2022 P Cr (PLP)

SADAQAT ALI KHAN, J.

Appellant (Shahid Hussain) has been tried by learned trial Court in case FIR No.359 dated 15.05.2013 offences under sections 302, 392, 411, P.P.C. registered at Police Station Shah Rukn-e-Alam, District Multan, and was convicted and sentenced vide judgment dated 17.03.2017 as under:- Shahid Hussain (appellant) Under section 302(b), P.P.C. Sentenced to DEATH as Tazir for committing qatl-i-amd of Muhammad Zaman (deceased) with compensation of Rs.2,00,000/- payable to legal heirs of the deceased under section 544-A, Cr.P.C. which shall be recovered as arrears of land revenue in default whereof to further undergo simple imprisonment for 3 months. Under section 392, P.P.C. Sentenced to three years' R.I. with fine of Rs.50,000/- in default whereof to further undergo simple imprisonment for 3-months. Benefit of section 382-B, Cr.P.C.is also extended to the convict.

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 Qamar Zaman (PW-7) in his statement before learned trial Court, which is hereby reproduced as under for narration of the facts:- I along with my brother Allah Yar and my cousin Zahid Hussain No.54/C and Muhammad Zaman Constable/Driver were residing together in a house situated at Sui Gas Road near E-Block, Shah Rukn-i-Alam Colony, Multan. On 14.05.2013 at about 8:30 p.m., I along with Allah Yar, Zahid Hussain Constable went to the hotel in front of our house for taking meals and in our absence, Muhammad Zaman my brother was present alone at home. We were busy in taking meals when we heard shrieks of Muhammad Zaman from home and we immediately went towards the house runingly and saw that the small door of the house was open and motor cycle of Muhammad Zaman No.5072/MNR, 2011 model CD.70 was parked outside the house. While Muhammad Zaman was raising hue and cry and shrieks in the drawing room of the house. When we reached at the door of drawing room, the electricity bulb was on and we saw in the light of electricity bulb that three culprits had made Muhammad Zaman fallen on the floor and out of them, one was Babar Hussain son of Bashir Ahmad armed with brick who was causing injuries with bricks one after the other on the head of Muhammad Zaman deceased as a result of which Muhammad Zaman received serious injuries on his head. Muhammad Shahid son of Muhammad Shafique Bhatti who was armed with Churra caused two or three injuries on the neck of Muhammad Zaman as a result of which neck was cut. Shahid accused caused three Churra blows on the belly of Muhammad Zaman and thereafter all the accused persons caused injuries on the person of Muhammad Zaman on his hands and other parts of body. We raised alarm and tried to catch hold of the accused persons but they threatened us that in case we come near to them, we would face the same consequences and the accused persons succeeded to run away along with blood stained dagger and blood stained brick from drawing room to court yard of the house and thereafter they succeeded to run away by sealing over the wall in the crops of the field. Muhammad Zaman deceased at that time was seriously injured and we made a call to Rescue 1122 and emergency No.15 and shifted Muhammad Zaman to Nishtar Hospital, Multan where it was declared that he had succumbed to injuries. The accused persons took along, mobile phone Nokia No.0300-7379627 and China mobile bearing sim No.0314-5211459, one gold finger ring and ID.Card of deceased from his pocket and Rs.5000/6000/- and some other papers were stolen by the accused at the time of fleeing from the spot. The accused persons also tried to take away motor cycle of the deceased which was parked outside the house but could not take the same on our timely arrival there. The motive behind the occurrence was that one or the accused persons had been residing in our house and they were in the knowledge that there are crops all around our house and in our absence due to our duty Muhammad Zaman deceased oftenly had been alone at home and the above-mentioned accused persons with common intention and pre-maditation tried to take away motor cycle and also stole above mentioned articles and also committed murder of Muhammad Zaman who succumbed to the injuries before reaching hospital.

4. After hearing learned counsel for the appellant as well as learned DPG, and on perusal of record with their able assistance, we have observed as under:- i. Muhammad Zaman was done to death in the house on 14.05.2013 at 8:30 p.m., FIR was lodged on the same night i.e. 15.05.2013 at 12:20 a.m. (midnight) on the statement of his cousin Zahid Moeen constable complainant (not appeared before the learned trial Court due to his death). Qamar Zaman P.W.7 and his cousin Allah Yar P.W.8 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the learned trial Court that they being police employees were living together in the house of occurrence, on 14.05.2013 at about 8:30 p.m. they along with Zahid Moeen complainant (since dead) went for having a meal in a hotel in front of their residence, in their absence Muhammad Zaman deceased remained alone in the room, when they were busy in taking meal, heard shrieks coming from inside the house of occurrence, immediately rushed to the house and found the door opened, motorcycle of Muhammad Zaman deceased was parked outside the house, saw in the light of electric bulb Babar Hussain co-accused was giving brick blows on the head of Muhammad Zaman deceased, Shahid Hussain appellant caused many injuries with dagger on his person, Shahzaib Shah alias Shah Gee co-accused (since P.O.) also caused injuries with dagger on the person of Muhammad Zaman deceased, on their information, officials of 1122 took the deceased in injured condition to the hospital, accused also took away gold ring of the deceased, 5/6 thousand rupees and his CNIC. Scaled site plan and rough site plan of the place of occurrence do not show the houses of the eye-witnesses around the house of occurrence or their residence in the house of occurrence. Owner of the hotel has also not been produced to establish that eye-witnesses at the time of occurrence were taking their meal at night time. Officials of 1122 have also not been produced to establish that at the time of shifting the deceased from the place of occurrence, eye-witnesses were with them. Dr. Farrukh Aziz P.W.9 during post-mortem examination observed 16-injuries on the person of the deceased which were allegedly caused by the appellant and his co-accused with dagger and brick blows but eye-witnesses being police officials having expertise to handle such like situation did not interfere simply on the pretext that the accused had extended threat of dire consequences to them is not believable rather makes their presence at the spot at the time of occurrence doubtful. Even otherwise, story of the prosecution is neither plausible nor believable. ii. Aziz Ullah S.I. P.W.10 stated in his statement before the learned trial Court that on 30.05.2013, appellant Shahid Hussain during interrogation disclosed and got recovered dagger P-7 from cluster of trees but did not state that same was blood stained at the time of its recovery, even otherwise, place of recovery being an open place is accessible to everyone, hence, this recovery is not believable. He (Aziz Ullah S.I. P.W.10) further stated that on the same day, appellant Shahid Hussain got recovered his blood stained clothes but did not disclose specific place of the recovery. Recovery of blood stained clothes of the appellant Shahid Hussain in absence of positive report of PSFA qua blood grouping of the deceased is inconsequential. Aziz Ullah S.I. P.W.10 further stated that on 06.06.2013, Shahid Hussain appellant got recovered mobile Nokia P-12, one gold finger ring P-13, two currency notes P-14 and P-15 but did not disclose specific place of their recovery, hence, this recovery is also not believable.

5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of 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.

6. For the foregoing reasons, instant criminal appeal is allowed, conviction and sentences of Shahid Hussain appellant awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. Shahid Hussain appellant is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Shahid Hussain (appellant) is NOT CONFIRMED.

7. Before parting with this judgment, it is observed that the case of the co-accused shall be decided on its own merits without being influenced from this judgment. JK/S-76/L Appeal allowed