' SADAQAT ALI KHAN, J.---This judgment shall dispose of Criminal Appeal No, 199 of 2012 filed by Ashiq Hussain present appellant (against his conviction) and Murder Reference No, 36 of 2012, arising out of same judgment dated 19-5-2012 passed by learned Additional Sessions Judge, Khanpur District Rahimyar Khan according to which appellant was convicted and sentenced as under:--
(1) Ashiq Hussain was convicted under section 302(b), P.P. C. And sentenced to 'Death' for Committing Qatl-i-Amd of Rabnawaz deceased along with compensation of Rs,1,00,000 payable to the legal heirs of the deceased under section 544-A, Cr.P.C. Recovered as arrears of land revenue and in default thereof six months' S.I. ' in a private complaint under sections 302/379/148, 149, P.P.C. Filed by Muhammad Nadeem complainant (P.W.1) in case F.I.R. No, 326 dated 28-5-2010 under section 302/34, P.P.C. Police station, Saddar Khanpur District Rahimyar Khan whereas remaining co-accused namely Manzoor Ahmed, Hazoor Bukhsh, Rabnawaz, Ghulam and Ameer were tried and acquitted.
2. Brief facts of the case as given by the complainant Muhammad Nadeem (P.W.1) in his private complaint are that he is resident of Mouza Neel Garh Tehsil Khanpur. On the fateful day i.e, 28-5- 2010 at about 09:00 a.m. He along with his paternal uncle Rabnawaz (deceased) was going towards city Khanur for the purpose of registry of land a well as selling milk. When they reached near the brick kiln of Azad Khan, then all of a sudden, Hazoor Bukhsh alias Kala Rabnawaz, Ghulam and Ameer (acquitted accused) along with three unknown persons came there. Hazoor Bukhsh (acquitted accused) raised lalkara that they would teach lesson for registration of the cases.
Hazoor Bukhsh and Rabnawaz (acquitted accused) caught hold Rabnawaz (deceased) while Ghulam and Ameer (acquitted accused) asked to kill him, whereupon Ashiq Hussain accused/present appellant and Manzoor (acquitted accused) made fires from .12-bore pistols which landed below the chest of Rabnawaz (deceased) who fell down on earth, on his hue and cry, and on the voice of the fire, witnesses Muhammad Saleem and Muhammad Khalid (P.W.2) attracted at the spot and then accused fled away from the spot after brandishing their respective weapons. Accused persons also stolen away an amount of Rs, 2, 00, 000 (two lac) from the pocket of Rabnawaz deceased which he was carrying for registry. He and the witnesses took Rabnawaz (deceased) in injured condition to civil hospital but he succumbed to the injuries on the way.
Motive behind the occurrence was the previous criminal litigation pending between the parties.
3. He stated that after completion of the investigation the police in connivance with the accused persons declared all the accused persons except Ashiq Hussain present appellant as innocent whereupon feeling aggrieved, he had filed the private complaint before the learned trial court and the learned trial court after observing legal formalities under the Criminal Procedure Code firstly summoned all the accused to face the trial and then framed the charge on 21-4-2011 against all the accused persons including present appellant to which they pleaded not guilty and claimed trial and the prosecution evidence was summoned.
4. Prosecution produced Muhammad Nadeem complainant as P.W.1, Muhammad Khalid P.W.2, Muhammad Asif P.W.3, Manzoor Ahmad P.W.4, Fayyaz Ahmad P.W.5, Dr. Khan Muhammad MO P.W.6, Zahid Nawaz Patwari P.W.7, Muhammad Mushtaq Zia ASI P.W.8, Jam Faiz Ahmad SI P.W.9, Muhammad Safdar SI P.W.10 and Muhammad Ajmal Constable as P.W.11 and after tendering in evidence private complaint Exh.PA, application to S.H.O. Exh.PE, copy of F.I.R. Exh.PE/1, memo. Of recovery of last worn clothes of the deceased Exh. PB, blood stained earth Exh.PB/1, receipt of dead body Exh. PC, postmortem report Exh. PD, inquest report Exh.PD/2, injury statement Exh.PD/3, memo.
Of recovery of cycle and shoes Exh. PG, copy of petition Exh.PK and closed the prosecution evidence.
5. On the other hand, statements of all the accused were recorded under section 342, Cr.P.C. Who refuted the allegations so levelled against them and have not opted to appear as a witness under section 340(2), Cr.P.C. And did not produce the defence evidence and in reply to question why this case against you and why the P.Ws. Deposed against you, the accused/present appellant Ashiq Hussain replied as under:- "the occurrence suggested by the prosecution was an unseen one and the P. Ws. Were not present at the alleged place and time of occurrence. The prosecution out of its mala fide has withheld the actual evidence allegedly traced by the police. I have falsely been involved in this case due to inimical mentality of the complainant and other private witnesses produced out of their close relations and under interest and enmity against me. I am innocent in this case. I was not present and have no concern with occurrence."
6. Medical evidence was furnished by Dr. Khan Muhammad, Medical Officer, THQ Khanpur (P.W.6) who stated that on 28-5-2010, he was posted as Medical Officer at THQ Khanpur. On the said date, police brought dead body of Rabnawaz for postmortem examinatio1. He found the dead body on the mortuary THQ Hospital Khanpur which was identified by Saleem and M. Khalid. It was a dead body of average height and average weight lying supine on table wearing Shalwar Kameez and Safa all blood stained, eyes and mouth closed and observed following injuries, relevant para of his statement is reproduced as under:-- "Injury No, 1.
' Multiple fire arm entry wound in circular shape each measuring 1/2 cm x 1/2 cm and larger one measuring 1.5 x 1.5 cm in the middle of circle on epigastric region. 3/4 cm away from lower border of sternum in mid line. Margins inverted burning and bleeding present. Corresponding holes of fire arm present on Kameez. On disection multiple pellets (five in number) and a cap of cartridges removed. Body stitched and material sealed and duly signed in jar.
Scalp, skull and vertebra NAD Membrains, brain spinal cordNAD Thorax ' All part of thorax were found healthy Abdomen ' All parts of abdomen were found healthy excepts walls which were injured peritoneum was ruptured and stomach was found raptured and empty, pancreas punctured and upper part of small intestine ruptured as well as liver ruptured.
Muscles, bones and joint NAD Dislocation Nil Remarks of Medical Officer According to doctor the cause of death of deceased was heavy bleeding resulting in shock and cardio respiratory failure and instant death due to injury was sufficient to cause death in ordinary course of nature"
7. After conclusion of the trial, learned trial court heard the arguments from both the sides and convicted the present appellant Ashiq Hussain with above stated sentences while acquitted the co-accused Manzoor Ahmad, Hazoor Bukhsh, Rabnawaz, Ghulam and Ameer.
8. Learned counsel for the appellant contended that:--
(i) the judgment of the trial court is against law and facts on the file and is liable to be set aside;
(ii) it is submitted that the story of the prosecution is improper and not believable;
(iii) it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted present appellant in surmises and conjectures;
(iv) it is submitted that co-accused have already been acquitted by the learned trial court on the basis of same evidence but wrongly convicted the appellant;
(v) it is further submitted that there are major contradictions in the statements of the P.Ws. Which were ignored by the trial court in its judgment illegally;
(vi) it is submitted that the P. Ws. While appearing before the trial court has failed to prove the motive against the appellant;
(vii) and lastly submitted for the acceptance of the appeal of the present appellant;
9. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed appeal and requested for dismissal of the same.
10. We have heard the learned counsel for the parties and perused the record.
11. The detail of the prosecution as set forth in the F.I.R. Exh.PE/1 has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same.
12. According to F.I.R., occurrence took place on 28-5-2010 at about 09:00 a.m. Whereas F.I.R. Was registered on the same day at 11:30 a. m with unexplained delay of 1-1/2 hours on the statement of Muhammad Nadeem complainant/P.W.1 nephew of the Rabnawaz deceased and the distance between the place of occurrence and the police station Sadar Khanpur was 4-1/2 Km and no plausible explanation has been mentioned in the F.I.R. Exh.PE/1 for the aforementioned delay in reporting the matter to the police. We have perused the written application Exh.PE moved by Muhammad Nadeem complainant/P.W.1 for registration of the case and found that in the endorsement made by Jam Faiz Ahmed S.I./I.O. Of this case where no time of receiving of the application is mentioned. Although it is revealed in the endorsement that application Exh.PE was presented to P.W.9 Jam Faiz Ahmed SI/I.O of this case by the complainant Muhammad Nadeem P.W.1 in the hospital and according to postmortem report Exh. PD, it was conducted on the dead- body of Rabnawaz deceased at 12:30 p.m on 28-5-2010 and there is absolutely no plausible or convincing reason for the aforementioned gross delay of more than two hours in reporting the matter to the police which has created serious doubt regarding the truthfulness of the prosecution story especially when five nominated co-accused Manzoor Ahmed, Hazoor Bakhsh, Rabnawaz, Ameer and Ghulam were found innocent during the investigation by the I.O. And ultimately acquitted by the trial court.
13. P.W.2 Muhammad Khalid real son of the deceased Rabnawaz stated in cross-examination that police reached at the place of occurrence at 11:30 a.m. And he was accompanied at that time having joined the police from the hospital and further stated that police reached at the hospital after half an hour of the occurrence and he further stated that his statement was recorded in the hospital when police reached there and after his statement complainant submitted application Exh.PE for registration of the F.I.R. This also shows that if statement of this witness is accepted that he along with police reached at the place of occurrence at about 11:30 a.m. Which makes the whole story of the prosecution doubtful because P.W.9 Jam Faiz Ahmed S.I./I.O. Of this case has not given any time in his endorsement made on theback page of the bottom of the application Exh.PE moved by the complainant P.W.1 for the registration of the case and according to the endorsement same was received by P.W.9 Jam Faiz I.O. Of this case in the hospital where-after formal F.I.R. (Exh.PE/1) was registered on 28-5-2010 at about 11:30 p.m.
14. Hence, it can be safely said that this delay was result of consultation, deliberation for roping the innocent persons in the case. Reliance is placed on case Mehmood Ahmed and 3 others v. The State and another (1995 SCM R 127) in which august Supreme Court of Pakistan while discussing the issue of delay in lodging the F.I.R. Has observed at page 131 as under:- "Although, in some circumstances a delay of two hours may not be of much importance, yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate."
15. P.W.2 is Muhammad Khalid who is the real son of Rabnawaz deceased and admittedly was not accompanied the deceased Rabnawaz while going to City Khanpur from his house and stated before the trial court that on 28-5-2010 at 09:00 a.m. His father Rabnawaz deceased along with Muhammad Nadeem P. W.1 complainant left together and they followed them and when he reached at the 'Bhatta' of Azad Khan heard noise from some distance and on hearing such noise he proceeded further towards the place of noise and saw that Ashiq present appellant, Manzoor, Rabnawaz, Ghulam and Ameer (acquitted co-accused) along with three un-know persons were present there. Hazoor Bakhsh and Rabnawaz were catching hold of his father Rabnawaz deceased.
Ameer and Ghulam asked them to murder him. Ashiq present appellant made a fire shot which hit on the chest of the deceased. Manzoor (acquitted co-accused) also made a fire shot, when he reached at the place of occurrence accused fled away. In cross- examination, he stated that he had got recorded in his statement under section 161, Cr.P.C. On 28-5-2010 that his father Rabnawaz deceased along with Nadeem P.W.1 complainant left together and he followed them at some distance which was confronted with Exh.PD with his statement where it was not so recorded. He further stated that he got recorded in his statement that when he reached near the brick-kiln of Azad Khan, this occurrence took place which was confronted with Exh.PD his statement where it was not so recorded. He stated before the trial court that he had got recorded in his statement before the police that Hazoor Bakhsh and Rabnawaz (acquitted co-accused) were catching hold of his father Rabnawaz which was confronted with Exh.DC his statement where it was not so recorded. He further stated that he had got recorded in his statement before the police that Ameer and Ghulam (acquitted co-accused) asked them to murder him and Ashiq made fire which hit on the chest of the deceased and Manzoor also made fire which was confronted with Exh.DC his statement where it was not so recorded. He further stated that his statement Exh.DC was accordingly recorded. He further stated that he had not got recorded in his statement before the police that when he reached, Ashiq Hussain, Manzoor, Hazoor Bakhsh, Rabnawaz, Ghulam and Ameer accused along with three unknown persons were going away after firing which was confronted to him with his statement Exh.DC where it was so recorded. He stated that he has got recorded in his statement Exh.DC before the police that when he reached along with Saleem (given up P.W.) his father was already present there in injured condition and saw him lying on the ground and further he admitted that he did not get recorded that his father was being carried to the hospital when he reached there which was confronted with his statement Exh.DC where it was not so recorded. He further stated that he got recorded in his statement before the police that he, Nadeem P.W.1 and Saleem (given up P.W.) lifted his father and took him to the hospital but he succumbed to the injuries which was confronted with his statement Exh.DC where it was not so recorded.
16. P.W.2 Khalid real son of Rabnawaz deceased had made dishonest improvements and omissions in his statement before the trial court to strengthen the prosecution case as he himself had stated in his statement Exh.DC before the police recorded during the investigation that when he reached at the place of occurrence Ashiq Hussain present appellant, Manzoor, Hazoor Bakhsh, Rabnawaz, Ghulam and Ameer (acquitted accused) along with three unknown persons were going away after firing and his father was already present there in injured condition lying on the ground and before the trial court he while making dishonest improvements stated that he had seen the occurrence where Ashiq present appellant made fire which hit on the chest of the deceased and Manzoor, also made fire and this witness cannot be relied upon.
17. P.W.1 Muhammad Nadeem complainant stated in his written application Exh.PE moved for the registration of the case on 28-5-2010 that after hearing noise of the firing and his hue and cries Muhammad Saleem (given up P.W.) and Khalid P.W.2 attracted there and also stated same in the trial court in his statement and Doctor Khan Muhammad P.W.6 stated in cross-examination that it is correct that injury on the dead body was result of one shot and was a result of close range fire as the single wed was recovered from it. This shows that Muhammad Khalid P.W.2 had not seen the occurrence. His credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubts on the veracity of the said witness. Hence evidence of Muhammad Khalid P.W.2 real son of Rabnawaz deceased is disbelieved. Reliance is placed on case Akthar Ali and others v. The State (2008 SCM R 6) in which august Supreme Court of Pakistan has observed at page 12 as under:- "it is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805".
18. Now we take up Muhammad Nadeem P.W.1 who has also claimed himself as eye-witness and after. Disbelieving the evidence of Muhammad Khalid P.W.2, this P.W.1 Muhammad Nadeem is a single witness who claimed himself as eye-witness of the occurrence. He stated that he is nephew of Rabnawaz deceased and he had moved an application Exh.PA for registration of the case on 28- 5-2010 in the hospital to I. 0 Jam Faiz P.W.9 in which he specifically stated as under:-- {{URDU TEXT}} ' and also reiterated the same statement before the trial court but did not made the locale of the injury and simply stated that Ashiq made a fire and Manzoor also made fire and did not state that whether fire of Ashiq or Manzoor had hit the deceased or not and his statement before the trial court is hereby reproduced:-- "Ashiq gave a fire at the deceased and Manzoor also made such fire."
19. In cross-examination P.W.1 Muhammad Nadeem stated that deceased received two independent fire shots while he was on the cycle and after receipt of second fire he fell on the ground. He was at a distance of four Karams from deceased when fire was made upon him on his back side, and the assailants were nearer to the deceased. First shot was made by putting barrel on the body of the deceased. The second fire was made from the distance of about one foot from the deceased but here this witness has not explained which accused made first fire which hit on the back of the deceased and which accused made second fire by putting barrel on the body of the deceased. On the other hand, P.W.6 Doctor Khan Muhammad stated before the trial court that multiple fire arm entry wound in circular shape each measuring 1/2 cm x 1/2 cm and larger one measuring 1.5 x 1.5 cm in the middle of circle on epigastria region 3/4 cm away from the lower border of the sterum in mid line. Margins inverted burning and blackening was present. On dissection multiple pellets five in number and a cap of cartridge removed and in cross- examination P.W.6 Doctor Khan admitted that it is correct that injuries on the dead body were result of one shot. The pellets recovered by him from wound of the dead body were lying in circle shape within the injury and the injury was the result of close range fire as the single wed was recovered from it. This witness P.W.6 doctor Khan Muhammad is a prosecution witness and no request had been made by the prosecution for declaring him hostile on the ground that why he stated that the injuries on the person of the deceased Rabnawaz was the result of single shot furthei absolutely there was no fire arm entry wound on the back of Rabnawaz deceased according to the statement of P.W.6 doctor Khan Muhammad. This conflict between ocular and medical evidence is not ignorable as P.W.1 Muhammad Nadeem is a nephew of Rabnawaz deceased specifically stated in his application Exh.PE for registration of the case that. Ashiq present appellant and Manzoor (acquitted co-accused) made fires with their pistols .12-bore which hit the deceased on his chest and he fell down and also stated in his statement before the trial court without specifying the locale of the injury but specifically stated that Ashiq made a fire at the spot and Manzoor also made fire and in cross-examination stated that deceased received two independent fire shots. The detail of which has already been given in preceding paras of this judgment. Whereas according to the postmortem report Exh.PD and the statement of P.W.6 Doctor Khan Muhammad, the injuries on the person of Rabnawaz deceased is a result of single fire from where single wed was recovered and the injury was the result of close range fire. So the presence of this witness P.W,1 Nadeem at the spot at the relevant time becomes doubtful and our this view found support from the application Exh.PE where time of receiving the application for registration of the case by P.W.9 Jam Faiz Ahmed I.O. Of this case has been mentioned. Reliance is placed on case Aziz-ur-Rehman v. The State (2008 PCr.LJ 279) in which it is held at page No, 283 as under:-- "the eye-witnesses who are sons of the deceased specifically stated that the appellant fired only one shot, while according to the postmortem report, there were three injuries on the person of the deceased. So the presence of the eye witnesses at the spot becomes doubtful."
20. We observed further that Exh.PF is a rough site plan prepared by P.W.9 Jam Faiz I.O. Of this case whereas Exh.PD/1 is a scaled site plan but neither names of the eye-witnesses are mentioned in these two documents nor names of the accused and these two documents also belie the eyewitnesses. P.W.1 Nadeem complainant has stated that the motive of the occurrence was the registration of the criminal cases against Ashiq Hussain and Hazoor Bakhsh and they had extended threats two days prior to the alleged occurrence. P.W.1 in cross-examination stated that Muhammad. Shafique (given up P.W.) of the case had got registered F.I.R. No, 109/2010 under section 337, P.P.C. Against Manzoor Ahmed (acquitted co-accused) and further stated that F.I.R. No, 42/2010 under sections 380/457, P.P.C. Was got registered by Abdul Hakim his paternal uncle against Ashiq accused/present appellant and Khalil as well as some others. He further stated that F.I.R. 324/2010 under section 506-B, P.P.C. Was got registered by Rabnawaz deceased against Hazoor Buksh and Rabnawaz (acquitted co-accused) of this case in which P.W.1 was a witness in the F.I.R. Further, it is admitted position that Rabnawaz deceased had not registered any criminal case against Ashiq Hussain present appellant who got registered a criminal case F.I.R. No, 109/2010 under section 337, P.P.C. Against Manzoor Ahmed which also does not relates to Ashiq Hussain present appellant. So far as registration of the case F.I.R. No, 42/2010 under sections 380/457 P.P.C.
By Abdul Hakim paternal uncle of P.W.1 Nadeem complainant against Ashiq present appellant is concerned, it is safely said that Ashiq present appellant could have motive against Abdul Hakim but not against Rabnawaz deceased because Rabnawaz deceased is not even the witness in case F.I.R. No, 42/2010 above stated against Ashiq present appellant so absolutely we think there was no reason that Ashiq appellant would commit the murder of deceased Rabnawaz and it is our confirmed view that motive is not proved against the appellant otherwise criminal litigation between complainant party and the family of the present appellant if admitted as motive of the occurrence then it is said that motive is double edged weapon in criminal case as it can cut both ways. In the present case if the alleged motive could propel the appellant into aggression against Rabnawaz deceased hence at the same time it is equally possible that the same background of enmity could prompt the above mentioned eye-witnesses to falsely implicate the present appellant in this case .So we do not believe this motive. Reliance is placed on case Shamsher Ali v.
The State (2005 YLR 1629) in which it is held as under:-- "pitched enmity based upon a longstanding murder feud between the parties to this case is an admitted fact and it is proverbial that motive is double-edged weapon in a criminal case as it can cut both ways. In the present case if the alleged motive could propel the appellant into aggression against Sajjad Hussain deceased then at the same time it was equally possible that the same background of enmity could prompt the above mentioned eye-witnesses to falsely implicate the appellant in this case. We have, therefore, found it to be extremely unsafe to rely upon- the motive alone to provide corroboration to the ocular account furnished in this case."
21. P.W.9 Jam Faiz S.I./I.O stated that on 28-7-2010 Ashiq present appellant was arrested and during interrogation he disclosed and got recovered pistol P-4 which was taken into possession through recovery memo. ExPD/1 but we think that in the instant case alleged recovery of pistol from Ashiq appellant during the investigation of this case is legally inconsequential as no crime empty has been recovered from the place of occurrence thus the pistol P-4 allegedly recovered from the possession of the appellant could not be connected with the alleged crime. P.W.1 Muhammad Nadeem specifically stated in his application Exh.PE that Ashiq present appellant and Manzoor (acquitted co-accused) made fires with their pistols .12-bore which hit Rabnawaz deceased on his chest and also stated in his statement before the court that Ashiq made a fire at the deceased and Manzoor also made such fire and in cross-examination stated that deceased received two independent fires, detail of which has already been stated in preceding paras of this judgment.
Manzoor Ahmed was attributed the same role of making a fire at the deceased which hit on the chest as was attributed to Ashiq present appellant that he made fire with the same weapon which hit Rabnawaz deceased on his chest and P.W.6 doctor Khan Muhammad declared that injury of the deceased is a result of single fire from where single wed was recovered. Manzoor Ahmed has been acquitted by the trial court and the case of the present appellant Ashiq is at par with that of Manzoor and prosecution has not filed any appeal against his acquittal and has admitted the acquittal Of Manzoor Ahmed thus same allegation is against the present appellant Ashiq and there is no distinction in the prosecution evidence that fire of the Ashiq hit deceased on his chest and not the fire of Manzoor Ahmed. Further five accused persons Manzoor, Hazoor, Rabnawaz, Ghulam and Ameer were acquitted by the trial court in the instant case by disbelieving the alleged eye witnesses P.W.1 Muhammad Nadeem nephew of the deceased and P.W.2 Muhammad Khalid real son of deceased and the same evidence cannot be relied upon without independent corroboration for maintaining the conviction of the present appellant. Reliance is placed on case Akhtar Ali v. The State (2008 SCM R 6) in which august Supreme Court of Pakistan has observed at page 12 as under:- "it is pertinent to mention here that the learned High Court had also acquitted four other co- convicts as mentioned above on the basis of same evidence who were involved by the complainant in his supplementary statement that convicts had committed the offence with the connivance of the four aforesaid acquitted co-convicts. It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration."
22. From the facts and circumstances narrated above, we are persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story deposed by P.W.1 and P.W.2 (nephew and real son of the deceased). Resultantly, salutary principle of benefit of doubt is extended in favour of the appellant. The Criminal Appeal No, 199 of 2012 filed by Ashiq Hussain, present appellant is accepted and he is acquitted of the charges in a private complaint (Exh. PA) under sections 302, 379, 148/149, P.P.C. Arising out of case F.I.R. No, 326 dated 28-5-2010 under section 302/34, P.P.C. Registered at police station, Saddar Khanpur district Rahimyar Khan by giving him benefit of doubt and conviction and sentence awarded by the learned trial court vide judgment dated 19-5-2012 is set-aside and the appellant is directed to be released forthwith if not required in any other case. Death sentence is NOT CONFIRMED and Murder Reference No, 36 of 2012 is answered in NEGATIVE.