' ROOHUL AMIN KHAN, J.--The appellant, Umer Zaman, through the instant appeal has challenged his conviction and sentence recorded by the learned Additional Sessions Judge-Ill, Bannu vide judgment dated 23.1.2010, whereby he has been convicted under Section 302(b), PPC and sentenced to undergo for life imprisonment, alongwith fine of Rs, 50,000/- or in default of payment of fine, he shall further suffer simple imprisonment for six months.
2. The prosecution case is that Gul Rasool Khan, PW.9, reported the matter at mortuary room, of Civil Hospital, Bannu to Wali Ayaz Khan, AS1, that on the night between 15th/16th June, 2008, he alongwith his other inmates were present in his house, where Sudais Khan, aged about 9/10 years, came to his village and told him that his mother (sister of complainant) namely, Mst. Umerzada Bibi has been murdered by appellant Umar Zaman (Husband of the deceased), by firing at her Inside the room of his house. He alongwith his other brothers went to the house of their sister, where they found her dead. Before their arrival Umar Zaman had been caught hold by the co-villagers and had been locked in a Hujra of the village. The complainant charged the appellant for murder of his sister in pursuance of which case F.I.R. No, 120, dated 16.0.2008, was registered under section 302, PPC, at Police Station Basia Khel.
3. After completion of investigation challan was submitted against him and he was put to face the trial. Appellant was formally charge-sheeted to which he did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against the appellant produced & examined 10 witnesses. The brief of prosecution evidence is as under :--
(i) Wali Ayaz, AS1 appeared as P.W-1, who recorded the statement of Gul Rasool (PW-9) in mortuary room of DHQ Hospital, Bannu. He prepared injury sheet and inquest report of deceased and sent the dead-body of deceased for PM examination under the escort of constable Aurangzeb No, 470.
' While sent the Murasila to the Police Station ''through constable Shah Bukhtiar No, 1891 for registration of the ease. From mortuary room of DHQ Hospital/Bannu, he proceeded to the spot, where appellant was handed over to him by the co- villagers, who had already captured him. He admitted this fact that when the dead-body was brought to the mortuary room, he was not present there, but on getting information, he proceeded to the hospital. Aurangzeb FC, No, 470, was examined as PW2, who escorted dead-body alongwith injury sheet and inquest report to the Doctor for PM examination and after PM examination, the doctor handed over him PM papers alongwith blood-stained belongings of deceased, which he handed over to the 10. PW3, Lady Doctor. Fahmida Aman,. MO, Women and Children Hospital, Bannu conducted autopsy of deceased on 16.6.2008 at about 09.00 a.m. She found an entry wound size A " x A " just in front of chest slightly towards right side from the centre and ' corresponding exit wound just at the lower edge of right scapula, size V2" x V2". She stated that the deceased died due to injury to main major vessel and excessive blood loss. According to her report, the weapon of offence, as per information furnished by the local police, was fire-arm. She further stated that the injuries mentioned by her in PM report could not be inflicted through knife etc. PW4, Shah Bakhtiar No, 1891, brought murasila from hospital to the Police Station for registration of F.I.R. While PW5, Aman Rasool identified the deceased being his sister. Mehrullah IHC, Police Station Town Ship Bannu recorded his statement as PW-6, According to him in his presence the 10 took into his possession blood-stained earth from the plape of deceased, one empty shell of 30 bore and one 30 bore pistol alongwith an empty magazine produced by Wali Ayaz, AS1. He is also marginal witness to the recovery memo, vide which the 10 took into possession one Qamiz of red colour brought by constable Aurangzeb, from the Hospital. He disclosed that when he reached the spot many other people and police contingents were present there; that at the time of recovery of pistol from the accused, he was not present on the spot and similarly he has not seen the accused having pistol in his possession. He stated that "'he has not observed any blood, present on the bed or pot. The investigation officer Naimatullah recorded his statement as PW7. He stated that on receipt of copy of F.I.R., he proceeded to the spot and prepared site plan on the instance of Gul Rasool, complainant. During spot inspection he secured blood-stained earth from the place of deceased and one empty shell of 30 bore from the spot. He also took into possession 30 bore pistol alongwith an empty magazine, produced by Wali Ayaz, AS1. He has also taken into possession the blood-stained clothes of the deceased, through recovery memo. According to him, he has sent the blood-stained garments, empty shell and pistol to the FSL for chemical analysis. During cross-examination, he admitted that when he reached the spot the complainant was not present there. He also admitted that Wali Ayaz, AS1 has recovered the pistol from the accused prior to his arrival. He further admitted that there was no eye-witness in "the instant case; that the occurrence was unseen, being committed at night time; that presence of accused has not been shown inside the room of the house. The son of appellant and deceased namely, Sudais Khan, appeared as prosecution witness, whose statement was recorded as PW-8. He stated that on the day of occurrence, his mother was brought by his father from the house of his maternal uncle and inside the house, she was injured by his father with a Chhuri. After getting the injury his mother sent him to bring some medicine for her. When he brought medicine and reached in the veranda of the house, he heard fire shot inside the room; on entering the room, he saw his mother lying on the cot in injured condition and after some time, she succumbed to her injuries. Thereafter he informed the co-villagers. On the following morning his maternal uncle handed over his father to the b al police. In cross-examination, he stated that his mother was stabbed in her belly at night time; that at the time of firing he was present in the veranda of his house; that it was 11/12 p.m. (2300/2400 hours), when he heard fire shot. He admitted that he informed the co-villagers after about half hour of the occurrence, and when the co- villagers reached the spot, his father had already gone outside of the house. He also admitted that when he entered the room his mother was in unconscious condition and was unable to talk. Gul Rasool recorded his statement as PW9, who narrated the same story, as mentioned in the F.I.R.
However, he added that in his presence, the 10 took into possession blood-stained earth from the place of deceased and one empty shell, of 30 bore. During his cross-examination he stated that in his presence nothing has been recovered by the police from the spot.
(ii) After completion of prosecution evidence, appellant was examined under S. 342, Cr.P.C., wherein he professed his innocence. However, he neither appeared as his own witness under S. 340(2), Cr.P.C., nor produced his defence. The learned Trial Court, after hearing the arguments of the parties convicted and sentenced the appellant as mentioned in the first Para. Hence this appeal.
4. Learned counsel for appellant contended that occurrence has taken place in pitch dark of night; that no one has seen the occurrence and from the statement of PW8, it is evident that at the time of occurrence, he was not present on the spot and he has not seen the occurrence. Post-mortem report has belied the F.I.R, and not supporting the prosecution case. According to the site plan the deceased and appellant have been shown at Point No, 2, and Point No, 3, respectively. Both the points are situated in veranda, outside the room, while blood-stained earth has been recovered from the place A, situated inside the room. He argued that there are material contradictions in the- statements of prosecution witnesses; that the case has been planted against the appellant by PW- 9, brother of deceased for ulterior motive.
5. Learned AAG in support of the judgment contended that the occurrence has taken place inside the house of the appellant, where the presence of PW-8, Sudais is natural; that the son of appellant has deposed against him and prosecution has succeeded to bring home guilt the appellant, beyond any shadow of doubt.
6. We have heard arguments of learned counsel for the parties and perused the record with their valuable assistance.
7. Record reveals that on the night between 15th/16th June, 2008, Mst. Umerzada Bibi was done to death in residential room of her house, situated at Kotka Feroz, regarding which her brother Gul Rasool r/o Koti Saadat reported the matter to Wali Ayaz, AS1, at post-mortem room of DHQ, Hospital, Bannu. Perusal of the record would show that the murder of deceased Mst. Umerzada Bibi has not been witnessed by any person. According to the complainant he was informed by his nephew Sudais Khan (son of appellant) at Koti Saadat village. Whep he was present in his house alongwith his other inmates. The prosecution has not cited a single witness regarding information to Gul Rasool, 'despite die fact that he was allegedly informed by Sudais Khan in presence of other family members. According to prosecution case the PW Sudais was aged about 9/10 years at the time of occurrence. He visited all alone from a tillage namely Kotka Feroz to the house of his maternal uncle Gul Rasool situated at Koti Saadat almost at the distance of about 1 K.M. And that too in the midnight particularly leaving his mother in dead condition at his house. The travelling of minor boy in the pitch dark of night from one village to another is not appealing to prudent mind of a person.
8. The learned Trial Court recorded the statement of child Sudais without any step to judge the level of his intelligence, maturity and capacity of understanding under Article 3 of Qanun-e- Shahadat Order, 1984. In the present case the deposition of child (PW-8) clearly stipulates that in fact he was not present in the house, at the relevant time and has not seen the occurrence.
9. According to the statement of above-said PW, on the day of occurrence, his father stabbed his mother in her belly and on sustaining injury the deceased sent him for brining some medicine for her. He went and brought medicine to his house and when reached the veranda of his house, heard fire shot from inside the room. When he entered the room, he saw his mother lying on cot in injured condition; not capable of talking, thus he informed his co-villagers. The prosecution have not brought an iota of evidence to the effect that:--
(1) Whether any medicine shop is available in the village Kotka Feroz or nearby the village?
(2) What kind of medicine he had brought for his mother?
(3) Whether any medicine was recovered or produced by PW8, before the Investigation Officer?
' The above-said unanswered questions create serious doubts in the prosecution case and indicate that minor child Sudais is not the eye-witness of the occurrence and he is not telling the truth. According to his version his mother was stabbed by his father through Chhuri in her belly, but the medical evidence reveals that deceased has died due to single fire-arm injury on her chest.
The injury sheet and inquest report are also silent about stabbed wound.
10. PW-8, has not shown the presence of his father inside the room. According to him when he entered the room he saw his mother lying on the cot in injured condition and after some time she succumbed to her injuries at the spot. His above assertion reveals that he has not seen the father inside the room nor noticed him coming out from the room,, after the alleged fire shot. The another major discrepancy in the statement of this witness is that he informed the co-villagers about the incident, but has never stated that he had gone to village Koti Saadat and informed his maternal uncle about occurrence. If he has not informed PW-9, then how complainant Gul Rasool reported the matter to PW1, Wali Ayaz, AS1 at Mortuary room of DHQ Hospital Bannu?
11. In view of the above discussed statement of the child witness Sudais, we found that his deposition has become highly doubtful and not truth inspiring. No doubt conviction can be recorded on the sole testimony of a child, provided the same has been- consistently corroborated by circumstantial evidence. In the case of " Ulfat Hussain v. The State" (2010 SCMR 247) the august Supreme Court observed as under :-- "We would like to observe that though in principle conviction can be based upon the testimony of an intelligent and understanding child witness yet the Courts have generally preferred to adopt the settled principle of prudence and the rule of care attached to the sole testimony of a child witness despite child's intelligent disposition. We may however, reiterate that the measure of prudence or the level of care would depend upon facts of each case."
It is also a well-settled proposition of law that during examination of a child witness, particularly in case of major punishment, great care and caution to be observed. In the case of "The State through Advocate General Sindh v. Farman Hussain and others" (PLD 1995 SC 1), the apex Court was pleased to held in the following words:-- "Evidence of child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated as rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not involved. Evidence of child came up for examination before Division Bench of the High Court in the case of Amir Khan and others v, The State PLD 1985 Lah. 18 in which after consideration of the relevant case-law on the subject, Abdul Shakurul Salam, J. (as he then was) as author of the judgment observed that "children ate a most untrustworthy class of witnesses, for, when of tender age, as our common experience teaches us, they often mistake dreams for reality, ^repeat glibly as of their own knowledge what they have heard from others and are greatly influences by fear of punishment, by hope of reward and the desire of notoriety." In any case the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some evidence on the record."
In the instant case we searched the file from cover to cover but did not find a single evidence to corroborate the testimony of child PW-8. Medical evidence, recoveries from the spot, recovery of weapon of offence, site plan and arrest of. Appellant do not furnish the required support.
12. We have no doubt in our mind that this child was introduced as an eye-witness by the complainant or investigation as the occurrence had taken place in the odd hours of night and the prosecution was not equipped with evidence against -the appellant.
13. There is no link in the chain of prosecution evidence and have contradicted each other on material points. According to 10 he effected the recovery of blood-stained earth; empty shell of 30 bore and pistol 30 fore produced by Wali Ayaz AS1, in presence of PW-9. Complainant Gul Rasool (PW-9), in his cross-examination categorically stated that in his presence nothing has been recovered by the police g from the spot, which shows that in fact no recovery has been effected from the spot and the same have been planted to strengthen the prosecution case.. Another major contradiction in the prosecution case is regarding site-plan. PW-7, Naimatullah IO has stated that he prepared the site plan on the instance of Gul Rasool complainant, but when Gul Rasool was examined, he stated in unequivocal words that the site plan was pointed out by his nephew Sudais Khan to the IO. The IO and the complainant are also not consistent on the point of alleged recoveries of blood-stained earth empty shell and pistol.
14. Coming to the alleged recovery of 30 bore pistol, suffice it to say that the alleged pistol has been produced by PW-1, Wali Ayaz Khan, ASI to the IO. According to the IO Wali Ayaz, AS1 has recovered the pistol from the appellant at the time of his arrest, but the statement of Wali Ayaz, AS1 is totally silent about the alleged recovery of pistol. However, in cross-examination he stated that pistol was handed over to him by the villager of accused, but astonishingly neither the person, who has handed over the alleged pistol to Wali Ayaz, AS1, has been examined nor his identity has been disclosed.
15. Only the death of the wife of accused by a fire-arm in his house itself is not sufficient to establish the guilt of the appellant. Her death in the house may be a circumstance to be taken into account alongwith other, prosecution evidence. The presence of accused in the house at the time of occurrence has also not been established by the prosecution. The prosecution has failed to bring single positive evidence against the accused.
16. It is by now, settled law that in absence of any direct or substantial circumscantial evidence the conviction of a person cannot be sustained merely on account of his failure to explain the murder of-his wife in his house. In this respect reliance may be placed on the case titled "Abdul Majeed v.
The State" (2011 SCMR941).
17. So far as the motive advanced by the complainant is concerned, we could not find a single instance from the prosecution evidence that the relation between the appellant and his wife were so strained, which culminated into homicide of Mst. Umarzada Bibi. The real son of the appellant has not uttered a single word to the effect that the relationship between his mother and father has ever remained strained. Besides, record reveals that the appellant and deceased has remained in wedlock for a long period having nine children, out of whom six daughters have already been married, while one daughter and two sons were still residing with them. None of the daughters has come forward to disclose that the deceased and appellant were not on good terms, thus the motive alleged by the complainant in the F.I.R, was not substantiated by any evidence.
18. It is necessary for the prosecution to prove its case against the accused beyond any reasonable-doubts and if there found any doubt, in prosecution case the accused shall be held entitled to the benefit of doubt thereof. It is also settled principle of criminal administration of justice, that if there be an element of doubt, as to the guilt of accused, it must be extended to him.
The golden rule of benefit of doubt is initially a rule of prudence, which cannot be ignored, while dispensing justice in accordance with law. It is based on a famous maxim, it is better that 10 guilty persons be acquitted rather than one innocent person be convicted. For acquittal of accused in an offence how so heinous it may be, only a single doubt in the prosecution evidence is sufficient. It will not out of place, to mention here that in the Islamic law above-said principle occupies a pivotal place as evident from the following saying of Holy Prophet, PBUH, that mistake of Qazi in releasing a criminal is better than his mistake in punishing an innocent. In support of above discussion reference may be made to case titled "Ayub Masih v. The State" (PLD 2002 SC 1048) and "Khalid Mehmoodi and others v. The State" (2011 SCMR 664).
19. The instant case, as discussed, in preceding Paras, is pregnant with serious doubts and the appellant is entitled to the benefit of doubt thereof.
20. In view of the above discussion, in absence of any positive prosecution evidence, the appellant cannot be convicted on presumptions, that since the murder of his wife has taken place in his house. The conviction and sentence of appellant oh this single circumstance cannot be sustained under the law. Hence, on acceptance of this criminal appeal sentence and fine awarded to the appellant by the learned Sessions Judge, is set aside and he. Is acquitted of the charges. As a consequence whereof, he shall be set free forthwith, if not required in any other case.
Conviction and Life Imprisonment Set Aside/Acquittal Ordered.