' SYED IFTIKHAR HUSSAIN SHAH, J.---This judgment will dispose of Criminal Appeal No,844 of 2013 filed by Muzaffar Hussain convict/appellant, who was convicted by the learned Additional Sessions Judge, Ferozewala vide judgment dated 19-6-2013 and sentenced as under:-- ' Under Section 302(b) read with Section 109, P.P.C.
' Imprisonment for life and to pay the compensation of Rs,200,000 under Section 544-A, Cr.P.C. To the legal heirs of deceased Wasim and in default, thereof to further undergo simple imprisonment for six months.
' He was held entitled to the benefit of Section 382-B, Cr.P.C.
2. Succinctly, the facts as mentioned in the FIR Exh.PA/1 registered on the complaint Exh.PA of Mst.
Rehmat Bibi complainant are that she was married with Noor Hussain and out of the wedlock two daughters were born and she adopted Waseem from her daughter No,3 A round raged lacerated wound on left hypochondrium Shakeela and his parentage was mentioned in the record as Noor Hussain. The complainant and her husband desired to sell out their share of agricultural land but her nephews Muhammad Jamil and Zulfiqar alias, Kashir (since P.Os.) did not agree and had always been putting resistance and civil litigation in this respect was also pending. On 17-10-2011 she along with her husband Noor Hussain and son Wasim went to the office of Muzaffar Hussain Patwari/the appellant to obtain "Fard Malikiyat" but he did not issue Fard for two hours and he remained in contact with the accused persons. At about 12:30 when she along with her husband Noor Hussain and Muhammad Wasim came down stairs from the office of said Patwari, Zulfiqar and Muhammad Jamil accused armed with 30-bore pistol were standing there and Muhammad Jameel raised Lalkara that the complainant party be taught a lesson for selling their land. Jameel accused fired with hit pistol which hit Wasim on the front of his abdomen. Zulfiqar alias Kashif fired with his pistol which hit on the back and left arm of Wasim and he fell down and succumbed to the injuries suffered by him. It was alleged that the said occurrence was witnessed by Bushra Bibi and Mst. Fizza Bibi, who were with the complainant at that time and the said accused had committed the occurrence with the active connivance of Muzaffar Hussain Patwari.
3. After submission of challan, the appellant was charged for the instigation and abetment of Jamil and Zulfiqar accused under Section 302 read with Section 109, P.P.C. To which he pleaded not guilty.
The prosecution as many as 10-witnesses. Rehmat Bibi complainant P.W.1, Fizza Bibi P.W.2 and Bushra Bibi P.W.3 are the eye-witnesses of the occurrence. Rab Nawaz draftsman P.W.4, Zaheer Anjum No,1170/C P.W.5, Muhammad Sarwar P.W.6, Muhammad Yaqoob No,486/HC P.W.7, Tahir Waseem No2388/C are more or less formal witnesses. Muhammad Akhtar SI P. W.10 conducted the investigation of this case.
4. Dr. Ayaz Akhtar P.W.8 conducted the post mortem examination on the dead body of Wasim deceased and observed the following injuries:- "INJURIES No,1 A raged .Round lacerated wound on left arm 01 cm from elbow join, 1 x 0.5 cm in measuring with inverted margins, blackening around wound observed. It was an entry wound. No,2 A round raged lacerated wound on medial aspect of left arm on mid of arm with everted margins.
It was an exit wound measuring 2 x 1 cm. region with inverted margins 1 x 0.5 cm in measuring. Blackening present. It was an entry wound.
No,4 A round raged lacerated wound on right back of abdomen just on iliac crest level 1.8 x 01 cm in measuring with everted margins. It was an exit wound. OPINION ' The injuries were ante mortem in nature and caused by fire arm. Injury Nos.3 and-4 are cause of death as they damage hightly vascular parts of body leading to internal haemorrhage shock, cardio pulmonary arrest leading to death which is common in such injuries in ordinary course of nature. Probable time that elapsed between injury and death was 5/10 minures and between death and post mortem within 6-10 hours.
' The prosecution gave up Noor Hussain, Muhammad Imran, Muhammad Adnan 2063/C and Muhammad Amjad 1996/C PWs being unnecessary.
5.. After closing of the prosecution evidence the appellant as well as Farooq Azam accused was examined under Section 342, Cr.P.C. The incriminating evidence produced by the prosecution was put to him, which he termed as incorrect, to question as to why this case was registered and why the PWs have deposed against him, he deposed as under:-- "I am innocent. During investigation many respectable persons of the locality appeared before the investigating officer about my innocence. In this case I have been declared innocent during investigation as no role was proved against me. PWs are inter related. They have deposed falsely against me. Complainant involved me in this case due to suspicion."
6. Learned trial Court, after hearing the learned counsel for the parties and going' through the evidence on record, convicted the appellant and sentenced him under section 302 'read with section 109, P.P.C. Supra.
7. ' Learned counsel for the appellant has contended that the appellant has been convicted under section 109, P.P.C. For instigation and abetment of the principal accused but not even a single witness except the complainant herself has appeared to support the said allegation; that the only alleged witness of instigation namely Noor Hussain has been given up by the prosecution; that the appellant was declared innocent during investigation; that the prosecution witnesses are closely related to the deceased and are inimical towards the appellant, therefore, the learned trial Court has committed material irregularity and illegality while relying on the their deposition. Relies on cases titled "Rehmatullah v. The State (2006 PCr.LJ 358 [Lahore])", "Hafiz Tanveer v. The State and another (PLD 2010 Lahore 156)", "Akhtar Ali and others v. The State (2008 SCM R 6 [Supreme Court of Pakistani)" and "Mudassar Shahzad v. The State (2004 PCr.LJ 332 [Lahore]r .
8. On the other hand, learned DDPP assisted by the learned counsel for the complainant has contended that the appellant instigated and abetted the principal accused, who committed the heinous crime of murder of son of the complainant; that the PWs have fully implicated the appellant in the commission of this offence; that the prosecution has proved guilt of the appellant beyond any shadow of doubt, therefore, his conviction is liable to be maintained.
9. I have heard the learned counsel for the appellant, learned DDPP for the State assisted by the learned counsel for the complainant and have also gone through the record.
10.
The occurrence of 'this case had taken place on 17-10-2011 at 12:30 noon, which was reported to the police on the same day. It was alleged in the FIR Exh.PA/1 that she was married with Noor Hussain and out of the wedlock two daughters were born and she adopted Waseetn from her daughter Shakeela and his parentage was mentioned in the record as Noor Hussain. The complainant and her husband desired to sell out their share of agricultural land but her nephews Muhammad Jamil and Zulfiqar alias Kashif (since P.Os.) did not agree and had always been putting resistance and civil litigation in this respect was also pending. On the day of occurrence she along with her husband Noor Hussain and son Wasim went to the office of Muzaffar Hussain Patwari/the appellant to obtain "Fard Malikiyat" but he did not issue Fard for two hours and he remained in contact with the accused persons. At about 12:30 when she along with her husband Noor Hussain and Muhammad Wasim came down stairs from the office of said Patwari, Zulfiqar and Muhammad Jamil accused armed with 30-bore pistol were standing there and Muhammad Jameel raised Lalkara that the complainant party be taught a lesson for selling their land. Jameel accused fired with pistol which hit Wasim on the front of his abdomen. Zulfiqar alias Kashif fired with his pistol which hit on the back and left arm of Wasim and he fell down and succumbed to the injuries suffered by him.
11. The allegation against the appellant is that he instigated and abetted the principal accused Muhammad Jamil and Zulfiqar alias Kashif (since P.Os..), who committed the murder of Wasim deceased. Complainant Rehmat Bibi appeared as P. W.1 and she stated that she along with Mst.
Fizza, Mst. Bushra, Noor Hussain and Wasim went to Patwari to obtain Fard of the land. She further deposed that they were sitting along with Halqa Patwari Muzaffar appellant, the appellant had been in contact witliJamil and Zulfiqar Kashif accused and informed him that Wasim etc. Had come to obtain Fard of the land. On the asking of Muzaffar, accused Jamil and Zulfiqar came there and stood in the Bazar which was situated beneath of the office of the Partwari. Both Jamil and Zulfiqar accused made murderous assault upon Wasim. First of all Jamil fired with his pistol which landed on the abdomen of Wasim and due to fire shot Wasim bent slightly and thereafter Zulfiqar fired with his pistol which landed on the left shoulder of Wasim deceased on his back side. They raised hue and cry and attended Wasim. Wasim was shifted to THQ Hospital Muridke and she went to the police station and got recorded an application for the registration of case. Fizza Bibi P.W.2 and Bushra Bibi P.W.3 deposed in almost same lines.
12. Muhammad Akhtar SI P.W.10 conducted the investigation of this case and 'deposed that on 1-11- 2011 he arrested the accused Muzaffar. Rest of the accused were fugitive. On 211-2011 Muzaffar accused was sent to judicial lockup. On 6-11-2011 the telephone data of accused Muzaffar was obtained from the police computer branch. The police also produced during investigation the copy of Fard which was issued on the day of occurrence. He further deposed that he obtained the mobile phone call data of Muzaffar accused according to which a call was made to Mobile No,0300-8400756 that of Jamil accused (since PO). During cross-examination he deposed that during investigation he had not collected the call data from the Mobile company and volunteered that he collected the call data from the office of Intelligence Bureau. He can tell the cell numbers and mobile company of the accused, if his memory refreshes. He had not taken into possession the mobile or sim card of the Muzaffar appellant. He further deposed that from 10:00 a.m. To 12:30 p.m. Accused Muzaffar had not made a telephone call to co-accused Jamil and Kashif.
13. According to the prosecution the appellant was a Halqa Patwari and was in league with the main accused. He delayed the issuance of copy of Jamabandi and when the complainant and the eye-witnesses left the office of Patwari in the company of Wasim, the main culprits Muhammad Jamil and Zulfiqar alias Kashif (since P.Os.) emerged near the stairs of the office of Patwari fired at Wasim (an adopted son of the , complainant) who succumbed to the injuries suffered by him.
14. There is nothing in the FIR where the conspiracy of murder of Wasim was hatched up. The only allegation in the FIR is that the appellant was in contact with the main accused and delayed the issuance of copy of record of rights. However, the complainant while appearing as P.W.1 and alleged eye-witnesses Fizza Bibi P.W.2 and Bushra Bibi P.W.3 stated that appellant contacted Jamil and Zulfiqar accused in their presence and informed about the arrival of Wasim etc. For obtaining Fard. But in this respect no documentary proof of calls has been placed on record of this case.
Akhtar Ali SI P.W.10, the Investigating Officer admitted during cross-examination that he had not taken into possession the mobile or sim card of the appellant. From 10:00 a.m. To 12:30 noon (the duration when complainant and the PWs remained in the office of Patwari) appellant did not make a telephone call to accused Jamil and Kashif.
15. It is cardinal principle of criminal jurisprudence that a single instance causing a reasonable doubt in the mind of the Court entitles the B accused to the benefit of doubt not as a matter of grace but as a matter of right. In this context, I respectfully rely on case titled "Muhammad Akram v.
The State (2009 SCM R 230)", wherein the Hon'ble Supreme Court has held as under:-- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345), that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. 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. "
' In case of "Muhammad Luqman v. The State (PLD 1970 SC 10)" it was held as under:-- "A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case was to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught. "
16. It is the general rule in criminal cases that an accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of guilt is on the prosecution. The proof of case against an accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of guilt that is led by the prosecution to substantiate the accusation. There is no cavil with the proposition and the judicial consensus seems to be that "If the facts proved, no hypothesis consistent with the innocence of the accused can be suggested and the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case is to be treated as one of no evidence and the conviction and sentence in that case has to be quashed". Therefore, I have no hesitation in concluding that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt.
' In view of above discussion, the appeal in hand is accepted, impugned judgment dated 19-6-2013 is set aside and appellant is acquitted of the charge. He is in custody, he be released forthwith, if not required in any other case.