' MUHAMMAD ANWAR BHAUR, J.---The appellant, namely, Nasir Ali son of Manzoor Ahmad was tried by learned Additional Sessions Judge, Okara for committing the murders of Manzoor Ahmad and Mst. Sughran Bibi, in case F.I.R. No,92, dated 3-7-2004, registered with Police Station Cantt. Okara for an offence under section 302, P.P.C. The learned trial Judge by virtue of his judgment dated 22-11- 2004 found him guilty of the said charge, convicted him under section 302(b), P.P.C. As Ta'zir and sentenced him to death on two counts.
2. The appellant by filing Criminal Appeal No,1917 of 2004 has called in question the conviction and sentence awarded to him through the impugned judgment, whereas the learned Additional Sessions Judge has sent the Murder Reference No,898 of 2004 seeking confirmation or otherwise of death sentence awarded to the appellant. We propose to dispose of both these matters together through this single judgment.
3. Occurrence in this case had taken place on 3-7-2004 at 6-15 p.m. Near the canal Lower Bari Doab, situate in Chak No,13/4-L falling within the territorial jurisdiction of Police Station Cantt. Okara.
It was reported by Hafiz Ullah-complainant, real brother of Manzoor Ahmad deceased, to Ali Raza, S.-I. (P.W.14) on the same day at 7.30 p.m. At Basti Ahmad Nagar, who (P.W.14) reduced into writing the complaint (Exh.PJ) and despatched the same to the Police Station through a constable for registration of a formal F.I.R. On receipt thereof, Muhammad Akram, MHC (P. W.10) drew up F.I.R.
(Exh.PJ/1) on the same day at 7.45 p.m. Without any addition or alteration on his part.
4. Succinctly, the prosecution story as narrated in the F.I.R. (Exh.PJ/1) was that Hafiz Ullah- complainant (P.W.8) is resident of Chak. No,51/5-L and being employed in F.G. School, Rawalpindi was on summer vacation; on the fateful day, at 11.00 a.m. His brother Manzoor Ahmad, who was Malang, went to the house of Muhammad Sharif son of Umar Din in Basti Islampura; the complainant along with Abdul Rashid son of Karam Khan, resident of the said village, also went to Gamber in connection with some personal work; after having been free therefrom at 6.15 p.m., the complainant told his companion that they should also take Manzoor Ahmad Malang, who had already come to see Muhammad Sharif; he along with Abdul Rashid went to the laundry shop of Muhammad Sharif situate at Islampura and inquired about Manzoor Ahmad, who (Muhammad Sharif) informed them that his wife Mst. Sughran Bibi and Manzoor Ahmad, both had gone towards canal Lower Bari Doab, whereupon Muhammad Sharif also accompanied them to fetch Manzoor Ahmad and Mst. Sughran Bibi towards the canal; on the eastern side of the canal at some distance, they all saw Nasir Ali-appellant, who was inflicting successive Chhurra blows on the person of Manzoor Ahmad and on catching sight of them, he threw Manzoor Ahmad in the canal; at the same time, he after catching hold of Mst.Sughran Bibi gave her Chhurra blows and then also threw her in the canal; the complainant along with his companions raised commotion and chased the appellant for catching hold of him, but he succeeded in escaping by taking the benefit of crops.
' Motive behind the outbreak of this incident, according to the complainant, was that Mst.Sughran Bibi and Manzoor Ahmad used to forbid Nasir Ali-appellant from visiting her house because daughters of Mst. Sughran Bibi were young; due to this grudge, the appellant after accomplishing his ignoble design has thrown the dead bodies of Manzoor Ahmad and Mst. Sughran Bibi in the canal; the complainant along with his companions witnessed the occurrence; leaving Abdul Rashid and Muhammad Sharif at the spot, the complainant left for the police station to lay an information of the incident, when he came across Ali Raza, SI (P.W.14), who was on patrol duty, at Basti Ahmad Nagar. In this way, the aforesaid F.I.R. Stood registered.
5. Immediately, after registration of the case, investigation into the crime commenced. Ali Raza, S.-I.
(P.W.14) carried out investigation and after completing all legal formalities completed the challan and submitted the same before the trial Court for trial of the appellant in accordance with law.
6. On receipt of the challan, the trial Court framed a charge and put the same to the appellant, to which he pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution produced as many as fourteen witnesses, namely, Ijaz-ul-Haq, Patwari (P.W.1), Muhammad Sharif, constable (P.W.2), Muhammad Zubair (P.W.3), Zahoor Ahmad (P.W.4), Muhammad Shabbir (P.W.5), Ameer Ali (P.W.6), Master Ahmad Ali (P:W.7), Hafiz Ullah-complainant (P. W.8), Abdul Rashid (P. W.9), Muhammad Akram, MHC (P.W.10), Abdul Sattar (P. W.11), Lady Dr.Qasir Tariq, SWMO (P.W.12), Dr.Abdul Majeed Joyia, SMO (P.W.13) and Ali Raza, SI (P.W.14). The learned Prosecutor gave up rest of the witnesses being unnecessary and closed the prosecution case by tendering in evidence reports of the Chemical Examiner (Exhs.PW and PX) and those of Serologist (Exhs.PY and PZ). Thereafter, all the incriminating material was put to the appellant while recording his statement under section 342, Cr.P.C., who claimed his absolute innocence in the matter and alleged his involvement in the case due to grudge and suspicion. In an answer to the question "Have you anything else to say?", he stated as under:-- "I am innocent in this case. Muhammad Sharif P.W runs a Laundry shop near my shop where I worked as an electrician. Being neighbour of said shop, I had quarrel many a times with Muhammad Sharif P. W. And on account of it our relation were strained and he was annoyed with me. Moreover, Manzoor Ahmad deceased posed himself as a Malang and used to do business of Taveez Ganda. He had developed illicit relations with Mst. Sughran Bibi deceased who posed herself as a Malangni. Manzoor Ahmad deceased had developed illicit relations with her and Muhammad Sharif P.W. Used to forbid them from such illicit-intimacy but in vain. It was the talk of the Mohallah that Sughran Bihi has illicit relation with Manzoor Ahmad and Muhammad Shatif and his sons Muhammad Ashfaq and Shafeeq were fed up over the conduct and character of both the deceased who disappeared and were not traceable. Muhammad Sharif and his sons were after them and ultimately, their dead bodies were recovered. The police apprehended Muhammad Sharif P.W. And his sons mentioned above as suspect. My brother and mother were also apprehended along with me on account of the quarrel with Muhammad Sharif P.W. Muhammad Sharif P.W. Conspired with the police and so Hafeez Ullah P.W. Who was summoned from Rawalpindi after the occurrence. After that the whole story was fabricated after consultation and deliberations by fabricating a false motive and by citing false eyewitnesses by changing the time and place of occurrence. Since Muhammad Sharif P. W. Was the main figure in the whole affair. So the prosecution has withheld him by not producing as a P. W. At the trial with dishonest intention, lest the truth should come on the file. I have been falsely involved in this case due to grudge and enmity with Muhammad Sharif P.W. I am innocent in this case."
' He neither opted to make statement on oath under section 340(2), Cr.P.C. Nor did he produce evidence in defence.
7. The trial ultimately culminated into conviction and sentence of the appellant as aforementioned.
8. Learned counsel for the appellant in support of this appeal argued that as a matter of fact it was an unseen occurrence and the prosecution story is improbable and against the common sense; that admittedly both the eyewitnesses, namely, Hafiz Ullah-complainant and Abdul Rashid (P. Ws.8 and 9) are note residents of the place, where the occurrence had allegedly taken place and they are chance witnesses, they have tried to justify their, presence by giving certain reasons, which in the circumstances are not acceptable; that the complainant (P.W.8) in the (Exh.P.J/1) has stated that he along with Abdul Rashid (P.W.9) because of some piece of work left their village and came at Gamber, wherefrom at about 6.15 p.m., he along with Abdul Rashid went to the laundry shop of Muhammad Sharif to inquire about Manzoor Ahmad, his brother, whereas while appearing before the Court this witness has changed his stance by stating that they went to Gamber for shopping purpose. In his cross-examination, this witness (P.W.8) stated that he along with Abdul Rashid left their village for Adda Qadirabad on a bicycle, whereas. Abdul Rashid (P.W.9) stated that they went on Tonga from their village to Adda Qadirabad; that they have not given any plausible explanation for going to the shop of Muhammad Sharif in Islampura, which is at a distance of one kilometre from Gamber and thereafter they along with Muhammad Sharif went towards canal in search of Manzoor Ahmad and Mst.Sughran Bibi, where they saw the occurrence; that Muhammad Sharif, who was most important witness of the occurrence, had not been produced and was given up as being unnecessary by the prosecution; that even otherwise story of the prosecution that the appellant first caused Chhurra blows to Manzoor Ahmad and thereafter threw him in the canal and then he caused Chhurra blows to Mst.Sughran Bibi in view of three persons, i,e, the complainant (P.W.8), Abdul Rashid (P.W.9) and Muhammad Sharif P.W. (not produced) is not believable because for throwing a healthy injured person in the canal, is a difficult task and needs considerable time and labour and, therefore, it cannot be believed that the other person, i,e, Mst.Sughran Bibi, in whose presence the appellant was causing injuries and throwing Manzoor Ahmad in the canal, would make herself available at the spot; that had these witnesses been present at the spot, the appellant could easily have been apprehended as he was alone and having a Chhurra in his hand and was going in the same direction, where the three witnesses were standing; that the distance between the places of causing of injuries to Manzoor Ahmad and Mst. Sughran Bibi was 180 feet; that story of the prosecution that both the dead bodies were recovered from the canal is not proved through the evidence available on the record because Muhammad Zubair (P.W.3) and Muhammad Shabbir (P.W.5) claimed that they identified the dead bodies when those were recovered, but they did not state wherefrom the dead bodies were recovered; that even in the inquest reports of both the deceased, i,e, Manzoor Ahmad and Mst. Sughran Bibi (Exhs.PN and PQ), there is no mention that the dead bodies were having any mud on their clothes or their clothes were wet; that had these three persons been present at the spot, it was natural for them to make an attempt to save lives of two persons, who were thrown in the canal, but none made any such effort; that the recovery of Chhurra (P 11) is of no avail to the prosecution because it was recovered from a place, which was at a distance of 100 yards from the place where Manzoor Ahmad was given injuries, whereas case of the eyewitnesses is that the appellant ran away from the spot along with Chhurra and hide himself in the bushes, therefore, it is not probable that he will leave the Chhurra at a place, which is neither owned nor possessed by him and even otherwise it does not prove the case of the prosecution even if this piece of evidence is accepted; that motive set out in the F.I.R. Was that the appellant was having bad eye on the daughters of Mst. Sughran Bibi, whereas it is in the evidence that Mst. Sughran Bibi had only one daughter, who too was married and living separately and it is in the evidence that both the deceased persons posed themselves as Malang and Malangni, respectively, and were involved in the Taveez Gandas, therefore, the possibility cannot be ruled out that they were killed by someone else because of their such activities.
9. Conversely, the learned Additional Prosecutor-General Punjab submitted that both the eyewitnesses i,e, P.Ws.8 and 9 have given a very plausible explanation for their presence at the spot; that story of the prosecution is natural and probable in the circumstances, which is duly supported by the medical evidence; that substitution is rare phenomenon because the appellant has not been able to offer any reason for his false implication and as such the prosecution has proved its case beyond any shadow of doubt against the appellant, therefore, his appeal be dismissed.
10. We have heard learned counsel for the appellant as well as the learned Additional Prosecutor- General Punjab for the State at considerable length and gone through the record with their able assistance.
11. In this case, as per prosecution, the occurrence had taken place on 3-7-2004 at about 6.15 p.m.
Near the canal, Lower Bari Doab, situate at a distance of three kilometres from the Police Station (Cantt. Okara) and the matter was reported by Hafiz Ullah-complainant (P.W.8) to Ali Raza, SI (P.W.14) when he was on patrol duty at Basti Ahmad Nagar on the same day at 7.30 p.m. And formal F.I.R. (Exh.PJ/1) was recorded by Muhammad Akram, MHC (P.W.10) at 7.45 p.m.
12. The prosecution case, according to the complainant (P.W.8) and Abdul Rashid (P.W.9) was that on the fateful day, at about 11.00 a.m. Manzoor Ahmad, brother of the complainant, who was a Malang, left his village (Chak No,51/5-L) and had gone to Basti Islampura in the house of Muhammad Sharif. Thereafter, both these witnesses went to Gamber. After finishing their business there, they decided to take Manzoor Ahmad Malang and went to the shop of Muhammad Sharif at Islampura, from whom they inquired about Manzoor Ahmad, who (Muhammad Sharif told them that he (Manzoor Ahmad) along with Mst.Sughran Bibi (wife of Muhammad Sharif) had gone towards canal, Lower Bari Doab, whereupon they along with Muhammad Sharif reached at the said place and saw that the appellant was giving Chhurra blows to Manzoor Ahmad and on seeing them the appellant threw him in the canal. Thereafter, the appellant caught hold of Mst. Sughran Bibi, inflicted Chhurra blows on her person as well and also threw her in the canal. They chased the appellant, but he concealed himself in the bushes and `churry' crop.
13. In this case the most important points, which are to be determined are whether the story, set out by the prosecution is probable and a prudent man in the circumstances would believe it and, secondly, whether Hafiz Ullah (P.W.8) and Abdul Rashid (P.W.9), who claimed to have witnessed the occurrence, were present at the spot and have actually witnessed the occurrence.
' First of all, we will take up the matter of presence of the eyewitnesses (P.W.8 and P.W.9) at the place of incident. The complainant in his statement recorded under section 154, Cr.P.C. (Exh.PJ) stated that he had come from Rawalpindi, where he was employed in a school, because of summer vacation and Manzoor, his brother, who was 'Malang, on the fateful day, had gone to Basti Islampura in the house of Muhammad Sharif and that he along with Abdul Rashid (P.W.9) went to Gamber because of some piece of work. At about 6.15 p.m., he asked his companion Abdul Rashid that they should take Manzoor Ahmad with them, whereupon they went to Muhammad Sharif at his laundry shop, who informed them that Manzoor Ahmad and Mst.Sughran Bihi (wife of Muhammad Sharif) had gone towards canal Lower Bari Doab and they all went there, where they witnessed that the appellant was causing Chhurra blows to Manzoor Ahmad and thereafter he threw him in the canal. Then he caught hold of Mst.Sughran Bibi and also gave her Chhurra blows and threw her in the canal. These two eyewitnesses (P.Ws.8 and 9) are admittedly not residents of the place, where the incident had taken place. They have also no business at the said site, therefore, they are chance witnesses. They have assigned a reason for their presence at the spot. Now it is to be seen whether the reason given by these witnesses, for their presence at the venue of crime, is probable or not. In the F.I.R., the complainant (P.W.8) simply stated that he along with Abdul Rashid (P.W.9) had gone to Gamber in connection with some work. He has not given any details of the work.
Moreover, Basti Islampura does not fall in their way if they go to Gamber from their village. The complainant, while appearing before the Court has stated that they went to Gamber for shopping and from their village, they went on bicycle to Adda Qadirabad, which is at a distance of one and a half kilometre from their village, whereas the other witness, namely, Abdul Rashid (P.W.9) has stated that they went on Tonga from their village to Adda Qadirabad and from there they went to Gamber. Moreover, their presence at the relevant time of occurrence is belied from their conduct, as in their view, Chhurra blows were given to Manzoor Ahmad and Mst.Sughran Bibi, but they have not made any effort to save their lives or to pull them from the canal, where they were allegedly thrown by the appellant and instead the complainant leaving Abdul Rashid and Muhammad Sharif at the spot left for the police station to lodge a report of the incident. Even if it is accepted that the appellant after causing injuries to Manzoor Ahmad and Mst. Sughran Bibi had thrown the two deceased persons in the canal. Both the deceased were grown-up and healthy (as mentioned in the inquest reports Exhs.PN and PQ) and would be close to the bank of the canal and in such a situation an effort could be made for saving their lives, which was admittedly not made.
14. There is another aspect of the case. The most important witness, i,e, Muhammad Sharif, whose wife Mst. Sughran Bibi was killed and who took P.Ws.8 and 9 at the spot, was not produced by the prosecution and was given up as being unnecessary. Therefore, adverse presumption can be drawn against the prosecution in view of Article 129(g) of the Qanun-e-Shahadat Order, 1984. All these circumstances make the presence of the eyewitnesses at the spot doubtful.
15. Then the next question is whether the story of the prosecution notwithstanding the presence of these witnesses (P.Ws.8 and 9) at the spot is probable or natural. The allegation against the appellant was that he was alone when he caused injuries to two persons with Chhurra and thereafter threw them in the canal. As already observed, their inquest reports suggest that they were strong built healthy persons of middle age, so it is difficult to believe that one person alone can accomplish this task. Therefore, the story of the prosecution does not appear to be probable.
16. In the inquest reports, there is no mention of the fact that the dead bodies of both the deceased were having mud or that their clothes were wet. Similarly, the two witnesses, namely, Muhammad Zubair (P.W.3) and Muhammad Shabbir (P.W.5), who claimed to have identified the dead bodies of the deceased, simply stated that they have identified the dead bodies when those were recovered and they did not state about the place from where the dead bodies were recovered.
17. Now we will discuss the motive part of the prosecution story. The complainant in the F.I.R. Has stated that the appellant was having bad eye on the daughters of Mst.Sughran Bibi, but it has come on the record through the evidence of Ali Raza, SI (P.W.14), who was investigating officer of the case, at page 51 of the paper book that "It is correct that Zahida Parveen is only daughter of Muhammad Sharif P.W. And it has also been admitted by the complainant (P.W.8) at page 31 of the paper book (page 3 of his statement before the Court) that "If it is suggested that. Zahida Parveen is (daughter of Muhammad Sharif, then it is correct. Zahida was married with one Intizar r/o Bhai Pheru. Afterwards said Intizar divorced Zahida. Second marriage of Zahida was made with Shabbir r/o Dirbar Ilam Din, Tehsil Chunian, District Kasur. Zahida is residing with her husband Shabbir". In these circumstances, motive is not believable.
18. As far as recovery of Chhurra (P11) at the instance of the appellant is concerned, it was got recovered from the placF which was neither owned nor possessed by the appellant and surprisingly that place is 100 yards away, according to the investigating officer, from the place where Manzoor Ahmad deceased was injured, so it is not probable that the appellant who on seeing the witnesses ran away with Chhurra would throw or conceal the same in the bushes, from where he subsequently allegedly got it recovered. So this piece of evidence is also of no avail to the prosecution.
19. It is on the record that both the deceased persons being Malang and Malangni were involved in Taveez Ganda, therefore, possibility of their being killed by anybody else because of such activities cannot be ruled out. Though, it is correct that the appellant has not been able to give any solid reason for his false implication. But it is the duty of the prosecution to prove its case beyond any shadow of doubt against the accused and it is not for the accused to prove his innocence and if there is any doubt in the prosecution's story, the accused is entitled to the same as a matter of right and not as a grace. Reference may advantageously be made to the case of Muhammad Akram v. The State (2009 SCM R. 230), wherein it was observed as under:-- "13 It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCM R 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
20. Therefore, story of the prosecution is not free from doubt and as such, by giving benefit thereof to the appellant, we accept this appeal, set aside his conviction and sentence and acquit him of the charges. He is directed to be released from custody forthwith, if not required in any other case.
21. ' Death sentence is not confirmed and Murder Reference is answered in the negative.