P L D 2019 Balochistan 92 (PLP)

ABDULLAH BALOCH, J.

This judgment disposes of Criminal Jail Appeal No.55 of 2015 filed by the appellant Dil Jan son of Murad Hasil through Superintendent Central Jail Gaddani, against the judgment dated 31st October 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Additional Sessions Judge/ Incharge Sessions Judge Panjgoor (hereinafter as, "the trial Court"), whereby the appellant was convicted under Section 324 P.P.C. and sentenced to suffer ten (10) years' R.I. with fine of Rs.50,000/- and in default thereof to undergo six months' S.I., with the benefit of Section 382-B, Cr.P.C.

2. Facts of the case are that on 17th October 2014, the complainant Ghulam Nabi son of Muhammad Hussain, lodged FIR No.167 of 2014 at Police Station Panjgoor, under Section 337-ADF Q&D Ordinance. stating therein that on the night of occurrence at about 4.00 a.m. he was woke-up by the son of appellant and Mst. Haseeba namely Muhammad Hanif and informed that his father Dil Jan injured his mother Mst. Haseeba by means of inflicting knife blows, hence on such information he went rushed towards his niece and found her lying in the pool of blood, thus the complainant along with his other relatives took the injured to Civil Hospital.

3. After usual investigation, the appellant was challaned before the trial Court, who indicted the charge to the appellant, which was refuted, thus the prosecution in order to establish the charge has produced the evidence of five witnesses, whereafter the appellant was examined under Section 342, Cr.P.C. The appellant neither recorded his statement on oath under Section 340(2) Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing argument, the appellant was found guilty of the charge and was convicted and sentenced as mentioned above in para No.1 . Whereafter, the instant appeal has been filed.

4. Heard the learned counsel and perused the available record. Perusal of record reveals that it is a case of no evidence at all and the learned trial Court while delivering the impugned judgement has reached to a wrong conclusion. The complainant of case namely Ghulam Nabi appeared in the Court as PW-1, who contradicted the contents of his fard-e-bayan Ex.P/1-A on certain counts. In his fard-e-bayan the PW-1 has mentioned that the appellant inflicted knife blows to the injured, while his Court statement is silent in such behalf and only it was mentioned that the Mst. Haseeba was injured by her husband Dil Jan (appellant). According to PW-1 the injured was being shifted to Quetta for medical treatment, when in the way his vehicle met with an accident, due to which his niece Mst. Haseeba was died. However, not a single piece of evidence has come on record with regard to such accident. PW-1 in his cross-examination has admitted that Mst. Haseeba had never made any complaint against the appellant. He made his ignorance that prior to incident the spouses were spending a prosper and happy life. PW-3 Haji Qadir Bakhsh, is another witness of the occurrence, but he narrated a different story with regard to incident. According to PW-3 on the night of occurrence on hearing hue and cries, he came out from his house and found the appellant stained with blood and he was crying, to which he was consoled, but in the meanwhile his brother PW-1 Ghulam Nabi informed him that the appellant injured his niece Mst. Haseeba, thus he locked the appellant in toilet and went to see Mst. Haseeba, who was lying in the pool of blood. Admittedly, this witness has fully contradicted the statement of PW-1 on certain counts and also made certain dishonest improvements. This witness has also admitted that earlier the spouses were residing happily.

5. It has also been observed that the most important witness of the occurrence was the injured Mst. Haseeba, but she was not produced in the Court and according to PW-1 whilst shifting the injured to Quetta for medical treatment, they met with an accident and the injured Mst. Haseeba died in the said accident. However, not a single piece of evidence has been produced by the prosecution in the Court in order to establish his plea. Even otherwise, the prosecution has also failed to produce Muhammad Hanif the son of the spouses, who informed the complainant, where the evidence of Muhammad Hanif could be a best piece of evidence in order to establish the charge. There is no explanation on the part of prosecution that as, to why the evidence of this witness was withheld, therefore, a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the said witness been examined in the Court his evidence would have been unfavourable to the prosecution. Although, the prosecution was not bound to produce each and every witness, but if the prosecution failed to produce such witnesses who were central figure and all the story revolved around them, then the prosecution story would become doubtful.

6. In view of the ocular testimony of the related/interested prosecution witnesses, contradictions and dishonest improvements in their testimony, lacking independent corroboration in material aspects, the case of prosecution is suffering from doubts and infirmities. The above defects in the prosecution case were not considered by trial Court and wrongly the benefit of such doubts was not extended in favour of the appellant. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under: "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him 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 a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." For the reasons discussed hereinabove, the appeal is accepted, the impugned judgment dated 3 1st October 2015 passed by the learned Additional Sessions Judge/ Incharge Sessions Judge Panjgoor is set aside and while extending the benefit of doubts, the appellant Dil Jan son of Murad Hasil, is acquitted of the charge in FIR No.167 of 2014 of Police Station Panjgoor, under Section 337-ADF Q&D Ordinance. The appellant being in custody, is ordered to be released forthwith, if not required in any other case. Above are the reasons of my short order dated 14th May, 2019. SA/44/Bal. Appeal accepted.