' MANZOOR AHMAD MALIK, J.-This judgment shall decide Criminal Appeal No,209-J of 2009 (Babar Hussain and others v. The State) and Murder Reference No,443 of 2009 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Babar Hussain and Muhammad Riaz (appellants) on two counts each, as both these matters have arisen out of the same judgment dated 28-4-2009 passed by the learned Additional Sessions Judge, Gujranwala, whereby, Babar Hussain and Muhammad Riaz(appellants) were convicted under section 302(b), P.P.C., for the murders of Mst. Rehana Bibi and Muhammad Idrees (deceased persons), and sentenced to death as Tazir on two counts each with a direction to pay a compensation of Rs:2,00,000 (Rupees two lakh only) to the legal heirs of both the deceased on both the counts as provided under section 544-A, Cr.P.C., and in default whereof they were directed to suffer six months' S.I. Each on two counts.
2. Brief facts of the case, as given by Muhammad Javaid complainant (P.W.8) in the F.I.R. (Exh.PA/1) are that he is resident of Abdullah Pur, Dera Mauj Darya, Police Station Tatlay Aali and is a labourer.
His paternal uncle Muhammad Idrees (deceased) contracted marriage 6/7 years ago with Mst.
Rehana Bibi (deceased) and nowadays was residing at Hamboke near the Shrine of Munawar Shah in connection with his labour. Yesterday i.e, on 26-10-2008, he (complainant) along with Muhammad Idrees (P.W.9) son of Muhammad Nazeer and Munawar Hussain came to the house of Muhammad Idrees (deceased) at Hamboke. During night, Mst. Rehana Bibi and Muhammad Idrees (deceased persons) slept in their residential room while all three of them slept in the courtyard of the house. In the morning at about 5-00 a.m., they heard some noise and woke up and saw that Babar Hussain and Muhammad Riaz (appellants) while armed with sickle and hatchet along with three unknown persons who were armed with firearms slaughtered Mst. Rehana Bibi (deceased) with sickle from the left side who died at the spot. The accused persons overpowered Muhammad Idrees (deceased) and took him towards the field. They, in order to rescue him, also chased the accused persons but the accused killed Muhammad Idrees (deceased) by giving him hatchet blows on his head, neck and legs and decamped from the spot while raising Lalkaras. As per F.I.R., the motive behind the occurrence was that Muhammad Idrees (deceased) contracted marriage with Mst. Rehana Bibi (deceased) who was a. Divorcee. Babar Hussain and Muhammad Riaz (appellants) who were real sons of Mst. Rehana Bibi (deceased) from her first husband, on account of the said grudge committed the murder of both the deceased persons.
3. Babar Hussain and Muhammad Riaz (appellants) were arrested on 30-10-2008 by Muhammad Yousaf S.-I. (P.W.10). During the course of investigation, on 3-11-2008, Muhammad Riaz (appellant) allegedly led to the recovery of blood-stained sickle (P9) from the place of occurrence of Mst.
Rehana Bibi (deceased) lying in the woods which was taken into possession through memo Exh.PE, whereas, on the same day, Babar Hussain (appellant) allegedly got recovered blood-stained hatchet (P8) from the adjacent room of the same house which was lying in the bedding which was taken into possession through memo Exh.PD. After completion of investigation, the challan was prepared and submitted. The learned trial Court, after observing the required legal formalities, as envisaged under the Code of Criminal Procedure, framed a charge against the appellants on 29-1- 2009 under sections 302/34 P.P.C., to which, they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has produced 12 witnesses, during the trial. The appellants were examined under section 342 of the Code of Criminal Procedure wherein they pleaded innocence. The appellants neither produced any evidence in defence nor opted to depose on Oath as provided under section 340(2) of the Code of Criminal Procedure. In an answer to the question "why this case against you and why the P. Ws. Have deposed against you", Babar Hussain and Muhammad Riaz (appellants), in their respective statements recorded under section 342 of the Code of Criminal Procedure, stated as under:- "The occurrence was blind and was committed in the darkness of night.
' I have roped in this case only due to suspicion".
' However, after conclusion of the trial, the learned trial Court convicted and sentenced the appellants, as detailed above, hence the appeal in hand and Murder Reference.
5. Canvassing acquittal, learned counsel for the appellants, in support of this appeal, contends that both the appellants have falsely been implicated in this case; that the matter was not reported at the time alleged by the complainant in the F.L R. And it was reported much later than 8-10 a.m.
Which is evident from the applications submitted by the police for the purpose of postmortem examinations on the dead bodies of both the deceased persons as time on both the applications (Exh.PL and Exh.PP) is mentioned as 7-45 p.m. Postmortem examination on the dead body of Muhammad Idrees (deceased) was conducted on 28-10-2008 at 2-00 a.m. Whereas postmortem examination of Mst. Rehana Bibi (deceased) was conducted on 27-10-2008 at 9-30 p.m.; that both the witnesses of the occurrence i.e, Muhammad Javaid complainant (P.W.8) and Muhammad Idrees (P.W.9) are chance witnesses because they are not residents of the place of occurrence and even they have not offered any plausible explanation for their presence at the spot at the relevant time of occurrence because the complainant as simply stated in the F.I.R. That he along with Muhammad Idrees (P.W.9) and one Munawar Hussain went to the house of the deceased but did not state any purpose for the said visit, whereas, while appearing before the learned trial Court, he has stated a specific purpose which was to the effect that they went there as Muhammad Idrees (P.W.9) had a dispute of rendition of accounts with Muhammad Idrees (deceased); that this witness was confronted with his previous statement and not only this improvements but other improvements were also brought on the record; that similar is the position of Muhammad Idrees (P.W.9) who was confronted with his previous statement made by him under section 161 of the Code of Criminal Procedure and the improvements made by him in his statement before the learned trial Court were also brought on the record; that the prosecution has also failed to prove motive against the appellants because as per complainant's own showing, motive behind the occurrence was that Muhammad Idrees (deceased) contracted marriage with Mst. Rehana Bibi (deceased) who was a divorcee, Babar Hussain and Muhammad Riaz (appellants) who were real sons of Mst. Rehana Bibi (deceased) from her first husband, on account of the said grudge committed the murder of both the deceased persons but it is case of the prosecution that marriage of the deceased couple took place 6/7 years prior to the occurrence and nothing untoward took place between the parties during the interregnum during which four children from the wedlock of the deceased couple were born, therefore, in such a situation, it was highly improbable that after a period spreading over six years, appellants would commit the murder of their mother and step-father. So far as recovery of sickle (P9) from Muhammad Riaz (appellant) and that of hatchet (P8) at the hands of Babar Hussain (appellant) is concerned, learned counsel contends that as per prosecution's own case both these articles were recovered from the two different rooms of the same house where Mst. Rehana Bibi (deceased) was murdered and it is not understandable as to how both these articles reached in the house of the deceased persons, therefore, in the absence of report of Serologist qua origin of blood on these articles, no reliance can be placed on the recovery of these articles as there were chances of false plantation of these articles on the appellants; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and they are entitled to acquittal.
6. While opposing this appeal, the learned D.P.-G., assisted by complainant's learned counsel, contends that there is no delay in reporting the matter to the police because the incident took place on 27-10-2008 at 5-00 a.m. And the matter was reported to the police at 8-10 a.m. Wherein all the necessary details of the incident such as the manner in which the occurrence took place and the roles played by the appellants have duly been mentioned which established presence of the complainant and the other witness at the spot at the relevant time of occurrence, especially, when they offered reasonable explanations for their presence at the spot by stating that they had gone to the house of Muhammad Idrees (deceased) in connection with dispute of rendition of the accounts between Muhammad Idrees (P.W.9) and Muhammad Idrees (deceased); that the appellants are nominated in the F.I.R. With specific roles of causing sickle and hatchet blows on the persons of both the deceased; that, in order to prove its case, the natural eye-witness account in the form of statements of Muhammad Javaid complainant (PW8) and Muhammad Idrees (P.W.9) has been furnished by the prosecution which inspires confidence and despite cross-examination the defence could shake nothing from the testimonies of these witnesses; that the prosecution witnesses had no strong reason to falsely depose against the appellants during the trial; that the ocular account in this case is fully supported by the medical evidence and the evidence of recoveries of respective weapons i.e, blood-stained sickle (P9) from Muhammad Riaz (appellant) and bloodstained hatchet (P8) from Babar Hussain (appellant); that the prosecution has also proved motive against the appellants as they had a grudge against their mother Mst. Rehana Bibi (deceased) and step-father Muhammad Idrees (deceased) on account of their marriage; that, even otherwise, in such-like cases substitution is a rare phenomenon and that the prosecution has proved its case against the appellants beyond any shadow of doubt, therefore, the appeal, filed by the appellants against their conviction and sentence is liable to be dismissed.
7. We have heard learned counsel for the parties, have given consideration to their respective arguments and have also scanned the record with their able assistance.
8. This unfortunate incident, wherein, two persons, namely, Mst. Rehana Bibi and Muhammad Idrees lost their lives, as per F.I.R. (Exh.FA/1), took place in the morning of 27-10-2008 at 5-00 a.m. Within the area of "Mauza Hambokey near Darbar Munawar Shah" within the jurisdiction of Police Station Kot Ladha, District Gujranwala, the matter was allegedly reported to the police by Muhammad Javaid complainant (P.W.8) at 8-10 a.m. When the formal F. I . R. (Exh. PA/1) was registered, whereas, distance between the place of occurrence and the Police Station is 51/2 miles.
9. First question for determination before us is whether the crime was reported to the police at the time mentioned by the complainant in the F.1.R. We have noted that postmortem examination on the dead body of Muhammad Idrees (deceased) was conducted on 27-10-2008 at 9-30 p.m.
Which is evident from the Postmortem Report (Exh.PV), whereas, as per Postmortem Report (Exh.PF) postmortem examination on the dead body of Mst. Rehana Bibi (deceased) was conducted on 28- 10-2008 at 2-00 a.m. But the reason offered for delay in conducting the postmortem examination on the dead body of Mst. Rehana Bibi (deceased) was that no lady doctor was available at the hospital. It is noted that two applications were submitted by the police for the purpose of postmortem examinations on the dead bodies of both the deceased persons on 27-10-2008 wherein time of submission of these applications is mentioned as 7-45 p.m. Both these applications are available on the record as Exh.PL and Exh.PP, respectively which show that both these applications were submitted after about 11 hours of reporting the matter to the police but there is no explanation for this inordinate delay. Therefore, it can safely be presumed that the incident was not reported to the police at the time mentioned in the F.I.R. Which has created a doubt in the veracity of the prosecution story.
10. Ocular account in this case has been furnished by two persons, namely, Muhammad Javaid complainant(P.W.8) and Muhammad Idrees (P.W.9).
11. Firstly we would like to weigh the eye-witness account offered by Muhammad Javaid complainant (P.W.8) in the form of his statement made before the learned trial Court. In the F.I.R.
(Exh.PA/1), the complainant has simply stated that he along with Muhammad Idrees (P.W.9) and Munawar Hussain (given up) went to the house of Muhammad Idrees (deceased) and stayed there during the night of 26th and 27th October, 2008. Munawar Hussain was given up. However, while appearing before the learned trial Court, the complainant has stated that he alongwith Muhammad Idrees (P.W.9) and Munawar Hussain (given up P.W.) went to the house of his paternal uncle Muhammad Idrees (deceased) in connection with rendition of accounts of Muhammad Idrees (P.W.9) with Muhammad Idrees (deceased) which was an improvement made by the complainant during the trial. Apart from above, the complainant's version qua the incident before the learned trial Court was different than that of his version given by him in the F.I.R. The complainant was confronted with his previous statement and the improvements made by him during the trial were brought on record during course of his cross-examination and it appears that these improvements were made by him in order to bring ocular account in line with the medical evidence. Relevant portion of complainant's cross-examination reads as under:-- "It is not remembered to me at this time as to whether that Muhammad Idrees son of Nazeer had dispute of rendition of account with Muhammad Idrees, son of Ahmad deceased. I did not get recorded in my statement Exh.PA that we took tea and meal with Muhammad Idrees son of Ahmad Din. It is not remembered to me- at this timer that I got recorded in Exh.P.A. r that then Muhammad Idrees son of Ahmad Din stated that cash would be handed over to them at the morning time. I got recorded in my statement Exh.P.A that in the residential room Muhammad Idrees son of Ahmad Din and Rehana Bibi along with four children were sleeping. (Confronted with Ex.P.A. Where four children are not mentioned). It is not remembered as to whether I got recorded in Exh.P.A. That we found that Riaz is slaughtering Rehana Bibi from her neck with sickle. However, confronted with Exh.P.A. Wherein it is not so mentioned and only to the extent of slaughtering with sickle by the accused party is mentioned. I got recorded in my statement Exh.P.A. That in the courtyard Babar Hussain armed with hatchet was dragging my uncle Muhammad Idrees son of Ahmad Din while putting a piece of cloth in his neck. (Confronted with Exh.P.A. Wherein it is not mentioned). However, it is mentioned that Muhammad Idrees his uncle was overpowered and was taken towards field".
The complainant is the paternal nephew of Muhammad Idrees (P.W.9). The incident took place in the area of "Mauza Hambokey near Darbar Munawar Shah", whereas, this witness is the resident of "Abdullahpur, Dera Mauj Darya, Gujranwala" and has stated in his cross-examination that "In order to reach the house of Idrees deceased it consumed 1/ 1 0 hours" therefore, we feel no hesitation to declare him a chance and interested witness.
12. Similar is the position of Muhammad Idrees (P.W.9) who has claimed that he had a dispute of rendition of accounts with Muhammad Idrees(deceased) and for that purpose he along with the complainant had gone to the house of Muhammad Idrees (deceased). This witness was also confronted with his previous statement wherein he has not mentioned reason for visiting the house of the deceased along with the complainant. But while appearing before the learned trial Court, this witness made improvements to justify his presence at the spot. He was also confronted with his previous statement and the improvements made by him were brought on the record:- "I got recorded in Ex.DA that I along with my friend Munawar Hussain and Javed went to Hamboke in order to see Nazir for receiving the cash from him. (Confronted with Exh.D.A., wherein not so recorded). I also got recorded in Exh.D.A. That Javed in this matter was guarantee. (Confronted with Exh.D.A. Wherein it is not so recorded). I also got recorded in Exh.D.A. That after having our tea he stated that amount would be paid to them in the morning time(Confronted with Exh.D.A. Where it is not so recorded) About 5/6 months prior to the occurrence, I handed over the cash of Rs,40,000' to Idrees deceased for employment with me as I am cultivator to help him in my cultivation who resiled from his compromise. I cannot tell the exact time of refusal of Idrees deceased to join my employment. It is correct that this is not remember by me as I am falsely deposing. I did not remember whether I disclosed this fact to the police or not. Prior to this I asked him about my money through telephonic calls but the number of the deceased is not remembered to me at that time. No P.W. Is available with me about the denial of deceased to join my employment".
13. We may mention here that the explanation offered by him for his presence at the spot at the relevant time of occurrence is highly improbable as he is resident of "Bawrey Payarey", whereas the incident took place in "Mauza Hambokey near Darbar Munawar Shah". Although he has claimed to have a dispute of money with Muhammad Idrees (deceased) but has failed to produce any evidence in this respect. Therefore, we are constrained to hold that this witness as well has failed to prove his presence at the spot to witness the occurrence.
14. Therefore, in the given circumstances of the case, presence of both these witnesses at the spot at the relevant time of occurrence becomes doubtful and in our view their testimonies do not inspire confidence. In this regard, reference is made to the case of NADEEM alias NANHA alias BILLA SHER v. THE STATE (2010 SCM R 949), wherein at page 953, the Hon'ble Supreme Court of Pakistan has been to observe as under:-- "The complainant P.W.4. And Muhammad Afzaal P.W.S. Are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses."
' The question of placing reliance on the materially improved statement of a witness came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD RAFIQUE and others v. THE STATE and others (2010 SCM R 385), wherein, at page 396, the learned Apex Court of the country, has been pleased to observe as under:- " This Court in the case of Saeed Muhammad Shah v. State (1993 SCM R 550), observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Awed v. State (2003 SCM R 1419), while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence".
15. The motive behind the occurrence, as alleged by the prosecution, was that Muhammad Idrees (deceased) contracted marriage with Mst. Rehana Bibi (deceased) who was a divorcee and Babar Hussain and Muhammad Riaz (appellants),, who were real sons of Mst. Rehana Bibi (deceased) from her first husband, had a grudge against Muhammad Idrees (deceased) on the said account and killed both the deceased persons for the said reason. But it is on the record that marriage of the deceased couple took place 6/7 years prior to the occurrence and there is no denial to the fact that no untoward incident took place between the parties during the interregnum. It is also on the record that from the wedlock of the deceased persons, four children were born. It not understandable as to why after a period of more than six years, the appellants would commit the murder of the deceased couple. In this scenario, we are of the view that the prosecution has failed to prove the motive.
16. So far as recovery of sickle (P9) from Muhammad Riaz (appellant) and that of hatchet (P8) at the hands of. Babar Hussain (appellant) is concerned, it is prosecution's own case that when the complainant along with other witnesses were sleeping in the house of the deceased couple, in the morning time at about 5-00 a.m. They attracted to the noise and saw that Babar Hussain and Muhammad Riaz (appellants) while armed with sickle and hatchet along with three unknown persons slaughtered Mst. Rehana Bibi (deceased) from her throat with sickle from the left side who died at the spot. Thereafter, the appellants overpowered Muhammad Idrees (deceased) and took him towards the field. The complainant and other witnesses, in order to rescue Muhammad Idrees (P.W.9), also chased the accused persons but they killed Muhammad Idrees (deceased) by giving him hatchet blows on his head, neck and legs and decamped from the spot while raising Lalkaras.
Perusal of the Site Plan of the place of recovery (Exh.PS) shows that both these articles i.e, sickle (P9) and hatchet (P8) were recovered from the house where Mst. Rehana Bibi (deceased) was done to death. But it is not understandable as to how both these articles reached in the said house coupled with the fact that such like articles are easily available in the market, therefore, in the absence of report of Serologist qua origin of blood on these articles, no reliance can be placed on the recovery of these articles as there were chances of false plantation of these articles on the appellants. Even otherwise, this piece of evidence is merely of a supportive nature and since we have already disbelieved the ocular account furnished by both the witnesses, therefore, it is of no avail to the prosecution.
17. Now we would like to discuss the medical evidence brought on record through the statement of Dr. Afshan Riaz (P.W.7) who conducted the postmortem examination on the dead body of Mst.
Rehana Bibi (deceased) and prepared Postmortem Report (Exh.PF) wherein she has noted three injuries on her body, whereas, Dr. Qaiser Iqbal Butt (PW.12) has stated before the Court that Dr. Attique Ahmad conducted the postmortem examination on the body of Muhammad Idrees (deceased) and prepared Postmortem Report (Exh.PV) wherein five incised wounds were recorded on his person. But it is settled law that the medical evidence may confirm the ocular evidence with regard to seat of injury and its duration, nature of injury and kind of weapon used for causing such injury but it cannot connect the accused with the commission of the crime, in absence of any other evidence, therefore, this piece of evidence is of no avail to the prosecution. In this regard reference is invited to the case reported as GHULAM MUSTAFA and another v. STATE (2009 SCM R 916), wherein, at page 527, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- ' However, it is settled law that the medical evidence can only establish the type of weapon used, the seat of injury and the time elapsed between receipt of injury and the medical examination. It can never be a primary source of evidence for the crime itself but is only corroborative of the same
18. It is universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace but of right. In AYUB MASIH v.
THE STATE (PLD 2002 Supreme Court 1048), at page 1056, while quoting a saying of the Holy Prophet (P.B.U.H.) that 'mistake of Qazi(Judge) in releasing a criminal is better than his mistake in punishing an innocent", and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted', the learned Apex Court of our country has been pleased to observe as under:-- ' It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him. The doubt of course must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted", In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H.) that the "mistake of Qazi(Judge) in releasing a criminal is better than his mistake in punishing an innocent".
(emphasis supplied)
19. After considering all the circumstances, this Court is of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the conviction and sentence of the appellants is set aside and the appellants are acquitted from the charges by extending them the benefit of doubt. They are behind the bars and 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.