Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 103 of 2014/BWP filed by Muhammad Akram alias Akri appellant (against his conviction) and M.R No. 11 of 2014 sent by Trial Court for confirmation of his death sentence or otherwise, as both the above stated matters have arisen out of the same judgment dated 27.02.2014 passed by learned Additional Sessions Judge, Minch inabad, whereby appellant was convicted and sentence as under: Muhammad Akram alias Akri appellant 1.u/S. 302, PPC He was sentenced to DEA TH along with compensation Rs.200,000/- payable to legal heirs of deceased u/S.544-A, Cr .P.C. and in default thereof to further ndergo 6- months S.I.
2.u/S. 324, PPC He was sentend to Seven years R.I along with Daman Rs.20,000/- payable to injured Muhammad Ashraf.
(Benefit of Section 382-B, Cr .P.C. was given to the appellant/convict)
Whereas, Mst. Bashiran Bibi co-accused was acquitted by the trial Court, in case FIR No. 156 with solid evidence and prayed for the dismissal of the appeal.
11. We have heard the learned counsel for the appellant as well as learned D.P.G assisted by learned counsel for the complainant, 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 judgmen t; therefore, there is no need to repeat the same to avoid the duplication and repetition. ii. According to the FIR, Muhammad Iqbal was done do death on the passage on 3.7.201 1 at 7-pm, regarding which, FIR was registered on the same night (3.7.201 1 at 8-.35-pm) on the written application Exh.P A moved by his real brother Muhammad Bilal Shad complainant PW1, who along with his relative Muhammad Mushtaq PW2 while claiming themselves to be the eyewitnesses of the occurrence stated in their statements (examination-in-chief) that they along with Wali Muhammad (given-up PW) were going to mosque for offering 'Maghreb' prayer; Muhammad Iqbal deceased was also going for prayer just before them, when they reached in front of the house of Muhammad Shafiq Wains (not PW) near electric pole, Mst. Bashiran Bibi accused (since acquitted) came there and raised lalkara to Muhammad Iqbal deceased that his brother Muhammad Bilal Shad complainant PW-1 had given evidence in murder case against them, they will teach him (Muhammad Iqbal deceased) a lesson for this; Muhammad Kkram alias Akri appellant made straight fire shot at Muhammad Iqbal deceased, which hit on his chest, Muhammad Akbar and Muhammad Arshad co-accused along with unknown accused also made straight fire shots upon Muhammad Iqbal deceased, which hit him on different parts of his body , Muhammad Iqbal succumbed to the injuries at the spot. Contrary to this, Post-mortem Report Exh.PH shows that post-mortem examination was conducted on the dead body of Muhammad Iqbal deceased on 4.7.201 1 at 10:00-am with unexplained delay of about 17 hours. Such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted. Reliance is placed on case titled Irshad Ahmad vs. The State (201 1 S CM R 1 190). iii. Scaled site plan does not show the houses of eyewitnesses (Muhammad Bilal Shad complainant PW1 and Muhammad Mushtaq PW2) around the place of occurrence, scaled site plan also does not show the mosque where eyewitnesses were statedly going for offering `Maghrab' prayer . Both these witnesses were chance witnesses, but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on case titled Arshad Khan v. The State, 2017 SCMR 564 in which Honble Supreme Court of Pakistan has observed at pages 566 and 567 as under: "The said witnesses had maintained before the trial Court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site-plan of the place of occurre nce at all. No mosque near the house of occurrence had been shown in said site-plan and, thus, the stated reason for presence of the said eye- witnesses near the place of occurrence never stood established on the record through any evidence whatsoever ." iv. It is important to note here that according to the prosecution story , motive of the occurrence was against Muhammad Bilal Shad complainant PW1, who allegedly-deposed in murder case against the accused party , but despite his claimed presence at the time of occurrence at the place of occurrence, was not the target of the appellant, blessing him with unbelievable Courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving, them unhurt is absolutely unbelievable story . Reliance is placed on the case titled "Mst. Rukhsana Begum and others Vs. Sajjad and others" (2017 SCMR 596) in which Hon'ble Supreme Court of Pakistan has observed at page 601 as under: "15. Another intriguing aspect of the matter is that, according to die FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being .the prime target even no threat was extended to him. Blessing him with unbelievable Courtesy and mercy shown, to him by the accused knowing well that he and the witnesses would depose against them by leaving hem unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in die provisions of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the Court is unable to accept such unbelievable proposition." v. Muhammad Latif S.I PW7 stated in his statement (examination-in-chief) that on 20.5.2012, Muhammad Akram alias Akri appellant during interrogation disclosed and got recovered 44-bore rifle PI, Contrary to this, report of PFSA Lahore Exh.PT shows that crime empties recovered from the place of occurrence did not match with the above said rifle, which has drawn adverse inference. vi. Muhammad Ashraf constable PW15 stated in his statement (examination-in-chief] that on 3.7.201 1, he was posted at Police Station Mandi Sadiq Gunj, SHO of that Police Station informed him about the murder at Madhaniwala; he along with police officials was proceeding to bridge Phattianwali for the arrest of the accused; at about 10:45-pm, Muhammad Akram alias Akri appellant along with three unknown : accused came there on motorcycles from eastern side; they tried to stop them; Muhammad Akram alias Akri appellant made straight fire shot which landed in-between the fingers of his right hand and some articles of the fire also hit on his left cheek; the accused persons managed to flee away from the spot. This witness did not disclose the source of light. In such eventuality the identity of the appellant is not free from doubt. 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." vii. The argument of learned counsel for the complainant that appellant remained absconder after the occurrence i.e. 3.7.201 1 and was arrested on 20.5.2012 which is sufficient proof of his guilt, has no substance because mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However , suspicions after all are suspicions. The same cannot take the place of proof. Reliance is placed on case titled "Muhammad Tasaweer Vs. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53) wherein Hon,ble Supreme Court of Pakistan has observed at pages 57 and 58 as under: "13. Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However , suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused-may be consistent which is to be decided keeping in view overall facts of the case. In the instant case, the respondents appeared before the investigating officer of their own and they were not arrested.
14. In view of what has been discussed above, we do not find any ground to interfere with the impugned judgment which is maintained. Accordingly , the petition being devoid of force is dismissed."
12. In view of the above discussion, we entertain serious doubt in our minds 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 matter of grace or concession, but as of right. Reliance is placed on case reported as " Muhammad Akram Vs. the State" (2009 SCMR 230 ).
13. For the foregoing reasons, this appeal is allowed conviction and sentence of Muhammad Akram alias Akri appellant awarded by the Trial Court through impugned judgment are hereby set aside and he (Muhammad Akram alias Akri appellant) is acquitted of the charges. He is directed to be released forthwith if not required in any other case. M.R is answered in NEGA TIVE and death sentence of Muhammad Akram alias Akri appellant is NOT CONFIRMED .
14. It is made clear that observations made hereinabove are only for the disposal of this appeal and shall not influence the case of Muhammad Arshad and Muhammad Akbar co-accused which shall be decided on its own merits.