' This single judgment shall decide the above captioned Criminal Appeal and the Revision Petition, as both are outcome of single judgment dated 28.10.2003, passed by learned Additional Sessions Judge, Sahiwal, whereby in a private complainant, filed by Saeed Qalbi, Respondent No, 1 in the above mentioned Criminal Appeal and petitioner in the above titled Criminal Revision No, 24/2004 (hereinafter referred to as the complainant), Sheikh Abdul Waheed, appellant in Criminal Appeal and Respondent No, 1 in the revision petition (hereinafter referred to as the appellant) was convicted under Section 302(b), PPC and sentenced to imprisonment for life, with compensation of Rs, 1,00,000/-, payable to the legal heirs of the deceased, otherwise to further undergo simple imprisonment for six months, with benefit of Section 382-B, Cr.P.C.
2. The precise facts are that the complainant moved an application (Ex.PA/1) before the SHO of Police Station City Sahiwal, District Sahiwal, contending therein that on 12.1.1.2001, he alongwith his brother Daud Saleemi (deceased), father Muhammad Ashraf (given up PW) and Muhammad Zahid (PW-3), to purchase fertilizer was going to Sahiwal city on a tractor trolley Registration No, SLB-2724; at about 4.15 PM, when they were passing in front of the shop of Sheikh Munir Ahmad (co- accused since acquitted), he asked his son Sheikh Waheed (appellant) that Daud Saleemi (deceased) was going on a tractor and be taught a taste of not paying money and disgracing them; Sheikh Waheed (appellant) while waiving a pistol and Sheikh Munir (co-accused since acquitted) empty handed, started running behind them (complainant party), whereupon, the complainant tried to accelerate speed of the tractor, but due to rush, failed; in the meanwhile, when they (complainant party) reached at the road, situated in front of judicial colony, the appellant and his co-accused (since acquitted) reached near, when the acquitted accused again raised lalkara' that Daud (deceased) should not go alive and be killed by firing, hence the deceased jumped down the tractor and started running towards western direction; when he ran a few feet and in order to save himself was about to enter the gate of the house (kothi) known as 'Rana House', the appellant with his pistol fired at him and he became injured and died then and there; the occurrence was witnessed by the complainant (PW-2), his father Muhammad Ashraf and Muhammad Zahid (PW-3) and the accused fled towards their house; the motive was that about 8/9 months ago, the deceased borrowed cotton sacks (bardana) from Sheikh Munir (co- accused since acquitted) and had to pay Rs, 8,400/-, but as the crop was not good, hence could not pay the amount, for which an altercation between Sheikh Munir and the deceased had taken place, due to which the accused, with common intention had committed `qatal' of Daud Saleemi.
On the basis of the above mentioned application/complaint, the case was registered through FIR (Ex.PA) and investigated, during which the case was found to be false, hence recommended to be cancelled, whereupon the complainant filed a private complaint (Ex.PA/2) against the appellant, Sheikh Munir Ahmad (since acquitted), Talha Muhammad DSP, Muhammad Rasheed SI and Imdad Hussain, SI. In the said private complaint (Ex.PA/2), the above mentioned contentions made in the complaint (Ex.PA/1) were reiterated, but with addition that during investigation, unjustified favour was extended to the appellant and his co-accused (since acquitted) and the case was spoiled.
3. In the private complaint, the appellant and his father Sheikh Munir Ahmad (co-accused since acquitted) were summoned, to face the trial, whereas names of the above said Police officials were deleted. Both were formally charge sheeted on 2.8.2002. They pleaded not guilty and claimed the trial, hence the prosecution evidence was summoned and recorded. As many as nine witnesses were recorded as prosecution witnesses, two as CWs and two as DWs.
' The gist of the evidence led by important witnesses was as under:
(i) PW-2 Saeed Qalbi (complainant) had narrated almost the same facts as were stated by him in the private complaint (Ex. PA/2).
(ii) PW-3 Muhammad Zahid, an alleged eye-witness of the occurrence stated about firing made by the appellant at Daud Sateemi, which resulted into his death.
(iii) PW-4 Dr. Waseem Azhar conducted post-mortem examination of dead body of Daud Saleemi (deceased) on 13.11.2001 and prepared the reports (Ex, PB & Ex. PB/1). During the said examination, a fire shot entry wound at front side of left lower chest and exit wound at back of right lower chest were noted. According to the doctor, the above said injuries were anti mortem in nature, sufficient to cause death and that the death had occurred within half an hour of the receipt of the injuries.
(iv) PW-9 Muhammad Saeed Akhtar, Draftsman drafted scaled site-plans (Ex.PD & Ex.PD/1) of the spot and handed over to the Investigating Officer.
(v) CW-1 Abdul Ghaffar attested the memo. (Ex.CW'1/1), through which .30 bore pistol recovered from the deceased was taken into possession by the Investigating Officer.
(vi) CW-2 Imdad Hussain, SI had investigated the case, during which carried on the proceedings and prepared the documents fully detailed in his statement.
4. After examination of the PWs and CWs, the prosecution case was closed, whereafter the appellant was examined under Section 342, Cr.P.C., during which the questions arising out of the evidence available on the record were put to him and he denied almost all such questions, while pleading his innocence and false involvement, in the case with mala fide. The question "Why this case against you and-why the PWs have deposed against you?" was replied by him in the following words: "It is a false case. All the PWs are closely related interse and also with the deceased. They have made false statements against me due to their ill-will with me. The PWs were not present at the spot. The deceased was all alone at the time of occurrence when he was hit by the fire. The PWs learnt about the occurrence much late in the night and thereafter they visited DHQ Hospital, Sahiwal, where the dead body of the deceased was lying and thereafter they booked a false story and built up a false case against us. "
' In reply to the question "Have you anything else to say?", he made the following statement: "I am innocent. This case was investigated by many police officers including DSP. I and my co- accused were found not involved in the murder of the deceased, rather it came to light during investigation that Daud Saleemi deceased entered in the High Carrier Commercial College situated on the Katchery Road, Sahiwal which is adjacent to Rana House, the residence of Rana Muhammad Aslam and then the deceased went on the roof top of Rana House where from he jumped into the Courtyard of Rana House and then came to the veranda of the same house where he was challenged by Zahid Hussain s/o Faqir Hussain caste Rajput, Chowkidar of Rana House, ' whereupon the deceased who was having a pistol with him fired at Zahid Hussain Chowkidar who while exercising the right of self defence of his person fired at the deceased taking him a dacoit who fell injured in the said veranda and died there. The police after thorough investigation of this case found me and my co-accused not involved in the murder of the deceased Daud Saleemi and cancelled the case being false and also recommended action against the complainant u/S. 182, PPC."
' The appellant opted to lead evidence in his defence, but refused to make statement under Section 340(2), Cr.P.C. In defence, Rana Muhammad Aslam and Zahid Mehmood had got recorded statements as DW-1 and DW-2 respectively. The DW-1 had deposed that in fact, the deceased entered into a house adjacent to his house for the purpose of an offence, from where he jumped into his house and apprehended by his Chowkidar Zahid Mehmood (DW-2) and when the deceased tried to make firing, DW-2 made two fire shots, which hit the deceased and he fell down in veranda of the house. Zahid Mehmood (DW-2) during examination-in-chief stated about lying of a dead body in veranda of the house of Rana Aslam (DW-1), where he was Chowkidar. This witness was declared hostile and cross-examined by the defence, during which he admitted about making of statements before the Police.
5. On completion of all the above mentioned proceedings, the learned trial Court had passed the impugned judgment, in the above mentioned terms. Consequently, the matters in hand.
6. The learned counsel for the appellant has argued that the appellant is innocent and was falsely involved in the case with mala fide, while concocting a false and frivolous story; that during investigation, when the Police arrived at the conclusion that the facts and circumstances narrated in the FIR were false and incorrect, accordingly recommended it to be cancelled, whereupon the complainant came forward with- a private complaint, wherein stated false facts and circumstances; that even during the trial, the facts narrated in the complaint were not proved or substantiated, rather the conclusion derived by the Police was established, but the learned trial Court had erred in not considering the actual facts & circumstances and the material available on the record and passed the impugned judgment, which being result of misreading and non- reading of the evidence is not sustainable in the eye of law and is liable to be set aside.
7. Conversely, the learned Additional Prosecutor General, assisted by the learned counsel for the complainant, has not, only supported the impugned judgment towards conviction of the appellant, but have also requested for acceptance of the revision and award of major penalty to the appellant.
8. Arguments of all the sides have been heard and the record has also been perused.
9. In this case, there are two versions. One is narrated by Saeed Qalbi, complainant (PW-2) in his above mentioned application (Ex.PA/1), which resulted into registration of the above said FIR (Ex.PA), whereas the other is the above mentioned, which came into lime light during investigation.
10. The stance of the complainant (PW-2) and Muhammad Zahid (PW-3) was that Daud Saleemi (deceased) was fired by , the appellant from his backside and done to death, at the gate of the house ,Rana House) belonging to Rana Muhammad Aslam (DW-1). During post-mortem examination, it was found that the deceased had received fire shot injury from front side and the same fact was established on the record through post-mortem report (Ex.PB) and pictorial diagram (Ex.PB/1), prepared by Dr. Waseem Azhar (PW-4). It was an admitted tact that the dead body was found lying in the veranda of the above said house and that a pistol was also lying near the dead body. The distance between the main gate of the house and the veranda, where dead body was lying, was measured by Muhammad Saeed Draftsman (PW-9) and became 142 feet.
During cross-examination of PW-9, it also came on the record that from the spot, an empty fired by the deceased, by .30 bore pistol was also recovered. The above mentioned facts had negated the above mentioned version of the complainant (PW-2) and the above named PW-3 that the deceased was fired by the appellant from his backside, at the main gate of the house of Rana Muhammad Aslam.
11. The matter was repeatedly investigated, when it revealed that the story of the complainant was not correct as the deseased entered into the house situated adjacent to Rana House, from where he jumped into Rana House, having a pistol and intercepted by Chowkidar Zahid Mehmood (DW-2) and also fired at and consequently, the deceased fell down in the veranda of the house. Due to the above said reason, the FIR was got cancelled by the Police. Imdad Hussain Inspector, who made his statement as CW-1 had categorically denied the move mentioned story of the complainant, rather had supported the above said conclusion and as such exonerated the appellant from commission of the alleged occurrence.
12. The stance of the complainant (PW-2) was that the deceased expired then and there, but it was established on the record that after receipt of fire shot injury, the deceased remained alive for about half an hour, hence the behaviour of the complainant and PW-3, v hereby they did not make any struggle to save the injured, rather attempted to get the case registered, was quite unnatural and not appealing to a prudent mind. The said fact had suggested that the complainant and the witnesses were not available at the spot.
13. On one hand, status of the alleged story of the complainant was as mentioned above, whereas on the other hand, Rana Muhammad Aslam, the owner of the house, where the dead body was lying, had appeared in the witness box as DW-1 and narrated a detailed story to the effect that the deceased, jumped into his house from the neighboring house, having a pistol in his hand and when seen by his Chowkidar (DW-2), was fired at, which resulted into his death at the spot, hence the story of the complainant was negated. Not only the above named DW-1 had contended as mentioned above, but the Chowkidar namely Zahid Mehmood (DW-2), who although during examination-in-chief had tried to suppress the real facts, but during cross-examination had admitted that he during investigation had made statements before the Police and got the, same exhibited as Ex.DW-21A, during which the above mentioned stance of DW-1 was supported.
14. Admittedly, nothing was recovered from the appellant and the learned trial. Court in the impugned judgment had also held the alleged motive to be not proved.
15, All the above mentioned facts and circumstances, to my mind, are sufficient to hold the alleged prosecution story and charge against; the appellant highly doubtful. It is well-settled principle of law that if a simple circumstance creates reasonable doubt in a prudent mind about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right. In this regard, reference may be made to the case "Tariq Pervaiz vs. The State" (1995 SCM R 1345). This view has further been fortified in the case of "Ayub Masih vs. The State" (PLD 2002 SC 1048), whereby it has been held that while dealing with a criminal case, the golden principle of law "it is better that ten guilty persons be acquitted, rather than one innocent person be convicted" should always be kept in mind. Relevant portion of the case of Ayub Masih (Supra) reads as under: "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".
16. For what has been discussed above, the Criminal Appeal No, 835 of 2003 is allowed, the impugned judgment is set aside and the appellant (Sheikh Abdul Waheed) is acquitted of the charge, while extending him the benefit of doubt. He by way of suspension of his sentence is on bail, hence his bail bonds are discharged. The disposal of the case property shall be as directed in the impugned judgment.
17. The Criminal. Revision No, 24/2004 filed by the complainant (Saeed Qalbi) for the foregoing reasons, is without substance, hence dismissed.