2018 PLP 179 (YLRN)

ABDUL SAMI KHAN, J.

Asad Bashir appellant was tried by learned Additional Sessions Judge/Judge Juvenile Court, Bhalwal, District Sargodha in private complaint filed by Mst. Mumtaz Bibi under sections 302, 404, 148, 149, P.P.C., Police Station Bhalwal, District Sargodha, who vide judgment dated 25.01.2012, convicted and sentenced him as under:-- > Under section 302(b)/34, P.P.C. to undergo imprisonment for life with direction to pay compensation amount to the tune of Rs.1,00,000/- 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 appellant. The appellant has challenged his conviction and sentence through Criminal Appeal No.108 of 2012, whereas Mst. Mumtaz Bibi complainant has filed Criminal Revision No.371 of 2012 seeking enhancement of sentence of the appellant. The criminal appeal and criminal revision have arisen out of one and the same judgment dated 25.01.2012, therefore, I propose to decide both these matters through this judgment.

2. Briefly stated the facts of the case as stated by Mst. Mumtaz Bibi complainant in complaint (Ex.PA) are that on 24.07.2007, she along with her husband Muhammad Riaz boarded on one motorcycle were coming to courts at Bhalwal to pursue the case of her deceased son and Sibghat Ullah along with Muhammad Nawaz boarded on another motorcycle were following him at a short distance. When they reached near Shahana Shrine within the area of Chak No.22-NB, accused Muhammad Fayyaz and Muhammad Imran along with Shahzad Saleem, Asad Bashir, Mumtaz, Muhammad Riaz and three unknown accused persons, who all were armed with firearm weapons emerged from nearby orange garden and stopped their motorcycle. They got down Muhammad Riaz from the motorcycle. Muhammad Fayyaz fired at Muhammad Riaz which hit him on the right side of ribs. Muhammad Imran made a fire shot hitting under the right armpit. Shehzad Saleem made a fire shot which hit on the back of Muhammad Riaz. Asad Bashir made a fire shot hitting on the right arm of Muhammad Riaz. Accused Mumtaz made a fire shot which hit on right wrist of Muhammad Riaz. Accused Muhammad Riaz made a fire shot which hit the husband of complainant on lower part of back. On receipt of injuries, Muhammad Riaz husband of the complainant fell down. The accused persons again made fire shots which hit Muhammad Riaz on different parts of his body. The complainant along with PWs Sibghat Ullah and Nawaz attended Muhammad Riaz, who had died at the spot due to the injuries caused by the accused persons. The accused persons escaped from the place of occurrence towards the orange garden and while running away, accused Fayyaz also took the licensed gun of Muhammad Riaz deceased along with a bag. Mst. Mumtaz Bibi complainant further narrated that the accused persons committed the murder of Muhammad Riaz deceased on the instigation and abetment of accused Muhammad Arshad, Muhammad Nawaz, Nisar, Allah Bakhsh and Zafar, who instigated their co-accused Fayyaz, Imran, Shahzad Saleem, Asad Bashir, Mumtaz and Muhammad Riaz on 23.07.2007 at about 07:00 p.m. at the dera of accused Shahzad Saleem and the abetment was seen and heard by PWs Niaz and Arshad, who told this fact to the complainant and Muhammad Riaz deceased. Motive behind the occurrence was that accused Fayyaz and others had murdered son of the complainant namely Shahzad Ahmad Naeem and case was pending against him. The accused persons were compelling Muhammad Riaz deceased to effect compromise, but he declined. The accused persons committed the murder of Muhammad Riaz deceased husband of the complainant on the abetment and motivation of abettors due to his refusal for effecting compromise. About 2/3 months prior to the occurrence, accused Fayyaz and others had also launched murderous assault on their "dera" and made firing and injured her husband Muhammad Riaz.

3. Initially the occurrence was reported to the, police by Mst. Mumtaz Bibi complainant and FIR No.494/07 dated 24.07.2007 was registered at Police Station Bhalwal, District Sargodha for the offences under sections 302, 404, 148, 149, 109, P.P.C. After registration of FIR, investigation of the case was conducted the police and feeling dissatisfied with the outcome of investigation, Mst. Mumtaz Bibi complainant filed private complaint against the appellant and his co-accused narrating same facts and leveling same allegations against him. The learned trial court, after observing legal formalities, summoned the accused to face trial. As the appellant was juvenile at the time of occurrence, trial was conducted separately to his extent. Charge against the appellant was framed on 06.04.2011 to which he pleaded not guilty and claimed trial, hence, the prosecution was asked to produce evidence. In order to substantiate its version, the prosecution produced six witnesses before learned trial court and learned trial court also recorded statements of three court witnesses. Mst. Mumtaz Bibi complainant (PW-1) is the only witnesses of ocular account who appeared before learned trial court and got recorded her statement. Medical evidence has been furnished by Dr. Naveed Sattar (PW-6) who conducted postmortem examination on the dead body of Muhammad Riaz deceased. Muhammad Boota S.I. and Easib Khan S.I. are the Investigating Officers of the case and their statements were recorded by learned trial court as CW-2 and CW-3 respectively, wherein they stated about different steps taken by him during the investigation of this case. After completion of prosecution evidence and recording statements of court witnesses, learned trial court recorded statement under section 342, Cr.P.C. of the appellant, wherein he professed innocence and pleaded false implication in this case. The appellant did not opt to get recorded his statement under section 340(2), Cr.P.C. and did not produce any witness in his 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 appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.1 above. Hence, this criminal appeal and connected criminal revision before this Court.

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

5. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General and learned counsel for the complainant and have also gone through the record with their able assistance. As per FIR (Ex.PA), the incident in which Muhammad Riaz husband of Mst. Mumtaz Bibi complainant lost his life took place on 24.07.2007 at 06:30 a.m. and the matter was reported to the police by Mst. Mumtaz Bibi complainant on the same day at 07:30 a.m. at Police Station Bhalwal District Sargodha, which is located at a distance of eight kilometers from the place of occurrence. Bare reading of FIR (Ex.PA) shows that the occurrence was witnessed by Mst.Mumtaz Bibi complainant along with PWs Sibghat Ullah and Muhammad Nawaz. In FIR (Ex.PA), Mst. Mumtaz Bibi complainant assigned the role of causing firearm injury on right arm of Muhammad Riaz deceased to the present appellant and same role was alleged by her in private complaint which was not exhibited in evidence. During trial, only Mst. Mumtaz Bibi complainant appeared before learned trial court and got recorded her statement as PW-1, wherein she once again stated that the injury on right arm of Muhammad Riaz deceased was caused by the appellant, but her version to the extent of appellant is belied by the medical evidence, because, Dr. Naveed Sattar (PW-6) who conducted postmortem examination on the dead body of Muhammad Riaz deceased did not observe any injury on right arm of the deceased. This material contradiction between the ocular account and medical evidence raises serious alarm regarding the correctness of prosecution story to the extent of appellant. Furthermore, Mst. Mumtaz Bibi. complainant (PW-1) has also not brought on the surface of record the nature of weapon with which the appellant was armed at the time of occurrence. In addition to the above, the complainant has not produced the other two witnesses of the occurrence i.e. Sibghat Ullah and Muhammad Nawaz without advancing any justifiable reason for their non-production and only Mst. Mumtaz Bibi complainant (PW-1) who is wife of the deceased appeared before learned trial court to depose against the appellant and in this way, the statement of Mst. Mumtaz Bibi complainant (PW-1) remained uncorroborated from any other source. Non-production of PWs Sibghat Ullah and Muhammad Nawaz before learned trial court amounts to withholding best 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 PWs Sibghat Ullah and Muhammad Nawaz been produced before learned trial court,. they would have not supported the case of prosecution against the appellant particularly under the circumstances when the injury attributed to him was not observed during postmortem examination on the dead body of the deceased. Guidance can be sought from the cases of Riaz Ahmad v. The State (2010 SCMR 846) and Khalid @ Khalidi and 2 others v. The State (2012 SCMR 327), wherein the Hon'ble Supreme Court of Pakistan has taken similar view.

6. Apart from the above, the prosecution did not bring on record any documentary proof regarding the fixation of previous murder case of Shahzad Ahmad Naeem, son of the complainant and the deceased. Even no description of the accused of previous murder case has been brought on the surface of record in order to ascertain as to whether appellant was also one of the accused in that case or not. During the course of investigation, weapon of offence was not recovered from the appellant to corroborate the version of the complainant. Admittedly he was found not involved in this case during two successive investigations, one conducted by Muhammad Boota S.I. (CW-2) and the other by Nasir Mahmood Inspector R.I.B. As regards the argument of learned counsel for the complainant that the opinion of the investigating officers is not binding on the courts of law, it is an undisputed principle of law that ipse dixit of investigating officer(s) is not binding on the courts, but the courts are oblige to consider all the facts and circumstances of the case and if the facts and circumstances so considered are supporting the opinion of investigating officer, courts must not reject such opinion merely on the ground that it has been rendered by a police officer. In this case, only Mst. Mumtaz Bibi complainant (PW-l) has appeared before learned trial court and she did not produce the remaining two witnesses of the occurrence; her version to the extent of appellant that he caused injury on right arm of deceased is not supported by medical evidence and the motive part of the case to the extent of appellant has also not been proved as no evidence is available on record to show that appellant was also accused in the previous murder case of son of the deceased, so the facts and circumstances of the case in hand are clearly supporting the opinion of the investigating officers regarding innocence of the appellant.

7. The above minute scrutiny of the record and evidence clearly depicts that the prosecution case against the appellant is of doubtful nature and his conviction and sentence on the basis of such type of shaky and undependable 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 to the extent of appellant. 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 con-cession but as a matter of right".

8. The upshot of above discussion is that the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. This appeal is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He is on bail, his surety stands discharged from the liability of surety bonds.

9. Adverting to Criminal Revision No.371 of 2012 filed by Mst. Mumtaz Bibi complainant for enhancement of sentence of the appellant, keeping in view the findings given in the preceding paragraphs, this criminal revision stands dismissed.

10. 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, observations, if and when they surrender themselves or are arrested by the police. JK/A-97/L Appeal allowed.