Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 330 of 2015 filed by Shaukat Hussain appellant and M.R No. 48 of 2015 sent by Trial Court for confirmation of his death sentence or otherwise, as both the above stated matters have arisen out of the same judgment dated 28.05.2015 passed by learned Addl.
Sessions Judge, Dera Ghazi Khan, whereby he was convicted and sentenced as under .
Shaukat Hussain (Appellant)
He was convicted under Section 302 (b), P.P.C. and sentenced to DEATH along with compensation of Rs.
100,000/- under Section 544-A, Cr.P.C., to be paid by him to the legal heirs of the deceased and in default thereof to further undergo 6-months S.I.
Whereas co-accused Ghulam Yasin was acquitted in case FIR No. 211 Dated 10.07.2014 under Sections 302/148/149, PPC Police Station Kala. District Dera Ghazi Khan.
2. The facts of the case have been stated by Muhammad Hussain complainant PW-4 in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:-- "Stated that on 10.07.2014 after Aftari I was sitting in my Baithak Abdul Hameed nephew brought tractor trolley there and parked the tractor in the garage. After that Abdul Hameed, Mohammad Nawaz and Haji Abdullah went to take bath on the miner (canal). When they reached on the supply point (Daat) of the canal, in the meantime Shaukat armed with Kalashnikov, Yasin armed with Kalashnikov along with 3 unknown accused persons those were at some distance from them. Accused Shaukat and Yasin raised Lalkara not to come ahead. Abdul Hameed replied that he was Bakhrani by caste and was not their enemy. Accused, Shaukat present in Court fired with his Kalashinkov which hit Abdul Hameed on left side of his chest. After receiving fire shot Abdul Hameed fell on the ground. On our hue and cry the accused fled away from the place of occurrence along with their respective weapons. The motive behind the occurrence was that the accused; considered Abdul Hameed as belong to Bakhrani tribe with whom they had enmity. We took injured to the hospital who succumbed to the injuries. The I.0 reached in Trauma Center, where he recorded my statement Ex.P.E, which was read over to me and in token of its correctness and I signed the same."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against the appellant and his co-accused (since acquitted) mentioned above to which they pleaded not guilty and prosecution evidence was summoned. Prosecution produced 9- witnesses (PW-1 to pw-9) and certain documents Exh.PA to Exh.PN-2. Medical evidence has been furnished by Dr.Muhammad Athar Sikhani PW.7. who conducted post-mortem examination on the dead body of Abdul Hameed deceased.
4. On the other hand, statements of the appellant and his co-accused (since acquitted) mentioned above were recorded under Section 342, Cr.P.C., who refuted the allegations so leveled against them. The appellant neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any evidence in his defence. However, certain documents i.e. Exh.DA & Exh.DB have been produced during evidence.
5. After conclusion of the trial, learned trial Court while acquitting co-accused convicted the appellant with above said sentence. Hence, this appeal.
6. Learned counsel for the appellant have contended, that:--
(i) impugned judgment of the trial Court is against law and facts on the file and is liable to be set-aside.
(ii) prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial Courts has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal of the appellant may be accepted and impugned judgment of the trial Court may kindly be set aside and appellant/convict may be acquitted.
7. On the other hand, learned D.P.G assis ted by learned, counsel for the complainant has vehemently opposed the appeal and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellant/convict with solid evidence and prayed for the dismissal of the appeal.
8. We have heard the learned counsel for the parties as well as learned D.P.G, on perusing the record with their assistance observed as under:-- i. The detail of prosecution case has already been given in para-2 of this judgmen t; therefore, there is no need to repeat the same to avoid the duplication and repetition. ii. Abdul Hameed was done to death on 10.07.2014 after 1-1/2 hours of "Aftari" on the bank of canal regarding which FIR Exh.PA was registered on the same night (10.07.2014: at 11.15 p.m.) on the statement made by Muhammad Hussain complainant PW-4 (paternal Uncle of deceased Abdul Hameed). No Source of light has been mentioned in the FIR. Both the eye-witnesses (Muhammad Hussain complainant PW-4 and Haji Abdullah PW-5) have also not stated in their Statements (examination-in-chief) regarding source of light as occurrence took place in the dark hours of the night. In such eventuality , identity of the appellant is not free from doubt. Rough site plan Exh-PH does not show the house of these two eye-witnesses around the place of occurrence. Both these witnesses were the chance witnesses but have failed to prove their presence at the time of occurrence at the place of occurrence with their stated reasons. Muhammad Hussain complainant PW-4 stated in his cross-examination that there was only one fire. After hearing the firing, he proceeded to the spot. Reliance is placed on cases titled "Arshad Khan vs. The State" (2017 SGMR 564). iii. Regarding motive, Muhammad Hussain complainant PW-4 stated in his cross-ex amination that there was no previous enmity between the deceased and the accused. No other motive has been introduced by the complainant against the appellant. iv. Kalim-Ullah S.I PW-6 stated in his Statement (examinution-in-chief) that on 27.07.2014 he arrested Shaukat Hussain appellant and Ghulam Yasin accused (since acquitted), on the same day, appellant during interrogation disclosed and got recovered Kalashnikov P5 from his house. Recovery memo. Exh.PJ in this respect shows that Haji Muhammad/Hussain complainant PW-4 is a recovery witness but he is residents of Chah Mosay Wala Mouza Kala Tehsil and District Dera Ghazi Khan and is not resident of the locality of the place of recovery (house of appellant Shaukat Hussain situated, at Mouza Jooni, Tehsil and District Dera Ghazi Khan). I.O. did not join any person from the locality of the house of recovery discussed above in the recovery proceedings, thus, recovery pertaining to Kalashnikov P5 is not believable. Reliance is placed on case titled "Ghulam Akbar and another vs. The State" ( 2008 SCMR 1064 ).
9. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
Reliance is placed on case reported as "Muhammad Akram vs. The State" ( 2009 SCMR 230 ).
10. For the foregoing reasons, Crl. Appeal filed by appellant (Shaukat Hussain) is allowed, his conviction and sentence awarded by the Trial Court through impugned judgment are hereby set aside. He Hussain appellant) is acquitted of the charge. He (Shaukat Hussain appellant) is directed to be released forthwith if not required in any other case. M.R is answered in NEGA TIVE and death sentence of Shaukat Hussain is NOT CONFIRMED.