CH. MUSHTAQ AHMAD, J. Appellant Nazir Hassan has challenged his conviction and sentence through Criminal Appeal No.297 of 2007. He was tried by learned Additional Sessions Judge, Mailsi District Vehari in a private complaint titled "Umar Hassan Vs. Mehdi Hassan and three others" for the offence under sections 302, 324, 34 PPC alongwith co-accused Mehdi Hassan and Shamsher Shah. Complainant Umar Hassan has filed criminal revision No.231 of 2007 seeking enhancement of sentence of the appellant. I propose to decide both these matters through this consolidated judgment.
2. On conclusion of trial, learned trial court vide its judgment dated 25.06.2007 convicted and sentenced the appellant as under:- Convicted U/S 302(b) read with section 34 PPC and sentenced to undergo Imprisonment for life. He was also held liable to pay Rs.50,000/- as compensation under section 544-A Cr.P.C. to the legal heirs of deceased Faiz-ul-Hassan. In default thereof, to further undergo imprisonment for six months.
Benefit under section 382-B Cr.P.C. was also given to the appellant. Co-accused Mehdi Hassan was also convicted vide impugned judgment and he was awarded same sentence. This appeal was initially preferred by present appellant alongwith said Mehdi Hassan. However, during pendency of appeal Mehdi Hassan died and to his extent appeal was abated. Co-accused Shamsher Shah was acquitted of the charge vide impugned judgment.
3. Occurrence was reported to police by Umar Hassan son of Zahoor Hassan and consequently FIR No.332/2005 dated 28.11.2005 was registered under sections 324, 34 PPC with police station City Mailsi, District Vehari. Being dissatisfied by investigation, complainant lodged private complaint above mentioned.
4. Facts of the case according to private complaint are that complainant's residence is in his land situated in square No.30 of Mauza Dhumakki. Adjacent to the house of complainant is residence of his step brother Faiz-ul-Hassan Shah. On 28.11.2005 at about 08:00 P.M., complainant was present in the house of his brother when outer door of house was knocked. Complainant told his brother Faiz- ul-Hassan not to open the door without identification, but in the meanwhile Faiz-ul-Hassan had opened the door. On outer door of house, a bulb was on. Mehdi Hassan (since dead), Nazir Hassan (appellant) and Shamsher Shah (since acquitted) were present in front of the door while armed with firearms alongwith an unknown person. Two motorcycles were also parked near them. As Faiz- ul-Hassan opened the door, Mehdi Hassan made fire shot which hit Faiz-ul-Hassan at abdomen at left side. Nazir Hassan then made fire which shot hit at right side of chest of Faiz-ul-Hassan.
Shamsher Ali gave blows with butt of his firearm weapon at nose and forehead of Faiz-ul-Hassan.
Complainant raised alarm, on which Shahid Hassan, nephew of complainant also attracted and witnessed the occurrence. Accused persons then fled away.
5. Motive behind the occurrence is dispute between the parties over a passage. Faiz-ul-Hassan was shifted to hospital, who succumbed to the injuries on 02.12.2005 in hospital.
6. Appellant alongwith co-accused were charge sheeted by learned trial court. They pleaded not guilty and claimed trial. Prosecution in order to prove its case examined eight witnesses.
Statements of six witnesses were recorded as CW-1 to CW-6. Thereafter, statements of appellant and co-accused were recorded under section 342 Cr.P.C. On conclusion of trial, appellant and co- accused Mehdi Hassan were convicted and sentenced, hence this criminal appeal as well as criminal revision. Mehdi Hassan convict died during pendency of this appeal. To his extent appeal was abated.
7. Learned counsel for appellant argued that Faiz-ul-Hassan (deceased) was murdered by some other persons on abetment of complainant, which fact was also proved during investigation, but complainant implicated appellant and co-accused falsely; that widow of Faiz-ul-Hassan deceased lodged a private complaint regarding the same occurrence in which allegation of murder of her husband was leveled against complainant of instant case and others; that appellant alongwith co-accused have been shown to be armed with firearms but no description of weapons has been given; that it was a dark night occurrence and there was no source of light available at the place of occurrence; that nothing was recovered from appellant despite the fact he remained on judicial remand; that Faiz-ul-Hassan (deceased) after sustaining injuries was admitted in Nishtar Hospital Multan, where he made statement before I.O in which he nominated the appellant and co-accused as the persons who inflicted injuries to him, which statement amounts to his dying declaration; that evidence available on record was not trustworthy and confidence inspiring to record conviction, as such impugned conviction and sentence is not sustainable.
8. Conversely, learned Deputy Prosecutor General assisted by learned counsel for complainant argued that appellant alongwith co-accused were rightly identified by PWs in the light of bulb; that ocular account is fully corroborated by medical evidence; that there was no motive for complainant to falsely implicate the accused persons in this case. Further contended that prosecution has fully established its case against appellant beyond reasonable doubt, as such he was rightly convicted and sentenced by learned trial court.
9. I have heard arguments advanced by learned counsel for parties and gone through record with their able assistance.
10. Ocular account was furnished by PW-5 Umar Hassan (complainant) and PW-6 Shahid Hassan.
They both reiterated the story as narrated in complaint. Occurrence took place at 08:00 P.M. at outer door of house of deceased. It has been alleged that appellant and co-accused were armed with firearms. However, description of weapons has not been given. According to PW-5, Shamsher Shah (co-accused since acquitted) gave butt blows with his firearm at nose and forehead of deceased. Even then, it was not mentioned as to with which type of firearm weapon i.e. rifle, pistol, etc, he gave butt blows. Appellant remained on judicial remand but nothing was recovered from his possession. During investigation appellant and his co-accused were found innocent. It was opined by investigating officer that Tariq Mahmood, Muhammad Saleem, Muhammad Siraj, Abdul Aziz, Muhammad Aslam and Khalid were the actual culprits. In the case in hand, prosecution case was that accused were identified in the light of a bulb which was on at relevant time at outer door of house. Electric bulb was not taken into possession by the I.O. during investigation to show that in fact there was source of light at the relevant time. Law is well settled that prosecution is bound to prove its case beyond reasonable doubt. It is also an accepted principle of law that if in the given facts and circumstances any reasonable doubt arises in the prosecution case, benefit of the same has to be given to accused not as grace or concession but as a matter of right. Above principle is also accepted in Islamic Jurisprudence and is universally accepted principle which evolved into the theory of benefit of doubt. Prosecution version in the peculiar facts and circumstances is doubtful.
11. So far as dying declaration made by deceased before IO on 30.11.2005 is concerned, it is worth noticing that no certificate regarding fitness of mental condition of deceased was obtained prior to recording his statement. Explanation given by I.O. (PW-8) that fitness certificate was not obtained as no doctor was available at the time of recording said statement, is far from being satisfactory as doctors generally are available at Nishtar Hospital, Multan round the clock. Learned trial court has rightly discarded the statement of deceased from consideration.
12. On re-appraisal of evidence, I am of the considered opinion that prosecution in this case had failed to prove charge against appellant beyond reasonable doubt. Resultantly, this criminal appeal No.297 of 2007 is allowed and conviction and sentence recorded by the learned trial court against the appellant through impugned judgment is set aside and appellant Nazir Hassan is acquitted of the charge. His surety stands discharged of the liability of bail bonds.
13. For the reasons recorded above, criminal revision No.231 of 2007 for enhancement of sentence of appellant is dismissed.