It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt--

 PLJ 2021 Cr.C (Lahore) 874

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

----Ss. 302(b) & 324--Conviction and sentence, challenge to--Qatl-e-amd--Motive of occurrence--Abusing and misbehaving her--Unexplained delay of about two days from date of occurrence therein complainant has not been mentioned as eye-witness--No plausible explanation has been given for recording statement of with delay of two days which shatters her credibility--All witnesses were not present at time of occurrence at place of occurrence-- Serious doubt regarding participation of appellants and co-accused--Held: 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 prudent mind about guilt of accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right--Appeas were accepted.            

                                           [Pp. 878, 879, 880 & 882] A, B, C, D, E & F

2017 SCMR 486, 2017 SCMR 596 & 2009 SCMR 230 ref.

Malik Muhammad Saleem, Advocate with Appellant present on bail.

M/s Syed Zia Haider and Ijaz Ahmad, Advocates for Respondents/Complainant.

Mr. Muhammad Ali Shahab, DPG for State.

Date of hearing: 15.4.2019.

 PLJ 2021 Cr.C (Lahore) 874
[Multan Bench Multan]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD SHAFIQ and others--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 167 of 2016, 403, 509 of 2015, Crl. Rev. No. 475 &
M.R. No. 76 of 2015, heard on 15.4.2019.

Judgment

Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 167 of 2016 filed by Muhammad Shafiq (appellant), Criminal Appeal No. 403 of 2015 filed by Muhammad Asghar (appellant) against their convictions, Criminal Appeal No. 509 of 2015 filed by Mst. Rehana Bibi complainant against acquittal of Mehmood Khan, Muhammad Iqbal and. Shahid Iqbal accused/ Respondents No. 2 to 4, Criminal Revision No. 475 of 2015 filed by Mst. Rehana Bibi complainant for enhancement of sentence of Muhammad Asghar convict/Respondent No. 2 and Murder Reference No. 76 of 2015 sent by the learned trial Court for confirmation of the death sentence of Muhammad Shafiq (appellant) or otherwise as the above mentioned matters have arisen out of the same judgment dated 29.06.2015 passed by learned Additional Sessions Judge, Kehrorpacca, District Lodhran whereby appellants were convicted and sentenced as under:

Muhammad Shafiq appellant

He was convicted u/S. 302(b), PPC and sentenced to death for committing murder of Rehmat Shaheen deceased along with compensation of Rs. 1,00,000/- u/S. 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo 6-months R.I.

Muhammad Asghar appellant

He was convicted u/S. 324, PPC and sentenced him to undergo R.I. for ten year for attempting to commit murder of Rehmat Shaheen deceased along with compensation of Rs. 50,000/- to the legal heirs of the deceased and in default whereof to further undergo 6-months R.I. Benefit of Section 382-B, Cr.P.C. was extended to him.

in case FIR No. 76 dated 10.03.2013 under Sections 302, 148, 149, PPC, Police Station Dhanote, District Lodhran, whereas their co-accused Mehmood Khan, Muhammad Iqbal and Shahid Iqbal have been acquitted.

2. Tae facts of the case have been stated by Mst. Rehana Complainant P.W.I (widow of Rehrnat Shaheen deceased) in her statement before the learned trial Court which is hereby reproduced for narration of the facts:

“I am a house wife lady. On 10.03.2013 at about 5:10 PM my daughter Musarrat Shaheen ages 16/17 years went out of the house to throw garbage where upon Snafeeq, Muhammad Asghar S/O Mehmood Khan, Shahid Iqbal S/O Muhammad Iqbal caste Meo, R/O Ameer Shah Wala, Mousa Jimrani Wah already present there started teasing and miss-behaviouing with my daughter Musarrat Shaheen. In the meanwhile, my husband Rehmat Shaheen reached at the gate of the house on hearing the hue and cry. He forbade Shafeeq etc and warned not stay again before his house. The accused took it ill and  extended threats to teach a lesson and went back to their houses, Shafeeq was armed with pistol .30 bore, Muhammad Asghar armed with pistol .30 bore and Muhammad Shahid Iqbal armed with hatchet, Muhammad Iqbal and Mehmood Khan empty handed came over after a while who are present in the Court today, Mehmood and Iqbal raised a lalkara to teach a lesson Rehmat Shaheen for forbidding to stand before the gate. On hearing hue and cry Muhammad Iqbal S/O Muhammad Aslam and Nawab S/O Chaht Khan and other people attracted to the spot. Shafeeq made a straight fire with intent to commit murder of my husband with pistol 30 bore which landed on the left side of his chest before our eyes. The second fire made by Asghar which landed on the biceps muscle of left arm of Rehmat Shaheen. My husband fell down on the ground. Shahid Iqbal inflicted a hatchet blow on my husband Rehmat Shaheen which hit on the left side of his head. The accused fled away from the spot by making aerial firing by leaving Rehmat Shaheen there. I alongwith PWs were taking my husband on a private van. to BVH hospital Bahawal Pur and my husband succumbed to the injuries at Al-Mustafa Petrol Pump,. The motive behind the occurrence was that the accused used to tease my daughter Musarrat Shaheen when my husband forbade them they committed murder of my husband on that grudge.”

3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the tnal Court. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed charge against the appellants and their co-accused since acquitted, mentioned above to which they pleaded not guilty and prosecution evidence was summoned. The prosecution produced as many as
13-witnesses. Medical evidence was furnished by Dr. Muhammad Rafique P.W.7, who conducted post mortem examination on the dead body of Rehmat Shaheen deceased.

4. On the other hand, statements of the appellants and their co-accused since acquitted mentioned above were recorded under Section 342, Cr.P.C. in which they refuted the allegations leveled against them by the prosecution. Appellants neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any oral defence evidence. However, they produced certain documents i.e. Ex.D.A. to Ex.D.AF.

5. After conclusion of the trial, learned trial Court while acquitting co-accused mentioned above convicted the appellants with above stated sentences. Hence these three appeals and criminal revision.

6. Learned counsel for the appellants has contended that:

i.        the judgment of the trial Court is against law and facts and is liable to be set-aside;

ii.       it is submitted that the story of the prosecution is improbable and not believable;

iii.      it is further submitted that prosecution has failed to prove its case against the appellants beyond shadow of doubt and the learned trial Court wrongly convicted appellants in surmises and conjectures;

iv.      and lastly prayed for the acceptance of the appeals of the present appellants and their acquittal.

7. On the other hand learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeals and submitted that the prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of their appeals. Learned counsel for the complainant while arguing criminal appeal filed against acquittal of respondents/ accused (Mehmood Khan, Muhamad Iqbal and Shahid Iqbal) submit that the prosecution has proved its case against the said respondents/accused through cogent and convincing evidence but the learned trial Court has wrongly acquitted them who may be convicted in accordance with law. Learned counsel for the complainant while arguing criminal revision for enhancement of sentence of Muhammad Asghar respondent/convict submit that the complainant has also proved case against the said respondent/convict through cogent and solid evidence but the learned trial Court wrongly awarded lessor punishment to him, who may be convicted in accordance with law.

8. We have heard the learned counsel for the appellants as well as learned DPG assisted by learned counsel for the complainant and perused the record with their able assistance.

9. The detail of prosecution case has already been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.

10. Rehmat Shaheen was done to death in the street of his house on 10.03.2013 at 5:10 p.m. regarding which FIR was registered on the same evening i.e. 10.03.2013 at 5:55 p.m. on the statement Ex.P.A. made by his widow Mst. Rehana. Bibi complainant P.W.1 who alongwith her daughter Mst. Musarrat Shaheen P.W.2 and Nawab Khan P.W.3 (real brother of Rehmat shaheen deceased) claims to be the eye-witnesses of the occurrence. Prosecution has introduced following accused in this case:

1. Mehmood Khan, 2. Muhammad Iqbal, 3. Shahid Iqbal	(These three accused have been acquitted by the learned trial through the impugned judgment. Criminal Appeal No. 509 of 2015 filed by Mst. Rehana Bibi complainant P.W.I against their acquittal has been dismissed by this Court today i.e. (15.04.2019).
4. Muhammad Shafiq, 5. Muhammad Asghar	(Appellants)

Motive of the occurrence is that on 10.3.2013 at 5:10 p.m. Mst. Musarrat Shaheen P.W.2 (real daughter of Rehmat Shaheen deceased) went out of the house to throw garbage whereupon Shafiq, Asghar (appellants). Mahmood Khan and Shahid Iqbal (accused, since acquitted) already present there started abusing and misbehaving her, meanwhile, Rehmat Shaheen deceased on hearing hue and cry of her daughter (Mst. Musarrat shaheen P.W.2) reached at the gate of his house, forbade the accused and warned not to stay again before his house, they went back to their houses while extending threats to Rehmat Shaheen deceased. Mst. Musarrat. Shaheen P.W.2 who claims to be the eye-witness of the occurrence stated in her cross-examination that no dispute with the accused party had ever taken place prior to the present occurrence, no hot words were exchanged between her and the accused prior to the occurrence, the heap of dung belongs to Iqbal accused (since acquitted) and Muhammad. Shafiq appellant. She stated in her cross-examination that none from the police had contacted her to record her statement on the day of occurrence. The occurrence was of 10th March, 2013 and her statement was recorded on 12.03.2013 at the place of occurrence and not in the police station, statement under Section 161, Cr.P.C. is before her which she made to the police. She had recorded her statement in full senses, she had not recorded the name of her mother accompanying with her at the spot in her statement Ex.D.A. She further stated in her volunteer portion that she could not remember the name of her mother. The complainant of this case is her mother. When her mother recorded her statement, she was not present with her. She recorded statement to the police only once. Police met her for the first time on 12th March, 2013 and she recorded her statement to the police. We have perused the statement of Mst. Musarrat Shaheen P. W.2 Ex.D.A. recorded under Section 161, Cr.P.C. on 12.03.2013 with unexplained delay of about two days from the date of occurrence i.e. 10.03.2013, wherein name of Mst. Rehana Bibi complainant P.W. 1 has not been mentioned as eye-witness. No plausible explanation has been given for recording statement of Mst. Musarrat Shaheen P.W.2 with the delay of two days which shatters her credibility. Reliance is placed on the case titled “Muhammad Asif vs. The State” (2017 SCMR 486) wherein the Hon'ble Supreme Court of Pakistan has observed at page 492 as under:

“There is a long line of authorities/precedents of this Court and the High Courts that even one or -two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon.”

11. Mst. Rehana Bibi complainant P.W.1 stated in her statement regarding role of the accused that Shafiq appellant  made fore shot with .30-bore pistol which hit on the left side of chest of Rehmat Shaheen deceased and fire shot made by Muhammad Asghar appellant hit biceps muscle of left arm of Rehmat Shaheen deceased. Shahid Iqbal accused (since acquitted) gave hatchet blow which landed on the left side of head of Rehmat Shaheen deceased, the accused fled away from the place of occurrence while making aerial firing. Mst. Musarrat Shaheen P.W.2 (real daughter of Mst. Rehana Bibi complainant P.W.1 did not mention in her statement recorded under Section 161 Cr.P. C. Ex.D.A. that Mst. Rehana Bibi complainant P.W. 1 also witnessed the occurrence. Mst. Rehana Bibi complainant P.W.1 stated, in her cross-examination that Iqbal, Shahid Iqbal and Mehmood accused (since acquitted) have been declared innocent during the investigation. She further stated in her cross-examination that she knows Muhammad Akbar son of Muhammad (nephew of her husband Rehmat Shaheen deceased). Muhammad Akbar was murdered in Karachi. She also knows Rashid son of Muhammad Ameen, (nephew of her husband Rehmat shaheen deceased). Muhammad Ameen was also murdered in Karachi. She stated in her cross-examination that she got recorded in her statement under Section 161, Cr.P.C. that her husband, went out of the house on hearing hue and cry, confronted with Ex.P.A. wherein it was not so recorded. Nawab Khan P.W.3 is real brother of Rehmat Shaheen deceased. He stated in his cross-examination that he was not present when altercation took place between Mst. Musarrat Shaheen P.W.2 and the accused party, he was also not present at the time of altercation took place between Rehmat Shaheen. deceased and accused party. He admitted in his cross-examination that during these altercations neither he nor his Sister-in-law (Bhabbi Mst. Rehana Bibi complainant P.W.1) was present. He stated in his cross-examination that there are criminal cases registered against him. He stated in volunteer portion that those were fake. He does not know as to whether there are criminal cases registered against his elder brother Muhammad Aslam P.W. there was only one criminal case against Rehmat Shaheen deceased which is also fake. The said case was registered on the statement of Muhammad Akram Meo Advocate but the Rehmat Shaheen deceased was acquitted of the said case. His brother Muhammad Iqbal had been murdered at Karachi and the same fate was of his nephew Muhammad Asif in Karachi. Considering the peculiar circumstances of this case, we are of the view that all the three witnesses were not present at the time of occurrence at the place of occurrence. Scaled site-plan Ex.P.E shows that all the three eye-witnesses were at the mercy of the assailants. Had these three eye-witnesses been present at the time of occurrence at the place of occurrence, they would have been prime target of the appellants/assailants. Blessing them with unbelievable Courtesy and mercy shown to them by the accused knowing well that they would depose against them by leaving them unhurt, is absolutely unbelievable story. Reliance is placed on case titled “Mst. Rukhsana Begum and others vs. Sajjad and others” (2017 SCMR 596) in which August Supreme Court of Pakistan has observed at page 601 as under:

“15. Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site-plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable Courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provisions of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the Court is unable to accept such unbelievable proposition.”

12. Nawab Khan P.W.3 stated in his statement (Examination in Chief) that  during the spot inspection, the I.O. collected two empty cartridges of pistol .30-bore P-1 and P-2 which have been taken into possession through recovery memo. Ex.P.C. Khalil Ahmad HC P. W. 9 stated in his statement (examination-in-chief) that on 10.03.2013, I.O. handed over to him two sealed parcels said to contain blood stained earth and two empties for onward transmission to the concerned offices which he kept in malkhana in safe custody. On 07.04.2013, he handed over the same to Muhammad Nawab/C P.W.I2 for onward transmission. Muhammad Nawab P.W.12 stated in his statement (examination-in-chief) that he deposited sealed parcel of two crime empties in the concerned office on 08.04.2013. Recovery memo. Ex.P.C. shows that two crime empties (p-1 and p-2) were collected from the place of occurrence. Point 10 of the scaled site-plan Ex.P.E. shows that two crime empties were collected from the place of occurrence. Appellants were arrested on 08.04.2013 when above said crime empties were deposited in the office of PFSA. Report of PFSA Ex.P.R shows that parcel-3 containing two 30-caliber cartridge cases (items c-2 and c-3) was received in the office on 08.04.2013. The items C-l & C-2 cartridge cases were identified as having been fired in item P-l allegedly recovered from Muhammad Asghar appellant and item. No. C-3 cartridge case has been identified as having been fired in item P-2 recovered from Muhammad Shafiq appellant. The report of PFSA Ex.P.R. also shows that .30-bore pistol (item P-1) allegedly recovered on pointing out of Muhammad Asghar appellant also contained crime empty in its chamber which is item C-1, but memo. Ex.P.M pertaining to recovery of pistol on pointing out of Muhammad Asghar appellant does not show that one crime empty was found in the chamber of the above said pistol. Further Mushtaq Hussain S.I. P.W. 11 specifically stated in his statement (examination-in-chief) that Muhammad Asghar appellant got recovered pistol 30-bore P-6 from his residential room which was checked and found to be empty and was taken into possession through recovery memo. Ex.P.M., meaning thereby that crime empty (item C-1) received in PFSA mentioned in the report Ex.P.R. has been manufactured afterwards to obtain positive report which shatters the veracity of whole report, Ex.P.R.

13. Mushtaq Hussain S.I P.W.11 stated in his statement (examination-in-chief) that Muhammad Iqbal, Mahmood Khan and Shahid Iqbal co-accused, during investigation, were found not to be involved in the occurrence and their presence was not established at the spot, meaning thereby that prosecution story to this extent has already been found false.

14. In view of above discussion, we entertain serious doubt in our minds regarding participation of the appellants and co- accused Mehmood Khan, Muhammad Iqbal and Shahid Iqbal (since acquitted) 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. Reliance is placed on case reported as “Muhammad Akram vs. The State” (2009 SCMR 230).

15. For the foregoing reasons, both the above mentioned criminal appeals are accepted, convictions and sentences of the appellants (Muhammad Shafiq and Muhammad Asghar) awarded by the learned trial Court through the impugned judgment are hereby set aside. They are acquitted of the charges, Muhammad Asghar appellant is present on bail. His surety stands discharged, whereas Muhammad Shafiq appellant is directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Shafiq (appellant) is NOT CONFIRMED.

16. So far as, criminal revision filed by Mst. Rehana Bibi complainant for enhancement of sentence of Respondent No. 2/convict is concerned, in view of the above decision, the same is disposed of as having become infructuous.

17. In view of the above decision, Criminal Appeal filed by Mst. Rehana Bibi complainant P.W. 1 against acquittal of respondents/ accused having no merits is dismissed.

(A.A.K.)          Appeals accepted