-Different story of prosecution in FIR & Private complaint--Delay recording statement of PW--Benefit of doubt--

 PLJ 2021 Cr.C. 921 (DB)

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Conviction and sentence--Challenge to--Different story of prosecution in FIR & Private complaint--Delay recording statement of PW--Benefit of doubt--Acquittal of--Earlier FIR was registered on the statement of one “S” (not PW) and accused persons declared innocent--Complaint was filed but subsequently withdrawn--Appellant is father of deceased and has not been nominated in the FIR rather has been introduced in private complaint filed by widow--Widow before the trail Court while making dishonest improvement stated that appellant made fire shot which hit on the left leg of deceased which shatters her credibility--Widow got recorded her first statement with the delay of twenty days of occurrence--Recovery of 12-Bore carbine on pointing out of the appellant in absence of the positive report of Punjab Forensic science agency qua matching of crime empties with the weapon of offence in inconsequential--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. Acquit.--Appeal was allowed.                                                                                          

                                                          [Pp. 923, 924 & 925] A, B, C & D

2008 SCMR 6; 2017 SCMR 486 ref.

Mr. Muhammad Qadeer Asif Toor, Advocate Defence Counsel at State expense for Appellant.

Malik. Riaz Ahmad Sagla, APG for State/Complainant.

Date of hearing: 17.3.2021.

 PLJ 2021 Cr.C. 921 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
LAL BAKHSH--Appellant
versus
STATE--Respondent
Crl. A. No. 51-J & M.R. No. 93 of 2016, heard on 17.3.2021.

Judgment

Sadaqat Ali Khan, J.--Appellant (Lal Bakhsh) has been tried by learned trial Court in private complaint under Section 302, PPC arising out of case FIR No. 203 dated 18.10.2012 registered, at Police Station Umar Kot, District Rajanpur and was convicted and sentenced vide judgment dated 09.06.2016 as under:--

Lal Bakhsh (appellant)

Under Section 302(b), PPC       Sentenced to death for committing Qatl-i-Amd of Ali Dost (deceased) with compensation of Rs. 4,00,000/- payable to legal heirs of the deceased under Section 544-A, Cr.P.C. which was ordered to be recovered as arrears of land revenue and in default whereof to further undergo simple imprisonment for six months.

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. The facts of the case have been stated by Mst. Bhiranwan (PW-1 wife of Ali Dost deceased) in her statement before learned trial Court, which is hereby reproduced as under for narration of the facts:

          “I was married to Ali Dost son of Lal Bakhsh caste Tukrani resident of Chak Ladh Tehsil Rojhan, according to Sharia Muhammadi. I gave birth to four children out of whom three are girls and one is son. All the four children are alive. Mst. Manzooran is my first daughter. Her age is 8 years. About one year and 23 days ago. I along with my husband Ali Dost was sleeping in front of residential room on earth on one Bistar. At about mid night, I heard that Lai Bakhsh accused present in the Court was saying to my husband Ali Dost that he had demanded the hand of his daughter for his exchange marriage for Mauj Ali Tukrani and the accused wanted to marry daughter of Mauj Ali. Lal Bakhsh accused was having a pistol in his hand. The accused fired a shot with his pistol hitting at his left leg and the blood started oozing and thereafter the deceased succumbed to the injuries at morning prayer time. After the occurrence, the accused said to me that he had taken revenge from deceased for not giving his daughter’s hand in exchange of his marriage. The accused confined me in a room and locked the door of that room. Lal Bakhsh accused had been extending threats to me of dire consequences in case I made, my statement against him. Lal Bakhsh accused with the connivance of Washan and his son Shah Dost got a false FIR registered against Murad, Mauj Ali, Jamil and Khuda Bakhsh. The above said accused persons named in the FIR were innocent. Shah Dost, the complainant of FIR, had not seen the occurrence as he was not available at the place of occurrence at the time of occurrence. I approached the police station to lodge the report against Lal Bakhsh accused but the police told me that Shah Dost has already got registered case against the above said accused persons. I also moved application to the District Police Officer, Rajanpur but the police did not register my FIR. Lal Bakhsh accused present in the Court is the real culprit. The complaint Ex.P.A was drafted by my counsel on my dictation. It was read over to me and I thumb marked it in token of its correctness, which is Ex.P.A/1.”

4. Arguments heard, record perused.

5. Ali Dost was done to death in the residential room of his house on 18.10.2012 at 3:45 a.m. (night), FIR was lodged on 18.10.2012 at 4:50 a.m. on the statement of Shah Dost (not PW) against Murad, Muhammad Jamil alias Mauj Ali, Eidu and Kuda Bakhsh who have been found innocent during investigation. Eye-witnesses of the FIR were Shah Dost (complainant) and Washan who did not appear before learned trial Court. Shah Dost (complainant) also filed private complaint against above stated accused of FIR but subsequently withdrawn the same.

6. Appellant is father of Ali Dost (deceased) and has not been nominated in the said FIR rather has been introduced in private complaint filed by Bhiranwan Mai (PW-1) widow of Ali Dost (deceased) on 27.11.2012 with the delay of about 40 days. She (Bhiranwan Mai/PW-1) stated in her private complaint that on hearing the noise of the fire shot, she woke up and saw appellant while standing armed with pistol and Ali Dost (deceased) was lying injured, whereafter she was confined in a room by the appellant who in order to save his skin got lodged FIR falsely against accused Murad etc. stated, above who are innocent in this case; on the second day of occurrence, her brother Allah Bakhsh (PW-2) and her mother Azeeman Mai (PW-3) came there and got her released. Relevant portion of the private complaint filed by Bhiranwan Mai in this respect is hereby reproduced as under:

“2۔  یہ کہ مورخہ 18.12.2012 کو من مستغیثہ اپنے خاوند مسمی علی دوست کے ساتھ اپنے کمرے کے سامنے زمین پر ایک ہی بستر پر سوئے تھے۔ کہ آدھی رات کے وقت اچانک فائر کی آواز پر آنکھ کھلی تو دیکھا کہ لعل بخش ولد علن ذات ٹکرانی سکنہ چک لادھ، عمر کوٹ پستول لئے کھڑا ہے اور کہہ رہا ہے کہ اس (علی دوست) نے صلوت مائی کے وٹہ میں اپنی بیٹی مسماۃ منظوراں دینے کے انکار کا مزہ چکھا دیا ہے۔ مستغیثہ نے آہ و بکار کی اور اپنے خاوند علی دوست کو سنبھالا تو اسکی بائیں ٹانگ میں فائر لگا ہوا تھا۔ اور وہ خون میں لت پت تھا۔ مسمی لعل بخش مذکورہ نے للکارا کہ اگر شوروواویلہ کیا تو میرا حشر بھی اسی طرح کا ہوگا۔ اسکے ساتھ ہی من مستغیثہ کو کمرے میں بند کر دیا جبکہ مسمی علی دوست (خاوند) زخموں کی تاب نہ لا کر صبح نماز ویلہ فوت ہو گیا۔

3۔    یہ کی مسمی لعل بخش ملزم نے اپنے اآپ کو بچانے کے لئے مقامی پولیس سے ساز باز مقدمہ زیر 203/12 بجرم 302 ت پ تھانہ عمر کوٹ بر خلاف۔ مراد ولد دلوش، 2۔ محمد جمیل عرف موج علی ولد مٹھہ، 3۔ عیدو ولد دلوش، 4۔ خدا بخش ولد سومار اقوام ٹکرانی چک لادھ کرادیا۔ حالانکہ ہر چہار کس ملزمان مذکور ان کا قتل مذکورہ سے کوئی تعلق نہ ہے۔ مسمی لعل بخش ولد علن نے خاوندم علی دوست کو فائر کرکے ناحق قتل کیا ہے۔

4۔    یہ کہ دوسرے روز من مستغیثہ کے بھائی مسمی اللہ بخش اور والدہ مسماۃ عظیمن وہاں آئیں اور من مستغیثہ کو کمرہ میں سے آزاد کرایا۔ من مستغیثہ نے وقوعہ ہذا ان کے بتلایا مقامی پولیس کے پاس گئے اور مقدمہ اندراج کے بارہ میں کہا لیکن انہوں نے یہ کہ کر انکار کر دیا کہ وقوعہ ہذا کے بارہ میں مقدمہ درج ہو چکا ہے۔”

This witness had not stated in private complaint that she had seen appellant while making fire shot upon Ali Dost (deceased). Bhiranwan Mai (PW-1) before the trial Court while making dishonest improvement stated that appellant made fire shot which hit on the left leg of Ali Dost (deceased) which shatters her credibility. Reliance is placed on case titled “Akhtar Ali and others vs. The State” (2008 SCMR 06). Muhammad Hussain, SI (CW-4) stated in his cross-examination that Bhiranwan Mai (PW-1) got recorded her first statement on 08.11.2012 whereas occurrence took place on 18.10.2012 which is with the delay of 20 days and also shatters the credibility of this witness. Reliance is placed on case titled “Muhammad Asif vs. The State” (2017 SCMR 486).

7. Allah Bakhsh (brother/PW-2) and Azeeman Mai (mother/ PW-3) of Bhiranwan Mai (complainant of the private complaint.) while appearing before learned trial Court: stated in their statements that on getting information regarding the murder of Ali Dost (deceased), they on following day went to the house of Bhiranwan Mai (PW-1), Ali Dost (deceased) had already been buried, they saw Bhiranwan. Mai confined in a room who was got released by them and stated the story as narrated by Bhiranwan Mai (PW-1) discussed above which is neither plausible nor believable.

8. Recovery of .12-bore carbine on pointing out of the appellant in absence of the positive report of Punjab Forensic Science Agency qua matching of crime empties with the weapon of offence is inconsequential trial in the present case.

9. 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 be would be entitled to its benefit not as a matter of grace or concession, but as of right.

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

(K.Q.B.)          Appeal allowed