' SHAHJI RAHMAN KHAN, J.--- Ghani ur Rahman alias Ali ur Rahman appellant was convicted and sentenced under section 302 (b), P.P.C. On two counts vide judgment dated 30-1-2006 of Additional Sessions Judge/Judge Special Court, Peshawar in case F.I.R. No,587 dated 16-10-2003 registered under sections 302/324, P.P.C, at Police Station West Cantt. Peshawar.
2. The brief facts of the case are that Noor ul Islam complainant in injured condition lodged report with Nasrullah Shah A.S-I. P.W.3 at Lady Reading Hospital Peshawar to the effect that at 2100 hours he along with his brother deceased Shahid and Muhammad Ashraf and injured Muhammad Akbar were present in his shop situated at Gul Abad No,2 Peshawar. That in the meanwhile, appellant Ghani ur Rahman along with 2/3 unknown persons duly armed with lethal weapons suddenly emerged and started firing at them with the intention to kill them; Resultantly, all of them sustained injuries on the different parts of their bodies. Motive was stated to be an altercation between deceased Shahid and Ghani ur Rahman two days prior to the occurrence. That later on their cousin Javed Iqbal (P.W.8) with the help of neighbours shifted them to Lady Reading Hospital, Peshawar wherein he lodged report of the occurrence with Nasrullah Shah A.S-I. P.W.3, and he charged Ghani ur Rahman appellant along with other known accused. This report of the complainant was reduced into writing in the shape of murasila Exh.PA/1 and sent to the police station on the basis of which Dost Muhammad MHC P.W.6 registered the case against the accused vide F.I.R. Exh.P.A.
3. Investigation was entrusted to Abdullah Jan Inspector. He prepared the site-plan Exh.PB and took into possession different articles vide recovery memos and on completion of investigation complete challan against the convict appellant and acquitted accused Haji Rahman was submitted in the trial Court by Haider Ali S.H.O. P.W.10. After compliance with the provision of section 265-C, Cr.P.C. Formal charged under sections 302/324/34 P.P.C. On two counts was framed against the accused on 18-4-2005 to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution produced and examined fifteen witnesses. The brief resume of the prosecution evidence is as under:-- 'The ocular account of the ease is furnished by Noor ul Islam and Muhammad Akbar. Nasrullah Shah A.S-I. P.W.3 has recorded the report in the shape of murasila Exh.P.A/1 and has also prepared the injury sheet of all the four injured vide Exh. P. K to Exh.P.K./3. He has also prepared inquest report of Muhammad Shahid Exh.P.K/4 and inquest report of Muhammad Ashraf deceased which is Exh.P.K/5. Jehangir Khan IHC P.W.4 is marginal witness to. The recovery memo. Exh. P.C. And Ex. P.C./1 vide which the Investigating Officer took into possession blood-stained garments of injured Noor ul Islam and Muhammad Akbar. Samin Jan FC P.W.5 had escorted the dead body of Muhammad Shahid and Muhammad Ashraf to the mortuary for post-mortem examination Dost Muhammad MHC P.W.6 has incorporated the contents of murasila into F.I.R. Exh.P.A. Javed Iqbal P.W.8 had identified the dead bodies of Muhammad Shahid and Muhammad Ashraf deceased before the police as well as in the mortuary at the time of P.M examination Shaukat Ali P.W.9 has placed on file the P.M examination report of Muhammad Shahid. Haider Ali S.H.O. Is P.W.10. He has received repots of the Forensic Science Laboratory Exh. P W . 10/1 to Exh.P.W.10/6 and has submitted complete challan in the trial Court against the accused. Besides that, he being well conversant with the hand writing and signatures of deceased Inspector Abdullah Jan has also identified the hand writing and signatures of the said Inspector Abdullah Jan on the site-plan Exh. PB and recovery memos Exh. P.
W . 10/7 to Exh. P. W. 10/15 and also on the documents exhibited as Exh.P.W.10/16 to Exh.P.W.10/22.
' Dr. Muhammad Aslam is P.W.7. He conducted autopsy on the dead body of Muhammad Shahid deceased on 17-10-2003 at 9-20 a.m. In cross-examination, he has admitted that both the entry wounds were on the back of the deceased and were of the same dimension.
' Dr. Hakim Khan Afridi is P.W.11. He on 17-10-2003 at 9-45 a.m. Conducted P.M. Examination on the dead body of Muhammad Ashraf deceased Dr. Jehangir Khan is P.W.12. He on 16-10-2003 had examined the injured Noor ul Islam complainant. On the same day he also examined Muhammad Shahid deceased (then injured). In cross-examination, he has admitted that on the medico legal report Exh.P.W. 12/1 Noor ul Islam complainant the words `un-conscious' have been written and the words 'un' have been rubbed by him and that he did not put any initial with the words 'un' after rubbing the same. Ibrar Hussain Shah is P.W.13. He is marginal witness to the different memos mentioned in the statement of P.W.10 reproduced above. Dr. Muhammad Tariq P.W.14,. He on 16-10- 2003 examined Muhammad Akbar P . W .2 vide Medico Legal Report Exh.P.W.14/1. On the same day he also examined the deceased Muhammad Ashraf (then injured) vide medico legal report Exh.P.W.14/2 and noted charring marks therein. In the cross-examination, the witness admitted that he has also not shown the time of examination of the injured Muhammad Akbar. Jehangir Khan IHC is P.W.15. He produced the case property in the Court taken into possession by the Investigating Officer vide recovery memo. Exh.PC and Exh.P.C./1.
5. After recording and closure of evidence of the prosecution, statement of appellant Ghani ur Rahman and that of acquitted accused Haji Rahman were recorded under section 342, Cr.P.C.
Wherein they professed false implication in the case and opted not to record their statements on oath under section 340(2), Cr.P.C. And also declined to produce evidence in their defence. After hearing the arguments of the learned counsel for both the parties the learned trial Court convicted the appellant Ghani ur Rahman and acquitted Haji Rahman of the charge on 30-1-2006.
6. Feeling aggrieved of the judgment of the learned Additional Sessions Judge, Ghani Ur Rahman appellant has filed Cr. A No, 72/06 against his conviction and sentence and Noor Ul Islam complainant has filed Criminal Revision No, 34/06 for enhancement of the sentence of the convict appellant Ghani Ur Rahman from life imprisonment to that of death sentence. Against the acquittal of Haji Rahman, State has filed Cr.A No, 494/06. All the three matters being the outcome of the same judgment dated 30-1-2006 of Additional Sessions Judge, Peshawar; they are being disposed of through this single judgment.
7. Learned counsel appearing for the convict appellant Ghani ur Rahman contended with vehemence that the occurrence has not taken place in the mode and manner described by the prosecution. The eye-witnesses are not unanimous on the venue of crime and that in the murasila Exh.P.A/1 appellant Ghani ur Rahman was charged along with 2/3 unknown accused whereas in the Court statement besides him Haji Rahman acquitted accused and Shakir Rahman and Said Muhammad absconding accused were also charged by Noor ul Islam complainant whereas Muhammad Akbar P.W.2 has only charged Ghani ur Rahman appellant and Haji Rahman acquitted accused. That the injuries sustaind by the appellant Ghani ur Rahman in the occurrence and registration of cross case against deceased Muhammad Shahid and Muhammad Akbar and the complainant was suppressed and concealed by the complainant. That Noor ul Islam complainant at the time of lodging the report Exh. P.A/1 was unconscious but the word 'tin' was rubbed by the doctor under the influence of the complainant party. That the site-plan prepared by Inspector Abdullah (now dead) is diametrically in contradiction to the ocular account of the occurrence. That during the investigation the Investigating Officer took into possession from point 'A' a pistol a kalakov No, 5484 and from point '13' a pistol indicated in the site-plan Exh.P.B. But neither complainant Noor ul Islam nor Muhammad Akbar eye-witnesses have made mention thereof in their statements although the site-plan was prepared at the instant of Muhammad Akbar P. W.14 on 7-10-2003. It was further argued that in the ocular evidence as .Well as in the injury sheet of Muhammad Akbar prepared by Nasrullah Shah A.S.-I. P.W.3 it was stated that Muhammad Akbar P.W.2 sustained injury on his skull with fire-arm but during examination, the doctor Muhammad Tariq P. W.14 has found that the injury was caused with blunt means thereby contradicting the ocular version of the case and that in view of the major contradictions and dishonest improvements in the prosecution case, Ghani ur Rahman be acquitted and State Appeal against Haji Rahman may be rejected.
8. As against that, learned counsel for the State assisted by learned counsel for the complainant supported the impugned judgment and conviction of the appellant Ghani ur Rahman and submitted that Ghani ur Rahman appellant and Haji Rahman acquitted accused having committed the offence of double murder deserve normal penalty and that the ocular account of the prosecution is supported by the medical evidence and the incriminating recoveries effected from the spot. Therefore, none of the accused mentioned above are entitled to the leniency and be convicted and sentenced in accordance with law for causing double murder and inflicting injuries to the eyewitnesses of the crime.
9. We have anxiously considered the comprehensive arguments of the learned counsel for both the' parties and have thoroughly thrashed the evidence on record being double murder case but minute and meticulous analysis of the evidence would reveal that the case of the prosecution is pregnant with major contradictions and dishonest improvements and omissions. To start with, the eye-witness account in the report Exh.PA by Noor ul Islam is itself contradicted by him while appearing as P.W.1 because besides Ghani ur Rahman appellant, he has charged Haji Rahman acquitted accused and Shakir Rahman and Said Muhammad absconding accused. He has not disclosed his source of information as to how and from whom he came to know that the other 2/3 unknown assailants were Haji Rahman, Shakir Rahman and Said Muhammad. The witness has claimed in his report as well as in his statement that at the relevant time he along with his injured brothers were sitting in their shop where the appellant along with his companions suddenly emerged and stared firing at them. His this piece of statement is contradicted by the site-plan Exh.
P.B wherein the occurrence has been shown on the thoroughfare. Although Noor ul Islam complainant and Muhammad Akbar P.W.2 have admitted that in the occurrence Ghani ur Rahman appellant sustained injuries in the occurrence but in the report Exh. P.A/1 B and in their examination-in-chief have suppressed and concealed the injuries of Ghani ur Rahman as well as the registration of cross case against the complainant party. It was admitted by Noor Ul Islam P.W.1 that he along with deceased Shahid, P.W. Muhammad Akbar were charged by Ghani Rahman appellant on the same night for attempting at his life by effective firing. It is admitted by Noor ul Islam complainant that their house is near to their shop but despite thereof they remained lying on the spot un-attended and after half an hour they were shifted to the Lady Reading Hospital Peshawar by Javed Iqbal P.W.8 where the report was lodged by Noor ul Islam. In the examination- in-chief Noor ul Islam complainant has stated that at the hospital he had also found Ghani ur Rahman, Haji Rahman and Shakir Rahman but surprisingly the latter two were not nominated in his report Exh.P.A/1 whereas in the cross-examination the witness has claimed that all the accused charged by him were previously known to him because of their neighborhood. Contrary to that, Muhammad Akbar while appearing as P.W.2 in his statement has only charged Ghani ur Rahman and Haji Rahman. This witness has not named Saved Iqbal P.W.8 having shifted the injured to the hospital. Like complainant Noor ul Islam, this witness has not disclosed in his examination-in-chief regarding the injuries sustained by Ghani ur Rahman in the occurrence but has admitted his arrest by the police in a case regsiterd at the instance of Ghani ur Rahman for the injuries sustained by him in the occurrence. During the spot inspection on the pointation of Muhammad Akbar P.W.2 besides other articles, a pistol and a kalakov were taken into possession by the Investigating Officer left by the accused on the spot but P.W.2 Muhammad Akbar has not made any mention thereof in his statement. The injuries sustained by Muhammad Akbar P.W.2 were caused by blunt means per statement of Dr. Muhammad Tariq P. W.14 but contradicting him the Investigating Officer and Muhammad Akbar P.W.2 have claimed that the injury is the result of gun shot. In the medico legal report Exh. P.W.12/1 of Noor ul Islam complainant there is over writing and rubbing and the doctor Muhammad Tariq has explained that the word 'tin' was rubbed by him and that Noor ul Islam complainant was conscious but the non-signing of rubbing and over writing by the doctor and the omission of the names and identification of accused Haji Rahman, Shakir Rahman and Said Muhammad from the report Exh. P.A goes a long way to support the contention of the learned counsel for the appellant Ghani ur Rahman that Noor ul Islam complainant was not conscious, orient in space and time thereby creating dents on the prosecution case.
10. Motive stated in the report Exh.P.A is that two days prior to the occurrence and altercation took place between deceased Muhammad Shahid and Ghani ur Rahman appellant and it was argued by the learned counsel for the appellant that the same was not of the magnitude to prompt the appellant to commit offence of double murder. Suffice to say that motive by itself does not prove or disprove any assertion conclusively.
11. The cumulative effect of the aforesaid analysis of the prosecution evidence leads us to the conclusion that the case of the prosecution is full of doubts and the prosecution has failed to bring home charge to the convict appellant and the acquitted accused-respondent beyond any shadow of reasonable doubt. Therefore, they are entitled to the benefit of doubt. For it is an axiomatic principle of law that in case of doubt the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by the Apex Court in the case of Tariq Pervez v. The State (1995 SCM R 1345) that .For giving the benefit of doubt, it was C not necessary that there should be many circumstances creating doubt. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.
12. As a result of the foregoing discussion, this appeal (Cr.A No, 72/2006) is allowed, conviction and sentence imposed upon the appellant Ghani ur Rahman vide impugned judgment dated 30-1- 2006 is set aside and the appellant is acquitted from the charges levelled against him. He be released from custody forthwith if not required in any other case. Revision Petition for enhancement of sentence filed by the complainant and Criminal Appeal No, 494/06 against acquittal of accused- C respondent Haji Rahman filed by the State are dismissed.