Sadaqat Ali Khan, J.--Muhammad Hanif @ Allah Rakha and Muhammad Shahid Hussain appellants alongwith Ghulam Mustafa and Muhammad Arfan (accused since acquitted) have been tried by learned trial Court in case FIR No. 296 dated 19.05.2015 offences under Sections 302 and 324/34, PPC registered at Police Station Saddar Vehari, and were convicted and sentenced vide la judgement dated 15.10.2016 as under: Muhammad Hanif @ Allah Rakha and Muhammad Shahid (appellants)
Under Section 302(b)/34, PPC Sentenced to death for committing Qatl-i-Amd of Saleem Raza (deceased) with compensation of Rs. 200,000/- each payable to legal heirs of deceased under Section 544- A, Cr.P.C. in default thereof to further undergo 6-months S.I. each.
2. Appellants have filed this Criminal Appeal against their convictions whereas learned trial Court has sent Murder Reference for confirmation of their death sentences or otherwise, which are being decided through this single judgment.
3. Brief facts of the case have been stated by the complainant Saeed Akhtar (PW-5) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts :- "On 19.05.2015 I along with my brother Muhammad Aslam and Muhammad Asif brother-in-law left for 63/WB at 06:30 AM from our house. We reached at 06:45 am to Chak No. 63/WB, Vehari. We were standing at 63/WB stop, my brother Saleem Raza (deceased) who was dealing in milk, and was riding motorbike passed from there. My deceased brother turned towards Chak No. 69/WB on a Katcha Road. After that, Muhammad Hanif alias Allah Rakha and Shahid accused while riding on a motorcycle which was driven by an unknown person and Ghulam Mustafa accused along with Irfan riding on motorcycle which was driven by an unknown person, all the above mentioned accused persons, were going towards that side where Saleem Raza had gone. We all the three followed them under the apprehension that they are chasing Saleem Raza my brother . When Saleem Raza deceased reached near the Dera of Manzoor Hussain Tarar, Hanif alias Allah Rakha fired from his pistol which hit on the back of chest and head, Saleem Raza fell down on the ground after receiv ing the injuries. Accused Shahid fired with his pistol which hit on the mandible and chest of deceased Saleem Raza Irfan and Mustafa accused persons also fired at Saleem Raza. deceased from their pistol which hit on different parts of his body . We moved forwarded to rescue the deceased but they threatened us that you will also face the same fate. After the occurrence, the accused persons along with their weapons of offence left the place of occurrence and went towards west. We attended my brother Saleem Raza but he was succumbed to the injuries at the spot. Many people gathered there and one of them informed to the police. The Police came there and recorded my statement Ex.P-A which was read over to me by the I0 and I signed it as token of its correctness."
4. We have heard the learned counsel for the parties as well as learned D.P.G, and on perusing the record with their assistance observed as under: i. Saleem Raza was murdered on the road on 19.05.2015 at 7.00 a.m., FIR was lodged on the same day at 8.20 a.m. on the statement of his brother Saeed Akhtar complainant PW5, against Muhammad Hanif @ Allah Rakha, Muhammad Shahid Hussain (appellants), Ghulam Mustafa, Muhammad Irfan (co-accused since acquitted) and two unknown accused. ii. Saeed Akhtar , Complainant PW5 and his brother Muhammad Aslam PW6 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the trial Court that on the day of occurrence i.e. 19.05.2015 at 06.45 a.m. when they were standing at 63/WB stop, their brother Saleem Raza (deceased), who was dealing in milk while riding motorbike passed from there followed by appellants and their co-accused (since acquitted) on two motor cycle driven by unknown accused. On apprehension they while chasing reached near Dera of Manzoor Hussain Tarrar and saw firing made by Muhammad Hanif @ Allah Rakh a (appellant) hitting on the back of chest and head of Saleem Raza (deceased), who fell down, whereafter Muhammad Shahid Hussain (appellant) made firing which hit on the mandible and chest of Saleem Raza (deceased). Muhammad Irfan and Ghulam Mustafa (accused since acquitted) also made firing, hitting on dif ferent parts of body of Saleem Raza (deceased). iii. Saeed Akhtar , complainant, PW5 while lodging the FIR got recorded that Muhammad Hanif @ Allah Rakha (appellant) firstly caused specific two firearm injuries on back of chest and head of Saleem Raza (deceased) whereafter Muhammad Shahid Hussain 'appellant), and his co-accused (Muhammad Irfan and Ghulam Mustafa since acquitted) including Muhammad Hanif @ Allah Rakha (appellant) made joint indiscriminate firing hitting on different parts of the body of Saleem Raza (deceased) but both the eye-witnesses made dishonest improvements in their statements before the trial Court attributing specific injuries to Muhammad Shahid Hussain (appellant) while changing his role who earlier was attributed joint indiscriminate firing along with his co-accused mentioned above.
They were confronted with their earlier statements before police during cross-exam ination shattering their credibility (2008 SCMR 06 "Akhtar Ali and others v . The State)". iv PWs are resident of Chak No. 53-WB Vehari and not of Chak No. 63/WB Stop, where occurrence took place.
The distance between these two places is 5/6-kms. Both these 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.
(2014 SCMR 1698 "Muhammad Rafique v . The State") and ( 2017 SCMR 564 "Arshad Khan vs. The State"). v. Muhammad Irfan and Ghulam Mustafa (co-accused since acquitted) who were also attributed joint indiscriminate firing along with appellants hitting on the different parts of body of Saleem Raza (deceased) have been acquitted by disbelieving the evidence of these two eye-witnesses, same evidence cannot be believed against the appellant in absence of independent corroborative piece of evidence which is conspicuously missing in the present case (2016 SCMR 1763 ) "Shahbaz vs. The State") . vi. Muhammad Aslam PW6 stated regarding motive of the occurrence that Saleem Raza (deceased) had contracted love marriage with Mst.Sambreen paternal niece of Muhammad Hanif @ Allah Rakha (appellant), Khala Zada of Muhammad Shahid Hussain (appellant), sister of Muhammad Irfan (accu sed since acquitted) and close relative of Ghulam Mustafa (accused since acquitted. Contrary to this Saeed Akhta r complainant PW5, real brother of Saleem Raza, (deceased) while appearing before the learned trial Court did not utter even a single word regarding this motive which is not believable. vii. Muhammad Iqbal PW8 S.I. stated in his statement before the trial Court that both the appellants were arrested on 30.05.2015, on 03.06.2015 Muhammad Hanif @ Allah Rakha (appellant) got recovered .30-bore pistol P5 from his residential room of his house. On the same day Muhammad Shahid Hussain (appellant) got recovered .30-bore pistol P6 from Baithak of his house. Report of PFSA Exh.PR shows that parcel containing three crime empties was received in the office on 26.05.2015 by Ghulam Nabi 691-C PW7 who while appearing before the trial Court did not state that he was handed over the parcel said to contain crime empties which was deposited by him in the concerned laboratory on 26.05.2015. In these circumstances possibility of manufacturing of the crime empties before their dispatch cannot be ruled out creating doubt qua the positive report of PFSA Ex.PR which is hereby discarded.
5. 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.
6. For the foregoing reasons, this appeal is allowed, convictions and sentences of the appellants (Muhammad Hanif @ Allah Rakha and Muhammad Shahid Hussain) awarded by learned trial Court through impugned judgment are hereby set-aside and they are acquitted of the charges. They are directed to be relejased forthwith, if not required in any other case. Murder Refererrce is answered in NEGA TIVE and death sentences of appellants (Muhammad Hanif @ Allah Rakha and Muhammad Shahid Hussain) are NOT CONFIRMED.