Sadaqat Ali Khan, J.--Appellants Muhammad Irshad alias Babi, Muhammad Arshad alongwith Muhammad Afzal and Asghar alias Mustafa accused (since acquitted) have been tried by learned trial Court in case FIR No. 347 dated 06.10.2014 under Sections 302, 324, 148, 149, PPC Police Station Ghazi Abad, District Sahiwal and were convicted and sentenced vide judgment dated 25.02.2016 as under:
1. Muhammad Irshad alias Babi appellant U/S. 302(b)/149, PPC Sentenced to death as Tazir on two counts for committing Qatl-i- Amd of Muhammad Qaisar and Sidra Bibi deceased with compensation of Rs. 2,00,000/- each payable to the legal heirs of each deceased under Section 544-A, Cr .P.C., recoverable as arrear of land revenue and in default whereof to undergo simple imprisonment for six months each.
U/S. 324, PPC Sentenced to R.I. for seven years with fine of Rs. 30,000/- and in default whereof to further undergo two months S.I.
All the sentences were ordered to run concurrently with benefit of Section 382-(B, Cr .P.C.
2. Muhammad Arshad appellant U/S. 302(b)/149, PPC Sentenced to life imprisonment as Tazir with compensation of Rs. 2,00,000/-payable to the legal heirs of Muhammad Qaisar deceased under Section 544-A, Cr .P.C. recoverable as arrear of land revenue and in default whereof to undergo simple imprisonment for six months each. Benefit of Section 382-B, Cr.P.C. was extended to him.
2. Appellants have filed criminal appea ls against their convictions and learne d trial Court has sent Murder Reference for confirmation of death sentence of Muhammad Irshad alias Babi or otherwise, Falak Sher complainant P.W.2 filed criminal appeal against acquittal of respondents/accused, which are being decided through this single judgment.
3. Brief facts of the case have been stated by Falak Sher complainant P.W.2 in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "Stated that Muhammad Qaisar decease was my nephew . He was murdered in this case and I was alive receive injuries in this case. I know the accused persons. They are resident of my villag e. There name are Muhammad Afzal, Muhammad Irshad, Muhammad Arshad, Muhammad Asghar , and Muhammad Ramzan. The above said accused persons committed murder of Muhammad Qaisar and they injured me. Muhammad Afzal was armed with dagger . Muhammad Arshad was armed with hatchet. Muhammad Irshad was armed with 30-bore pistol.
Muhammad Asghar was armed with hatchet, Ramzan was empty handed. On 06.1.0.2014 on the day of eid at 1:00 p.m, my nephew Muhammad Qaisar was working in the sweet shop of Muhammad Farooq s/o Nazir in the village.
In the meanwhile Muhammad Asghar , Muhammad Afz al, Muhammad Arshad, Muhammad Irshad and Muhammad Ramzan came there. Muhammad Ramzan raised Lalkara that today Muhammad Qaisar deceased be taught a lesson for opposing the relationship. Thereafter , Muhammad Irshad accused present in the Court made a fire with 30-bore pistol to Muhammad Qaisar deceased which landed on his right flank. Muhammad Irshad accused made second fire from his pistol 30-bore which inflicted at chest of Muhammad Qaisar deceased. Thereafter , Muhammad Asghar accused persent in the Court made a hatchet blow which landed at the back side of head of Muhammad Qasiar decease. Thereafter , Muhammad Arshad accused made hatchet blow which inflected at the right finger and thumb of Muhammad Qasiar . Thereafter , Muhammad Irshad accused made a third fire from pistol 30-bore to me and luckily , I was saved and this fire hit to Sidra at her right flank and she fell down on the ground. Muhammad Irshad accused made forth fire with inflicted at my right upper arm. Allah Ditta and Muhammad Aslam PWs witness the occurrence. Sidra and Muhammad Qaisar injured persons scumabs to the injuries. The motive behind the occurrence that Muhammad Arshad accused and Muhammad Qaisar deceased are brothers in law (Sandu) inter- see. The wife of Muhammad Arshad accused was living in her parents house due to strained relations with her husband. Muhammad Arshad accused was of the view that Muhammad Qaisar deceased was creating hurdles in order to Abad his wife. Due this grudge the accused persons present in Court committed the said occurrence. I proceeded towards police station on the way police me at Adda 168/9.L, I submitted written application Exh-PC which bears my thumb impression and it was read over to me."
4. Arguments heard. Record perused.
5. Muhammad Qaisar and Sidra Bibi were done to death whereas Falak Sher complainant P.W.2 sustained injuries during the occurrence took place on 06.10.2014 at 1:00 p.m., FIR was lodged on the same day i.e. 06.10.2014 at 2:30 p.m. on the written application Ex.P.C moved by Falak Sher complainant P.W.2 (paternal uncle of Muhammad Qaisar deceased) against appellants (Muhammad Irshad alias Babi and Muhammad Arshad), Asghar Ali alias Mustafa, Muhammad Ramzan and Muhammad Afzal accused (since acquitted). According to the FIR, occurrence took place at the shop of Sweets of Farook (not P.W.), contrary to this, rough site-p lan Ex.P.N and scaled site-plan Ex.P.J/1 show that dead body of Sidra Bibi was lying in the veranda outside the shop of Farooq. Dead body of Muhammad Qaisar was lying on the passage in front of the house of Muhammad Ahmad (not p.w.). Both the eye- witnesses (Falak Sher complainant P.W.2 and Allah Ditta P.W.3) while appearin g before the learned trial Court stated in their statements regarding the roles of the accused that Muhammad Irshad alias Babi appellant made fire shot with pistol 30-bore which hit on the right flank of Muhammad Qaisar deceased; second fire shot made by him (Muhammad irshad alias Babi appellant) hit on the chest of Muhammad Qaisar deceased; third fire shot made by him hit on right flank of Sidra Bibi deceased; Muhammad Irshad alias Babi appellant made fourth fire shot which hit on right upper arm of Falak Sher complainant P.W.2., Muhammad Asghar accused (since acquitted) gave hatchet blow which landed on back side of head of Muhammad Qaisar deceased, Muhammad Arshad appellant, gave hatchet blow which landed on finger and thumb of right hand of Muhammad Qaisar deceased. Syed Azhar Hussain Naqvi P .W. 1 observed following injuries on the person of Muhammad Qaisar deceased:
1. Fire-arm punctured wound 1cm x 1 cm left side of the chest 10 cm from the left shoulder , 11 cm from midline, 10 cm from left nipple.
2 Fire-arm punctured wound; 2 cm x 2 cm mid of right flank, 13 cm from right crest, 2 cm from right lower lip latterly .
3 Incised wound 7 cm x 2 cm back of left side of head, 8 cm from left ear bone exposed skull eruption seen.
4. Lacerated wounds 1 cm x 1 cm right thumb bone not exposed.
5. Lacerated wound Y2 cm x V2 cm right index finger bone not exposed.
Dr. Syed Azhar Hussain Naqvi P.W.1 stated in his cross examination that Injury No. 1 (reproduced above) was entry-wound, corresponding to injury No. 2 which is exit wound, contrary to this, both the eye-witnesses stated that Muhammad Irshad alias Babi appellant made two fire shots at Muhammad Qaisa r deceased. Muhammad Asghar accused (since acquitted) was attributed hatchet blow on the back side of head of Muhammad Qaisar deceased but Muhammad Zia Bajwa S.I. P.W.8 stated in his cross-examination that during investigation it transpired that he (Muhammad Asghar) did not cause injury with hatchet to Muhammad Qaisar deceased and was acquitted by the learned trial Court through the impugned judgment. Muhammad Zia Bajwa S.I. P.W.8 further stated in his cross- examination that during investigation, it transpired that fire of Muhammad Qaisar deceased hit Sidra Bibi deceased (contrary to this, both the eye-witnesses attributed injury on the person of Sidra Bibi deceased to Muhammad Irshad alias Babi appellant). Muhammad Zia Bajwa S.I. P.W.8 further stated in his cross-examination that it also transpired during investigation that Muhammad Qaisar deceased also made firing upon Muhammad Ramzan accused (since acquitted) and Muhammad Arshad appellant. Medicolegal reports of Muhammad Ramzan accused (since acquitted) and Muhammad Arshad appellant were produced. Dr. Muhammad Naveed Rehmani C.W.1 during medical examination of Muhammad Arshad appellant on 10.10.2014 observed two fire-arm wounds on his person with duration of 4-5 days without possibility of fabrication, likewise, he (Dr. Muhammad Naveed Rehmani C.W.1) also observed four fire-arm wounds on the person of Muhammad Ramzan accused (since acquitted) with the same duration. These fire-arm injuries have been supressed by the prosecution in the FIR as well as in the statements of the P.Ws. which also create doubt in the prosecution story . Above discussed circumstances suggest that both the eye-witnesses have reckless regard to the truth and have suppressed material facts of the incident which shatter their credibility .
6. The argument of learned counsel for the complainant that the evidence of Falak Sher complainant/injured P.W.2 cannot be discarded as; the injuries on his person has established his presence at the time of occurrence at the place of occurrence, has no substance because merely the injuries on the person of Falak Sher complainant/injured P.W.2 would not stamp him truthful witness. Reliance is placed on case "Amin Ali and another vs. The State " (2011 SCMR 323 ).
7. Recovery of pistol 30-bore on pointing out of Muhammad Irshad alias Babi appellant in absence of positive report of PFSA regarding matching of crime empties with the weapon of offence is inconsequential, likewise, recovery of hatchet on pointing out of Muhammad Arshad appellant in absence of blood staining report is also inconsequential.
8. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants and acquitted accused 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 rights. Reliance is placed on case reported as "Muhammad Akram vs. The State " (2009 SCMR 230 ).
9. For the foregoing reasons, criminal appeals filed by the appellants are accepted, their convictions and sentences awarded by the learned trial Court through the impugned judgment are hereby set aside. Muhammad Irshad alias Babi and Muhammad Arshad appellants are acquitted of the charges. Muhamma d Irshad alias Babi appellant is directed to be released forthwith if not required in any other case. Muhammad Arshad, appellant is present on bail.
His surety stands discharged. Murder Reference is answered in NEGA TIVE and death sentence of the appellant Muhammad Irshad alias Babi is NOT CONFIRMED.
10. In view of above decision, criminal appeal filed by Falak Sher complainant having no merits is dismissed.