' Dehran (appellant), Alain Ali Khan, Muhammad Akram, Muhammad Ashraf, Mst. Razia Bibi and Mst.
Sajida Bibi, accused of case F.I.R. No, 178/2011 dated 29.06.2011, under Sections 302, 148, 149, 109, P.P.C., registered at Police Station City Vehari, were tried by the learned Additional Sessions Judge, Vehari. At the conclusion of the trial, vide judgment dated 30.03.2013, learned trial Court acquitted of the charges Muhammad Alam Khan, Muhammad Akram, Muhammad Ashraf Mst. Razia Bibi and, Mst. Sajida Bibi, whereas convicted and sentenced Dehran as under:--
(i) Under Section 302(b), P.P.C. To imprisonment for life with direction to pay Rs,50,000./- as compensation to the legal heirs of deceased Muhammad Ajmal under Section 544-A, Cr.P. C. And in case of default in payment of the same to undergo S.I.
For six months;
(ii) under Section 337-A(i), P.P.C. To imprisonment for six months for causing injuries to Charagh injured PW;
(iii) under Section 337-F(i), P.P.C. To six months imprisonment. All the sentences were to run concurrently. Benefit of Section 382-B, Cr.P.C. Was also extended to him.
' The convict has lodged the instant appeal against his convictions and sentences.
2. Prosecution story, in brief, as narrated by Muhammad Aslam Khan complainant in the F.I.R (Exh.PB) registered, on 29.06.2011 on the basis of his complaint Exh.PG. Was that two days before the present occurrence there was a dispute of money between Muhammad Akram and Muhammad Ashraf regarding which a Punchayat was convened at the shop of Tahir Sharif Gujjar in Gallah Mandi, Vehari . On 29.06.2011 at about 11.45 A:M.; that Dehran (appellant) along with acquitted co- accused emerged there and grappled with complainant's son Muhammad Ajmal; that Dehran caught him from his hair and made him fall on the ground; that the appellant and other co- accused caused him injuries with brick-blows as well as kick blows and damaged his motorcycle; that Muhammad Charagh, Naseer Ahmad, Muhammad Shahbaz. Stepped forward, for the rescue of Ajmal whereupon Muhammad Charagh was also inflicted injury on his forehead; that Muhammad Ajmal succumbed to the injuries in the Hospital. Motive as alleged in the F.I.R, was dispute of money.
3. After completion of investigation and submission of challan, charge was framed by the learned trial Court on 03.12.2011, under Sections 302, 148, 149, 337-A(i), 337-F(i) and 427, P.P.C. To which the appellant pleaded not guilty and claimed to be tried.
4. In order to prove the case against the appellant, prosecution examined nine witnesses.
' Shaukat Muneer, S.I. (PW-8) Investigating Officer recorded the statement Exh.PG of Muhammad Aslam complainant on 29.06.2011 and sent the same to the Police Station for recording of formal F.I.R. Thereafter, he prepared the injury statement of Muhammad Charagh injured, the prosecution witness. He inspected the place of occurrence. He secured the last-worn clothes of the deceased i. e. Qameez (P.3), Shalwar (P.4 and String (P.5) vide memo. Exh.PK. He prepared the inquest report Exh.P-E of .The deceased. He arrested Dehran appellant on 17.08.2011, who on 22.08.2011 got recovered brick (P.2) which was secured vide memo. Exh.PM. He recorded the statements of the P.Ws under Section 161, Cr.P.C. And after completion of investigation submitted challan in the Court.
' Dr. Muhammad Aslam, Medical Officer, DHQ Hospital, Vehari (PW-3) on 29.06.2011 conducted post- mortem examination on the dead-body of Muhammad Ajmal and observed three injuries on his body. In his opinion, death had caused due to asphyxia and injury to vital organs i,e, heart, and due to blunt injury to left chest on account of Injury No, 2 which was ante-mortem caused with blunt weapon and was sufficient to cause death in ordinary course of nature. Exh.PC was correct carbon copy of his original post-mortem report, which was in his hand and bore his signatures. Similarly Exh.PC/1 diagram showing location of the injuries was also in his hand and oore his- signatures. He also endorsed injury statement Exh.PD and inquest report Exh.PE.
' Dr. Abdul Qayyum Khan SMO, DHQ Hospital Vehari (PW-1) medically examined Charagh injured PW on 29.06.2011 and observed three injuries on his person. Exh.PA was correct carbon copy of the original M.L.R, which was in his hand and bore his signatures. Exh.PA/1 was diagram showing locale 'of injuries which also was in his hand and bore his signatures.
' Mehdi Hassan, A.S.I. (PW-2) recorded formal F.LR Exh.PB on the basis of written complaint. Raja Muhammad Iqbal, Draftsman (PW-4) prepared the scaled site-plan (Exh PF and Exh.PF '1-2) of the place of occurrence on 12.07.2011 on the directions of police and pointation of the witnesses.
Muhammad Aslam Khan, the complainant (PW-5), Naseer .Ahmad (PW-6) and Muhammad Charagh injured (PW7) furnished the ocular account of the occurrence. Rang Ali T-ASI (PW-9) escorted the dead-body of Muhammad Ajmal to the mortuary of D.H.Q. Hospital Vehari for post- mortem examination. Rest of the witnesses are of formal nature, therefore, they need not be discussed.
' Learned Assistant District Public Prosecutor gave up Shahbaz Ahmad (P.W.) being unnecessary and closed the prosecution evidence.
5. After closure of the prosecution evidence, Dehran appellant made his statement under Section 342, Cr.P.C. Wherein he denied he prosecutions allegations and in answer to the question "Why this case against you and why the PWs have deposed against you" he replied as under:-- "PWs are interested interse and inimical towards me. Complainant and PWs intentionally made improvements and -changed their version. No occurrence of fight had taken place on 29.6.2011. It is incorrect that on 29.6.2011 a Punchayat was fixed, in Ga!Lah Mandi Vehari in connection with to resolve a dispute between Muhammad Ashraf, my brother Muhammad Akram and Muhammad Aslam complainant. Our father Muhammad Aslam complainant did not reach in Gallah Mandi Vehari. My brother Muhammad Ajmal (deceased) boarded on motorcycle for taking Muhammad Aslam complainant, for the purpose of participation in the Punchayat but due to highspeed, the motorcycle struck against electricity pole and damage caused by bricks. No one hit any one nor fight had taken place. PW-6 Naseer Ahmad and PW-7 Charagh due to their own grudge misguided the complainant Muhammad Aslam. I am by profession a ma. Mi. On 29.6.2011 under the supervision of Aslam contractor was working in the Kothi of one Sunny Gujjar. My father Bashir Ahmad supported the version of Muhammad Akram due to that complainant party falsely involved me in this case. Charagh PW is father-in-law of my sister. My sister Azra Bashir filed family suit against Muhamm'ad Shahbaz son of Charagh Din due to that they are inimical to me and my family. My father is a 70-years old man and a paralyzed person. I am only adult male member of my family and bread-earner."
' The appellant neither opted to make his statement on oath under Section 340(2), Cr.P.C. Nor produced any defence evidence.
6. Learned counsel for the appellant contends, that all the prosecution witnesses were related inter-se/the deceased; that the occurrence took place during a punchayat even then no independent witness was cited by the prosecution; that the prosecution witnesses made dishonest improvements to implicate the appellant; that the alleged recovery effected from the appellant was just a piece of brick which was not blood stained and thus no reliance can be placed on it; that the co-accused of the appellant with similar role have been acquitted by the learned trial Court on the same set of evidence whereas no independent corroboration is forthcoming on the record qua the guilt of the appellant; that the case of prosecution is replete with doubts and the benefit of doubt is always resolved in favor of the accused.
7. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant while supporting the impugned judgment had opposed the contentions raised by the learned counsel for the appellant.
8. I have considered the points raised at the bar and have gone through the record.
9. A careful examination of the record reveals that the parties were closely related to each other.
The appellant is the real "Chachazad" of the deceased. The occurrence took place at 11:45 A.M. The place of occurrence is at a distance of two furlong from the Police Station but the F.I.R. Was registered with unexplained delay of about two hours. The post-mortem of the deceased was also conducted with the delay of about seven hours. No independent witness was cited by the prosecution. Muhammad Charagh PW was "Tayazad" of the complainant, Shahbaz was son of said Muhammad Charagh and Naseer Ahmad was "Damaad" of the complainant. Muhammad Charagh PW was resident of Sadiqabad. Raheem Yar Khan and Naseer Ahmad PW was resident of Khanewal. They could not justify their presence at the time and place of occurrence. Thus, the eye- witnesses could be held to be chance witnesses as at the fateful time they were residing hundred miles away from the place of occurrence. By know it is settled that a chance witness is the one who claims that he was Present on the crime scene at the fateful time albeit his presence there was a sheer chance and in the ordinary course of business, he was not supposed to be there but at the place where he lives, carried on business. It is in this context that the evidence of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish their presence at the crime scene. In normal course the presumption of law would operate about his absence from the spot.
' It is settled law that if majority of the accused nominated in a case is acquitted on account of false implication by the eye-witnesses, then, allegations qua remaining accused on the basis of same set of evidence cannot be sustained without strong/independent corroboration, thus, the case would be examined on the touch stone of principle of law laid down by their lordships in the cases of "Muhammad Akram v. The State" (2012 SCM R 440), "Mir, Muhammad alias Miro u. The State" (2009 SCM R 1188,) and "Ghulam Sikandar and another v. Mamaraz Khan and others" (PLD 1985 SC 11).
' No specific role was attributed to the appellant in the F.LR as well as in the statements of the witnesses recorded under Section 161, Cr.P.C. He was nominated with generalized role of inflicting kick blows to the deceased. Almost all the accused were attributed kick blows to the deceased but he sustained only three injuries. Injury No, 2 was not specifically attributed to the appellant. In the F.I.R. Injury No, 3 is attributed to the appellant and at trial, the said injury was assigned to Mst. Razia Bibi, the mother of the appellant. The Medical Officer alsc admitted in his statement that Injury Nos.
1 to 3 sustained by the deceased could also be result of a fall. The witnesses have made dishonest improvements in their statements.
' The appellant, in this case, was arrested on 17.08.2011 and got recovered brick. (P.1) from Ghala Mandi besides electric-pole. It was a common piece of brick. It was not blood-stained, thus, was not dispatched to the office of public analyst. Recovery was also effected after about 33 days of the occurrence, The Honorable Supreme Court of Pakistan in the case of "Basharat and-another v.
The State" (1995 SCMFI 1735) disbelieved the evidence of blood stained "Chhuri" which was allegedly recovered from the accused after ten days from the occurrence. Relevant excerpt of the said judgment at Page No, 1739 is reproduced here under for ready reference:
11. The occurrence took place on 20.4.1988. Basharat appellant was arrested on 28.4.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.4.1988. It is not believable that he would have kept blood-stained Chhuri, intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it..."
Reliance can also he placed on "Muhammad Jamil v. Muhammad Akram and others" (2009 SCM R 120), wherein at page .123, it was observed as under: "... It is borne out from the record that the alleged recovery of blood-stained Chhuri has effected after about one month of the occurrence from an open plot which was not in exclusive possession of the respondent and was accessible to all. It was also not likely that the blood would not disintegrate meanwhile. So the reasons advanced by the learned Judge in Chambers are not arbitrary or fanciful for not believing the recovery...."
10. Allegedly, the appellant caused damage to the motorbike then being driven by the deceased but it was not recovered from the appellant rather was produced by Muhammad Aslam during the course of investigation. It was also in 'the evidence that the punchayat was convened in_the.Shop of Tahir Sharif and in the said market there was soling in the veranda/cemented floor, thus, possibility of falling the deceased on the said hard surface can also not be ruled out. The learned trial Court vide its impugned judgment acquitted co-accused of the appellant on the same set of evidence.
' Unfortunately, in the present case, the prosecution evidence including Muhammad Aslam, Naseer Ahmad and Muhammad Charagh do not find any corroboration from any of the material piece of evidence available on record rather they have contradicted each other on some material aspects.
They were duly confronted with their previous statements to establiph the improvements made by them at trial to implicate the appellant with the titled occurrence.
11. The prosecution is under duty to prove the charge against the accused but, in the instant case, neither proved motive; nor implicated the present appellant with cogent/convincing evidence makes the story of prosecution highly doubtful. By now it is settled law that benefit of even a single doubt must be resolved in favor of the acetified and his conviction cannot be sustained on doubtful evidence adduced by the prosecution. 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."
' In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the Hon'ble Apex Court has been pleased to observe as under: "....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."
' The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram u. The State" (2009 SCM R 230), at page 236, observed as under: "13. ...It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favor 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 SCM R 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."
12' In the light of above discussion, the prosecution has miserably failed to prove the charge against the appellant. Resultant, while allowing the Criminal Appeal No, 195 of 2013 filed by Dehran, the appellant, I set aside his convictions and sentences recorded by the learned trial Court and acquit him of the charge. He is in custody, be set free forthwith if not required in any other criminal case.