PLJ 2023 Cr.C. 299
[Lahore High Court, Bahawalpur Bench]
Present:
Sardar Muhammad Sarfraz Dogar, J.
LIAQUAT
ALI--Appellant
versus
STATE etc.--Respondents
Crl. A.
No. 350-J of 2015, heard on 22.9.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 452--Conviction and sentence--Challenge
to--Benefit of doubt--Testimony of chance witness--Medical evidence--Held: It is, by now well-established
principle of law that it is prosecution, which has to prove its case against
accused by standing on its own legs, but in this case prosecution remained
failed to discharge its responsibility-- The prosecution is under obligation to
prove its case against accused person at standard of proof required in criminal
cases, namely, beyond reasonable doubt standard, and cannot be said to have
discharged this obligation by producing evidence that merely meets
preponderance of probability standard applied in civil cases--If prosecution
fails to discharge its said obligation and there remains a reasonable doubt,
not an imaginary or artificial doubt, as to guilt of accused person, benefit of
that doubt is to be given to accused person as of right, not as of
concession--The rule of giving benefit of doubt to accused person is
essentially a rule of caution and prudence, and is deep rooted in our
jurisprudence for safe administration of criminal justice--In common law, it is
based on maxim, “It is better that ten guilty persons be acquitted rather than
one innocent person be convicted”--While in Islamic criminal law it is based on
high authority of sayings of Holy Prophet of Islam (peace be upon him): “Avert
punishments [hudood] when there are doubts”; and “Drive off ordained crimes
from Muslims as far as you can--If there is any place of refuge for him
[accused], let him have his way, because leader’s mistake in pardon is
better than his mistake in punishment”. [Pp.
310 & 311] G, I & J
Testimony of chance witness--
----It has now been well settled that for conviction of an
accused person it would be highly unsafe to rely upon testimony of a chance
witness when remained uncorroborated and for conviction of a accused on capital
charge on basis of testimony of chance witness, Court has to be at guard and
corroboration has to be sought for relying upon such evidence. [P.
306] A
2017 SCMR 1710.
Chance witness--
----Testimony of chance witness, ordinarily, is not accepted
unless justifiable reasons are shown to establish his presence at crime scene
at relevant time--In normal course, presumption under law would operate about
his absence from crime spot--True that in rare cases, testimony of chance witness
may be relied upon, provided some convincing explanations appealing to prudent
mind for his presence on crime spot are put forth, when occurrence took place
otherwise, his testimony would fall within category of suspect evidence and
cannot be accepted without a pinch of salt--A chance witness is one who happens
to be at place of occurrence of an offence by chance, and therefore, not as a
matter of course--In other words, he is not expected to be in said place--A
person walking on a street witnessing commission of an offence can be a chance
witness--Merely because a witness happens to see an occurrence by chance, his
testimony cannot be eschewed though a little more scrutiny may be required at
times--This again is an aspect which is to be looked into in a given case by
Court. [Pp. 306 & 307] B
2015 SCMR 1142, 2017
SCMR 142 & 2020 SCMR 192.
Evidence--
----It is by now well settled that medical evidence is a type
of supporting evidence, which may confirm prosecution version with regard to
receipt of injury, nature of injury, kind of weapon used in occurrence but it
would not identify assailant.. [P.
308] C
2010 SCMR 846, 2012 SCMR
327, 2017 SCMR 486 & 2018 SCMR 772.
Direct or substantive evidence--
----It is not expected from appellant that he would have kept
said empty cartridge along with weapon of offence in order to produce same
before police for creating evidence against him--In these circumstances,
positive report of FSL is of no avail to prosecution and is
inconsequential--Even otherwise, it is also well settled that unless direct or
substantive evidence is brought on record, conviction cannot be recorded on
basis of such type of evidence howsoever convincing it may be. [P.
309] D
2007 SCMR 142.
Testimony of sole witness--
----Testimony of sole witness cannot be excluded from
consideration is concerned, in this respect, this Court deems it appropriate to
dilate upon acceptability and reliability of uncorroborated testimony of a
solitary witness in a prosecution case to arrive at guilt of accused--The well-known
maxim that “Evidence has to be weighed and not counted” marks a departure from
English law where a number of statutes still prohibit convictions for certain
categories of offences on testimony of a single witness. [P. 309] E
2018 SCMR 772.
Oral testimony of witness--
----Generally speaking, oral testimony in this context may be
classified into three categories (1) wholly reliable (2) wholly unreliable and
(3) neither wholly reliable nor wholly unreliable--In first category of proof,
Court should have no difficulty in coming to its conclusion either way -it may
convict or may acquit on testimony of a single witness, if it is found to be
above approach of suspicion of interestedness, incompetence of
subordination--In second category, Court equally has no difficulty in coming to
its conclusion--It is in third category of cases, that Court has to be
circumspect and has to look for corroboration in material particulars by
reliable testimony, direct or circumstantial--There is another danger in
insisting on plurality of witnesses--Irrespective of quality of oral evidence
of a single witness, if Courts were to insist on plurality of witnesses in
proof of any fact, they will be indirectly encouraging subordination of
witnesses--Situations may arise and do arise where only a single person is
available to give evidence in support of a disputed fact--The Court naturally
has to weigh carefully such a testimony and if it is satisfied that evidence is
feasible and free from all taints which tend to render oral testimony open to
suspicion, it becomes its duty to act upon such testimony--The law reports
contain many precedents where Court had to depend and act upon testimony of a
single witness in support of prosecution--But, if there are doubts about
testimony Courts will insist on corroboration--It is for Court to act upon
testimony of witnesses--It is not number, quantity, but quality that is
material--The time-honoured principle is that evidence has to be weighed and
not counted--The test is whether evidence has a ring of truth, is cogent,
credible and trustworthy, or otherwise.? However, in combined consideration of
above facts and circumstances, this Court finds that evidence of solitary
witness namely P.W.6/Ghulam Haider was required strong corroboration, to which
prosecution has been failed to establish that his evidence as cogent, credible
and trustworthy thereby making prosecution case doubtful. [Pp. 309 & 310] F
AIR (1962) (SC) 424, AIR
(1974) SC 276 & AIR (1976) SC 560.
Benefit of doubt--
----It is also well-established
principle of law that if there is a single circumstance which creates doubt
regarding prosecution case, same is sufficient to give benefit of doubt to
accused, whereas, instant case is replete with number of circumstances which
have created serious doubt about prosecution story. [P. 311] H
Syed Zeeshan Haider, Advocate; Mr.
Hassan Mehmood Ch., Advocate and Mr. Muneeb Majeed Ch. Advocate for Appellant.
Mr. Jam Muhammad Tariq, DPG for
State.
Sardar Muhammad Abbas Khan,
Advocate and Mian Muhammad Salman Idrees, Advocate for Complainant.
Date of hearing: 22.9.2022.
Judgment
This judgment shall dispose of captioned criminal appeal filed
by appellant Liaquat Ali against his conviction and sentence inflicted upon him
vide judgment dated 22.06.2015, rendered by the learned Additional Sessions
Judge, Liaquatpur, in case FIR No. 181/2013 dated 22.03.2013, registered under
sections 302, 452, 109, 337-H(ii), PPC at Police Station Shedani, whereby, he
was convicted and sentenced as under:
Under Section 302(b),
PPC: Life Imprisonment as Ta’zir, along with the direction to pay
Rs. 100,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of
deceased. In default whereof, to further undergo six months S.I.
Under Section 452,
PPC: Rigorous Imprisonment for seven years along with fine of Rs. 20,000/-,
in default of payment whereof to further undergo two months S.I.
Both the sentences
were ordered to run concurrently and he was also extended benefit of Section
382-B of Cr.P.C. however, through the same judgment, co-accused of the
appellant namely Abdul Hakeem was acquitted of the charge.
2. Brief facts of the case, as
disclosed by Ghulam Haider/ complainant (PW.6) and contained in complaint
(Exh.P.B) are that on the day of occurrence i.e. 22.03.2013, at 04:00
p.m, appellant Liaquat Ali while armed with pistol 30-Bore along with
co-accused Muhammad Ali armed with pistol 12-Bore (not facing trial being
Proclaimed offender), Mustafa alias Kali armed with pistol 12-Bore (not
facing trial being Proclaimed offender) along with one unknown accused armed
with pistol 30-Bore, at the abetment of acquitted accused Abdul Hakeem, after
committing house trespass, committed the murder of Mst. Nasreen Bibi,
daughter of complainant.
3. After recording the formal FIR
(Ex.P.C), Muhammad Yaqoob S.I (PW.5), inspected the place of occurrence, made
inspection note and also prepared rough site plan (Ex.P.G). He arrested the
accused persons and got recovered pistol (P.4) along with two live cartridges
(P.5/1-2) along with one crime empty from appellant Liaquat Ali vide recovery
memo Ex.P.J. he also got prepared scaled site plans (Ex.P.D & Ex.P.D/1),
injury statement (Ex.P.E) and inquest report (Ex.P.F) of deceased Nasreen Bibi.
4. After completion of investigation,
the challan was prepared and submitted before the learned trial Court. The
learned trial Court, after observing legal formalities, as provided under the
Code of Criminal Procedure, 1898 framed charge against the appellant along with
acquitted accused Abdul Hakeem on 23.09.2013, to which he pleaded not guilty
and claimed trial.
5. In order to prove its case, the prosecution produced 12
witnesses, during the trial. The complainant Ghulam Haider (PW.6) witnessed the
occurrence whereas Muhammad Arshad (PW.7) and Faqeer Bukhsh (not produced)
attracted at the spot after hearing hullabaloo.
6. After completion of prosecution evidence, the statements of
the appellant and acquitted accused under Section 342 of the Code of Criminal
Procedure, were recorded by the learned trial Court on 08.06.2015 wherein they
refuted the allegations levelled against them and professed their innocence.
While answering to a question that “Why this case against you and why the PWs
have deposed against you?” the appellant replied as under:
“Complainant Ghulam
Haider involved me, my brother Muhammad Ali and my brother in law (Behnoi)
Ghulam Mustafa alias Kali just to revenge of not giving the hands of my sister
namely Yasmeen in watta with Muhammad Nadeem S/O Ghulam Haider complainant.”
The appellant neither opted to make
statement on oath as envisaged under Section 340(2), Cr.P.C., nor he produced
any evidence in his defence.
7. Upon the conclusion of trial, the learned trial Court found
the prosecution’s case against the appellant to have been proved beyond reasonable
doubt and, thus, he was convicted and sentenced as mentioned and detailed above
whereas acquitted his co-accused giving him benefit of doubt. Hence, the
present appeal.
8. Learned counsel for the appellant, in support of this
appeal, contends that prosecution has miserably failed to bring home the guilt
against the convict by producing trustworthy and convincing evidence; that
witnesses are chance witnesses who have failed to establish their presence at
the spot; that partial story of complainant has already been disbelieved by the
investigating officer by declaring the co-accused Muhammad Ali and Ghulam
Mustafa as innocent; that it has been proved during the course of investigation
that the complainant has involved the accused persons due to the grudge of “Watta
Satta” marriage; that it is settled law that the medical evidence may
confirm the ocular evidence with regard to seat of injury and its duration,
nature of injury and kind of weapon used for causing such injury but it cannot
connect the accused with the commission of the crime, until and unless there is
some other evidence, which is very much lacking in this case, therefore, this
piece of evidence is of no avail to the prosecution; that the prosecution has
miserably failed to prove its case against the appellant beyond the shadow of
doubt; thus, the appeal be accepted and the appellant may be acquitted from the
charge.
9. On the other hand, learned DPG for
the State assisted by learned counsel for the complainant, vehemently opposes
this appeal on the grounds that the prosecution has proved the case against the
appellant beyond any shadow of doubt; that the sentence of life imprisonment
was rightly awarded to the appellant and the same may be maintained, appeal may
be dismissed.
10. I have heard the arguments of learned counsel for the
appellant and the learned law officer assisted by learned counsel for the
complainant and also gone through the record with their able assistance.
11. As per story narrated by complainant Ghulam Haider (PW.6)
in complaint (Ex.P.B) and evidence produced by the prosecution, the unfortunate
occurrence was witnessed by the complainant (PW.6), Muhammad Arshad (PW.7) and
Faqir Bakhsh (not produced). It has been gathered from the record that the
permanent residence of complainant PW.6 is at Pacca Laran whereas PW.7 Muhammad
Arshad is also resident of village Pacca Laran while the PW. Faqir Bukhsh was
resident of Mouza Kotla Miran, Tehsil Khanpur. This fact of PWs’ not
resident of place of occurrence i.e. Shehbazpur Gharbi, has also been
admitted by the complainant and PW.7. Therefore, the first & foremost
responsibility of the prosecution was to satisfy the presence of not only
complainant but also the PWs at the place of occurrence at the relevant time as
the place of occurrence is neither same nor adjacent to place of residence of
PWs. To look into this fact of great concern, this Court has scanned the record
with due cautious manner and found that not even a single gesture has been made
by the prosecution to prove the presence of PWs at the spot at relevant time of
affairs. The first document i.e. complaint (Ex.P.B), which set the law
into motion is also silent in respect of purpose of presence of PWs at the
spot. The relevant lines of Exh.P.B are hereby reproduced for ready reference:
"۔۔۔
میرے شور
واویلہ اور
فائرنگ کی
آواز سن کر
محمد ارشد ولد
الہیٰ بخش قوم
چانڈیہ بلوچ
سکنہ
پکالاڑاں اور
فقیر بخش ولد
حاجی رسول بخش
قوم چانڈیہ
بلوچ
سکنہ/موضع
کوٹلہ میرن و
دیگر ہمسائیگان
آگئے جن کو
آتا دیکھ کر
لیاقت علی وغیرہ
اپنا اپنا
اسلحہ لہراتے
ہوئے موٹر
سائیکل ہائے
پر بیٹھ کر
فرار ہونے میں
کامیاب ہو گئے
۔۔۔"
Similarly, the complainant while
appearing in the witnesses box as PW.6, during the course of his
cross-examination deposed that PW. Muhammad Arshad is his son in law. He
further admitted it correct that house of Muhammad Arshad is at Pacca Laran,
however he used to live with me. He showed his ignorance about the inter-se
distance between Pacca Laran to place of occurrence (Shehbazpur Gharbi). He
goes on to depose that the PW Faqir Bukhsh is also his son in law and he is
residing at Mouza Kotla Miran, tehsil Khanpur. He also showed ignorance qua
the inter-se distance between Kotla Miran to place of occurrence (Shehbazpur
Gharbi) and in respect of time consumed to go to Kotla Miran from Shehbazpur
Gharbi. The relevant extract of his deposition is hereby reproduced for ready
reference:
“… PW Muhammad
Arshad is my son in law. It is correct that his house is at Pacca Laran,
however he used to live with me. I cannot tell the distance between Pacca Laran
to place of occurrence (Shehbazpur Gharbi). I cannot tell the how much time
consumed to go to Pacca Laran from Shehbazpur Gharbi. The PW Faqir Bukhsh is
also my son in law and he is residing at Mouza Kotla Miran, tehsil Khanpur. I
cannot tell the distance between Kotla Miran to place of occurrence (Shehbazpur
Gharbi)…”
But, it is again disappointing to note
here that the prosecution has failed to prove the purpose of presence of PWs at
relevant time even during the course of investigation. The I.O of the case
appeared as PW.5 and deposed during the course of cross-examination, quite
astonishingly, what to say about the purpose of presence of PWs, outrightly
negated their status being eye witness of the occurrence by admitting it
correct that the PWs did not see the occurrence. The relevant line is
reproduced hereunder:
“It is correct that the PWs did not see the occurrence.”
Therefore, this Court feels no
hesitation that the PWs being chance witnesses have failed to prove their
presence at the spot at the relevant time of occurrence. It has now been well
settled that for conviction of an accused person it would be highly unsafe to
rely upon testimony of a chance witness when remained uncorroborated and for
conviction of a accused on capital charge on the basis of testimony of chance
witness, the Court has to be at guard and corroboration has to be sought for
relying upon such evidence.[1]
A chance witness, in legal parlance is the one who claims that he was present
on the crime spot at the fateful time, albeit, his presence there was sheer
chance as in the ordinary course of business, place of residence and normal
course of events, he was not supposed to be present on the spot but at a place
where he resides, carries on business or runs day to day life affairs. It is in
this context that the testimony of chance witness, ordinarily, is not accepted
unless justifiable reasons are shown to establish his presence at the crime
scene at the relevant time. In normal course, the presumption under the law
would operate about his absence from the crime spot. True that in rare cases,
the testimony of chance witness may be relied upon, provided some convincing
explanations appealing to prudent mind for his presence on the crime spot are
put forth, when the occurrence took place otherwise, his testimony would fall
within the category of suspect evidence and cannot be accepted without a pinch
of salt.[2]
A chance witness is the one who happens to be at the place of occurrence of an
offence by chance, and therefore, not as a matter of course. In other words, he
is not expected to be in the said place. A person walking on a street
witnessing the commission of an offence can be a chance witness. Merely because
a witness happens to see an occurrence by chance, his testimony cannot be
eschewed though a little more scrutiny may be required at times. This again is
an aspect which is to be looked into in a given case by the Court.[3]
12. Now, comes to the evidence adduced by Ghulam Haider
complainant (PW6), who is father of Mst. Nasreen Bibi deceased. Though
Ghulam Haider complainant while appearing in the witness box as (PW6) during
the cross-examination has unequivocally stated that he is permanently resident
of Pakka Lara yet the prosecution has badly failed to substantiate this fact
through any iota of tangible evidence that when the complainant had his own
house at Pakka Lara then why he was residing at a rented house at Shahbazpur.
It appears that the story of living in a rented house has been concocted in
order to establish his presence at the spot at the relevant time, which
otherwise, is not plausible as neither it was his routine nor he had any
business or any special reason to go at the place of occurrence. Even
otherwise, complainant Ghulam Haider (PW6) during the cross-examination had
failed to narrate the distance between the two places, i.e. Pakka Lara
and Shahbazpur, which raises an eyebrow qua the residing of the complainant in
the rented house at Shahbazpur and seeing of the occurrence being an eye-witness.
Moreso, the owner of the said rented house could easily substantiate the factum
of residing of the complainant in the said house but neither he has been
produced by the prosecution nor any rent deed was adduced in this regard.
Similarly, there is another intriguing aspect of the matter which casts doubt
qua the prosecution story as the complainant during the cross-examination has
stated that his son aged about 11/12 years and his wife were also present when
the occurrence had taken place but surprisingly neither any of them was
produced during investigating or during the trial. So withholding of these
important witnesses in the peculiar circumstances of this case without any
justifiable cause leads the Court to draw an adverse inference against the
prosecution within the purview of Article 129 (g) of Qanun-e-Shahadat Order,
1984 that had they been produced before the learned trial Court, they may have
not supported the prosecution version.[4]
13. Yet there is another glaring aspect of the case, the
autopsy on the dead body of the deceases was conducted at 6.00 p.m. on
22.03.2013, while the duration between death and postmortem examination is
given as 06 hours, thus, if the time is taken into consideration, the time of
occurrence would be round about 12.00 a.m., thus, the medical evidence does not
support in any manner the time of death of the deceased or to say the time of
occurrence.[5]
Even otherwise, it is by now well settled that medical evidence is a type of
supporting evidence, which may confirm the prosecution version with regard to
receipt of injury, nature of the injury, kind of weapon used in the occurrence
but it would not identify the assailant.[6]
14. Furthermore, the conduct of the complainant was found
irrational as the doctor who had conducted autopsy on the dead body of the
deceased while appearing in the witness box as PW-9 has opined the time between
injury and death as ten minutes but there is nothing on the record that the
complainant had made any effort to take the deceased in injured condition to
the hospital for her medical treatment. Furthermore, the presence of the
complainant has also been falsified as he has insisted that his clothes were
stained with blood but neither the blood stained clothes of the complainant
were produced nor the same were taken into possession by the Investigating
Officer rather the Investigating Officer has deposed during the
cross-examination that when he visited the place of occurrence the clothes of
the complainant were not stained with blood.
15. Further, As per site plan (Ex.P.G),
point No. 1 is the place from where the deceased had received fire-arm injuries
and from where the dead body of the deceased was found lying but surprisingly
no crime empty of pistol 30 bore was secured by the investigating officer from
the said place during his first spot inspection. Even otherwise, in the inquest
report (Ex.P.F) in the relevant column No. 23, it has not been shown that any
empty was found at the spot near the dead body of the deceased. But,
interestingly, Liaquat Ali appellant during his physical remand on 25.04.2013
got recovered pistol (P.4) along with two live cartridges (P.5 to P.6) and one
empty cartridge (P.7) from the area of Mouza Shehbazpur near KLP Road in a bush
but the said recovery cannot be relied upon for the reason as neither it was
the case of the prosecution nor any of the prosecution witnesses have stated
that the appellant after the occurrence had taken the empty cartridge along
with him. Even otherwise, it is not expected from the appellant that he would
have kept the said empty cartridge along with the weapon of offence in order to
produce the same before the police for creating evidence against him. In these
circumstances, the positive report of FSL (Ex.P.N) is of no avail to the
prosecution and is inconsequential. Even otherwise, it is also well settled
that unless direct or substantive evidence is brought on record, conviction
cannot be recorded on the basis of such type of evidence howsoever convincing
it may be.[7]
16. So far as the arguments of
learned counsel for the complainant that testimony of sole witness cannot be
excluded from consideration is concerned, in this respect, this Court deems it
appropriate to dilate upon acceptability and reliability of uncorroborated
testimony of a solitary witness in a prosecution case to arrive at the guilt of
the accused. The well-known maxim that “Evidence has to be weighed and not
counted” marks a departure from the English law where a number of statutes
still prohibit convictions for certain categories of offences on the testimony
of a single witness. This-difference was noticed by the Privy Council in “Mahamed
Sugal Esa Mamasah Rer Alalah v. The King”,[8]
wherein it was laid down as under:
“It was also submitted on behalf of the
appellant that assuming the unsworn evidence was admissible the Court could not
act upon it unless it was corroborated. In England, where provision has been
made for the reception of unsworned evidence from a child, it has always been
provided that the evidence must be corroborated in some material particularly
implicating the accused. But in the Indian Act there is no such provision and
the evidence is made admissible whether corroborated or not. Once there is
admissible evidence a Court can act upon it; corroboration unless required by
statute goes only to the weight and value of the evidence. It is a sound rule
in practice not to act on the uncorroborated evidence of a child, whether sworn
or unsworn but, this is a rule of prudence and not of law.”
Generally speaking, oral testimony in
this context may be classified into three categories (1) wholly reliable (2)
wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the
first category of proof, the Court should have no difficulty in coming to its
conclusion either way -it may convict or may acquit on the testimony of a
single witness, if it is found to be above approach of suspicion of
interestedness, incompetence of subordination. In the second category, the
Court equally has no difficulty in coming to its conclusion. It is in the third
category of cases, that the Court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony, direct or
circumstantial. There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if Courts
were to insist on plurality of witnesses in proof of any fact, they will be
indirectly encouraging subordination of witnesses. Situations may arise and do
arise where only a single person is available to give evidence in support of a
disputed fact. The Court naturally has to weigh carefully such a testimony and
if it is satisfied that the evidence is feasible and free from all taints which
tend to render oral testimony open to the suspicion, it becomes its duty to act
upon such testimony. The law reports contain many precedents where the Court
had to depend and act upon the testimony of a single witness in support of the
prosecution.[9]
But, if there are doubts about the testimony the Courts will insist on
corroboration. It is for the Court to act upon the testimony of witnesses. It
is not the number, the quantity, but the quality that is material. The
time-honoured principle is that evidence has to be weighed and not counted. The
test is whether the evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise.? However, in the combined consideration of the above
facts and circumstances, this Court finds that the evidence of the solitary
witness namely P.W.6/Ghulam Haider was required strong corroboration, to which
prosecution has been failed to establish that his evidence as cogent, credible
and trustworthy thereby making the prosecution case doubtful.
17. This Court has considered all the pros and cons of this case and
has come to an irresistible conclusion that the prosecution could not prove its
case against the appellant beyond shadow of doubt. It is, by now
well-established principle of law that it is the prosecution, which has to
prove its case against the accused by standing on its own legs, but in this
case the prosecution remained failed to discharge its responsibility. It is
also well-established principle of law that if there is
a single circumstance which creates doubt
regarding the prosecution case, the same is sufficient to give benefit of doubt
to the accused, whereas, the instant case is replete with number of
circumstances which have created serious doubt about the prosecution story. The
prosecution is under obligation to prove its case against the accused person at
the standard of proof required in criminal cases, namely, beyond reasonable
doubt standard, and cannot be said to have discharged this obligation by
producing evidence that merely meets the preponderance of probability standard
applied in civil cases. If the prosecution fails to discharge its said
obligation and there remains a reasonable doubt, not an imaginary or artificial
doubt, as to the guilt of the accused person, the benefit of that doubt is to
be given to the accused person as of right, not as of concession. The rule of
giving benefit of doubt to accused person is essentially a rule of caution and
prudence, and is deep rooted in our jurisprudence for safe administration of
criminal justice. In common law, it is based on the maxim, “It is better that ten
guilty persons be acquitted rather than one innocent person be convicted”.
While in Islamic criminal law it is based on the high authority of sayings of
the Holy Prophet of Islam (peace be upon him): “Avert punishments [hudood] when
there are doubts”; and “Drive off the ordained crimes from the Muslims as far
as you can. If there is any place of refuge for him [accused], let him have his
way, because the leader’s mistake in pardon is better than his mistake
in punishment”.[10]
18. In the light of above discussion,
I am of the considered view that the prosecution has failed to prove its case
against the appellant beyond the shadow of doubt, therefore, instant criminal
appeal is accepted and his conviction and sentence recorded by the learned
Additional Sessions Judge, Liaquatpur vide impugned judgment dated
22.06.2015 is set aside and he is acquitted of the charge by extending him the
benefit of doubt. He is in custody, he be released forthwith if not required in
any other case.
(A.A.K.) Appeal accepted
[1]. “Anwar Begum vs. Akhter Hussain” (2017
SCMR 1710).
[2]. “Mst. Sughra Begum and another vs. Qaiser
Pervez and others” (2015 SCMR 1142) para No. 14. “Muhammad Irshad vs. Allah
Ditta and others” (2017 SCMR 142), “Sufyan Nawaz and another vs. The State and
others” (2020 SCMR 192).
[3]. “State of A.P. v. K. Srinivasulu Reddy”,
(2003) 12 SCC 660).
[4]. 4 “Riaz Ahmad versus The State” (2010
SCMR 846) and “Khalid @ Khalidi and 2 others versus The State” (2012 SCMR 327).
[5]. “Muhammad Asif v. The State” (2017 SCMR
486).
[6]. “Muhammad Mansha vs. The State” (2018
SCMR 772), “Ghulam Mustafa vs. The State” (2009 SCMR 916) and “Naveed Asgahr
and 2 others vs. The State” (PLD 2021 SC 600).
[7]. “Muhammad Irshad vs. Allah Ditta and
others” (2017 SCMR 142) and “Muhammad Mansha vs. The State” (2018 SCMR 772).
[8]. A.I.R. (1946) P.C.
[9]. Ramratan and Others v. The State of
Rajasthan, A.I.R. (1962) S.C. 424; Guli Chand and Others v. State of Rajasthan,
A.I.R. (1974) S.C, 276; Badri v. State of Rajasthan, A.I.R. (1976) S.C. 560;
Vanula Bhushan @ Venuna Knshnan v. State of Tamil Nadu, A.I.R. (1989) S.C. 236
and in Jagdish Prasad v. State of M.P., A.I.R, (1994) S.C. 1251.
[10]. “Naveed Asghar and two others vs. The
State” (PLD 2021 SC 600).