' MAZHAR IQBAL SIDHU, J.---This judgment will dispose of Criminal Appeal No,40 of 2008 filed by Riaz Hussain appellant as well as above captioned Murder Reference for confirmation of his death sentence or otherwise who was convicted and sentenced by learned Sessions Judge, Rajanpur in case vide F.I.R. No,214 dated 31-7-2006 under section 302, P.P.C. Registered at Police Station, City Rajanpur vide impugned judgment dated 19-3-2008. Following conviction and sentence was imposed on the appellant:- RIAZ HUSSAIN ' Death under section 302(b), P.P.C. And to pay of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Mst. Salma or in default thereof to further undergo six months' S.I.
2. The facts of the case as disclosed by complainant Khalil Ahmad (P.W.4) in the F.I.R. (Exh.PC/1) are that he was working as a plumber. His sister Mst. Salma Bibi deceased was married to Abdul Razzaq resident of Al-Siddique Town, Rajanpur about 12/13 years back and from their wedlock four children were born alive. On 31-7-2006 in the morning time he along with Ghulam Murtaza and Muhammad Akram residents of Kotla Ahmad have been working with him as plumbers, came from Kotla Ahmad to City Rajanpur. He asked Muhammad Akram and Murtaza that firstly he would visit his sister, thereafter they will do their job and at about 9-00 a.m. He along with his said companions reached nearby the street of his sister house where they saw that Riaz Hussain appellant was inflicting chhuri blows at his sister Mst. Salma by catching her hair and the outer door of the Haveli was open. His sister was yelling by saying that she will not allow appellant to play with her honour whereupon Riaz Hussain appellant inflicted three successive chhuri blows hitting his sister Mst. Salma on her left arm whereas fourth blow hit on the backside of her neck; fifth blow hit on the left side of her abdomen; due to which his sister fell at the outer door of the Haveli and with their view Riaz Hussain appellant by placing his both knees on her bosom, chopped her neck off by a chhuri who started flouncing when the complainant along with P.Ws. Tried to intervene but the appellant Riaz Hussain while brandishing chhuri threatened them for the same consequences and they being empty handed could not step forward. Appellant Riaz Hussain while brandishing chhuri disappeared by streets of the city. The complainant along with the P.Ws. Took care of Mst.
Salma Bibi but she due to chopping off her neck and injuries succumbed there.
' The motive behind the occurrence was that a few days earlier a complaint was made by complainant's sister against Riaz Husain appellant that he wanted to unchastize her and on her resistance he committed her murder. He left the P.Ws. To guard the dead body and went to the Police Station for the registration of the case. Hence the case.
3. Lady doctor Zarina Aftab, WMO DHQ Hospital, Rajanpur, (P.W.3) conducted the Medico-legal Examination on the dead body of the deceased Mst. Salma on 31-7-2006 at about 3-00 p.m. And she found the following injuries:--
(i) An incised wound 11 cm x 4 cm x trachea, main blood vessels, muscles, ligaments were cut, located almost at the middle of front and sides of neck.
(ii) An incised wound 5 cm x 0.25 cm x skin deep on the backside of neck.
(iii) Stab wound 3 cm x 1 cm x going deep, located on the left supraclavicular region.
(iv) An incised wound 3 cm x 0.25 cm x muscle deep located on the lateral side of the left upper arm almost at the middle.
(v) Two incised wounds lying side by side 3 cm x 0.25 cm x muscle deep located at the lateral side of lower part of left forearm.
(vi) An incised wound 1 cm x 0.25 cm x muscle deep on the lateral side of middle of middle finger of left hand.
(vii) An incised wound 2 cm x 0.25 cm x skin deep on the front of abdomen.
' According to the opinion of the doctor, cause of death in this case was shock due to haemorrhage and injury No,1 which cut the main blood vessels of neck. All the injuries were ante-mortem and caused by sharp-edged weapon. Probable time that elapsed between injuries and death was instantaneous and that between death and post mortem examination was 5 to 6 hours. Exh.PA was the correct copy of postmortem report initialed and signed by her. She also testified diagrams Exh.PA/1, injury statement Exh.PB and inquest report Exh. PB/1.
4. Upon the completion of investigation, the matter was placed before the learned trial Court for trial where prosecution produced as many as 10 witnesses to prove the charge against the appellant.
5. Learned S.P.P by tendering in evidence report of Chemical Examiner regarding blood-stained earth and blood-stained chhuri (Exh.PI) and that of report of Serologist (Exh.PI/1) closed the prosecution case.
6. The learned trial Court also examined the appellant under section 342, Cr.P.C. Wherein he refuted the charge and claimed innocence. He did not opt to appear as witness on oath under section 340(2), Cr.P.C. In his own defence in disproof of allegation and charges levelled against him by the prosecution. Riaz Hussain appellant while answering to question "why this case was made against him and why the P.Ws. Deposed against him, replied as under:-- ' "I am innocent. I am rickshaw driver. I have been falsely involved in this case by the husband of the deceased who had connived with the police. In fact, he himself had committed the murder of deceased (his wife) as she was disobedient to him. As the husband of the deceased had himself committed murder. So he did not join investigation in any manner. Even he did not bother to appear before the court at any stage, during the pendency of the case."
' The appellant answered another question asked him under section 342, Cr.P.C. As under:-- "I am married person having two adult daughters and four sons.
' Deceased was my Bhabhi (sister-in-law) and I could not to have. Such relations with her as levelled against me I had not committed murder. Furthermore, I did not make any attempt to dishonour her on the day of occurrence or prior to the occurrence."
7. The learned trial Court vide judgment dated 19-3-2008, convicted and sentenced the appellant as mentioned op-cit, hence this appeal.
8. Learned counsel for the appellant submits that motive asserted by the prosecution is preposterous for the reasons that appellant being a married has two young daughters, four sons and his consort is alive whereas deceased Mst. Salma Bibi was the wife of his real brother Abdul Razzaq, husband of the deceased never agitated that the appellant has any illicit connections with the deceased or at least he used to see her through bad eyes so much so no person from the vicinity ever appeared in support of the motive.
9. Learned counsel further submits that P.W.4 Khalil Ahmad is real brother of the deceased whereas (P.W.5) Ghulam Murtaza is cousin of the complainant both do not reside near or around the vicinity of occurrence and both have been found living in a village distant 4 K.M from the place of occurrence, reasons of their arrival at the place of occurrence does not convince to the rational of a prudent man for non providing any specific reason for their being present at the place of occurrence. Learned counsel has further added that by the behaviour of the eye-witnesses including of Muhammad Akram given up P.W., their presence is highly doubtful as according to the prosecution's case at the time of incident outer gate of the 'Haveli' abutting to thoroughfare was open, before their reaching the place of occurrence incident had commenced and the deceased was blubbering but nobody had attended her, none of the P.Ws. Tried to save the deceased, to apprehend the appellant by any positive effort and they allegedly remained as silent spectators, as P.Ws. Have no relationing with the deceased. Learned counsel has further submitted that young P.Ws. Could even detach the appellant from the deceased but to save her they did nothing.
Learned counsel has lastly submitted that Abdul Razzaq husband of the deceased never supported the prosecution version and even no person from the vicinity has come forward to corroborate the version of the complainant, therefore, in ambient circumstances of the case presence of the P.Ws. Is highly doubtful.
10. Learned counsel has further submitted that false recovery of chhuri' has been planted upon the appellant to strengthen the prosecution case and to discuss the medical evidence is minnow because the ocular account is dis-believable and has prayed for the acceptance of appeal.
11. Learned D.P.G. Assisted by the learned counsel for the complainant has opposed the submissions. The dissentient has submitted that complainant is real brother of the deceased; in the vicinity of incident lie and Ghulam Murtaza P.W.5 used to work as plumber, in these circumstances, their presence at the place of occurrence is quite natural so much so arrival of the complainant and the P.W. At the house of occurrence was not unusual or beyond thought, therefore, to say that presence of the P. Ws. Was chance is not correct.
12. Learned counsel submits that the motive has not been controverted and the matter was reported to the police pronto; deceased received as many as seven injuries with sharp-edged weapon; she was brutally murdered up to cutting of her throat. Recovery of `chhuri' with positive report of Chemical Examiner corroborates the prosecution version, therefore, appeal may be dismissed.
13. We have heard the learned counsel for the parties and have also gone through the record.
14. On 31-7-2006 at about 9-00 a.m. Happening of the incident has been reported and F.I.R. Was lodged at 10-15 a.m. On the same day obviously it appears that the matter was reported to the police without any loss of time but at the same time this fact alone cannot be considered to give credibility to the prosecution version as in some times the aggrieved party manages with the police and timings are adjusted conveniently by collaboration.
15. About the motive it has been explored that no independent witness has been produced, the record is absolutely silent that ever Mst. Salma Bibi remonstrated before any person inclusive of her husband Abdul Razzaq brother of the appellant that the appellant had been alluring her illicit purpose or has been fixing his eyes on her with bad intent. Moreso that the appellant has taken up a stance in his statement under section 342, Cr.P.C. That Mst. Salma Bibi was her Bhabhi' he has six children, two young daughters. We have not been able to locate any rumpus prior to the occurrence for this reason had even taken place between the parties. Therefore, we have come to the conclusion that prosecution has miserably failed to prove its motive rather a false motive has been setup.
16. Ocular testimony depends upon statements of P.W.4 Khalil Ahmad and P.W.5 Ghulam Murtaza both of them do not reside near or around the place of occurrence, both are residents of village Kotla distant about 4/5 km from the place of occurrence. The reasons offered by the complainant and P.W.5 that they had been working in the vicinity of Rajanpur, vicinity of incident as a plumber and that on particular day they had come for working and complainant considered it proper before to proceed to work to see her sister along with P.Ws. Does not appeal to reasons and even this fact has not been corroborated either by any evidence of the house of the complainant or the P.W. And also from the vicinity where the incident took place. Presence of these two P.Ws. Has also been found highly doubtful by their non-phyical movement at the place of occurrence to save the deceased or to quell the appellant at the place of occurrence. Another aspect which goes to the root of the case and to extirpate presence of the P.Ws. Is that before their reaching the deceased was under attack. The outer door of the 'Haveli' abutting on the main lane was open, the house of incident locates in the populated vicinity, the deceased being under attack had already received injuries, was yelling and blubbering but no one came to rescue her and it again goes against rational of a prudent man that the appellant left the outer door of the 'Haveli' open at the time of occurrence. None from the P.Ws. Tried to apprehend the deceased especially when none of them had apprehension of his own physical violence and the weapon allegedly used in the commission of crime was not sophisticated one. All these facts make presence of the P.Ws. Highly doubtful at the place of occurrence and in this regard reliance has been placed on Allah Bachaya and another v. The State (PLD 2008 SC 349). In its head note B it has been observed as follows:-- ' ..S.302/34 .............................. Reappraisal of evidence.. Prosecution story was that deceased before attack was riding on bicycle and when accused raised lalkara, then deceased left his bicycle and started running.... Deceased, in ordinary circumstances while sensing danger would have preferred to escape by speeding upon bicycle rather than leaving same.
' S.320/34....Reappraisal of evidence. Deceased and prosecution witnesses were four in number at relevant time.... Prosecution witnesses were closely related to deceased, while one prosecution witness was son of deceased---Accused were two in number and were not armed with fire arm or hatchet but were carrying ordinary dhangs---Had prosecution witnesses been present, then they would have certainly tried to save life of deceased, specially his son (prosecution witness), if present, must have intervened---Advantage of any genuine doubt arising from circumstances of case should be extended to accused as of right and not as concession---Accused was acquitted of charge by giving him benefit of doubt.
' Again in the same legal precedents head note B, C, E, and F highlighted as under:-- "It was rightly observed by this Court in the leave granting order that in ordinary circumstances sensing danger, the deceased would have preferred to escape by speeding up the bicycle rather than leaving it. It is also noteworthy that the deceased and the P.Ws. Were four in number. All the P.Ws. Were closely related to the deceased. One of the P.Ws. Sardar Muhammad was son of the deceased. The accused who were two in number were not armed with any fire arm weapon or hatchet. They were carrying the ordinary dhangs. In that case if the witnesses would have been present they would have certainly tried to save the lives of their near and dear one specially Sardar Muhammad, if present, being son of the deceased must have intervened."
"For all what has been stated above, we are of the considered opinion that presence of the P.Ws. At the time of occurrence was not free from doubt. It is cardinal principle of criminal jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of right and not as concession. Hence, we allow this appeal and set aside the judgments passed by the learned courts below. The appellant is acquitted of all the charges and would be released forthwith if not required in any other criminal case."
' We have also illuminated our view through an illuminative judgment reported in Nadeem alias Nanha alias Billa Sher v. The State (2010. SCMR 949). In its head note A, B and C observed as follows:-- "The complainant P.W.4 and Muhammad Afzaal P.W.5 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. Zulfiqar Ali P.W.6 in whose presence some altercation took place as alleged between the accused and the appellant, which is the alleged motive of committing the murder, is not proved."
"In order to convict an accused for murder the court must be satisfied first that the murder has been committed then it must be satisfied that the accused has committed the murder. The question of sentence demands utmost care on the part of the court dealing with the life and liberties of the accused person".
"On having gone through the medical evidence on record and withholding of the evidence of Irfan Ahmed an eye-witness and not making a statement about the motive by Zulfiqar Ali real son of the deceased and further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is Cardinal Principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."
"For the aforesaid facts and circumstances, the impugned judgment dated 20-5-2008 of the Lahore High Court, Lahore and of Session Court dated 14-12-2002 in Session Case No,38 of 2002 are set aside and the appellant is acquitted of the charge under section 302(b), P.P.C. If not required to be detained any other case, he is directed to be released forthwith."
"It is pertinent to mention here that the ocular testimony of both the P.Ws. Nos.4 and 5 despite lengthy cross-examination remained consistent and unshattered in cross-examination. Moreover, looking at the distance from the place of occurrence and where the P.W. Muhammad Afzaal was standing and P.W. Tanvir Abbas arrived during such occurrence and the distance of residence of P.W.4 Tanvir Abbas from the place of occurrence, it cannot be said that complainant was a chance witness. Apart from it nothing has come on record to show any ulterior motive on the part of complainant or P.W. Muhammad Afzaal for false implication of appellant in the commission of such heinous crime, thereby having the actual culprit at large."
17. In the light of the above discussion presence of the P.Ws. Has been found highly doubtful at the place of occurrence and their testimony is. Thrown out of the consideration. So far as the medical evidence is concerned, it is open and shut that this piece of evidence is corroborative and when the ocular account has been disbelieved by the Court then considering it piddling no comment is made upon it. So far as the recovery of blood-stained chhuri' and its positive report is concerned, it has been considered expendable to dilate upon it being corroborative piece of evidence as the court has delved in concluding and disbelieving the ocular testimony.
18. The dissertation of above discussion is that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt, therefore, instant appeal is allowed.
Consequently, conviction and sentence of the appellant is set aside and he is acquitted of the charge levelled against him by extending benefit of doubt. He is in jail and is directed to be released, in a trice, if is not required in any other case.
19. Resultantly Death sentence awarded to the appellant is NOT CONFIRMED and murder reference sent by the learned trial Court under section 374, Cr.P.C. Is answered in the NEGATIVE.