MALIK HAQ NAWAZ, J.--- appellant along with two co-accused namely Ahmed Ali and Maqsood Ali, who are his real sons stood trial on the charges under sections 302/34, P.P.C. vide FIR No. 138/2003 registered at Police Station Airport Gilgit on 08-07-2003.
2. The details of the occurrence have been mentioned in the impugned judgment, which are not being reproduced, however to be precise, it is stated in the FIR that on the fateful day one Muhammad Kaseer submitted an application in Police Chowki Sassi, Haramosh to the effect that the appellant/ co-accused, while duly holding pistols/12, bore rifles committed the murder of one Jabir Hussian real son of complainant. The occurrence was witnessed by(sic).
3. In order to prove the case prosecution examined 12 PWs and closed its case on 23-06-2014. The statements of the accused under section 342, Cr.P.C. were recorded on 30-06-2014 and after hearing the parties, the trial Court announced its verdict. Relevant paragraph of the judgment of the learned trial Court is re-produced as under:-- "With the above observations, I am of the firm view that the prosecution through ocular testimony and other corroborative evidence i.e. medical evidence and recoveries of weapon of offence and crime empty has successfully proved the charge against the accused Muhammad Ali. Therefore, accused Muhammad Ali son of Faiz Ali resident of Dassu Haramosh District Gilgit is hereby convicted and sentenced to death under section 302(b), P.P.C. and he will be hanged by neck till his death subject to confirmation by the Hon'ble Gilgit-Baltistan Chief Court Gilgit and he is also sentenced to fine of Rs. 100000/- (one hundred thousand only) under section 544-A, Cr. P C. and the said amount shall be paid to the legal heirs of deceased and in case of failure/default of payment of the said amount he will undergo simple imprisonment for a period of six months. As far as co-accused namely Maqsood Ali and Ahmad Ali son of Muhammad Ali are concerned no role has been assigned to them by the witnesses and no evidence is available on record to connect them with the alleged crime therefore, they are hereby acquitted from the charge levelled against them."
4. Being dissatisfied from the verdict of learned trial Court, the appellant has filed the instant appeal bearing No. 52/2014 in this Court, which was admitted for regular hearing on 22.12.2014 but despite lapse of over 3 years, the appeal could not be disposed off and finally came before us fot hearing on 19-02-2018. The learned trial Court also sent murder reference under section 374, Cr.P.C. for confirmation or otherwise of death sentence awarded to the appellant.
5. The learned counsel for the appellant submitted that whole the prosecution story is false and concocted and result of mere speculations and the story tailored by the prosecution does not fit in the circumstances of the case. The learned counsel submitted that evidence of the prosecution has not been properly appreciated and all the benefits of doubts have been extended to the prosecution instead of defence. Per learned counsel all the PWs are closely related to the deceased and not a single independent/ reliable witness has been produced by the prosecution. The learned counsel further submitted with vehemence that the presence of the complainant/eye-witness is not established. Had the complainant been present at the place of occurrence, he should have been the first target of the accused party as the motives was equally attributed against the deceased and his father (complainant), which has been admitted by the complaint and also re- produced in the judgment of the learned trial Court. Lastly the learned counsel submitted that in FIR, there was direct attribution of affective firing on the appellant/ his co-accused but both of the co-accused have been acquitted from the charge. The appellant cannot be convicted on the basis of same evidence which has not been believed up to the extent of acquitted accused and the complainant/ State has not challenged the acquittal of co-accused before this Court. The learned counsel relied on 2008 SCM R 95, 2008 SCM R 707, 2014 PCr.LJ 404, 2002 YLR 3658, SCMR 1064(sic), 2007 SCM R 1812 and 2010 SCM R 97.
6. On the other hand the learned Deputy Advocate General refuted the submissions raised at bar by the learned defence counsel and submitted that the appellant along with co-accused has directly been charged in the FIR for murder of deceased Jabir Hussain. The weapon of offence has been recovered from his possession in the presence of marginal witnesses. The learned Deputy Advocate General further contended that the names of the eye-witnesses are mentioned in the FIR, who fully supported the prosecution version and despite lengthy cross-examination defence failed to extract anything in favour of the appellant. Two co-accused has been acquitted by the trial after sifting the evidence and acquittal of co-accused will not advance the case of defence. Lastly that the appellant committed murder of deceased in a wanton manner. He has been properly dealt with by the trial Court and his conviction be maintained.
7. Arguments of both the parties heard at length and record of the case scanned with able assistance of both the parties.
8. The complainant Muhammad Kaseer has nominated 3 (three) accused, the appellant and his two sons for commission of murder of deceased Jabir Hussain. The complaint has also stated the names of eye-witnesses in the FIR, who witnessed the occurrence. The question arises that the complaint has not alleged any motive in the FIR nor the same sounds anywhere else except in the cross-examination of PW-I (complainant) Muhammad Kaseer, who stated that the allegations of murder of son of accused namely Barkat was on me and my deceased son. A question arises that when the complainant was accompanying his son and they both were a soft target for the complainant party, why the accused who were 3 in numbers spared the complainant and only had chosen to eliminate Jabir and not the complainant, especially when the appellant was having the backup support of his two sons, who were also armed with 12 Bore files. The site plan of the occurrence of occurrence was prepared and exhibited in the trial Court as Exh. PW-12/B. The site plane was prepared on the pointation of complainant. The complainant himself has not stated in the site plane that the fire shot was opened by the two, acquitted accused nor PW-2 Shabbir Hussaifi or PW-3 Azher Hussain stated that the fire short was opened with a pistol by the appellant.
The trial Court did not believe the prosecution evidence and acquitted co-accused by extending them benefit of doubt. Now the question arises, whether conviction of the appellant could be maintained on the same set of evidence. As has come on record enmity was existing between the partiers though the same has not been stated in the FIR by the complainant, who is non else but father of the deceased.
9. The weapon of offence was allegedly recovered from the accused in presence of marginal witnesses namely PW Ramzan (PW-5) and Mir Alam (PW-6) and the recovery memo of weapon of offence exhibited in the trial Court as Ex.PW-5/E. PW-5 stated that the weapon of offence (revolver) was not the same, which was shown to him by the local Police at the time of recovery. The said PW further stated that the weapon of offence has not been recovered from the accused Jabir Hussain in his as well as in the presence of other marginal witness of the recovery. PW-6 Mir Alam also stated the same facts in examination in chief and also confirmed that weapon of offence was not recovered in his presence from the appellant. This PW also did not identify the weapon of offence in the trial Court. Both these PWs were not declared hostile by the prosecution. The weapon of offence was not sent to forensic expert for expert' opinion. How the learned trial Court took the same as a corroboratory piece of evidence raises a big question mark about the level/standard of appreciation of evidence by the trial Court. The learned trial Court should have been very careful while dealing with the cases of capital punishment.
10. Another piece of evidence taken into consideration by the trial Court has been the medical evidence Postmortem of the deceased was got exhibited in the trial Court by one Dr. Israr Hussain of DHQ Hospital Gilgit but it is not discernable from the record as to, why Dr. Rawish Khan was not produced in the trial Court. The prosecution first has to establish that the Doctor, who conducted postmortem of deceased, was not available and his attendance was impossible to be secured in the given circumstances of a particular case. We have gone through the order sheets of the trial Court, which are also silent on this aspect. The PW-10 Dr. Israr Hussain in his deposition before the trail Court has also not assign a single reason about non availability of Dr. Rawish Khan, therefore, the postmortem report also merit exclusion. Even otherwise postmortem or any medical evidence does not establish the identity of assailant and it only confirms the cause of death.
11. We found that the entire prosecution evidence is replete with gravest doubts and full of inherit defects, which cannot be reconciled. Benefit of doubt is the sole right of an accused and concessions cannot be extended to the prosecution witnesses to believe them. If the complainant by his own conduct has involved some innocent persons in the offence carrying capital punishment and he has not been believed up to that extent, then the Court must be on guard and extra vigilant to scan the entire evidence with great care and caution. All the pieces of prosecution evidence are mutually destructive and cannot be relied upon. Reliance could be placed as 2009 SCM R 230 (citation at page 236), which is re produced as under:-- "(C) Criminal Trial--- --Benefit of doubt---Principles--- For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Singlecircumstances creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
In another case reported in 2003 PCr.LJ 1847 it was held as under:-- "(F) Penal Code (XLV of 1860)-- ---S. 302(a)---Appreciation of evidence---Benefit of doubt---Rule of prudence---Rule of benefit of doubt which was described as golden rule; was essentially the rule of prudence which could not be ignored while dispensing the justice according to law---Such rule was based on maxim it is better that ten guilty persons be acquitted rather than one innocent person be convicted"--- Said rule occupied a pivotal place in Islamic Law and was enforced vigorously in view of saying of Holy Prophet (P.B.U.H.) that "mistake of Qazi in releasing a criminal was better than his mistake in punishing an innocent."
12. As a result of above discussion, we allow this appeal and set aside the conviction recorded by the trial Court. The accused shall be released forthwith if not required to be detained in any other offence.
13. Murder Reference bearing No.6/2014 is answered in negative.