Sadaqat Ali Khan, J.--This single Judgment shall dispose 6f Criminal Appeal No. 30 of 2014 filed by Iftikhar alias Kharoo (appellant) against his conviction and M.R. No. 21 of 2014 sent by the learned trial Court for confirmation of his death sentence or otherwise as the above mentioned matters have arisen out of the same judgment dated 21.12.2013 passed by learned trial Court in case FIR No. 1320 dated 18.11.2010, under Section 302/34 PPC Police Station Factory Area, District Sheikhupura, whereby he was convicted and sentenced as under: Iftikhar alias Kharoo appellant U/S. 302(b), PPC Sentenced to death for causing Qatl-i-Amd of Muhammad Ashfaq alias Shakoo deceased with compensation of Rs.5,00,000/- under Section 544-A Cr.P.C. to the legal heirs of the said deceased and in default whereof to undergo simple imprisonment for one year .
2. The facts of the case have been stated by Barkat Ali Complainant P. W.5 (real father of Muhammad 'Ashfaq alias Shakoo deceased) in his statement before the learned trial Court which is hereby reproduced for narration of the facts: "On 18-11-2010 at 9.45 p.m. I was present in my Haveli alongwith my son Muhammad Ashfaq. Sarfraz alias Usama took Muhammad Ashraf alongwith him on his Motorcycle Bearing No. 5905 Honda make. Ashfaq was driving the Motorcycle whereas Sarfraz alias Usama was sitting behind him. At 10.00 p.m. Khalid Mehmood told me that my son has been murdered.
Learned defence counsel raised objection that this part of statement is hear-say . Khalid Mehmood PW is not given up yet or examined, therefore, this objection will be decided at the time of judgment.
I reached the spot and asked Khalid Mehmood and Khurram PWs, how this occurrence happened? They told me that when my son Ashfaq and Sarfraz alias Usma on a Motorcycle on a passage 'near Faizpur Interchange Motorway , they were intercepted by Iftikh ar alias Khara. First of all fire shot was made by Sarfraz alias Usama which landed near to the left ear. The second fire shot was made by Iftikhar accused which also landed near the left ear of Ashfaq. The third fire shot made by unknown person which also landed near left ear. Thereafter police came at the spot. Motive for the occur rence was a dispute over lending of money which was advanced by deceased to Iftikhar accused. About 3/4 days prior to the occurrence a dispute also took place. I drafted the application Exh.PF through some body and presented before police. I thumb marked the application."
3. After registration of the case, investigation started and on completion of the same report under Section 173 Cr.P.C. was submitted in the trial Court. Learned trial Court after observing legal formalities provided under tile Criminal Procedure Code framed charge against the appellant to which he pleaded not guilty and prosecution evidence was summoned. Prosecution produced as many as 9-witnesses (P.W.1 to P.W.9). Medical evidence was furnished by Dr. Muhammad Taha Zubair P.W. 1 who conducted postmortem examination on the dead body of Muhammad Ashfaq alias Shakoo deceased.
4. On the other hand, statement of the appellant was recorded under Section 342 Cr.P.C. in which he refuted the allegations leveled against him by the prosecution. Appellant did not opt to appear as witness under Section 340(2)
Cr.P.C. He produced Irshad Hussain D.W. 1 and Muhammad Younis D.W.2 in his oral defence evidence. No documentary defence evidence has been produced by the appellant.
5. After conclusion of the trial, learned trial Court convicted the appellant with above stated sentence. Hence this appeal.
6. Learned counsel for the appellant have 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 prayed for the acceptance of the appeal of the present appellant and his acquittal.
7. On the other hand, learned DPGs, assisted by learned counsel for the complainant have vehemently opposed the appeal and submitted that prosecutio n has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of his appeal.
8. We have heard the learned counsel for the appellant as well as learned DPGs assisted by learned counsel for the complainant and perused the record with their able assistance.
9. The detail of prosecution case has been given in para 2 of this Judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
10. Muhammad Ashfaq alias Shakoo was murdered on 18.11.2010 at 9:45 p.m. on the passage leading to Faizpur near bridge/ Pull Motorway regarding which FIR was registered on the same night i.e. 18.11.2010 at 1:10 p.m. on the written application moved by Barkat Ali complainant P.W.5 (real father of Muhammad Ashfaq alias Shakoo deceased) who does not claim to be the eye-witness of occurrence. Khalid Mahmood (given up P.W.) and Muhammad Khurram P.W.6 have been mentioned in the FIR as eye-witnesses of the occurrence. Khalid Mahmood P.W. has been given up being abroad by learned trial Court on the request of Barkat All complainant P.W.5 vide order dated 21.09.2013. Muhammad Khurram P. W.6 (real brother of Muhammad Ashfaq alias Shakoo deceased) is the only witness who claims to be the eye-witness and stated in his statement before the learned trial Court that on 18. 1 1.2010, he alongwith Khalid Mahmood (given up P.W.) after taking meal at Sham-W ela were strolling near Motorway Interchange Faizpur , in the light of bulb, he saw Iftikhar alias Kharoo appellant alongwith one unknown person (not traced till today) talking adjacent to the wall of the Haveli of some Jat. After sometime, his brother Muhammad Ashfaq alias Shakoo deceased came from Faizpur Adda, Sarfraz alias Usama alias Chhabhu (co- convict tried separately by the learned trial Court on his arrest but his Crl. Appeal No. 20539 of 2019 has been accepted by this Court today i.e. 17.09.2019 and he has been acquitted) was sitting behind Muhammad Ashfaq alias Shakoo deceased. The motorcycle was intercepted by Iftikhar alias Kharoo appellant, Muhammad Ashfaq alias Shakoo deceased stopped the motorcycle, Sarfraz alias Usama alias Chhabbu (co-convict tried separately , now acquitted) mentioned above brought out a pistol from his "Dab" and fired at his brother Muhammad Ashfaq alias Shakoo deceased which landed on left side of his head near the ear, secon d fire shot was made by Iftikhar alias Kharoo appellant which landed on left ear of Muhammad Ashfaq alias Shakoo deceased, third fire shot was made by unknown accused (not traced till today) which landed on left side of ear of Muhammad Ashfaq alias Shakoo deceased. Scaled site plan Ex.P.L does not show the house of Muhammad Khurram P.W.6 around the place of occurrence. Muhammad Khurram P.W.6 stated in his cross-examination that occurrence took place in the field in a deserted place. Admittedly , occurrence took place in the dark hours of night in the month of November on the passage. Electric bulb in which light Muhammad Khurram P.W.6 had stated ly identified assailants including Iftikhar alias Kharoo appellant, 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 & others vs. Munir Ahmed etc."
(PLJ 2017 SC 249). Even otherwise, Muhammad Khurram P.W.6 was the chance witness but has failed to establish his presence at the time of occurrence at the place of occurrence with his stated reasons discussed above. Reliance is placed on case titled "Muhammad Rafique v. The State" (2014 SCMR 1698 ). The evidence of Barkat Ali complainant P.W.5 regarding departure of Muhammad Ashfaq alias Shakoo deceased with Sarfraz alias Usama alias Chhabbu co-accused (since acquitted), considering the peculiar circumstances of this case, is not believable.
11. Muhammad Khurram P.W. 6 stated in his statement before the learned trial Court regarding: motive of the occurrence was a dispute over landing of money and 2/3 days prior to the occurre nce, a dispute was taken place.
Barkat Ali Complainant P.W.5 (real father of Muhammad Ashfaq alias shakoo deceased) also stated in the FIR that 3/4 days prior to the present occurrence, Iftikhar alias Kharoo appellant had a quarrel with Muhammad Ashfaq alias Shakoo deceased on the issue of landing of money but did not give any detail of money . Thereafter , Barkat Ali complainant P.W.5' while making improvement in this regard stated before the learned trial Court that Muhammad Ashfaq alias Shakoo deceased had given money to Iftikhar alias Kharoo appellant, which shatters his credibility .
Considering above, motive story of the prosecution is also not believable.
12. Recovery of pistol 30-bore on pointing out of Iftikhar alias Kharoo appellant in absence of positive report of PFSA regarding matching of crime empties is inconsequential in the present case.
13. In view of above discussion, we entertain serious doubt in our 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 matte r of grace or concession, but as of right. Reliance is placed on case reported as " Muhammad Akram vs. The State " (2009 SCMR 230 ).
14. For the foregoing reasons, criminal appeal filed by Iftikhar alias Kharoo appellant is accepted, his conviction and sentence awarded by the learned trial Court through the impugned judgment are hereby set aside. He is acquitted of the charges and is directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGA TIVE And death sentence of Iftikhar alias Kharoo (appellant) is NOT CONFIRMED .