-It is not necessary that there doubt be many circumstances creating doubt--If there is a circumstances 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 of concession, but as of right-

 PLJ 2022 Cr.C. 658 (DB)

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

----S. 302--Qatl-i-Amd--Acquittal of co-accused--Conflict between medical and ocular evidence--Benefit of doubt--Acquittal of--Appellant made fire shot with gun hitting on right side of the abdomen of the deceased--Co-accused (since acquitted) with his Repeater hit on the left side of buttock of deceased, contrary to this, medical officer observed this injury as an exit wound--Injury is an entry wound which was attributed appellant and Injury is an exit wound which attributed to co-accused who has been acquitted by the trial Court--Conflict between ocular and medical evidence is not ignorable rather shattering the credibility of eye-witnesses creates doubt in the prosecution story--P.W.2 sustained injury during the occurrence whose presence at the time of occurrence at the place of occurrence cannot be discarded, has no substance because merely the injury on his person would not stamp him truthful witness--Serious doubt in our minds regarding participation of appellant and his co-accused since acquitted mentioned above in the present
case--It is not necessary that there doubt be many circumstances creating doubt--If there is a circumstances 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 of concession, but as of right--Acquit--Appeal allowed.

                                                                  [Pp. 660 & 661] A, B, C & D

2020 SCMR 192; 2020 SCMR 219; 2011 SCMR 323 ref.

M/s. Khawaja Qaisar Butt, Muhammad Ajmal Kanjoo, Advocates for Appellant.

Mr. Tahir Mehmood, Advocate for Complainant.

Ch. Muhammad Akbar, APG for State.

Date of hearing 14.9.2021.

 PLJ 2022 Cr.C. 658 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
ALTAF HUSSAIN etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 78, 211 & M.R. No. 33 of 2017, heard on 14.9.2021.

Judgment

Sadaqat Ali Khan, J.--Appellant Altaf Hussain along with his co-accused Niaz, Riaz, Fayyaz, Shahnawaz, Mukhtiar, Allah Wasaya (since acquitted) and Allah Ditta (since convicted under Sections 337-F(iii), 324 PPC through the impugned judgment) has been tried by learned trial Court in case FIR No. 171 dated 17.04.2014 offences under Sections 302, 324, 109, 148, 149, PPC Police Station Saddar Kehror Pacca, District Lodhran and was convicted and sentenced vide judgment dated 14.2.2017 as under:

Altaf Hussain (appellant)

U/S. 302(b), PPC     Sentenced to death as Tazir for committing Qatl-i-Amd of Zafar Iqbal (deceased) with compensation of Rs. 3,00,000/- payable to the legal heirs of deceased U/S 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to further undergo simple imprisonment for 6-months.

2. Appellant has filed criminal appeal against his conviction, Muhammad Zakir complainant has filed criminal appeal against the acquittal of respondents/accused and learned trial Court has sent Murder Reference for confirmation of death sentence of Altaf Hussain appellant or otherwise, which are being decided through this single judgment.

3. Brief facts of the case have been stated by complainant Muhammad Zakir (P.W.1) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:

"On 17.04.2014 at about 11:30 AM I alongwith my father Zafar Iqbal, Allah Bachaya son of Ashiq, Falaksher son of Ashiq, Zulfiqar son of Khan Muhammad and Mumtaz Hussain son of Muhammad Ameen went to minor Burhanpur Chah Khan Wala to see the water level. When we reached near the minor accused Altaf armed with .12 bore gun, Mukhtar Ahmad armed with pistol .30 bore, Niaz Ahmad armed with repeater, Fayyaz armed with pistol .30 bore, Riaz armed with hatchet, Shahnawaz armed with iron rod and Allah Ditta son of Sikander armed with gun .12 bore. All the accused persons are present in Court. Allah Ditta accused at the outset raised lalkara that let us teach Zafar Iqbal a lesson for getting registered a criminal case against us. Accused Altaf Hussain made a straight fire from his gun .12 bore which hit on the right side of abdomen of my father who fell on the ground. Accused Niaz made a straight fire with his repeater which hit my father on left side of his buttock. Accused Allah Ditta made a straight fire with his .12 bore gun which hit Allah Bachaya on his left shoulder who also fell on the ground. We leaned forward to get hold of the accused persons but the accused persons threatened that lest not come forward otherwise we shall be killed. Whereby we restrained from getting hold of the accused persons who meanwhile managed to flee away while brandishing their weapons from the place of occurrence. I alongwith Falaksher and Mumtaz attended my father who meanwhile succumbed to the injuries. All these accused persons after mutual consultation and abetment with accused Allah Wasaya Kanju present in the Court have murdered my father and injured Allah Bachaya. I got my oral statement recorded before the police which is Ex.PA, and bears my signature Ex.PA/1."

4. After hearing learned counsel for the parties, learned APG and on perusal of record with their able assistance, we have observed as under:-

i)        Zafar Iqbal was done to death on the bank of canal on 17.04.2014 at 11:00 a.m., FIR was lodged on the same day i.e. 17.04.2014 at 2:15 p.m. on the statement of his son Muhammad Zakir complainant P.W.1, who, his cousins Allah Bachaya P.W.2 and Falaksher P.W.3 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the learned trial Court that on the day of occurrence, they went to see water level at Burhanpur Minor, appellant Altaf Hussain armed with .12-bore gun, Niaz co-accused (since acquitted) armed with Repeater, Fayyaz co-accused (since acquitted) armed with pistol, Shahnawaz CO-accused (since acquitted) armed with iron rod, Riaz co-accused (since acquitted) armed with hatchet, Allah Ditta co-convict armed with .12-bore gun came there. Allah Ditta co-convict raised lalkara to teach a lesson to Zafar Iqbal deceased for getting registered a criminal case against them, Altaf Hussain appellant made fire shot with .12-bore gun hitting on right side of his abdomen, Niaz co-accused (since acquitted) made fire shot with his Repeater which hit on the left side of his buttock, Allah Ditta co-convict made fire shot hitting on left shoulder of Allah Bachaya P.W.2.

ii)       All the three witnesses have specifically stated in their statements before the learned trial Court that fire shot made by Niaz co-accused (since acquitted) with his Repeater hit on the left side of buttock of Zafar Iqbal deceased, contrary to this, medical officer (Dr. Muhammad Rafique P.W.10) observed this injury i.e. Injury No. 2 as an exit wound and also admitted in his cross-examination that Injury No. 1 is an entry Wound (which was attributed Altaf Hussain appellant) and Injury No. 2 is an exit wound attributed to Niaz co-accused who has been acquitted by the learned trial Court through the impugned judgment. This conflict between ocular and medical evidence is not ignorable rather shattering the credibility of eye-witnesses creates doubt in the prosecution story. (2020 SCMR 192) "Sufyan Nawaz and another vs. The State and others" and (2020 SCMR 219) "Safdar Abbas and others vs. The State and others".

iii)      The argument of learned counsel for the complainant that Allah Bachaya injured P.W.2 sustained injury during the occurrence whose presence at the time of occurrence at the place of occurrence cannot be discarded, has no substance because merely the injury on his person would not stamp him truthful witness) (2011 SCMR 323) "Amin Ali and another vs. The State".

iv)      Motive of the occurrence was registration of a criminal case against the accused party, which being double edged weapon cuts both the ways. (2005 YLR 1629) "Shamsher Ali vs. The State".

v)       Altaf Hussain appellant was arrested on 07.05.2014 by Abdul Shakoor S.I. P.W.14, who (appellant) on 19.05.2014 during interrogation disclosed and got recovered .12-bore gun P-7 but this witness did not disclose specific place of recovery of .12-bore gun and also did not state that parcel of the gun was prepared at the time of its recovery, hence, this recovery is not believable.

5. In view of the above discussion, we entertain serious doubt in our minds regarding participation of appellant and his co-accused since acquitted mentioned above 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.

6. For the foregoing reasons, instant criminal appeal is allowed, conviction and sentences of Altaf Hussain appellant 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 Altaf Hussain (appellant) is NOT CONFIRMED.

7. In view above decision, criminal appeal filed by the complainant against acquittal of respondents/accused having no merits is dismissed.

(M.A.B.)         Appeal allowed