Anwaarul Haq Pannun, J. This single judgment shall decide Criminal Appeal No.689 of 2017, filed under Section 410 Cr.P.C by the appellant and Crl. Revision No.35 of 2018 filed by the complainant against the judgment dated 04.12.2017, on the conclusion of trial in case FIR No.285/2015, dated 26.08.2015, offence under Section 302 PPC, registered at Police Station Abadpur , District Rahimyar Khan by the learned Sessions Judge, Rahimyar Khan, whereby the appellant has been convicted and sentenced as under:- Under Section 319 PPC "to pay "Diyat" i.e. 16,80,320/- to the legal heirs of the deceased alongwith rigorous imprisonment for five years as Ta'zir. Benefit of Section 382-B Cr.P.C is extended to the convict."
2. The case of the prosecution as contained in the FIR (Exh.PC/1) lodged on the written complaint (Exh.PC) of the complainant Noor Ahmad (PW-4) is to the effect that on 26.08.2015, at about 6.30 a.m., Hafiz Samdani Kamboh being panic stricken came to him clamouring that earlier one of his buffalo had died, due to snake biting, once again a black snake has come to his house, whereupon the complainant and Nafees Ahmad, while armed with rifle started walking towards the house of Hafiz Samdani, his son Muhammad Altaf and one Muhammad Bakhsh followed them, when they reached at the house of Hafiz Samdani, in the meantime, the appellant came there, who started abusing to Nafees Ahmad whereupon an altercation took place between Nafees Ahmad and the accused. The accused became infuriated and after snatching the gun from Nafees Ahmad, made straight fire with it landing on his back and near right elbow of Nafees Ahmad, deceased, who fell down and succumbed to the injuries on his way to Sheikh Zayed Hospital, Rahimyar Khan. The motive behind the occurrence was that there were litigation and dispute between the deceased and the accused.
3. The investigation was encapsulated into a report under section 173 Cr.P.C, which was duly submitted before the learned trial Court, while taking cognizance of the offence, the learned trial Judge after supplying the requisite copies of the statements to the accused as required under Section 265(c) Cr.P.C, charge sheeted him, to which he pleaded not guilty , while professing his innocence and claimed trial. The learned trial Judge directed the prosecution to produce its evidence for establishing the charge. The prosecution has produced as many as 11 PWs, in order to prove the charge against the appellant. The medical evidence has been furnished by Dr. Haji Ahmad Khan Durrani, M.O (PW-1), who on 26.8.2015 conducted postmortem examination on the dead body of deceased Nafees Ahmad and issued his postmortem report Exh.P A and pictorial diagrams Exh.P A/1. He noted the following two injuries on the dead body of deceased:-
1. Circular penetrating wound having burning with inverted margins on right upper portion of back of chest just below right scapula 2 cm from mid line, 13 cm below from base of neck, 3 x 3 cm in diameter (entry wound). On deep dissection, cartridge and some pellets recovered which were sealed and handed over to police p/s Abadpur .
2. Multiple lacerated abrasions on right elbow area measuring 0.5 x 0.5 cm, 0.4 x 0.3 cm, 0.2x 0.5 cm, 0.4 x 0.3 cm. All injuries are skin deep. All abrasions are in area of 6 x 6 cm diameter .
OPINION :- "After conducting autopsy , I was of the opinion that injury No.1 by fire arm leading to severe damage to right lung, excessive hemorrhage, hemorrhage, shock and caused death in ordinary course of nature. All injuries were ante- mortem in nature. Fracture of 5 rib was seen in skiagrams.
Probable time that elapsed Between injury and death within 1-2 hours. Between death and post mortem within 2 to 4 hours.
Noor Ahmad, complainant (PW-4) and Muhammad Bakhsh(PW-5) have furnished the ocular account. Matloob Ahmad Bajwa, Inspector RIB (PW 8) and Abdul Hadi SI (PW-9) are the Investigating Officers of the case. The evidence of rest of the PWs being formal in nature, except PW-2 Riaz Ahmad Patwari, who prepared Exh.PB/1, the scaled site plan showing the house of Hafiz Samdani as the place of occurrence, needs no serious debate.
The learned Prosecutor, while giving up witnesses namely Muhammad Altaf, Najeeb Ullah, Hafiz Samdani, Irfan Afzal 266/C, and after tendering positive reports of Forensic DNA & Serology Analysis and Firearms & Toolmarks Examination (Exh.PJ & Exh.PK) closed the prosecution's evidence. The accused/appellant, when examined under Section 342 Cr.P.C, refuted the evidence put to him and in reply to a question as to "why this case and why the PWs have deposed against him", replied as under:- "The story of prosecution is fabricated. FIR is concocted and based on malafide intention. Complainant/PW4 and PW.5 Muhammad Bakhsh were not present at the time and place of incident. Complainant is a greedy person and PW.5 lives under his supervision and is dependent upon PW.4. The FIR has been registered by complainant for blackmailing and taking punitive benefit from me. The local police has also registered and investigated this case with malafide intention and in collusion with the complainant. I had no grudge, dispute, litigation or any previous enmity with the deceased and his family. I cannot even think of killing the deceased and his any family member.
The real facts are that on 26.08.2015 in early morning, I heard noises that a dangerous snake had come in the house of Hafiz Samdani which had also previously appeared in his house and bit his buffaloes and resultantly some of the buffaloes died. On hearing out cry, I also went there. When I reached there, number of people from locality were already present. Meanwhile, Altaf Ahmad (given up PW) s/o Noor Ahmad complainant alongwith his gun reached there. Altaf Ahmad (given up PW) requested me to take his gun and kill the snake. Other people present there also asked me to kill the snake with gun. Meanwhile, Hafiz Samdani (given up PW) asked the people present over the place of occurrence that they should get away and disperse them from the place of incident, and they started getting away . Altaf Ahmad (given up PW) voluntarily handed over his gun and cartridges to me for killing snake, in the presence of other people. When I was loading the gun and closing the same, the fire was made itself suddenly . I had no intention to cause the death of or harm to any person. I am innocent and have been involved falsely in this case. The PWs being relatives of deceased have deposed falsely . PWs are related inter-se and deposed against me with some ulterior motive.
The appellant neither opted to appear as his own witness under Section 340(2) Cr.P.C. nor produced any evidence in his defence. On the conclusion of trial, the learned trial Court has convicted and sentenced the appellant vide its impugned judgment dated 04.12.2017 as alluded to in paragraph No.1 of the instant judgment. Hence, this appeal.th
4. Learned counsel for the appellant submit that the ocular account furnished by PW-4 and PW-5 is not worthy reliance for the reason that (i) being closely related to each-other and the deceased (ii) for making dishonest and deliberate improvements, in order to change the demeanor of occurrence as of an intentional murder , (iii) the recovery of double barrel gun 12 bore is not proved, (iv) Firstly there exists no motive with the appellant for committing the offence and secondly , the so-called subsequently motive introduce d by the prosecution has even not been proved, (v) During the course of investigation, the case of the complainant has been nullified, (vi) The learned trial Judge while passing the conviction under Section 319 PPC had in-fact disbelieved the prosecution evidence, while acquitting the appellant from the charge under Section 302 PPC, hence, conviction cannot sustain, which has been passed under the wrong legal assumptions, hence, it is liable to be set aside. Lastly he prayed for acquittal of the appellant from this case.
5. Conversely, learned Assistant District Public Prosecutor for the state has supported the impugned judgment whereas, learned counsel for the complainant while arguing the revision petition has also prayed for enhancement of sentence of the appellant.
6. Arguments heard and record perused.
7. Before analyzing the prosecution's evidence through a minute judicial scrutiny, it is straight away observed that
(i) time of occurrence, as mentioned in the FIR, lodged by Noor Ahmad complainant, (ii) the place of occurrence as per site plan (Exh.PB) prepared by Riaz Ahmad, Patwari (PW-2) being the house of Hafiz Samdani, (iii) the death of deceased through firearm injuries, are not in dispute in this case. It will, thus, be appropriate, in the light of arguments of learned counsel of the parties to scrutinize the available prosecution ocular account furnished by Noor Ahmad complainant (PW-4) and Muhammad Bakhsh (PW-5) to determine as to (i) whether there existed any previous ill-will or enmity between the deceased and the appellant as a motive prodding him for abusing, snatching 12 bore double barrel gun and then firing at him and if not (ii) whether the case of the appellant comes within the en-catchment of maxim "actus non facit reum nisi mens sit rea"? For this purpose, it will be relevant to refer certain excerpts from the evidence of prosecution.
Noor Ahmad, complainant (PW-4) deposed during the cross-examination that "No criminal case stood registered between the complainant party and the accused party prior to registration of this case. No civil litigation was pending between the parties prior to this case." Matloob Ahmad Bajwa, Insepctor RIB/I.O (PW-8) stated during cross-examination that "Motive of the occurrence was the appearance of snake near the house of Hafiz Samdani PW.... The accused also took the version before me that he had no enmity of any kind with the deceased.... According to my investigation, version of complainant that before firing, altercation took place between the deceased and accused, was found false.... In my investigation, incident took place due to negligence of accused Ashiq Elahi, and no intention of murder was found in my investigation.
The above referred evidence clearly shows that there existed no previous ill-will, enmity creating any mens rea in the mind of the appellant against the deceased. The learned trial Judge has also held that the prosecution has miserably failed to prove the existence of previous enmity between the parties, thus, the motive as alleged in the complaint (Exh.PC) is not established, therefore, it is held that there existed no reason with the appellant, for abusing him, while snatching his gun, for firing at the deceased.
8. From the facts of the case and the evidence available on record, it is quite discernable that the appellant had not snatched the rifle from the deceased for firing at him or at the snake, rather the rifle was handed over to him by the deceased himself. He after having been handed over the rifle, was just filling the cartridges in the rifle, when it went off hitting unfortunately to the deceased, which resulted into his death. Abdul Hadi, SI/I.O (PW-9) has deposed that as per Hafiz Samdani (given up PW), the best evidence with the prosecution, the gun was handed over to Ashiq Elahi with the consent of the complainant party . The accused after taking the gun, loaded the same with two cartridges, when the gun itself went off suddenly and the fire hit Nafees deceased. Matloob Ahmad Bajwa, Inspector RIB(PW -8) deposed in cross-examination that the gun was very old and when he (accused Ashiq Elahi) was loading the gun, the fire was sudden ly happened. He further deposed that in the light of evidence produced before him on 30.08.2016, he was of the opinion that at the time of occurrence Altaf Hussain brought double barre gun at the spot and handed over the same to Ashiq Elahi and requested to make fire at the snake, and when Ashiq Elahi loaded cartridge in the gun, fire was happened accidentally , and that Ashiq Elahi did not fire at the deceased intentionally . It is admitted by Noor Ahmad complainant (PW-4) that the rifle, which was being carried by Nafees was an unlicensed weapon. It can thus, be concluded that in-fact, it was the dece ased, who himself handed over the gun to the appellant, which ultimately resulted into his unfortunate death without being any intention behind it on the part of the appellant. It has been held by the apex Court in case titled "NASIR ABBAS versus THE STATE and another " (2011 SCMR 1966 ) that:- "Act does not make a person guilty unless the mind is also guilty. Actus reus in simple parlance is the actual act of committing some offence contrary to the law of land mens rea is the intent to commit that offence. If either of the elements is missing, the conduct would not attract a penal provision unless it is a case of strict liability wherein absence of mens rea may not be fatal to prosecution. "
Furthermore, the complainant did not challenge the result of investigation, condu cted by the aforesaid Inspector RIB(PW -8) before any higher forum. In view of above analysis of the prosecution' s evidence and in the light of above ratio, I hold that neither there existed any enmity or ill-will inter-se the appellant and the deceased for propelling him to commit the murder of the deceased nor he did any intentional act in order to murder the deceased.
9. So far as recovery of double barrel gun P-5 on the pointing out of the appellant and positive reports of Forensic DNA and Serology Analysis Exh.PJ and Firearms & Toolmarks Examination Exh.P K are concerned, the same do not render any corroboration to the prosecution for proving the recovery of the rifle on his pointing out for more than one reasons (i) it is admitted by Noor Ahmad (PW-4) that "the rifle which was being carried by Nafees Ahmad deceased was an unlicensed weapon , (ii) Matloob Ahmad Bajwa, Inspector RIB (PW-8) deposed that Hafiz Samdani got recorded his statement before him and according to his statement, the accused Ashiq Elahi threw the gun at the spot and went away , whereas Shafique Ahmad 921/C (PW-6) and Abdul Hadi SI/I.O (PW-9) deposed that on 26.11.2015, accused Ashiq Elahi made disclosure in the presence of PWs and got recovered a double barrel gun P-5 from a room towards south of brick kiln situated in Mouza Fazalab ad, obviously an open place. In view of this situation, the recovery appears to be doubtful and is not believable, hence the recovery followed by positive report of PFSA (Exh.PK) is inconsequential in this case.
10. The learned trial Judge proceeded to convict the appellant under Section 319 PPC, whereas the law laid down in case titled "MUNIR AHMAD versus THE STATE" (PLD 2000 Lahore 425), wherein it has been held that Provision of S. 318 P.P.C. would be attracted in case of a deliberate act on the part of accused person to do one thing but because of a mistake of act or of fact the end result of such an act was different from that intended by the accused person. Accused was charged and convicted under S.319, P.P.C. for causing death by accidental firing...Accused had neither used his rifle nor had fired any shot therefrom by design or with intention to do so....Where Trial Court admitted that the rifle had gone off accidentally , Court was not justified in invoking the provisions of S.319, P.P.C. against the accused as his case was fully covered by provisions of S.80, P.P.C. ....Nothing was available on record to show that accused had not used proper care and caution in that regard....
Sentence an d conviction passed by T rial Court were set aside.
11. For what has been discussed above, the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. The benefit of doubt has accrued in favour of accused as the Hon'ble Supreme Court of Pakistan has held in case titled "Muhammad Khan and another Vs. State" (PLJ 2000 SC 1041) that it is axiomatic and universal recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover it is cardinal principle of criminal jurisprudence that a single instance giving rise to a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case titled as "Muhammad Akram versus The State" (2009 SCMR 230) and "Tariq Pervaiz Vs. The State" (1995 SCMR 1345). Consequently, the instant Appeal is allowed, the conviction judgment dated 04.12.2017 passed by learned trial Court is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt. The appellant Ashiq Elahi is directed to be released forthwith, if not required in any other case, whereas the Crl. Revision No.35 of 2018 filed by the complainant is dismissed.