' QAZI MUHAMMAD AMIN AHMED, J.--Rasheed Ahmad, hereinafter referred to as the deceased, was fatally stabbed on 6-2-2005 at 4:00 a.m. Inside his confectionary shop situated in B-Block at a distance of seven furlongs from Police Station City Dera Ghazi Khan; the incident was reported by his brother Saeed Ahmad (P.W6) through statement Exh. PF recorded at 5:15 a.m. In DHQ Hospital Dera Ghazi Khan by Ghulam Yasin, SI (P .W .10). Muhammad Arif, hereinafter referred to as the appellant, is nominated as accused who is assigned solitary Churri blow to the deceased which according to Dr. Mehmood Ahmad (P.W.1) was a stab wound 4 cm x 2.5 c.m. On front of upper part of abdomen at the middle going deep into abdominal cavity. It is prosecution's case that appellant was an employee at the shop and fired due to misconduct who visited the shop preceding evening when shunted away with slaps by the deceased; the appellant committed the crime to avenge this insult.
' Besides the complainant Nisar Ahmad and Shakeel Ahmad, two other brothers witnessed the occurrence. It is complainant's case that all of them were busy in cleansing the shop when the appellant assaulted the deceased.
2. During spot inspection, the Investigating Officer secured bloodstained dust from inside the shop which was made into a sealed parcel; according to forensic reports (Exh.PL & Exh.PM), the dust was found stained with blood of human origin. The appellant was arrested on'8-2-2005 and pursuant to a disclosure led to the recovery of bloodstained Churri P-5, made into a sealed parcel; P-5 was also found stained with blood of human origin according to the forensic reports referred to above.
' After conclusion of investigation, the appellant was sent to face trial where he was indicted on 3- 6-2005 when he denied the charge and claimed trial.
' Prosecution in order to bring home charge against the appellant produced as many as ten witnesses The appellant confronted with prosecution evidence made a detailed statement under Section 342, Cr.P.C; the bottom line of, position taken by him is that the deceased wanted to have carnal knowledge with him against the order of nature and he stabbed him while resisting his nefariou's attempt.
3. Upon conclusion of the trial, the learned Sessions Judge Dera Ghazi Khan vide impugned judgment dated 5-8-2005 proceeded to convict the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life with compensation of Rs,100,000 to the legal heirs or to undergo three years in default of payment thereof with benefit of Section 382-B, Cr.P.C. Which is being challenged through Crl. Appeal No,595 of 2005. Saeed Ahmad complainant P.W.6) is seeking enhancement of sentence through Crl. Revision No,359 of 2005; both are being decided through this single judgment.
4. Learned counsel for the appellant contends that prosecution has not been able to prove its case beyond a shadow of doubt as presence of witnesses at the relevant time at the spot is far from being natural and probable; that explanation given by the appellant sounds more plausible and his case is covered by the exception provided under Section 100 of the Pakistan Penal Code.
5. Contrarily, the impugned judgment is defended by the learned D.P.G. Assisted by the learned counsel for the complainant on the ground that it is a case of single accused with single blow witnessed by the P.Ws. Whose presence at the spot cannot be disputed as unnatural or improbable; that incident was reported with a remarkable promptitude and postmortem examination was conducted in a quick succession thereto which excluded every possibility of deliberation or consultation and that appellant himself admitted to have fatally stabbed the deceased; recovery of bloodstained earth and positive forensic reports have also been referred to by the learned Law Officer; enhancement of sentence has also been prayed for.
6. Heard. Record perused.
7. At first sight, there are some remarkable features of the prosecution case, matter is reported with promptitude; there is no delay in holding of autopsy; the appellant was arrested and bloodstained weapon was also recovered pursuant to a disclosure made by him. Place of occurrence is a confectionary shop jointly owned by the deceased and his real brothers. The ocular account is squarely corroborated by medical evidence. The appellant has also taken a plea admitting his presence at the venue and participation in the occurrence albeit with a different story.
Nonetheless, on a closer scrutiny of the prosecution case, it appears that all the planks supporting the charge though meticulously arranged fail to qualify the test of probability. It is not a well- articulated narrative rendition supported by flawless investigation which alone can drive home charge against an accused facing the gallows unless the prosecution depositions sound plausible and probable in the given facts and circumstances of the case, synchronizing the narrated events within the ambit of natural course of human conduct. It is intriguingly surprising as to what prompted the deceased and three brothers to undertake a cleansing venture at 4:00 a.m. On 6th of February during the dark chilly hours; their business is quite an enterprise and normally such pursuits are assigned to the employees; Shakil Ahmad (P.W.7) has admitted in his cross- examination that about 10 to 15 persons are employed with them as workers; the odd and inconvenient timing coupled with improbable and unusual conduct of the complainant and P.Ws.
Render their presence at the spot rather doubtful. Yet another reason to suspect their presence is their failure to apprehend the appellant who was a lone assailant with a weapon not so dreadful to keep them at a bay; there is yet another startling disclosure by Shakil Ahmad (P.W.7) which is reproduced as under:- "During the fateful night we did not go to our house. At the time of occurrence and during that night we four brothers remained in the shop. The workers used to leave the work at different time."
Such conduct is not expected from financially well-to-do entrepreneurs. For the above reasons, when presence of the eye-witnesses is found improbable and unnatural, investigative precisions alone cannot sustain the charge.
8. Adverting to the plea taken by the appellant in his examination under section 342 Cr.P.C., the prosecution cannot take any benefit therefrom for the reason that it is for the prosecution in the first place to establish charge against an accused and it cannot derive any strength from the position taken by the accused if otherwise it is failing to drive home the charge. Reliance is placed on the case of Azhar Iqbal v. The State (2013 SCM R 383), relevant portion whereof is advantageously below:-- "The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. Is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520)
Muhammad Tashfin and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and others v. The State (PLD 2011 SC 796).
Since the presence of the witnesses at the spot has not been found free from doubt, therefore, admission of the appellant cannot be bifurcated to extend support to a crumbling charge and in case his statement is accepted in totality which is required in law to be so accepted then his case is covered by the exception enumerated in Section 100 of the Pakistan Penal Code.
9. For the above reasons, while extending benefit of the doubt to the appellant, Crl. Appeal No,595 of 2005 is allowed, impugned judgment dated 5-8-2005 is set-aside. The appellant is acquitted from the charge. He is on bail, his surety stands discharged.
10. As a natural corollary, Crl. Revision No,359 of 2005 is dismissed.