Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No, 1427/03 (Muhammad Saleem us. The State); Criminal Appeal No, 1428/03 (Mst. Surrayya Bibi etc. vs. The State); and Murder Reference No, 351/04 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Mst. Surraya Bibi and Abdul Ghafoor appellants, as they arise out of the same judgment dated 15.7.2003 passed by the learned Additional Sessions Judge, Gujranwala, whereby, appellants Mst. Surraya Bibi and Abdul Ghafoor were convicted for the murder of Muhammad Nawaz deceased under Section 302(b)/34 PPC and sentenced to death each with a further direction to pay a compensation of Rs, 1,00,000/- each as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo SI for six months each. Muhammad Saleem appellant was convicted under Section 302(b)/34 PPC and sentenced to imprisonment for life with a further direction to pay a compensation of Rs,50,000/- to the legal heirs of the deceased as provided under Section 544-A Cr.P.C. in default whereof to further undergo SI for six months. He was extended benefit of Section 382-B Cr.P.C.
2. Brief facts of the case, as given by PW1 Zulfiqar Ahmad (complainant) in the FIR (Exh.PE) are that his real brother Muhammad Nawaz (deceased) used to work with him at Sialkot in a bakery as a labourer. According to the complainant on 18.7.2002 at about 7.30 a.m., his Bhabhi Mst. Surraya Bibi (appellant) made a telephonic call to her husband Nawaz deceased and asked him to reach home till evening as there was an emergency. It was alleged that the complainant alongwith his said deceased brother reached home at Gujranwala at about evening time and his Bhabhi (appellant Surraya Bibi) apprised them qua some electricity problem in the house but, on checking, the electricity was found in order. It was further mentioned in the FIR that his brother Nawaz alongwith his wife and son Adnan slept in his house while the complainant and Muhammad Ashraf and Muhammad Arshad went to sleep in the house of his Behnoi Ashraf. The complainant has also stated in the FIR that at about 4.00 p.m., he alongwith Ashraf and Arshad came to the house of Nawaz for taking him to Sialkot but heard his shrieks from inside the house, upon which, they entered the house through his neighbour's house, and saw that wife of Nawaz was giving electric shocks at the right hand of his brother through an electric wire which she was catching in her hand. As per FIR, the complainant also alleged that appellant Abdul Ghafoor was pressing neck of his brother while Saleem was guarding them while standing in the Courtyard. As per FIR, the above mentioned accused, on seeing them, fled away from the spot while his brother Nawaz died as a result of those electric shocks.
The motive alleged by the complainant in the FIR was that Surraya Bibi appellant had illicit relations with appellant Abdul Ghafoor and wanted to get rid of Nawaz.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies of documents as required under Section 265(c) Code of Criminal Procedure were distributed to the accused and, thereafter, the charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as OS witnesses during the trial. The appellants/accused were examined under Section 342 Cr.P.C. They opted not to depose on Oath as required under Section 340(2) Cr.P.C. However, appellant Abdul Ghafoor opted to produce defence evidence and in this Fegard produced DW1 Muhammad Riaz in support of his plea that on 18.7.2002: he was with Muhammad Riaz DW1. In reply to the questions "why this case against you and why the PWs deposed against you", Mst. Surraya Bibi appellant stated as under:-- "Complainant and the PWs who are interse related have falsely involved me in this false case. They were not present at the, spot when the deceased died accidentally while repairing the electricity of the house. I informed the-complainant about this incident who alongwith PWs came at the spot after sunrise. With due deliberations and consultations complainant and the PWs concocted this false story and snatched my children and took the possession of house of deceased only to deprive me from the property of the deceased which otherwise I had to look after. They involved me in this false case, alongwith other co-accused." Abdul Ghafoor appellant replied as under:-- "I have been falsely involved in this case clue to having sacred relationship with Surraya Bibi who is my Phuphi in relation. Complainant and the PWs have falsely registered this case against me so that I should not pursue her right which she is going to be deprived by the complainant and the PWs. Complainant and PWs have snatched her sons and have taken over the possession of house of deceased who died accidentally." Appellant Muhammad Saleem answered in the following manner:-- "I was neither present at the spot nor participated in the occurrence in any manner. The PWs were neither present at the spot. They came after sunrise at the spot after receiving telephonic message and concocted a false story and lodged bleated report to the police involving me and other co- accused.My father had given Rs, 10,000/- to Arshad PW who is maternal uncle of complainant and Nawaz deceased. 2,/3 months prior to this occurrence, a quarrel took place between my father and Arshad PW on the dispute of return of money. I also participated in the quarrel and abused Arshad and for that reason I have been falsely implicated in this case at the instance of Arshad PW. The PWs have falsely deposed against me being related to deceased and Arshad PW. I produced evidence in defence before police according to my first version. I am innocent."
5. Learned counsel for the appellants contends that the appellants have falsely been involved in this case on account of mala fide of the complainart and the local police; that admittedly it is a night time occurrence; that as per site-plan Exh.PF, the witnesses were present at a distance of about 28 feet wherefrom they claimed to have seen the occurrence whereas, at that time, there was no visibility to see the occurrence and more over there was no electricity connection in the room.
Learned counsel further contends that the presence of PW1 Zulfiqar Ahmad at the place of occurrence is highly improbably as, admittedly, he used to work at Sialkot and there was no occasion for him to accompany his deceased brother. According to the learned counsel, in the site-plan Exh.PF, presence of Saleem appellant has been shown in the Courtyard whereas in the statement of the eye-witnesses he has been shown to be present in the room while holding legs of the deceased; that as per FIR appellant Abdul Ghafoor was shown to have pressed the neck of the deceased when he was being given electric shocks by appellant Surraya Bibi and if it is accepted, then the said Abdul Ghafoor must have received the electric shocks as were received by the deceased; that if appellant Saleem was holding legs of the deceased, as claimed by the prosecution, then he must have also received electric shocks like the deceased but it is clear that both of them did not receive any such injury which shows that the prosecution story was not believable which is belied by the medical evidence because PW3 Dr. Mansoor Abbas has stated in the cross examination " that if a person is being electrocuted and another is also holding that person he might have electric shock at that time if he is not properly insulated "
Learned counsel has vehemently argued that the allegation against appellant Surraya Bibi was that she was having illicit relation with appellant Abdul Ghafoor but it has come on record that she was Phuphi of the said Ghafoor, so, no question of such like liaison arises.
While advancing his submissions learned counsel further contends that contents in the stomach of the deceased were semi digested which suggest that he took meal about 2/3 hours prior to his death which does not coincide with the time of occurrence as given by the prosecution and even otherwise, the story of the prosecution is highly improbable; that admittedly, three witnesses were present at the spot but despite that the accused ran away from the spot although it has not been stated by the eye-witnesses that the accused, at the time of occurrence, were armed with any deadly weapon and that it is not believable that the complainant, who had come alongwith the deceased from Sialkot, as claimed, would not stay with the deceased and would sleep elsewhere.
While concluding his submissions learned counsel submits that as the prosecution has failed to prove its case against the appellants beyond any shadow of doubt which is full of deliberations, concoctions, consultations and improvements, therefore, benefit of doubt be extended to the appellants and that, in the afore-referred circumstances, appellants are entitled to acquittal.
6. Conversely, the learned Additional Prosecutor General for the State, assisted by the learned counsel for the complainant, while vehemently opposing the appeals, contends that the appellants are named in the FIR with specific roles; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the PWs had no enmity with the appellants to falsely depose against them during the trial; that in such like cases substitution is a rare phenomenon; that even otherwise, the story that appellant Surraya BIbi is Phuphi of appellant Abdul Ghafoor, is belied by the statement of DW1 Muhammad Riaz, who stated that she was not the real Phuphi but a cousin of his father; that the prosecution has proved its case against the appellants beyond any shadow of doubt and that the conviction and sentence awarded to the appellants by the learned trial Court be maintained.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. The occurrence in this case took place on 19.7.2002 at about 4.00 a.m. .in the house of Nawaz deceased, the matter was reported to the police at 9.15 a.m. through Farad Bayan Exh.PA, the formal FIR was lodged at about 9.55 a.m. on the same day while the distance between the place of occurrence and the police station was 09 kilometers.
9. At first, we like to discuss whether the FIR in question was lodged with promptitude or not. We have noted that in cross-examination, PW2 Muammad Ashraf has stated that he dropped PW1 Zulfiqar Ahmad on the motorcycle to the house of the deceased where both of them alleged to have witnessed the occurrance in question. If they were having the facility of a motorcycle, as claimed, then no question of lodging of the FIR With a delay of more than five hours arises and in this regard there is no explanation on the record qua the same delay. More-over, as per PW3 Dr.Mansoor Abbas, papers regarding the dead body were received in the hospital at about 6.30 p.m. which factor has also created doubt about lodging of the FIR at 9.55 a.m. If the FIR was registered at 9.55 a.m. on 19.7.2002, then there was no reason for sending the papers to the hospital at 6.30 p.m., therefore, in the circumstances, the possibility of deliberations and concoctions before the registration of FIR cannot be ruled out.
10.The prosecution, in order to prove its case, furnished the ocular account through PW1 Zulfiqar Ahmad and PW2 Muhammad Ashraf while PW1, who is real brother of the deceased Nawaz, was a complainant of the case as well.
11.We have noted that the ocular account furnished by PW1 Zulfiqar Ahmad during the trial is different to the story given by him in the FIR (Exh.PE) registered on the basis of complainant's written 'statement (Exh.PA) and in this regard he was duly confronted with his previous statement as required under Article 140 of the Qanun-e-Shahadat Order, 1984 and Section 162 of the Code of Criminal Procedure. Though, he has stated, while appearing before the learned trial Court, that his correct version was not recorded by the police and he complained the said grievance to the higher officers in the hierarchy of police, but, we have observed that PW8 Zubair Akhlaq SI has stated that he had correctly recorded Exh.PA, as per complainant's version who, in token to its correctness, put his signatures. The major improvements are as under:--
(i) PW1 Zulfiqar Ahmad has stated in the FIR that his deceased brother Nawaz received the telephonic call from his wife Surraya Bibi (appellant) who asked the deceased (Muhammad Nawaz) to reach home till evening as there was an emergency. But in the statement before the learned trial Court he has stated that Mst. Surraya Bibi made a telephonic call to him (complainant) stating that electricity at home was out of order and little kid was also suffering from some ailment.
(ii)In the FIR, it has been mentioned by PW1 Zulfiqar Ahmad (complainant) that at about 4.00 a.m. in the morning, when the complainant alongwith others went to the house of the deceased Nawaz to accompany him for Sialkot, they heard shrieks from inside the house, upon which, entered the house of his deceased brother through the house of his neighbourer. But he has stated in Court that at first they knocked door of the Nawaz and when no one turned up then they jumped over the wall and entered into the house of Nawaz deceased.
(iii)PW1 Zulfigar Ahmad (complainant) has stated in the FIR that Surraya Bibi was holding electric wire in her hand and was electrocuting at the right hand of Nawaz deceased while Abdul Ghafoor (appellant) was pressing neck of the deceased and Saleem appellant was guarding them by standing in the Courtyard. But in his statement before the learned trial Court, the said PW has stated that at that time, hands of the deceased were tied with a wire, appellant Surraya Bibi gave him (Nawaz deceased) an electric shock with the electric wire, then she switched off the electricity upon which Nawaz jumped up, she stated that he will not die in that sense and then she pushed the electric button again while at that time Abdul Ghafoor (appellant) was pressing neck of Nawaz and Saleem (appellant) was holding legs of the deceased.
(iv)According to the story given in the FIR, upon seeing the PWs, the accused decamped from the spot. But he stated in Court that the complainant and other PWs did not go near due to fear who decamped from the spot alongwith their respective dandas while Surraya Bibi (appellant) was apprehended by Muhammad Arshad PW at the spot.
12.The above detail of contradictions, shows that PW1 Zulfiqar Ahmad made dishonest improvements to strengthen the prosecution case keeping in view the fact that the occurrence in question took place inside the room of the house of the deceased at about 4.00 a.m., the incident as per prosecution's own case took place inside the room and no source of light has been mentioned by the eye-witnesses at the spot, therefore, in such like circumstances, claim of the eye-witnesses to have seen the occurrence from a distance of about 28 feet becomes a doubtful affair because the distance from the room where the deceased was being given electric shocks and the place of standing the eye-witnesses, as per Site Plan (Exh.PF) prepared at the pointation of the eye-witnesses was 28 feet.
13.So far as eye-witness account furnished by PW2 Muhammad Ashraf is concerned, it also does not inspire confidence because had he been present at the spot at 4.00 a.m. on the day of occurrence with a motorcycle (as claimed by him), then matter must have been reported to the police without any loss of time. Moreover, PW2 has stated that his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer, whereas, according to the Investigating Officer, namely, PW-8 Zubair Akhlaq SI, he recorded the statements' of Muhammad Ashraf and Muhammad Arshad under Section 161 Cr.P.C.
14. It is settled law that if improvements are made by the PWs to strengthen the prosecution case, then statements of those witnesses cannot be accepted. Even otherwise, the statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case, inspiring confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without a second thought and, in our view, the statements of both these witnesses do not come within the ambit of above rule of acceptance of evidence, therefore, no implicit reliance can be placed them. In this regard reliance is placed on MUHAMMAD SALEEM VS. THE STATE (2010 SCM R 374), wherein, at page 377, the learned Apex Court has been pleased to observe as under:-- " General rule is that statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspires confidence in the mind of a reasonable and prudent person. If these elements are present, then the statement of a worst enemy of the accused can be accepted and relied upon without corroboration but if these elements are missing then the statement of a pious man can be rejected without second thought. Reference is invited to Haroon vs. State 1995 SCM R 1627. The acid test of veracity of a witness is the inherent merit of his own statement. It is not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle, that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dangerous consequence. Reference is invited to Muhammad Rafique v. State 1977 SCM R 457 and Haroon v. State 1995 SCM R 1627.
In the case of Muhammad Fazil vs. Bashir Ahmad and another (2009 SCM R 1382), acquittal of the accused was not interfered with, which was based on dishonest improvements of the witnesses to make in line the ocular account with the medical evidence. In the judgment of Farman Ahmad vs. Muhammad Inayat (2007 SCM R 1825), the acquittal earned by the accused in the said case on the basis of un-explained and inordinate delay in registration of the FIR and improvements by the Prosecution Witnesses to strengthen the prosecution case, was not interfered with by the August Supreme Court of Pakistan.
15.Apart from above, the prosecution case is that the deceased Nawaz was given electric shocks by appellant Surraya Bibi whereas appellant Abdul Ghafoor was pressing his neck and appellant Saleem was holding his legs which is repellent to common sense because during the process of giving electric shocks to the deceased, both the appellants must have also received those shocks and in that eventuality there was chance of their survival. Even PW3 Dr.Mansoor Abbas has admitted during his cross-examination that in the absence of any proper insulation, the person holding the body of the deceased might have received electric shock at that time. Therefore, we are of the affirmed view that the prosecution case is not only belied by common sense but also by the evidence of the doctor.
16.The next point which we have noted is that in the Rough Site Plan Exh.PK, there is no mention of electricity connection or plug in the room where the deceased was allegedly given electric shocks and even in the Site Plan Exh.PF dated 25.7.2002 there is no mention of any such plug. Another important thing which is to be noted is that as per Rough Site Plan Exh.PK, appellant Saleem is shown at point 'D' which is a Courtyard and similarly in the Site Plan Exh.PF, prepared on 25.7.2002 (six days after the occurrence), position is the same and the said site-plan, as per PW5 Masood Ahmad Bhatti (Draftsman), was prepared on the direction of the police and pointation of the Prosecution Witnesses.
17.The main point which is to be determined by this Court is whether the story set out by the prosecution, in the circumstances of the case, is probable or whether the prosecution has proved its case against the appellants without any shadow of doubt. Article 2(4) of the Qanun-e- Shahadat Order, 1984 contemplates how a fact is proved. It says: "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
18. A prudent man in law is neither a genius nor a goof but has the same meanings as consumer in economic and common man in politics. Therefore, in the facts and circumstances of the case, the Court is to see whether a prudent man would believe the story put forth by the prosecution that the complainant, on receipt of the telephonic call, which was exclusively for his deceased brother, would accompany him from Sialkot to Gujranwala and then will not stay in the house of his real brother and would, rather, go to the house of his `Behnoi' and would come.to the house of the deceased early in the morning (at 4.00 a.m.), to witness the occurrence at the time when the deceased was being electrocuted by his wife, whereas, one of her co-accused was pressing the throat of the deceased and the other was holding his legs, the answer of the prudent man would certainly be in the negative.
19.Analysis of the evidence produced by the prosecution has led this Court to the conclusion that the prosecution case is not free from doubts and the story is highly improbable. It is settled by the Apex Court of the country that in case of even a slightest doubt, its benefit, must go to the accused not as a matter of grace but of right.. The same proposition came up for consideration in the case reported as Muhammad Akram vs. The State (2009 SCM R 230), wherein, at page 23E, the Hon'ble Supreme Court of Pakistan, held as under:-- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof n rust 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 crested 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", (emphasis supplied)
20.Nutshell of the above discussion is that the presence of the eye-witnesses at the place of occurrence is highly doubtful and, in our considered view, the prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain their conviction, therefore, both the appeals filed by all the three appellants i,e, Criminal Appeal No, 1427/03 (Muhammad Saleem vs, The State) and Criminal Appeal No, 1428/03 (Mst. Surrayya Bibi etc. vs. The State) are allowed, the impugned judgment of conviction is set-aside and the appellants are acquitted from the charges. Appellant Muhammad Saleem is on bail and shall be discharged of his bail/surety bonds. Appellants Mst. Surraya Bibi and Abdul Ghafoor are behind the bars. They shall be released forthwith if not required to be detained in any other case.
Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED.