' ASLAM JAVED MINHAS, J. --- Challenge in this appeal is to the judgment dated 18.12.2009 passed by the learned Addl. Sessions Judge, Sahiwal in case F.I.R. No. 347, dated 29.09.2008, under Section 302, P.P.C. registered at Police Station Yousafwala, District Sahiwal, whereby the appellant, Muhammad Shafique was convicted under Section 302(b), P.P.C. for committing Qatl-e-Amd of Muhammad Ashraf 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. Benefit of Section 382-B, Cr.P.C. was, however, extended to the accused.
2-3. The relevant facts of the case as per complaint Ex.PA are that on 28.09.2009 at about 7.45 p.m. accused Muhammad Shafique was quarreling with his wife at his home. On hearing noise, son of the complainant, Muhammad Ashraf, brother-in-law of accused and other inhabitants of the village reached there. Brother-in-law of Shafiq accussed started cross talk, meantime, accused Muhammad Shafiq opened fire with pistol 30 bore which hit on right side of head of Muhammad Ashraf whereas second fire was hit on his forehead who fell on the ground. When he was taken to Civil Hospital, he succumbed to the injuries in the way.
4. The investigation of this case was conducted by Nazir Ahmed, S.I. and after completion of investigation he submitted the Callahan in the Trial Court. The learned Trial Court framed the charge on 11.11.2008 which was denied by the accused and he claimed trial.
5. To prove guilt, the prosecution examined as many as eleven witnesses during the trial. Fateh Muhammad complainant appeared as PW-1 and deposed the same story as written in his complaint Ex.PA. PW-2 Muhammad Hussain deposed that on 28.09.2008 at about 07:45 p.m., there was some quarrel between accused Shafique and his wife. Brother-in-law of Shafique also came there. He with others was invited on Aftari in the house of Khala of Muhammad Ashraf, deceased situated houses away from the house of accused. On hearing noise, he along with PWs came there and in their view accused fired with pistol which hit on forehead of Muhammad Ashraf who was taken to DHQ Hospital, Sahiwal, but succumbed to the injuries on the way. He further deposed that in his presence 1.0. took into possession blood-stained earth, got recovered pistol 30 bore with two live bullets from residential room of accused and he along with witnesses got recorded their statements under Section 161, Cr.P.C. PW-3. Muhammad Yousaf also corroborated the prosecution story. PW-4 Muhammad Yasin deposed that. on 29.09.2008 he identified the dead-body of Muhammad Ashraf at the time of autopsy and after postmortem, last worn clothes of deceased were handed over to 1.0. which he took into possession vide recovery memo. Ex.PE which was attested by him.
6. The medical evidence was furnished by Dr. Muhammad Umar Farooq, PW5 who on 29.09.2008 at about 9 a.m. conducted the post-mortem examination on the dead-body of Muhammad Ashraf and found the following injuries on his person:----
(1) A lacerated wound about 1 cm x 1 cm x deep going on left forehead, new heir line, burning and blackening was present. Margins of the wound were inverted. (Entry wound)
(2) Lacerated wound with everted margins. Brain matter was coming out on right side of head 6 cm above and in front of right ear. (wound of exit).
(3) Contused swelling all around left eye.
7. The doctor opined that the cause of death was injuries No. 1 & 2 which was a single fire-arm injury and antidemocratic in nature. It had caused damage to brain as a result there was vital organ injury, severe hemorrhage, shock and death which was possible in an ordinary course of nature. The duration between injuries and death was about three hours whereas between death and post-Mort was about eleven hours.
8. PW-6 Muhammad Saeed Akhtar, Draftsman inspected the place of occurrence and prepared scaled site plan through memo. Ex.PJ and Ex.PJ/1. Mangat Khan 381/C was examined as PW7. He stated that on 29.09.2008 he was posted as Moharrir at P.S. Yousaf wala.
1.0. handed over to him two scaled parcels one containing blood-stained earth and the other containing crime empties which he kept in police Malkhdna in safe custody as well as their onward transmission to the relevant offices. On 25.10.2008 he handed over both sealed parcels to Muhammad Hanif, Constable for its onward transmission to the office of Chemical Examiner, Lahore and FSL, Lahore intact. On 26.10.2008 he handed over the sealed parcels to Muhammad Hanif, Constable for its onward transmission to the office of Forensic Science Laboratory, Lahore intact. Muhammad Hanif 1107/C appeared as PW-8 and deposed that on 25.10.2008 Moharrir of Police Station handed over to him three sealed parcels one containing blood-stained earth, crime empties and pistol for their onward transmission to the office of Chemical Examiner and FSL, Lahore, which he delivered on 26.10.2008.
8A. Naseem Suleman 57/C was examined as PW 9, who deposed that on 29.09.2008 after post- mortem examination of Muhammad Ashraf deceased, doctor handed over to him the last worn clothes of deceased, which he produced before the 1.0. vide recovery memo. Ex.PD. PW 10 Rehmat Ali, S.I. stated that on 29.09.2008 on receiving complaint Exh.PA through Zafar Alam 781/C by Nazir Ahmed, S.I., he chalked out formal F.I.R. Exh.PA/1, without any addition or omission.
9. Nazeer Ahmed, SI/1.0. as PW-11 deposed that on 29.09.2008 he was posted at P.S. Yousaf-wala and present at Railway Phatak in the area of Chak No. 53/5-L on patrolling where complainant of above-said case appeared, got recorded his statement Ex.PA and after registration of F.I.R. Ex.PA/1, he went at the place of occurrence. He further deposed that he inspected the spot, prepared rough site plan Ex.PK, inspected dead-body, prepared injury statement of the deceased Ex.PG and dispatched the dead-body to the mortuary for post-Mort examination. He collected blood-stained earth, crime empties, made their parcels and took into possession vide recovery memo. Ex.PB & Ex.PC. After post-mortem examination, Constable handed over to him last worn clothes of deceased which he took into possession vide recovery memo. Ex.PD and recorded the statements of PWs. After preparing scaled site plan and notes he on 05.10.2008 arrested Muhammad Shafique, who during custody lead to the recovery of pistol which he also took into possession vide recovery memo. Ex.PC and then submitted challan against accused.
10. The prosecution' evidence was closed by tendering in evidence reports of Chemical Examiner Ex.PL, report of Serologist Exh.P/M and that of FSL Exh.P/N.
11. After closure 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:-- "It is a false case. All the PWs are related inter SE and with the deceased and they have made false statement against me in order to support their false version. The eye-witnesses were not present at the place where Muhammad Ashraf deceased was hit by the fire. Muhammad Ashraf deceased was hit by the fire in the Bazar of the village where there was cross-firing between the villagers and it could not he ascertained as to whose fire had hit him. It was an witnessed occurrence. The deceased remained lying at the place of occurrence In the Bazar of the village where he was hit by the fire and due to the loss of blood he died, he was never taken to the Hospital while alive. The occurrence took place in the dark hours of the night and there was no source of light in the Bazar where the occurrence took place. There was conflict of medical evidence according to the statement of Fateh Muhammad complainant Exh.P/A who mentioned in Exh.P/A that the fire hit his son Muhammad Ashraf on the right side of his head but in fact it was an Exit wound and this contradiction of medical evidence with the version of the eyewitnesses was due to the fact that none of the eyewitnesses was present at the place of occurrence. They have made false statements in order to support their false and concocted version."
12. The learned counsel for the appellant has argued that it was an unseen occurrence, but with male 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, he is entitled for acquittal.
13. Conversely, the learned Deputy Prosecutor General assisted by the complainant vehemently opposed this appeal and supported the impugned judgment. They further contended that learned Trial Court had already taken unwarranted lenient view while awarding sentence, therefore, the appellant is not entitled for acquittal.
14. I have heard the learned counsel for the parties and perused the record with their assistance.
14A. According to the statement of the complainant the occurrence took place in open place situated on the eastern side of the house of one Asghar alias Poongi, whereas according to the site plan the occurrence took place in the house of the appellant, therefore, the place of occurrence itself is contradictory. According to the prosecution story, the complainant and PWs were passing near the house of the accused, they heard noise of quarrel and they saw appellant was beating his wife, therefore, the witnesses as well as the deceased entered into the house. The deceased forbade the appellant not to beat his wife upon which the appellant made a fire at the deceased which hit on the right side of head of the deceased. According to Ex.DA and Ex.DB the fire was made by the appellant inside his house whereas according to PW1 the fire was made in an open place, therefore, the place of occurrence in this case is not known to the PWs. According to the prosecution case, the PWs reside near the place of occurrence or adjacent/neighbor of the accused/appellant and according to record one PW reside in Sialkot. It is very important to note that the complainant, the deceased and the PWs were neither the relatives of wife of the appellant nor they have any relationship with the appellant then how they entered into house of the appellant without any knock or reason. PW2 Muhammad Hussain in his cross-examination admitted that the F.I.R. was registered against Shafique accused after making thought. In his cross- examination, the complainant admitted that 1.0. reached at the place of occurrence after sixteen hours whereas the distance between occurrence and hospital was 15/20 k.ms. and at that time, many people gathered there but he did not mention their names in calendar of witnesses. PW-2 Muhammad Hussain further admitted in his cross-examination that the 1.0. recorded his statement and PWs at the place of occurrence on following day after post-mortem examination of the deceased. He further stated that the F.I.R. Ex.PA was registered against Shafique accused after making thought. PW-3 Muhammad Yousaf in cross-examination admitted that in his statement recorded under Section 161, Cr.P.C. that deceased asked accused Shafique why he was beating his wife on which he fired at Ashraf, but when the same was confronted with statement, it was not so recorded. Perusal of file further reveals that in statements of prosecution witnesses, there is glaring contradictions.
15. During cross-examination, PW1 Fateh Muhammad admitted that Shafique accused fired with his pistol 30-bore hitting on the right side of head whereas according to the post-mortem report as per injury No. 1 "a lacerated wound about 1 x 1 cm x deep going on left forehead near hairline, therefore, there is clear contradiction in the ocular account and the medical evidence. According to the doctor blackening and burning was present on the deceased and the fire was made within three feet range but according to the PWs the fire was made about 13 feet away from the deceased. According to the doctor one fire was made, injury No. 1 is entry wound and injury No. 2 is exit wound but according to statement of Muhammad Hussain one fire hit at the wall and the other hit the deceased and two empties were collected from the place of occurrence and sent for the expert opinion. If all the PWs were present at the spot, their statements should have been in line but there are contradiction in the seat of injuries which shows that the PWs did not witness the occurrence. The doctor further admitted that there was over writing on the time of death and in the relevant column of post-mortem report Ex.PF which was corrected later on 10:25 p.m. It was further admitted that initially he recorded the time of death or deceased as 07:45 p.m. on 28.09.2008 in relevant column according to information of police and complainant party but subsequently it was changed by him as 10:25 p.m. and duration between injury and death was about three hours which shows that the deceased remained alive for three hours and he died due to loss or blood. There is another aspect of the matter that the empties were recovered from the spot through memo. Ex.PE on 29.09.2008 and the accused got recovered pistol through memo. Ex.PC on 20.10.2008. According to PWN Muhammad Hanif 1107/C he delivered the sealed parcel of crime empties and pistol to the office of Chemical Examiner on 26.10.2008, therefore, if there is any positive report of the expert that cannot give any benefit to the prosecution. There is another aspect of the case that according to the prosecution story the appellant had beaten his wife for which no independent evidence was recorded and produced by the complainant. It is also very important to note that as to why the appellant was beating his wife and for what reason and cause no independent evidence from the locality appeared and stated that why the appellant was beating his own wife.
16. Careful scanning of the file reveals that there are so many contradictions between the statements of PWs. It is a dark time occurrence and blind murder. No source of light was mentioned either in the site plan of the place of occurrence or by any of the PWs in their statements. All the prosecution witnesses i.e. PW1 to PW3 are related inter se. In the statement recorded under Section 342, Cr.P.C. the appellant admitted that there is enmity of previous murder between the parties, therefore, false involvement of the appellant cannot be ruled out. 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 (to the extent of present appellant). 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'.
17. In view of what has been discussed above, this appeal is allowed and the conviction and sentence of the appellant awarded vide the judgment dated 18.12.2009 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 07.01.2014, therefore, his sureties are discharged. Criminal .