' The appellant, Abdul Rehman along with acquitted co-accused namely, Abdul Hamid, Allah Ditta and Amjad A.I was tried by the learned Additional Sessions Judge, Mian Channu, District Khanewal in a case FIR No. 53/2004 dated 12.03.2004 registered at Police Station Chub Milan and vide judgment dated 08.05.2008 he was convicted under Section 302(b), PPC for committing Qatl-e- Amd of Muhammad Nawaz and sentenced to life imprisonment with a compensation of Rs.
100,000/- to be paid to the legal heirs of the deceased, in default of which to further undergo six months SI. Benefit of Section 382-B,Cr.P.C. Was also extended to the accused.
2. The relevant facts for the disposal of this appeal as per complaint Ex:PB are that during the night of 12.03.2004 Bashir Ahmad, complainant/PW12 along with his wife Musarat Bibi and children went to sleep on the cots outside room of their house. His brother Muhammad Nawaz along with his wife Kishwar Sultana also went to sleep on the costs underneath the trees. At about 1 a.m. The wife of complainant suddenly woke up on a noise and saw one person armed with pistol .12-bore who could not be identified due to darkness standing there. Wife of the complainant raised alarm on which complainant and his brother woke up. Muhammad Nawaz picked up a kassi and went to the person armed with pistol with the intention to attack said person on which the armed person fired with his pistol upon Muhammad Nawaz hitting on his chest and right shoulder. On hearing the fire shot three persons also came out of the room of his brother Muhammad Nawaz and then all the four accused persons fled away in the darkness towards northern side. Muhammad Nawaz succumbed to the injuries at the spot. On hearing about the occurrence, Muhammad Afzal Inspector/SHO reached at the place of occurrence where Bashir Ahmad made complaint Ex.PB to him on which the instant case was registered.
3. The investigation of this case was entrusted to Sajid Hussain, SI who recorded the supplementary statement of the complainant wherein the complainant implicated all the four accused persons.
Thereafter, he reached at the spot and prepared the inquest report through memo. Ex.PL. He collected two crime empties through memo. Ex.PC. He secured the blood stained earth through memo. Ex.PD. He took the tube light P4 produced by Haq Nawaz, PW through memo. Ex.PF.
Thereafter, he dispatched the dead body for post-mortem examination. Saleem Ahmad, SI who was Incharge Investigation also conducted the investigation and on 25.3.2004 arrested accused, Abdur Rehman, Abdul Hamid, Allah Ditta and Amjad A.I. Abdul Rehman, accused got recovered pistol .30-bore P5 along with five bullets which were taken into possession through memo. Ex.PG.
The appellant also got recovered two bicycles P7 and P8 which were taken into possession through memo. Ex.PH.
4. After completion of investigation the challan was submitted in the trial Court. The learned trial Court framed the charge on 27.5.2005 which was denied by the accused and he claimed trial.
5. To prove guilt of the accused, the prosecution examined as many as 12 witnesses during the trial.
6. The medical evidence was furnished by Dr. Abdul Sattar, PW-1 who on 12.3.2004 at 10 a.m.
Conducted the post-mortem examination on the dead body of Muhammad Nawaz and found the following injury on her person:-- "1. Wound of entry: Fire-arm wound half cm x half cm with margins inverted going deep on the front and top of the right shoulder."
The doctor opined that the cause of death was due to hemorrhage and shock and rupture of vital organ right lung caused by Injury No. 1 resulted by fire-arm. Time between injury and death was immediate and between death and post-mortem was about ten hours.
7. Bashir Ahmad complainant was examined as PW-2. He supported the prosecution version as narrated by him in the complainant Ex.PB. Kishwar Sultana widow of Muhammad Nawaz appeared as PW-3. She also supported the prosecution story as an eyewitness of the occurrence and her statement was in line with that of the complainant. PW-4 Haq Nawaz also supported the prosecution story as an eye-witness of the occurrence. Abdul Razzaq was examined as PW-5. He was the witness of recovery of pistol .30-bore got recovered by the appellant. Muhammad Saleem, HC was examined as PW-6. He kept in safe custody the sealed parcels of blood stained earth and empties which he thereafter handed over to Abid Hussain, Constable for its onward transmission to the office of Chemical Examiner and Forensic Science Laboratory. On 31.3.2004 Saleem Ahmad, SI also handed over to him one sealed parcel of pistol 30-bore for safe custody which he handed over to Abid Hussain, Constable for its onward transmission to the office of Forensic Science Laboratory. Ghulam Farid Draftsman was examined as PW-7. He prepared the site-plan of the place of occurrence. Muhammad Idrees 344/C was examined as PW-8. He escorted the dead body of Muhammad Nawaz to the 'mortuary for post-mortem examination. PW-9 Saleem Ahmad, SI conducted the investigation of the case as mentioned above. PW-10 Muhammad Yaqoob, ASI recorded the formal FIR on receipt of complaint Ex.PB. Abid Hussain, HC/PW-11 delivered the sealed parcels of blood stained earth, pistol and empties to the offices of Chemical Examiner and Forensic Science Laboratory. PW-12 SAO Hussain, SI also partially conducted the investigation of this case.
The prosecution evidence was closed by tendering, in evidence reports of Chemical Examiner Ex.PN, Serologist Ex.PO and Forensic Science Laboratory Ex.PP.
7. After close of the prosecution evidence the statement of the accused/appellant was recorded under Section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to question "why this case against you and why the PWs have deposed against you", he stated as under: "I am innocent and have been falsely involved in this case due to my friendship with Amjad A.I co- accused whose father Murad A.I had a dispute over a tube well with the complainant party. Since I had supported Murad A.I, therefore, I have been falsely involved in this case. This is an unseen incident. No body saw it. When actual culprit were not found, we all the accused were involved in this case after four days of the occurrence. Complainant, PWs and deceased are inter se close relatives. Therefore, they have falsely deposed against us. We may kindly be acquitted."
8. The trial culminated into conviction and sentence of the appellant and acquittal of his co- accused as mentioned above. Hence this appeal.
9. The learned counsel for the appellant has argued that it was a dark night unseen occurrence, but with mala fide, after due deliberation and consultation, the appellant was falsely roped in this case; that the statements of the prosecution witnesses being full of material contradictions, almost on all the material particulars and were not believable, but the learned Trial Court failed to give any importance to the said aspect; that on the same evidence the co-accused have been acquitted whereas the appellant has been convicted and sentenced, therefore, he is also entitled for acquittal.
11. Conversely, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed this appeal and supported the impugned judgment. They further contended that learned trial Court had already taken lenient view while awarding sentence, therefore, the appellant is not entitled for acquittal.
12. I have heard the learned counsel for the parties and perused the record with their assistance.
13. The record shows that the occurrence in this case took place on 12.9.2004 at 1 a.m. Night while the crime report was registered at 4 a.m. i.e. With delay of three hours, when police reached at the spot and the occurrence was reported to the police. The distance between the place of occurrence and the Police Station is 10 miles as mentioned in the relevant column of FIR, this delay normally occurs when the police and the complainant are busy in cooking up the story of the occurrence and collecting the evidence i.e. The ocular account. It is further observed that the occurrence has taken place in the dark night in the month of March and the PW-s did not identify the accused which shows that the appellant has been involved in this case after due deliberation and consultation. Complainant and the PW-s categorically deposed that when they were sleeping at the spot, the appellant while armed with .12 bore gun, was standing there and made a fire shot, which hit on the chest of Muhammad Nawaz, deceased on his chest likewise one injury was found in the post-mortem examination of the deceased but Ex.PC shows that two empties were taken into possession from the spot which negates the version of the prosecution that one fire shot was made. The appellant and the acquitted co-accused were involved in this case in the supplementary statement. In the statement recorded under Section 342, Cr.P.C. The appellant admitted that there is enmity between father of the co-accused Amjad A.I and the complainant over some tube-well and the appellant was supporting him but this plea of the appellant was never negated by the complainant. The complainant, PW-2 stated that they seen four persons there, one of the accused was inside the Haveli and three had taken his brother Muhammad Nawaz inside the room for searching the house but in the FIR the complainant had stated that the deceased went towards the appellant with kassi and the appellant made one fire shot so to this point there is contradiction. The complainant, PW-2 stated in his statement that the appellant fired at his brother on left shoulder on lower side whereas in the FIR he had stated that the appellant fired at his right shoulder so there is also contradiction in the statement of PW-2 and the FIR. In the cross-examination PW-2 stated that it is incorrect to suggest that he had not nominated any of the accused in his statement before the police, he had nominated Amjad, accused in his statement Ex.PB which was confronted to him in which he never nominated any accused. He stated that on the statement the police had got his signatures which was not read over to him but in the cross- examination he stated that he had got recorded his statement with the police and it was read over to him and he had signed the same. He further failed to tell the period after which he got recorded his supplementary statement nominating the accused persons. PW-2 further stated that he had seen the occurrence in the light of lantern and in the light of moonlight but in the FIR no source of light was mentioned. He further stated that the place of occurrence is located in a bheni and there was no electricity but the prosecution has produced a tube light ExPF to show that they had witnessed the occurrence. The above attitude of PW-2 shows that it was a dark night and unseen occurrence and he had neither identified any accused person nor witnessed the occurrence. Thus the prosecution has failed to established its case against the appellant beyond any shadow of doubt when on the same evidence the co-accused have already been acquitted of the charge. It is by now an established proposition of law that even a single reasonable doubt is sufficient to extend benefit of doubt to the accused, whereas, the instant case is replete with circumstances which have created serious doubts about the prosecution story. In the case of Tariq Pervez v. The State (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at Page 1347, was pleased to observe as under: '5 The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
' Similarly, in the case of "Ayub Masih v. The State" (PLD 2002 SC 1048), at Page 1056, the Hon'ble Apex Court has been pleased to hold that 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. This view is also of important value under Islamic Law in the light of saying of 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'.
14. For what has been discussed above, this appeal is allowed and the conviction and sentence of the appellant awarded vide the impugned judgment dated 8.5.2005 is set aside and he is acquitted of the charge. The appellant is already on bail, therefore, his sureties are discharged.