2015 PLP 1515 (YLR)

ARSHAD MAHMOOD TABASSUM, J.

This petition under Sections 435/439 of Cr.P.C, calls in question judgment dated 19-10-2011, passed by the learned Additional Sessions Judge, Dera Ghazi Khan, whereby he upheld the judgment dated 31-3-2011, passed by the learned Judicial Magistrate, Dera Ghazi Khan, through which he con-victed the petitioner under section 337A(v), P.P.C., and sentenced him, to payment of Arsh, being 1/3rd of the Diyat, amounting to Rs.2,14,587 in default whereof, he was to be kept in jail till payment of the Arsh, as aforesaid.

2. Briefly, the petitioner, along with others, was tried by the learned trial court, in a private complaint filed against him and others under Sections 337A(ii), A(v)/148/ 149, P.P.C., and was convicted and sentenced as aforesaid.

3. The allegation against the petitioner was that, he along with his co-accused persons, on 3-5-2007, at about 5.30 p.m., launched an attack, upon the members of the complainant party. The specific allegation against the petitioner Zahoor Ahmad was that he while equipped with an iron rod, hit the same on the head of Muhammad Irshad complainant, while his co-accused, namely Abdul Ghafoor, gave sota blow on his head. Initially, case FIR No. 290, dated 3-5-2007, under sec-tion 337-A(ii)/34, P.P.C., was registered at Police Station Kot Chutta, Dera Ghazi Khan, but the complainant, being dissatisfied with the police investigation, filed the above said private complaint. The learned trial court, on conclusion of trial, acquitted co-accused of the petitioner, however, convicted and sentenced him, as aforesaid. The appeal filed by the petitioner against his conviction and sentence, failed before the learned first appellate court on 19-10-2011, hence, this petition.

4. Learned counsel for the petitioner has argued, that on the basis of the same evidence, co-accused of the petitioner have been acquitted, while he has been convicted; that the impugned conviction and sentence, is against law and facts of the case; that the complainant/injured P.W. namely, Muhammad Irshad, during the course of cross-examination, has stated that the injury caused to him by Ghafoor (co-accused of the petitioner) had bleeded; that this portion of the statement, of the complainant, has caused serious doubt, as to whether the injury for which the petitioner has been convicted, was caused to him by the present petitioner or his co-accused namely, Ghafoor, hence, in view of the above discrepancy, in the prosecution case, petitioner was liable to be acquitted by extending benefit of doubt but he has illegally been convicted and sentenced by the learned trial court, which has been erroneously upheld by the learned first appellate court.

5. Conversely, learned counsel for the complainant, has fully supported the impugned conviction and sentence.

6. I have heard the learned counsel for both the parties and myself perused the record.

7. It appears that the complainant, while appearing as P.W.2, has categorically stated as under:-- Similarly, he has stated:- From the above depositions, made by the complainant, it is quite clear that he sustained two injuries on his head. According to Doctor Farkhanda Jabin, P.W.1, she had observed two injuries on the head of Muhammad Irshad complainant which included:-- "'Injury No.

1. A lacerated wound of about 6 cm x 1 cm in the middle and top of head bone was exposed. Injury No.2 There was swelling about 5 cm x 4 cm with bruise on it at the right temporal region of the head." The injury attributed to Abdul Ghafoor, co-accused of the petitioner, was on the left side of head. In this regard, in para No.1 of the complaint, it is mentioned as under:- Thus, injury No.2, as mentioned above, which was found on the right temporal region of the head, cannot be attributed to Zahoor Ahmad petitioner. Further, the complainant, during cross-examination states:--

8. Considering the above depositions of the complainant/injured P.W., it appears that the bleeding must have oozed from injury No.1, which was a lacerated wound and not from injury No.2, which was just a swelling. Therefore, it appears that the complainant has attributed injury No.1, to Abdul Ghafoor. This being so, a serious doubt arises, that the petitioner had not caused injury No.1, for which, he has been convicted and sentenced by the learned trial court and upheld by the learned first appellate court. Moreover, the petitioner was found not guilty during police investigation and the weapon of offence was also not recovered from him.

9. It is well settled by now that the benefit of even the slightest doubt, has to go to the accused and there may not be several doubts, to acquit an accused rather, even a single doubt, causing reasonable probability, in the prudent mind, that the accused is not guilty, is sufficient to acquit him. Reference, in this regard, may be made to the case of Ayub Masih's case (PLD 2002 SC 1048), wherein the apex Court has ruled as under:-- "It is also firmly settled that if there is an element of doubt as to the guilt of the accused, the benefit of that doubt must be extended to him. The doubt, of course, must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in "The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal, is better than his mistake in punishing an innocent."

10. In the light of above discussion, I am of the view, that both the learned courts below, have misread and misconstrued the evidence available on record and thereby wrongly convicted and sentenced the petitioner. Accordingly, by accepting this petition, the impugned conviction and sentence is hereby set-aside, and the petitioner is acquitted of the charge.

11. Petition allowed. ARK/Z-23/L Petition allowed.