PLJ 2024 Cr.C. (Note) 293
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan, J.
FIAZ HUSSAIN--Appellant
versus
STATE--Respondent
Crl. A. No. 31-J of 2016, heard on 23.9.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--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 fee hor concession, but as of right--Appeal accepted. [Para 9] B
Absconder--
----Absconder for a long period which is sufficient proof of his guilt, has no substance because mere absconsion is not conclusive proof of guilt of an accused--It is only a suspicious circumstance against an accused that he was found guilty of offence--However, suspicion after all is suspicion--The same cannot take place of proof.
[Para 8] A
PLD 2009 SC 53.
Prince Rehan Iftikhar, Muhammad Adeel Shah and Hafiz Muhammad Haseeb Ullah Rawn, Advocates (on bail)for Appellant.
Mr. Waheed Rafique, DDPP for State.
Malik Muhammad Akram Bhatti and Tahir Mehmood, Advocates for Complainant.
Date of hearing: 23.9.2024.
Judgment
Appellant (Fiaz Hussain) has been tried by the trial Court in case FIR No. 250 Dated 04.07.2007 in offences under Section 302/34, PPC Police Station Saddar District Muzaffargarh and was convicted and sentenced vide judgement dated 30.01.2016 as under:-
Fiaz Hussain (appellant)
Under Section 302(b), PPC “Sentenced to imprisonment for life as Ta’zir for the murder of Shaukat Hussain with compensation of Rs. 500,000/- to be paid by him to the legal heirs of deceased and in default thereof to further undergo 6-months S.I.
Appellant was also given benefit of Section 382-B, Cr.P.C.
2. Heard. Record perused.
3. Shaukat Hussain was done to death whereas Abdul Rehman/complainant P.W-12 sustained injuries during the occurrence took place on the passage on 04.07.2007 at 4/5.00 p.m. whereafter FIR was lodged on the same evening (04.07.2007) at 6.45pm. on the statement of Abdul Rehman PW12, complainant (brother of Shaukat Hussain deceased), who stated in his statement before the trial Court as under:
“About 8½ years ago at about Degir Wella (between Assar and Maghrib prayer), I was present in my house. My house is adjacent to the house of my brother Shaukat Hussain. I heard a noise at the door of Shaukat. I rushed towards the house of my brother where I saw that four persons namely Rana Munir Hussain armed with pistol (acquitted co-accused), Fiaz Hussain Kumhar armed with pistol along with Ghulam Nabi armed with sota (acquitted co-accused) and one unknown person armed with sota, were present there and raising Lalkara saying to my brother that they would teach a lesson to him for not letting them irrigating their fields. In the meanwhile, PWs Liaqat Hussain and Abdul Majeed as well as other persons from vicinity also attracted to the spot. In our presence and view, Fiaz Hussain accused (present before the Court in police custody) made a fire shot with pistol which hit my brother Shaukat Hussain at his chest who fell down on the earth. When I stepped forward to attend my brother, Munir Hussain accused fired at me which hit me on my right leg. The accused persons thereafter by extending threats wen towards south. People of locality gathered at the spot and they took us to the bus stop of Apollo Mills at 6.15 P.M). The local police of P.S. Saddar Muzaffargarh was present at said Bus Stop. The police officer examined me and my brother Shukat and recorded my statement which was read over to me and I put my thumb impression underneath the same which is Ex.P.D/1.”
4. Liaquat Hussain PW13 while appearing before the trial Court has reiterated the same story.
5. It is a matter of record that Abdul Rehman/complainant PW-12, has also sustained firearm injuries during the occurrence at the hands of Rana Munir (co-accused), who has been acquitted by the trial Court in earlier trial vide judgment dated 24.12.2010 by disbelieving the evidence of eye-witnesses including Rana Munir (co-accused) against his own injuries and are not believable to the extent of murder of Shaukat Hussain (deceased) in absence of independent corroborative piece of evidence which is conspicuously missing in the present case. (2020 SCMR 219 “Safdar Abbas and others vs. The State and others” and 2021 SCMR 159 “Ishtiaq Hussain and another vs. The State and others”).
6. Motive and recovery have also been disbelieved by the trial Court in Paras 19 & 23 of the impugned judgment.
7. Appellant has also been acquitted vide judgment dated 12.10.2015 by the trial Court against the allegation of his escape from the judicial custody.
8. The argument of learned counsel for the complainant that appellant remained absconder for a long period which is sufficient proof of his guilt, has no substance because mere absconsion is not conclusive proof of guilt of an accused. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicion after all is suspicion. The same cannot take the place of proof. (PLD 2009 SC 53 “Muhammad Tasawer vs. Hafiz Zulkarnain and 2 others”).
9. In view of the above discussion, I entertain serious doubt in my mind regarding participation of the 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 he would be entitled to its benefit not as a matter of grace or concession, but as of right.
10. For the foregoing reasons, instant criminal appeal filed by the appellant (Fiaz Hussain) is accepted, his conviction and sentences awarded by the trial Court through the impugned judgment are hereby set aside. He is acquitted of the charges. He is present on bail, his bail bonds stand discharged.
(A.A.K.) Appeal accepted
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