2023 P Cr (PLP)

SADAQAT ALI KHAN, J.

Shahbaz Ahmad appellant along with his co-accused Suleman Ali and Fayyaz Ahmad (since acquitted) has been tried by learned trial Court in case FIR No.147 dated 12.06.2012 offences under sections 302, 404, 449, 109 and 34, P.P.C. Police Station Pharianwali, Tehsil Phalia, District Mandi Bahauddin and was convicted and sentenced vide judgment dated 20.06.2015 as under:- Shahbaz Ahmad (appellant) Under section 449, P.P.C. He was sentenced to 7-years R.I with fine of Rs.10,000/- and in default whereof to further undergo S.I for 3 months. Under section 302(b), P.P.C. He was sentenced to imprisonment for LIFE as 'Tazir' for committing Qatl-i-amd of deceased Rozi Khan, along with compensation of Rs.3,00,000/- payable to legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof to further undergo 6-months S.I. Under section 404, P.P.C. He was sentenced to 2-years R.I along with fine of Rs.5,000/- and in default whereof to further undergo S.I for 1 month. Under section 411, P.P.C. He was sentenced to 2-years R.I along with fine of Rs.5,000/- and in default thereof to further undergo 1-month S.I. All the sentences were ordered to be run concurrently with benefit of section 382-B, Cr.P.C.

2. Shahbaz Ahmad appellant (convict) has filed appeal against his conviction whereas complainant has filed Criminal Revision for enhancement of his sentence which are being decided through this single judgment.

3. Arguments heard. Record perused.

4. Rozi Khan was done to death on 11.06.2012 at 03:00 p.m. on upper portion of his house whereas FIR was lodged on 12.06.2012 at 11:30 a.m. on the written application Exh.PB moved by his paternal uncle Yar Muhammad (PW-2) with the delay of about 21 hours. Both the eye-witnesses while explaining delay in lodging of the FIR stated in their statements before the trial Court that appellant and his co-accused Suleman Ali and Fayyaz Ahmad (since acquitted) while leaving the place of occurrence locked the out door of the house confining them in the house with the dead body. On the following day i.e. 12.06.2012 at 10:00 a.m. one Qayyum came their, who by unlocking the door of the house made them free. Qayyum in this respect was the most material witness but he has been withheld with the reason best known to the prosecution. So, presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order 1984 can fairly be drawn that had the above mentioned witness been produced, he would have been deposed against the prosecution. Reliance is placed on case titled "Riaz Ahmed v. State" (PLJ 2010 SC 877). Hence, the explanation regarding the delay in lodging of the FIR is not believable.

5. Admittedly, both the eye-witnesses are not the resident of the house of occurrence and rough site plan Exh.PL and scaled site plan Exh.PA/1-3 do not show their houses around the place of occurrence. Both were chance witnesses but they 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 "Muhammad Rafique v. The State" (2014 SCMR 1698).

6. Dr. Abid Majeed (PW-8) who conducted post mortem examination on the dead body stated in his statement before the trial Court that dead body of the deceased was received in the dead house at 09:25 p.m. whereafter autopsy was conducted at 09:30 p.m. on 12.06.2012 with the delay of about 31 hours. Such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted. Reliance is placed on case titled "Irshad Ahmad v. The State" (2011 SCMR 1190).

7. Motive of the occurrence mentioned by Yar Muhammad (complainant/PW-2) in his statement before the trial Court is dispute of give and take but did not explain it, which is not believable.

8. Recovery of pistol on pointing of the appellant in absence of the positive report of PFSA regarding matching of the crime empties with the weapon of offence is inconsequential in the present case. Likewise, the recovery of Rs.70,000/- on pointing out of the appellant, considering the peculiar circumstances of this case, is not believable.

9. In view of the above discussion, I entertain serious doubt in my mind regarding participation of the appellant in this 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.

10. For the foregoing reasons, this appeal is allowed, conviction and sentence of appellant (Shahbaz Ahmad) awarded by learned trial Court through impugned judgment are hereby set-aside, he is acquitted of the charges. He is directed to be released forthwith, if not required in any other case.

11. In view of the above decision, Criminal Revision filed by the complainant against the appellant for enhancement of his sentence having become infructuous is disposed of. JK/S-19/L Appeal allowed.