1. Muhammad Shakeel (appellant) along with Allah Ditta and Rab Nawaz (co-convicts) accused of case F.I.R. No. 126/2011 dated 21.05.2011, under Sections 302, 393, 397 of the Pakistan Penal Code, 1860, Police Station Ghazi Abad, Sahiwal, registered at the instance of Muhammad Khitab, the complainant, was tried by the learned Additional Sessions Judge, Chichawatni. At the conclusion of the trial, vide judgment dated 20.05.2015, the learned trial Court acquitted the appellant of the charge under Section 302, 397, 34, P.P.C. and convicted and sentenced him under Section 393, P.P.C. as follows: "to imprisonment for seven years R.I. with fine of Rs. 50,000/-and in default in payment thereof, undergo Simple Imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was also given to him."
2. 2.Muhammad Shakeel accused/appellant has lodged the instant appeal against his conviction and sentence.
3. 3.According to the F.I.R (Exh.PA/1) registered on 21.05.2011 at 1.45 A.M. at night on the basis of statement (Exh.PA) of Muhammad Khitab complainant, the complainant along with his father Nazar Muhammad and Muhammad Israr were sleeping at the place outside their house where cattle-heads were tied, when at about 12.00 in the night four unknown persons armed with fire- arms came there in order to commit Wardat'; that on the resistance shown by them one accused inflicted Sota-blow on the left arm of his father; on the hue and cry raised by them the accused persons fled away; complainant's brother Muhammad Nadeem who was watering the nearby fields came to them on hearing the noise; that they chased, the accused persons who started straight firing and one fire hit Muhammad Nadeem on his chest, whereupon he fell down on the ground, who was shifted to cot and after some time succumbed to the said injury.
4. 4.After receiving the challan the learned trial Court framed the charge against the accused- appellant and his co-accused on 14.02.2014, to which they pleaded not guilty and claimed trial.
5. 5In order to prove its case, the prosecution examined fourteen witnesses in all. On 21.05.2011, Barkat Ali, S.I. (PW-11) was present at Adda Ghaziabad where he recorded statement Exh.PA of the complainant and sent the same to Police Station through Muhammad Irshad 45-C for registration of formal FIR and then proceeded to the place of occurrence, secured blood-stained earth and blood stained cot vide recovery memo. Exh.P.B and Exh.P.C, respectively. He examined the dead- body, prepared injury statement (Exh.PN) and inquest report (Exh.PP). He sent the dead body through Muhammad Iqbal 542-C, for autopsy. Muhammad Iqbal 542-C (PW.12) after postmortem examination produced before the Investigating Officer last-worn blood-stained clothes of the deceased i.e. Qameez P.1, Shalwar P-2 and String P-3, which he secured through recovery memo.
6. Exh.PE. Nazir Ahmad, S.I. (PW.10) arrested accused Muhammad Shaban on 17.06.2011. Muhammad Aslam, S.I. (PW.4) and Muhammad Yar, S.I. (PW.3) also partly investigated the case.
7. Dr. Tanveer-ul-Haq (PW-5) conducted postmortem examination of Muhammad Nadeem (deceased) on 21.05.2011 and noted three injuries on his person.
8. In his opinion, death had occurred due to massive intrathoracic hemorrhage caused by Injury No. 2 which was ante-mortem and sufficient to cause death in ordinary course of nature. The probable duration between injury and death was 30 minutes and time elapsed between death and post mortem was 12 hours. Exh.PM was correct carbon copy of original postmortem report whereas Exh.PM/1 was correct copy of diagram which were in his handwriting.
9. Muhammad Khitab (PW. 1) and Nazar Muhammad (PW.2) furnished the ocular account of the occurrence. Muhammad Nawaz, Patwari (PW.9) prepared scaled site plan Exh.PR and Exh.PR/1. Rest of the witnesses are formal in nature, therefore, need not to be discussed.
10. 6.Learned Deputy District Public Prosecutor gave up Zahoor ul Haq 775/C, Abdul Majeed 276/'C, Muhammad Hussain, S.I., Muhammad Riaz, 728/C and Muhammad Hassan 270/C being unnecessary and after tendering in evidence report of Chemical Examiner (Exh.PZ) and report of Serologist Exh.P.Z/1, closed the prosecution evidence.
11. 7.After close of the prosecution evidence, the appellant was examined under Section 342, Cr.P.C. In answer to question "Why this case against you and why the PWs deposed against you", Muhammad Shakeel accused/appellant replied as under:-- "It is a false case. It was un-witnessed and blind murder. The complainant and PWs involved me in this case falsely on the asking of police and the I.0 for showing his efficiency before the high-ups.
12. No PW was present at the time and place of occurrence. PWs are related to inter-se. The prosecution evidence proves that I had been malafidely implicated in this - case with the help of the 1.0 who investigated the case dishonestly."
13. The accused/ appellant neither opted to appear as his own witness under Section 340 (2), Cr.P.C, nor produced any defence evidence.
14. 8.Learned counsel for the appellant submitted that he was not nominated in the F.I.R. and thus question of assigning any role does not arise; that the complainant nominated Khalid and Shahan being accused in this case but on the basis of compromise exonerated them; that the appellant along with his other co-accused, was nominated in a supplementary statement recorded on 06.07.2011; that no evidence was led by the prosecution regarding source of information; that no recovery was effected from the appellant during the course of investigation; that he was not put to test identification parade; that Nazar Muhammad (PW.2) was also not examined by the Medical Officer and, thus, injury attributed to the appellant was not proved; that the acquittal of the appellant under Section 302(b), P.P.C. has not been challenged by the prosecution, therefore, attained finality and it was unseen occurrence, not proved by the prosecution beyond reasonable doubt which is always resolved in favour of the accused.
15. 9.Learned Deputy District Public Prosecutor assisted, by the learned counsel for the complainant conceded that it was a case of no evidence.
16. 10.Arguments heard. Record perused.
17. 11.The prosecution produced as many as 14 witnesses to prove its case. The occurrence took place on 20/21 May 2011 at midnight. During the attempt to commit robbery, the brother of the complainant, namely, Nadeem lost his life at the hands of the assailant/unknown robbers. The appellant, however, was not nominated in the F.I.R. His name was mentioned in the supplementary statement got recorded by the complainant on 06.07.2011 and prior to that another set of the nominated accused including Khalid and Shahan were given a clean-chit. There was no evidence that appellant was known to the complainant and the appellant was not put to test identification parade, in this case, however, the co-accused of the appellant was put to identification parade. It was a midnight occurrence. No recovery was effected from the appellant. The injury attributed to the appellant was not proved through medical evidence though claimed to have been sustained by the father of the deceased. The complainant as well as his father admitted in their statements that they made no mention of the Sota blow of the appellant in the F.I.R. and that the appellant was not nominated by them. The prosecution has not challenged the acquittal of the co-accused of the appellant. One of the co-convict, namely, Rabnawaz has not filed the appeal whereas Mukhtar alias Mokha was declared proclaimed Offender by the trial 'Court and the co-convict Allah Ditta also escaped at the time of pronouncement of final judgment and thus no appeal was filed by him revealed by office report.
18. It is axiomatic principle of law that in case of doubt, the benefit. thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by the Hon'ble Supreme Court of Pakistan in "Tariq Pervez v. The State" (1995 SCM R 1345) that for giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple/single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.
12. The upshot of the above discussion and observations is that the prosecution could not prove the case against the appellant beyond reasonable shadow of doubt. Resultantly, Criminal Appeal No. 331 of 2015 is accepted and the impugned judgment dated 20.5.2015 is hereby set aside. The appellant is acquitted of the charge. He is in custody, be set free forthwith if not required in any other criminal case. The record of the learned trial Court be sent back immediately.