Anwaarul Haq Pannun, J.--Riaz Hussain son of Lal .Bakhsh (appellant) along with co-accused namely Ghul am Shabbir , Sawan, Hazoor Bakhsh, Liaqat Hussain and Ahmed Bakhsh, being involved hi case FIR No. 51/2013 dated 22.03.2013, offence under Sections 302, 148, 149, PPC, registered with Police Station Umer Kot, District Rajanpur , was tried by learned Addl. Sessions Judge, Rojhan. On the conclusion of trial, the learned trial Court while acquitting all the co-accused, convicted and sentenced the appellant Riaz Hussain vide judgment dated 15,05.2015 in the following terms: Under Section 302 (b), PPC, sentenced to death as Ta'zir with direction to pay Rs. 2,00,000/- as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in case of default in payment thereof, to further undergo S.I. for six months.
2. Riaz Hussain, convict/appellant has assailed his conviction and sentence by filing Crl. Appeal No. 661/2015. The learned trial Court has submitted Murder Reference No. 95/2015 for confirmation or otherwise of the sentence of death inflicted upon the convict in terms of Section 374, Cr.P.C. Both matters have arisen out of the same judgment, therefore, are being disposed of through consolidated judgment.
3. Prosecution's story as projected through the statement (Exh.P A) of Nazar Hussain son of Kareem Bakhsh (PW- 1) on the basis of which formal FIR (Exh.P A/1) was lodged is to the effect that on. 22.03.2013, at about 7.30 p.m, after visiting Bangla Hidayat, he along with Karam Elahi, Sadiq Hussain and Piran Ditta was going towards their home on foot and as soon as they reached near date palm tree, abruptly , Riaz Hussain (appellant), Sawan, Hazoor Bakhsh, Ahmad co-accused (since acquitted) armed with sotas and Liaqat (since acquitted) armed with Kalashnikov emerged there and asked Karam Elahi that his brother Nadir Hussain had abducted their girl so they would teach him a lesson. Riaz Hussain gave sota blow hitting Karam Elahi on his mouth. Sawan gave sota blow which landed on his neck, Hazoor Bakhsh inflicted sota blow which hit on left ear of Karam Elahi. When the complainant tried to intervene, accused Liaqat Hussain pointed his Kalashnikov towards him and imparted threats of dire, consequences. Then Riaz Hussai n (appellant) tied his turban on the neck of Karam Elahi and dragged him upto 40 meters. On hue and cry of the complainant, the accused persons left the deceased and fled away from the place of occurrence on motorcycle. Subsequently , co-accused Ghulam Shabbir (since acquitted) was also implicated in this case in the supplementary statement made by the complainant. They shifted Karam Elahi in an injured condition to the Chowk of Bangla Hadayat where the injured succumbed to the injuries. The complainant along with Sadiq Hussain and Piran Ditta (PW -2) witnessed the occurrence.
The motive behind the occurrence as alleged in the FIR is that three years earlier Nadir Hussain brother of the complainant contracted love marriage with Mst. Zahida Perveen. Due to this grudge, M/s. Riaz Hussain, Sawan, Hazoor Bakhsh, Ahmad Bakhsh and Liaqat Hussain in prosecution of their common object/intention committed this murder . Hence, instant FIR.
4. Khuda Bakhsh SI/I.O.(PW -09) deposed that on 22.03.2013 he along with other police officials was present at Bangla Hidayat Chowk on patrol duty on official vehicle where Sadiq Hussain, Piran Ditta and Nazar Hussain brought dead body of Karam Elahi. He sent the dead body through Muhammad Jahangir .1091/C for post-mortem examination along with documents i.e. injury statements (Exh.PE) and inquest report (Exh.PE/1). Then, he along with. witnesses visited the place of occurrence, prepared rough site plan. (Exh.PF). On 23.03.2013 he secured last worn clothes of the deceased i.e. Ghadar (P-3), Shalwar (P-4), Qameez (P-5) and Sweeter (P-6); produced by Jahangir constable vide recovery memo. (Exh.PC). He on 14.04.2013 arrested accused Sawan, Riaz Hussain and Hazoor Bakhsh and obtained their physical remand. On 18.04.2013, the complainant nominated accused Ghulam Shabbir in his supplementary statement. On 25.04.2013 he arrested accused Ghulam Shabbir and obtained his physical remand. During physical remand the appellant Riaz made disclosure on 25.04.2013 and in pursuance thereof he got recovered `pagri' of white colour (P-1) which was taken into possession vide recovery memo.
(Exh.PB). He also got recovered motorcycle (P-2) which was taken into possession vide recovery memo.
(Exh.PB/1). The Investigating Officer also prepared site plan of the place of recovery as Exh.PB/2. On 15.05.2013. the I.O. got prepared scaled site plan (Exh.PD) from the Patwari concerned. He recorded the statements of the.
PWs stage-wise. He deposited the case property with the Moharrar of Maalkhana.
5. The investigation was encapsulated into submission of report under Section 173, Cr.P.C., the learned trial Judge took the cognizance, supplied the requisite statements under Section 265(c), Cr.P.C., 'framed the charge against appellant to which he pleaded not guilty and claimed trial.
6. In order to prove the charge against the appellant, the prosecution has produced ten (10) prosecution witnesses.
7. The ocular account in this case has been furnished by Nazar Hussain, the complainant (PW-1) and Piran Ditta (PW-2). Khuda Bakhsh, (PW -9) conducted investigation of this case.
Dr. Abdul. Hafeez (PW-10) had conducte d post-mortem examination on the dead body of deceased Karam Elahi on 22.03.2013 at about 8.30 a.m. and observed following injuries on his person:- "1. A small bruise of about 0.7 cm x 0.8 cm over the right side of nose and another bruise of about 0.5 cm x 0.5 cm in size over the right cheek.
2. There are two bruises of about 1 x 0.5 and 2 x 0.8 cm over the right and left knee joints.
Examination of neck.
A bruise (ligature mark) of about 1 1 x 2 cm deeply grooved mark up to the level of both right and left lobule (ear).
After conducting post-mortem examination, doctor rendered the following opinion: "On the basis of above mentioned injuries, the probable cause of death was strangulation by means of cloth (ligature) that caused asphyxia and ische mia to vital organs that is brain, which was sufficient to cause death in ordinary course of nature.
Probable time that elapsed between injury and death was within minutes while between death and post-mortem was within 14 hours."
Statements of rest of the prosecution witnesses are formal in nature.
8. Learned DDPP vide his statement dated 10.06.2015 gave up PW Ghulam Qadir as being unnecessary , thereafter , he vide his, statement dated 13.07.2015 closed the prosecution evidence.
9. The appellant when examined unde r Section 342, Cr.P.C.; wherein he refuted the incriminating material contained in the prosecution version. He did not opt to appear as his own witness in terms of Section 340(2), Cr.P.C., however , he opted to adduce defence evidence and thereafter by tendering Exh.DA in his defence closed the same. While replying to the question why this case against him and why the PWs deposed against him, appellant made the following deposition: "It was blind murder . The complainant in connivance with the police falsely involved me and others on the suspicion that Nadir ,Hussain brother of Karam Elahi had abducted Mst. Zahida Perveen, daughter of Sawan. In fact, the case for abduction of Mst. Zahida was got registered by Sawan but when Zahida Perveen made, statement before the Court denying her abduction then Sawan did not pursue the said case but the complainant had suspicion that we had murdered Karam Elahi which is wrong. The witnesses are inter se related and on the instigation of complainant, they have given false evidence".
10.On the conclusion of trial, the learned trial Court, convicted and sentenced the appellant as mentioned supra, however , his co-accused were acquitted by the learned trial Court.
11. After hearing learned counsel for the parties as well as learned Law Officer and going through the record, it is observed that five persons namely Riaz Hussain, Sawan, Hazoor Bakhsh, Liaqat Hussain and Ahmad Bakhsh were arraigned as accused out of them four accused-persons namely Sawan, Hazoor Bakhsh, Ahmad Bakhsh and Liaqat Ali were declared innocent during the course of investigation and they had been acquitted by the learned trial Court, on the same strength of evide nce only the appellant has been convicted and sentenced, while applying the principle of falsus in uno falsus in omnibus. Further keeping in view the overall depiction of occurrence when no recovery of Kalashnikov was affected from accused Liaqat Ali during the course of investigation and rest of the accused were alleged armed with sota/sticks, non-interference of the PWs for saving life of the deceased makes their presence at the place of occurrence doubtful. It is trite law that in murder case it is prime duty, excluding all other hypothesis to establish the presence of the PWs at the place of occurrence at the relevant time. Conduct shown by the PWs during the course of occurrence, it must commensurate with the natural conduct of the person placed in the similar situation of the common prudence. Furthermore, occurrence took place on 22.03.2013 at 7.30 PM whereas post-mortem over the dead body of the deceased was conducted on 22.03.2013 at about 8.30 a.m. and according to ddctor Abdul Hafeez, M.O. THQ Rojhan (PW-10) rigor mortis has been developed, thus delayed post-mortem itself indicates that when the occurrence has taken place during night hours neither within populated area rather at a deserted place, none has seen the occurrence. The co-accused have been acquitted by the learned trial Court, meaning thereby that appellant Riaz alone strangulated the deceased with turban of white colour (P-1) which compels us to hold that without the alleged assistance/help of the acquitted co-accused apparently it was not possible for the appellant single handedly to strangulate Karam Elahi (deceased) who was aged about 45 as per post-mortem report and healthy . The learned trial Court while disbelieving evidence of the prosecution has acquitted the co-accukd, which had also caused serious reperc ussion upon the veracity of the evidence of PWs. Applying the principle of falsus in uno, falsus in omnibus , the same evidence is liable to be disbelieved once again.
12. So far as recovery of 'Turban' (P-1) is concerned, the ocular account regarding the main occurrence has since been disbelieved by us therefore, recovery alone is of no consequences. Even otherwise, the recovery is deemed to be corroborative in nature and it is used for support of direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence. In the case of Muhammad Jail vs. Muhammad Akram and others (2009 SCMR 120) the august Supreme Court of Pakistan had held as under: "----S. 302(b)--Appreciation of evidence--Principle--In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence--When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."
13. As far as motive is concerned, it is double edged weapon which can cut either way. It is the prosecution's own case that there exists enmity between appellant's party on account of love marriage of brother of the complainant namely Nadir Hussain with daughter of accused Sawan, the complainant has opted to involve as many six other persons besides appellant, in this case, when, there exists no earthly reasons for sharing of their intention with the alleged principal accused.
14. Fact also remains that in the crime report besides the appellant, Sawan, Hazoor Bakhsh, Liaqat Hussain and Ahmad Bakhsh were also arrayed as accused whereas Ghulam Shabbir was implicated subsequently through supplementary statement out of them Sawan, Hazoor Bakhsh, Liaqat Hussain, Ahmad Bakhsh and Ghulam Shabbir were acquitted of the charge on the same set of evidence. It is settled principle of law that if evidence of the prosecution is disbelieved qua bulk of accused it cannot be believed qua the other in the absence of very strong corroboration, which is squarely missing in the case in. hand. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Akhtar Ali and others vs. The State (PLJ 2008 SC 269), Shera alias Sher Muhammad's case (1999 SCMR 697) and Sher Bahadur's case (1972 SCMR 651).
15. All the above narrated facts and circumstances when evaluated on judicial parlance reflect that the prosecution has failed to establish culpability of the appellant in the instant case through reliable, trustworthy and confidence inspiring evidence. It is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable dent in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez vs. The State" (1995 SCMR 1345 ) "Riaz Masih alias Mithoo vs. The State" (1995 SCMR 1730 ) and "Muhammad Akram vs. The State" (2009 SCMR 230). In the case of "Fariq Pervez vs. The State" (1995 SCMR 1345 ), the august Supreme Court of Pakistan has held as under: "----Art. 4--Benefit of doubt, grant of--For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts--If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
6. From the facts and circumstances narrated above, we are persuaded to hold that conviction passed by the learned trial Court the against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover , it is golden principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial Court vide impugned judgment dated 15.09.2015, Crl. Appeal No. 661 of 2015 filed by the appellant allowed as a consequence whereof he is ordered to be acquitted of the charge framed against him by extending the benefit of doubt. He is in jail, directed to be released in this case, in a trice, if not required in any other case.
17. Murder Reference No. 95 of 2015 is answered in negative. Death sentence is not confirmed .