' FARRUKH GULZAR AWAN, J.---Fazal Hussain has filed the above captioned appeal being aggrieved of the judgment dated 27.4.2005 passed by he learned Additional Sessions Judge-II, Alipur in case FIR No,89 dated 17.5.2004, under Sections 302/365/324/456/337-A(ii)/109/ 148/149 of The Pakistan Penal Code (Act XLV of 1860), registered at Police Station, Saddar Alipur whereby he was convicted and sentenced as under:--- ' Under section 302(b), P.P.C.
' Imprisonment for life and to pay compensation of Rs,50,000/- to the legal heirs of deceased Wahid Bakhsh recoverable as arrears of land revenue and in default thereof to further undergo simple imprisonment for six months.
' He was held entitled to the benefit of section 382-B, Cr.P.C.
2. It is worth mentioned here that learned trial Court acquitted the appellant from offence under Section 365, P.P.C. And the provisions of sections 337-A(ii)/324, P.P.C. Were not made applicable in view of conviction passed under section 302(b), P.P.C.
3. The related facts in brief leading to the institution of instant criminal appeal are that Muhammad Ajmal (PW-4) got registered the aforesaid crime report Ex.PE/1 on 17.5.2004 through his complaint Ex.PE alleging that he was married with Mst. Rabia (PW-6) and after 3/4 months of the marriage, he had a quarrel with his father-in-law Fazal Hussain (appellant) as he had a demand of divorce to his daughter but the spouse did not want divorce. In preceding night, he along with his father Wahid Bukhsh and other family members, was sleeping in his house when at about 12/1:00 midnight, he heard the noise of Mst. Rabia and woke up. In the light of battery, he saw Fazal Hussain (appellant) armed with hatchet, Sabir Hussain armed with Churi, Muhammad Akram armed with hatchet, Muhammad Aslam armed with club (Daang), Nazir Ahmad armed with gun .12-bore and Altaf Hussain armed with rifle (all since P.O.S.), had trespassed into the house of the complainant and were trying to forcibly abduct Mst. Rabia. The complainant forwarded to save his wife whereupon Nazir Ahmad fired with his gun, which fortunately missed and the complainant stopped due to fear. Wahid Bakhsh, father of the complainant stepped forward to save Mst. Rabia, whereupon Fazal Hussain gave hatchet blows on his left eye and nose. On hearing noise, Murid Hussain (PW-5), Abdul Maalik and other people came there. The accused persons raised Lalkara and Altaf Hussain threatened them by pointing rifle. In their view, Muhammad Aslam gave blow of club on the back of Wahid Bakhsh, Sabir Hussain gave repeated Churi blows on the head of Wahid Bakhsh. Muhammad Akram gave hatchet blows on the back and left arm of Wahid Bakhsh and he fell unconscious Fazal Hussain etc. Forcibly took away Mst. Rabia on motorcycle while making aerial firing.
' Motive behind the occurrence was that the appellant desired divorce to his daughter Mst. Rabia but neither the complainant divorced her nor Mst. Rabia intended to do so and in this respect they went to the Court for so many times, wherein wife of the complainant gave statement in favour of her husband.
4. After submission of challan and framing of charge, the prosecution produced as many as 15- prosecution witnesses in order to substantiate charge against the appellant.
5. Dr. Riaz Ahmad, (PW-13) conducted medico legal examination of Wahid Bakhsh on 17.5.2004 and observed eight incised wounds, a bruise and a surgical inphesema on his person. Ex.PN is the medico legal examination report.
6. On 26.5.2004, he conducted post mortem examination on the dead body of said Wahid Bakhsh and observed 12-injuries. The injuries on head and multiple injuries were declared fatal to his life particularly injury No,10 caused death of the deceased. Probable time between injury and death was 9-days and between death and post mortem, it was one day. Ex.PP is the post mortem examination report and Ex.P0/1-2 is the pictorial diagram showing location of injuries.
7. Prosecution gave up Ramzan, Iqbal and Fakhar Ali being unnecessary witnesses and closed the evidence by tendering the reports of Chemical Exaniner Ex.PP, Ex.PQ and the documents Mark-A to Mark-T.
8. The appellant was examined under section 342, Cr.P.C. The incriminating evidence produced by the prosecution was put to him, which he termed as incorrect claiming that the complainant was inimical towards him due to the dispute of money and inter se relationship of the witnesses with the deceased, they have deposed falsely. He neither opted to appear on oath as witness under section 340(2), Cr.P.C. Nor produced evidence in his defence.
9. Learned trial Court, after hearing learned counsel for the parties and going through the evidence on record, convicted and the appellant sentenced him supra.
10. Learned counsel for the appellant has contended that it was a dark night un-witnessed occurrence; that the appellant has been falsely roped in this case due to family disputes; that there is no source of light in the occurrence and from a distance nine karams, identification of the assailants is not possible in dark night; that the battery/torch was not taken into possession during investigation; that there are material contradictions in the statements of the eye-witnesses as to the actual role of the appellant; that no source of light and role has been mentioned in the scaled site plan (Exh.PG); that the prosecution has failed to prove its case beyond shadow of doubt; that the motive is unbelievable and does not provide corroboration to the prosecution; that the prosecution has failed to establish guilt of the appellant, therefore, he is liable to be acquitted.
11. On the other hand, learned DDPP assisted by learned counsel for the complainant has supported the impugned judgment with the contention that the appellant was duly identified by the eye- witnesses in the light of torch with the specific role of causing injuries on vital parts of the body of deceased and that the learned trial Court has rightly convicted him having shared common intention.
12. Arguments heard. Record perused.
13. Muhammad Ajmal (PW-4), Murid Hussain (PW-5) and Mst. Rabia bibi (PW-6) furnished the ocular account in this case. Muhammad Ajmal PW-4 is son and Mst. Rabia Bibi PW-6 is daughter- in-law and Murid Hussain PW-5 is brother-in-law (Sala) of deceased Wahid Bakhsh. Muhammad Ajmal and Mst. Rabia Bibi are the residents of same village, Bait Mullanwali and their presence at the venue of occurrence is natural one whereas Murid Hussain PW-5 is resident of village Bait Burrah, at a distance of about 1-1/2 kilometers away from the. Venue of occurrence and no reason has been assigned regarding his presence at the time and place of occurrence at odd hours rather the complainant was confronted with his complaint (Exh.PE) deposing that he got recorded before the police that Murid Husain PW was sleeping in his house. In the circumstances, his presence at the venue of occurrence is under heavy clouds.
14. According to crime report Exh.PE/1, the appellant has been assigned the role of giving hatchet blow on the left eye and nose of deceased Wahid Bakhsh. The complainant while appearing before the learned trial Court as PW-4, deposed that Nazir Ahmad fired a gun shot, which missed, he stopped due to fear and then deceased Wahid Bakhsh stepped forward to rescue Mst. Rabia Bibi, whereupon appellant Fazal Hussain gave hatchet blow on the right eye of Wahid Bakhsh. Murid Hussain, PW-5 appeared before the learned trial Court and deposed that Nazir Ahmed made a fire shot in the air, Wahid Bakhsh stepped forwarded whereupon Fazal Hussain gave hatchet blow on the left side of face of Wahid Baldish. Mst. Rabia Bibi while appearing as PW-6 assigned collective role to all the assailants deposing that they injured her father-in-law and forcibly took her away.
According to crime report Exh.PE/1, Nazir Ahmad fired with his gun, which missed; Wahid Bakhsh stepped forward whereupon Fazal Hussain gave hatchet blow on the left eye and nose of Wahid Bakhsh and then on hearing noise, Murid Hussain, Abdul Maalik and other people of the vicinity came there; Altaf Hussain pointed his rifle and threatened them and then in their view, all the remaining co-accused gave severe beatings to Wahid Bakhsh with the respective weapons.
Meaning thereby, Murid Hussain (PW-5) did not witness first part of the occurrence when the appellant gave hatchet blow on the left eye and nose of deceased Wahid Bakhsh but while appearing before the learned trial Court he made improvements deposing that Fazal Hussain have hatchet blow on the left side of face of Wahid Bakhsh. I have also observed that the complainant deposed during cross- examination that he did not accompany his father to hospital, who was unconscious at that time and I.O. Sent his father to hospital whereas Murid Hussain PW-5 deposed that after spot inspection, Ajmal (PW-4) accompanied the Investigating Officer to hospital, Ajmal went with them, he did not go as he remained with the family to guard them and that he did not go to hospital at Alipur. Muhammad Ayub Khan, S.I (PW-12) deposed that complainant Muhammad Ajmal, after some times, was sent to look after his father. These contradictions being very material, cannot be ignored and relied upon as well.
15. It is also an admitted position that deceased Wahid Bakhsh expired after nine days of the occurrence. According to the deposition of Dr. Muhammad Sajid (CW-1), who treated deceased Wahid Bakhsh on 17.5.2004, he was well oriented with time and space, answering questions well and died in his ward. But neither the statement of deceased Wahid Bakhsh was recorded under Section 161, Cr.P.C. By the Investigating Officer nor any application was made to the Medical Officer seeking permission to record his statement. He being injured and star witness of the occurrence, was required to be joined with the investigation in this case and such omission constrains me to draw presumption under Illustration (g) of Article 129 of the Qanun-eShahadat Order, 1984 that had his statement been recorded by the Investigating Officer or even produced before the learned trial Court, the same would have been unfavourable to the prosecution.
16. I have observed another important aspect from the evidence on record that this occurrence took place in the midnight at 12/1:00 O'clock on 17.5.2004 and the complainant deposed before learned trial Court that he identified the assailants in the light of torch. According to scaled site plan Exh.PG, no other source of light has been mentioned/marked therein and even none of the remaining eye-witnesses could give source of light in their deposition before the learned trial Court. The names of eye-witnesses have also not been mentioned in the said scaled site plan.
Furthermore, the place of presence of the eye-witnesses has also not been mentioned in the aforementioned scaled site plan. At the most, if presence of eye-witnesses is presumed to be point No,1, it would be at a distance of about nine karams from point No,2. Therefore, keeping in view the distance between the deceased and the appellant, number of the assailants and the fact that neither any torch was taken into possession during investigation or its intensity could be brought on record, identity of the appellant in the dark-night assigning a specific role, is under heavy clouds.
17. So far as the alleged recovery of hatchet (P-10) through recovery memo. Exh.PE and the positive report of Chemical Examiner Exh.PQ, is concerned, the same is inconsequential as there is no report of Serologist for the determination of human blood. Even otherwise, it is observed 'that this occurrence took place on 17.5.2014, the said hatchet P-10 was recovered on 14.6.2004 and was received in the office of Chemical Examiner on 25.8.2004 i,e, after about 90-days, therefore, it was unlikely that the blood on the hatchet P-10 would not disintegrate during the above mentioned period. So, it would not be safe to rely upon the recovery of hatchet as well as positive report of Chemical Examiner. I am respectfully fortified from the case law reported as Muhammad Jamil v.
Muhammad Akram and others (2009 SCM R 120)", it has been held as under:--- "It is borne out from the record that the alleged recovery of blood stained Churi 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 be disintegrated meanwhile. So the reasons advanced by the learned Judge in Chamber are not arbitrary or fanciful for not believing the recovery."
18. The prosecution set up a specific motive that the appellant wanted divorce to his daughter Mst.
Rabia Bibi (PW-6), wife of the complainant (PW-4) but neither the complainant was willing to divorce her nor Mst. Rabia Bibi intended to get divorce and due to this grudge, the appellant along with his co-accused abducted her. Though the motive is directly attributed towards the complainant and not the deceased yet the same being double edged weapon, neither provides corroboration to the prosecution nor fatal for the defence to the extent of present appellant.
19. So far as the medical evidence is concerned, according to crime report Exh.PE/1, the appellant has been assigned the role of giving hatchet blow on left eye and nose of deceased Wahid Bakhsh but the complainant, in his deposition as PW-4, assigned the same to the appellant on the right eye of deceased Wahid Bakhsh. Moreover, Murid Hussain PW-5 deposed that the appellant gave hatchet blow on the left side of face of Wahid Bakhsh. Therefore, the oral deposition is not in line with the medical evidence. Even otherwise, the medical evidence being corroborative piece of evidence is relevant only went the primary evidence, ocular account, inspires confidence, which is not the situation in this case.
20. Having examined the aforesaid prosecution evidence, I have no hesitation to hold that the prosecution has failed to bring home guilt of the appellant beyond any shadow of doubt and if it is failed to do so the accused is entitled to the benefit of doubt as a matter of right. In case of "Ayub Masih v. The State (PLD 2002 SC 1048)", at page 1056 the Hon'ble Supreme Court has been pleased to observe as under:-- "............. It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. 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". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. 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."
21. Epitome of above discussion is that the appeal in hand is allowed impugned judgment dated 27.4.2005 is set aside and the appellant is acquitted of the charge. He is present on bail, his bail bonds as well as surety stands discharged from the liability.