2020 P Cr. L J 8399(Appreciation of evidence,Benefit of doubt---Contradictory evidence)

2020 P Cr. L J 839

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

NADEEM AKHTAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 83-J of 2016, heard on 18th March, 2019.

(a) Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictory evidence---Scope---Accused was alleged to have murdered the deceased by firing---Occurrence, as per complaint, took place at 5:40 p.m., and the complaint was lodged at 7:00 p.m. and the FIR was chalked out at 7:20 p.m.---Post-mortem report showed that the death occurred at 5:30 p.m., dead body was received in mortuary at 6:00 p.m., the documents from the police were received by the doctor at 6:30 p.m. and autopsy was conducted at 6:45 p.m.---Post-mortem and autopsy were conducted prior to making the complaint and registration of FIR---Said facts made the prosecution story and the charge, against the accused, highly doubtful---Appeal was accepted and the impugned judgment was set aside, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Even a single doubt in the prosecution story makes an accused entitled for due benefit of acquittal, not as a matter of grace or concession but as of right.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

(c) Criminal trial---

----Benefit of doubt--- Scope--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused will entitle him to benefit not as a matter of grace or concession but as of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---Mistake of judge in releasing a criminal is better than his mistake in punishing an innocent.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---Better that ten guilty persons be acquitted rather than one innocent person be convicted.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Barrister Usama Amin Qazi for Appellant.

Muhammad Sharif Ijaz, District Public Prosecutor for the State.

Muhammad Ilyas Siddiqui for the Complainant.

Date of hearing: 18th March, 2019.

JUDGMENT

MUHAMMAD TARIQ ABBASI, J.---This appeal is directed, against the judgment dated 28.04.2016, passed by the learned Sessions Judge, Attock, whereby in case FIR No.431, dated 26.11.2012, registered under sections 302/324/148/149, P.P.C., at Police Station Saddar Attock, District Attock, Nadeem Akhtar (hereinafter referred to as the appellant), was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life, along with compensation of Rs.2,00,000/-, payable to legal heirs of deceased, failing which to further undergo S.I. for six months, with benefit to section 382-B, Cr.P.C., whereas his co-accused, namely, Mumtaz, Mst. Bushran and Tauqeer Ahmad, were acquitted of the charge.

2. The precise charge, against the appellant was that he by firing had done Ghulam Habib (hereinafter referred to as the deceased), to death.
3. The trial was held in the Court of learned Sessions Judge, Attock, and finally through the impugned judgment, the appellant was convicted and sentenced in the above mentioned terms. Consequently, the appeal in hand.
4. The arguments advanced by the learned counsel for the appellant, the learned Prosecutor, assisted by learned counsel for the complainant, have been heard and the record has been perused.
5. As per complaint (Ex.PH), made by Muhammad Ismail (PW-8), the occurrence had taken place on 26.11.2012 at about 05:40 p.m., whereas the complaint was got lodged at about 07:00 p.m. and the FIR (Ex.PH/1) was chalked out at 07:20 p.m. The post mortem report (Ex.PB) shows that the death had occurred on 26.11.2012 at 05:30 p.m. whereas the dead body was received in dead house at 06:00 p.m., the documents from the police were received by the doctor (PW-5) at 06:30 p.m. and autopsy was conducted at 06:45 p.m. The above mentioned time given in the post mortem report about receipt of the dead body, in the hospital, the documents from the police and conducting autopsy are prior to make the complaint (Ex.PH) and registration of the FIR (Ex.PH/1).
6. Neither the learned Prosecutor for the State nor the learned counsel for the complainant are in a position to give any explanation that how prior to reporting the matter to the police and registration of the FIR, the police papers were prepared and handed over to the doctor and even post mortem examination was conducted and completed. The said fact is a clear sign that after the autopsy, whole of the proceedings, including drafting the complaint (Ex.PH), registration of FIR (Ex.PH/1) and preparation of the other documents were concocted, which fact had made the alleged prosecution story and the charge, against the appellant highly doubtful.
7. It is a well settled principle of law that even a single doubt in the prosecution story makes an accused entitled for due benefit of acquittal, not as a matter of grace or concession, but as of right. In this regard, I am fortified by the dictum laid down by the august Supreme Court of Pakistan in cases titled 'Ayub Masih v. The State' reported as (PLD 2002 Supreme Court 1048) and 'Tariq Pervez v. The State' reported as 1995 SCMR 1345, wherein it is held that if a simple circumstance creates reasonable doubt in a prudent mind about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right. In the case of Ayub Masih (Supra), while quoting a saying of the Holy Prophet (PBUH) 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent', and making reference to the maxim, 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the Hon'ble Supreme Court observed as under:-

"...It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (p.b.u.h ) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."

8. Resultantly, the instant appeal is accepted, the impugned judgment is set-aside and the appellant, namely, Nadeem Akhtar is acquitted of the charge, while extending him the benefit of doubt. The appellant is in custody, hence be released forthwith, if not required to be detained in any other case. The disposal of the case property shall be as directed by the learned trial Court, in the impugned judgment.

SA/N-32/L Appeal accepted.

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