Sadaqat Ali Khan, J.--Appellant (Muhammad Iqbal) along with co-accused Khanan Bibi (since acquitted) has been tried by learned trial Court in a private complaint filed under Section 302/324/34, PPC arising out of case-FIR No. 6 dated 09.01.2015 P.S Arooti, District Toba Tek Singh and was convicted and sentenced vide judgment dated 25.04.2017 as under:
(i) Muhammad Iqbal appellant under Section 302(b) PPC.
He was sentenced to death as 'Tazir' along with compensation Rs.5,00,000/- payab le to legal heirs of the deceased under Section 544-A, Cr .P.C., and in default thereof to further undergo 6-months simple imprisonment.
Appellant has filed instant 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. Brief facts of the case have been stated by Naik Muhammad complainant (PW- 1) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "That 1-3/4 years ago at about 10:00 am I along with Muhammad Yar deceased, Nazar Muhammad PW ware proceeding towards our village 745 GB from Chak No 749 GB. When we passed from near Dhari of Muhammad Iqbal accused Mst. Klianan Bibi accused started abusing us. Afzal accused (juvenile offender being tried separately) raised lalkara that we should be taught a lesson for taking land. Muhammad Iqbal accused fired with .12-bore repeater which hit on the chest of Muhammad Yar deceased. Afzal accused (juvenile offender being tried separately) fired his .12-bore repeater which hit on the Muhammad Yar deceased on his belly and bladder . Then Iqbal accused repeated fire which hit on the belly of Muhammad Yar deceased. Asif accused fired with .12-bore repeater which hit on the left thigh of Muhammad Yar deceased. Then Asif accused fired a. shot with his weapon which hit on the head of Nazar Muhammad. PW. Then Afzal accused (juvenile offender being tried separately) fired with his weapon which hit Nazar Muhammad on his both legs. On our hue and cry PWs Yasin s/o Akbar Ali and Muhammad Ramzan were attracted to spot and witnessed the occurrence. The accused fled away after firing in the air. Muhammad Yar succumbed to the injuries at the spot, while injured PW Nazar Muhammad was shifted to Pirmahal hospital in injured condition by his wife and brother Muhammad Iqbal accused is maternal uncle of Muhammad yar deceased and where 4-kanal agriculture land was alienated in the name of mother of Muhammad yar deceased in heritance while Iqbal accused was demanding that land. For this grudge the accused committed the occurrence. I appeared before police and produced an application narrating this occurrence but the police got my thumb impression on a blank paper and kept my application aside. The police recorded my version of their own on that blank paper . I submitted application to SHO and then the Court ordered to file private complaint. The police declared Mst Khanan Bibi accused and Muhammad Afzal (juvenile offender being tried separately) innocent in this case. I filed private complaint EX. PA which was dictated by me and was read over to me then I thumb marked it.
On the direction of this honourable Court I filed separate private complaint against Muhammad Afzal which was filed by me and being tried separately in this Court."
3. Arguments heard, record perused.
4. Muhammad Yar was done to death and Nazar Abbas PW3 sustained injuries on his person during the occurrence took place on 09.01.2015 at 10.00 a.m. on the passage regarding which FIR Exh.CW -4/A was lodged on the same day i.e. 09.01.2015 at 11.45 a.m. on the statement Exh.DA made by his brother Naik Muhammad PW1 against Muhammad Iqbal (appellant), Muhammad Asif, (since P.O.), Mst.Khanan Bibi (since acquitted) and Muhammad Afzal, accused (tried separately being juvenile and was acquitted by the learned trial Court vide judgment dated 25.04.2017). In the FIR only "Lalkara" was' attributed to accused Muhammad Asif (since p.o.) and Muhammad Afzal (since acquitted discussed above). All the injuries on the person of Muhammad Yar deceased as well as on the person of Nazar Abbas injured PW3 were attributed to Muhammad Iqbal appellant. On 06.06.2015 with the delay of about 5 months from the registration of FIR i.e. 09.01.2015 Naik Muhammad complainant PW1 filed private complaint Exh.P A while making dishonest improvements regarding role of the accused and stated that Muhammad Iqbal made two fire shots with .12-bore repeater which hit on the chest and abdomen of Muhammad Yar deceased, Muhammad Afzal accuseds (since acquitted discussed above) made three fire shots, two of which hit on the abdomen and Bladder of Muhammad Yar deceased and 3rd hit on left leg of Nazar Abbas injured PW-3, Muhammad Asif accused (since P.O.) made two fire shots with .12-bore repeater which hit on left thigh of Muhammad Yar deceased and on the head of Nazar Abbas injured PW3. All the three eye-witnesses (Naik Muhammad complainant PW1, Muhamm ad Yasin PW2 and Nazar Abbas injured PW3) also made dishonest improvements in this regard before the trial Court which were confronted to them with their previous statements which shatter their credibility . Reliance is placed on case titled "Akhtar Ali and others v. The State " (2008 SCMR 06).
5. Muhammad Afzal accused (tried separ ately being juvenile discussed above) was attributed firearm injury on the person of Muhammad Yar deceased as well as on the person of Nazar Abbas injured PW-3 who has been acquitted (Learned DPG submits that neither complainant nor the State has filed any appeal against his acquittal) by the learned trial Court vide judgment dated 25.4.2017 by disbelieving the evidence of all the three eye- witnesses, same evidence cannot be believed against the appellant in absence of independent corroborative piece of evidence which is conspicuously missin g in the present case. Reliance is placed on case titled "Shahbaz vs. The State " (2016 SCMR 1763 ).
6. Nazar Abbas injured PW3 after the occurrence on 09.01.2015 at 10.00 am for the first time appeared before medical officer for his medical examination on 14.01.2015 at 2.45 p.m. and got recorded his statement before medical officer well mentioned at the top of his MLR Exh.CW -10/A and before the police on 14.01.2015 with unexplained delay of 5-days which shatters his credibility . Reliance is placed on case titled "Muhammad Asif v. The State " (2017 SCMR 486). Nazar Abbas injured PW-3 stated before the medical officer that only appellant made firing as a result of which he and Muhammad Yar deceased sustained injuries on their persons well mentioned at the top of his M.L.R. Exh.CW -10/A but while appearing before the trial Court with dishonest improvements attributed firing to Muhammad Afzal co-accused (since acquitted discussed above) Asif (since p.o.) and the appellant. This witness has been disbelieved for his own injury against Muha mmad Afzal co-accused (since acquitted discussed above) and is not reliable against the appellant. Reliance is placed on case titled "Safdar Abbas and others v The State and others " (2020 SCMR 2019)
7. Ashiq Ali S.I. I.O. of this case CW-9 stated in his statement (examination-in-chief) that on 01.02.2015 Muhammad Iqbal during interrogation disclosed and got recovered .12-bore shot gun from his house but this witness has not stated that parcel of the recovered gun was prepared at the time of its recovery , hence this recovery is not believable.
8. 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.
9. For the foregoing reasons, this appeal is allowed, conviction and sentence of appellant (Muhammad Iqbal) 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 Reference is answered in NEGA TIVE and death sentence of appellant (Muhammad Iqbal) is NOT CONFIRMED .