Sadaqat Ali Khan. J.--Appellants Muhammad Nawaz, Muhamm ad Waryam, Muhammad Yousaf and Muhammad Sarwar along with Ibrar Hussain, Fajyar alias Phaji, Lal Hussain, Tanvir Ahmed and Abid Hussain co-accused (since acquitted) have been tried by learned trial Court in private complaint under Sections 302, 324, 449, 337-F(i); 337-F(iii),. 148 149, PPC arising out of case FIR No. 293 dated 10.06.2015 Police Station Jalalpur Bhattian, District Hafizabad and were convicted and sentenced vide judgment 28.03.2017 as under:
1. Muhammad W aryam appellant Under Section 449, PPC Sentenced to ten years R.I. with fine of Rs.
30,000/- and in default whereof to further Undergo simple imprisonment for one month.
Under Section 302(b), PPCSentenced to death for committing Qatl-i- Amd of Nasar Ali deceased with compensation of Rs.
1,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr .P.C. and in default whereof to undergo simple imprisonment for six months.
Under Section 302(b)/34, PPCSentenced to imprisonment for life for committing Qatl-i-Amd of Muhammad Sarfraz deceased with compensation of Rs. 50,000/- payable to the legal heirs of deceased under Section 544-A, Cr .P.C. and in default whereof to undergo simple imprisonment for three months.
Under Section 324/34, PPCSentenced to ten years R.I. for attempting to commit Qatl-i-Amd of Muhammad Abdullah with fine of Rs. 30,000/- and in default whereof to further undergo simple imprisonment for one month.
All the sentences of imprisonment were ordered to run concurrently .
2. Muhammad Nawaz appellant Under Section 449, PPC Sentenced to ten years R.I. with fine of Rs.
30,000/- and in default whereof to further undergo simple imprisonment for one month.
Under Section 302(b), PPCSentenced to death for committing Qatl-iAmd of Muhammad Sarfraz deceased with compensation of Rs. 1,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for six months.
Under Section 302(b)/34, PPCSentenced to imprisonment for life for committing Qatl-i-Amd of Nasar Ali deceased with compensation of Rs. 50,000/-payable to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for three months.
Under Section 324/34, PPCSentenced to ten years R.I. for attempting to commit Qatl-i-Amd of Muhammad Abdullah with fine of Rs. 30,000/- and in default whereof to further undergo simple imprisonment for one month.
All the sentences of imprisonment were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
3. Muhammad Yousaf appellant Under Section 449, PPC Sentenced to ten years R.I. with fine of Rs.
30,000/- and in default whereof to further undergo simple imprisonment for one month.
Under Section 302(b)/34, PPCSentenced to imprisonment for life for committing Qatl-i-Amd of Nasar Ali deceased with compensation of Rs. 50,000/-payable to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for three months.
Under Section 302(b)/34, PPCSentenced to imprisonment for life fort committing Qatl-i-Amd of Muhammad Sarfraz deceased with compensation of Rs.50,000/- payable to the legal heirs of deceased under Section 544-A, Cr .P.C. and in default whereof to undergo simple imprisonment for three months.
Under Section 324/34, PPCSentenced to ten years R.I. for attempting to commit Qatl-i-Amd of Muhammad Abdullah with fine of Rs. 30,000/- and in default whereof to further undergo simple imprisonment for one month.
All the sentences of imprisonment were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
4. Muhammad Sarwar appellant Under Section 449, PPC Sentenced to ten years R.I. with fine of Rs.
30,000/- and in default whereof to further undergo simple imprisonment for one month.
Under Section 302(b)/34, PPCSentenced to imprisonment for life for Committing Qatl-i-Amd of Nasar Ali deceased with compensation of Rs. 50,000/-payable to the legal heirs of deceased under Section 544-A, Cr.P.C. and in default whereof to undergo simple imprisonment for three months.
Under Section 302(b)/34, PPCSentenced to imprisonment for life for committing Qatl-i-Amd of Muhammad Sarfraz deceased with compensation of Rs. 50,000/- payable to the legal heirs of deceased under Section 544-A, Cr .P.C. and in default whereof to undergo simple imprisonment for three months.
Under Section 324/34, PPCSentenced to ten years R.I. for attempting to commit Qatl-i-Amd of Muhammad Abdullah with fine of Rs. 30,000/- and in default whereof to further undergo simple imprisonment for one month.
All the sentences of imprisonment were ordered to run concurrently with benefit of Section 382-B, Cr.P.C.
Under Section 337-F(i), PPCSentence to pay Daman of Rs. 10,000/- to Muhammad Abdullah injured P .W.
Under Section 337-F(iii), PPCSentence to pay Daman of Rs. 20,000/- to Muhammad Abdullah injured P .W.
He shall not be released till the payment of Daman to injured Muhammad Abdullah.
2. Appellants have filed this criminal appeal against their convictions and learned trial Court has sent Murder Reference for confirmation of death sentences of Muhammad Nawaz and Muha mmad Waryam (appellants) or otherwise which are being decided through this single judgment.
3. Brief facts of the case have been stated by Muhammad Nawaz Complainant P.W.2 (paternal uncle of both the deceased and injured) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts: "On 10.6.2015, at about 2:30 PM, my nephew Zafar Ali, Sarfraz Ahmad (deceased) Muhammad Abdullah (injured) were constructing the walls inside their house. 1 was also present there. Suddenly , nine persons namely Muhammad Nawaz, Ibrar Hussian, Muhamamd Waryyam, Fajjiyar alias Phaji, Sultan, Yousaf and three other unknown persons who were later on identified as Laal Hussian, Tanvir Hussain and Abid, armed with weapons, entered house of my above said nephews. Accused Waryyam raised lalkara that get and kill-them as they had misbehavied with our children a day before. Yousaf accused fired which hit Sarfraz on his left elbow whereas Muhammad Nawaz fired which Sarfraz on his buttocks, then, Waryyam fired with his weapon which hit Nasar on his right flank. Ibrar accused fired at Nasar which hit him at his left wrist. Accuse d Sarwar fired with his weapon which hit Abdullah on his right thigh. Due to this firing Nasar Ali died at the spot, injured Sarfraz and Muhammad Abdullah were taken to Civil Hospital, Hafizabad, Sarfraz scummbed to the injuries on his way to the hospital, whereas injured Abdullah was referred to Lahore Hospital after getting initial treatment from the Civil Hospital, Hafizabad. Afzal, Abdulah and Arshad witnessed the occurrence beside me. The motive of the occurrence is that one day prior to the occurrence children of both the parties had a fight during playing cricket and due to this grudge all the accused committed the above said occurrence. I submitted written application Ex.PC for registration of case which was duly thumb marked and signed by me and on the basis Ex.PC, FIR was registered. After 20 days of the occurrence I nominated Tanvir , Laal Hussain and Abid, through written application Ex.PDQ. Thereafter police did not conduct the investigation honestly therefore, I filed private complaint Ex.PE which was got written by my counsel on my instruction and as a token of its correction I thumb marked the same.'
4. Arguments heard. Record perused.
5. Nasar Ali and Muhammad Sarfraz were done to death whereas Muhammad Abdullah P.W.3 sustained injuries during the occurrence took place on 10.06.2015 at 2:30 p.m. in the Courtyard of house of Muhammad Sarfraz deceased, FIR was lodged on the same day i.e. 10.06.2015 at 4:15 p.m. on the written application Ex.P.0 moved by Muhammad Nawaz complainant P.W.2 (paternal uncle of both the deceased and injured) against Muhammad Waryam, Muhammad Nawaz, Muhammad Yousaf, Muhamad Sarwar (appellants), Ibrar Hussain, Fajyar alias Phaji and three unknown accused, introduced later on as Abid Hussain, Tanvir Ahmad and Lal Hussain (since acquitted).
Muhammad Nawaz complainant P.W.2, Muhammad Abdullah injured P.W.3 and Afzal Hussain P.W.4 claim themselves to be the eye-witnesses of the occurrence. Mukhtar Hussain S.I. C.W.8 during investigation found that Muhammad Nawaz and Muhammad Sarwar appellants were not present at the time of occurrence at the place of occurrence, Muhammad Yousaf appellant was present at the time of occurrence at the place of occurrence but did not cause any injury to any of the deceased or injured. Nothing was recovered from them during interrogation, then complainant filed private complaint Ex.P.E. by introducing three unknown accused as Lal Hussain, Tanvir Ahmad and Abid Hussain without disclosing the source of knowledge. It is mentioned in the FIR Ex.P.C that three unknown accused made joint firing which hit on buttocks of Muhammad Abdullah injured P.W.3 but omitted this role in private complaint dishonestly by introducing unknown accused as Lal Hussain, Tanvir Ahmad and Abid Hussain (since acquitted). In the FIR, Fajyar alias Phaji accused (since acquitted) was attrib uted firearm injury on the left flank of Nasar Ali deceased, likewise Ibrar Hussain accused (since acquitted) was attributed firearm injury on the left wrist of Nasar Ali deceased as well as on the right thigh of Muhammad Sarfraz dece ased but the complainant while omitting their roles did .not attribute any injury to them on the persons of both the deceased in his private complaint Ex.P.E. to bring the case in line with medical evidence because Dr. Faisal Ijaz, P.W. 1 observed injuries attributed to Ibrar Hussain and Fajyar alias Phaji accused in the FIR on the persons of both the deceased as exit wounds. All the three eyewitnesses have made dishonest improvements (additions and omissions) discussed above in their statements before the learned trial Court duly confronted to them which shatter their credibility . Reliance is placed on case titled "Akhtar Ali and others vs. State " (2008 SCMR 06). Muhammad Abdullah injured P.W.3 also claims sustaining of firearm injury on his right thigh at the hands of Muhammad Sarwar appellant, who has been found innocent during the investigation discussed above. Muhammad Abdullah injured P.W.3 appeared before the medical officer on 10.06.2015 and stated before him that 15-persons made firing upon him. This witness was conscious at the time of his medical examination which was got conducted through police but did not make his statement before the police at that time. He got recorded his on 05.08.2015 with the delay of about two months from registration of FIR i.e. 10.06.2015 without any explanation. Mukhtar Hussain S.I. C.W.8 admitted in his cross- examination that he asked the complainant to produce injured Muhammad Abdullah injured P.W.3 but he told that the he was under treatment in Mayo Hospital, Lahore. On 03.08.2015, he made an application for obtaining permission to record his statement but he was informed that the said injured P.W.3 (Muhammad Abdullah) was discharged on 16.06.2015. Muhammad Abdullah injured P.W.3 did not explain the reason due to which he belatedly got recorded his statement. In these circumstances, unexplained delayed statement of Muhammad Abdullah injured P .W.3 shatters his credibility .
Reliance is placed on case titled " Muhammad Asif vs. The " (2017 SCMR 486 ).
6. The argument of learned counsel for the complainant that the evidence of Muhammad Abdullah injured P.W.3 cannot be discarded as the injury on his person has established his presence at the time of occurrence at the place of occurrence, has no substance because merely the injury on the person of Muhammad Abdullah injured P.W.3 would not stamp him truthful witness. Reliance is placed on case "Amin Ali and another vs. The State " (2011 SCMR 323 ).
7. Ibrar Hussain and Fajyar alias Phaji co-accused were attributed injuries on the persons of both the deceased in the FIR, who have been acquitted by the learned trial Court through the impugned judgment by disbelieving the evidence of 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 case titled " Shahbaz vs. The State " (2016 SCMR 1763 ).
8. Muhammad Nawaz complainant P.W2 stated regarding motive of the occurrence that one day prior to the occurrence, children of both the parties had a fight during playing of cricket, Mukhtar Hussain S.I. C.W.8 stated in his cross-examination that complainant did not produce any of the children involved in quarrel with the children of accused party while playing cricket during entire investigation, complainant party did not give any explanation regarding motive part of the occurren ce. He did not investigate about the motive at his own. In these circumstances, motive story is not believable.
9. Recovery of gun .12-bore on pointing out of Muhammad Waryam appellant in presence of negative report of PFSA Ex.P .J in not only inconsequential but also draws adverse inference.
10. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the 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. Reliance is placed on case titled "Muhammad Abram vs. The state " (2009 SCMR 230).
11. For the foregoing reasons, criminal appeal filed by the appellants is accepted, their convictions and sentences awarded by the learned trial Court through the impugned judgment are hereby set aside. Muhammad Nawaz, Muhammad Waryam, Muhammad Yousaf and Muhammad Sarwar appellants are acquitted of the charges.
Muhammad Nawaz, Muhammad Waryam and Muhammad Yousaf are directed to be released forthwith if not required in any other case. Muhammad Sarwar appellant is on bail. His surety stands discharged. Murder Reference is answered in NEGA TIVE and death sentences of Muhammad Waryam and Muhammad Nawaz (appellants) are NOT CONFIRMED .