NAZEER AHMED LANGOVE, J.---This appeal has been filed against the judgment dated 24.05.2017 (hereinafter the "impugned judgment ") passed by Additional Sessions Judge, Pishin, (hereinafter called as "the trial Court "), whereby the accused/appellants were convicted under section 302(b)/34 P.P.C. and sentenced to suffer imprisonment for life with payment of Rs.2,00,000/- (Rupees Two Lac Only) each as compensation under section 544-A Cr.P.C. which after realization be equally distributed among the legal heirs of deceased and in case of default of payment of fine to further suffer S.I. for six (06) months each. However , benefit of section 382-B, Cr.P.C. was extended in their favour .
2. Brief facts of the case are that in pursuance of report submitted by the complainant Muhammad Aryan son of Gul Muhammad with the levies of Pishin the instant FIR having No.130/2014 was registered, wherein he alleged that on fateful day of incident at about 7:37 p.m. he along with his father were present at bypass road, received a telephonic call of Abdul Manan (accused ) who asked about the father of complainant. No sooner he along with Abdul Razique, Ain-ud-Din and Zain-ud-Din arrived and launched an attack upon his father who at the relevant time was sitting in his car, the accused Abdul Manan caught him hold from backside while Ain-ud-Din aimed pistol at complainant whereas Zain-ud-Din fired upon his father , after committing crime the accused persons fled away from the scene of occurrence, the injured was shifted to hospital where he succumbed to his injuries. Hence this case.
Levies laid hands on culprits and arrested the accused/appellants. On completion of investigation challan of the case was submitted and trial commenced.
The charge was framed against the accused/appellants to which they pleaded not guilty and Claimed trial. The prosecution in order to prove its case, produced PW-1, Muhammad Aryan (complainant/eye witness of the occurrence). PW-2, Haji Noor Muhammad. PW-3, Naseeb-ur-Rehman, Patwari. PW-4, Ainuddin, ASI (witness of magazine and four cartridges). PW-5, Jameel Ahmed, comtable (witness of pistol). PW-6, Gul Muhammad (witness of recovery memo of blood stained clothes). PW-7, Dr. Mujahid Ali Khan, Medical Officer (examined dead body of deceased and issued death certificate/MLC). PW-8, Lal Muhammad. PW-9, Muhammad Jaffar Khan and PW-10, Javed Iqbal, SI (investigating of ficers).
3. On examination, under section 342, Cr .P.C . , the accused/appellants disputed the case of prosecution and pleaded their innocence. Out of them the accused Abdul Manan recorded his statement under section 340 (2)
Cr.P.C. on oath with the averments that he is brother-in-law of deceased Gul Muhammad who after abusing co- accused Zain-ud-Din slapped him and snatched his mobile which was complained by the former to him, on which he (Abdul Manan) tried to call him (deceased) on mobile which was switched off; hereafter called his friend Naseebullah, who along with said Gul Muhammad were present at bypass. He visited them at bypass and tried to get him (deceased) realize of his improper conduct towards Zain-ud-Din, his cousin, but the former provoked, brought his pistol and tried to make fire which was intervened by Naseebullah, he was seated in his car having pistol in his hand. It was further stated that deceased Gul Muhammad left the place of quarrel, in the meantime, they were attracted of fire shot, perhaps it was triggered unintentionally and the vehicle collided with a nearby tree, the accused along with Naseebullah rushed towards the vehicle, found the decea sed in pool of blood and shifted him to hospital, subsequently he has falsely been involved in the instant case. He prayed for his acquittal. However , the accused persons did not produce any witness in their defence.
4. The trial Court, after hearing the parties and evaluating evidence found the accused/appellants guilty , as such, convicted and sentenced them for the period mentioned hereinabove, hence this appeal.
5. Learned counsel for the accused/appellants argued that the judgment impugned passed by the trial Court is contrary to facts, law and principles of natural justice, as such, is not sustainable under the law and is liable to be set aside; that initially name of the appel lant No.2 (Zain-ud-Din) was not mentioned in the FIR, and inserted later on, but this important aspect of the matter went unattended by the trial Court. He further added that the case of the prosecution is not free from dents and doubts there are glaring illegalities and irregularities on the part of Levies and dishonest improvements and material contradictions in the statements of witnesses but not considered by the trial Court which ultimately caused miscarriage of justice. He prayed for setting aside the impugned judgment and acquittal of the appellants/accused.
6. On the other hand, learned APG strongly opposed the appeal by submitting that the judgment impugned passed by the trial Court is based on proper appreciation of the evidence which does not suffer from any legal infirmity or inherent defect or non-reading and misreading of evidence warranting interference by this Court. He added that the learned counsel for the appellants/accused failed to point out any specific illegality , irregularity or non-reading and misreading of the evidence in the impugned judgment, as such, the appeal filed by the appellants/accused is liable to be dismissed.
7. We have heard the learned counsel for the parties and have gone through the record with their assistance which reflects that the instant case was registered with the history of a fateful incident and murder of deceased Gul Muhammad occurred on 02.12.2014 as per prosecution story when he along with his son Aryan were present at bypass the accused persons including the appellants came, launched an attack and committed his murder by making fire by the accused Zain-ud-Din and caught hold by the accused Abdul Manan. The incident was stated to be witnessed by PW-1 Muhammad Aryan /complainant, son of deceased. Surprisingly the dead body of his father was shifted to hospital by the convict/appellant Abdul Manan which is against the human conduct and A does not appeal to logic and reason. If PW-1 Muha mmad Aryan, the son of deceased was the eye witness of this case the dead body of deceased should have been shifted to the Hospital by him instead of accused Abdul Manan (convict/appellant), which is manifest from the record vide, Death certificate (Exp/7-A) wherein it has been mentioned that the dead body of deceased Gul Muhammad was brought by Abdul Manan son of Abdul Khaliq.
Such a conduct of real son is beyond comprehension of a man of prudent mind, in fact makes his presence on the spot doubtful.
8. Story narrated by the prosecution is not believable nor supported from any independent and unimpeachable source. Naseebullah an important eye witness of the incident was examined under section 161 Cr.P.C. on 02.01.2014 i.e. on the very first day of incident but his name is not included in the calendar of witnesses. It shows biased conduct of the police as alleged by the defence. It is presumed that if he had entered the witness box, he would have not supported the prosecuti on case. In this respect, reliance is placed on a judgment titled Abdul Jabbar v . State 2017 SCMR 1 155. Relevant portion is as under: "Both the eye-witnesses produced by the prosecution, i.e. Madad Ali complainan t (PW5) and Muhammad Abbas (PW6) were very closely related to Manzoor Ahmed deceased inasmuch as the complainant was the son of the deceased and the other eye-witness was a nephew of the deceased. Both the said eye-witnesses were chance witnesses who had failed to establish the stated reason for their availability at the scene of the crime at the relevant time through any independent evidence. An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot. The Medico-legal Certificate issued in respect of Manzoor Ahmed deceased when he was alive shows that the injured victim was brought to the hospital not by the above mentioned eyewitnesses but by a police official which showed that in all likelihood the said eyewitnesses had been procured and planted in this case at some subsequent stage. Post-mortem Examination report pertaining to the dead body of Manzoor Ahmed deceased revealed that despite the deceased having breathed his last in the hospital post-mortem examination of the dead body had been conducted after about 12 hours of his death which again indicated that time had been consumed by the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution.
According to the FIR the place of occurre nce shows that the murder of the deceas ed had been committed inside a compound of an lhata which surely was not a proper place for cattlehead to graze. Apart from that the above mentioned eye-witnesses had claimed to have seen the occurrence from a distance of about 117 and a half feet and still they had claimed to have witness ed every detail of the incident including the different weapons being used by the accused party which was a claim too tall to be accepted".
9. It is important to note here that no phone record or even cell phone/SIM of the appellant Abdul Manan was taken into possession to prove that he had called PW-1 Muhammad Aryan as alleged by the latter . No finger prints of the appellants were obtained for expert opinion nor pistol was examined by Finger Print Expert.
10. So far as the medical view furnished by PW-7 Dr. Mujahid Ali Khan Medical Officer Pishin vide report (Ex.P/7-A) is concerned it reveals of a single firearm injury on left side of chest that of the dece ased and it suggests that at the time of incident he was holding pistol in his right hand, which got triggered and caused him injury on left side of chest.
11. Now coming to the credibility of PW-9 Muhammad Jaffar who alleges to have witnessed the incident to the extent of seeing the appellants Abdul Manan, Zain-ud-Din and absconding accused Abdul Razzaq and Zainullah running towards 'Adda' is not worthy of reliance for the reason that his statement under section 161 Cr.P.C. was recorded on 07.12.2014 i.e. after unexp lained delay of five (05) days and his version is not supported by any independent and unimpeachable sourc e. Therefore, false implication of appellant after deliberation and consultation cannot be ruled out of consideration.
Reference, in this behalf, can be made to Kamal Hussain v. State 2004 PCr.LJ 813. Relevant portion therefrom reads as under: "12. How and why these two P.Ws. chose to be away from the Investigating Agency for 7/8 days and even more is also not understandable. Though in their attempt to explain it they sought refuge in their supposed apprehension by the police in a case registered against them at the instance of Qamar Abbas under section 324, P.P.C. but this explanation, to say the least, is not plausible on any count as they were not charged in the case metioned above during the relevant days. Even if it be so their evidence in a triple murder case was more important than their apprehension in a case registered against them under section 324, P.P.C. Their escapist attitude over and above their failure to give a prompt version of the incident beside giving rise to the inferen ce that the account furnished by them is fabricated, will also suggest that they too one way or the other contributed to the tragedy resulting in death of the three and injuries to many .
13. Why the witnesses bearing the stamps of injuries on their persons were withheld is again a question awaiting answer with much greater impatience and intensity . In an ordinary case their non-production could have been ignored but in view of the partisan charac ter of the examined P. Ws., their belated examination by the police, and a glaring inconsistency between the ocular account furnished by them and the medical evidence, their production was all the more essential rather indispensable to prove the charges against the appellant and the acquitted co- accused beyond doubt. It is here that the law of evidence would call for drawing adverse inference against such non-production."
12. Evidence reveals that when the car driven by the deceased hit a tree the licensed pistol of the deceased, held in his hand, got triggered causing him the firearm injury.
13. Adverting to the plea raised by the defence with regard to arrival of accused Abdul Manan and annoyance of the deceased with the complaint of his cousin namely Zain-ud-Din who had allegedly misbehaved with the deceased, is supported by the factum of taking out pistol by the deceased, his leaving in car in angry mood, the collision of his car with a nearby tree, recovery of Licensed pistol of the deceased and one empty shell from inside the car of the deceased. It is further observed that no previous enmity was existing between the deceased and the appellants which could have resulted into the death of the deceased at the hands of the appellants.
14. When both the versions i.e. of the prosecution and defence are kept in juxta position, the plea raised by the defence is more convincing and nearer to real facts.
15. The infirmities in the case of prose cution have created reasonable doubt in the case of prosecution. The accused is a blue-eyed favorite child of law and is entitled for benefit of even a slightest doubt, but it should be "Reasonable".
16. Needless to mention here that the defence is not required to create a series of dents and doubts in prosecution case but for giving the benefit of doubt if a single doubt is created even then the defence is entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right. In this respect reliance is placed on the judgment titled as Muhammad Akram v. The State Reported in 2009 SCMR 230. Relevant observation there from are reproduced herein below:-- "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 occur in favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervaiz 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 create 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".
Reliance can also be placed on ease titled as Sher Umer Khan v. Khan Pur alias Khaney and 2 others reported in PLD 2015 Peshawar 143 wherein it held as under;-- "It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy , convincing and coherent evidence enabling the court to draw conclusion: whether the prosecution has succeeded in establishing accusation against the accused or otherwise: and if it comes to the conclusion that the charge so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover , accused is always considered as the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance can be placed on case titled, "Fariad Ali v. State" 2008 SCMR 1086 ".
17. In view of what has been discussed hereinabove, we are inclined to hold that the prosecution has failed to prove the charge against the appellants beyond reasonable doubt.
For the above reasons, the judgment impugned dated 24.05.2017 passed by the Additional Sessions Judge, Pishin, is set aside and while extending benefit of doubt appellants namely Abdul Manan son of Abdul Khaliq and Zainuddin son of Muhammad Din are acquitted of the charge under section 302(b), 34 P.P.C. in FIR No.130 of 2014 PS Pishin. The appellants being in custody are ordered to be released forthwith, if not required in any other case.