Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No. 593/J of 2016 filed by Muhammad Azam and Qasim (appellants) against their convictions and M.R. No. 389 of 2016 sent by the learned trial Court for confirmation of their death sentences or otherwise as the above ment ioned matters have arisen out of the same impugned judgment dated 30.07.2016 passed by learned trial Court in case FIR No. 599 dated 28.10.2010, under Sections 302 324, 148, 149, 109, PPC Police Station Saddar Farooqabad, District Sheikhupura, whereby they were convicted and sentenced as under: Muhammad Azam and Qasim appellants Under Section 302(b), PPCSentenced to death each on each count for committing Qatl-i-Amd of Sadam Hussain and Ghulam Mustafa deceased with compensation of Rs. 5,00,000/- each under Section 544-A, Cr.P.C. to the legal heirs of each deceased and in default whereof to further undergo simple imprisonment for one year each.
Whereas their co-accused Nadeem, Razzaque, Riaz, Zaigam, Ghulam Murtaza and Qaser have been acquitted.
2. The facts of the case have been stated by Muhammad Nawaz complainant P.W.8 in his statement before the learned trial Court which is hereby reproduced for narration of the facts: "On 28.10.2010 at about 11.00 am, I along with, my two sons Sadam Hussain and Mustafa, Walayat, Zaheer and Riaz son of Hayat Were going towards our fields on donkey cart. When we were two acres. away from our fields, accused Azam son of Walayat armed with rifle 244 bore, Qasim son of Riasat arme d with pump action, Razzaq son of Riasat armed with Kalashnikov , Nadeem son of Malik armed with gun .12 bore, Riaz son of Waris armed with Kalashnikov , Murtaza son of Shahbaz armed with .12 bore, Zaigum son of Khyzar armed with Kalashnikov and three unknown accused also armed with Kalashnikov , out of which two were nominated by me as Qasir son of Maqbool and Zafar Iqbal (since P.0) were ambushed in the bushes, suddenly appeared on the road. Accused Azam raised lalkara that creed/family of Muham mad Nawaz be finished, Azam made fire which hit on the head of Sadam who fell down, Qasim made fire which landed on right flank of Mustafa. All the accused persons made indiscriminate firing. Another fire hit on the right heel of Sadam and another fire hit on the left buttock of Mustafa.
Another fire hit on right arm/Dola of Zaheer . My both sons succumbed to the injuries at the spot. Accused persons started beating us with butts of their fire arm weapons. We raised hue and cry, upon which people attracted the place of occurrence, upon which accused person fled away while making aerial firing. Aforesaid accused persons committed the occurrence on the abetment of Mushtaq son of Riasat and Mustafa alias Ali son of Shahbaz. Police reached at the place of occurrence. I got written application Ex.PB and submitted the same to the police. I identify my signatures on the application Ex.PB, as Ex.PB/2."
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 the Criminal Procedure Code framed the charge against the appellants along with their co-accused since acquitted mentioned above to which they pleaded not guilty and prosecution evidence was summoned. Prosecution produced as many as 21-witnesses (P.W.1 to P.W.21) and certain documents. Medical evidence. was furnished by Dr. Zahoor Ahmad PW.12 who conducted postmortem examinations on the dead bodies of Ghulam Mustafa and Sadam Hussain deceased and Dr. Muhammad Ramzan PW.7 who medically examined Zaheer Asghar injured PW.2.
4. On the other hand, statements of the appellants and co-accused mentioned above (since acquitted) were recorded under Section 342, Cr.P.C. in which they refuted the allegations leveled against them by the prosecution.
Appellants neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any oral defence evidence. However , they produced certain documents i.e. Ex.DA to Ex.DD in their documentary defence evidence.
5. After conclusion of the trial, learned trial Court while acquitting co-accused Nadeem, Razzaque, Riaz, Zaigam, Ghulam Murtaza and Qaser , convicted the appellants with above stated sentences. Hence this appeal.
6. Learned counsel for the appellants 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 appellants beyond shadow of doubt and the learned trial Court wrongly convicted appellants in surmises and conjectures; iv. and lastly prayed for the acceptance of the appeal of the appellants and their acquittal.
7. On the other hand, learned APG assistant by learned counsel for the complainant has vehemently opposed the appeal and submitted that prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the appeal.
8. We have heard the learned counsel for the appellants as well as learned APG assisted by learned counsel for the complainant, on perusing the record with their able assistance observed as under:- i. The detail of prosecution case has been given in para 2 of this judgment, therefor e, there is no need to repeat the same to avoid duplication and repetition. ii. Sadam Hussain and Ghulam Mustafa were done to death on 28.10.2010 at 11:00 a.m. on the passage regarding which FIR was registered on the same day i.e. 28.10.2010 at 12:45 p.m. on the written application Ex.P.B moved by their . father Muhammad Nawaz complainant P .W.B. Prosecution has introduced following accused in this case:
1. Razaq
2. Nadeem,
3. Riaz
4. Ghulam Murtaza,
5. Zaigham,
6. Qaser(These six accused have been acquitte d by the learned trial Court through the impugned judgment, Crl. Appe al No. 1957 of 2016 filed by Muhammad Nawaz complainant P.W.8 against their acquittal has been dismissed by this Court today i.e.09.10.2019 as having not been pressed).
7. Muhammad Azam, (Appellants)
8. Qasim Mark-A is an application moved by Muhammad Nawaz complainant P.W.8 wherein he has introduced Zafar Iqbal as an accused on 15.01.201 1, who is still P.O. and has not been arrested till today-as stated by learned APG.
Ex.PX is an application moved by Muhammad Nawaz complainant P.W.8 on 24.06.2014 wherein he introduced Qaser as an accused with the role of firing, who has been acquitted by the learned trial Court through the impugned judgment discussed above. Muhammad Nawaz complainant P.W.8 specifically stated in his written application Ex.P.B moved by him for registration of FIR that Muhammad Azam appellant made fire shot with his rifle .244-bore which hit on the head of Sadanz Hussain deceased, Qasim appellant made fire shot with Pump Action .12-bore gun which landed on the left flank of Ghulam Mustafa deceased and rest of the accused Razzaq, Nadeem, Riaz, Ghulam Murtaza and Zaigham also made firing as a result of which Sadam Hussain deceased received fire-arm injury on his right heel whereas Ghulam Mustafa deceased received fire-arm injury on his left buttock, Zaheer Asghar P. W.2 sustained fire-arm injury on his right upper arm. Muhammad Nawaz complainant P.
W.8 and Muhammad Walayat P.W. 9 while appearing before the learned trial Court Stated in their Statements (examination-in-chief) that all the accused persons made indiscriminate firing. A fire shot hit on the right arm/Dola of Zaheer Asghar P.W.2: a fire hit on the right heel of Sadam Hussain deceased; a fire shot hit on the right buttock of Ghulam Mustafa deceased, accused also tortured them with butts of guns. Zaheer Asghar injured P. W.2 although stated in his statement that indiscriminate firing was made by accused persons but did not state that Sadam Hussain deceased sustained injury on his right heel. Likewise, Ghulam Mustafa sustained fire-arm injury on his right buttock, yet he stated that he sustained fire-arm injury on his right arm. Dr. Muhammad Ramzan P.W. 7 who conducted medical examination on the person of Zaheer Asghar P.W.2 on 01.11.2010 with the delay of about four days of the occurrence i.e. 28.10.2010 at 11:00 a.m., did not observe any fire-arm injury on his right arm attributed to all the accused rather medical officer observed four contusions on his right hand, right forearm, right wrist and on the front of right side of chest caused with blunt weapon. This conflict between ocular account and medical evidence is not ignorable. Zaheer Asghar injured P.W.2 did not state in his statement that Muhammad Walayat P.W. 9 also sustained injuries during the occurrence as stated by Muhammad Nawaz complainant P.W.8 and Muhammad Walayat P.W.
9. Howev er, he stated that Muhammad Nawaz complainant P.W.8 was beaten by the accused with butts of guns but no medical officer has been produced in this regard to prove the injuries on the person of Muhammad Nawaz complainant P.W.8 and Muhammad Walayat P.W.9. Dr. Zahoor Ahmad P.W.12 observed a lacerated wound 1 x 1 cm exposing the bone on the top of head of Sadam Hussain deceased but this injury has not been explained by all the three eye-witnesses. All these three eye-w itnesses while specifying role of Muhammad Azam appellant stated that fire shot made by him hit on the head of Sadam Hussain deceased, fire shot made by Qasim appellant hit on the right side of flank of Ghulam Mustafa deceased, thereafter all the accused persons made indiscriminate firing. Muhammad Nawaz complainant P.W.8 and Muhammad Walayat P.W.9 stated in their statements that during indiscrimin ate firing made by all the accused persons, Sadam Hussain deceased sustained fire-arm injury on his right heel whereas Ghulam Mustafa deceased sustained fire-arm injury on his right buttock. All the accused except Muhammad Azam and Qasim (appellants) who were attributed joint firing on the persons of both the deceased and Zaheer Asghar injured P.W.2. have been acquitted by the learned trial Court through the impugned judgment by disbel ieving the, evidence of these three eye-witnesses, same evidence cannot be believed to the extent of the appellants in absence of independent corroborative piece of evidence which is conspicuously missing in the present case. Reliance is placed on the case titled ( 2016 SCMR 1763 ). iii. Scaled site-plan of the place of occurre nce Ex.PNN/1 shows that all the three eye-witnesses were present at the time of occurrence at the place of occurre nce. Blessing them with unbelievable Courtesy and mercy shown to them by the accused knowing well that they would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior , therefore, we do not accept the story of prosecution concluding that the eye-witnesses were not present at the time of occurrence at the place of occurrence. Reliance is placed on case titled "Mst. Rukhsana Begum and others vs. Sajjad and others" ( 2017 SCMR 596 ). iv. Neither motive has been mentioned in the FIR by the complainant nor he has introduced any motive before the learned trial Court. v. Recovery of rifle .244-bore P-4 on pointing out of Muhammad Azam appellant and, recovery of 12-bore Pump Action short gun P-3 on pointing out of Qasim appellant are inconsequential in the present case in presence of negative report of PFSA Ex.PTT rather draws adverse inference. vi. The argument of learned counsel for the complainant that Muhammad Azam appellant admitted cross-firing in his statement recorded under Section 342, Cr.P.C. which is sufficient proof of his guilt, has no substance because the law is settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if' he had taken a plea and had thereby admitted killing of the deceased. In this case, prosecution has failed to prove its case, discussed above. Reliance is placed on the case titled "Azhar Iqbal vs. The State" ( 2013 SCMR 383 ).
9. In view of above discussion, we enterta in serious doubt in our minds regarding participation of Muhammad Azam and Qasim appellants 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.
10. For the foregoing reasons, criminal appeal filed by Muhammad Azam and Qasim (appellants) is accepted, their convictions and sentences awarded by the learned trial Court through the impugned judgment are hereby set aside. They are acquitted of the charges and are directed to be released forthwith if not required in any other case.
Murder Reference is answered in NEGA TIVE and death sentences of Muhammad Azam and Qasim (appellants) are NOT CONFIRMED.