' WAQAR AHMAD SETH, J.---Convict-appellant Aamir son of Muhammad Ashraf was tried under sections 302/34, P.P.C. And on conclusion of trial, vide impugned judgment dated 21-9-2009, he was convicted on two counts under section 302(b), P.P.C. For committing Qatl-e-amd of deceased Haroon son of Muhammad Akram and Kashif alias Kashi son of Khani Zaman and sentenced to suffer imprisonment for life with a fine of Rs,1,00,000, payable as compensation to the L.Rs, of deceased, or in default thereof to further undergo six months S.I. On each count. Benefit of section 382, Cr.P.C. Was, however, extended to him. The convict-appellant has filed Criminal Appeal No,56 of 2009 against his conviction and sentences while the complainant Muhammad Akram has filed Criminal Revision No,16 of 2009 for enhancement of sentences. As both the matters have arisen out of impugned judgment, therefore, these are proposed to be disposed of by this single judgment.
2. Briefly stated facts of the prosecution case are that on 2-3-2004 complainant Muhammad Akram at DHQ Hospital Abbottabad made a report to the effect that on the same day he got the information at about 1-15 p.m. That his son Haroon along with his friend Kashif alias Kashi, who were going from Jadoon Colony towards the place as Dhobi Ghat for labour, were fired at by convict appellant with .30 bore pistol, as a result of which, his son died at the spot while Kashif was taken to the hospital in a serious injured condition and so many people present over there witnessed the occurrence. Motive for the occurrence was that his deceased son Haroon had complained to accused Aamir of his alleged threatening by showing his pistol to Hafeez Khan, the other son of the complainant, a day prior to the occurrence. Injured Kashif was referred to Ayub Medical Complex Abbottabad, who later on succumbed to his injuries on the same day of occurrence.
3. After completion of investigation, challan was put in court and trial commenced. Accused pleaded not guilty and claim trial. The prosecution examined 11 witnesses in order to prove its case.
After close of prosecution evidence statement of accused was recorded under section 342, Cr.P.C.
Who did not wish to be examined on Oath under section 340(2), Cr.P.C. But produced Dr. Muhammad Tariq, Dr. Zafar Hayat Khan, Dr. Naveed Irfan and Dr. Muhammad Younis Khawaja (DWs 1 to 4) regarding establishment of his mental disease.
4. At the conclusion of trial, after hearing the arguments of learned counsel for the parties with reference to the material on file, the,learned trial Judge convicted and sentenced the accused appellant, as noted above.
5. Learned counsel for appellant argued that complainant Muhammad Akram (PW-7), who is not an eye-witness of the occurrence, is real father of deceased Muhammad Haroon while Muhammad Asif (PW-9) is the brother, and Muhammad Miskeen (P.W.8) is the maternal cousin of deceased Kashif; that P.W. Muhammad Asif, real brother of deceased Kashif, was admittedly present in the hospital but he did not make the report and waited for arrival of Muhammad Akram (PW-7), who lodged the report; that Muhammad Miskeen (PW-8) is resident of village Nambal Police Station Bakot, who used to sell vegetables at Rawalpindi and could not justify his presence at the relevant time of occurrence; that the complainant did not mention the names of eye-witnesses and also did not nominate Mst. Shehnaz Bibi as accused in the first report; that as per contents of F.I.R. At the time of occurrence so many people were present on the spot but none independent witness was produced by the prosecution; that the alleged four recovered empties did not match with the crime pistol; that both the deceased had come to the house of accused and were thus responsible for commission of offence; that the convict appellant was declared insane and suffering from schyphonzi and that F.I.R. Was lodged after a preliminary investigation. It was argued that ocular account contradicted the medical evidence and that all the PWs are highly interested witnesses and have contradicted each other on material points. Learned counsel while concluding his arguments submitted that appellant is entitled to be acquitted by extending him the benefit of doubt, as a single doubt in the case would be sufficient for the purpose of acquittal.
6. On the contrary, learned State counsel assisted by learned counsel for the complainant opposed the arguments advanced by learned counsel for appellant and argued that convict appellant has committed brutal murders of two innocent persons/the deceased having motive over extending of dire consequences threats to real brother of deceased Haroon. It was argued that ocular account has been furnished by the natural witnesses, which is trustworthy and confidence inspiring and convict appellant is the sole person responsible for the death of both the deceased. It was also argued that medical as well as recovery of crime empties from the spot coupled with the recovery of weapon of offence at the pointation of appellant fully supported the prosecution version and there is no ground for false implication of convict appellant. It was concluded that sentence awarded by the trial Court would not meet the ends of justice, as prosecution has been able to prove its case against convict appellant beyond any shadow of doubt and he, in the facts and circumstances of the case, be awarded the normal sentence of death.
7. Arguments of learned counsel for the parties have been heard at great length and available record gone through with their valuable assistance.
8. As per contents of F.I.R. Complainant (P.W.7) is not an eyewitness of the occurrence, which has allegedly been witnessed by so many persons of the locality but neither the complainant named none of these disinterested and independent eye-witnesses in the F.I.R. Nor produced by the prosecution in support of its case and rather real brother and maternal uncle of deceased Kashif were introduced subsequently and produced at the trial besides the complainant by the prosecution. Muhammad Asif P.W.9 alleged eye-witness of occurrence stated that on the day of occurrence he along with P.W. Miskeen, deceased Haroon and Kashif proceeded to the house of Aamir convict appellant for settlement of the matter and both the deceased knocked at the door of convict appellant. The accused came out and during conversation exchange of harsh words started and he asked them (the deceased) to leave the matter and the deceased hardly took 3/4 paces, the mother of accused standing on the stairs, asked Aamir to kill them, on this, the accused took out pistol from the fold of his shalwar and started firing at Haroon and Kashif, as a result of which, both the deceased sustained bullet injuries and fell on the ground. Both the injured succumbed to their injuries. The said P.W. Informed the complainant about the occurrence. It is strange that why the said P.W. Being eye-witness of the occurrence has not lodged the report either at ATH or DHQ Hospital Abbottabad and waited for arrival of complainant, who came and lodged the report at DHQ Hospital Abbottabad. To similar effect is the statement of PW-8 Muhammad Miskeen, the maternal uncle of Kashif deceased, who too did not himself bother to lodge the report and like Muhammad Asif P.W. Waited for arrival of complainant. P.W. Muhammad Miskeen is admittedly not the resident of the locality and could not justify his presence at the time of occurrence. In such scenario, the most and important aspect of the case, which calls for interference is that the alleged threat was extended to Hafeez Khan real brother of deceased Haroon Khan and instead of elders of Hafeez Khan's family, the real brother and maternal uncle of Kashif deceased accompanied both the deceased for settlement of the matter, whose names were not named by the complainant in the F.I.R.. In the case of Rashid Ahmed v. Muhammad Nawaz and others reported as 2006 SCM R 1152, it was held:-- "Testimony of the prosecution witness not mentioned in the F.I.R. But introduced subsequently, had no evidentiary value---Statement of the complaisant did not get any corroboration from any independent source including the recovery of incriminating article, which itself was doubtful--- Medical evidence was also it conflict with the ocular testimony".
9. In the case of Nadeem alias Nanha alias Billa Sher v. The State reported as 2010 SCM R 949 it was held as under:-- "Complainant and other eye-witnesses were chance witnesses as they should not normally be present at the place of occurrence; it was difficult to rely upon statements of such witnesses being chance and interested witnesses---In order to convict accused for murder court must be satisfied first that accused had committed murder---Question of sentence demanded utmost care on the part of court dealing with life and liberties of accused person---Prosecution withheld evidence of an eye-witness and real son of deceased did not make any statement about motive---No independent witness of locality, which was a Bazar, where incident took place, joined and the same had made prosecution case doubtful".
10. There is an important feature of the case is that as per medical reports the injuries on the persons of both the deceased were of different sizes and four of the alleged recovered empties did not match with the crime pistol recovered on the pointation of convict appellant, which facts clearly suggest that the dual murders were not the doing of a single person.
11. It is also pertinent to mention here that during trial a medical board was constituted and there is sufficient material on record, which could suggest that the convict appellant was an insane person and suffering from Schyphonzi, the disease allegedly caused at the spur of moment.
12. The motive as put forward by the prosecution has not been proved according to law as none independent person was produced regarding alleged extension of threats on pistol point to the brother of Haroon deceased and there is no report to this effect.
13. In view of the above, I appears that prosecution has suppressed material facts and the occurrence is shrouded in mystery, as under what circumstances, in what manner, at what time and by whom the deceased were injured and done to death. Thus, it can be safely concluded that either it is a case of no evidence or the occurrence did not take place in the manners, as suggested by the prosecution. The prosecution has failed to prove its case against the appellant beyond any shadow of doubt and by extending benefit of doubt, the appellant is acquitted of the charge.
14. As in the present case, the defence has established number of serious doubts. Which have damaged the entire prosecution case, as mentioned above, whereas in case of Ghulam Qadir v.
State reported as 2008 SCM R 1221 wherein it has been held that:- "For the purpose of benefit of doubt to an accused, more than one infirmity is not required---Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful". (The said dictum is based upon the case of Muhammad Luqman v. State (PLD 1970 SC 10).
15. Consequently, this appeal is allowed. Impugned conviction and sentences of convict appellant is hereby set-aside and he is acquitted of B the charge. Appellant be set free forthwith if not required in any other case. Criminal Revision No,16 of 2009 filed by the complainant for enhancement of sentence stands dismissed.