Sadaqat All Khan, J.--Appellant Muhammad Hans Khan has been tried by learned trial Court in case FIR No. 354 dated 14.11.2014 under Section 302, PPC P.S Kundian and was convicted and sentenced vide judgment dated 29.04.2017 as under:
(1) Muhammad Haris Khan appellant u/S. (302(b), PPCHe was sentenced to DEA TH as Tazir along with compensation Rs. 3,00,000/- payable 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 Ameer Muhammad Khan complainan t (PW-6) in his statement before the learned trial Court, which is hereby reproduced for narration of the Facts: "Gul Muhammad Khan deceased was my Bhanja. On 14.11.2014 at about, 11.30 A.M., I along-with Ameer Umar Farooq Khan. Nasar Ullah Khan s/o Muhammad Khan, Gul Muhammad deceased and Hans Khan accused were sitting at the Bethak of Hans Khan accused and .were negotiating to resolve the dispute of land between Gul Muhammad Khan and Hans Khan accuse d--Meanwhile, Hans Khan accused raised lalkara to Gul Muhammad Gul Khan deceased that he would teach him a lesson for demanding lands--On this accused Hans Khan made fire shot of his Kalashnikov straight al Gul Muhammad Khan, which hit on right side of his chest beneath the nipple and crossed through and through, consequently , Gul Muhammad fell down--Accused Hans Khan present in the Court while waiving Kalashnikov ran away towa rds railway loco-shed Kundian. Meanwhile, we made call to rescue 1122 and the vehicle of rescue 1122 reached the place of occurrence. Gul Muhammad was brought to DHQ Hospital, Mianwali in injured condition. On reaching there, Gul Muhammad succumbed to the injuries. Then the dead body of Gul Muhammad deceased was brought to RHC Kundian on a private vehicle. I left Ameer Umar Farooq Khan and Nasar Ullah Khan with the dead body of deceased Gul Muhammad and I left for P.S Kundian. On my statement, the police of P.S Kundian recorded FIR Ex.PD, which was signed by me. Besides me, Ameer Umar Farooq Khan and Nasir Ullah Khan witnessed the occurrence.
Motive behind the above said occurrence there was a dispute of land between accused and deceased."
3. Arguments heard, record perused.
4. Gull Muhammad Khan was done to death in "Baithak" of the appellant on 14.11.2014 at 11:30 a.m. regarding which FIR Exh.PD was lodged on the same day i.e. 14.11.2014 at 1.30 p.m. on the statement made by his maternal Uncle Ameer Muhammad Khan, complainant PW6 against the appellant. Ameer Muhammad Khan complainant PW6 and his son Ameer Umar Farooq Khan PW7 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the trial Court that appellant made fire shot with his Kalashnikov which hit on the right side of chest of Gull Muhammad Khan deceased. It is mentioned in the FIR that Gull.
Muhammad Khan (deceased) in injured condition was taken to hospital from the place of occurrence through official of Rescue 1122 but this material evidence has been withheld by the prosecution with reason best known to it.
5. It is mentioned in the FIR that deceased Gull Muhammad Khan (deceased) was taken to DHQ hospital Mianwali for treatment but he died on reaching hospital. Whereafter his dead body was brought back to R:H.C. Kundian for postmortem examination. Neither any doctor nor official of the hospital has been produced by the prosecution that Gull Muhammad Khan deceased was brought in DHQ hospital Mianwali in injured condition and died in the hospital. Postmortem examination report Exh.P A shows that dead body received in the dead house at 1.45 p.m. on 14.11.2014 whereas occurrence took place on 14.11.2014 at 11.30 a.m. Comp lete documents from the police received at 2:00 p.m. Considering this delay , consultation and deliberation in lodging of the FIR cannot be ruled out.
6. Ameer Muhammad. Khan complainant PW6 stated in his cross examination, that one Tanveer neighbour made telephonic call to rescue 1 122 but did not produce him by the prosecution by withholding this material witness.
7. Rough site plan Exh.PN and scaled site plan Exh.PB do not show the houses of the eye witnesses around the place of occurrence.
Ameer Muhammad Khan complainant PW6 stated in his cross-examination that his house and Baithak.is at the distance of one "Farlang" from the place of occurrence. Both the eye witnesses 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 vs. The State" (2014 SCMR 1698 ).
8. Motive of the occurrence stated by Ameer Muhammad Khan complainant PW6 is a dispute of laud between the appellant and the deceased. Ameer Muhammad Khan complainant' PW6) admitted ill his cross examination that he did not give detail or nature of land dispute. Considering this motive story is not believable.
9. Recovery of Kalashnikov on pointing out of the appellant in absence of positive report of PFSA Exh.PP regarding matching of crime empties with weapon of of fence is inconsequential in the present case.
10. In view of the above discussion, we entertain serious doubt in out minds regar ding 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.
11. For the foregoing reasons, this appeal is allowed, conviction and sentence of appellant (Muhammad Haris Khan) 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 Haris Khan) is NOT CONFIRMED.