NOOR AHMED Versus State

MUHAMMAD NOOR MESKANZAI, J.--- Instant appeal is directed against the judgment dated 8th March, 2012 passed by the learned Sessions Judge, Noshki whereby the appellant was found guilty and sentenced as under:--

"Under section 302(b), P.P.C. for life imprisonment as Ta'zir with fine of Rs.300,000. In default of payment of fine to further suffer one year's R.I.

Benefit of section 382-B, Cr. P. C. was extended in his favour."

2. The brief facts, relevant for the disposal of the instant appeal are that on 21st May, 2011 F.I.R. No.43 of 2011 was registered with Police Station, Noshki under section 302, P.P.C. It was alleged in the F.I.R. that on the fateful night brother-in-law of complainant namely Agha Muhammad was present in his shop situated at Mengal Road. Noshki along with his nephew Ali Haider. At about 8-20 p.m. a person came there and demanded drinking water. He was served with water. After drinking water the said person set in front of the shop and abruptly took out pistol and started firing upon his brother-in-law. The victim sustained serious injuries and died instantaneously. After firing, the culprit fled away. The complainant expressed that as his brother-in-law hailed from Sindh where he had old enmity. May be he was assassinated on account of said enmity.

3. After registration of case investigation commenced. During course whereof the appellant was arrested on 6th July, 2011 and on completion of investigation challan of the case was submitted before the Sessions Judge, Noshki. On 14th September, 2011 charge was framed to which the appellant did not plead guilty and claimed justice through trial. The prosecution in order substantiate the charge examined following P.Ws.:--

P.W.1. Dr. Abdul Rehman, Medical Officer, DHQ Hospital, Noshki, who produced Exh.P/1-A.

P.W.2 ? Shahnawaz (complainant) who produced report Exh.P/2-A, and recovery memo. Exh.P/2-B.

P.W.3 Ali Haider eye-witness, who produced Exh P/3-A memo regarding identification parade.

P.W.4 Noor Khan eye-witness, who produced Exh, P/4-A memo regarding identification parade.

P.W.5 Muhammad Hussain.

P.W.6 Ahmed Khan, who produced Exh.P/6-B recovery memo of blood-stained clothes of deceased. He also produced Exh.P/6-C, memo regarding inspector or corpse and Exh.P/6-D receipt regarding receiving the corpse.

P.W.7 Karim Bakhsh, who produced Exh.P/7-A recovery memo.

P.W.8 Muhammad Sharif, S.I. who produced Exh.P/8-A disclosure memo.

P.W.9 Shabbir Ahmed, who produced Exh.P/9-A recovery of disclosure memo.

P.W.10 Zahir Jan Jamaldini, D.C. Kharan. who issued certificate of identification parade and

P.W.11 Muhammad Ali, I.O. who produced F.I.R. Exh.P/11-A, map Exh.P/11-B, marg report Exh.P/11-C, FSL, report Exh.P/11-D and challan Exh.P/11-E.

4. Thereafter, the appellant was examined under section 342. Cr.P.C. wherein he denied all incriminating pieces of evidence. The appellant also opted to record his statement on Oath as envisaged under section 340(2), Cr.P.C. The appellant also produced D.W.1 Zahir Shah in his defence.

5. The learned trial Court alter hearing the parties and evaluating the evidence vide judgment dated 8th March, 2012 found the appellant guilty under section 302(b), P.P.C. as such, convicted and sentenced him as mentioned herein above, hence this appeal.

6. Learned counsel for the appellant argued with vehemence that the prosecution miserably failed to bring home the charge against appellant but the learned trial Court by misreading the evidence and mis-appreciating the facts, illegally and without any legal justification recorded conviction against the appellant. The learned counsel emphasized that during trial the defence has fully been able to create serious dents and doubts in the prosecution case but while recording conviction the learned trial Court failed to take into consideration the same. It was next argued that there are material contradictions in the statements of prosecution witnesses. The learned trial Court ought to have extended the benefit of doubt in favour of appellant but this was not done in the case in hand which has caused serious injustice to the appellant. Learned counsel canvassed that the trial Court based its judgment solely on identification parade which was inadmissible. Learned counsel submitted that though the trial Court accepted the version of P.W.3 and P.W.4 (the alleged eye-witnesses) but the trial Court failed to take into consideration that P.W.4 has not been cited as eyewitness in the F.I.R. and there are material contradictions in the statement of both the P.Ws. which cannot be basis for recording conviction.

On the other hand, learned Additional P.-G. strenuously opposed the appeal and argued that the prosecution has fully been able to prove the charge against appellant to the hilt. Though there are minor contradictions and discrepancies in the statements of prosecution witnesses but the same do not constitute grounds for acquittal of appellant. The prosecution produced P.W.3 and P.W.4 who are the eyewitnesses of the incident and both of them have fully supported the prosecution version. F.I.R. was lodged promptly and no illegality or material irregularity, vitiating the trial, could be pointed out by the defence.

7. We have considered the arguments advanced by learned counsel for the parties and perused the record of the case minutely. Though sufficient number of witnesses were examined by the prosecution, but a meaningful analysis of the record reflects that the case of prosecution hinges upon the statements of P.W.3 and P.W.4. According to prosecution both are eye-witnesses, whom prosecution claims to be eye-witnesses. The record reveals that F.I.R. was lodged by P.W.2 Shahnawaz but admittedly he is not an eye-witness. According to P.W.2, P.W.3 Ali Haider has witnessed the incident. Admittedly the incident took place at 8-20 p.m. The site plan is not reflective of the fact that any electricity was available at the site. Moreover, as per the statement of P.W.6 the site was inspected with the help of head light of torch and search light of vehicle. It means that admittedly there was no electricity at the site at the time of inspection. Furthermore, the prosecution case hinges upon the statements of P.W.3 and P.W.4. As far as the statement l of P.W.3 is concerned, he has been cited as eye-witness in the F.I.R. and he claims to be present at the spot when incident took place. Statement of P.W.3 reflects that after commission of the offence the witness chased the culprit and at some occasion overpowered him but on his threat, the culprit was let off escort free, by the witness. A critical appreciation of examination-in-chief reveals that P.W.3 except giving an incomplete description of the culprit has never claimed that he identified the assailant or he can identify the culprit who committed the offence. It will not be out of place to mention here that during the course of parade identification the witness has not identified the culprit at the strength of description given in his statement. P.W.3 has denied the suggestion that he had earlier seen the culprit and the culprit was known to him. In such state of affairs, the identification of accused by P.W.3 requires due legal attention and care. The statement reflects that the description of the accused has been stated to the witness prior to the identification. For the sake of convenience relevant portion of the statement is

8. After such clarification by the P.W. there exists hardly any ground to believe the statement of P.W.3 qua his capability to have identified the appellant at the strength of glimpse of appellant observed at the time of incident at darkness. Under such circumstances due to non-availability of light at the spot to our perception, identification of accused was not possible particularly when the witness does not claim to have identified the culprit at the time of over powering him.

9. As far as the statement of P.W.4 is concerned, though this witness claims to be an eye-witness, yet he has not been cited as eye-witness in the F.I.R. Secondly, P.W.3 who, as per the F.I.R. is. an eye-witness does not mention the presence of this witness at the place of incident at the time of commission of the offence. According to P.W.3 he chased the accused, caught hold of him, however, let him free on extension of threat by the culprit. Furthermore; the statement of P.W.4 was recorded with unexplained delay as transpires from the reply to a question, which is reproduced herein below:--

10. The incident took place on 21st May, 2011 and P.W.4 returned from Sindh in the month of July, 2011 and the identification parade was conducted on 6th July, 2011.

11. Statement of P.W.3 and P.W.4 cannot be relied upon on account of contradictions in the same. For instance P.W.3 says that the accused set in front of shop whereas according to P.W.4 accused laid himself, thereafter got up and demanded water. The deceased served him with water and subsequently the assailant started firing. After firing the culprit ran away. He and Ali Haider P.W.3 chased and caught hold of him but the culprit aimed pistol towards them and stated that they will also be killed whereas; according to P.W.3 he caught hold of the accused. The `chadar' lying on his head fell down and the accused aimed pistol towards him and stated that I have killed one and you too will be killed but there is no such assertion in the statement of ,P.W.4. Besides, above glaring contradictions there are substantial improvements made by P.W.4. The prosecution has failed to establish the presence of P.W.4 at venue at the time of commission of offence, therefore, the statement of P.W.4 is liable to he rejected outright.

12. As far as identification of accused by P.W.3 is concerned, the same is of no help to prosecution. The admission of P.W.3 that prior to identification parade the description of the accused was disclosed to him by a third person is un-ignorable which vitiates the entire process of identification. During course of identification parade, at one occasion the witness did not identify the accused. Additionally the identification parade does not specifically disclose the role played by the applicant. After discarding the statements of P.W.3 and P.W.4 rest of the witnesses cannot improve the case of prosecution with the result that the appellant is entitled for extension of benefit of doubt. Under Islamic Law, the error of a Qazi in acquitting an accused is better than his mistake in recording conviction against an innocent person. The law on the subject stands settled that various circumstances are not required to extend 1 benefit of doubt to an accused, if a single circumstance is available which according to a prudent mind is sufficient to create a reasonable doubt in the prosecution case and thereby the veracity and the chastity of the prosecution case is rendered doubtful, then accused is entitled for the benefit of doubt as a matter of right and not a matter of grace. Reliance placed on the case titled Muhammad Akram v. The State reported in 2009 SCMR 230 (relevant at page-236), wherein it has been observed as under:

"The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an exiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by the Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt. It was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind above the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

In the light of what has been discussed hereinabove, we are of the view that prosecution has failed to bring home the charge against appellant beyond reasonable doubt and the defence has succeeded to create dents and reasonable doubt in the prosecution case, as such, the appeal is accepted, judgment dated 8th March, 2012 passed by the learned Sessions Judge, Noshki is set aside. The appellant Noor Ahmed son of Mirza Khan involved in case F.I.R. No.43 of 2011 is acquitted of the charge. He be released forthwith, if not required in any other case or offence.

HBT/41/Q ??????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.