisted on the appellant by the police and that for any or all of tlre above reasons the appellant should be acquitted of the charge by extending him the bcnefit of the doubt. In support of his contentions learned counsel for the appcllant has placcd rcliance on the cilscs of Fazal Huseain Aliar Faqccra & Ore. v, The $tate (2020 P Cr.L J 311), Nasreen & ()ru, v. Thc State (2tl0t P Cr, LI685), Sycrl All Akbar v' The State (2023 YLft 901), Muhammad Zaman v. Ths $tate (2023 YLR 456), Muhammad Mansha v, The $tate (2018 SCMR 7721, Sardar Bibi v. Munir Ahmed {20't7 SCIyIR 344}, Afaq Ahrned y, The State (2020 YLR 676), Owais &

Ortr, v. TIte State $A22 P Cr. LI 920), Azhar AIi & Ors. v. The State (2A2L YLR ?263 Sindh), Hasan v, The State (2A20 P Cr. LJ Note 14), Khalil-ur-

") \z Rehrnan v. The State (2022P Cr. LJ Note 25), Zeeshan alias Shani v. The State (2012 SCM* qZ8lFmnflrnr rfafrGv'-,The $tate (PLD 20tg SC 527), Ghulanr Muhiyudclin v, The State (2020 MLD 502), Fayyaz Ahmed v' Tlre Stnte (2017 SCMR ?026), Qasim AIi Malik v. The State GAfi P Cr. LJ 124), Amanullah v. TIrc Statc (2022 YLR 1681), ftiaz Ahmed v. The State (2010 SCMR 846), I(htrwnia Muhanrtnad v. The State (2001 P Cr, L] 401) v anrl Muhanrnrad Ashraf v, The State (2011 SCMR 1046).

7, Ou the other hand, learned Additional Prosecutor General Sindh antl learned counsel for the cornplainant have fully supported the irnpugrrert judgrnent. In particular, they contended that the FIR had been lodged r,vith prornptitude naming the accused with the role of murdering both of the deceased; that the sole eye,witnesses evidence could safely be relied uporU that tl're dying declaration supported tl're eye witness' version of events; that the pistol used in the murcler of both the deceased was found by the police on the pointation of the appellant after his arrest and as such the prosecution had proved its case beyond a reasonable doubt ancl the appeal be dismissed. In support of their contentions they placed reliance on the cases of Maieed v. The State (2010 SCMR 55), Qasim Shahzad r'. The State (2023 SCMR 117J, Niaz-ud-Din v. The State (2011 SCh4R 725), Abdur Rehman v. The State (1998 SCMR 1778) and Farmanullah v. Qadeem Khan (2001 SCMR 1,474).

8.I have heard the arguments of the learned counsel for the parties, gone tfuough the entire evidence which has been read out by the appellant's counsel, the impugned judgrnent with their able assistance and have considered the relevant law including that cited at the bar.

9.Based on my reassessment of the eviclence of the PW's, especiallv. the medical evidence in terms of 5,174 Cr.PC reports and MLC's, the blood stained earth seen at the crime scene ancl the empties recoverer.{ from the r:rime scerle I fincl that the prosecution has proved beyond a reasonable doubt that on 23,03.2017 at about 1515pm Dildar Ali aud Dilwar AIi (tlre deceasec[ wcre both rnurdered lry firearm inside house No.A-660 Pehalwan Goth, Block 9, Culshan-e-Johar Karachi.

10.The only question left before me therefore is whether it was the appellant who murdered tt're deceased with by firearm at the said time, date and lucation?

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11.After my reassessment of the evidence I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant keeping in view that each criminal case rnust be decided on its own particular facts and circumstances for the foltowing reasons;

(a)The FIR was lodged with relative promptitude being about 5 anrl a half hours after the incident. This delay however has been - fully explained as once the complainant heard of the murderers he rushecl to Dar.ul-Sehat hospital where one of the deceased was already dead whilst the ottrer was taken by ambulance to Aga Khan hospital as he was still conscious at that time where he Iater died. I{euce his priority *ur to save his injured relative. Both bodies were then taken to civil hospital for post mortem which the cornplainant did rrot allow. He gave his 5.154 Cr.PC statement at civil hospital to the police lvhich later became the FIR. As such based on the partidulgr facts and circumstances of the case I find that the slight delay intlodging the FIR has been fully explained and is not fatal to the prosecution case.ln this respect reliance is placed on the case of Muharnmad Nadeem alias Deemi v. The State (2011 scMR 872).

(b)That the appellant is named in the promptly lodged FIR with the specific role of murdering both the deceased by firearm albeit this is based on hearsay evidence which is inadmissible but is supportive of the eye wifness evidence.

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(c)I find that the prosecution's case primarily rests on (a) the evidence of the sole eye witness to the murders of both the deceased and whether I believe his evidence and (b) the dying deceleration given by the deceased which evidence I shall consider in detail below;

(i)Eye rvitness PW 3 Danish AIi. He is the real brother and $on of each deceased respectively. According to his evidence on 23.03.2017 he was sitting.in the court yard of his house whilst both the deceased $rere sitting in a room in his house when the accused entered the house and the room where both the deceased were about 15/2A minutes before the incident. The accused was talking loudly in the room so he also went to the room where the accused was exchanging hot words and abusing both of the deceased (his father and real brsther) and dernanding money from his father. His brother told the accused not to abuse his father which annoyecl the accused who took out a pistol and fired at his brother and father. The first fire hit his brother on his chest and tl're second fire hit his father on his shoulder. He became afraid and hid in the kitclren. Tl're accused then ran out of the house and his father followed the accused. He then came out of the kitchen and went outside tl"re house where his father was lying injured when the accused made second fire on his father which hit his father in the abdomen. He anrl neighbors then took his brother and father to Dar-ul-Sehat Hospital where his brother's deatll was confirmer-i. His father was taken to Aga Khan Hospital where he also clied after treatrnent.,

'l'lrlru uyc wllncr.u ln cloucly rulnturl to lltrtlt rrf tltu tlt:ctlitrtlrl nltrl nlHrr tu llru rrrcrrHcrl (wlru fu+ lrh akrp t:ruthcr) ltowcvcr ntt ertrttlty (,r rllrputc hnr bault llr(lvcn bulwaan tlri** cyfi wilrtuuH rrrrrl llrr nrlrrllrrrrt nnrl tlttrg llro rncr(r rulntiortnltill lrt tlru tItvritnt,ti ln rto t'('ni{urt ltt tllucitrrl ltls uvirlt'ttru* wltirlt lt;rrr Iu Ir* Jtttlll'rl urr llr* uwtt wul'llt, Ilt lltis rt's;rtrI rt,li;tttct,is ;tlttrt'rl rrrt Ilrrr ('nnr],q rrf Arttnl .$ltcrllt v 'l'lt* litntc (l'l ,l) 2ll{14 tic 371), I)llrlnr IIun*rtltr v Mttltntrttttntl hfr,aal allnr Chala (lll,l) 2(X),1 liC (163).

- , \'i 'l'ltl,q (]yrl wllltt'ss nlHo l<ttcw tlrtl appcllant [rcforc llttr irrt'irltrnt wlrlclr Iuok 1:lnct: irt 3,20prtt in lltc tl;ry tintc ittsitltr \i\ Ir Itlu Itnrtsu us Ilte nlrpcllrltt wits hls Hlull [:rttIltcr,'l'lttt incidcnl I wuttt olt fnr nlrout 5 mlnutcti ittttl thu cytr witncss was clo,eu

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Itt tlrc hrcklcnt nnd wttultl hnvc 1;ot fl 13otrl Iook at thc n1>pullnn[ wlto lrc nlrcar.ly l<lt*w, 'l'huff, therc is nrr casc rtl rlistitl<cn irlcntity anrl n() rtccrl 1o lrokl an itlcntification pnrnrlc in urrlcr [u delcrtnitru thu irlcntity ol thtr a;:pallant, 'l'his cye witnuss is n na[urnl witncss anr,l nol fl chancc wittrus.s ns ltc was living irr tlr* Itouss wltura tltc murtlcrs lortk ;rlacu anrl as suclr his prcsctlco was to bu cxpectcd. I Ii.t cvirJcncc wns uot matcrially irnprovccl on frtlm his S,Ifil Cr.PC statcrncnt whiclr wflri maclc wiLIr prornptiiur,lc, I"[c gflve his cvidcncc in a natural manncr ancl was not dcnter.l at all tlurirrg cro$tr cxarniuntiun ancl fl.q sucll I fincl his cviclcncc to bc rcliablc, trust worthy arrcl conficlcncc irrspirirrg anrl bclievc tlre sarna c*;:ccially in rcspect of thc ictentity of thc a;:1:cllant who murtlcrcrl both of thc clcccascd.

I can convict or"r thc cvidcncc of tltis solc eye witness alonc thouglr it yrouL-l bc of assiritfirrcc by wily o[ caution if tlrt:ru is sontL, corroborativc/ supportive cviclerrcc. In this rcspect rcliancc is placcrl on thc casc of Muhamrnacl Ehsan v, Thc Stntc (2fl06 SCMIE 1857). As also foulttl irr thc cntiu$ o[ Irarooq l(han v. The State (2008 SCMIT gl7), Niaz-ud-Din nnel anotlrer v. Thc Statc nnd another (2011 SCMI( 725), Mrrhamrnad Isnrail vB, The State GAfi SCMR l'13) ancl Qasinr shahz;rd (supra). That wlrat is of significance is thc cluality of thc cviclcncc ancl not its tprantity anc{ in this casu I '' 4 finrl tlrc eviclcncc of this cyc wifrress to bc of gourtr rluality ,. anr.[ brlicvc the $i]n1c.

(ii)PW 1 wnjnhnt Ali (conrplninanr') rncl t'w z Atlil I'lussnin br:th gnvc uvirlcncc that afl.cr bciug slrot and injrrrctl prior to his rlcntlr Dilrlar irrfarnrcrl thurrr cacl"r separatcly tlrat tltc a;:pullant lratl slrot hirn arrrl the othor tluccnscl|, In cffect thc scriously irr!trrecl Dilclar gflvc .l dying clcclnratlon slrortly bcforc. his ctenth.

Ctriclclirtcs for tltc Iaw on relyins on n clying clcclaratiou werc sct out in tlru cilriu uf Mnjced v. Slrtc (2010 SCMIT 55) whuru it was held as unllcr':-

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4 nnrl I rcrlcnls llmt wltttt tltcy ranclrurl " 7, "flrc evidence of P.v,ts,3, otr llrc tire'nrm reyorls they fotttul tlw ilacensad Mir S|mttilnd lyhtg rlenrl rultib Mnjaefu'r-lk:ltntstt u,{ts nlivc httt tyittg itt injttreil

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condition who disclosed tltnt tlw npyellnnt Mnieed snd Isrnail hnd, fired nt tlrcm, P,W,7 npnrt from nnruing tlw nbaue fiuo ptrsans nlso nnwed Nnseer md Bnsltir, All tlwse tlrce ruitnesses were cross' exanined but notltin1 $Inrc an record to discredit tlrcir eaidence, No serior rcffirt was ffmdc to clmllenge tlwir ststement on tlw qrcstion of dying declnrntion, From tlw euidence it lms been estnblislred beyonrl nny slmdoru of doubt tlrnt deceased Muieeb+rr- Relrrunrr nmde dying dectnrntion inmedintely nfter tlw incidenl, elinfimting tlw ltossibility of influertcc etc, before the ruitnesses nmking tlrc nyrpellnnt resporrcible ns lne af llw nrcused for cnusing It fs s well'settled principle af law that if -l

, tlrytt injuries, It dying declaratiort is tnsde eren lsetore a priuate persou, is lrcc trour ltrfluence and the persons betore whom sttch tlyittg t

dcclnratiott wns nmde Luns exatnined then it heconrcs substnntiuc piece of euidetrce nud tor that flo corroboration is rcquired and sttclr declaratiott cfrtt be mnde basis ,I conaictiorr. Tlrfs Court gaae following gttiding principles fot relyirrg ttqo,t the dyittg declatution ln the cfrse ,f Fanrranrillah a, Qadeem Rhan 2A07 Scltflt 1474.

fi There is na specifed fonm before rdrcm such declnration is required to mnde.

(ii)There is no bnr thnt it cnnnot be mnde before a priaate person,

(iii)Tlare is na legal req.tirenrcnt tlwt tlrc declarntion nmst be rend over or it must be signed by its nmker,

(iu)It sltaild be htfluence free,

(a)In srder to praue such declarntian tlre person by tultont it zpns recorded shouldbe exnmined.

(ai)Such declnrntton becomes sttbstnntipe euidence wlten it is proaed that it ruas finde by the decensed.

(uii) Corroboration of n dying declnrntion is not n nile of [mu, but requirement of prudence.

(aiiil Such declnrntion ulwn prouerl by cogent ettidence cnn be mnde n bnsis for conuiction,"

ln essence there is no hard aucl fast rule whether a rlying declaratior"r can lre believed and cau be safely relied upon. In this case both the wituesses PW 1 Waiahat Ali {complainant} and PW 2 Adil Hussain evidence meets the requirements of relying on a dying declaration especially as therc is sufl'icient eviclence to show ihat the deceased Dildar remained conscious for a considerable period of tirne after being shot and usually it would be regarded as a substantive piece of evidence. However basecl on the particular facts and circumstances of this case where the complainant PW 1. Waiahat AIi did not mention this crucial piece of evidence either in his FIR or his 5.161 Cr.PC statement and PW 2 AdiI Hussain {who was an independant witness) dicl not record a 5.L61 Cr.PC statement and was declared hostile by the prosecution I only give a little weight to the evir{ence concerning the deceased Dilwar's dying declaration which corroborates that of eye witness PW 3 Danish Ali whose s

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Z\b evidence was discussed earlier in this ]udgment.

(iii)l{ith regard to the evidence of the other Pl{'s who were I declared hostile. Namely, PW 5 Jawed, PW 6 Haider and PW I Shahman. It is settled that their evidence cannot be simply ruled out of consideraHon but must be considered with great caution as they appear to sing rwo different tunes at the sarne tirne. With regard to the evirlence of hostile witnesses i -- I in the case of State V Abdul Ghaffar (1996 SCMR 678) it was held as under;

"ln the liglrt of tlw nboae principles it is settled thnt tlrc lestintotry o! n lwstile tuilness cnnnot be *ltogelher left out of considerntion, The euidence of a hostilc witness has to be considered like the eaidence of any ather wifircss, but with a cautiott for the simple reason that the wittress has spoken in different tones, When a witness speaks in different ttoices, it wottld be for the Court to decide in what aoice Irc speaks the truth. ln such caseq the detenrining test is corroboratiott from independent source and confarmity tuith the rcm airittg eaidence. " ([rol d adcled)

PW 5 Jawed, PW 6 Haider and PW 9 Shahman aPPear to have been declared hostile by the prosecution as their evidence did not include tll.em being eye witrresses to the murders as perhaps was expected by the prosecution. However, the other evidence wirich they grve tends to support the happening of the event and in the case of PW g Shahman that the incident happened in the house but she did not see it and as such I give somer but little weight, to their evidence in terms of the incident taking place at the house of PW 3 and their assistance after the firing incident.

Thus, based on my believing the evidence of the sole eyewitness and giving some weight to PW L and 2 who gave evidence about the deceased dying declaration against the appellant what other evidence/material supportive/corroborative or other wise is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is plar:ed on the case of IlIuhammad Waris v The State (2008 SCMR

(d)Although no post mortem was carried out I do not find this fatal to the prosecution case. The eye witness whose evidence I hnve betieveC and placed reliance on clearly statecl that both the decr:ased were shot by fire arm by the appellant. The 5.174 Cr.PC repurts of both the deceased make it clear that both the deceased clied on ficcount of firearrn injuries. The MLC's of each of the decr:ased also makes it clear that both of the deceased receiveri fireilrm injuries. Tirus, I have no doubt that the r.{eath of the deceased was caused by firearm and I do not find it relevant basec{ upon the above particular facts and circumstances that no post

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moltem was conducted on either of the deceased. The medical eviclence, such as it is, fully supports the prosecution case of how the deceased died. In thts respect reliance is placecl on the case of Abtlur Rehman ($upra) ,

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(e)That despite the appellant being the step son/brother of the deceased he did not lodge any FIR, he did not attend the funeral of the deceased or remain to help the police with their inquiries inetead he ran away to the Punjab where he was arrested two months after the incident. FIe did not surrencler to the police. This is hardly the act of an innocent man.

I (f) That 2 days after his arrest on 29,05.?Aff the appellant confessed to the murder before the police and he took the potice on his = li/ pointation to tl,e place where he had hidden the murder weaPon li (pistol) which was a place which he only knew about. That it has not been proven through evidettce that any particular police til' rvi[ness har{ any eurnity or ill will towards the appellant and hacl li 1l any reason to falsely implicate him in this case for instance by il foisting the pistol on hirn and in such circumstance$ it has been t.l held that the evidence of the police witnesses can be fully relied i: Itpon and as such I rely on the police witness evidence. [n this

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respect reliance is placed on the case of Mushtaq Ahmed V The i $tate (2020 SCMR 474j.

(g)That the pistol (30 bore) recovered on the pointation of the appellant matched three of the empties (30 bore) recovered at the crime $cene through a positive FSL report. The other empties that w€:re recovered being 9mm are of lesser significance as it is the prosecution case that the accused had rwo pistols at the time of the incident (one 30 bore which was recovered and one 9mm which was not recovered). I find any slight delay in sending the pistol and enrpties for an F$L report to be in consequential especially as tlreir had been no suggestion of tampering witl'r the same" In this respect reliance is placed on the case of Mtrhammed Ashraf (Supra) (l',) That it does not appeal to logic, commonsense or reason that a sonf brother would let the real murderer of his father/brother get away scott free and falsely implicate an innocent person by way of substifution. In this respect reliance is placed on the case of Mrrhamrnad Ashraf V State (2021 SCMR 758)

(i)That all the PI{'s are consistent in their evidence and even if there are some contradictions in their evidence I consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respecl reliance is placec{ on the cases of Zakir l(han V State {1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).The evirlence of the PW's provides a believal:le corroborated unbroken chain of events from the time the appeilant entered the house of PW 3 to irirn arguing with both of the deceased insicle the house to him shooting both of the cleceased after an exchange of hot words to the appellant running ilway and being arrested in the punjab to the appellant recovering the murder weapon on his pointation frorn a hidden place to the empties recovered at the crime scene matching wi{h the recoverecl pistol in producing a positive FSL report.

fi) :fhat the motive as per FIR and evidence on recorcl is the fact that J the appellant's father would not lend him any money.

fl<) Undoubtedly it is for the prosecution to prove its case against tlre accused l:eyoncl a reasonable doubt but I have also considerecl j

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thr: defence case to see if it at all can cast doubt on or dent the prosecution case, The defence case is simply one of false im.plication however the appellant did not give evidence on oath or call any DW in support of his defence case, Thus, for the reasons mr:ntioned above I disbelieve the defence case in the face of reiiable, trust worthy and confidence inspiring eye witness evidence and other corroborative /supportive evidence against the ap,pellant which has not at all dented the prosecution case,

12.'Itrus, based on the above discussion, I have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt as per the charge and disrniss the appeal.

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