Sved Shahbaz Ali Rizvi, J:- This judgment shall dispose of Criminal Appeal No.05-J of 2012 titled as Sohaib Mehar v. The State filed by Sohaib Mehar, appellant against his conviction and sentence as well as Murder Reference No.183 of 2011 titled as The State v. Sohaib Mehar transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Sohaib Mehar, appellant being arisen out of the same judgment dated 13.04.2011 passed by the learned Additional Sessions Judge, Okara, in case FIR No.142 dated 05.03.2010, offence under Sections 302 PPC registered at Police Station Saddar, District Okara, whereby the appellant was convicted under section 302(b) PPC and sentenced to death with the direction to pay Rs.100,000/- as compensation to the legal heirs of Javed Iqbal (deceased) under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for six months.
2. The facts uncovered by Mst. Tahira Parveen, complainant (PW-7) in her statement (Ex.PD) on the basis whereof FIR (Ex.PD/2) was recorded, are that she (complainant) is resident of Chak No.23/GD, District Okara and a housewife. Her son Sohaib Mehar (appellant), aged twenty two years, is a student of second year. On the fateful day, i.e. 04.03.2010 at about "Isha" prayer time, Sohaib Mehar (appellant) demanded key of the car from his father Javed Iqbal (deceased), who refused to give the keys and went to cattle shed. Sohaib Mehar (appellant) brought a `churri' and despite impeding by the complainant, killed Javed Iqbal (deceased) by inflicting rhurri' blows. Sohaib Mehr (appellant) fled away while brandishing the `Churri' who was seen by Muhammad Afzal and Muhammad Akram (given up PWs).
3. The appellant was arrested in this case on 09.03.2010 by Jaleel Ahmed, SI/Investigation Officer (PW-11). During physical remand on 12.03.2010, the appellant got recovered 'churn' (P-4) which was taken into possession vide recovery memo (Ex.PE) by the Investigating Officer (PW-11).
4. Learned trial court after observing all the pre-trial codal formalities, charge sheeted the appellant to which he pleaded not guilty and claimed to be tried.
5. The prosecution, in order to prove its case, produced as many as eleven witnesses. The ocular account in this case was furnished by the sole witness namely Mst. Tahira Parveen, complainant (PW-7).
6. Dr. Muhammad Akram (PW-1) on 05.03.2010 at 10:40 a.m, conducted post mortem examination on the dead body of Javed Iqbal (deceased) and found following injuries:- i. An incised wound 5 x 3 cm deep going x chest cavity (stab wound) on right upper chest 8 cm above the right nipple and 9 cm below the right mid clavical. ii. An incised wound 15 x 5 cm deep going into chest (stab wound) on left lateral middle chest 11 cm from left nipple and 19 cm from base of left exilla in mid axxilary line. iii. An incised wound 4 x 2 cm deep going x (stab wound) 2 cm above and parallel to injury No.2. iv. An incised wound 6 x 3 cm deep going in to (stab wound) on left middle back chest, 6 cm below the inferior barder of left scapula 7 cm from midline. v. An incised wound 6 x 2 cm deep going into abdominal cavity (stab wound) on left lower back, 5 cm from midline and 10 cm below the injury No.4.
The Medical Officer (PW-1) was of the following opinion:- "In my opinion the cause of death in this case was excessive haemorrhage, and irreversible shock due to injury to the vital organs, heart, both lungs, liver, caused by injuries No.1,2,4 which were sufficient in ordinary course of nature to cause death. All the injuries were antimortem and were caused by sharp edged weapons.
Time between injury and death immediately and between death and post mortem 12 to 18 hours."
7. hied Ahmed, SI (PW-11) is the Investigation Officer of this case. Saeed Nasir Hussain Mirza, Draftsman (PW-2) prepared scaled site plan (Ex.PB & Ex.PB/1) of the place of occurrence.
Muhammad Tahir Alvi (PW-9) is the witness of recovery of blood stained `churri' (P-4) at the instance of Sohaib Mehar (appellant), whereas rest of the witnesses are formal in nature.
8. The prosecution gave up Muhammad Afzal and Muhammad Akram, being won over and after tendering reports of Chemical Examiner (Ex.PM & Ex.P.N) and Serologist (Ex.PP & Ex.PQ), closed its evidence.
9. Statement of the appellant was recorded u/s 342 Cr.P.C. wherein he negated the allegations and claimed his innocence. In reply to a question as to "Why this case against you and why the Pws have deposed against you", Sohaib Mehar (appellant) replied as under: - "All the PWs are related inter se as well as to the deceased. None of the PWs namely Mohammad Afzal and Mohammad Akram appeared in order to depose against me and to strengthen the prosecution evidence. The complainant was not present at the place of occurrence when the occurrence place as she was in Gujranwala with her brothers and other family members. I demanded my share in the property in response to which, I was expelled from the house and later on when the occurrence took place I was falsely implicated in this case in order to deprive me from my share in the property. I was mentally disturbed man and was under mental stress and regular mental fits were going on to happen to me. It is a blind murder committed by some unknown culprits. None of the Pws was present at the spot. The complainant was informed about the occurrence later on, thereafter, she came from Gujranwal and formulated a false story against me.
I am completely innocent in this case."
10. The appellant neither opted to make statement on oath as his own witnesses in disproof of the allegations levelled against him as provided under Section 340(2) Cr.P.0 nor adduced any evidence in his defence.
11. After conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
12. Learned counsel for the appellant contends that there is delay of about four hours in reporting the matter to the police without any explanation; that the appellant has falsely been implicated in this case; that only Mst. Tahira Parveen, complainant (PW-7) has been examined by the prosecution to prove the ocular account whereas, two important witnesses namely Muhammad Afzal and Muhammad Akram, who allegedly saw the appellant while leaving the place of occurrence with `churn', were given up by the prosecution, therefore, an adverse inference under Article 129(g) of Qanun-e Shahadat Order, 1984, is to be drawn against the prosecution that had the said witnesses been produced, they would have deposed against the prosecution stance; that actually no one was present at the place of occurrence at the relevant time; that the post mortem examination was conducted after about twelve hours of the occurrence which also creates doubts regarding the prosecution story; that the statement of sole eyewitness is pregnant with the material improvements; that the alleged recovery of `churri' (P-4) at the instance of the appellant is planted one; that this appeal may be accepted and the appellant be acquitted of the charges levelled against him.
13. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant and maintains that the appellant is nominated in the FIR with a specific role of causing fatal Churri' blows on the person of his real father; that it is the prerogative of the prosecution to produce as many witnesses as it thinks appropriate and it is the quality of evidence and not the quantity which weighs with the Courts; that the prosecution case is fully corroborated by the medical evidence; that the prosecution case is further corroborated by the recovery of `churri' at the instance of the appellant as well as positive reports of Chemical Examiner and Serologist; that the prosecution has proved its case against the appellant through confidence inspiring evidence beyond the shadow of reasonable doubt; that false implication of the appellant by the real mother, the complainant is not possible; that no motive to the complainant for false implication of the appellant has even been alleged; that the statement of solitary eyewitness is sufficient for conviction of the appellant; that conviction and sentence passed by the learned trial court be maintained and upheld.
14. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and have gone through the record with their able assistance.
15. We have observed that the occurrence of this case took place on 04.032010 at "Isha" prayer time, i.e. about 07:00/08:00 p.m which was reported to the police at 11:50 p.m and the FIR stood recorded at 12:10 a.m. on the night between 04.03.2010 and 05.03.2010, whereas distance between police station and the place of incident, as per relevant column of FIR, is ten kilometres. Similarly, the post mortem examination on the dead body of the deceased was conducted on the next day, i.e. on 05.03.2010 at 10:40 a.m with an unexplained delay of more than fourteen hours after the occurrence, which is generally suggestive of the fact that police papers necessary to be provided to the Medical Officer to start with post mortem examination of the dead body were prepared and finalized with inordinate delay and normally such delay takes place when the police consumes the intervening time in procuring attendance of the prosecution witnesses and in fabrication of prosecution story with regard to an un-witnessed occurrence. In this respect, reference is made to the judgment passed in the case titled Muhammad Riaz v. The State (2009 PCr.LJ 1022 Lahore) wherein, the Hon'ble Division Bench of this Court has observed as under: - "13. ...It is also not found correct that the F.I.R. had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the postmortem examination was conducted at 1-00 p.m. and there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently, otherwise, they have failed to establish their presence at the spot..."(underlining is ours)
Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of Irshad Ahmed versus The State (2011 SCM R 1190), wherein the Hon'ble Supreme Court was pleased to observe as under.- "3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased 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 eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the deadbody conducted..."
Moreover, Mst. Tahira Parveen, complainant (PW-7) during cross examination herself has admitted as under:- "...I made consultation with my brother namely Tahir Alvi, Rehamat Shafique, Mohammad Afzal, Abdul Haq, Zubaid ul Haq, Liaqat Numberdar, and thereafter the case was registered..."
Muhammad Tahir Alvi (PW-9) who admittedly was consulted by Tahira Parveen, complainant (PW- 7), is resident of District Gujranwala situated at a distance of two hundred kilometres as narrated by the complainant (PW-7) herself who after receiving the information reached the place of occurrence. With this background, the above reproduced affirmative answer, to the relevant question, by the complainant is sufficient to shatter the probity of the prosecution story narrated in the crime report (Ex.PD & Ex.PD/2). In this context, another important aspect of the case extremely relevant to mention here is that during his statement under section 342 Cr.P.C, Sohaib Mehar (appellant) has alleged that the complainant, his mother was not present at home on the night of occurrence at the relevant time and that she had gone to Gujranwala which finds corroboration from the following reproduced part of the statement of Muhammad Tahir Alvi (PW-9), real brother of the complainant, which reads as under:- "We were informed about the occurrence of murder Javed Iqbal deceased at about 10:00 p.m at Gujranwala. It is correct that after receiving information of occurrence, I along with my brothers and sisters namely Tahira Parveen came at the place of occurrence."(underlining is ours)
Having observed the above mentioned facts of the case, we are of the opinion that the prosecution has failed to establish the presence of Tahira Parveen, complainant (PW-7) at the crime scene who is the only eyewitness produced by the prosecution to furnish the ocular account of the incident to prove its case against the appellant, her son. However, two witnesses Muhammad Afzal and Muhammad Akram, who allegedly saw the appellant leaving the place of occurrence having `churri' in his hand were given up by the prosecution, being won over. In the peculiar circumstances of this case, wherein the defence has taken the stance that Mst. Tahira Parveen, the complainant (PW-7) was not present at the place of occurrence rather was present in Gujranwala, the above said two persons were the best witnesses who could prove the fact of presence of Mst. Tahira Parveen, complainant (PW-7) at the place of occurrence at the relevant time but they have been withheld by the prosecution for the reasons best known to it. Likewise, the complainant (PW-7) has admitted the presence of her other children, Usman, son and four daughters in the house where and when the occurrence took place but astonishingly those most natural witnesses, nearest to her, have also been withheld for the mysterious reasons not ever explained by the prosecution.
Hence, in our view, the material witnesses have been withheld by the prosecution that has also, in view of Article 129(g) of Qanun-e-Shahadat Order, 1984, invited our inference adverse to the probity of prosecution case. This unexplained and mysterious attitude of the prosecution has led us to believe that had these witnesses been produced before the learned trial court, they would have stated otherwise to the prosecution story narrated by Mst. Tahira Parveen, complainant (PW-7).
Reliance in this respect is placed on the case of Muhammad Rafique and others versus The State and others (2010 SCM R 385) wherein, the Hon'ble Supreme Court of Pakistan, at page 400, was pleased to observe as under: - "33. ...It is well-settled that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129(g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali could have been examined, his evidence would have been unfavourable to the prosecution..."
Our view is further augmented by another judgment passed in the case of Khalid alias Khalidi and 2 others v. The State (2012 SCM R 327).
We have further noticed that Mst. Tahira Parveen, complainant (PW-7) has made material dishonest improvements in her previous statement which were duly got confronted and brought on the record. The relevant portion of her cross examination is reproduced as under: - "....I have recorded my statement that other family members were present in the room of our house confronted with Ex.P.D wherein it is not so recorded. I have recorded in my statement that deceased went to bath room situated in cattle of Haveli for Wazu as the bath of the house was preoccupied.
Confronted with Ex.P.D wherein it is not so recorded. I have recorded in my statement that the accused Sohaib Mehar went to his room and came out with a Chhuri in hand confronted with Ex.P.D wherein it is not so recorded. I have recorded in my statement that accused chased his father and went to Haveli confronted with Ex.P.D wherein it is not so recorded. I have recorded in statement that on seeing the accused with Chhuri I followed him confronted with Ex.P.D wherein it is not so recorded. I have recorded in my statement that accused gave five Chuni blows to the deceased confronted with Ex.P.D wherein it is not recorded. I have recorded in my statement that accused gave three Chhuri blows on front side of chest and left flank and gave two Chhuri blows on the back side of chest of the deceased confronted with Ex.P.D wherein it is not recorded. I have recorded in my statement that I made hue and cry upon which Pws Afzal and Akram alongwith other people attracted to the place of occurrence confronted with Ex.P.D wherein it is not so recorded. I have recorded in my statement that we witnessed the occurrence in the light of electric Bulb confronted with Ex.P.D wherein it is no so recorded. I have recorded in my statement that deceased after receiving the injuries fell down confronted with Ex.P.D wherein it is not so recorded. I have recorded in my statement that we escorted the deceased in the injured condition to the DHQ Hospital Okara. confronted with Ex.P.D wherein it is not so recorded. I have recorded in my stated that the injured succumbed to the injuries on the way to Hospital confronted with Ex.P.D where in it is not so recorded. I have recorded in my statement that accused murdered his father intentionally and deliberately confronted with Ex.P.D wherein it is not so recorded."
In our view, the above mentioned improvements are material and dishonest in nature because of being related to the actual occurrence and mode of incident that renders her testimony further untrustworthy. In this regard, guidance can be respectfully sought from the case of Khalid Javed and another v. The State (2003 SCM R 1419) wherein, the Hon'ble Supreme Court of Pakistan, at page 1438, was pleased to observe as under: - "18. ...In this behalf it may be observed that according to administration of criminal justice a witness who makes glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the F.I.R. if he is complainant or if he is a witness and his statement is recorded under section 161, Cr.P.C. such witness is to be considered to be wholly unreliable witness and it is not advisable to place explicit reliance upon his evidence..."
Similar view was also Taken by the Honble Supreme Court of Pakistan in the Cases of FArman Ahmed v. Muhammad Inayat and others (2007 SCM R 1825), Akhtar Ali and others v. The State (2008 SCM R 6) and Muhammad Rafique and others v. The State and others (2010 SCM R 385).
Besides the supra mentioned infirmities in the prosecution case, we have also observed that the statement of complainant (PW-7), the sole eyewitness produced by the prosecution to furnish the ocular account of the incident is not only pregnant with the dishonest improvements but is also discrepant with the other prosecution evidence as she, in the crime report, has mentioned that deceased went to the Haveli of cattle who was chased by the appellant and she while impeding him also followed him there and witnessed the occurrence. The statement of Jaleel Ahmad, SI/Investigation Officer (PW-11) reflects that the cattle shed was separated from the residential house of the complainant by a wall while the perusal of the scaled site plan (Ex.PB & Ex.PB/1) reveals that point 'IV is a place situated in the door of residential room from where the occurrence was witnessed by the complainant that took place at point "A" which was not possible if there was a partition wall between the two places. Similarly, the statement of complainant (PW-7) is also contradictory to the statement of Saeed Nasir Hussain Mirza, Draftsman (PW-2), the draftsman who during cross examination has maintained as under:- "It is correct that neither the Pws mentioned this fact that deceased went to the bath room of the Haveli in order to get Wazu nor I mentioned the same in Ex.P.B. Similarly, neither he was or the complainant mentioned about the residential room of accused Sohabi Mehar nor I mentioned the same in the called site plan Ex.P.B and Ex.P.B/1. It is correct that the Pws not pointed out about the kitchen of the house nor I mentioned the same in the scaled site plan Ex.P.B and Ex.P.B/1. Haveli of cattle shed is adjacent to the house by the passage through a wall."
These glaring loopholes in the prosecution evidence have affected the credulity of the ocular account furnished by the prosecution. Thus in the circumstances of case in hand, we are of the view that the occurrence of this case was not witnessed by Mst. Tahira Parveen, complainant (PW- 7). Though solitary statement of eyewitness is considered sufficient to convict the accused but only if it is confidence inspiring and of unimpeachable character while we have observed that the testimony of Mst. Tahira Parveen (PW-7) does not carry judicial certainty and circumstantial guarantee hence, is not to be relied upon as is held by the Hon'ble Supreme Court of Pakistan in the case of Basharat v. The State (1996 SCJ 265) at page 270 as under: - "9. ...There is no judicial certainty or circumstantial guarantee about the presence of the eye- witnesses on the spot. On the other hand, there are cogent reasons to doubt that the eye- witnesses were present on the spot and seen the occurrence. So, there is no option but to exclude the ocular evidence from consideration."
As regards the contention raised by the learned Deputy Prosecutor General that false implication of real son by a mother is not probable, we are of the unanimous opinion that conviction cannot be based on the high probabilities and the conjectures which surely cannot take the place of proof. In this regard we have respectfully sought guidance from the judgment passed in case titled Muhammad Luqman v. The State (PLD 1970 SC 10) wherein Hon'ble Supreme Court of Pakistan has been pleased to observe as under:- "With due respect to the learned Judges, it may be said that a finding of guilt against an appellant person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an appellant person which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Superior Courts, will be reduced to a naught."
16. So far as the recovery of 'churri' (P-4) at the instance of Sohaib Mehar (appellant) is concerned; we have noticed that same was effected on 12.03.2010 from the poultry farm of one Abdul Haq Jatt from underneath the 'Para Admittedly, the place from where `chhurii (P-4) was allegedly recovered at the instance of the appellant is neither owned nor possessed by him. The place of recovery of `churi' (P-4) is a place accessible to others as well being a poultry farm. In view of above, we are of the view that it is not safe to rely on the alleged recovery of Chhuri' (P-4). Even otherwise when the direct evidence produced by the prosecution has been disbelieved, it would not be safe to base conviction on corroborative or confirmatory evidence. Reliance in this respect is placed on the case of Muhammad Jamil v. Muhammad Akram and others (2009 SCM R 120) wherein the Hon'ble Supreme Court was pleased to observe as under:- "However, in a case of direct evidence, the other pieces of evidence are used for corroboration or in support of direct evidence. When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence".
17. The stance taken by the appellant during the trial has not been substantiated through evidence hence the same is brushed aside and having guidance from the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Azhar Iqbal v. The State (2013 SCM R 383), we are of the view that the prosecution has failed to prove its case against the appellant beyond shadow of any reasonable doubt while it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained fail to discharge its responsibility of proving the case against the appellant. It is also established law that if there is a single circumstance which creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas, the instant case is stuffed with circumstances which have created serious doubts about the prosecution story. In the case of 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."
18. 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 any reasonable doubt, therefore, we accept Criminal Appeal No.05-J of 2012 filed by Sohaib Mehar (appellant), set aside his conviction and sentence recorded by the learned trial court and acquit him from the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required in any other case.
19.Murder Reference No.183 of 2011 is answered in the NEGATIVE and the sentence of death of Sohaib Mehar (convict) is NOT CONFIRMED.