It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story--

 PLJ 2022 Cr.C. 565

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

----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Medical evidence--Qatl-e-amd--Presence of both PWs on spot at relevant time is doubtful in nature because they did not receive even a scratch during incident despite fact that many fire-shots were made on spot at time of incident as alleged by them--Moreover, it was case of said PWs that they allegedly saw incident from a close distance but failed to understand that in presence of PWs, who were real sons of deceased, how such tragedy with the, deceased could happen without any intervention on their part to rescue deceased--No credible or convincing reason was assigned by them for their presence at place of occurrence--The prosecution story as narrated in FIR was that appellant along with his co-accused armed with rifle 44 bore and rifle 222 bore came at spot and started indiscriminate) firing with their respective weapons; at some distance complainant (PW.8) and (PW.9) were irrigating their lands and when they reached at spot, accused persons decamped from place of occurrence, meaning thereby that they did not witness occurrence as they reached at place of occurrence after incident--Medical evidence produced by prosecution was not of much avail to prosecution because murder in issue had remained unwitnessed and, thus, medical evidence could not point an accusing finger towards any of culprits implicated in this case--As far as defence plea taken by appellant in his statement u/S. 342, Code of Criminal Procedure is concerned, since prosecution evidence is doubtful in nature, therefore, there is no need to discuss same which is exculpatory in nature--Held: It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story--Appeal was allowed.                                                 [Pp. 568, 569 & 570] A, B, C, D & F

2016 SCMR 1605

Benefit of doubt--

----It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant.         [P. 570] E

Mr. Kashif Saeed Bhatti, Advocate for Appellant.

Mr. Ali Hassan, Addl. Prosecutor General for State.

Mr. Muhammad Shakeel, Advocate for Complainant

Date of hearing: 10.11.2021.

 PLJ 2022 Cr.C. 565
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch., J.
MUHAMMAD NAWAZ--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 1123-J & Crl. Rev. No. 956 2015, heard on 10.11.2021.

Judgment

Muhammad Nawaz (appellant) along with his co-accused namely Iftikhar Ali was tried by learned Addl. Sessions Judge, Kasur in case FIR No. 222 dated 27.08.2012 offence under Sections 302, 109 and 34, PPC registered at Police Station Raja Jang District Kasur for committing murder of Muhammad Umar, father of the complainant. vide judgment dated 22.08.2015, passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life, with a further direction to pay Rs. 50,00,000/- (rupees fifty lakh only) as compensation under Section 544-A; Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo six months simple imprisonment. Through the same judgment, Iftikhar Ali, co-accused of the appellant was acquitted of the charge and no appeal against his acquittal was filed either by the State or the complainant, as conceded by learned Addl. Prosecutor General and learned counsel for the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand. The complainant has also filed Crl. Revision No. 956 of 2015 for enhancement of sentence of the appellant from life imprisonment to death. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Ex.PN/1) registered on the statement (Ex.PN) of Abdul Ghani, complainant (PW.8) is that on 27.08.2012 at around 9:30 a.m. he (complainant) along with his brother Muhammad Yousaf (PW.9) and father Muhmmad Umar was working in his field. Suddenly Muhammad Nawaz (appellant) and Muhammad Shahzad (since P.O.) armed with rifle 44 bore and rifle 222 bore came there, raised a lalkara to teach a lesson to Muhammad Umar for not giving way and started indiscriminate firing with their respective weapons. At some distance the complainant and Muhammad Yousaf (PW.9) were irrigating their lands and when they reached at the spot, the accused persons while brandishing their weapons and extending threats that if anyone came near would not be spared, decamped from the place of occurrence. Muhammad Umar succumbed to the injuries on the spot. It was alleged in the FIR that the appellant along with his co-accused Muhammad Shahzad committed this incident on the abetment of Iftikhar Ahmad.

3. During investigation, Muhammad Shahzad, co-accused of the appellant became fugitive from law and he was declared proclaimed offenders. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant along with his co-accused was summoned by the learned Addl. Sessions Judge, Kasur to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 109 and 34, PPC was framed against them, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded, wherein he refuted all the allegations of prosecution and professed his innocence. The appellant did not opt to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused as detailed above. Hence, this appeal.

4. I have heard learned counsel for the parties as well as learned Addl. Prosecutor General for the State and gone through the record with their able assistance.

5. The ocular account in this case has been furnished before the learned trial Court by Abdul Ghani, complainant (PW.8) and Muhammad Yousaf (PW.9), who were closely related to the deceased being his sons. The presence of both the PWs on the spot at the relevant time is doubtful in nature because they did not receive even a scratch during the incident despite the fact that many fire-shots were made on the spot at the time of incident as alleged by them. Moreover, it was the case of said PWs that they allegedly saw the incident from a close distance but I failed to understand that in the presence of the PWs, who were real sons of the deceased, how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased. I have observed that both the witnesses of ocular account were chance witnesses because in the FIR as well as before learned trial Court it was the case of the prosecution that on the fateful day the PWs were irrigating their lands but no record of warabandi was produced by the prosecution during the trial and as conceded by Muhammad Yousaf (PW.9) in his cross-examination, the turn of watering to their fields was always on one day in every week. No credible or convincing reason was assigned by them for their presence at the place of occurrence. The prosecution story as narrated in the FIR was that the appellant along with his co-accused armed with rifle 44 bore and rifle 222 bore came at the spot and started indiscriminate) firing with their respective weapons; at some distance the complainant (PW.8) and Muhammad Yousaf (PW.9) were irrigating their lands and when they reached at the spot, the accused persons decamped from the place of occurrence, meaning thereby that they did not witness the occurrence as they reached at the place of occurrence after the incident. Moreover, it has been brought on record during cross-examination conducted on Abdul Ghani, complainant (PW.8) that the distance between ours and our deceased father at the time of occurrence was half kilometer. Dr. Muhammad Ahmad (PW.4) who conducted autopsy of the dead-body of deceased, noted blackening and burning around Injuries No. 1, 3, 8, 10, 13, 14, 16, 21, 23, 25 and 29 of the deceased but as stated by the complainant (PW.8) in his cross-examination, the accused persons were at a distance of 4/5 Karams from the deceased when he received fire-shots. According to the prosecution case, the occurrence took place on 27.08.2012 at about 9.30 a.m. whereas dead body was received in mortuary on 27.08.2012 at 4:30 p.m. No plausible explanation has been brought on record on behalf of the complainant's side as to where the dead-body remained for such a long time and this state of affair creates doubt about the presence of both the eye-witnesses on the spot at the time of incident. There is another reason which makes their presence on the spot doubtful as the time of death and post-mortem does not coincide with the time as given in the FIR. The post-mortem examination of the dead body of the deceased was conducted on the same day at 5:2 p.m. and the time of death was noted (as per police paper) as 9.30 a.m. on 27.08.2012. The duration between death and post-mortem examination, as observed by the Dr. Muhammad Ahmad (PW.4) was almost ten hours. If the time is calculated from the time of examination back to the time of death/incident, it can safely be concluded that the occurrence did not take place on the time as mentioned in the FIR. All these factors clearly suggest that it was an unwitnessed occurrence and the evidence of both the eye-witnesses of ocular account is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.

6. So far as the alleged recovery of rifle 44 bore (P.8) at the instance of the appellant which was taken into possession vide recovery memo. Ex.PM is concerned, the same is immaterial because the report of PFSA (Exh.PS) qua said rifle is in the negative.

7. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605).

8. As far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature.

9. I have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not

prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be placed on the case law reported as "Muhammad Akram versus The State" (2009 SCMR 230).

10. For the foregoing reasons, Criminal Appeal No. ll23-J of 2015 filed by Muhammad Nawaz (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 22.08.2015 passed by learned trial Court are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

11. In view of above discussion, Crl. Revision No. 956 of 2015 filed by the complamant for enhancement of sentence of the appellant from life imprisonment to death having no substance is dismissed.

12. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial Court in any manner whatsoever in case of arrest and trial of Muhammad Shahzad, co-accused of the appellant who was proclaimed offender at the time of pronouncement of the impugned judgment.

(A.A.K.)          Appeal allowed