2018 PLP 175 (YLRN)

ABDUL SAMI KHAN, J.

Saleem Shehzad and Hayat Ali appellants were tried by learned Additional Sessions Judge, Bhalwal, District Sargodha in case FIR No.386/06 dated 05.07.2006, under sections 302, 34, 109, P.P.C., Police Station Kot Moman, District Sargodha, who vide judgment dated 16.06.2011, convicted and sentenced them as under:-- > Under sections 302/109, P.P.C. to undergo rigorous imprisonment for life with direction to pay compensation amount to the tune of Rs.25,000/- as required under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default thereof to further undergo 06-months S.I. The benefit of section 382-B, Cr.P.C. was also extended to the appellants. The appellants have challenged their conviction and sentence through Criminal Appeal No.1011 of 2011, whereas Mst.Mumtaz Begum widow of Muhammad Riaz complainant has filed Criminal Revision No.767 of 2011 seeking enhancement of .sentence of the appellants. The criminal appeal and criminal revision have arisen out of one and the same judgment dated 16.06.2011, therefore, I propose to decide both these matters through this judgment.

2. Brief facts of the case as disclosed in FIR (Ex.PE) are that on 05.07.2006 at 06:30 p.m. Muhammad Riaz complainant, who was later on murdered and separate FIR was registered regarding his murder, was present at his "dera" along with his son Shahzad Ahmad Naeem and they were sowing seed of Jantar, when suddenly accused Fayyaz, Umair Hayat both armed with 12 bore guns and Muhammad Afzal armed with rifle came on the mattled road. Accused Umair Hayat raised lalkara to teach lesson to them for not giving the land to Saleem Shahzad, upon which accused Fayyaz made three fire shots which hit Shahzad Ahmad Naeem on back and left elbow and he fell on the ground. Muhammad Afzal and Umair Hayat kept on raising lalkara that they will not spare Shahzad Ahmad Naeem. Muhammad Riaz complainant, Ashiq Hussain and Muhammad Niaz, who were present nearby came at the spot while witnessing the occurrence, but the accused managed to escape. As a result of injuries, Shahzad Ahmad Naeem died at the spot. Motive behind the occurrence was dispute of land with Saleem Shahzad, regarding which litigation was pending and due to said dispute, a fight took place between the parties and accused Fayyaz who is first cousin of Saleem Shahzad pressed for vacation of land and when the complainant party refused to do so, they murdered Shahzad Ahmad Naeem with mutual consultation. The complainant further maintained that the occurrence took place on the abetment and conspiracy of Hayat Ali and Saleem Shahzad appellants.

3. After registration of FIR, investigation of the case was conducted and after completion of the investigation, report under section 173, Cr.P.C. was submitted before the court. At the commencement of trial, after observing legal formalities, learned trial court framed charge against the appellants, to which they pleaded not guilty and claimed trial. To prove its case, the prosecution produced as many as twelve witnesses before the learned trial court. After completion of prosecution evidence, statements under section 342, Cr.P.C. of the appellants were recorded by learned trial court, wherein they professed innocence and pleaded false implication in this case. The appellants did not opt to get record his statement under section 340(2) Cr.P.C. and did not produce any witness in their defence. At the end of trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, learned trial court found the prosecution's case against the appellants to have been proved beyond reasonable doubt, convicted and sentenced them as mentioned and detailed in paragraph No.1 above, however, vide same judgment co-accused Umair Hayat was acquitted of the charge by learned trial court finding the case to his extent one of doubtful nature. Hence, this criminal appeal and connected criminal revision before this Court.

4. Learned counsel for the appellants submitted that the prosecution has miserably failed to bring the guilt of the appellants to the hilt, hence, the appellants deserve clean acquittal. On the other hand, learned Deputy Prosecutor General contended that the prosecution has amply proved its case against the appellants beyond any reasonable doubt, so the conviction and sentence of the appellants be maintained and their appeal be dismissed.

5. I have heard the learned counsel for the appellants and learned Deputy Prosecutor General and have gone through the record with their able assistance. As per FIR (Ex.PL), the occurrence took place on 05.07.2006 at 06:30 p.m. and the matter was reported to the police by Riaz Ahmad complainant on the same day. In FIR, Muhammad Riaz complainant has levelled allegation that the occurrence took place on the abetment and conspiracy of the appellants, but surprisingly he did not disclose the names of witnesses in whose presence the appellants had allegedly abetted their co- accused for the murder of Shahzad Ahmad Naeem deceased. During trial, one Sibghat Ullah was produced by the prosecution before learned trial court as one of the witnesses of abetment and conspiracy. Said Sibghat Ullah (PW-8) deposed that on 03.07.2006 at about evening time, he along with PW Muhammad Zulfiqar (given up) went to the "dera" of complainant and when they came in front of drawing room of Saleem Shahzad appellant, they saw that Hayat Ali appellant along with co-accused Saleem Shahzad, Umair Hayat, Fayyaz, Muhammad Afzal, Asad Bashir and Muhammad Bashir were sitting there and Hayat Ali instigated and abetted his co-accused Afzal, Fayyaz, Umair Hayat to commit murder of Shahzad Ahmad Naeem deceased as he was hurdle in compromise. He further stated that co-accused Umair Hayat, Fayyaz and Afzal agreed to commit the murder of Naeem Ahmad Shahzad deceased as Hayat Ali appellant had offered and assured them to pursue the case and Saleem Shahzad accused also abetted and instigated his co-accused within their view and hearing. According to Sibghat Ullah (PW-8), he along with PW Muhammad Zulfiqar, allegedly witnessed the appellants abetting their co-accused to murder Shahzad Ahmad Naeem on 03.07.2006 when they were going towards the "dera" of Muhammad Riaz complainant, but very astonishingly they (alleged witnesses of abetment) did not alert the complainant party about the plans of the appellants and their co-accused. Admittedly Sibghat Ullah (PW-8) is close relative of the complainant party and the fact that if he had viewed and heard the appellants abetting their co-accused to murder Shahzad Ahmad Naeem on 03.07.2006, then what was the reason for him to keep mum for three days and not to inform the complainant party so that they could save the precious life of Shahzad Ahmad Naeem deceased or to inform the police about the plans of appellants and their co-accused. Even otherwise, it does not appeal to any prudent mind that the appellants would hatch conspiracy for the commission of alleged offence in such a visible place and in such a loud voice, where they could be easily seen and heard by any passerby.

6. In addition to the above, Sibghat Ullah (PW-8) did not appear before the investigating officer immediately after the occurrence to inform about the factum of abetment and conspiracy and it took three days to produce him before the investigating officer as his statement under section 161, Cr.P.C. was got recorded on 08.07.2006. In his statement before learned trial court, Sibghat Ullah, (PW-8) stated that he had gone to purchase tractor and when he came back, he joined the investigation and got recorded statement under section 161, Cr.P.C. but admittedly he did not produce any document regarding the sale or purchase of tractor before the investigating officer as well as learned trial court, so this very version of Sibghat Ullah (PW-8) is not enough to explain the considerable delay for which he kept mum. Had he viewed and heard the appellants hatching conspiracy and abetting co-accused for the commission of alleged offence, he must have informed in the first instance to the complainant and then should have reported the matter to the police as early as possible, but instead he claimed that he went to purchase tractor, which claim of Sibghat Ullah (PW-8) does not appeal to mind.

7. Besides the prosecution did not produce the other witness of alleged conspiracy/abetment namely Muhammad Zulfiqar without advancing any justifiable reason for his non-production and in this way, the statement of Sibghat Ullah (PW-8) remained uncorroborated from any other source. Non-production or PW Muhammad Zulfiqar before learned trial court amounts to withholding material evidence available to the prosecution, therefore, an adverse inference within the meanings of Article 129(g) of Qanun-e-Shahadat Order, 1984 can be drawn against the prosecution that had PW Muhammad Zulfiqar been produced before learned trial court, he would have not supported the case of prosecution against the appellants. Guidance can be sought from the cases of Riaz Ahmad v. The State (2010 SCMR 846) and Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327), wherein the Hon'ble Supreme Court of Pakistan has taken similar view.

8. Hayat Ali. appellant is real father of co-accused Fayyaz, who allegedly made three fire shots upon Shahzad Ahmad Naeem deceased, which proved fatal. Similarly it is an admitted fact that there was dispute of land between the complainant and Saleem Shahzad appellant, so possibility of false implication of the appellants cannot be ruled out of consideration, because, reasons existed to Muhammad Riaz complainant to do so. It is settled law that motive is a double-edge weapon, which can cut either way; if it is for the appellants to hatch conspiracy for the murder of the deceased, it equally is a ground for the complainant to falsely implicate them in this case. Reliance is placed on PLD 1978 Supreme Court 171.

9. The above minute scrutiny of the record and evidence clearly depicts that the prosecution case against the appellants is of doubtful nature and their conviction and sentence on the basis of such type of shaky, undependable and untrustworthy evidence cannot be maintained. It is settled law that not many circumstances creating doubt in the prosecution story are required but only a single circumstance creating doubt in the prosecution story is enough to acquit the accused. Reliance can be placed on the case of "Tariq Pervez v. The State" (1995 SCMR 1345), wherein the Hon'ble Supreme Court of Pakistan has observed as under:-- "5.. .The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary, that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.' The case in hand is replete with number of circumstances which have created serious doubt about the prosecution story. It is also universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace, but of right. In "Ayub Masih v. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country has been pleased to observe as under:-- " ..It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. 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 Ahmad (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". The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram v. The State" (2009 SCMR 230) observed as under:-- "

13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".

10. The upshot of above discussion is that the prosecution has failed to prove its case against the appellants beyond any reasonable shadow of doubt. This appeal is, therefore, allowed and the appellants are acquitted of the charge by extending benefit of doubt to them. They are on bail, their surety stands discharged from the liability of surety bonds.

11. Adverting to Criminal Revision No.767 of 2011 filed by Mst. Mumtaz Begum widow of complainant for enhancement of sentence of the appellants, keeping in view the findings given in the preceding paragraphs, this criminal revision stands dismissed.

12. It is, however, clarified that the above findings shall strictly confine to the disposal of appeal and criminal revision in hand and learned trial court shall decide the case to the extent of remaining accused/proclaimed offenders purely on the basis of evidence without being influenced by the above observation. JK/S-74/L Appeal accepted.