' MUHAMMAD TARIQ ABBASI, J.---By way of this appeal, Zulfiqar Ali, appellant has challenged his conviction and sentence, awarded to him through the judgment dated 25-5-2009 passed by the learned Addl. Sessions Judge, Dera Ghazi Khan.
2. Through the abovementioned judgment, the appellant was convicted under section 302(b) read with section 34, P.P.C. And sentenced to imprisonment for life, with compensation of Rs,50,000 under section 544-A of Cr.P.C. Payable to the legal heirs of the deceased, otherwise, to further undergo six months' S.I. He was also convicted under section 337-H(2) of P.P.C. And sentenced to three months' R.I. It was directed that both the abovementioned sentences shall run concurrently and the appellant will be entitled for the benefit of section 382-B of Cr.P.C.
3. The precise facts are that the appellant, along with two others namely Riaz and Fayyaz (since P.O.) was booked in case F.I.R. No,761 dated 15-9-2008 registered under sections 302, 337-H(2), 324/34, P.P.C. At Police Station, Saddar D.G. Khan, with the allegation of attacking at Ghulam Yasin complainant (P.W.4), Munir Ahmad (given up P.W.), Sadiq Hussain (P.W.5), Atta Muhammad (DW-1) and Saeed Ahmad (deceased), during which the appellant had allegedly inflicted a club blow and caused injury at the jaw of Atta Muhammad (DW-t), whereas Riaz accused (P.0) inflicted a hatchet blow at the head of Saeed Ahmad, who later on succumbed to the injury and that during the occurrence Fayyaz accused (since P.O.) had made aerial firing.
4. During the investigation, Riaz and Fayyaz co-accused were declared to be proclaimed offenders whereas the appellant was challaned to the court.
5. After the required proceedings, the appellant was formally charge sheeted on 3-12-2008. He pleaded not guilty and claimed trial, hence the prosecution witnesses were summoned and recorded.
' P.W.1 Riaz Hussain, Constable, had got conducted the post-mortem examination of the dead-body of Saeed Ahmad at Nishtar Hospital, Multan and produced the last worn clothes of the deceased, which were handed over to him by the doctor, to the Investigating Officer.
' P.W.2, Zaka Ullah Moharrar/Head Constable, had kept a sealed parcel relating to this case, allegedly containing bloodstained earth, in the Malkhana and thereafter handed it over to Muhammad Boota Constable for its onward transmission and dispatch in the office of Chemical Examiner, Lahore intact.
' P.W.3, Muhammad Boota Constable had transmitted a sealed sample parcel relating to this case, allegedly containing blood-stained earth, from the Malkhana of the police station to the office of Chemical Examiner at Lahore intact.
' P.W.4, Ghulam Yasin complainant as well as an alleged eye-witness, during statement had narrated almost the same facts as were stated by him in the complaint Exh.PA. He had also attested the memo Exh.PB, through which the bloodstained earth collected from the spot was taken into possession by the Investigating Officer.
' P.W.5 Sadiq Hussain another eye witness had supported the version of the Ghulam Yasin complainant (P.W.4).
' P.W.6 Muhammad Ibrahim, had identified the dead-body of Saeed Ahmad, before the doctor, at the time of its postmortem examination. He had also attested memo Exh.PC, through which the Investigating Officer had taken into possession the last worn blood-stained clothes of the deceased (P-1, P-2 and P-3). He had also attested recovery memo Exh.PD, through which club/sota (P-4) allegedly got recovered by Zulfiqar appellant was taken into possession by the Investigating Officer.
' P.W.7, Dr. Khalid Naveed had firstly medically examined Saeed Ahmad, the then injured and Atta Ullah (DW-1) and prepared the reports. After death of Saeed Ahmad, this witness had also conducted post-mortem examination of the bddy, through the report Exh.PE and the diagrams Exh.PE/1 and Exh.PE/2.
' P.W.8, Irshad Hussain, S.I, had investigated the case, during which he interrogated Zulfiqar Ali appellant, who made a disclosure and then led to the recovery of club/sota (P-4), which was taken into possession, through recovery memo Exh.PD. This witness had also recorded statements of the concerned witnesses under section 161 of Cr.P.C.
' P.W.9, Ghulam Shabbir, S.I, had also investigated the case, during which he recorded the statement/complaint (Exh.P.A) made by Ghulam Yasin and for registration of the case sent it to the police station. During his further proceedings, he prepared the documents fully described in his statement and also recorded the statements under section 161 of Cr.P.C. Of the concerned witness and finally challaned Zulfiqar appellant to the court. He had also given secondary evidence towards drafting of the F.I.R. (Exh.PA/2) by Muhammad Ismail, S.I.
' P.W.10, Sajjad Hussain, Patwari, had drafted the un-scaled site plans Exh.PN, Exh.PN/1 and Exh.PN/2, of the spot and handed over the same, to the Investigating Officer.
6. During the trial, Atta Muhammad and Murid Hussain P. Ws. Were given up being won over by the accused, whereas Munir Ahmad, PW, being unnecessary.
7. After leading the abovementioned evidence, the learned Prosecutor through the statement dated 29-4-2009, had tendered in evidence, the reports of the Chemical Examiner and the Serologist as Exh.PP and Exh.P.Q respectively and closed the case for the prosecution.
8. After closure of the prosecution case, the statement of the appellant was recorded, under section 342 of Cr.P.C, during which questions arising out of the prosecution evidence were put to him and he denied almost all the said questions. In reply to the question "why this case against yots and why the P. Ws. Deposed against /at"? The appellant stated as under:-- "1 did not participate in the occurrence nor I injured any person. Murid had a dispute of land with Fayyaz and Riaz both P.O. Of this case. As a result of which occurrence took place actually I am resident of Band Hotwala and my house is near the place of occurrence. On the noise I came out from my house empty handed to rescue the occurrence but complainant party falsely involved me in this case due to my relationship with Fayyaz and Riaz both P.O. Who are my maternal cousixs. All the P. Ws. Are inter se related and interested witnesses."
' The appellant did not opt to make his statement on oath, but opted to lead evidence in his defence.
9. In defence, Atta Muhammad, who as per prosecution story, allegedly sustained injury at the hands of the appellant, had made a statement as DW-1, during which he deposed that Zulfiqar Ali, appellant, reached at the spot after the occurrence empty handed; that nobody caused injuries to him and on the next day of the occurrence, his brother Murid (given up PW) had taken him into the hospital, despite the fact that he was not injured; that the complainant party had involved Zulfiqar appellant due to close relation with Riaz and Fayyaz accused (since P.0) and also due to the reason that his father was at Saudi Arabia and he was a rich person.
10. Muhammad Jalil, another witness had made statement as DW-2, whereby he deposed that Zulfiqar appellant during the occurrence was not available at the spot and that when fight was over, the appellant reached at the spot empty handed and that he was innocent and falsely involved in the case.
11. After got examining the above named witnesses, in defence, the appellant had tendered the documents as Exh.DB, Exh.DC and Exh.DD and closed his defence.
12. After all the abovementioned proceedings, the learned trial Court had decided the case through the impugned judgment. Consequently, the appeal in hand.
13. The learned counsel for the appellant has argued that the appellant is innocent and has falsely been roped in the case with mala fides; that admittedly, the deceased did not sustain any injury at the hands of the appellant and that Atta Muhammad, who as per the alleged prosecution version has sustained injury at the hands of the appellant, during his statement as DW-1, has not supported the said version; that non-attendance of the appellant at the spot and non- participation in the occurrence has also been narrated by the Investigating Officer during his statement as P.W.8; that the learned trial Court has erred in not considering the attending facts and circumstances and the material available on the record and falsely convicted the appellant only with the allegation of common intention and that the impugned judgment being based on misreading and non-reading of the material available on the record is not sustainable under the law.
14. The learned Additional Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the appeal, while supporting the impugned judgment to be well reasoned and quite in accordance with law.
15. Arguments of all the sides have been heard and record has been perused.
16. Admittedly, no injury of Saeed Ahmad deceased had been attributed to Zulfiqar Ali, appellant.
The only allegation against the appellant was that he had inflicted club blow and caused injury at the jaw of Atta Muhammad PW.
17. It has been observed that during the prosecution evidence, Atta Muhammad PW, who allegedly had sustained the abovementioned injury at the hands of the appellant was not got examined as a prosecution witness but given up being won over.
18. It has been noticed that when the Investigating Officer of the case namely Irshad Hussain, S.I, came in the witness box, as P.W.8, during cross-e\amination, he had admitted that the version of the Zulfiqar Ali appellant, was that he was innocent. He had further admitted it correct that many persons, appeared before him and stated that Zulfiqar Ali appellant was empty handed and did not cause any injury to anyone and that the people told that the appellant had tried to rescue/intervene the occurrence.
19. It has been found that not only during the prosecution evidence, the above mentioned stance/version had come on the record but Atta Muhammad, in defence of the appellant had also made a statement as DW-1, during which he had categorically deposed that the appellant reached at the spot after the occurrence, empty handed; that nobody caused injuries to him and on the next day, he was taken to the hospital by his brother Murid (given up PW) despite the fact that he was not injured; that the complainant party had involved Zulfiqar appellant being close relative of Riaz and Fayyaz (since P.Os) and also due to the reason that father of the appellant was at Saudi Arabia and he was a rich fellow.
20. The learned trial Court had very much considered the above mentioned facts and evidence, but even then had convicted the appellant towards the commission of murder of Saeed Ahmad and also for the aerial firing, which as stated above, were not committed by him, while assigning reasons that he had shared common intention with his co-accused since proclaimed offenders.
21. The prosecution witnesses namely Ghulam Yasin (P.W.4) and Sadiq Hussain (P.W.5) during their statements had not uttered even a single word that the appellant and his co-accused had arrived at the spot with pre-planning and premeditation or sharing common intention. It is a settled principle of law that the prosecution should prove its case against an accused beyond shadow of all reasonable doubts. The decisions of criminal cases on
22. The basis of presumptions are not allowed at all. It has been observed that the learned trial Court had failed to observe the above mentioned principle/criteria and had convicted the appellant for an act, which at all was not committed by him.
22. The learned trial Court while passing the impugned judgment and convicting the appellant, has ignored the golden principle of law "It is better that ten guilty persons be acquitted, rather than one innocent person be convicted". Reliance in this regard is placed upon the case reported as "Muhammad Ayub Masih v. The State" (PLD 2002 SC 1048), where, the hon'ble apex Court has made the following observations:- "It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." In simple words it means that utmost care should be taken by the court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p, b. u. h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
23. As a result of the above discussion, the appeal in hand is accepted and the impugned judgment dated 25-5-2009 is set aside. Consequently, Zulfiqar Ali appellant is acquitted of the charge, while giving him the benefit of doubt.
24. The appellant is on bail through suspension of the sentence, under section 426 of Cr.PC, hence his bail bonds are discharged.