SADAQAT ALI KHAN, J. Appellants Muhammad Aslam and Muhammad Asghar along with co- accused Muhammad Ashraf, Zafar Iqbal, Musawar Raza, Manzoor Hussain (since acquitted) and Shah Jahan (since dead) have been tried by learned trial Court in private complaint under sections 302, 324, 337-A(i), 337-A(iv), 337-A(vi), 337-D, 148, 149, P.P.C. arising out of FIR No.467 dated 22.12.2013 Police Station Saddar Bhakkar, District Bhakkar and were convicted and sentenced vide judgment dated 22.06.2017 as under:-- i. Muhammad Aslam (appellant)
Under section 302(b), P.P.C.
Sentenced to DEATH as Tazir for committing Qatl-i-amd of Muhammad Sadiq deceased along with compensation Rs.3,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to further undergo 6-months S.I.
Under section 337-D, P.P.C. Sentenced to R.I. for five years as Tazir along with payment of Arsh of Rs.7,24,859/- (1/3 of Diyat) to Ahmad Khan injured P.W.20, till the payment of said amount, he shall remain in civil prison and in case of his death, same would be recoverable from his estate under section 337-X(3), P.P.C.
Under section 324, P.P.C.
Sentenced to R.I. for five years along with fine of Rs.50,000/- for attempting to commit Qatl-e-Amd of Ahmad Khan injured P.W.20 and in default whereof to further undergo 3-months S.I.
Both the sentences under Sec-tions 337D and 324, P.P.C. were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. ii. Muhammad Asghar (appellant)
Under section 302(b), P.P.C.
Sentenced to rigorous imprison-ment for life for committing Qatl-i-Amd of Muhammad Sadiq deceased along with compensation Rs.3,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to further undergo 6-months S.I.
Benefit of section 382-B, Cr.P.C. was extended to him.
Appellants have filed instant appeals against their convictions, learned trial court has sent Murder Reference for confirmation of death sentence of Muhammad Aslam (appellant) or otherwise, which are being decided through this single judgment.
2. Brief facts of the case have been stated by Khizar Hayat complainant P.W.10 in his statement before the learned trial court, which is hereby reproduced for narration of the facts:-- Stated that I am uneducated villager. On 22.12.2013 at about 2.00 p.m. I along with Ghulam Muhammad and Ashiq Hussain on a one motor-cycle while Muhammad Sadiq deceased and Ahmad Khan on another motor-cycle was going to home after cutting the Sugarcane from Jhok Tibba. When we reached near the land of Iqbal Hussain at a Katcha Path in the meanwhile the accused persons namely Muhammad Aslam, Muhammad Ashraf, Muhammad Asghar, Zafar Iqbal, Shah Jahan, Manzoor Hussain, Musawar Raza along with 3 un-known persons all armed with Kalashnikoves reached there and raised lalkara that they had come to teach a lesson for spying of Shah Jahan accused. Muhammad Aslam fired with his Kalashnikov which hit Ahmad Khan on his left side of abdomen. Muhammad Ashraf fired with Kalashnikov at Muhammad Sadiq hitting him at left leg. Muhammad Asghar fired Kalashnikov at Muhammad Sadiq him on his back. Zafar Iqbal fired Kalashnikov at Ahmad Khan on his right cheek. Muhammad Aslam again fired with his weapon which hit Muhammad Sadiq deceased on his right cheek. Manzoor Hussain fired with his Kalashnikov at Muhammad Sadiq deceased hitting him on thigh of his left leg. Musawar Raza fired with his Kalashnikov on Ahmad Khan hitting him below the right ear. Shah Jahan accused fired with his Kalashnikov at Sadiq Hussain hitting him on his left leg. After all the accused persons made indiscriminate firing at Ahmad Khan and Muhammad Sadiq which hit them on the foots, legs, knees and motor-cycle. After the occurrence all the accused persons fled away on motor-cycle and Dala towards Southern side. The occurrence was witnessed by myself Ghulam Muhammad and Ashiq Hussain. We attended Muhammad Sadiq and Ahmad Khan. Muhammad Sadiq succumbed to the injuries at the spot while Ahmad Khan was seriously injured.
3. Arguments heard, record perused.
4. Muhammad Sadiq was done to death, his brother Ahmad Khan P.W.22 sustained injuries during the occurrence took place on 22.12.2013 at 2:00 P.M., FIR was lodged on the same evening i.e. 22.12.2013 at 5:15 p.m. on the statement Ex.P.D made by his paternal uncle Khizar Hayat complainant P.W.10, who and his paternal nephew Ahmad Khan injured P.W.22 claim themselves to be the eye- witnesses of the occurrence. Ashiq Hussain with the claim of eye-witness also appeared before the learned trial Court as P. W.11, got recorded his examination-in-chief and his cross-examination was reserved on the request of learned counsel for the accused but later on, on 25.04.2017, he was given up being unnecessary on the request of complainant and his examination-in-chief already recorded was struck off by the learned trial Court. Both the eye-witnesses stated in their statements before the learned trial Court regarding roles of the appellants that Muhammad Aslam appellant made fire shot with Kalashnikov which hit on the left side of abdomen of Ahmad Khan injured P.W,22, second fire shot made by him hit on the right cheek of Muhammad Sadiq deceased, Muhammad Asghar appellant made fire shot of Kalashnikov which hit Muhammad Sadiq deceased on his back, co-accused Muhammad Ashraf, Zafar Iqbal, Musawar Raza and Manzoor Hussain have also been attributed firearm injuries on the persons of Muhammad Sadiq deceased and Ahmad Khan injured P.W.22, who have been acquitted by the learned trial Court by disbelieving evidence of both these eye-witnesses (complainant/State has not filed any appeal against their acquittal as stated by the learned DPG), 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 v. The State"
5. Motive was not attributed to the appellants rather was attributed to Shah Jahan co-accused who has died.
6. Recovery of Kalashnikovs on pointing out of the appellants in presence of negative report of PFSA is not only inconsequential but also draws adverse inference.
7. 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 reported as "Muhammad Akram v. The State" (2009 SCMR 230).
8. 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, they are acquitted of the charges. Muhammad Aslam and Muhammad Asghar appellants are directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Muhammad Aslam (appellant) is NOT CONFIRMED.