' Shehram Sarwar Ch., J.--Ejaz Hussain (appellant) was tried by the learned Additional Sessions Judge, Alipur District Muzaffargarh in case FIR No, 166 dated 27.05.2007, offence under Section 302, PPC read with Section 34, PPC registered at Police Station Saddar Alipur District Muzaffargarh for the murder of Mst. Shazia Bibi (deceased) sister of the complainant. Vide judgment dated 28.10.2010 passed by the learned Additional Sessions Judge, Alipur, the appellant has been convicted under Section 302(b), PPC and sentenced to death. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No, 198 of 2010 for confirmation or otherwise of Ejaz Hussain, appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. As both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA/1) registered on the statement (Ex.PA) of Gull Muhammad, complainant (PW-2), is that he was a labourer. About 5/6 months earlier, marriage of Mst. Shazia Bibi sister of the complainant was solemnized with Ejaz Hussain (appellant) son of Karim Bakhsh Patafi but often there had been quarrel between sister of the complainant and the appellant on petty matters. They were implored but the appellant did not restrain. On 26.05.2007 at around 2.00 p.m. The complainant was informed by some children that the appellant was beating Mst. Shazia Bibi sister of the complainant and he proceeded to her house. When he (complainant) reached near the house of his sister, he heard hue and cry of his sister. Meanwhile, Hafeez Ullah (PW-3) paternal uncle of the complainant and Hag Nawaz son of Gull Saad reached there. The complainant told them that Ejaz Hussain was beating his sister. The complainant and other PWs entered the house and witnessed that Ejaz Hussain and Riaz Hussain sons of Karim Bakhsh were giving fist blows to the sister of complainant. Ejaz Hussain was catching hold of her from her arms whereas Riaz Hussain was holding a rassi wrapped around her neck. Within their view, both of them (appellant and his brother) told them that because of sustaining electric current, she was raising alarm. The complainant and other PWs attended Mst. Shazia Bibi and buried her in the roori. Riaz Hussain and Ejaz Hussain decamped from there immediately. While the complainant party keeping Mst. Shazia Bibi in the roori, she died and they took her to their house. The heirs of the accused persons beseeched the complainant party not to initiate any proceedings but they did not concede.
' Motive behind the occurrence as alleged in the FIR was that there was an altercation between sister of the complainant and Ejaz Hussain and due to that grudge, both the accused, in consultation with each other, committed her murder by beating and strangulating her with rassa.
3. During trial, Riaz Hussain co-accused of the appellant did not appear and proceedings under Sections 87/88 of the Code of Criminal Procedure were initiated against him. The appellant was summoned by the learned Additional Sessions Judge, Alipur District Muzaffargarh to face the trial.
Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, PPC read with Section 34, PPC was framed against him on 01.08.2007, to which he pleaded not guilty and claimed trial. After the close of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 20.10.2010, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, Ejaz Hussain (appellant) stated as under:-- ' "The case of the prosecution, as setup before this Court is false and fabricated. In fact the murder of my wife Shazia was committed by the complainant Gul-Muhammad and other PWs and in order to save their skin, they have manipulated a story falsely implicating me in this murder case. It is worth-mentioning that I had filed a petition for registration of FIR against the PWs which was dismissed vide order dated 16.9.2009, by the then learned ASJ/Justice of Peace, against that order of dismissal I filed Writ Petition No, 7636/2009. The Hon'ble Lahore High Court, MuRan-Bench vide order dated 13.10.2009, made a direction to the I.O./SHO P/S Sadar Alipur, to bring on record my version and proceed in the matter in accordance with law, but neither my statement was recorded nor the I.0 conducted proceedings in the case in accordance with law and thereby, he violated the directions of Hon'ble Lahore High Court, very glaringly. No independent witness has appeared against me to give evidence. All the PWs examined by the prosecution are having prejudice and interested witnesses and their evidence does not carry any weight."
' The appellant did not opt to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure. However, he produced copy of Writ Petition No, 7636/2009(Ex.DA) alongwith copy of order dated 13.10.2009, of this Court, copy of petition under Section 22-A/22-B, Cr.P.C. Titled Hazoor BAkhsh us. SHO P/S Saddar, Alipur alongwith order dated 21.06.2007 passed by learned Addl. Sessions Judge/Justice of Peace, Alipur (Ex.DB), copy of affidavit of Gull Muhammad (Mark `A') and statements of Hafeez Ullah son of Sher Muhammad, Haq Nawaz son of Gull Muhammad, Saeed Ahmad son of Ghulam Hussain in present case FIR No, 166/2007 recorded before the police (Mark '13', `C' and 'D' as defence evidence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant, in support of his appeal, contends that the appellant has falsely been implicated in this case; that this incident as per FIR, took place at 2.00 p.m. On 26.05.2007 whereas the matter was reported to the police on the night of 27.05.2007 at 3.10 a.m. i.e, after the delay of thirteen hours and ten minutes and the FIR was registered at 3.50 a.m. On 27.05.2007 despite the fact that the distance of police station from the place of occurrence is eight miles; that it was case of the prosecution in the FIR as well as before the learned trial Court that when the complainant (PW-2) and Hafeez Ullah (PW-3) entered the house of appellant, they saw that the appellant was beating sister of complainant while holding her from her arms and Riaz Hussain accused (since P.O.) was strangulating her neck with a rassi and she was raising hue and cry; that it was stated by the complainant in the FIR that both the accused persons told thet that Mst. Shazia Bibi (deceased) received electric shock and the complainant party buried her in the roori but the complainant before the learned trial Court changed his stance by stating that "I had not recorded the Police about the roori. I cannot tell it was whose roori. I do not know that where is that Roori. I do not know that who have buried her in Roori"; that Hafeez Ullah (PW-3) has also stated before the learned trial Court that he does not know whether Mst. Shazia Bibi was buried in roori and that he had stated that she was buried in roori to the 1.O; that the presence of both these witnesses at spot also becomes doubtful from another circumstance because in the FIR as well as before the learned trial Court, it was the case of prosecution that the occurrence took place in the house of Mst. Shazia Bibi and the appellant as well as his brother Riaz Hussain on seeing the complainant (PW-2), Hafeez Ullah (PW-3) and Haq Nawaz (since given up) escaped from the spot but none of them tried to capture the appellant or his co-accused; that had they been present at the spot, they could have easily overpowered the appellant or his co-accused because it was not the case of the prosecution that at the time of incident, the appellant or his co-accused was armed with any fire-arm: that Hazoor Bakhsh father of the complainant had filed a petition under Sections 22-A/22-B, Cr.P.C. Regarding this occurrence against the appellant and others which was dismissed by the learned Addl. Sessions Judge-II, Alipur vide order dated 21.06.2007: that the appellant also filed a petition under Section 22-A/22-B, Cr.P.C. Which was dismissed by the learned Addl. Sessions Judge/Justice of Peace on 16.09.2009 but thereafter, the appellant against that order of dismissal filed a writ petition Bearing No, 7636/2009 before this Court wherein the learned Judge in Chamber vide order dated 13.10.2009 directed the SHO Police Station Alipur to record the statement of the petitioner and then proceed strictly in accordance with law; that the motive behind the occurrence as stated in the FIR was that the spouses (appellant and the deceased) used to quarrel with each other whereas the complainant stated before the learned trial Court that the appellant was in the habit of beating his sister on petty matters but the prosecution has failed to prove the same as the quarrel between the spouses is not unusual in our culture; that the recovery of electric wire. (P.1) allegedly at the instance of the appellant is immaterial as it was an ordinary electric wire and can be obtained from the market and even otherwise, it was alleged in the FIR that Riaz Hussain was holding a rassi wrapped around the neck of the deceased whereas the recovery of electric wire has been planted upon the appellant; that so far as medical evidence is concerned, it was case of the prosecution in the FIR that the appellant and his brother Riaz Hussain (since P.0) were beating Mst. Shazia Bibi (deceased) with fist blows, Ejaz Hussain (appellant) caught hold of the deceased from her arms whereas Riaz Hussain was holding a rassi wrapped around her neck; that Dr. Maryam Batool (PW-5) who conducted post-mortem examination on the dead body of the deceased observed no marks of electric burn, bruise or wound over the dead body and opined that the cause of death is asphyxia, therefore, the prosecution case is not supported by medical evidence to the extent of the appellant; that in fact the deceased was murdered by the complainant and other PWs and the version of the appellant recorded under Section 342, Cr.P.C. Is more probable and convincing and gets support even from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Addl. Prosecutor General, assisted by the complainant, vehemently opposes this appeal on the grounds that the complainant (PW-2) and Hafeez Ullah (PW-3) have no enmity with the appellant or his brother to falsely implicated them in this case; that this incident took place on 26.05.2007 in the house of the appellant in presence of the complainant and other PWs and the appellant as well as his brother Riaz Hussain on seeing the complainant and others escaped from the spot; that Mst. Shazia Bibi died at the spot, the complainant party took her to their house and thereafter, the complainant proceeded to police station and at Hazro Wali Hatti, he met Muneer Hussain Bhutta, S.I. (PW-6) and got recorded his statement (Ex.PA), therefore, there is no delay in reporting the crime to the police; that the complainant in the FIR and before the learned trial Court has reasonably explained his presence at the place of occurrence by stating that some children informed him that Ejaz Hussain was beating his sister and he went to the house of his sister; that likewise Hafeez Ullah (PW-3) has also stated that when he reached near the house of Ejaz Hussain, he heard hue and cry of Mst. Shazia Bibi, Gull Muhammad (complainant) was also standing there and they witnessed the occurrence; that a specific motive has been mentioned in the FIR and explained before the learned trial Court that the appellant was in the habit of beating sister of the complainant on petty matters; that the prosecution case is fully supported by the medical evidence as it was case of the prosecution that the appellant was beating the deceased and Riaz Hussain was strangulating from her neck with a wire and the woman medical officer opined the cause of death as asphyxia; that the prosecution case is further corroborated by the recovery of electric wire (P.1) at the instance of the appellant; that the version of the appellant taken in his statement under Section 342, Cr.P.C. Is nothing but an afterthought story to save his skin; that the prosecution has proved its case to the hilt against the appellant, therefore, the appeal filed by the appellant merits dismissal.
6. We have heard arguments of learned counsel for the appellant as well as learned Addl.
Prosecutor General for the State, assisted by the complainant, to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
7. Admittedly, it is a case of two versions. One set out by the prosecution in the FIR (Ex.PA/1) and brought on the record through the statements of prosecution witnesses namely Gull Muhammad, complainant (PW-2) and Hafeez Ullah (PW-2) and the second taken by Ejaz Hussain, appellant in his statement recorded under Section 342 Code of Criminal Procedure and put to prosecution witnesses. In such like situation, the Court is required to first analyze the prosecution version in order to ascertain its truthfulness or otherwise. In this respect, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan passed in the case reported as "Ashiq Hussain vs. State"
(PLD 1994 SC 879) wherein, at Page 883, the Hon'ble Supreme Court has been pleased to observe as under:- "9. ...The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under Section 342, Cr.P.C., statement under Section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under Section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under Section 342, Cr.P.C.
Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counterversions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly'."
' The above view of the learned Apex Court of the country has been reiterated in another judgment reported as "Amin Ali and another vs. The State" (2011 SCM R 323), therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will first, examine the case of the prosecution.
8. The case of the prosecution has been discussed in detail in Para 2 above. The gist of the same is that the complainant was a labourer. About 5/6 months earlier, marriage of Mst. Shazia Bibi sister of the complainant was solemnized with Ejaz Hussain (appellant) but often there had been an altercation between sister of the complainant and the appellant on petty matters. They were implored but the appellant did not restrain. On 26.05.2007 at around 2.00 p.m. The complainant was informed by some children that the appellant was heating Mst. Shazia Bibi sister of the complainant and he proceeded to her house. When he (complainant) reached near the house of his sister, he heard hue and cry of his sister. Meanwhile, Hafeez Ullah (PW-3) paternal uncle of the complainant and Haq Nawaz reached there. The complainant told them that Ejaz Hussain is beating his sister. The complainant and other PWs entered the house and witnessed that Ejaz Hussain and Riaz Hussain were giving fist blows to the sister of complainant. Ejaz Hussain was catching hold of her from arms whereas Riaz Hussain was holding a rassi wrapped around her neck. The appellant and his brother told them that because of sustaining electric current, she is raising alarm. The complainant and other PWs attended Mst. Shazia Bibi and buried her in the roori.
Riaz Hussain and Ejaz Hussain decamped from there immediately. While the complainant party keeping Mst. Shazia Bibi in the roori, she died and they took her to their house.
9. For the following reasons, the statement of complainant cannot be relied upon:--
(a) This incident wherein Mst. Shazia Bibi lost her life, as per FIR (Ex.PA/1), took place at 2.00 p.m. On 26.05.2007 whereas the matter was reported to the police on night of 27.05.2007 at 3.10 a.m. i.e, after the delay of thirteen hours and ten minutes and the formal FIR (Ex.PA) was registered at 3.50 a.m. On 27.05.2007. The distance between the police station and the place of occurrence is eight miles. It is case of the complainant in the FIR and before the learned trial Court that when they attended Mst. Shazia Bibi (deceased), she died and they took her to their house. No reason has been assigned by the complainant before the learned trial Court for this inordinate delay in reporting the crime to the police and he (complainant) simply stated in the FIR that the heirs of the accused persons requested them not to initiate any proceedings but they did not concede, therefore, this delay in lodging the FIR casts doubt on the veracity of prosecution story.
(b) It was case of the prosecution in the FIR as well as before the learned trial Court that when the complainant (PW-2) and Hafeez Ullah (PW-3) entered the house of appellant, they saw that the appellant was beating the sister of the complainant by holding her from arms and Riaz Hussain co-accused was strangulating from her neck with a wire and she was raising hue and cry. It was stated by the complainant in the FIR that both the accused persons told them that Mst. Shazia Bibi (deceased) received electric current and the complainant party buried her in the roori but the complainant changed his stance before the learned trial Court by stating that "I had not recorded the Police about the rorri. I cannot tell it was whose rorri. I do not know that where is that Rorri. I do not know that who have buried her in Rorri". Hafeez Ullah (PW-3) has also stated before the learned trial Court that he does not know whether Mst. Shazia was buried in roori and admitted that he had stated before the Investigating Officer that she was buried in roori. These divergent statements of both the witnesses of ocular account make their presence at the spot doubtful. The presence of both these witnesses at the place of occurrence also becomes doubtful from another circumstance because in the FIR as well as before the learned trial Court, it was the case of prosecution that the occurrence took place in the house of Mst. Shazia Bibi and the appellant and his brother Riaz Hussain on seeing the complainant (PW-2), Hafeez Ullah (PW-3) and Haq Nawaz son of Gull Saad escaped from the spot but none of them tried to capture the appellant or his co- accused. Had they been present at the spot, they could have easily overpowered the appellant or his co-accused because it was not the case of the prosecution that at the time of incident, the appellant or his co-accused was armed with any fire-arm.
(c) So far as motive behind the occurrence is concerned, it was stated in the FIR that often there had been an altercation between sister of the complainant and Ejaz Hussain (appellant) whereas before the learned trial Court, the complainant stated that the appellant was in the habit of beating his sister on petty matters. Quarrel between the spouses is not unusual in our culture, therefore, there is no need to discuss the motive any further.
(d) It was case of the prosecution in the FIR that the appellant and his co-accused Riaz Hussain were beating Mst. Shazia Bibi (deceased) with fist blows; Ejaz Hussain (appellant) caught hold of her from arms whereas Riaz Hussain was holding a rassi wrapped around her neck. The allegation against the appellant is that of giving fist blows on the chest of deceased. Dr. Maryam Batool (PW5) conducted post-mortem examination on the dead body of the deceased but she did not observe any marks of electric burn, bruise or wound over her dead body and opined that the cause of death is asphyxia, therefore, we are of the view that the prosecution case is not supported by medical evidence to the extent of the appellant.
(e) It was alleged in the FIR that Riaz Hussain was holding a rassi wrapped around the neck of the deceased whereas the recovery of electric wire (P.1) has allegedly been effected at the appellant.
The same is immaterial as it was an ordinary electric wire and can be purchased from the open market.
(f) There is another aspect of this case. Hazoor Bakhsh father of the complainant had filed a petition under Sections 22-A/22-B, Cr.P.C. Regarding this occurrence against the appellant and others which was dismissed by the learned Addl. Sessions Judge-II, Alipur vide order dated 21.06.2007. Subsequently, the appellant filed a petition under Sections 22-A/22-B, Cr.P.C. Which too was dismissed by the learned Addl. Sessions Judge/Justice of Peace on 16.09.2009. The appellant, against that order of dismissal, filed a writ petition Bearing No, 7636/2009 before this Court wherein the learned Judge in Chamber vide order dated 13.10.2009 directed the SHO Police Station Alipur to record the statement of the petitioner and then proceed strictly in accordance with law.
' Because of the above mentioned reasons, the prosecution story is of doubtful nature.
10. Now we take up the version of Ejaz Hussain (appellant), which was taken by him in his statement recorded under Section 342 of Cr.P.C., mentioned in Para 3 above. Since we have already concluded that the prosecution case is doubtful in nature, so there is no need to discuss version of the appellant, which is otherwise exculpatory in nature.
11. Sequel of the above discussion is that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to the benefit of doubt not as a matter of grace but as of right. In "Ayub Masih versus The State" (PLD 2002 SC 1048), at Page 1056 the Hon'ble Apex Court 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."
12. For the foregoing reasons, Criminal Appeal No, 1113 of 2010 filed by Ejaz Hussain (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 28.10.2010 passed by the learned Additional Sessions Judge, Alipur District Muzaffargarh are set aside and the appellant is acquitted of the charge of murder of Mst. Shazia Bibi (deceased) while extending him benefit of doubt. Ejaz Hussain, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
13. Before parting with this judgment, it is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of absconding co- accused of the appellant namely Riaz Hussain.
14. Murder Reference No, 198 of 2010 is answered in the NEGATIVE and the sentence of death awarded to Ejaz Hussain (convict) is Not Confirmed.