2023 P Cr (PLP)

SADAQAT ALI KHAN, J.

Appellant (Tanvir Ahmad) has been tried by learned trial Court in case FIR No.21 dated 25.01.2014 offences under sections 302, 34, P.P.C. registered at Police Station Tibba Sultanpur, District Vehari, and was convicted and sentenced vide judgment dated 28.03.2017 as under:- Tanvir Ahmad (appellant) Under section 302(b), P.P.C. Sentenced to DEATH for 'Tazir' committing Qatl-i-Amd of Rashid Ali (deceased) with compensation of Rs.3,00,000/- payable to 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 simple imprisonment for 6-months.

2. Appellant has filed this Criminal Appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

3. Brief facts of the case have been stated by the complainant Muhammad Imran (PW-4) in his statement before learned trial Court, which is hereby reproduced as under for narration of the facts:- Stated on oath that I am a cultivator and resident of Chak Fojian wala. On 25-01-2014, Saturday at about 9:30 a.m. my brother Rashid All and Irntiaz Ali went to cut the fodder on ox-cart on our land. At about 10:30 a.m_ after cutting and loading the fodder they were coming back, Imtiaz Ali said my brother Rashid All to go ahead as he is corning behind him on foot. Rashid All on ox-cart when reached Killa Nos.3, 4 of the land of Ilyas Jatt Othi, there accused Tanvir armed with dagger and Irfan (since P.O.) came there on motor cycle. Accused Irfan raised Lalkara to teach a lesson to my brother Rashid All for not giving passage. Tanvir picked out his dagger and straight away hit at the left side of chest of Rashid Ali. He fell down on the ground. Irntiaz raised hue arid cry, we, I myself, Nasir Ali and Qaisar lqbal came there from our adjoining land. While in our sight, the accused brandishing their dagger fled away from the spot. When we managed Rashid Ali, he succumbed to the injuries at the spot.

4. After hearing learned counsel for the appellant as well learned DPG, and on perusal of record with their able assistance, we have observed as under:- i. Rashid Ali was done to death in the field on 25.01.2014 at 10:30 a.m., FIR was lodged on the same day i.e. 25.01.2014 at 12:05 noon, on the statement of his brother Muhammad Imran complainant P.W.4, who and his brother Imtiaz Ali P.W.5 while claiming themselves to be the eve-witnesses of the occurrence stated in their statements before the learned trial Court that on the day of occurrence i.e. 25.01.2014 at 9:30 a.m. Rashid Ali deceased and Imtiaz Ali P.W.5 went to cut fodder on ox-cart in their land, at about 10:30 a.m. after cutting and loading fodder, they were coming back, Rashid Ali deceased was ahead of Imtiaz Ali P.W.5, Rashid Ali deceased when reached Killa Nos.3 and 4 of the land of Muhammad Ilyas Jatt Othhi (not PAW.), Tanvir Ahmad appellant armed with dagger and his co-accused Irfan (since P.O.) came there on motorcycle, on raising lalkara by Irfan co-accused, Tanvir Ahmad appellant gave dagger blow hitting on the left side of chest of Rashid Ali deceased. Neither fodder nor ox-cart has been produced by the complainant party upon which Rashid Ali deceased was coming to his house. Point No.2 of rough site plan Ex.P.H. situated at passage shows the place where Rashid Ali deceased sustained injury whereas point No.1 of the rough site plan Ex.P.H. is the wheat crop where dead body of the deceased was lying. P.Ws. have not stated that Rashid Ali deceased after sustaining injury at or near ox-cart on passage fell in the wheat crop. Mazhar Hussain S.I. P.W.8 stated in his cross-examination that when he reached the place of occurrence, dead body of the deceased was lying in the wheat crop of Muhammad Afzal. Muhammad Imran complainant P.W.4 stated in his cross-examination that the deceased alone after loading the fodder on the ox-cart was coming towards home. He also admitted in his cross-examination that no mark of resistance was present at the place of occurrence. ii. Sher Muhammad ASI C.W.1 stated in his cross-examination that on the day of occurrence, during investigation, Muhammad Imran complainant P.W.4 stated before him that he had not seen the occurrence, occurrence had already been taken place. Imtiaz Ali P.W.5 stated that at the time of occurrence, he was cutting the fodder, he admitted in his cross-examination that from the above statements of Muhammad Imran complainant P.W.4 and Imtiaz Ali P.W.5, they were not the eye-witnesses of the occurrence. Scaled site plan Ex.P.A. and rough site plan Ex.P.H of the place of occurrence do not show the houses of the eye-witnesses around the place of occurrence. They were the chance witnesses but have failed to establish their presence at the place of occurrence at the time of occurrence with their stated reasons. (2014 SCMR 1698) "Muhammad Rafique v. The State" and (2017 SCMR 564) "Arshad Khan v. The State". iii. Motive of the occurrence as stated by Muhammad Imran P.W.4 in his statement is that at morning, an altercation on the dispute of passage took place with Rashid Ali deceased, but did not nominate any accused including the appellant and also did not disclose the detail of altercation with specific place and witnesses, hence, this motive is not believable. iv. Muhammad Imran complainant P.W.4 stated in his statement that on 05.02.2014, the appellant during interrogation disclosed and got recovered "Chhurri" from his house but did not state that "Chhurri" was blood stained at the time of its recovery, hence, positive report of PFSA in this respect is not believable which is hereby discarded.

5. In view of the above discussion, we entertain serious doubt in our minds regarding 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 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, instant criminal appeal is allowed, conviction and sentences of Tanvir Ahmad appellant awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. Tanvir Ahmad appellant is directed to be released forthwith, if not required in any other case. Murder Reference is answered in NEGATIVE and death sentence of Tanvir Ahmad (appellant) is NOT CONFIRMED. JK/T-10/L Appeal allowed.