2023 PLP 53 (YLRN)

SADAQAT ALI KHAN, J.

Appellant (Saqib Hussain) along with his co-accused i.e. Wajid Hussain (since acquitted) has been tried by learned trial Court in case FIR No.398 dated 02.08.2016 offences under Sections 302, 338-C/34, P.P.C. registered at Police Station City Lodhran, District Lodhran and was convicted and sentenced vide judgement dated 07.06.2017 as under:- Saqib Hussain (appellant) Under section 302(b), P.P.C. Sentenced to DEATH on two counts as "Tazir" for committing Qatl-i-Amd of Noman Aslam and Marium Bibi (deceased) with compensation of Rs.2,00,000/- payable to legal heirs of each deceased under section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to further undergo simple imprisonment for 6-months each. Under section 338-C, P.P.C. Sentenced for causing Isqat-i-Janin of deceased Marium Bibi, one twentieth of the "Diyat" Rs.84016/- and further sentenced to imprisonment for 07 years as "Tazir" R.I.

2. Appellant has filed Criminal Appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of death sentence of Saqib Hussain (appellant) or otherwise, whereas the complainant has filed Criminal Appeal against the acquittal of respondent/co-accused namely Wajid Hussain, which are being decided through this single judgment.

3. Brief facts of the case have been stated by the complainant Muhammad Sabir (PW-4) in his statement before learned trial Court, which is hereby reproduced as under for narration of the facts:- About four months prior to this occurrence, my Bhanja Noman Aslam son of Muhammad Aslam contracted love marriage with Mst. Marium Bibi, Due to this marriage, the parents and the brothers of Mst. Marium Bibi were not happy and had grudge. The father and brothers of Marium Bibi were after the life of my "Bhanja" Noman Aslam. About 20 days prior to this occurrence, Saqib Hussain accused, present in court today came to the house of Noman Aslam in presence of Jindwada, Munir Ahmad and myself. Saqib Hussain stated to Noman Aslam that his father and brother had grudge against Noman Aslam and Marium Bibi and that since the two families are living nearby, therefore, it may create some bad situation between them. He offered Noman Aslam to shift his residence in a house arranged by Saqib Hussain at Lodhran with the assurance that after some time he will get the matter resolved between two families. On this assurance, Noman Aslam and Marium Bibi acceded to the request of Noman Aslam. Fifteen days prior to this occurrence, Saqib accused got a house on rent near super Chowk Lodhran and thereafter he came to us and took Noman Aslam and Marium Bibi with him. Accused Saqib himself started living together with Noman Aslam and Mariam Bibi in the same house. In fact he was planning to commit the occurrence. At about Isha prayer on 01.08.2016, I, Jindwada and Munir Ahmad came to the house of Noman Aslam at Lodhran to meet with Noman and Marium Bibi. After meeting with Noman Aslam, I, Munir Ahmad and Jindwada slept outside the house whereas Noman Aslam, Marium Bibi and accused Saqib and Wajid Hussain slept inside the house. The courtyard door was open. At 12-30 midnight, we heard noise from inside the house, I, Munir Ahmad and Jindwada went Inside the house and saw in the light of electric blub accused Wajid Hussain standing there while armed with pistol whereas accused Saqib was inflicting Churri blows on the persons of Noman Aslam and Marium Bibi. We tried to save them but accused Wajid pointed his pistol towards us and threatened with dire consequences. Due to many Churri blows inflicted by accused Saqib, Noman Adam and Marium died at the spot due to loss of blond. The accused confined us in a room on gun point. At about 7-00/7-15 A.M, the accused fled from there with pistol and Churri. We came out from the said room and started crying over the dead bodies of Noman Aslam and Marium Bibi. 15/20 neighbors also attracted to the spot. One hour after this, the police arrived at the scene. The I/O inspected the site, the dead bodies and recorded my statement Exh.PA which was read over to me whereafter I endorsed its contents by putting my signatures. The dead bodies were then transported to the hospital through a private vehicle.

4. After hearing learned counsel for the parties as well as learned A.P.G., and on perusal of record with their able assistance, we have observed as under:- i. Nauman Aslam and his wife Marium Bibi were done to death in rented house on 02.08.2016 at 12:30 a.m./midnight (as stated by P.Ws. in their statements), FIR was lodged on the morning i.e. 02.08.2016 at 9:45 a.m. with unexplained delay of about nine hours on the statement of Muhammad Sabir complainant P.W.4 (maternal uncle of Nauman Aslam deceased). Statedly, Mst. Marium Bibi deceased (sister of the appellant) had contracted run-away marriage with Nauman Aslam deceased. Muhammad Sabir complainant P.W.4 and Jindwada PW.5 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the learned trial Court that on 01.08.2016, at "Isha Waila", they came to the house of the deceased at Lodhran to meet them, whereafter slept outside the house, the door of the house was opened, at about 12:30 (midnight), on hearing hue and cry, they went inside and saw that the appellant was giving "Chhurri" blows on both the deceased who died at the spot. Accused confined the P.Ws. in the room on gun point. Jindwada P.W.5 had made dishonest improvements in his statement before the learned trial Court who was confronted with his earlier statement before the police during cross-examination as under:-- "I have got recorded in my application Ex.D.A. that Wajid threatened us that if we raised alarm he will shot at us. Confronted with Ex.D.A wherein it was not so recorded. I have got recorded in my statement Ex.D.A. that accused Wajid forced us on gun point to go inside the room and confined us there, thereafter both the accused remained present in the house till 7:50 a.m. Confronted with Ex.D.A. wherein it is not so recorded. I have got recorded in my statement Ex.D.A. that accused persons fled away from the spot along with the pistol and churri, confronted with Ex.D.A. wherein it is not so recorded. I have also got recorded in my statement Ex.D.A., after the departure of accused we started raising hue and cry upon which 10/15 neighbors attracted to the spot and after about 1 / 1:30 hour police arrived there. Confronted with Ex.D.A. wherein it is not so recorded, however, it is recorded that police after receiving the information reached at the spot." ii. Both the eye-witnesses are resident of District Bahawalpur and are not resident of District Lodhran where house of occurrence is situated. They were the chance witnesses, but have failed to establish their presence at the place of occurrence at the time of occurrence with their stated reasons. The story of the prosecution discussed above is neither plausible nor believable. (2014 SCMR 1698) "Muhammad Rafique v. The State" and (2017 SCMR 564) "Arshad Khan v. The State". iii. It is important to note here that during investigation, Mst. Nooran Bibi (real mother of Nauman Aslam deceased) had moved an application Ex.P.W. stating therein that her brother Muhammad Sabir complainant P.W.4 and Jindwada P.W.5 are not the eye-witnesses of the occurrence rather Mureed Shah and Iqbal Shah were the eye-witnesses who have not been produced. Muhammad Ijaz Miswan Inspector P.W.1 admitted in his cross-examination that Mst. Nooran Bibi (mother of Nauman Aslam deceased) submitted an application before the SHO which was marked to him, stated in volunteer portion that she did not appear before him during investigation, original application was available in the police file which was taken out from police record and was exhibited as Ex.P.W by the learned trial Court, as per contents of the application Ex.P.W, eye-witnesses Muhammad Sabir complainant P.W.4 and Jindwada P.W.5 were not present at the time of occurrence at the place of occurrence, creating doubt in the whole prosecution story. iv. Muhammad Ijaz Miswan Inspector P.W.1 stated in his statement before the learned trial Court that on 27.09.2016, the appellant during interrogation disclosed and got recovered "Chhurri" P-9 after digging out the earth under "Shesham" tree from Charh canal. It was not the case of the prosecution that recovered "Chhurri" was wrapped in polythene or any other thing. Recovery memo. Ex.P.R does not shows any mud on "Chhurri" which was allegedly recovered after digging out the earth which negates the story of the recovery.

5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of appellant and his co-accused since acquitted mentioned above 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, criminal appeal filed by Saqib Hussain appellant is allowed, his conviction and sentences awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. Saqib 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 Saqib Hussain (appellant) on all counts is NOT CONFIRMED.

7. In view above decision, criminal appeal filed by the complainant against acquittal of respondent/ accused having no merits is dismissed. JK/S-86/L Appeal allowed.