2021 PLP 1360 (MLD)

SADAQAT ALI KHAN, J.

Appellant Muhammad Asif along with Anwar, Asghar, Ali Raza alias Ali, Liaquat Ali, Khalid Pervaiz and Abid Noor co-accused (since acquitted) has been tried by learned trial Court in private complaint under Sections 302, 109, 148, 149, P.P.C. arising out of case FIR No.471 dated 12.08.2014 Police Station Saddar Jaranwala, District Faisalabad and was convicted and sentenced vide judgment dated 12.04.2017 as under:- Muhammad Asif appellant Under section 302(b), P.P.C. Sentenced to death as Tazir for committing Qatl-i-Amd of Latif Khan deceased with compensation of Rs.4,00,000/- payable to the legal heirs of deceased under Section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default whereof to further undergo simple imprisonment for six months.

2. Appellant has filed this criminal appeal against his conviction and learned trial Court has sent Murder Reference for confirmation his death sentence or otherwise, Muhammad Shakeel Khan complainant filed PSLA against acquittal of accused/respondents, which arc being decided through this single judgment.

3. Brief facts of the case have been stated by Muhammad Shakeel Khan complainant P.W.1 in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:- States that on the intervening night of 11/12-08-2014 at about 11 P.M. my father Latif Khan upon his motorcycle No.5072 was slightly ahead of us whereas I along with Khalil Khan were upon motorcycle No.759 behind him and were going to their poultry farm. When we reached near square No.37 Killa No.1 suddenly from bushes accused Asif, armed with repeater, Ali Raza armed with repeater, Anwar armed with repeater, Asghar Armed with gun 12-bore along with 3 unknown person came in our front, who were identified in the light of motorcycle. Asif, accused caused two fires with repeater upon my father, which hit at my father at right side of his ribs. Ali Raza, accused also caused two fires with repeater, one fire hit my father at his neck and other fire hit below right arm pit. Anwar, accused caused fire with repeater which hit my father at right shoulder. Asghar, accused caused fire with gun 12- bore which hit my father at right wrist. We due to fear did not go close. Accused while making firing managed their escape. Accused had suspicion that my father used to oppose them in their cases and due to that grudge, accused while causing firing, kill my father at the Instigation of Liaqat Ali, Khalid Pervez and Abid accused. Police came at spot after having information of occurrence. I moved application Ex.PA, which bears my signature as Ex.PA/1, upon which FIR was lodged. On the same day, Investigation officer collected blood stained earth and motorcycle No.5072/FDK of my deceased father vide recovery memo Ex.PB, which was attested by me as witness. I.O also secured two crime empties of gun 12-bore vide recovery memo Ex.PC. both recovery memos were attested by me as witness along with Mohammad Khalil Khan, my brother. I.O from very start was in connivance with accused. He arrested Anwar and Ali Raza, accused, but no recovery was effected from them. I.O. declared Anwar, Ali Raza, Asghar and Liaqat Ali, innocent in this case. Therefore, I filed instant complaint Ex.PD, which bears my signature as Ex.PD/1.

4. Arguments heard. Record perused.

5. Latif Khan was done to death on the passage on 11.08.2014 at 11:00 p.m., FIR was lodged on the same night i.e. 12.08.2014 at 1:00 a.m. (night) on the written application Ex.P.A. moved by his son Muhammad Shakeel Khan complainant P.W.1 against Muhammad Asif appellant, Asghar, Ali, Anwar, Liaqat, Khalid and Abid accused (since acquitted). Muhammad Shakeel Khan complainant P.W.1 and his brother Muhammad Khalil Khan P.W.2 while appearing before the learned trial Court stated regarding roles of the accused that Muhammad Asif appellant made two fire shots with Repeater which hit on right side of ribs of Latif Khan deceased, Ali Raza alias Ali accused made two fire shots with Repeater which hit on the neck and right armpit of Latif Khan deceased, Anwar accused made fire shot with Repeater which hit on right shoulder of the deceased, Asghar made fire shot with 12-bore gun which hit on right wrist of Latif Khan deceased. Anwar and Ali Raza alias Ali were found innocent during the investigation and discharge report in this regard was prepared as stated by Aman Ullah S.I. C.W.5. Muhammad Anwar, Ali Raza alias Ali and Asghar co-accused were acquitted by the learned trial Court. Photographic narration of the occurrence by both the eye-witnesses by assigning specific injury to each of the accused including appellant in an extreme crisis and panic situation is highly improbable and not believable especially when occurrence took place in the dark hours of night and witnesses had statedly seen the occurrence in the light of motorcycle. Reliance is placed on case tided "Muhammad Ahmed and others v. The State and others" (2019 SCMR 2006).

6. Rough site plan Ex.CW.4/A and scaled site plan Ex. CW.4/C do not show the houses of the eye-witnesses around the place of occurrence. Both the eye-witnesses were the chance witnesses but have failed to establish their presence at odd hours of night at the place of occurrence at the time of occurrence. Reliance is placed on case titled "Muhammad Rafique v. The State" (2014 SCMR 1698).

7. Recovery of 12-bore gun on pointing out of Muhammad Asif appellant in presence of negative report of PFSA is not only inconsequential but also draws adverse inference.

8. Motive of the occurrence stated by both the eye-witnesses is that accused had suspicion that Latif Khan deceased used to oppose them in cases but did not explain it, even otherwise, suspicion always remains, suspicion and cannot take place of proof, hence, the motive story is not believable.

9. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellants and acquitted accused (Anwar, Asgbar, Ali Raza alias Ali, Liaquat Ali, Khalid Pervaiz and Abid Noor) 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).

10. For the foregoing reasons, instant criminal appeal is accepted and conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment are hereby set aside. Muhammad Asif appellant is acquitted of the charges. Muhammad Asif appellant is directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of appellant (Muhammad Asif) is NOT CONFIRMED.

11. In view above decision, PSLA filed by the complainant against acquittal of respondents/accused. having no merits is dismissed. SA/M-12/L Order accordingly.