Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No.1025 of 2016 filed by Muhammad Asad appellant (against his conviction) and Murder Reference No.249 of 2016 sent by the learned trial Court for confirmation of his death sentence or otherwise as both the above mentioned matters have arisen out of the same judgment dated 30.04.2016 passed by learned Addl. Sessions Judge, Okara according to which appellant was convicted and sentenced as under-- Muhammad Mad appellant U/S. 302(b), PPC Sentenced to death for committing Qatl-e-Amd of Muhammad Amin deceased with compensation of Rs.1,50,000/- to the legal heirs of the said deceased under Section 544-A, Cr .P.C. and in default whereof to undergo S.I. for six months.
U/S. 324, PPC Sentenced to Five years RI, for causing injuries on the person of Muhammad Jameel with fine of Rs.25,000/- and in default whereof undergo S.I. for one month.
U/S. 337-F(iii) PPC Sentenced to pay Rs. 75,000/-- to Muhammad Jameel injured a Daman for causing Jurrah Ghatr Jaifa Mutalahimah, failing which the accused shall be kept in jail and be dealt with the same manner as he was sent to simple imprisonment with benefit of Section 382-B, Cr .P.C. in case FIR No.216 dated 03.04.2013 under Sections 302, 324, 34, PPC, Police Station Saddar Depalpur , District Okara.
2. The facts of the case have been stated by Muhammad Hanif complainant P. W. 1 in his statement before the learned trial Court which is hereby reproduced for narration of the facts :-- "Stated that on 03.04.2013 at about 8: 30 pm I, my brother Muhammad Amin and Muhammad Jameel were present in our house.. Asad accused present in the Court came in the street and raised lalkara that let Amin be come out and he be taught a lesson for forbidding him from firing. On the noise my brother Muhammad Amin came out. I and Muhammad Jameel my brother also came .out after him in the street. Meanwhile, Ghulam Abbas PW also reached there. Asad accused armed with pistol .30 bore alongwith three unknown accused persons also armed with lethal weapons were present in the street. The unknown accused persons might be identified if they come in front of us.
In the street electric bulb was lighting. Within our view accused Asad made fire with his pistol at Muhammad Amin which landed on the left side of his chest. The second fire was made by unknown accused with his pistol which landed on the left arm of my brother Muhammad Amin which went through and through. Again Asad accused made fire with his pistol which hit on the back of head of Muhammad Amin. My brother Jameel stepped forward to save Muhammad Amin upon which accused Asad made fire with his pistol which landed in front of neck of my brother Muhammad Jameel who also became injured. My brother Amin died at the spot and the accused while making firing and raising lalkaras decamped from the place of occurrence.
Motive for the occurrence was that accused Asad often while making firing was in habit to create terror and two days prior to the occurrence Muhammad Amin deceased had forbidden him for which accused Asad felt bad and for the said motive alongwith his unknown companions committed the murder of my brother Muhammad Amin and injured Muhammad Jameel with intention to murder him. I made application which is Ex. PA for registration of case which was signed by me in token of its correctness."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.0 was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge against the appellant to which he pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced as many as 13-witnesses (P.W.1 to P.W.13) and certain documents Ex. P. A. to Ex.P.U.
6. Medical evidence was furnished by Dr. Naveed Hafeez P.W.10, who conducted post mortem examination on the dead body of Muhammad Amin deceased and observed as under:-- "INJURIES
1. A fire-arm lacerated wound 2 cm x 1 cm going deep. Margins were inverted and blacking was present front and lower .part of left chest 3 cm away from left nipple at 7'0 clock position (entry wound).
2. A fire-arm lacerated wound 1/2 cm x 1/2 cm going deep margins were inverted slightly blackening was present at lower part of left forearms (entry wound).
3. A fire-arm lacerated wound 1 x 1/2 cm going deep margins inverted front and middle part of left forearm (exit wound of Injury No.2.)
4. A fire-arm lacerated wound margins inverted back lower of head (Occipital area).
Probable duration between injury and death approximately was 10-15 minutes and between death and postmortem approximately was 7 hours and 30 minutes.
OPINION After performing external and internal postmortem of the dead body , the cause of death in my opinion was Injury No. 1 and injury No.4 due to fire arm injuries causing sever hemorrhage (shock). All the injures were ante mortem."
While conducting medical examination on the person of Muhammad Jameel injured P . W.2 observed as under:-- "INJUR Y
1. A fire-arms lacerated wound 1cm x 1 cm going deep margins were inverted slightly blackening was present at just above lcm above medial side of right clavicle (entry wound).
Corresponding hole was .present. The injured was advised X-Ray of chest, Surgeon opinion with surgical notes.
Nature of injury was KUO. Probable duration was within 1 hour and kind of weapon of fire arm."
7, On the other hand, statement of the appellant was recorded under Section 342, Cr.P.C. in which he refuted the allegations levelled against him by the prosecution. The appellant neither opted to appear as witness under Section 340(2), Cr.P.C, nor produced any oral defence evidence. However , he produce d certain documents Ex,D.A to Ex.D.B in his documentary 'defence evidence. In reply to the question "Why this case against you and why the PWs deposed against you?" Muhammad Asad appellant replied as under:-- "It is a false case. The PWs have deposed falsely being related interse and with the deceased and being inimical to me. The occurrence has not taken place in the manner as alleged by the prosecution. In fact it was dacoity case having been committed in the house of one Mst. Kausar Bibi and assailants were not known. There was indiscriminate firing. Muhammad Amin deceased and Muhammad Jameel PWs received injuries in the belly. I have been falsely roped in at the instance of close relative of the complainant who is employee in Highway patrolling. He got me apprehended in the light of occurrence alongwith my brother Zeshan and other unknown persons. The police of Depalpur had arrested me on the night of occurrence and kept me in illegal confinement for about a week and thereafter due to deliberation and consultation challan me in this case."
8. After conclusion of the trial, learned trial Court convicted the appellant with above stated sentences, Hence this appeal
9. Learned counsel for the appellant has contended that:-- i. the judgment of the trial Court is against law and facts and is liable to be set-aside; ii. it is submitted that the story of the prosecution is improbable 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 appellant in surmises and conjectures; iv. and lastly submitted for the acceptance of the appeal of the present appellant and his acquittal.
10. On the other hand, learned DPP assis ted by learned counsel for the complainant has vehemently opposed the appeal and submitted that the prosecutio n has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the appellant as well as learned DPP assisted by learrned counsel for complainant and on perusing the record with their assistance observed as under:-- i) The detail of prosecution case has already been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition. ii) Muhammad Amin (deceased) was murdered and Muhammad Jameel P.W.2 sustained injuries on his person during the occurrence took place on 03.04.2013 at 8:30 p.m. in the street (in front of the houses of Mst. Kausar Bibi and Muhammad Anwar son of Charagh Din, but the house of Muhammad Amin son of Abdul Majeed deceased is situated much away towards western side of the street as shown in the scaled site-plan Ex.P.M.) regarding which FIR Ex.P.A/1. was registered on the same night i.e. 03.04.2013 at 10:00 p.m, on the written application Ex.P.A moved by Muhammad Hanif complainant P .W.1 (real brother of Muhammad Amin deceased). iii) According to the FIR, Muhammad Asad appellant and three unknown accus ed were present at the time of occurrence at the place of occurrence, one unknown accused made fire shot upon Muhammad Amin deceased which hit him on left arm. Learned DPP submits that unknown three co-accused have not been identified till today . iv) Endorsement made by Ikram All ASI RW.6 at the bottom of the written applicatio n Ex.P.A moved by Muhammad Hanif complainant P.W.1 shows that he had moved written application for registration of FIR at Police Station but time of moving such application has not been mentioned at the bottom of application. v) Muhammad Hand complainant P.W. 1 has not stated in his application for registration of FIR that he after leaving Muhammad Jameel injured P.W.2 (his real brother) at the place of occurrence alongwith dead body of Muhammad Amin deceased reached Police Station and moved said application for registration of FIR. Even otherwise, conduct of Muhammad Hanif complainant , P.W. 1 is unnatural who firstly preferred lodging of FIR while reaching Police Station leaving his real brother (Muhammad Jameel injured P.W.2) in injured condition at the place of occurrence.
Khadim Hussain S.I./I.O. of the case P.W.7 stated in his Statement (examinatio n-in-chief) that On 03.04.2013, investigation of this case was entrusted to him, he visited the place of occurrence , prepared injury statement Ex.
P.G, inquest report of Muhammad Amin deceased Ex. P.H., he also prepared injury statement of Muhammad Jameel injured P.W.2 Ex.P.K and sent him for medical examination. He (Khadim Hussain of the case p.w.7) stated in cross-examination that after about half an hour of the receipt of copy of FIR, he reached the place of occurrence, dead body of Muhammad Amin deceased was lying at point "A" whereas Muhammad Jameel injured P.W.2 was at point "B". He (Khadim Hussain S.I./I.O. of the case p.w.7) admitted in his cross-examination that neither FIR number nor diary number has been mentioned in Ex.P.K (FIR number must have been mentioned as Khadim Hussain S.I./I.O. of the case P.W.7 after receipt of copy of FIR reached place of occurrence). This all shows that above said documents were prepared while sitting in Police Station at much later stage. vi) Point "E" of rough site-plan Ex.P.L. and scaled site-plan Ex.P.M shows that Cultus Car bearing registration No. 6782/LEC (statedly left by accused at the place of occurrence) was taken into possession. It is not mentioned in the FIR that accused (appellant and three unknown co-accused) came at the place of occurrence on the said car. Both the eye-witnesses (Muhammad Hanif complainant P.W.1 and Muhammad Jameel injured P.W.2) did not state in their statements while narrating the occu rrence that accused came at the place of occurrence on a car, however , Muhammad Hanif complainant P.W. 1 stated regarding recovery that after registrati on of case, police reached place of occurrence,. took Cultus car LEC/6782 into possession which was left by Muhammad Asad appellant which is a dishonest improvement. vii) Learned DPP as well as learned counsel for the complainant submits that there is no documentary proof which shows that car in question belongs to Muhammad Asad appellant. viii) Medico-legal certificate Ex.P.Q pertaining to Muhammad Jameel injured P.W.2 shows that Muhammad Jameel injured P.W.2 reached hospital on 03.04.2013 at 9:20 p.m. and his medical examination was conducted at 9:25 p.m. Medico-legal certificate also shows that Muhammad Jameel injured P.W.2 got himself medically examined. It is mentioned in brief history i.e. h/o fight. Dr. Naveed Hafeez P.W.10 who conducted his medical examination admitted in his cross-examination that Muhammad Jameel injured P.W.2 was brought by Ghulam Mustafa constable (not appeared as p.w.) and he received the MLC, he had also recorde d the statement of Muhammad Jameel injured P.W.2 and he thumb marked the same. Muhammad Jameel injured P.W.2 has not named any assailant while giving history of fight. ix) Ex.P.N. is an application statedly moved on 06.04.2013 by Khadim Hussain S.I./I.O. of the case P.W.7 for permission to record statement of Muham mad Jameel injured P.W.2. Endorsement by Registrar Surgical Unit with the observation that patient is fit for state ment. Learned DPP submits that Registrar/concerned medical officer has not been produced to prove his endorsement statedly made by him at the bottom of the above said application.
Thereafter on 06.04.2013, statement of Muhammad Jameel injured P.W.2 was recorded with delay of about three days. Considering above, no authenticity can be given to the above said endorsement as author/concerned Registrar/ medical of ficer has not appeared to prove it. x) So far as raising of lalkara by Muhammad Asad appellant (as stated by Muhammad Hanif complainant P.W. 1 and Muhammad Jameel injured P.W.2 stated in their statements) is concerned, it is not believable for the reason that the accused who choses night time for the occurrence, would raise lalkara before the occurrence to identify himself. Reliance is placed on the case titled "Adalat Hussain Vs. The State" (PLJ 1989 Cr.C (Lahore) 48 1DB]) in which it has been observed at page 52 as under:-- "According to him after taking meals he slept near the deceased in the Courtyard and at about midnight the appellant came down from the kotha and raised lalkara that he would teach him (Dara deceased ) a lesson for not giving him share of the land and fired a pistol shot at him. There was no occasion for the appellant to have raised lalkara before the occurrence. If the appellant had selected the night time for the occurrence he Would not have done anything which could have woken or attracted the P.Ws. He could have easily fired at the deceased when everybody was asleep." xi) Both the eye-witnesses (Muhammad Hanif complainant P.W. 1 and Muhammad Jameel injured p.w.2) stated in their statements (examination-in-chief) that they had identified the appellant in the light of electric bulb (as occurrence took place in the dark hours of night on 03.04.2013 at 8:30 p.m. in the street) which admittedly has not been taken into possession by the I.O. In that eventuality , the identity of the appellant has become doubtful.
Reliance is placed on case titled "Sardar Bibi and another Vs. Munir Ahmed and others" (2017 SCMR 344) in which Hon'ble Supreme Court of Pakistan has observed at page 348 as under:-- "2. According to the prosecution, the occurrence took place at 2:00 a.m. in odd hours of the night. Although prosecution alleged that sufficient light of bulbs was available there but during investigation, no such bulbs (source of light) were taken into possession by the I.O. In that eventuality , the identification of the assailants became doubtful." xii) The argument of learned counsel for the complainant that Muhammad Jameel injured P.W.2 sustained injuries during the occurrence which establishes his presence at the place of occurrence and this sole witness is sufficient for conviction of the appellant, has no substance because merely the injuries on the person of Muhammad Jameel injured P.W.2 would not stamp him truthful witness. Reliance is placed on case "Amin Ali and another Vs. The State" (2011 SCMR 323) in which Hon'ble Supreme Court of Pakistan has observed at pages 331 and 332 as under:
12. Certainly , the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp -them truthful witnesses. It has been held in the case of Said Ahmed supra as under:-- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suf fered. But that by itself would not show that they had, in view of the aforeno ted circumstances, told the truth in the Court about the occurrence; particularly , also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the F.I.R. namely , Abdur Rashid and Riasat were not examined at the trial. This further show that the injured eye- witnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused. xiii) Muhammad Hanif complainant P.W.1 Stated in his Statement (examination-in-chief) regarding motive of the occurrence that Muhammad Asad appellant was in habit to create terror while making firing and two days prior to the occurrence, Muhammad Amin deceased had forbidden him which made grudge. Learned DPP submits that no FIR regarding aerial firing has been registered against Muhammad Asad appellan t. Considering above, we are of the view that prosecution has failed to prove the motive, xiv) Khadim Hussain S.I./I.O. of the case P.W.7 stated in his statement (examination-in-chief) that On 08.04.2013, he arrested Muhammad Asad appellant. Amanat Ali Inspector P.W.12 stated in his statement that on 16.04.2013 Muhammad Asad appellant during interrogation disclosed and got recovered pistol .30-bore P-2 from his house.
Report of PFSA Ex.P.0 shows that crime empties received in the office on 08.04.2013 which is the date of arrest of Muhammad Asad appellant stated above. Considering this, possibility cannot be ruled out that crime empties have been manufactured after the arrest of Muhammad Asad appellant before their dispatch to PFSA to obtain positive report, hence, positive report of Ex.P .0 is not believable and the same is hereby discarded. .
13. in view of the above discussion, we entertain serious doubt in our minds regarding participation of Muhammad Asad appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should he many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of an accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported a "Muhammad Akram vs. the State" (2009 SCMR 230 ).
14. For the foregoing reasons, this appeal is allowed, conviction and sentence of the appellant awarded by the learned trial Court through impugned judgment are hereby set aside and he is acquitted of the charges.
Muhammad Asad appellant is directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGA TIVE and death sentence of Muhammad Asad appellant is NOT CONFIRMED .