Sadaqat Ali Khan, J.--Appellant Liaqat Ali alongwith Saifullah co-accused (since acquitted) has been tried by learned trial Court in case FIR No. 434 dated 23.06.2003 under Sections 302/34, PPC Police Station Factory Area, District Sheikhupura and was convicted and sentenced vide judgment 19.04.2004 as under: Liaqat Ali appellant u/S. 302(b), PPC Sentenced to death for committing Qatl-i-Amd of Nadia Bibi deceased with compensation of Rs. 50,000/- payable to the legal heirs of deceased as arrears of land revenue.
2. Appellant has filed this criminal appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise which are being decided through this single judgment.
3. Brief facts of the case have been stated by Imran Mahmood P.W.2 (real brothe r of Nadia Bibi deceased) in his Statement before the learned trial Court, which is hereby reproduced for narration of the facts: "On 22.06.2003,1 along with my Khalu Abdul Majeed and Khalu Muhammad Mansha came to the house of my brother-in-law (Behnoi) Liaqat Ali at Mian Colony , Begum Kot, Lahore, for receiving Rs. 2,00,000/- which was borrowed by the accused Liaqat Ali from my father . As it was late night, my sister asked us to stay there for night.
We all the three slept in the other room of the house while my sister and Behnoi slept in a separate room. At about 2.00 a.m. (mid night) we heard a fire shot from the room of my Behnoi. We all the three rushed to the room of my Behnoi where he within our sight fired second shot at my sister Nadia deceased which hit her on her head. I do not know the exact side of head where the shot hit. Saif Ullah accused, who is friend of Liaqat Ali, was also with him.
We raised alarm on which my Behnoi pointed his pistol towards us and we in order to save our lives came out of the house while running. I tried to inform my family at Sammonabad but they were not contacted. After that the accused Liaqat Ali called the police and lodged a false FIR of dacoity . My Behnoi Liaqat All in consultation with his co-accused Saif Ullah committed the murder of my sister Nadia deceased.
The motive behind the occurrence was the above said amount. I came back to the place of occurrence and saw the police was present. I inquired on which I was told that a murder has taken place during dacoity . I made a written application stating therein that this is not a dacoity , originally this is a murder of my sister which is committed by Liaqat Ali with his co-accused Saif Ullah. My application is Exh.P A which is signed by me."
4. Arguments heard. Record perused.
5. It is important to note here that earlier this case was decided by this Court vide judgment dated 05.05.2010.
Death sentence in offence under Section 302(b), PPC was converted into'imprisonment for 14-years R.I. in offence under Section 308, PPC. Crl. Appeal No. 268 of 2010 filed by Imran Mahmood P.W.2 against the said judgment (dated 05.05.2010) was allowed by the Hon'ble Supreme Court of Pakistan vide judgment dated 04.04.2016 and case was remanded to this Court for decision afresh on merits.
6. Nadia Bibi was done to death in between the night of 22/23 of June, 2003 in the house of her husband Liaqat Ali appellant, FIR was lodged on 23.06.200 3 at 2:45 a.m. on the statement Ex.P.J. made by Liaqat Ali appellant against unknown accused. After registration of FIR, Imran Mahmood P.W.2 (real brother of Nadia Bibi deceased) by moving (Written application Ex.P.A introduced Liaqat Ali appellant (complainant of FIR) as his accused while claiming himself and his maternal Uncles/Khalu (Muhammad Mansha P.W.3 and Abdul Majeed P.W.4) as eye- witnesses of the occurrence. Endorsement of Dilshad Ali S.I. P.W.13 at the bottom of statement of the appellant Liaqat Ali made by him for registration of FIR as complainant shows that police itself reached the place of occurrence and recorded the statement of the appellant Liaqat Ali as complainant at 2:30 a.m. (night) at the place of occurrence. Had Imran Mahmood P.W.2, Muhammad Mansha P.W.3 and Abdul Majeed P.W.4 whose names are not mentioned in the FIR as witnesses, been present at the time of occurrence at the place of occurrence/house of Liaqat Ali appellant around the dead body of the deceased, their names would have been mentioned in the FIR by the I.O. Dilshad Ali S.I. P.W.13, who alongwith other police officials reached the place of occurrence on getting information well mentioned in his endorsement discussed above. Even otherwise, Imran Mahmood P.W.2 is resident of 115-Rustam Park, More Samanabad, Lahore; Muhammad Mansha P.W.3 is resident of village Nain Sukh, P.S. Shandara, Lahore; Abdul Majeed P.W.4 is resident of llama Mashraqi Park, Sheikhupura City and are not resident of Mian Colony , Sheikhupura where the house of occurrence is situated. All the three P.Ws. were the chance witnesses, but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled " Arshad Khan vs. The State " (2017 SCMR 564 ).
7. The argument of learned DPG that in the circumstances like the present one, the conviction of the appellant can be maintained/ when wife of the appellant is found dead/murdered in his house and he does not satisfactorily explain the circumstances of the death, has no force because the basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accu sed, who is only burdened to prove a defence plea, if he takes one. The alleged unnatural death of the appellant's wife in his house may be a circumstance to be taken into account alongwith the other prosecution evidence. However , this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime, which is missing in the present case. Reliance is placed on case titled " Arshad Khan vs. The State " (2017 SCMR 564 ).
8. Recovery of pistol P-5 alongwith license in the name of Liaqat Ali appellant from the possession of Saifullah co-accused who has been acquitted, is not believable. Even otherwise, recovery of pistol in absence of positive report of PFSA regarding matching of crime empties with the weapon of offence is inconsequential.
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, the instant criminal appeal is accepted and conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment are hereby set aside. Liaqat Ali appellant is acquitted of the charges. The appellant is directed to be released forthwith if not required in any other case.
Murder Reference is answered in NEGA TIVE and death sentence of the appellant Liaqat Ali is NOT CONFIRMED .
11. In view of above decision, criminal revision filed by Imran Mahmood P.W.2 having become infructuous is disposed of.