' Challenge in this appeal is to the judgment dated 6.6.2008 passed by the learned Addl. Sessions Judge, Jampur, District Rajanpur in case F.I.R No, 379, dated 18.08.2004, under Section 302/34, PPC registered at Police Station Jampur whereby the appellant, Hamced was convicted under Section 302(b, PPC for committing Qatl-e-Arnd of Manzoor Hussain and sentenced to life imprisonment as Ta'zir with a compensation of Rs, 50,000/- to be paid to the legal heirs of the deceased under Section 544-A, Cr.P.C., in default of which to further undergo one month SI. Benefit of Section 382-B, Cr.P.C. Was, however, extended to the accused.
2. The relevant facts of the case as per complaint Ex.PA are that Nazar Hassan, complainant was a cultivator. On the day of occurrence, he along with Ranjha, PW and Manzoor Hussain, brother were irrigating the fields of cotton crops through tubewell. The appellant, Hameed and co-accused Afzal (since P.O.) armed with pistols attracted there. Afzal accused raised lalkara that they will not spare them and fired but luckily the same was missed. Hameed, appellant fired with his pistol which landed on the back of Manzoor Hussain, brother of the complainant. Initially the FIR was registered under Section 324/34, PPC but later on Manzoor Hussain succumbed to the injury on which Section 302, PPC was added on 22.08.2004. The motive of the occurrence mentioned in the complaint Ex.PA was that 12/13 years ago, Manzoor Hussain, deceased abducted Mst. Anwar Mai daughter of Sehra Khan who was still residing in the house of Manzoor Hussain, deceased. Said Mst. Anwar Mai was maternal cousin of Muhammad Afzal accused.
3. The investigation of this case was conducted by Riaz Hussain, SI, PW-7 and after completion of investigation the challan under Section 173, Cr.P.C. Was submitted in the trial Court. The learned trial Court framed the charge on 18.05.2006 which was denied by the accused and he claimed trial.
4. To prove guilt of the accused, the prosecution examined as many as 10 witnesses during the trial.
Nazar Hussain, complainant of the case was examined as PW-1. He supported the prosecution story as narrated by him in the complaint Ex.PA. Ranjha, PW-2 was an eyewitness of the occurrence.
He also supported the prosecution story and his statement was in line with that of the complainant.
PW-3 Karam Hussain identified the dead body of the deceased at the time of postmortem examination. PW-4 Dr. Taimoor Mirza on 23.08.2004 at 3.30 p.m. Conducted the post-mortem examination on the dead body of Manzoor Hussain and found the following injury on his body: "A fire-arm wound 2 cm x 2 cm circular and inverted margins. Margins were looking infected x going deep situated on the centre of the back in the middle line. "
' In the opinion of the doctor all the injuries were ante-mortem and Injury No, 1 was caused by fire- arm. Death occurred due to secondary infection as a result of injury to spinal cord and stomach consequence upon Injury No, 1 which was sufficient to cause death in ordinary course of nature.
' Probable time that elapsed between injury and death was about four days while between death and post-mortem examination was about 16 hours.
' PW-5 Dr. Muhammad Tariq Saleem Ansari on 18.08.2004 medically examined Manzoor Hussain in injured condition and found the following injury on his person: "A fire-arm wound 2 cm x 1 1/2 cm x going deep circular in shape with irregular and inverted margins situated on the right side of the mid of back, just 1 1/2 cm lateral to the thoracic spine.
Advise X-Ray thoracic spine and lumbo sacral region."
' Muhammad Akhtar, SI was examined as PW-6. He deposed that on 18.08.2004 he received complaint Ex.PA on the basis of which he recorded the formal F.I.R Ex.PA/1. Riaz Hussain, SI was examined as PW-7. He was Investigating Officer of this case. He deposed that on 18.08.2004 he was present in the area of Kotla Mughlan when Nazar Hussain, complainant appeared before him at 9.30 p.m. Who got recorded his statement Ex.PA which was sent to the police station for registration of the formal F.I.R. Thereafter, he prepared the injury statement Ex.PG/1 of Manzoor Hussain. He recorded the statement of Manzoor Hussain (deceased) in injured condition through memo. Ex.PH.
On the next day he inspected the place of occurrence and collected blood-stained earth through memo: Ex.PB. He recorded the statements of the PWs under Section 161, Cr.P.C. Thereafter, on the death of Manzoor Hussain he amended the offence under Section 302, PPC. He prepared the inquest report of the deceased through memo. Ex.PF. After post-mortem examination, Muhammad Saleem Constable produced before I.O. Sealed parcel containing pellets given to him by the medical officer which was taken into possession through memo. Ex.PD. On 22.9.2004 he arregted the appellant. On 23.9.2004 the appellant while in police custody led to the recovery of pistol 12- bore from a deserted Khola which was taken into possession through memo. Ex.PC. On 3.11.2004 he also arrested Muhammad Afzal accused. Muhammad Iqbal Patwari appeared as PW-8. He prepared the scaled site-plan of the place of occurrence through memos Ex.PL. Muhammad Saleem 322/HC appeared as PW-9. He delivered the sealed parcel of blood-stained earth to the office of Chemical Examiner on 06.10.2004. PW-10 Muhammad Sadiq 329/HC kept the sealed parcel of bloodstained earth in the police malkhana in safe custody and thereafter on 05.10.2005 handed over the same to Muhammad Saleem Constable for its onward transmission to the office of Chemical Examiner.
5. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Ex.PM and that of Serologist Ex.PN.
6. 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. Actually it is a blind murder, committed by some unknown assailant, in the darkness of night when the deceased was alone present at the place of occurrence, witnessed by none.
After hearing the fire shots, servants of one Imtiaz Khan Changwani reached at the place of occurrence and saw the deceased Manzoor Ahmad lying there in injured condition who informed the complainant party who reached at the place of occurrence and the injured was shifted to Hospital. I have been falsely involved in this case by the complainant party on the basis of suspicion. Nazar Hussain complainant along with Ranjha PW (given up) and Mst. Anwar Mai, widow of Manzoor Ahmad deceased also submitted their affidavits mentioning therein that Muhammad Afzal accused is innocent and they have nominated me in this case on the basis of suspicion PWs have falsely deposed against me on the basis of suspicion."
' The appellant got produced Rahim Bakhsh as DW-1 who was father-in-law of the complainant. He stated that at the time of occurrence he was present in the house of Nazar Hussain, complainant when one Latif (DW-2) Babbar came at the house of Nazar Hussain who informed that Manzoor Ahmad had received fire-arm injuries by unknown persons. They came at the place of occurrence where Manzoor Ahmad was lying in injured condition. Said Latif also told them that when the fire was made, he was only present near the place of occurrence irrigating his own land. Thereafter, DW-1 and the complainant shifted the injured to hospital. DW-1 further stated that Hameed, appellant and Afzal were innocent. The appellant also produced Latif as DW-2 who deposed that at the time of occurrence he was irrigating his land when he heard the fire shot from western side.
When he reached at the spot he saw that Manzoor Ahmad, deceased was lying there in injured condition having fire injury and none else was present there. The deceased also told him that he was fired upon by some unknown person.
7. The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
8. The learned counsel for the appellant has argued that it was an 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 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, therefore, the appellant is entitled for acquittal.
9. Conversely, the learned Deputy Prosecutor General opposed this appeal and supported the impugned judgment. He further contended that learned trial Court had already taken unwarranted lenient view while awarding sentence, therefore, prayed for dismissal of the instant appeal.
10. I have heard the learned counsel for the parties and perused the record with their able assistance.
11. Admittedly, the occurrence took place after the Maghrab prayers when the complainant party was irrigating their land and there was no source of light there. According to the statement of the complainant, he and Ranjha PW-2 along with Manzoor Ahmad (deceased) were irrigating their cotton fields when the appellant and Afzal, co-accused came there and Afzal raised lalkara upon which Hameed, appellant fired at the deceased but Rahim Bakhsh father-in-law of the complainant while appearing as DW-1 stated that at the time of occurrence at about Maghrib-Isha time he was present in the house of Nazar Hussain, complainant when one Latif Babbar (DW-2) came at the house of the complainant who informed them that Manzoor Ahmad had received fire- arm injuries by unknown persons. Thereafter, he along with complainant and said Latif Babbar came at the place of occurrence where Manzoor Ahmad was lying in injured condition. Likewise Latif, DW-2 in his statement stated that on the day of occurrence he was irrigating his land when he heard a fireshot from western side. He rushed towards the place of occurrence and saw Manzoor Ahmad was lying there in injured condition having fire-arm injury. The injured told him that he was fired upon by some unknown person. Thereafter, he went to the house of Manzoor Hussain where Rahim Bakhsh father-in-law of the complainant (DW-1) was also present there. Then all of them came to the place of occurrence. The 'statements of DW-1 and DW-2 clearly show that no other person was present at the place of occurrence, it was an unseen occurrence and no PW was present there at the time of occurrence. This fact gets further support from the statement of Riaz Hussain, SI (PW-7) who admitted in his cross-examination that when he recorded the statements of the complainant Ex.PA as well as of injured Ex.PH at the spot there was no other PW present there, therefore, the presence of Ranjha, PW-2 is doubtful. The occurrence took place after Maghrab prayers and the fire shot hit the deceased from back side, therefore, the identification of the assailants was also doubtful in absence of the PWs. The motive alleged for the occurrence is that the deceased had abducted Mst. Anwar Mai the maternal cousin of Afzal accused who was living happily in the house of deceased due to this grudge the appellant and Afzal committed the offence but it is very strange that why the accused committed this murder and choose this particular time after a long span of 12/13 years. The complainant set the motive in his complaint Ex.PA that 12/13 years ago deceased, Manzoor Hussain abducted Mst. Anwar Mai daughter of Sehra Khan who is still residing in the house of Manzoor Hussain, deceased and is the maternal cousin of Afzal, co-accused who has been exonerated by the complainant party and the role of the co- accused, Afzal is that first he fired at the deceased but missed and this motive was not proved by any cogent reason and after that the prosecution introduced new motive. The complainant in his cross-examination introduced a new theory of the motive that there was no other dispute between Abdul Hameed, accused and Manzoor Hussain, deceased except he was having suspicion of illicit relation of his wife with Manzoor Hussain, deceased and he also admitted in his cross-examination that he had guessed himself about the suspicion of above said illicit relationship and both the motives were also not proved by any solid evidence, therefore, the motive alleged for the occurrence seems to be improbable as the same was not alleged against the appellant, rather it was alleged against Afzal co-accused who is still proclaimed offender and in whose favour Mst.
Anwar Mai and Ranjha, PW-2 have sworn the affidavits declaring him innocent. Beside above, the perusal of the exhibits further reveals that there are so many padding in it. Recovery of weapon of offence is very highly doubtful. PW-1 admitted in his cross-examination that he along with PWs started from the police post for recovery purpose at about 12.00 of morning of official Dale whereas PW-2, Ranjha admitted in his cross-examination that they reached at the police post, Kot Mughlan at about 8.00 a.m. They started from the police post for recovery of weapon of offence along with the police just after 4/5 minutes of their reaching on official Dela and reached at the place of recovery within 10/15 minutes, therefore, the recovery also not proved by the prosecution. It is also a very important fact that the complainant, PW1 admitted that on seeing the accused, the deceased tried to run but he was fired at by the accused. Whereas PW-2, Ranjha totally denied this version of the complainant. He stated that the deceased did not run.
' He admitted that at the time of receipt of fireshot, the deceased was facing towards west-south and the deceased did not run but when he turned his face, he was fired at. There is another aspect of the case that the deceased was irrigating the land according to the story of the prosecution but according to the doctor there was no mud on the clothes as well as feet of the deceased which is a clear contradiction of the prosecution story. According to the version of the prosecution, the statement of the deceased Ex.PH was recorded by the I.O. At the hospital but there was no attestation of the doctor or any of the PWs or any independent person. In the case of Mst. Zahida Bibi vs. The State (PLD 2006 SC 255) it has been held that statement of the deceased was not recorded by the Investigating Officer in hospital in presence of the Doctor and further neither any member of the hospital staff was associated at the time of recording her statement, nor the same was not verified by any official of the hospital that the statement was actually made by the deceased--Status of such statement would be of a statement under S. 161, Cr.P.C. And not of a `dying declaration' of the deceased. In the case of Sultanat Khan vs. The State (2014 P.Cr.LJ 715), the Peshawar High Court observed as under: "No doubt, a statement of a deceased person in the form of an F.I.R can be treated as a dying declaration which, per se, is good enough under Article 46 of Qanun-e-Shahadat Order, 1984, for sustaining conviction on a capital charge, however, to make it basis for conviction, the prosecution is required to establish, firstly, that the dying man was in full senses, conscious and alert to surrounding, as fully oriented in space and time and was able to make a coherent statement, secondly, the dying declaration rings true and is sound in substance to be relied upon, thirdly, it is free from promptness given by the outside quarter and, fourthly, the doctor present at the occasion shall give a fitness certificate about the condition of the dying man."
' In view of above it can safely be said that the statement of the deceased was just a statement under Section 161, Cr.P.C. The record further shows that no empty was taken into possession by the I.O. The complainant, PW-1 admitted that when they went along with SHO for recovery proceedings, the SHO went alone into the deserted room for the recovery of weapon of offence and the P'Ws remained present near the vehicle of the police. Recovery memo. Of blood-stained earth Ex.PB shows that names of the accused were written with some other ink after deliberation. Likewise, in the recovery memo. Of pellets Ex.PD only name of Hameed accused is written with some other ink meaning thereby that the same has been introduced after deliberation also. Similarly, in the recovery memo. Ex.PE the names of the accused as well as date and time are not mentioned. All the above facts show that soon after the occurrence no accused was nominated and the appellant and his co-accused Afzal were involved in the case after due deliberations. It is also very important to note that Rahim Bakhsh who is father-in-law of the complainant as well as relative of the deceased and complainant did not appear on behalf of the prosecution rather he appeared on behalf of the accused as DW-1 and he stated that the accused are innocent. The stance of DW-1 gets further support from the fact that Riaz Hussain, SI/PW-7 admitted in his cross-examination that Nazar Hussain Complainant, Ranjha PW and Mst. Anwar Mai widow of the deceased submitted affidavits before him on 08.11.2004 and on 10.11.2004 before the Court of Allaqa Magistrate mentioning therein that accused Muhammad Afzal was innocent and due to misunderstanding they implicated him. Similarly, Nazar Hussain complainant in his cross-examination admitted that he along with Ranjha and Mst. Anwar Mai sworn affidavits in favour of Afzal accused to the extent of his bail proceedings which creates serious doubt in the prosecution story and that it was an unseen occurrence and at the time of occurrence no witness were present at the spot. The case of the prosecution to the extent of the appellant was not proved beyond any shadow of reasonable doubt. 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. It is well settled principle of law that to give benefit of doubt to an accused, it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of an accused, then he will be entitled to such benefit not as a matter of grace and concession, but as of right. In this regard, reference may be made to the case "Tariq Pervaiz vs. The State" (1995 SCM R 1345) and "Ayub Masih vs. The State" (PLD 2002 SC1048).
12. In view of what has been discussed above, this appeal is allowed and the conviction and sentence of the appellant awarded vide the impugned judgment dated 6.6.2008 is set aside and he is acquitted of the charge. The appellant is on bail as his sentence was suspended by this Court vide order dated 2.8.2012,therefore, his sureties are discharged.