Sadaqat Ali Khan, J.--Appellant (Karamat Ali) has been tried by learned trial Court in case FIR No. 499 dated 25.08.2006 under Sections 302/324/34, PPC P.S. Dijkot, District Faisalabad and was convicted and sentenced vide judgment dated 25.05.2017 as under: Karamat Ali (Appellant)
"He was convicted U/S.302(b), P.P.C. and sentenced to DEATH as Tazir on four counts for the murder of Jamaat Ali, Surayya Bibi, unborn female child of eight months in the womb of Surayya Bibi and Waqas alongwith compensation of Rs. 100,000/- (for each deceased) u/S. 544-A, Cr.P.0 and in default thereof to further undergo 6- months S.I. on each count.
He was further convicted u/S. 324, PPC and sentenced to imprisonment for 10-years R.I. along with fine Rs.
100,000/- and in default thereof to further undergo 6-months S.T .
Benefit of Section 382-B, Cr .P.C. was also extended in his favour .
Appellant has filed appeal against his conviction whereas learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise which are being decided through this single judgment.
2. The facts of the case have been stated by Naazar Hussain complainant (PW-8) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "On 24.08.2006, I went to the house of Jamaat Ali and Karamat Ali at Isha time to foster compromise between both the brothers over the dispute of land. We had the talks and it was 1/1.30 am. At 1.30 a.m., Karamat Ali took rifle from a room and then fired at Jamaat Ali, who was standing, which pierced his abdomen. Jamaat All fell down and Karamat accused fired another shot which hit the left shoulder of Jamaat Ali. Surayya, wife of Jamaat Ali was also present there and the accused Karamat shot a fire in her mouth. She had gone for 8 months with her pregnancy .
Bashiran Bibi mother of accused Karamat Ali and the deceased Jamaat Ali asked the accused Karamat Ali to kill every person of the family of Jamaat Ali. Waqas was a five years old son of Jamaat Ali. Karamat Ali shot a fire which landed in the left armpit of Waqas. Waqas was lying with his sister Sania and she was aged 21/2 years. The fire-shot at waqas also hit the right knee of Sania. Jamaat Ali, Surayya and Waqas died at the spot. The infant/unborn child of 8-months also died in the womb of Surayya Bibi deceased. I, Talib and Ashraf eye-witnessed the occurrence. Karamat had been involved in highway robbery .
The motive behind the occurrence was the dispute over the land between the accused Karamat and the deceased Jamaat Ali. I then went to the police. The police met me in front of the house of accused and deceased. I made the statement Ex. PR to the Thanedar which was read over to me and I thumb marked it as a token of its correctness.
Ms. Sania Bibi was dispatched to the Hospital for treatment."
3. Arguments heard. Record perused.
4. Jamaat Ali, his wife Surayya Bibi, who was pregnant of 8-months and his minor son Waqas were done to death whereas Sania aged about 21/2 years sustained fire-arm injuries during the occurrence, took place on 25.08.2006 at 1.30 a.m. (night) in their house regarding which FIR Exh.PR/1 was lodged on the morning i.e. 25.08.2006 at 5.00 a.m. on the statement of Naazar Hussain PW-8 paternal Uncle of Mst. Surayya Bibi (deceased) who and his real brother Muhammad Ashraf PW-9 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements that on the night of occu rrence they went to the house of Jamaa t Ali deceased and Karamat Ali appellant at Isha time to make compromise between both the parties over the dispute of land. At about 1.30 a.m.
(night) Karamat All appellant made firing as a result of which above said three persons died at the spot whereas Sania aged about 2-1/2 years sustained injuries on her person but she was not medically examined to establish her injuries.
5. Post-mortem examination reports Exh.P A, Exh.PD & Exh.PQ pertaining to Jamaat Ali, Waqas and Suriyya Bibi (deceased) respectively show that post-mortem examinations were conducted on their dead bodies at 11.00 a.m.
1.00 p.m and 5.30 p.m. on 25.08.2006 with an unexplained delay of more than 9,11 and 14-hours respectively from the date/time of occurrence (25.08.2006 at 1.30 a.m might). Such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examinations of the dead bodies conducted. Reliance is placed on case titled " Irshad Ahmad vs. The State" (2011 SCMR 1 190).
6. Scaled site-plan Exh.PZ does not show the houses of both the eye-witnesses around the place of occurrence, they were the 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 "Muhammad Rafique v. The State" (2014 SCMR 1698 ).
7. Recovery of repeater .12-bore on pointing out of appellant in absence of positive report of PFSA qua matching of crime empties with C the weapon of of fence is inconsequential in the present case.
8. Naazar Hussian PW-8 stated regarding motive of the occurrence that there was dispute over the land between Jamaat All (deceased) and Karamat All (appellant). Contrary to this, his real brother Muhammad Ashraf PW-9 did not utter even a single word regarding dispute of land, hence this motive is not believable.
9. In view of the above discussion, we entertain serious doubt in our minds regarding participation of 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 accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
10. For the foregoing reasons, this appeal is allowed, conviction and sentence of appellant (Karamat Ali) awarded by the learned Trial Court through impugned judgment are hereby set-aside and he is acquitted of the charge. He is directed to be released forthwith, if not required in any other case. Murder Refere nce is answered in NEGA TIVE and death sentence of appellant (Karamat Ali) on all counts is NOT CONFIRMED.