ABDUL SAMI KHAN, J.---Muhammad Yousaf appellant was tried in case FIR No.51/2009, dated 20.02.2009, under sections 302, 34, 109, P.P.C., registered at Police Station Phularwan District Sargodha, by the learned Additional Sessions Judge, Bhalwal District Sargodha, who, vide judgment dated 20.03.2012, convicted the appellant on the charge of offence under Section 302-b, P.P.C. and sentenced him to undergo life imprisonment and to pay compensation amounting to Rs.20,000/- to the legal heirs of Maqbool Ahmad under section 544-A, Cr.P.C., failing which the appellant will further undergo S.I. for three months. The benefit of Section 382-B, Cr.P.C. was also extended to the appellant Muhammad Yousaf appellant has challenged his conviction and sentence through the instant criminal appeal, whereas Mst. Bashiran Begum mother of deceased has filed Criminal Revision bearing No.648 of 2012 for the enhancement of sentences awarded by the learned trial Court to the appellant.
2. The prosecution story set forth in FIR (Ex.PY) registered on the statement of complainant Muhammad Iqbal is that on 20.02.2009, he along with his sons Maqbool Ahmad, Muhammad Akbar and wife Mst. Bashiran Bibi was going on Honda Motorcycle 125 to attend funeral ceremony of his brother-in-law and when they reached in the Abadi of village Ratto Kala, the brake of the motorcycle became out of order. To get repair the brake of motorcycle from the shop of Muhammad Yousaf Lohar they reached there. The complainant and his wife Mst. Bashiran stood on other side of road. The appellant Muhammad Yousaf armed with .12 bore gun was already present there, who started calling on his mobile phone. The mechanic has not yet repaired the motorcycle, the co-accused Asad Munir armed with .44 bore rifle, Intizar armed with 44 bore rifle (since POs) came, there on motorcycle and after alighting from motorcycle, they raised lalkara that nobody should be spared. The accused Asad Aamir (since P.0) made a burst shot which hit Maqbool Ahmad on his chest, abdomen and he fell down, then accused Intizar made a burst shot which hit Maqbool on his right arm and shoulder. In the meanwhile, two unknown persons came from east side and they raised lalkara that if any person tried to move, he will be murdered. Mst. Bashiran Bibi wife of complainant stepped forward to rescue Maqbool Ahmad but she fell down. The accused persons fled away towards East-west. The complainant attended Maqbool Ahmad his son who succumbed to the injuries at the spot. The accused committed the occurrence on the information of appellant Muhammad Yousaf and on the abetment and instigation of Salehoon, Muhammad Latif, Muhammad Amir, Muhammad Hanif and Bashir alias Papla. The motive behind the occurrence is that about 7-8 months ago, the accused Bashir alias Papla inflicted injuries to Maqbool Ahmad deceased and a case was registered against him; thereafter, the accused Bashir Ahmad alias Papla etc also launched an attack on the Dera of complainant but they were given beating by the complainant and Maqbool Ahmad. Due to this grudge, the accused persons committed the occurrence.
3. After registration of FIR, investigation of the case was conducted by Abdur Rauf SI/PW.13 & Muhammad Aslam SUPW.14 and after completion of investigation, report under section 173, Cr.P.C. was prepared and submitted before the learned trial court to the extent of present appellant as well as co-accused Muhammad Latif, Muhammad Hanif, Salehoon and Bashir. At the commencement of trial, the learned trial Court after observing legal formalities provided in the Code of Criminal Procedure 1898 framed charge against the appellant Muhammad Yousaf and co-accused Muhammad Bashir alias Papla, Muhammad Hanif, Salhoon and Muhammad Latif on 27.08.2009 to which they pleaded not guilty and claimed trial. The accused Latif was murdered in some other occurrence during the pendency of trial whereas the accused Hanif was declared proclaimed offender during the trial. The prosecution in order to prove its case against the appellant as well as accused Salehoon and Bashir alias Papla examined as many as fourteen witnesses before the learned trial Court. The complainant Muhammad Iqbal died during the pendency of trial and his son Muhammad Akbar (PW-10) and Bashiran Bibi eye witnesses (PW-11) furnished ocular account, while Abdur Rauf, SI (PW-12) is the first investigating officer and after his transfer Muhammad Aslam SI/PW14 conducted the investigation who appeared before the learned trial court and stated about various steps taken by them during the course of investigation of this case. Medical evidence was furnished by Dr. Shahid Majeed (PW-2) who had conducted the postmortem examination on the dead body of the deceased Maqbool Ahmad. The remaining prosecution witnesses, more or less, are formal in nature. After completion of the prosecution evidence, statements of the appellant as well as other two co-accused as provided under section 342, Cr.P.C. were recorded by the learned trial Court. They professed innocence and pleaded false implication in the case. They neither opted to get record their statements under section 340(2), Cr.P.C. nor to produce any witness in their defence.
4. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment whereas acquitted the co-accused Salehoon and Bashir alias Papla.
5. Learned counsel for the appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt; hence, the appellant deserves clean acquittal. On the other hand, learned Deputy Prosecutor General contended that the prosecution has amply proved the case against the appellant beyond any reasonable doubt, the impugned judgment does not call for any interference by this Court, so the conviction and sentence of the appellant be maintained and his appeal be dismissed.
6. I have heard the learned counsel for the parties at length, given my anxious consideration to their arguments and have also scanned the record with utmost care and caution.
7. Before discussing the merits of the case, I may observe there that the sentence of the appellant was suspended by this Court vide order dated 27.02.2013 but today the appellant is not present.
Learned counsel for the appellant submits that he could not inform the appellant regarding fixation of this appeal, hence, his personal attendance be dispensed with. On the request of learned counsel for the appellant the personal attendance of the appellant for today is dispensed with. It is observed by this Court that the complainant had involved as many as ten accused in this case out of whom two main accused namely Asad Amir and Intizar have been declared Proclaimed Offenders whereas two more accused against whom the allegation is that they came from East and raised lalkara have also been declared proclaimed offenders whereas out of five accused of abetment, accused Muhammad Amir was not arrested and was declared proclaimed offender and accused Muhammad Latif was murdered during the trial whereas the accused Muhammad Hanif was declared proclaimed offender by the learned trial court. Two accused namely Salhoon and Bashir alias Papla against whom allegation of abetment had been leveled by the complainant in the FIR had been acquitted of the charge by the learned trial court after finding the case of the prosecution against them to be doubtful. So far as the case of the appellant Muhammad Yousaf is concerned, although the appellant Muhammad Yousaf is named in the FIR yet the fact remains that he did not stand saddled with the responsibility of causing any injury to the deceased or any of the witness at the spot. According to the prosecution's story mentioned in the FIR the only role attributed to him was that he while armed with .12 bore double barrel gun started calling through mobile phone but astonishingly no data of the mobile phone had been collected by the Investigating Officer so as to substantiate the allegation that on seeing the complainant party, he called his co-accused to commit the murder of deceased Maqbool Ahmad. Further-more, both the eye-witnesses have not stated in their evidence that they heard the mobile phone conversation of the appellant with his co-accused who allegedly came at the spot and committed the murder of deceased Maqbool Ahmad. It is an admitted fact that only four empties of 44 bore rifle had been collected from the spot and no empty of .12 bore gun was collected by the investigating officer, hence the recovery of .12 bore double barrel gun allegedly recovered from the appellant Muhammad Yousaf is inconsequential and the same cannot be used in support of prosecution evidence. So the vague and bald allegation leveled by the prosecution in respect of presence of the appellant at the spot at relevant time and calling on mobile phone could not find support foom any corner.
8. The ocular account of this case had been furnished by Muhammad Akbar (PW11) and Bashiran Bibi (PW.12). It is admitted that all the eye-witnesses are closely related to the deceased and inter se as well and they have leveled bald allegation against the appellant of making call on his mobile phone at the spot. Their testimony has not found support from other independent material as there is no tangible evidence available against the appellant in this case to substantiate the evidence recorded by the eye-witnesses before the learned trial court to the extent of present appellant Muhammad Yousaf. Moreover the evidence produced by the prosecution against Salehoon and Bashir alias Papla accused has already been disbelieved by the learned trial court so on the same set of evidence this Court cannot record conviction of the appellant especially in the circumstance when the main accused in this case namely Asad Amir and Intizar Hussain who have been attributed specific firearm injuries to the deceased in the FIR have been declared Proclaimed Offenders. It is also a hard fact that the parties to this case were also involved in criminal litigation in respect of case registered under section 324, P.P.C. From a minute scanning of the evidence furnished by all the above said both the eye-witnesses it has become crystal clear that the parties to this case have nourished grudge with each ()Ler as mentioned above. The prosecution has also set up motive in this regard in the FIR that 7/8 months prior Maqbool Ahmed deceased was injured by accused Bashir alias Papla and a case was registered at the instance of Maqbool Ahmed deceased, where after Bashir Ahmad alias Papla etc. accused launched an attack at the dera of complainant but were given beating by the complainant and Maqbool Ahmad deceased. Due to this grudge, the P.O accused persons Asad Amir and Intizar on the information of Muhammad Yousaf appellant and on the abetment and instigation of Salehoon, Bashir, Amir, Latif and Muhammad Hanif committed the murder of Maqbool Ahmed son of the complainant. It is settled law that motive is a double edged weapon which can cut both ways. In this case, as stated above, no supporting material whatsoever is available against the appellant to substantiate the allegations leveled by the prosecution, thus, false implication of the appellant on the part of the complainant by widening the net cannot be ruled out of consideration.
9.It is also significant to point out here that the appellant had been convicted and sentenced by the learned trial court for providing information to his co-accused. From all the attending circumstances of this case and also from the discussion made by this Court in preceding paragraphs it has become crystal clear that the complainant had spread the net wide and had involved the appellant in this case for purpose best known to him, otherwise if the allegations leveled by the prosecution in the FIR are admitted as correct for the sake of arguments, the appellant had ample opportunity to do away with the deceased by firing but admittedly he had not caused any fire arm injury to the deceased. Therefore, the question of vicarious liability or sharing common intention with his co-accused does not arise and prosecution remained unable to establish his intention to kill the deceased. Even otherwise it is settled law that intention of an accused is always in his mind and the same can only be adjudged from the part played by him during the occurrence. Thus, there is no manner of doubt in expressing here that sentence passed by the learned trial court is not legally justified and it can safely be held that false implication of the appellant in this case is result of exaggeration on the part of the complainant.
10.The above minute scrutiny of the record and evidence clearly depicts that the prosecution case against the appellant is of doubtful nature and his conviction and sentence on the basis of such type of shaky, undependable and untrustworthy evidence cannot be maintained. It is settled law that not many circumstances creating doubt in the prosecution story are required but only a single circumstance creating, doubt in the prosecution story is enough to acquit the accused.
Reliance can be placed on the case of "Tariq Pervez v. The State" (1995 SCM R 1345), wherein the Hon'ble Supreme Court of Pakistan has observed 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."
The case in hand is replete with number of circumstances which have created serious doubt about the prosecution story. It is also universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace, but of right.
In "Ayub Masih v. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country 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".
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram v. The State" (2009 SCM R 230) observed as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour 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 SCMR 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".
11. The upshot of the discussion made above reach to an irresistible conclusion that this Criminal Appeal No. 669 of 2012 is accepted and the appellant Muhammad Yousaf is acquitted of the charge while extending benefit of doubt to him. The sentence of the appellant was suspended by this Court vide order dated 27.02.2013, but today on the request of learned counsel for the appellant his personal attendance for today is dispensed with hence, his sureties stand discharged from the liability.
12. In sequel to discussion made above Criminal Revision No. 648 of 2012 filed by Mst. Bashiran Begum (PW.11) for enhancing the sentence of Muhammad Yousaf appellant from life imprisonment to capital sentence of death is hereby dismissed.