ALI MURAD alias NIAZO Versus State
MUHAMMAD SALEEM JESSAR, J .---Through this appeal Appellant has assailed Judgment dated 24.11.2011, handed down by learned Sessions Judge, Mirpurkhas in Sessions Case No.30 of 2007 (re: State v. Ali Murad and another), being outcome of FIR No.05/2007 registered at Police Station Kot Ghulam Muhammad, under sections 302, 504/34, P.P.C., whereby he convicted the accused/appellant Ali Murad for the offence punishable under section 302(b), P.P.C. for murder of deceased Kandero and awarded hire sentence of life imprisonment i.e. 25 years and to pay compensation of Rs.3,00,000/- (Rupees Three Lac only) to the L.Rs of deceased Kandero and in default to undergo R.I. for six months more. However, the accused/appellant was extended benefit of section 382-B, Cr.P.C.
2. The crux of the prosecution case, is that on 08.2.2002 at 1300 hours complainant Muhammad Bux son of Kandero Kapri, resident of village Muhammad Yousuf Talpur, Deh 297, Taluka Kot Ghulam Muhammad, lodged the report with Police Station Kot Ghulam Muhammad stating therein that he resides at above address. He is Hari of Nawab Muhammad Yousuf Talpur. Yesterday i.e 07.2.2007 in the evening he and his father Kandero were working in their lands when Ali Murad Chandio came. He informed father of complainant namely, Kandero that his father has arranged a dinner for him so he may come and have dinner with them. Thereafter, complainant and his father went to their house. After sun set complainant's father went for feast of Mubarak Chandio. On 08.2.2007 at 0030 hours complainant's relatives namely Mataro son of Behram and Ramzan son of Urs Kapri came and apprised him the facts that they were also invited in feast of Mubarak Chandio. They both had gone in the feast and were chit-chatting outside the house. On -07.2.2007 at 2330 hours there was exchange of hot words over money between accused and the father of complainant, whereupon Mubarak abused Kandero and on his request not to use abusive language, son of Mubarak namely Ali Murad, within their sight, caused sharp side hatchet blow to Kandero, father of complainant, on his head who fell down. Due to fear they ran away. On having come to know about such facts complainant, his relative Mataro and Ramzan Kapri jointly went to village of Mubarak Chandio where they found father of complainant namely Kandero lying injured in front of house. He was having a hatchet injury on his head and was unconscious. In the night complainant party brought him home through a donkey-cart and stayed at home due to non-availability of conveyance. In the morning the injured was taken to Taluka Hospital, Kot Ghulam Muhammad, where he succumbed to his injuries after some time. Leaving his relatives over dead body, the complainant appeared at police station and lodged the report that accused persons namely Mubarak and Ali Murad Chandio in furtherance of their common object abused and murdered his farther by causing sharp side hatchet injury with intention to kill him.
3. Investigation of the case was conducted by ASI Abdul Hafeez Arain, SIO Police Station Kot Ghulam Muhammad and ASI Muhammad Waris of I.T. Police Station Kot Ghulam Muhammad, and having completed the investigation, challan was submitted against the accused persons namely Ali Murad alias Niazo and Mubarak before the Court of Magistrate concern, wherefrom it was forwarded to Sessions Court, as the case was exclusively triable by the Court of Session.
4. A formal charge was famed against the accused persons namely Ali Murad alias Niazo and Mubarak vide Ex.2 to which they pleaded not guilty and claimed their trial vide their pleas, Ex.2/A and 2/B respectively.
5. The prosecution in order to bring home guilt to th accused persons, examined P.W.1 Muhammad Bux, complainant of the case at Ex.3, who produced FIR as Ex.3/A. P.W.2 Muhammad Ramzan was examined at Ex.4, who produced his 164, Cr.P.C. Statement as Ex.4/A, While P.W.3 M.O. Sikandar Ali was examined at Ex.5, who produced letter of police and postmortem report as Ex.5/A and 5/B respectively. P.W.4 was examined at Ex.6, Who produced his 164, Cr.P.C. statement as Ex.6/A. P.W. 5 ASI Abdul Hafeez; I.O. of the case, was examined at Ex.7, who produced the receipt of handing over dead body as Ex.7/A and letter issued to Mukhtiarkar for appointing Tapedar as Ex.7/B. P.W.6. Dansingh was examined at Ex.8; whereas P:W.7 ASI Muhaminad Waris, second I.O. of the case, was examined at Ex.9, who produced mashirnama of recovery of hatchet and letter addressed to J.M. for recording 164, Cr.P.C. statements of witnesses as Ex.9/A and 9/B respectively. At that stage accused Mubarak expired, as such after recording statement of process server namely ASI Tharo Khan, case against accused Mubarak was ordered to be abated vide order dated 12th August, 2010. Thereafter, P.W. Roshan Ali was given up by learned ADPP vide statement Ex.11. P.W.8 Esso, who acted as mashir, was examined at Ex.12. After examining the above witnesses, learned DPP closed prosecution side vide his statement Ex.13.
6. Statement of accused Ali Murad alias Niaz Muhammad was recorded under section 342, Cr.P.C. at Ex.14, wherein he denied the allegations and claimed to be innocent. However, he did not get examined himself on Oath but he produced Defence Witness namely, Dost Muhammad as provided under section 340(2), Cr.P.C. who was. examined before the trial Court vide Ex.15, At that stage, learned DPP, appearing for the State made through his statement Ex.16, submitted. chemical report with a plea that the said Chemical Report could not be produced at the.time of evidence of I.O. due to oversight. Then, learned counsel for the accused closed defence side vide Statement Ex. 17.
7. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant/accused, as stated above. Against the said judgment the appellant has preferred instant appeal.
8. I have heard learned counsel for the appellant as well as learned D.P.G. appearing for the State and perused the material available on the record.
9. Learned counsel for appellant submitted that the accused is innocent and has been falsely implicated in the case. He submitted that the alleged incident is the result of sudden flare-up and had occurred at odd hours of night, wherein source of identification has not been disclosed. He further pointed out that appellant(s) allegedly had invited the deceased at their house, but specific purpose for invitation has not been brought on record nor it has been deposed by prosecution witnesses, as to whether it was held for what particular occasion. He focused upon evidence adduced by IOs of the case and submitted that both the I.Os had failed to collect this crucial piece of evidence, which is essential to establish the motive disclosed by the complainant party. He further submitted that PWs namely Muhammad Ramzan and Mataro were examined before lst Civil Judge and Judicial Magistrate, Kot Ghulam Muhammad on 14.02.2007 under section 164, Cr.P.C., wherein both the PWs had deposed to the extent of causing hatchet injuries to deceased; however, they failed to pinpoint the motive behind the incident. Learned counsel further, focused upon the list of witnesses and submitted that said Magistrate was not examined before trial Court hence, according to him, 164, Cr.P.C. statements of PWs Mataro and Muhammad Ramzan have got no evidentiary value. He also submitted that the alleged motive shown by complainant party was outcome of financial transaction; however, none of the PWs including complainant, who is real son of deceased, has disclosed the specific amount as well as the time of such transaction, even they could not specify whether said amount was borrowed by the appellant(s) from the deceased or by the deceased from the appellant(s). He, therefore, submitted that all these questions have remained unsolved and no proper evidence was collected by the I.O. and produced before trial Court. Learned counsel further focused upon cross-examination of medico-legal officer Sikander Ali (Exh.05), wherein during his cross-examination he admitted that deceased Kandero was admitted in the hospital in the morning shift, whereas his duty was in the evening shift; however, the medico-legal officer on duty in the morning shift, who had allegedly examined injuries of deceased, was not mentioned in calendar as witness nor was examined before trial Court by the prosecution. Per his cross, deceased died/succumbed to his injuries at 01:00 p.m.; however, doctor on duty in morning shift had not conducted his postmortem examination. To a suggestion, the medico-legal officer replied that he cannot say exactly that the deceased was intoxicated with any alcohol and due to intoxication he fell down which resulted in the injuries as well as his death. He, however, made following admissions in his cross-examination:
"It is correct that due to forceful fall on a hard substance may cause abrasion. I cannot say that the duty doctor at morning had stated that the injured was under the influence of alcohol and he refused to give report as such police contacted with me. Voluntarily says, that I was only nominated to conduct the postmortem of the deceased I had only an information that he was alive in the morning. I do not know anything about the dying declaration of the deceased. It is correct to suggest that when injured person is brought to hospital, at first memo of injuries is to be prepared by police and such certificate is issued by the doctor, if the person is alive. I do not know about any certificate of injuries if issued to the deceased. It is incorrect to suggest that I issued false postmortem report due to pressure of police upon me. It is incorrect to suggest that I falsely issued the postmortem report of deceased."
10. Learned counsel further pointed out that neither utensils nor any food item had been shown to have been recovered from the scene of offence through which it can be ascertained that appellant, allegedly had invited the deceased. He also submitted that though deceased was shifted from place of incident to his home and then to hospital, where he remained alive up to 01:00 p.m. his dying declaration was not recorded nor was he examined by the police in order to ascertain as to whether he sustained alleged injuries on his person at the hands of appellant(s) or through any other source. He finally submitted that such ambiguity has not been resolved, which creates a lot of doubts in the veracity of prosecution evidence. According to him, prosecution has failed to prove the charge against the appellant hence, he prayed that appellant may be acquitted of the charges by extending hith benefit of doubt. In support of his submissions he relied upon the cases of Noor Muhammad v. The State and another (2010 SCMR 97), Ishtiaq Masih v. The State (2010 SCMR 1039), Muhammad Rafique and others v. The State and others (2010 SCMR 385), Muhammad Saleem v. The State (2010 SCMR 374), Irshad Ahmed v. The State (2011 SCMR 1190) and Muhammad Ibrahim v. Ahmed Ali and others (2010 SCMR 637).
11. On the other hand, learned D.P.G. opposed the appeal and submitted that prosecution has adduced sufficient evidence to corroborate the averments made in the FIR. Besides, ocular version also gets support from medical evidence; thus, instant appeal merits no consideration and impugned judgment does not require any interference by this Court. He, therefore, prayed for dismissal of the appeal.
12. It seems that in the instant case, evidence of three witnesses is of much importance i.e. P.W.1, Complainant Muhammad Bux and two eye- witnesses of the alleged incident namely, P.W.2 Muhammad Ramzan and P.W.4, Mataro. These three witnesses in their cross-examination have made certain material contradictions which create serious doubts and put serious dents in the prosecution case.
13. Complainant Muhammad Bux in his evidence deposed that on the day of incident i.e. 07.02.2007 he and his father Kandero were working on the sugarcane crops, when accused Ali Murad came there and informed complainant's father that his father Mubarak has invited him at his house at evening time. His father went to the house of Ali Murad in the evening. At about 1.00 a.m. of night P.Ws Mataro and Muhammad Ramzan came to his house and informed him that his father had been inurdered by Ali Murad and his father. He further deposed that thereafter, he went to the house of Ali Murad on donkey-cart as there was no conveyance available due to odd hours of night and brought his injured father at home on the donkey-cart at 4.00 a.m. On the next day in the morning at about 8.00 a.m. complainant had taken his injured father to hospital. After reaching the hospital his father expired there. Thereafter, he went to Police Station while leaving his relatives on the dead body at hospital. Thereafter, police arrived and completed legal formalities. After completion of postmortem examination, dead-body of his father was handed over to him.
14. In his evidence, as stated above, although he deposed that P.Ws Muhammad Ramzan and Mataro had informed him about the incident but while deposing that thereafter he went to the house of accused and then he brought his injured father to home and then in the morning he took his father to hospital and after reaching at the hospital his father succumbed to his injuries, he has not said a single word that during all this process P.W. Muhammad Ramzan or P.W. Mataro was accompanying him, whereas these two alleged eye-witnesses have deposed otherwise.
15. According to P.W. Muhammad Ramzan, when he and P.W. Mataro informed complainant Muhammad Bux about alleged incident, "Muhammad Bux asked me (P.W. Muhammad Ramzan) to accompany with him at the house of accused Ali Murad, hence on his request I (P.W. Muhammad Ramzan) went along with him on donkey-cart where I saw Kandero who was lying injured, and unconscious." Thereafter they took the injured to the house of complainant and in the morning they took him to hospital where he succumbed to his injuries.
16. On the other hand, P.W. Mataro had narrated yet different facts on this point. According to him, after the alleged incident he and P.W. Muhammad Ramzan came to the house of complainant Muhammad Bux and informed him about the alleged incident. He further deposed, "Thereafter I and Ramzan along with Muhammad Bux again came at the place of incident, where Kandero was lying injured and unconscious there." Thereafter, these three persons brought the injured to complainant's house and in the morning they took him to hospital where he expired.
17. From this it is clear that according to complainant, he alone and according to P.W. Muhammad Ramzan, he and complainant both, whereas according to P.W. Mataro, all these three persons, had undertaken the above exercise.
18. Another material contradiction in their evidence is that after accused Ali Murad had informed the complainant and his father about the invitation of complainant's father at his house in the evening, according to complainant, "We left the sugarcane crop and reached at about 6.00 p.m. at our home." Having said so which clearly indicate that both of theth i.e. complainant as well as his deceased father left the sugarcane crop at about 6.00 p.m. and reached at their home, he took a somersault by adding, "From sugarcane crop I came to my house while my father directly went in the invitation of accused persons. Ramzan and Mataro had already gone." In any case, it seems that complainant's deceased father had proceeded towards the house of the accused in the evening time. Now according to complainant, "The house of the accused is situated at about 20/25 kms away from the sugarcane crop as well as our village." Complainant further admitted, "My father, Ramzan and Mataro all were went on foot to the house of accused persons." If complainant's deceased father had gone by foot towards the house of the accused which as admitted by complainant himself, was situated at a distance of 20/25 kilometers from the sugarcane crop and their village, it certainly would have taken 2 to 3 hours in reaching the house of the accused. Now, supposing the deceased had left sugarcane crop or his house for going to the house of accused at 5.00 p.m. in the evening, although according to complainant, they had reached home at 6.00 p.m., even then he could not have reached the house of accused before 7.30 or 8.00 p.m., but P.W. Muhammad Ramzan in his cross-examination admitted, "We reached at the village of accused at about 5.00 p.m. or 5.30, p.m. Deceased Kandero was already present at the house of accused, prior to our arrival. "This is unbelievable in view of above-stated fact about the proceeding of deceased towards house of the accused at the evening time.
19. Yet there is another contradiction. According to complainant, as Stated above, "The house of the accused is situated at about 20/25 kms. away from the sugarcane crop as well as our village", while P.W. ASI Abdul Hafeez, first I.O. of the case, in his cross-examination admitted, "The Goth of the complainant is about 08/10 kilometer away from the place of incident." On the other hand, according to P.W. Muhammad Ramzan, "The house of accused Niazo is situated at the distance of about one and half mile away from my house, while one mile away from the house of deceased Kandero", while P.W. Mataro admitted, "The house of accused Mubarak is situated 2-3 miles away from my house and would be 1-2 miles away from the house of deceased Kandero." Had there been difference of one or two miles/kilometers, the situation would have been different, but where difference in the statements of four important prosecution witnesses in respect of distance between the house of the deceased and that of the accused comes to about 20 to 22 kilometers, this cannot be termed as minor contradiction.
20. Not only this, yet there is another very mazing factor in the instant case, i.e. when at about 01.00 a.m. in the night complainant was informed by P.Ws Muhammad Ramzan and Mataro about sustaining hatchet injury by his father at the hands of accused Ali Murad and he accompanied by P.W. Muhammad Ramzan or also by P.W. Mataro, as per admission of P.W. Mataro, went towards the house of the accused and found his father in injured and unconscious condition and blood was oozing from the injury, then instead of taking his father who, as per his own admission, was in a very critical condition, to the hospital or police station, he brought him at his house and waited for the whole night while the serious injury inflicted on the head of the deceased was yet open and then in the morning they took the injured to the hospital. The stand taken by the complainant that at that time no conveyance was available is also belied by the admissions made by complainant party itself, inasmuch as; complainant admitted in his cross-examination, "It is correct that the tractor, car, jeep and motorcycle were available in the village Lal Shah. We had not gone to village Lal Shah for seeking any vehicle from there to carry the injured." Although, prior to this, he had also admitted, "My injured father was lying on uncultivated land belonging to Syed Lal Shah." and P.W. Muhammad Ramzan also admitted, "It is correct that car, jeep, and motorcycles are available in Lal Shah village. We did not go at village Lal Shah for conveyance." Even, they could have taken the injured to hospital in donkey-cart in which they had taken him back to complainant's house which was, according to complainant was 20/25 kms. away from place of incident, whereas the hospital would have been nearer than the house of the complainant or even if it might have been situated at equal distance or even at somewhat far place, even in such eventuality at least the injured could have been provided medical aid earlier than 9.30 of the next morning when admittedly the complainant party along with the injured reached at the hospital and sometime after that he succumbed to his injuries.
21. Now adverting to the motive for committing the alleged offence, it appears that the same has not been proved satisfactorily by the proseeution and it seems to be shrouded in mystery. According to prosecution, the motive behind the alleged incident was certain financial dispute between the accused and the deceased. However, none of the prosecution witnesses, even the complainant himself, who is real son of the deceased, has not deposed that as to whether there was any such monetary dispute between the deceased and the accused, or that what amount was borrowed by deceased from the accused or by the accused from the deceased. It would be advantageous to reproduce hereunder the admissions made by the prosecution witnesses on this point:
22. Complainant Muhammad Bux admitted as under:-
"I do not know any dispute of money between my father and accused persons. It is correct that when accused came to invite us he did not demanded any money from my father. It is correct prior to incident the accused persons never demanded any money from my father. Nobody has ever informed me about any dispute of money prior to this incident. It is correct that accused persons have no enmity with my father."
23 P.W. Muhammad Ramzan admitted as under:-
"The accused Niazo did not say about any dispute regarding amount with Kandero to us when he came for inviting us. I do (not) know in what respect and how much amount Mubarak demanded from deceased Kandero. It is not disclosed by the Kandero or the accused persons in the house in katchery about the amount."
24. P.W. Mataro admitted as under:-
"I do not know how much amount accused demanded from deceased. Accused did not disclose any amount towards deceased Kandero. I do not know in what respect accused Mubarak demanded the amount from Kandero. Previously no application for dispute was given by the parties against one another."
25. From above, it is clear that prosecution has not succeeded in proving the motive for commission of alleged offence by the accused persons which is one of the important ingredients for committing a criminal offence and in absence of such ingredient(s), Superior Courts have not appreciated conviction of the accused. There are various case-law on this point, however, for the sake of brevity I confine myself only one case relating to offence under section 302(2), P.P.C. decided by Honourable Supreme Court i.e. Nawab Ali v. State reported in 2019 SCMR 2009, wherein it was held that prosecution asserted motive but failed to prove the same and such failure had reacted against sentence of death passed on charge of murder."
26. So far as recovery of alleged crime weapon i.e. hatchet is concerned, besides other infirmities, most important and material defect in this piece of evidence is that although it is alleged that on the pointation of accused/appellant bloodstained hatchet was recovered by the I.O. but very strangely no report of Chemical Examiner was produced before the trial, Court in respect of the alleged crime weapon as well as blood-stained earth and bloodstained clothes allegedly secured during investigation. It was only when the prosecution side was closed and thereafter statement of accused was recorded and even defence witness namely, Dost Muhammad was also examined on 18.01.2011, then on 28.01.2011 vide his Statement, learned DDPP, appearing for the State, submitted that at the time of evidence of I.O. the Chemical Report could not be produced due to oversight, therefore, he submitted the said report with his Statement. However, said report was not exhibited by the trial Court. In this view of the matter, such report of chemical examiner has lost its evidentiary value and is liable to be discarded. In absence of report of Chemical Examiner, alleged recovery of blood-stained hatchet which, even otherwise, is a common object/weapon and could easily be made available from the market, cannot be said to have been proved in accordance with law. This is also fatal to the prosecution case.
27. In this connection reference can be made to the case of Pervez Masih v. The State (2005 PCr.LJ 1232), wherein a Full Bench of Honourable Federal Shariat Court held as under:
"However, we are afraid evidence of the recovery of crime weapon by itself being evidence of purely corroboratory nature, in the absence of any direct or substantive evidence alone, was not sufficient to bring home charge against the appellant, particularly when neither Serologist's report nor Chemical Examiner's reports were produced or tendered in evidence so as to prove that the "Churri" was bloodstained and if it was so, it had human blood and was of the same group as was of the deceased."
28. Apart from above, there are also other lacunas/flaws in the investigation which are also damaging for the prosecution case. The same may be narrated in the following terms: i) The evidence of complainant is hearsay, while the incident was allegedly witnessed by P.Ws Muhammad Ramzan and Mataro, therefore any one out of these two witnesses should have lodged FIR, but instead a person whose evidence is hearsay has become complainant in this case. It may also be pointed out that both these alleged eye-witnesses are also close relatives of the complainant and deceased, inasmuch as admittedly, deceased Kandero was cousin of P.W. Mataro as well as husband of his sister, whereas P.W. Muhammad Ramzan was nephew of P.W. Mataro, thus was cousin of the complainant. In this view of the matter, complainants' statement has no evidentiary value by virtue of the provisions of Article 71 of Qanun-e-Shahadat Order, 1984. This is also injurious to the prosecution case; ii) The Magistrate who recorded 164, Cr.P.C. statements of P.Ws Mataro and Muhammad Ramzan was not examined before the trial court; iii) There is delay in conducting post-mortem examination as Medico-legal Officer namely, P.W. Sikandar Lal in his evidence admitted that deceased Kandero was admitted in the hospital and he succumbed to his injuries at 01.00 p.m. but the doctor who was on duty in morning shift did not conduct his postmortem examination, instead the same was conducted by Dr. Sikandar Lal at 3.00 p.m. which was completed at 5.00 p.m. Such delay has also not been approved/appreciated by the Superior Courts; iv) Although it is the prosecution case that deceased and P.Ws Muhammad Ramzan and Mataro were invited at dinner by accused and they took meal there but neither utensils nor any food item has been shown to have been recovered from the scene of offence, even I.O. namely, P.W. ASI Abdul Hafeez admitted in his cross-examination, "I had not seen any marks of the cooking of the marriage ceremony or any food material/article at the place of incident." v) Admittedly, the deceased remained alive for the whole night and he expired in the morning at about 9:30 p.m. in the hospital but despite that his dying declaration or even statement under section 161, Cr.P.C. was not got recorded by the police; vi) One of the pleas taken by the accused was that, in fact, the deceased after taking wine, had fallen on the ground and got injured and due to the fact that injured was not provided timely medical treatment, he succumbed to his injuries. I.O. of the case, ASI Abdul Hafeez in his cross-examination also admitted, "From the enquiry of the villagers I came to know that there was invitation of "Thara" (Desi wine)." He also admitted, "It is correct that there was no invitation of any Khairat ceremony or marriage ceremony held at the place of incident"; vii) All material witnesses are relatives of the complainant and the deceased. Although there is no cavil to the proposition that the evidence of any related witnesses cannot be discarded only on the ground of his relationship with the complainant party; if otherwise their evidence is confidence inspiring and is of unimpeachable nature but, I am afraid, it is not so in instant case, in view of material contradictions, as pointed out above; viii) The accused in his statement under section 342, Cr.P.C. stated that, in fact, murder of deceased Kandero was committed by some other person; however, due to influence of Syed Lal Shah, who was very influential person of locality, police did not arrest the real culprit and has falsely involved him in the case and his aged and ailing father who during the trial had expired. Besides, he also examined D.W. Dost Muhammad who deposed that accused Ali Murad used to reside in the village Ahmed Khan Khoso, Taluka Jhudo at the time of alleged incident and used to look after the cattle of Saleh Khoso and cut the grass for cattle and that accused is innocent and has been falsely involved in the case. However, in the entire impugned judgment, the trial Court has not discussed such aspects of the case, which is in violation of the settled law.
29. Needless to emphasize the well settled principle that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In the case reported as Wazir Muhammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:
"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
30. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:
"The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case .......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."
31. It is also well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-
"The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession' but as a matter of right."
32. Accordingly, for the foregoing reasons, instant criminal appeal is allowed. Consequently, impugned Judgment dated 24.11.2011, handed down by learned Sessions Judge, Mirpurkhas in Sessions Case No.30 of 2007 (re: State v. Ali Murad and another), being outcome of FIR No.05/2007 registered at Police Station Kot Ghulam Muhammad, under sections 302/34, is set aside and appellant Ali Murad alias Niazo son of Mubarak Chandio is acquitted of all the charges. He shall be released forthwith, if his custody is no longer required in any other custody case.
JK/A-81/Sindh Appeal allowed.