25/04/2024, 17:33 2024 Y L R 578

2024 Y L R 578
[Sindh (Larkana Bench)]
Before Shamsuddin Abbasi, J
AHSAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. S-74 of 2021, decided on 30th May, 2022.
(a) Penal Code (XLV of 1860)---
----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Kidnapping, abducting or
inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa,
ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or
wrongful restraint, common intention---Appreciation of evidence---Benefit of
doubt---Statement of abductee in contradiction to the charge framed---Accused
were charged for trespassing the house of abductee/sister-in-law of complainant,
kidnapping her with intention to commit zina and throwing her from motorcycle,
with the result that her teeth, legs and arms were broken---Abductee while
appearing before the Trial Court had deposed that after her abduction accused beat
her mercilessly with iron rod and she became unconscious and regained senses in
hospital, where she was examined by the Medical Officer---Police and her relatives
also arrived at hospital---From said hospital, she was referred to another hospital,
but her relatives took her to a different hospital for further treatment---Said
statement of abductee clearly showed that she sustained injuries with the blows of
iron rod and not due to throwing from a motorcycle---Surprising to note that the
entire charge was silent with regard to the allegation of torture and inflicting
injuries with the blows of iron rod---Charge only specified that accused persons
while taking abductee threw her from the motorcycle as a result of which she
sustained injuries---Charge, thus, was in conflict with the statement of abductee
recorded before the Judicial Magistrate, under S. 164, Cr.P.C., as well as her
evidence adduced before the Trial Court---Likewise, while examining the accused
under S. 342, Cr.P.C., the Trial Court did not put a single question to the accused as
to causing torture to abductee and inflicting injuries to her with the blows of iron
rod---None of the prosecution witnesses had supported abductee that injuries on her
person were caused with the blows of iron rod and she was subjected to torture by
the accused persons---Circumstances established that the prosecution had failed to
prove its case against the accused beyond any shadow of doubt---Appeal against
conviction was allowed, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 342---Examination of accused---Scope---Each and every material piece of
evidence brought on record by the prosecution against an accused must be put to
him at the time of recording of his statement under S. 342, Cr.P.C., so as to provide
him an opportunity to explain his position in that regard---Denial of such

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opportunity to the accused defeated the ends of justice---Failure to comply with this
mandatory requirement vitiates a trial.
(c) Penal Code (XLV of 1860)---
----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Kidnapping, abducting or
inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa,
ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or
wrongful restraint, common intention---Appreciation of evidence---Benefit of
doubt---Ocular account and medical evidence--- Contradiction between---Accused
were charged for trespassing the house of abductee/sister-in-law of complainant,
kidnaping her with intention to commit zina and throwing her from motorcycle,
with the result that her teeth, legs and arms were broken---Record showed that there
was no eye-witness of incident to the extent of injuries sustained by victim except
her own statement---Evidence of victim was contradictory with the medical
evidence---When evidence of victim was contradictory with medical evidence then
propriety of safe administration demanded that its benefit would go in favour of
accused---Circumstances established that the prosecution had failed to prove its
case against the accused beyond any shadow of doubt---Appeal against conviction
was allowed, in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Kidnapping, abducting or
inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa,
ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or
wrongful restraint, common intention---Appreciation of evidence---Benefit of
doubt---Contradictions in the statements of witnesses---Accused were charged for
trespassing the house of abductee/sister-in-law of complainant, kidnaping her with
intention to commit zina and throwing her from motorcycle, with the result that her
teeth, legs and arms were broken---According to Medical Officer, victim was
brought at hospital in injured condition on 09.07.2019 at 1:45 pm whereas Head
Constable/witness in his deposition had stated that he was present at Police Station
at 1:30 pm when SHO informed him about arrival of an injured at hospital with a
history of road traffic accident and directed him to go there---Said witness went to
hospital and issued letter for providing medical treatment to victim---By stating so,
said witness had contradicted Medical Officer in respect of time of arrival of victim
in hospital---Surprising to note that according to Medical Officer victim was
brought at hospital at 1:45 pm, but memo of inspection of injuries, prepared by
Head Constable and placed on record, showed its time of preparation at 1:40 pm---
How was it possible that such a memo was prepared at hospital before arrival of
victim at hospital, as she according to Medical Officer was brought at hospital at
1:45 p.m.---Complainant while appearing before the Trial Court had contradicted
the story narrated by him in his FIR by deposing that on 09.07.2019 at 2 p.m., when
he reached at hospital and saw victim in injured condition and due to seriousness of
injuries she was shifted to another hospital, but he suppressed that fact in FIR
which was registered by him on next day (10.07.2019) at 5:00 p.m., which itself
made out the case as doubtful---Complainant also contradicted a witness in his
cross-examination that he reached the house of his in-laws before ten minutes of
the incident whereas according to that witness, complainant came to their house
before one hour of the incident---According to complainant the police informed
him about the admission of victim in hospital, whereas that witness in his cross-

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examination had admitted that Police Constable was their close relative who
informed him about the admission of victim in hospital, in presence of
complainant---Complainant had stated that there were 15 to 16 houses adjacent to
the house of his in-laws whereas according to witness only 3 or 4 houses were
situated near to his house---Said witnesses had further been contradicted by victim,
who in her cross-examination had stated that about 4 to 5 houses were situated in
their Mohallah---Another witness in his examination-in-chief had deposed that on
30.07.2019 he along with others brought victim at Police Station where ASI
prepared memo of recording S. 164, Cr.P.C. statement of abductee/victim---On the
other hand, said ASI in his cross-examination had stated that victim came alone at
Police Station and her relatives reached after 30 to 45 minutes of her arrival on his
call---Witness in his deposition had stated that memo of recording S. 164, Cr.P.C.
statement of victim was prepared by ASI in his presence and in presence of Mr. "A"
whereas according to Investigating Officer such a memo was prepared by WHC on
his dictation---Prosecution case was that when accused persons entered into the
house of victim, they took out pistols from the folds of their shalwar and forcibly
abducted victim on the show of pistols---Victim though had supported such aspect
of the matter in her evidence before the Trial Court, but narrated a different story in
her S. 164, Cr.P.C. statement by stating that accused fired from his gun when
entering in her house---None of the witnesses had deposed a single word in her
support that accused was armed with gun and he fired a shot from his gun inside the
house of victim---Comparison of the statements of complainant, victim and eye-
witness established that they not only contradicted each other, but altogether
narrated a different and conflicting story---Thus, it was difficult for a prudent mind
to ascertain that who was deposing true facts, when otherwise under the facts and
circumstances of the case, they were the star witnesses of the prosecution and being
the central figures, the entire prosecution case revolved upon their testimony, but
due to glaring contradictions and discrepancies, noted above, their testimony was
not worth credence---Thus, in no way the statements of either of the witnesses were
helpful to the prosecution rather caused a big and irreparable dent and damage to
the prosecution case---Circumstances established that the prosecution had failed to
prove its case against the accused beyond any shadow of doubt---Appeal against
conviction was allowed, in circumstances.
(e) Penal Code (XLV of 1860)---
----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Criminal Procedure Code (V of
1898), S. 103---Kidnapping, abducting or inducing woman to compel for marriage,
itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa, ghayr-jaifah-hashimah, house-trespass
after preparation for hurt, assault or wrongful restraint, common intention---
Appreciation of evidence---Benefit of doubt---Non-association of private
witnesses--- Consequential---Accused were charged for trespassing the house of
abductee / sister-in-law of complainant, kidnapping her with intention to commit
zina and throwing her from motorcycle with the result that her teeth, legs and arms
were broken---Prosecution had claimed that accused was arrested on 11.07.2019 in
presence of mashirs, who were related to complainant party---Investigating Officer
in his cross-examination had admitted that place of arrest of accused was a busy
place, but he did not take any effort to join an independent person to act as mashir--
-Said admission, on the face of it, indicated that Arresting Officer had sufficient
opportunity to join an independent person from the place of arrest, but did not
bother to associate an independent source to strengthen the case of the prosecution
by collecting an independent evidence either at the time of arrest of accused or

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during the whole investigation---Prosecution had sufficient opportunity to collect

an independent witness to strengthen the case of the prosecution by corroborating
the related witnesses, but no such attempt was made---No explanation in that regard
had been furnished by the prosecution and also no efforts were made by the
prosecution to secure the independent witness---Non-compliance of provision of S.
103, Cr.P.C. created serious doubt in the prosecution story---Circumstances
established that the prosecution had failed to prove its case against the accused
beyond any shadow of doubt---Appeal against conviction was allowed, in
circumstances.
Mushtaq Ahmed v. The State PLD 1996 SC 574 and The State through Advocate
General, Sindh v. Bashir and others PLD 1997 SC 408 rel.
(f) Criminal trial---
----Witness--- Related witness---Scope---No doubt the evidence of a related witness
cannot be discarded merely on the ground of his relationship with the complainant
party, but his evidence must be scrutinized with a greater degree of circumspection.
(g) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(g)---Withholding material evidence---Effect---Despite of availability of
independent/neutral witnesses, their non-association will draw an inference in view
of Art. 129(g) of Qanun-e-Shahadat, 1984.
(h) Criminal trial---
----Witness---Impartial and disinterested witness---Scope---Not necessary that a
witness, who is neither related to complainant nor inimical towards the accused,
always speaks true---It is the duty of the court to scrutinize the statement of such
witness with utmost care and caution.
Muhammad Saleem v. The State 2010 SCMR 374 rel.
(i) Penal Code (XLV of 1860)---
----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Criminal Procedure Code (V of
1898), S. 103---Kidnapping, abducting or inducing woman to compel for marriage,
itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa, ghayr-jaifah-hashimah, house-trespass
after preparation for hurt, assault or wrongful restraint, common intention---
Appreciation of evidence---Benefit of doubt---Delay of twenty eight hours in
lodging the FIR not explained---Accused were charged for trespassing the house of
abductee/sister-in-law of complainant, kidnapping her with intention to commit
zina and throwing her from motorcycle with the result that her teeth, legs and arms
were broken---Incident which formed basis of the present case was shown to have
taken place on 09.07.2019 at 1:00 p.m. and undoubtedly the FIR was lodged at 5:00
pm on 10.07.2019 i.e. after 28 hours of the incident---Prosecution had not been able
to furnish any explanation with regard to delay in lodging of FIR---Hence,
presumption could be drawn that FIR had been lodged after due deliberations and
consultations---First Information Report was always treated as a cornerstone of the
prosecution case to establish guilt against those involved in a crime, thus it had a
significant role to play---If there was any delay in lodging of FIR and

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commencement of investigation, it would give rise to a doubt and benefit thereof

was to be extended to the accused---Circumstances established that the prosecution
had failed to prove its case against the accused beyond any shadow of doubt---
Appeal against conviction was allowed, in circumstances.
Zeeshan alias Shani v. The State 2012 SCMR 428 rel.
(j) Criminal trial---
----Benefit of doubt---Principle---Even a single doubt if found reasonable will be
sufficient to acquit the accused, giving him/them benefit of doubt because bundle
of doubts are not required to extend the legal benefit to the accused.
Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Sardar Ali v
Hameedullah and others 2019 PCr.LJ 186 rel.
(k) Criminal trial---
----Heinous offence--- Presumption of innocence---Principle---Involvement of an
accused in a heinous offence is not sufficient to convict him as the accused
continues with presumption of innocence until found guilty at the end of the trial---
Prosecution is bound to establish its case against the accused beyond shadow of any
reasonable doubt by producing confidence inspiring and trustworthy evidence.
(l) Criminal trial---
----Conviction---Scope---Conviction must be based on unimpeachable evidence and
certainty of guilt---Any doubt arising in the prosecution case must be resolved in
favour of the accused.
Nooruddin Mahesar for Appellant.
Abid Hussain Qadri for the Complainant.
Aitbar Ali Bullo for the State.
Date of hearing: 9th May, 2022.
JUDGMENT
SHAMSUDDIN ABBASI, J.---Ahsan, appellant, has challenged the vires of the
judgment dated 02.10.2021, handed down by the learned Additional Sessions
Judge-I, Jacobabad, in Sessions Case No.522 of 2019, arising out of FIR No.97 of
2019 registered at Police Station A-Section, Thul, for the offences punishable under
Sections 365-B, 336 337-F(v), 337-A(iii), 452 and 34, P.P.C., through which he was
convicted and sentenced as under:-
"In the light of decision of point No.1, I am of the considered view that
prosecution has proved its case against present accused namely Ahsan Ali
son of Gul Muhammad by caste Golo which connecting him with the
offences punishable under sections 452, 365, 336, 337-A(iii) and 337-F(v),
P.P.C., therefore, he is convicted under section 265-H(2), Cr.P.C. and
sentenced for offence under section 452, P.P.C. to suffer R.I. for five years
with fine of Rs. 50,000/-, he is also convicted for offence under section 336
read with section 337-U, P.P.C. to suffer R.I. for seven years and to pay Arsh

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amounting to Rs.8,52,241/ - as one-twentieth of Diyat amount, the accused

is also convicted for offence under section 337-A(iii), P.P.C. to suffer R.I.
for five years as Tazir and to pay Arsh amounting to Rs.4,26,120/- being 10
percent of Diyat amount and he is further convicted for offence under
section 337-F(v), P.P.C. to suffer R.I. for five years as Tazir and also to pay
Daman amount of Rs. 1,00,000/. The accused is ordered not to be released
till the payment of Arsh and Daman to the victim Mst. Rafia even after
completion of sentence of imprisonment. All the sentences are ordered to be
run concurrently and benefit of section 382-B, Cr.P.C. is extended to present
accused. Accused Ahsan Ali Golo is produced in custody from District Jail
Shikarpur, hence he is remanded to Central Prison, Larkana, through
Superintendent District Jail, Shikarpur together with warrant of
commencement of sentence in order to carry out sentence, accordingly".
2. First Information Report in this case has been lodged on 10.07.2019 at 5:00
pm whereas incident is shown to have taken place on 09.07.2019 at 1:00 pm.
Complainant .Tahir Hussain son of Riaz Ahmed has stated that on the fateful day he
was present in the house of his father-in-law, situated at Rakhiyal Shah Colony,
Thul along with Mst. Rafia, his sister-in-law, Waqar Hussain (brother-in-law),
Zahoor Ahmed (relative) and other inmates of the house. It was about 1:00 p.m.
Ahsan son of Gul Muhammad, Saleem son of Niaz Ahmed and an unknown lady
entered into the house. Ahsan and Saleem took out pistols from the folds of their
shalwar and asked them to keep quite. Saleem caught hold Rafia and dragged her
out of the house, started motor bike, parked outside the house, while Ahsan got
Mst. Rafia seated in between him and Saleem and took her with them on
motorcycle with intention to commit Zina, whereas the unknown lady went away
on foot taking advantage of narrow streets. Tahir Hussain reported the matter to
police and lodged FIR.
3. The duty officer HC Balach Khan registered a case vide FIR No.97 of 2019
for offences punishable under Sections 365-B, 452 and 34, P.P.C. on behalf of the
complainant on 10.07.2019 at 5:00 p.m.
4. Pursuant to the registration of FIR, the investigation was followed and in due
course the challan was submitted before the Court of competent jurisdiction under
Sections 365-B, 336, 337-F(v), 337-A(iii), 452 and 34, P.P.C., whereby appellant
was sent up to face the trial whereas accused Saleem was shown as absconder.
5. A charge in respect of offences punishable under Sections 365-B, 336, 337-
F(v), 337-A(iii), 452 and 34, P.P.C., was frmed against appellant, to which he
pleaded not guilty and claimed trial.
6. At trial, the prosecution has examined as many as eleven (11) witnesses. The
gist of the evidence, adduced by the prosecution, is as under.
7. Rafia (abductee/victim) appeared as witness No.1 Ex.9, Tahir Hussain
(complainant) as witness No.2 Ex.10, Waqar Hussain (victim's brother) as witness
No.3 Ex.11, Dr. Abdul Rashid as witness No.4 Ex.12, HC Balach Khan as witness
No.5 Ex.13, HC Muhammad Murad as witness No.6 Ex.14, Imran as witness No.7
Ex.15, PC Abdul Shakoor as witness No.8 Ex.16, ASI Muhammad Hanif as witness

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No.9 Ex.17, ASI Muhammad Bux as witness No.10 Ex. 18 and ASI Muhammad
Saleh as witness No.11 Ex. 19. All of them were subjected to cross-examination by
the defence. Thereafter, the prosecution closed its side vide statement Ex.20.
8. Appellant was examined under Section 342, Cr.P.C. at Ex.21, wherein he has
denied the allegations imputed upon him by the prosecution, professed his
innocence and stated his false implication at the instance of one
Ayaz (uncle of complainant), who was declared as "Karo" with wife of his
father's uncle namely Shahban Golo, but no FIR was lodged. He opted not to make
a statement on Oath under Section 340(2), Cr.P.C. nor produce any witness in his
defence. .
9. The trial culminated in conviction and sentence of the appellant as stated in
para-1 {supra}, hence necessitated the filing of the listed appeal.
10. It is contended on behalf of the appellant that he is innocent and has been
falsely roped in this case by the complainant party at the instance of one Ayaz, the
uncle of complainant, who was declared as "Karo" with wife of his father's uncle as
otherwise he has nothing to do with the alleged offence and has been made victim
of the circumstances. The witnesses being interested and related to each other have
falsely deposed against the appellant whose testimony cannot be relied upon
without support of an independent corroboration. The prosecution has neither cited
nor produced any independent witness to substantiate its case. Per learned counsel,
the occurrence has taken place at 1:00 pm on 09.07.2019 but the FIR has been
lodged at 5:00 p.m. on 10.07.2019 and that too without furnishing any plausible
explanation, hence possibility of false implication with mala fide intention cannot
be ruled out. The learned trial Court based conviction solely on the testimony of
interested and related witnesses without support of independent corroboration. The
matter needs sympathetic consideration with regard to innocence of the appellant
more particularly when ocular account furnished by the related and interested
witnesses was not corroborated by any independent witness. The ocular account
furnished by the prosecution contradicts the medical evidence adduced by PW.4 Dr.
Abdul Rashid, who admitted that Mst. Rafia might have sustained injuries in road
traffic accident. It is the case of the prosecution that Mst. Rafia sustained injuries
while throwing from the motorcycle. The material available on record does not
justify the conviction and sentences awarded to the appellant and the same is not
sustainable in the eyes of the law. The statements of the prosecution witnesses are
full of discrepancies and contradictions made therein are fatal to the case of the
prosecution. The prosecution has failed to discharge its legal obligation of proving
the guilt of the appellant as per settled law and the appellant was not liable to prove
his innocence. The impugned judgment is bad in law and facts and based on
assumptions and presumptions without giving valid and strong findings. The
witnesses being interested and related to each other have falsely deposed against
the appellant. They were inconsistent with each other rather contradicted on crucial
points benefit whereof must go to the appellant. The learned trial Court while
passing the impugned judgment has deviated from the settled principle of law that a
slightest doubt is sufficient to grant acquittal to an accused. The Investigating
Officer had conducted dishonest investigation and involved the appellant in a case
with which he has no nexus. The learned trial Court did not appreciate the evidence
in line with the applicable law and surrounding circumstances and based its
findings on misreading and non-reading of evidence and arrived at a wrong
conclusion in convicting the appellant merely on assumptions and presumptions.

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The impugned judgment is devoid of reasoning without specifying the

incriminating evidence against appellant. The learned trial Court totally ignored the
plea taken by the appellant in his defence. Per learned counsel, the appellant has
not done any offence and in his Section 342, Cr.P.C. statement too he has denied
the whole allegations levelled against him by the prosecution. The learned trial
Court did not consider the pleas taken by the appellant in his Section 342, Cr.P.C.
and recorded conviction ignoring the neutral appreciation of whole evidence. The
material available on record does not justify the conviction and sentences awarded
to the appellant and the same are not sustainable in the eyes of the law. The learned
counsel while summing up his submissions has emphasized that the impugned
judgment is the result of misreading and non-reading of evidence and without
application of a judicial mind, hence the same is bad in law and facts and the
conviction and sentences awarded to the appellant, based on such findings, are not
sustainable in law and liable to be set-aside and the appellant deserves to be
acquitted of the charge and prayed accordingly.
11. The learned State counsel, assisted by the learned counsel for complainant,
while controverting the submissions of learned counsel for the appellant has
submitted that the FIR has been lodged nominating the appellant with specific role
in the commission of offence. The witnesses while appearing before the learned
trial Court remained consistent on each and every material point. They were
subjected to lengthy cross-examination but nothing adverse to the prosecution story
has been extracted which can provide any help to the appellant and the minor
discrepancies in the light of direct evidence have no value in the eye of law and the
same can be ignored. Mere fact that the witnesses are related to each other is not
sufficient to discard their evidence and they could be termed as independent
witness. Ocular version is corroborated by medical evidence. The role of the
appellant is borne out from the evidence adduced by the prosecution. The
prosecution in support of its case has produced oral evidence duly supported by the
independent evidence adduced by PW Imran, which was rightly relied upon by
learned trial Court. The findings recorded by the learned trial Court in the
impugned judgment are based on fair evaluation of evidence and documents
brought on record, to which no exception could be taken. The plea taken by the
defence that appellant had no nexus with the occurrence does not carry weight vis-
a-vis providing help to the defence. The prosecution has successfully proved its
case against the appellant beyond shadow of any reasonable doubt, thus, the appeal
filed by the appellant warrants dismissal and his conviction and sentences recorded
by the learned trial Court are liable to be maintained.
12. I have heard the learned counsel for the parties at length, given my anxious
consideration to their submissions and have also scanned the evidence and other
material available on record carefully with their able assistance.
13. Before touching the evidence brought on record by the prosecution, I deem it
conducive to review the charge framed against the appellant by the learned trial
Court, which is that:-
"I, Munawar Ali Lodhi, Sessions Judge Jacobabad, do hereby charge you
accused Ahsan son of Gul Muhammad by caste Golo as follows:

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That on 9-7-2019 at 01:00 p.m., you along with absconding accused Saleem and
one unknown culprit duly armed with weapons, in furtherance of your
common intention trespassed in the above house of abductee situated in
Rakhiyal Shah Colony, Taluka Thul and having made preparation for
causing him hurt, thereby committed an offence punishable under section
452, P.P.C. read with Section 34 and within cognizance of this Court.
Secondly, that on the above date, time and place you along with abovenamed
absconding accused and one unknown culprit in furtherance of your
common intention on force of weapons kidnapped Mst. Rafia, the sister in
law of the complainant with intention to commit zina with her and went
away on motorcycle, thereby committed an offence punishable under section
365-B, P.P.C. read with Section 34, P.P.C. and within cognizance of this
Court.
Thirdly, that on the above date, time after kidnapping Mst. Rafia thrown her
from motorcycle on the road near Udi and she sustained itlaf-i-udw, itlaf-i-
Salahiat-i-udw as her teeth, and so also legs and arms broken by fallen on
the road and she sustained injuries on her head and other parts of body,
thereby committed an offence punishable under sections 336, 337-A(iii),
F(v), P.P.C. read with Section 34, P.P.C. and within cognizance of this Court.
And I hereby direct that you be tried by this Court on the abovesaid charge".
14. Reviewing the contents of the above charge, it is noted that, in essence, there
are three major allegations against the appellant. Firstly, that he along with his two
companions trespassed into the house of abductee Mst. Rafia having preparation to
cause harm, secondly, the appellant with the help of his two companions kidnapped
Mst. Rafia with intention to commit Zina with her and thirdly thrown her from
motorcycle resultantly her teeth, legs and arms were broken. On the other hand,
Mst. Rafia while appearing before the learned trial Court has deposed that after her
abduction when they reached at Udi Road, accused Ahsan beaten her mercilessly
with iron rod and she became unconscious and regained senses in Taluka hospital,
Thul, where she was examined by the Doctor. Police and her relatives also arrived
at hospital. From Taluka hospital, she was referred to CMS hospital, Larkana, but
her relatives took her to Aga Khan hospital, Karachi for further treatment. This
statement of Mst. Rafia clearly shows that she sustained injuries with the blows of
with iron rod and not due to throwing from the motorcycle. Surprising to note that
the entire charge is silent with regard to the allegation of torture and inflicting
injuries with the blows iron rod. It only specifies that accused persons while taking
Mst. Rafia thrown her from the motorcycle resultantly she sustained injuries. The
charge, thus, is in conflict with the statement of Mst. Rafia recorded before the
learned Civil Judge and Judicial Magistrate, Thul under Section 164, Cr.P.C. as
well as her evidence adduced before the learned trial Court. Likewise, while
examining the appellant under Section 342, Cr.P.C. the learned trial Court did not
put a single question to the appellant as to causing torture to Mst. Rafia and
inflicting injuries to her with the blows of iron rod. Here I deem it appropriate to
reproduce the appellant's statement under Section 342, Cr.P.C., which reads as
under:-
"Q. No.1. You have heard the prosecution evidence recorded in open Court in
your presence. It is alleged against you that on 9.7.2019 at 1:00 p.m. you
along with absconding co-accused Saleem and one unknown culprit, being

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armed with weapons, in furtherance of your common intention trespassed in

the house of abductee situated in Rakhiyal Shah Colony Taluka Thul having
made preparation for causing him hurt, on the force of weapons kidnapped
Mst. Rafia, the sister-in-law of the complainant with intention to commit
zina with her and went away on bike, after kidnapping Mst. Rafia thrown
her from bike on the road near Udi and she sustained injuries on her teeth
and also legs and arms broken by fallen on the road and she sustained
injuries on her head and other parts of body?
Ans. No Sir, it is false.
Q.2. Why the PWs have deposed against you?
Ans. All PWs are related inter-se and interested and they have deposed against
me at the instance of one Ayaz who is nekmard as well as uncle of
complainant as said Ayaz was declared as Karo with wife of my father's
uncle Shahban Golo, but no such FIR was lodged for.
Q.3. Do you want to lead any witness in your defence?
Ans. No Sir.
Q.4. Do you want to examine yourself on Oath?
Ans. No Sir.
Q.5. Have you to say anything else?
Ans. I am innocent and have falsely implicated due to enmity, hence I pray for
justice".
15. It is a settled principle of Criminal Law that each and every material piece of
evidence brought on record by the prosecution against an accused must be put to him
at the time of recording of his statement under Section 342, Cr.P.C. so as to provide
him an opportunity to explain his position in that regard and denial of such
opportunity to the accused defeats the ends of justice. It is also equally settled that
a failure to comply with this mandatory requirement vitiates a trial. I have truly
been shocked by the cursory and casual manner in which the learned trial Court had
handled the matter of framing charge and recording of the appellant's statement
under Section 342, Cr.P.C. which are completely shorn of the necessary details
which were required to put to the appellant. It goes without saying that the
omissions on the part of the learned trial Court, noted above, were not merely an
irregularity but had vitiated the appellant's conviction.
16. Adverting to the evidence of prosecution witnesses, suffice to observe that
they have contradicted each other on crucial points. PW.1 Mst. Rafia is the
victim/abductee. Though she has supported the case of the prosecution with regard
to her abduction by the accused persons, but did not depose a single word as to the
case of the prosecution that the injuries on her person were caused while throwing
from the motorcycle. She further deposed that on 22.07.2019 police came at Aga
Khan Hospital and obtained her LTI because her right arm was broken. She
recorded her 161, Cr.P.C. statement to police and also appeared before the learned
Magistrate on 31.07.2019 and got her examined under Section 164, Cr.P.C.

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17. PW.2 Tahir Hussain is the complainant. He has supported the case of the
prosecution with regard to abduction of victim by the accused persons on
09.07.2019 at 1:00 pm and deposed that on the same day of incident at about 2:00
pm they came to know that Mst. Rafia is admitted in Taluka hospital, Thul in
injured condition. He along with his relatives went to the hospital and saw Mst.
Rafia in injured condition. The MLO referred Mst. Rafia to Larkana hospital, but
her relatives took her to Aga Khan Hospital, Karachi due to her serious condition.
On next date (10.07.2019) he went to P.S. and lodged FIR at 5:00 p.m. ASI
Muhammad Hanif inspected the place of incident on his pointation at 6:00 p.m. in
presence of mashirs Abdul Ghaffar and Imran Khoso. On 25.11.2019 he handed
over the X-ray reports to MLO Taluka Hospital, Thul.
18. PW.3 Waqar Hussain is the brother of Mst. Rafia. He is said to be the eye-
witness of the incident and deposed in the same line as that of the complainant.
19. PW.4 Dr. Abdul Rashid is the Senior Medical Officer posted at Taluka
Hospital, Thul. He deposed that on 09.07.2019 Mst. Rafia, aged about 22 years,
was brought at hospital by Head Constable of P.S. A-Section, in injured condition.
He examined the injured in presence of Medical Superintendent, Taluka Hospital,
Thul at 1:45 pm and noted four injuries on her person caused by RTA. The injured
was then referred to CMS Hospital, Larkana for further treatment. He received
opinion of Dentist of Taluka Hospital, Thul as well as reports from Aga Khan
Hospital, Karachi.
20. PW.5 HC Balach is the witness who registered a case on 10.07.2019 and
lodged FIR on the complaint of Tahir Hussain.
21. PW.6 HC Muhammad Murad is the witness, who under the direction of SHO
visited Taluka Hospital, Thul, on 09.07.2019 and inspected the injuries on the
person of Mst. Rafia caused due to an accident.
22. PW.7 Imran is one of the mashirs of memo of site inspection conducted on
10.07.2019. He is also one of the mashirs of memo of arrest of accused prepared on
11.07.2009 at 4:00 pm. He further deposed that on 30.07.2019 he along with Waqar
Hussain (eye-witness), Tahir Hussain (complainant) and Abdul Ghaffar took Mst.
Rafia to P.S. A-Section, Thul where ASI Muhammad Bux Buriro prepared memo of
recording 164, Cr.P.C. statement of Mst. Rafia.
23. PW.8 PC Abdul Shakoor is one of the mashirs of memo of injuries on the
person of Mst. Rafia.
24. PW.9 ASI Muhammad Hanif is the witness who conducted initial
investigation and recorded statements under Section 161, Cr.P.C. He also conducted
site inspection on
10.07.2019 and arrested accused on 11.07.2019.
25. PW.10 ASI Muhammad Bux is the second Investigating Officer. He deposed
that on 30.07.2019 Mst. Rafia appeared at P.S. accompanied by Imran and Abdul
Ghaffar. He prepared memo. of appearance. He produced Mst. Rafia before Civil

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Judge and Judicial Magistrate, Thul for recording her 164, Cr.P.C. statement, which
was recorded on 31.07.2019.
26. PW.11 ASI Muhammad Saleh is the last investigating officer. He received
final MLC of Mst. Rafia from WMO, Taluka Hospital, Thul, on 15.11.2019. On the
same day he recorded further statement of complainant and after completing the
usual .investigation submitted challan in Court.
27. Reviewing the evidence of prosecution witnesses, it is noted that none of
them have supported Mst. Rafia that injuries on her person were caused with the
blows of iron road and she was subjected to torture by the accused persons. PW.4
Dr. Abdul Rashid (Ex.12), who examined Mst. Rafia and issued Provisional
Medical Certificate (PMC) has deposed that the case was seen by him in presence
of M.S. and other relevant staff. The injured was in acute emergency condition
caused by RTA appeared in Taluka Hospital, Thul. He, however, admitted that Mst.
Rafia was examined by him in presence of M.S. and other relevant staff, but did not
deny that such injuries were caused in road traffic accident. According to him Mst.
Rafia was brought at Taluka Hospital, Thul, on 09.07.2019 at 1:45 pm by Head
Constable of P.S. A-Section. There was swelling on her right and left legs and
thigh, upper and lower teeth were broken and a lacerated wound measuring 4 cm x
2 cm with heavy bleeding and swelling, all were caused in RTA. Mst. Rafia was
referred to CMS Hospital, Larkana, but her relatives took her to Aga Khan
Hospital, Karachi. He issued final MLC vide No.310 dated 25.11.2019 on the basis
of X-ray and other reports issued by Aga Khan Hospital, Karachi, and admitted that
such injuries might be sustained during scuffle or in a road traffic accident. The
whole evidence of Medical Officer and the documents brought on record by him are
silent with regard to sustaining injuries due to torture or inflicting blows with iron
rod. The evidence of Medical Officer, thus, negates the story narrated by Mst. Rafia
while appearing before the learned trial Court as well as in her Section 164, Cr.P.C.
statement recorded by learned Magistrate. In view of this background of the matter,
I am not convinced with the story narrated by Mst. Rafia that when she was,
abducted for Zina purposes and accused successfully kidnapped her while taking on
motorcycle, instead of committing Zina they brutally tortured her and inflicted
serious injuries on her arms, legs, neck, ribs and mandible, which were broken. It
does not appeal to a prudent mind that when she was abducted for Zina why such
an act was not committed and she was set free by the accused persons only after
causing injuries on road. She has narrated a different story that after kidnapping she
was subjected to torture by the accused persons and caused injuries by inflicting
iron blows. On the other hand, the Medical Officer has given entirely a different
story which reflects in provisional certificate that this is a acute case of RTA and
MLO also stated in his evidence that injuries on the person of Mst. Rafia might
have suffered in RTA, which finds support the plea taken by the appellant for his
false implication owing to matrimonial dispute. There is no eye-witness of incident
to the extent of injuries sustained by victim Mst. Rafia incident except evidence of
PW Rafia. The only evidence of victim is contradictory with the medical evidence.
At this juncture when evidence of victim is contradictory with medical evidence
then proprietary of safe administration demands that its benefit goes in favor of
accused.
28. The another intriguing aspect of the matter is that according to Medical
Officer, Mst. Rafia was brought at hospital in injured condition on 09.07.2019 at
1:45 pm whereas PW HC Muhammad Murad (Ex.14) in his deposition has stated
that he was present at P.S. at 1:30 pm when SHO informed him about arrival of an

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injured at Taluka Hospital, Thul, with the history of road traffic accident and
directed him to go there. He went to hospital and issued letter for providing medical
treatment to Mst. Rafia. By stating so, he has contradicted Medical Officer in
respect of time of arrival of Mst. Rafia in Taluka Hospital, Thul. Surprising to note
that according to Medical Officer Mst. Rafia was brought at hospital at 1:45 pm,
but memo. of inspection of injuries, prepared by HC Muhammad Murad and placed
on record at Ex. 14/A, shows its time of preparation at 1:40 pm. How it is possible
that such a memo. was prepared at hospital before arrival of Mst. Rafia at hospital,
she according to Medical Officer was brought at hospital at 1:45 pm. The
complainant (Tahir Hussain) while appearing before the learned trial Court has
contradicted the story narrated by him in his FIR by deposing that on 09.07.2019 at
2 p.m., when he reached at hospital and saw Mst. Rafia in injured condition and
due to seriousness of injuries she was shifted to Aga Khan Hospital, Karachi, but
he suppressed this fact in FIR which was registered by him on next day
(10.07.2019) at 5:00 pm which itself make out a case as doubtful. He also
contradicted P.W Waqar in his cross-examination that he reached the house of his
in-laws before 10 minutes of the incident whereas according to PW Waqar Hussain,
Tahir Hussain (complainant) came to their house before one hour of the incident.
According to complainant the police informed him about the admission of Mst.
Rafia in Taluka Hospital, Thul, whereas PW Waqar Hussain in his cross-
examination has admitted that PC Sikandar is their close relative who informed him
about the admission of Mst. Rafia in Taluka Hospital, Thul, in presence of
complainant. The complainant has stated that there are 15 to 16 houses adjacent to
the house of his in-laws whereas according to Waqar Hussain only 3 or 4 houses are
situated near to his house. They have further been contradicted by Mst. Rafia, who
in her cross-examination has stated about 4 to 5 houses are situated in their
Mohallah. PW Imran in his examination-in-chief has deposed that on 30.07.2019 he
along with Waqar Hussain, Tahir Hussain and Abdul Ghaffar brought Mst. Rafia at
P.S. A-Section, Thul, where ASI Muhammad Bux prepared memo. of recording
164, Cr.P.C. statement of abductee/victim. On the other hand, ASI Muhammad Bux
in his cross-examination has stated that Mst. Rafia came alone at P.S. and her
relatives reached after 30 to 45 minutes of her arrival on his call. PW Imran in his
deposition has stated that memo. of recording 164, Cr.P.C. statement of Mst. Rafia
was prepared by ASI Muhammad Bux Buriro in his presence and in presence of
Abdul Ghaffar whereas according to Investigating Officer ASI Muhammad Bux
such a memo. was prepared by WHC Sahab Nawaz on his dictation. It is the case of
the prosecution that when accused persons entered into the house of victim, they
took out pistols from the folds of their shalwar and forcibly abducted Mst. Rafia on
the show of pistols. The victim Mst. Rafia though has supported this aspect of the
matter in her evidence before the learned trial Court, but narrated a different story
in her Section 164, Cr.P.C. statement by stating that Ahsan fired from his gun when
entered entering in her house. None of the witnesses have deposed a single word in
her support that Ahsan was armed with gun and he fired a shot from his gun inside
the house of victim.
29. At this juncture, it is very difficult for me to give due weight to the evidence
of prosecution witnesses. The comparison of the statements of Tahir Hussain
(complainant), Mst. Rafia (abductee/ victim) and Waqar Hussain (eye-witness)

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established that they not only contradicted each other, but altogether narrated a
different and conflicting story. It is, thus, difficult for a prudent mind to ascertain
that who was deposing true facts, when otherwise under the facts and circumstances
of the case, they are the star witnesses of the prosecution and being the central
figures, the entire prosecution case revolves upon their testimony, but due to
glaring contradictions and discrepancies, noted above, their testimony cannot term
to be worth credence. Thus, in no way the statements of either of the witnesses is
helpful to the prosecution rather caused a big and irreparable dent and damage to
the prosecution case.
30. The prosecution has claimed that appellant was arrested on 11.07.2019 from
Benazir Kanto in presence of mashirs Waqar Hussain and Zaheer Ahmed, who are
related to complainant party. PW AS1 Muhammad Hanif in his cross-examination
has admitted that place of arrest of accused was a busy place, but he did not take
any effort to join an independent person to act as mashir. This admission, on the
face of it, indicates that arresting officer had sufficient opportunity to join an
independent person from the place of arrest, but did not bother to associate an
independent source to strengthen the case of the prosecution by collecting an
independent evidence either at the time of arrest of appellant or during the whole
investigation. No doubt the evidence of a related cannot be discarded merely on the
ground of his relationship with the complainant party, but his evidence must be
scrutinized with a greater degree of circumspection. There is no denial of the fact
that the prosecution had sufficient opportunity to collect an independent witness to
strengthen the case of the prosecution by corroborating the related witnesses, but no
such attempt was made. No explanation in this regard has been furnished by the
prosecution and so also no efforts were made by the prosecution to secure the
independent witness. It is by now well established principle of law that despite of
availability of independent/ neutral witnesses, their non-association draws an
inference in view of Article 129(g) of Qanun-e-Shahadat Order, 1984. Non-
compliance of provision of Section 103, Cr.P.C. creates serious doubt in the
prosecution story. In this respect, guidance has been taken from the cases of
Mushtaq Ahmed v. The State reported in PLD 1996 SC 574 and The State through
Advocate General, Sindh v. Bashir and others reported in PLD 1997 SC 408.
31. Insofar as to the contention of learned State counsel that prosecution has
produced PW Imran (Ex. 15), who is an impartial and disinterested witness, thus
his testimony cannot be discarded merely on the basis of minor discrepancies,
suffice to observe that it is not necessary that a witness, who is neither related to
complainant nor inimical towards the accused, always speaks true, but it is the duty
of the Court to scrutinize the statement of such witness with utmost care and
caution. Reliance may well be made to the case of Muhammad Saleem v. The State
(2010 SCMR 374), wherein it has been held as under:--
"The acid test of veracity of a witness is the inherent merit of his own statement.
It is not necessary that an impartial and independent witness, who is neither
related to the complainant nor inimical towards the accused would stamp his
testimony necessarily to be true. The statement itself has to be scrutinized
thoroughly and it is to be seen as to whether in the circumstances of the case
the statement is reasonable, probable or plausible and could be relied upon.
The principle that a disinterested witness is always to be relied upon even if
his statement is unreasonable, improbable and not plausible or not fitting in

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the circumstances of the case then it would lead to a very dangerous

consequence. Reference is invited to Muhammad Rafique v. State 1977
SCMR 457 and Haroon v. State 1995 SCMR 1627. Applying the test to the
prosecution witnesses, we find that their statements do not come within the
ambit of above rule of acceptance of evidence, therefore, no implicit
reliance can be placed on such type of evidence without any corroboration
which is lacking in the present case".
32. The incident which formed basis of the instant case is shown to have taken
place on 09.07.2019 at 1:00 pm and undoubtedly the FIR was lodged at 5:00 pm on
10.07.2019 i.e. after 28 hours of the incident. The prosecution has not been able to
furnish any explanation with regard to delay in lodging of FIR. Hence, presumption
would be drawn that FIR had been lodged after due deliberations and consultations.
It is a well settled principle of law that FIR is always treated as a cornerstone of the
prosecution case to establish guilt against those involved in a crime, thus it has a
significant role to play, hence if there is any delay in lodging of FIR and
commencement of investigation, it gives rise to a doubt and benefit thereof is to be
extended to the accused. Reliance may well be made to the case of Zeeshan alias
Shani v. The State (2012 SCMR 428), wherein it has been held by Hon'ble apex
Court that delay of more than an hour in lodging of FIR give rise to an inference
that occurrence did not take place in the manner projected by the prosecution and
time was consumed in making efforts to give a coherent attire to prosecution case,
which hardly proved successful.
33. In criminal cases, the evidence produced by the prosecution should be in
chain and if the chain is not complete or any doubt which occurred in the
prosecution's case that is sufficient to demolish the structure of evidence the benefit
thereof must go to the accused especially when the accused had taken a stance of
his false implication on account of enmity, which cannot be brushed aside in view
of contradictions and discrepancies, referred herein above. In appeal against
conviction, the Court is under heavy obligation to assess by thinking and
rethinking, lest an innocent person fall a prey to my ignorance of facts and
ignorance of law. The Court must not close its eyes to human conducts and
behaviours while deciding criminal cases, failing which the result will be drastic
and impacts will be far from repair. The cardinal principle of justice always laid
emphasis on the quality of evidence which must be of first degree and sufficient
enough to dispel the apprehension of the Court with regard to the implication of
innocent persons along with guilty one by the prosecution, otherwise, the golden
principle of justice would come into play that even a single doubt if found
reasonable would be sufficient to acquit the accused, giving him/them benefit of
doubt because bundle of doubts are not required to extend the legal benefit to the
accused. In this regard, reliance is placed on a view held by the Hon'ble Supreme
Court in the case of Riaz Masih alias Mithoo v. The State (1995 SCMR 1730) and
Sardar Ali v Hameedullah and others (2019 PCr.LJ 186). Likewise, it is a well
settled principle of law that involvement of an accused in heinous nature of offence
is not sufficient to convict him as the accused continues with presumption of
innocence until found guilty at the end of the trial, for which the prosecution is
bound to establish its case against the accused beyond shadow of any reasonable

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doubt by producing confidence inspiring and trustworthy evidence. It is a cardinal

principle of administration of justice that in criminal cases the burden to prove its
case rests entirely on the prosecution. The prosecution is duty bound to prove the
case against accused beyond reasonable doubt and this duty does not change or
vary in the case in which no defence plea is either taken or established by the
accused and no benefit would occur to the prosecution on that account and its duty
to prove its case beyond reasonable doubt would not diminish. The prosecution has
not been able to bring on record any convincing evidence against appellant to
establish his involvement in the commission of offence charged with beyond
shadow of reasonable doubt. Rather, there are so many circumstances, discussed
above creating doubts in the prosecution case and according to golden principle of
benefit of doubt one substantial doubt would be enough for acquittal of the
accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot
be ignored while dispensing justice in accordance with law. Conviction must be
based on unimpeachable evidence and certainty of guilt and any doubt arising in
the prosecution case, must be resolved in favour of the accused. The said rule is
based on the maxim "it is better that ten guilty persons be acquitted rather than one
innocent person be convicted" which occupied a pivotal place in the Islamic Law
and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the
"mistake of Qazi (Judge) in releasing a criminal is better than his mistake in
punishing an innocent".
34. The epitome of whole discussion gives rise to a situation that the appellant
has been convicted without appreciating the evidence in its true perspective, rather
the prosecution case is packed with various discrepancies and irregularities, which
resulted into a benefit of doubt to be extended in favour of the appellant.
Accordingly, the conviction and sentences recorded by the learned trial Court
through impugned judgment dated 02.10.2021 are set-aside and the appellant is
acquitted of the charge by extending him the benefit of doubt. He shall be released
forthwith if not required to be detained in connection with any other case.
JK/A-82/Sindh Appeal allowed.

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