2021 PLP 153 (YLRN)

SADAQAT ALI KHAN, J.

Appellant (Muhammad Arshad) has been tried by learned trial Court in case FIR No.45 dated 15.02.2013 offences under sections 302, 109, P.P.C. registered at Police Station Ghazi Abad, District Chichawatni and was convicted and sentenced vide judgment dated 01.06.2016 as under:-- Muhammad Arshad (appellant) Under sec-tion 302(b), P.P.C. Sentenced to DEATH as Tazir' for committing Qatl-i-Amd of Muhammad Shahid Iqbal (deceased) with compensation of Rs.2,00,000/- payable to legal heirs of the deceased under section 544-A, Cr.P.C. which was ordered to be recovered as arrears of land revenue in default whereof to further undergo simple imprisonment for 6-months. Benefit of section 382-B, Cr.P.C. is also extended in his favour.

2. Appellant has filed this criminal appeal against his conviction and learned trial Court has sent Murder Reference for confirmation of death sentence of appellant (Muhammad Arshad) or otherwise, which are being decided through this single judgment.

3. Brief facts of the case have been stated by complainant Muhammad Iqbal (PW-7) in his statement before the learned trial Court, which is hereby reproduced as under for narration of the facts:- "Stated that Muhammad Shahid Iqbal deceased was my brother. I along with my brother Muhammad Shahid Iqbal were running a brick kiln at 68-Morr nearby the road. Rao Mashkoor Ahmad accused since dead belong to our brotherhood and we had joint business of said brick kiln with above said Rao Mashkoor for the last four years prior to present occurrence. I along with my brothers were also running another brick kiln in area of Chak No.171/9-L. About 10-months prior to present occurrence, we separated our business of brick kiln from Rao Mashkoor Ahmad since dead. On rendition of accounts Rs.20,00,000/- were due against Rao Mashkoor. Said Rao Mashkoor did not pay to us said amount, upon which my father Hafiz Muhammad Akbar filed a suit for rendition of accounts against Rao Mashkoor which was sub-judice in the court of competent jurisdiction at Chichawatni. Muhammad Arshad accused now present in court was servant of Rao Mashkoor Ahmad since dead since long who usually came to my brother Muhammad Shahid Iqbal in connection with compromise with Rao Mashkoor Ahmad at 68-Morr. On 14.02.2013, at about Esha Waila, Muhammad Arshad accused now present in court came at our brick kiln at 68-Morr while riding on motorcycle. I, my brother Shahid Iqbal deceased and Muhammad Sajjad were present in the office at that time. Muhammad Arshad accused asked my brother to accompany him at our brick kiln situated in the area of Chak No.171/9-L as he had some task there. My brother Muhammad Shahid Iqbal proceeded towards the brick kiln situated in the area of Chak No.171/9-L along with Muhammad Arshad accused while riding on a motorcycle through metalled road leading to Chak No.169/9-L. I and my brother Sajjad P.W also proceeded behind them while riding on motorcycle as we had to check work of labour at said brick kiln situated in the area of Chak No.171/9-L. Shahid Iqbal deceased and Arshad accused were going ahead of us. Muhammad Arshad accused was driving the motorcycle. The brick kiln was still at some distance, when Muhammad Arshad accused now present in the court stopped the motorcycle and forcibly got alighted my brother Shahid Iqbal. In the meanwhile, we also reached there and in our view Muhammad Arshad accused picked up pistol 30-bore from the fold of his Shalwar and fired at my brother Muhammad Shahid Iqbal which hit near the left eye of my brother. My brother fell injured on the ground. I and my brother Muhammad Sajjad tried to apprehend Muhammad Arshad accused but he pointed his pistol towards us and fled away from the place of occurrence while riding on his motorcycle towards Chak No.169/9-L along with weapon of offence. I and my brother attended Muhammad Shahid Iqbal who succumbed to the injuries at the spot. Muhammad Arshad accused had committed murder of my brother Muhammad Shahid Iqbal under the abetment of Rao Mashkoor Ahmad. I came across the police at Adda 168/9-L Morr where I submitted written application Exh.PE/1 which bear my signatures."

4. Arguments heard. Record perused.

5. Muhammad Shahid Iqbal was done to death on the passage on 14.02.2013 at 8:30 p.m., FIR was lodged on the same night at 12:10 a.m. (15.02.2013) on the written application moved by his brother Muhammad Iqbal (PW-7) who and his brother Muhammad Sajjad (PW-8) while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before learned trial Court that appellant being servant of co-accused (Rao Mashkoor Ahmad since dead) who had dispute of brick kiln with them came at their brick kiln situated at 68-"Morr" on a motorcycle on 14.02.2013 at 'Esha Waila' and took their brother Shahid Iqbal (deceased) with him to their other brick kiln situated in the area of Chak No.171/9-L on the pretext of some work, they also followed them as they had to check work of labour at said brick kiln when appellant along with deceased reached at some distance from brick kiln, appellant stopped his motorcycle, forcibly got alighted Shahid Iqbal (deceased), meanwhile they also reached there and in their view made fire shot hitting his left eye. The above stated story narrated by these two eye-witnesses neither plausible nor believable. Dr. Khizar Hayat, MO (PW-2) who conducted post-mortem examination on the dead body of Shahid Iqbal (deceased) stated in his statement before learned trial Court that on 14.02.2013 at 8:45 p.m. his dead body was brought by Naseer Ahmed Constable for autopsy. Post-mortem report (Exh. PA) shows that post-mortem was conducted on the dead body at 8:45 p.m., contrary to this. Muhammad Ismail, SI (PW-9) stated in his cross-examination that application Exh. PE/1 (upon which FIR was lodged) was already drafted by the complainant which was presented to him, time of occurrence mentioned in it was 8:30 p.m. on 14.02.2013, he reached at place of occurrence at 11:50 p.m. on 14.02.2013 after sending Exh. PE/1 (written application) to Police Station; dead body of Shahid (deceased) lying at place of occurrence at 11:50 p.m. when he reached at the spot; he prepared the injury statement Exh. PB and inquest report Exh. PA/2/1-2 at the place of occurrence. Considering all this, we are of the view that time of post-mortem examination i.e. 8:45 p.m. and time of occurrence mentioned in written application moved by Muhammad Iqbal (complainant/PW-7) for registration of FIR i.e. 8:30 p.m. have wrongly been given by the prosecution rather FIR was lodged with much delay after due deliberation and consultation involving the appellant by concocting a false story by the PWs shattering their credibility.

6. Motive was attributed to co-accused (Rao Mashkoor since dead) and has not been attributed to appellant.

7. Both the eye-witnesses have made dishonest improvements in their statements before learned trial Court who were confronted with their earlier statements before learned trial Court shattering their credibility ("Akhtar Ali and others v. The State" (2008 SCMR 6)). Scaled site plan (Exh. PD) does not show the houses including brick kilns of these two eye-witnesses around the place of occurrence. They being chance witnesses have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on cases titled "Arshad Khan v. The State" (2017 SCMR 564) and "Muhammad Rafique v. The State" (2014 SCMR 1698).

8. Muhammad Ismail, SI (PW-9) stated before learned trial Court that on 23.03.2013, he arrested Muhammad Arshad (appellant) who on 05.04.2013 during interrogation disclosed and got recovered pistol (P-7) from the room of his house. Report (Exh. PM) of Punjab Forensic Science Agency (PFSA) shows that crime empty recovered from the place of occurrence was received in the office on 04.04.2013 after the arrest of the appellant (23.03.2013). In these circumstances, possibility of manufacturing of the crime empty before its dispatch to obtain positive report cannot be ruled out, hence, positive report of PFSA in this respect is not believable which is hereby discarded.

9. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the 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.

10. For the foregoing reasons, this appeal is allowed, conviction and sentences of the appellant (Muhammad Arshad) awarded by learned trial Court through impugned judgment are hereby set-aside and he is acquitted of the charges. Appellant (Muhammad Arshad) 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 Arshad) is NOT CONFIRMED. JK/M-124/L Appeal allowed.