' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.1393 of 2007, filed by the appellant, Muhammad Riaz, against his conviction and sentence, and Murder Reference No 413 of 2007 (The State v. Muhammad Riaz), sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Riaz convict, as both these matters have arisen out of the same judgment dated 22-9-2007, passed by the learned Sessions Judge, Hafizabad. Muhammad Riaz appellant was tried in case F.I.R. No. 304, dated 10-9-2006, registered at Police Station, Kassoke, District Hafizabad, in respect of offence under section, 302 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 22-9-2007, has convicted and sentenced the appellant as under:- ' Muhammad Riaz son of Muhammad Gulzar.
' Under section 302 (b) of P.P.C. To death for committing the murder of Mst. Hanifan Bibi (deceased). He was directed to pay compensation of Rs.1,00,000 under section 544-A of Cr.P.C. To the legal heirs of the deceased Mst. Hanifan Bibi and in default whereof, he was directed to further undergo 6 months' S.I.
2. Brief facts of the case as given by the complainant Rana Naazir Ali (P.W.6) in his complaint (Ex.PC), on the basis of which the formal F.I.R. (Ex.PC/1) was chalked out, are that he (complainant) was resident of village Pipnakha and was a cultivator by profession. His (complainant's) niece Mst.
Hanifan Bibi (deceased) was married with Mukhtar Ahmad about 15/16 years ago. The wife of the brother of said Mukhtar Ahmad namely Gulzar Ahmad, died and Gulzar Ahmad and his son Riaz (appellant) started living with his (complainant's) niece. Riaz (appellant) was a man of bad character and he used to commit theft due to which Mst. Hanifan Bibi (deceased) and Riaz (appellant) many times quarrelled with each other. Some days prior to the occurrence, Riaz (appellant) committed the theft of wheat from the house of Mst. Hanifan Bibi (deceased) and sold it out, upon which Mst. Hanifan Bibi (deceased) scolded him (appellant) and a quarrel took place between them. Riaz (appellant) gave threats of dire consequences and his (complainant's) niece informed the incident to him (complainant). On 9-9-2006 at evening time, he (complainant) along with Ghulam Mustafa (P.W.7) and Muhammad Jameel (given up P.W.) went to Kassoke from Pipnakha and asked Riaz (appellant) to mend his ways but he (Riaz appellant) extended dire threats and went out of the house.. On 10-9-2006 at about 10:30 a.m, he (complainant) along with Muhammad Jameel (given up P.W.) and Ghulam Mustafa (P..W.7) was sitting in the house with Mst.
Hanifan Bibi (deceased) when Riaz (appellant) armed with pistol .30 bore came there and raised lalkara that he (appellant) would not let off Mst. Hanifan Bibi (deceased) who used to malign him.
Mst. Hanifan Bibi (deceased) out of the fear went inside the room but Riaz (appellant) entered the room and made fire shots with his pistol at Mst. Hanifan Bibi (deceased) which hit her at the back side of head, near right ear, left flank, right side of chest, on the back, right arm and abdomen, and she fell down. They (P.Ws.) tried to apprehend Riaz (appellant) and to save Mst. Hanifan Bibi (deceased) but Riaz (appellant) while brandishing the weapon and threatening that they (P.Ws.) will face the same fate, fled away from the spot with his weapon. They (P.Ws.) attended Mst.
Hanifan Bibi but she succumbed to the injuries at the spot..
3. The appellant Muhammad Riaz was arrested in this case on 30-9-2006 by Zafar lqbal, Inspector, (P.W.12) and as per prosecution case, on the same day during his personal search, pistol 30 bore (P-6) was recovered which was unloaded and four live bullets (P7/1-4) were also recovered vide recovery memo (Ex.PF). After completion of investigation, the challan was prepared and submitted before the Court. The learned trial Court, after observing all legal formalities, as envisaged under the Code of Criminal Procedure, 1898, framed charge against the appellant Muhammad Riaz under section 302 P.P.C., on 14-2-2007, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced twelve witnesses, during the trial. The complainant Naszir Ali (P:W.6) and Ghulam Mustafa (P.W.7) have furnished the ocular account of the prosecution. Muhammad Saeed (P.W.8) was also the recovery witness of pikol .30 bore (P-6) which was taken into possession on the personal search of the appellant vide memo (Ex.PF).
' The medical evidence was furnished by Dr. Tayyaba Farooq, (P.W 9).
' Hafiz Ubaidullah Ameen, S.I, (P.W.11) and Zafar Iqbal, Inspector (P.W.12) were the Investigating Officers of the case. Muhammad Aslam 409/C (P.W.1), Abdul Rasheed 153/C (P.W.2), Masood Ahmed Bhatti, Draftsman (P.W.3), Imran Ahmed (P.W.4), Raaj Muhammad, ASI (P.W.5) and Ghulam Ahmed, Inspector (P.W.10) were the formal witnesses.
' The prosecution has also produced documentary evidence in the shape of memo of possession of last worn clothes of the deceased i.e. Shalwar (P-1), shirt (P2), shameez (P-3), dopatta (P-4)
(Ex.PA), scaled site plan of the place of occurrence (Ex.PB), complaint (Ex.PC), F.I.R. (Ex. PC/ I), memo of possession of blood stained cotton (Ex.PD). Memo of possession of four empty bullets (P-5/ 1-4)
(Ex.PE), memo of possession of pistol .30 bore (P-6) (Ex.PF), rough site plan of the place of recovery without scale (Ex.PF/1), application for post mortem examination of the deceased (Ex.PG), post- mortem examination report of the deceased (Ex.PH), pictorial- diagrams (Ex.PH/1) and (Ex.PH/2), injury statement of the deceased (Ex.PJ), death report (Ex.PK), rough site plan of the place of occurrence (Ex.PL), report of FSL (Ex.PM), report of Chemical Examiner (Ex.PN) report of Serologist (Ex.
PO), and closed its evidence.
5. The statement of appellant under section 342 of Cr.P.C, was recorded. He refuted all the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you", the appellant, replied as under:-- "All the P. Ws. Are closely related to the deceased and chance witnesses. They have not seen the occurrence. Mst. Hanifan Bibi was a woman of bad character and was not having good relations with her husband Mukhtar. She was residing alone and on the fateful day. Mukhtar with his children was in the house of his father in law and at the night tame the murder of Mst. Hanifan Bibi was committed by her husband Mukhtar and brother of the deceased. It was a blind murder and I have been implicated in this case on the behest of complainant to save his family."
' Appellant Muhammad Riaz neither opted to make statement under section 340(2) of Cr.P.C. In disproof of the allegations levelled against him, nor he produced any evidence in his defence.
6. The learned trial Court vide its judgment dated 22-9-2007, found the appellant Muhammad Riaz, guilty and convicted and sentenced him as mentioned and detailed above.
7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the alleged eye-witnesses are the chance witnesses and they have not been able to assign any plausible reason for their presence at the spot at the relevant time; that in the F.I.R. (Ex.PC/1) the complainant Naazir Ali (P.W.6) has stated that he was informed by his niece about the fact of theft of wheat by the appellant and for that purpose he went to her house but while appearing before the learned trial Court as (P.W.6) he (complainant) has not stated any reason for his presence at the spot; that it is on the record during the cross- examination of Naazir Ali (P.W.6) that parents of the deceased were alive and she has five brothers aging between 22 years to 40 years and in all probabilities if she had any complaint or grievance against the appellant then she should have informed her parents or brothers but none of them was informed; that it is in the statement of Ghulam. Mustafa (P.W.7) that they stayed a night in the house of the deceased and on the next morning when they wanted to leave, they were stopped by husband of the deceased namely Mukhtar Ahmad but said Mukhtar Ahmad was not cited as a witness; that it has been admitted by the complainant that deceased had four children and there is nothing on the record to establish that they were not present at home at the relevant time and none of them has been produced as a witness therefore, an inference within the meaning of Article 129(g) of Qanun-eShahadat, 1984 be drawn against the prosecution; that the complainant alleged a specific motive in the F.I.R. But he has not produced any evidence in support thereof; that recovery of pistol and positive 10 report of Forensic Science Laboratory is not material because the Investigating Officer Hafiz Ubaidullah Ameen (P.W.11) has admitted in his cross-examination that he has neither shown the presence and recovery of empties in the relevant column of the inquest report nor in the rough site plan (Ex.PL) or in the scaled site plan (Ex.PB). Further contends that the I.O. Has also admitted that dead body of the deceased was dispatched from the spot at 4-00 p.m, whereas he reached at the place of occurrence at 12-30 p.m and there is no explanation as to why the dead body remained lying on the spot for about 4 hours after arrival of the police; that from all angles the prosecution case is of doubtful nature and the appellant is entitled to the benefit of doubt; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charge.
8. On the other hand, learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant, opposes this appeal on the grounds that it was a promptly lodged F.I.R. As incident in this case took place on 10-9-2006 at 10-30 a.m. And matter was reported to the police at 12-15 p.m. And F.I.R.Was also registered on the same day at 12-15 p.m. Which clearly established the presence of the eye witnesses at the spot; that in the F.I.R. The complainant has given plausible explanation about his presence at the spot and there was no reason with the P.Ws. To depose falsely against the appellant; that the ocular account furnished by Naazir Ali (P.W.6) and Ghulam Mustafa (P.W.7) gets full support from the medical evidence as the deceased received five fire shots and it is also corroborated by the recovery of pistol .30 bore (P-6) and positive report of the Forensic Science Labour ratory; that prosecution has proved its case beyond any shadow of doubt; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor- General for the State assisted by learned counsel for the complainant, and have also gone through the evidence available on the record, with their able assistance.
10. The prosecution case has already been discussed in para No.2 above, however, the gist of prosecution case is that Muhammad Riaz (appellant) who was nephew of the husband of Mst.
Hanifan Bibi (deceased) was living in the house of the deceased and he used to commit theft in the said house and many times quarrel took place between the appellant and Mst. Hanifan Bibi (deceased). A quarrel took place between the appellant and the deceased, few days prior to the occurrence and appellant gave threats of dire consequences to the deceased Mst. Hanifan Bibi who informed the complainant about the said quarrel. On the day of occurrence i.e. 10-9-2006 at about 10-30 a.m, when the complainant Naazir All (P.W.6) along with Ghulam Mustafa (P.W.7) and Muhammad Jameel (given up P.W.) was sitting in the house of Mst. Hanifan Bibi (deceased), Muhammad Riaz (appellant) armed with his pistol came there and made fire shots at the deceased (Mst. Hanifan Bibi) hitting her on different parts of her body and she succumbed to the injuries at the spot.
11. This occurrence as per F.I.R. (Ex.PC/1) took place on 10-9-2006 in the house of Mst. Hanifan Bibi deceased in village Kassoki within the jurisdiction of Police Station Kassoke District Hafizabad. The complainant Naazir Ali (P.W.6) and the other eye-witness Ghulam Mustafa (P.W.7) are admittedly not residents of the village Kassoki where this incident took place. They both are residents of village Pipnakha. The complainant Naazir Ali (P.W.6) has admitted during his cross-examination that he was resident of village Pipnakha and it consumes 5/6 hours to go to village Kassoki. Though in the F.I.R. (Ex.PC/ 1), the complainant Naazir Ali (P.W.6) has assigned a reason for his being present at the spot by stating that he was informed by his niece Mst. Hanifan Bibi (deceased) about the quarrel due to the theft of wheat committed by the appellant therefore, he along with Muhammad Jameel A (given up P.W.) and Ghulam Mustafa (P.W.7) went to the house of his niece but while appearing as P.W.6, the complainant has not stated anything regarding this reason and simply stated that at the time of occurrence he was present at the spot. Similarly, Ghulam Mustafa (P.W.7) is not related to the deceased or the complainant. There was no reason of his visit and stay at the house of the deceased on the preceding night of occurrence. Moreover, the reason assigned by the complainant in the F.I.R. For his presence at the place of occurrence at the relevant time does not appeal to the mind of a prudent man if cross-examination conducted on the complainant Naazir Ali (P.W.6) is taken into consideration. He has admitted in cross-examination that the parents of the deceased were alive at the time of occurrence, besides she had five brothers aging between 22 years to 40 years, so in all probabilities, if the deceased had any grievance or the complaint against the appellant, she should have informed her parents or brothers. There is nothing on the record as to why the complainant was chosen by the deceased to inform the quarrel between her and the appellant when there is no special circumstance in this regard. It is also on the record that the deceased Mst.Hanifan Bibi had four children aging between 4 years to 17/18 years but none of them was cited as a witness in this case and there is nothing on the record to show that they were not present in the house. Although the children of the deceased were minors but they were natural and competent witnesses of the occurrence. There is nothing on the record that the minor children of the deceased were prevented from understanding the questions put to them or from giving rational answers to those questions due to their tender age so they were competent witnesses as envisaged under Article 3 of the Qanun-e-Shahadat, 1984. Another important aspect of this case is that it has been stated in examination in chief by Ghulam Mustafa (P.W.7) that they (P.Ws.) stayed at night in the house of the deceased and on next morning when they wanted to leave, they were stopped by, Mukhtar, husband of the deceased which means Mukhtar was present there but surprisingly said Mukhtar, who is husband of the deceased and was the most natural witness of the occurrence, was not produced by the prosecution therefore, presumption against the prosecution in the circumstances is legitimately drawn under Article 129(g) of the Qann-e-Shahadat, 1984 that had he or any child of the deceased appeared in the witness boxbefore the learned trial Court, they would not have tsupported the prosecution case. We may refer here the case of Khalid alias Khalidi and 2 others versus The State (2012 SCM R 327). Relevant part of the said judgment at page No. 332 is reproduced hereunder for ready reference:-- "The prosecution has not, for the reasons best known to it, produced Mst. Jannat Bibi, an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported tile prosecution version."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Riaz Ahmad v. The State (2010 SCM R 846).
12. There is another aspect of the case. The occurrence .In this case took place on 10-9-2006 at 10- 30 a.m and the dead body of Mst. Hanifan Bibi deceased remained lying at the spot till 4-00 p.m.
The prosecution witness namely Hafiz Ubaidullah Ameer, S.I. (P.W.11) has stated during his cross- examination that he dispatched the dead body of Mst. Hanifan Bibi deceased from the spot at 4- 00 -p.m. We have also noted that post mortem examination on the dead body of Mst. Hanifan Bibi deceased was conducted on 10-9-2006 at 9-30 p.m., i.e. With the delay of 11 hours from the occurrence. The above mentioned delay is suggestive of the fact that the eye witnesses were not present at the spot at the time of occurrence and delay in the post mortem examination of the deceased was used by the prosecution in concocting a false story and procuring fake witnesses of the prosecution. We may refer here the case of 'Irshad Ahmed v. The State' (2011 SCM R 1190) wherein, it has been held that the postmortem examination of the dead body had been conducted with a noticeable delay 'and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the dead body conducted. Similar view was taken by the Hon'ble Supreme Court of Pakistan in the _case of Muhammad Ashraf v. The State' (2012 SCM R 419). Similarly, in the case of "Khalid alias Khalidi. And 2 others v. The State" (2012 SCM R 327), the Hon'ble Supreme Court of Pakistan considered the delay of 10 hours in conducting the .Post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the F.I.R. Was not lodged at the given time.
13. Insofar as motive is concerned, the complainant Naazir Ali (P.W.6) in the F.I.R. (Ex.PC/1) has stated that some days prior to the occurrence, the appellant sold the wheat after stealing from the house of the deceased upon which a quarrel took place between them and the appellant threatened the deceased of dire consequences and his niece Mst. Hanifan Bibi (deceased) had informed him (complainant) about the incident but the prosecution has not produced any witness in this respect who had witnessed the quarrel between the appellant and the deceased. No specific time or date of the alleged theft of wheat which was committed by the appellant was mentioned by the prosecution witnesses. The complainant Naazir Ali (P.W.6) has admitted during, his cross- examination that he never produced any witness regarding the fact of theft committed by the appellant before the police. As mentioned earlier, neither the husband of the deceased nor any one from the children of the deceased were produced to prove the alleged quarrel between the appellant and the deceased. We are, therefore, of the view that the motive as alleged by the prosecution has not been proved in this case.
14. Insofar as the medical evidence furnished by the prosecution is concerned it is by now well- settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the occurrence. Reference in this respect may be made to the case of Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 Supreme Court 53).
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of Mursal Kazmi alias Qamar Shah v. The State (2009 SCM R 1410) and Altaf Hussain v. Fakhar Hussain and another (208 SCMR 1103).
15. Insofar as recovery of pistol (P-6) and positive report of Forensic Science Laboratory are concerned, these are the corroborative pieces of evidence and are relevant only if the primary evidence i.e. Ocular account is confidence-inspiring. Since we have not believed the primary evidence i.e. Ocular account furnished by Na.Azir Qli (P.W.6) and Ghulam Mustafa (P.W.7) therefore, these pieces of evidences are not helpful to the prosecution. In the case of 'Muhammad Afzal alias Abdullah and others v. The State and others' (2009 SCM R 436), the Hon'ble Supreme Court of Pakistan at pages 443 and 444 has held as under:-- "After taking out from consideration the ocular ,evidence, ,the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home- charge against the appellant in the absence of any direct evidence because it is well-settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence howsoever, convincing it may be."
' Similarly in the case of 'Abdul Mateen v. Sahib Khan and others' (PLD 2006 Supreme Court 53S), at page 543, the following dictum was laid down by the Hon'ble Supreme Court of Pakistan:- "It is a settled law that, even if recovery is believed, it is only corroborative. When there is no evidence on record to be relied upon, then there is nothing which can be corroborated by the recovery as law laid down by this Court in Saifitllah's case 1985 SCMR 410."
' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Muhammad Yaqub v. The State' (1971 SCM R 756), and 'Nek Muhammad and another v. The State' (PLD 1995 Supreme Court 516).
16. We have considered all the aspects of this case and have come to this irresistible conclusion that 'the prosecution could not prove its case against the appellant beyond the, shadow of doubt.
It is by now well-settled law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created doubt about the prosecution story.
In 'Tariq Pervez v, The State (1995 SCM R 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-- '5 The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.'
' The' Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCM R 230), at page 236, 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."
17. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept the Criminal Appeal No.1393 of 2007 filed by Muhammad Riaz appellant, set aside his conviction and sentence and acquit him of the charge by extending him the benefit of doubt. He is in custody, he be released forthwith if not required in any other case.
' Murder Reference No. 413 of 2007 is answered in the NEGATIVE and the sentence of death of Muhammad Riaz (convict) is NOT CONFIRMED.