MANZOOR AHMAD MALIK, C.J.---Mumtaz Ahmad (appellant) along with his co-accused namely Akbar, Muhammad Zaman and Rasheed Ahmad was tried by the learned Addl. Sessions Judge, Arifwala in case FIR No,198 dated 04.08.2011, offence under Section 302 P.P.C. Read with Section 34, P.P.C., registered at Police Station Ahmad Yar District Pakpattan Sharif for the murder of Waziran Bibi, mother of the complainant. Vide judgment dated 20.06.2013, passed by the learned Addl.
Sessions Judge, Arif Wala, the appellant was convicted under Section 302(b), P.P.C. And sentenced to imprisonment for life. He was also directed to pay compensation of Rs,2,00,000/- (rupees .Two lakh only) to the legal heirs of the deceased and in default whereof, to further undergo six months'
S.I.
2. It is pertinent to mention here that through the same judgment learned trial court acquitted Akbar, Muhammad Zaman and Rasheed Ahmad co-accused of -the appellant while extending them benefit of doubt and no appeal against their acquittal was filed either by the State or by the complainant.
3. The facts in brief, as contained in the FIR (Ex.PA/1) registered on the statement (Ex.PA) of Muhammad Javed, complainant (PW.1) are that he (complainant) was an agriculturist. There was a dispute of zina between Waziran Bibi mother of the complainant and Rasheed Ahmad (accused since acquitted). On 03.08.2011 a panchyat was convened in connection with the said dispute in which Mumtaz (appellant), Rasheed Ahmad, Muhammad Zaman and Akbar (accused since acquitted) were present. Mumtaz Ahmad father of the complainant effected compromise with Rasheed Ahmad etc but Waziran Bibi mother of the complainant did not agree with the said settlement. On the night of occurrence i.e, 03.08.2011 complainant's mother Waziran Bibi and father Mumtaz Ahmad went for sleep in an open place nearby their house belonging to one Muhammad Ameer. Complainant along with his sisters and brothers slept in the house. Mumtaz Ahmad (appellant) Rasheed Ahmad, Zaman and Akbar started beating Waziran Bibi. Rasheed Ahmad pressed the throat of Waziran Bibi. On hue and cry, complainant along with Niaz Ahmad (PW since given up) and Khan Muhammad (PW.2) came at the spot. The assailants fled away from the spot.
Mst. Waziran Bibi had died. Motive behind the occurrence was that Mumtaz Ahmad father of the complainant effected compromise with Rasheed Ahmad etc whereas Waziran Bibi did not agree with the said compromise and upon the said grudge the assailants with their common intention had committed the murder of Waziran Bibi.
4. The appellant along with his co-accused namely Akbar, Muhammad Zaman, and Rasheed Ahmad was indicted by the learned trial court under Section 302 read with Section 34, P.P.C. And after conclusion of the trial, Mumtaz Ahmad (appellant) was convicted and sentenced as mentioned in para 1 supra whereas Akbar, Muhammad Zaman and Rasheed Ahmad were acquitted by the learned trial Court. Hence this appeal.
5. Learned counsel for the appellant, in support of this appeal, contends that Mumtaz Ahmad (appellant) has falsely been implicated in this case; that there was absolutely no evidence against the appellant which could justify his conviction by the trial Court; that no specific time for the alleged crime has been mentioned in the FIR; that the incident allegedly took place on the intervening night of 3rd and 4th August, 2011 and the matter, as per record, was reported to the police on 04.08.2011 at 9:00 a.m. Whereas the postmortem examination on the dead-body of Waziran Bibi (deceased) was conducted on the same day at 1:30 p.m. And there is no satisfactory explanation for this delay; that both the witnesses of ocular account i.e, Muhammad Javed complainant (PW.1) and Khan Muhammad (PW.2) had not witnessed the occurrence; that complainant has stated during the course of cross-examination that the place of occurrence was situated at the distance of four kanals from his house, whereas, there was a distance of 6/7 acres between the house of complainant (PW.1) and Khan Muhammad (PW.2) and as such presence of both these witnesses at the spot at the relevant time is highly improbable; that in the FIR there was only general role of beating against Mumtaz Ahmad (appellant) and his acquitted co-accused namely Rasheed Ahmad, Zaman and Akbar whereas the allegation of pressing the throat of Mst.
Waziran Bibi was against Rasheed Ahmad but while appearing before the learned trial court both the witnesses of ocular account namely Muhammad Javed complainant (PW.1) and Khan Muhammad (PW.2) did not assign any role qua beating Waziran Bibi or pressing her throat to Mumtaz Ahmad (appellant). Learned counsel further contends that Mumtaz Ahmad (appellant) was convicted by the learned trial Court merely on the basis of police investigation which is not permissible under the law; that there is a contradiction between the ocular account and the medical evidence because in the FIR it was the case of prosecution that firstly, Mumtaz Ahmad (appellant) along with his acquitted co-accused gave beating to Waziran Bibi and thereafter Rasheed Ahmad pressed her throat but Dr. Zahida Irshad (PW.6) who medically examined Waziran Bibi did not observe any marks of violence on the dead-body of Waziran Bibi (deceased) except crescentic abrasions (finger nail mark) on both sides of neck and opined that death in this case occurred due to asphyxia; that the prosecution evidence which has been disbelieved to the extent of Rasheed Ahmad, Muhammad Zaman and Akbar (co-accused of the appellant since acquitted) cannot be believed against the appellant without there being any independent and strong corroboration which is very much lacking in this case; that in the FIR it was the case of complainant that Mumtaz Ahmad (appellant) along with his acquitted co-accused namely Rasheed Ahmad, Akbar and Muhammad Zaman started beating Waziran Bibi and subsequently Rasheed Ahmed pressed her throat but while appearing before the learned trial court Muhammad Javed complainant (PW.1) changed/improved his version by stating that Muhammad Zaman and Akbar (accused since acquitted) caught hold of Mst. Waziran Bibi from her arms and Rasheed Ahmad pressed her throat whereas Khan Muhammad (PW.2), the other witness of ocular account, stated in his examination-in-chief that on the alarm of Javed complainant he reached the spot and saw that Rasheed Ahmad was strangulating the deceased whereas Zaman and Akbar were holding the legs and arms of the deceased; that complainant (PW.1) admitted during his cross-examination that he also filed a private complaint qua the same incident which subsequently was dismissed in default and in the said private complaint he (complainant) got recorded the fact that at the time of occurrence Mumtaz Ahmad (appellant) was raising lalkara to the effect that Mst. Waziran Bibi be murdered for not effecting compromise; that motive as alleged in the FIR was to the effect that there was a dispute of zina between Rasheed Ahmad and Waziran Bibi and Mumtaz Ahmad (appellant) effected compromise with Rasheed Ahmad etc whereas Waziran Bibi did not agree with the said settlement and upon the said grudge the assailants with their common intention committed her murder but while appearing before the learned trial court complainant (PW.1) improved his version qna the motive by stating that Waziran Bibi got registered a case FIR No,450/2011 under Section 376, P.P.C., at Police Station Qabula Sharif against Rasheed Ahmad accused who (Rasheed Ahmad) was pressurizing Waziran Bibi (deceased) for compromise in the said case but Waziran Bibi refused to do so and due to this grudge all the accused persons committed her murder; that Muhammad Javed complainant (PW.1) during his cross-examination stated that it is correct that case FIR No,450/2011, under Section 376, P.P.C., registered at Police Station Qabula Sharif at the instance of his mother Mst. Waziran Bibi was cancelled and as such when the case registered against Rasheed Ahmad had already been cancelled then there was no occasion for the appellant or his acquitted co-accused to compel Mst. Waziran Bibi for compromise; that besides the appellant motive was also attributed against Rasheed Ahmad, Muhammad Zaman and Akbar but all these accused persons have been acquitted by the learned trial court; that abscondance of the appellant has not been proved in accordance with law because the person/PW who executed the warrants and proclamation has not been produced before the learned trial court and even otherwise abscondance is merely a Corroborative piece of evidence and relevant only if the primary evidence i.e, ocular account inspires confidence which is not the situation in this case; that nothing was recovered at the instance of appellant during the course of investigation; 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. Learned counsel for the appellant has placed reliance on "Muhammad Ahmad (Mahmood Ahmed) and another v. The State" (2010 SCM R 660).
6. Despite issuance of notices vide orders dated 15.05.2015 and 07.07.2015 none has appeared on behalf of the complainant, therefore, I am proceeding with the matter after hearing the arguments of learned Deputy District Public Prosecutor.
7. Learned Deputy District Public Prosecutor vehemently opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the matter to the police; that no adverse inference can be drawn against the prosecution because of delay in the postmortem examination; that presence of both the witnesses of ocular account namely Muhammad Javed complainant (PW.1) and Khan Muhammad (PW.2) at the spot at the relevant time is quite natural and probable; that incident took place near the house of the complainant whereas Khan Muhammad (PW.2) has given a plausible reason for his presence at the spot at the relevant time by-stating that he along with Niaz Ahmad (PW since given up) were irrigating their land at the time of incident; that Mumtaz Ahmad (appellant) cannot get any benefit from the acquittal of his co-accused namely Rasheed Ahmad, Muhammad Zaman and Akbar because during the course of second investigation conducted by, RIB it was concluded that it was only Mumtaz Ahmad (appellant) who had committed the murder of Waziran Bibi by strangulation; that ocular account is fully supported by medical evidence to the extent of appellant; that absconder of the appellant has been proved in accordance with law; that motive has also been proved against the appellant; that the prosecution has fully proved its case against the appellant beyond any shadow of doubt and there is no merit in this appeal.
8. I have heard learned counsel for the appellant as well as the learned Deputy District Public Prosecutor for the State at a considerable length and have also gone through the record with their able assistance.
9. This unfortunate incident, wherein Waziran Bibi mother of the complainant lost her, life, as per FIR (Exh.PA/1), took place on the intervening night of 3rd and 4th August, 2011 in the area of mouza Belli Kalan situated within the jurisdiction of Police Station Ahmad Yar District Pakpattan Sharif. In the relevant column of 'date and time of occurrence' no exact time for the alleged, crime has been mentioned therein except the words Complainant (PW.1) during the course of his cross- examination stated that the alleged occurrence of instant case was of midnight (between 3-4 a.m), whereas, Khan Muhammad (PW.2) the other witness of ocular account stated during his cross-examination that he reached at the place of occurrence after 12 (night) and saw accused persons, beating Mst. Waziran Bibi. The matter was reported to the Police through the statement (Exh.PA) of Muhammad Javed complainant (PW.1) on 04.08.2011 at 9:00 a.m. Whereas, the distance between the place of occurrence and the police station was just about eight kilometers.If the version of the complainant (PW.1) that the occurrence took place between 3-4 a.m. Is admitted as correct even then there was a delay of about five hours in reporting the matter to the police and there is no satisfactory explanation for this delay in reporting the matter to the police.
' Therefore, I hold that this in ordinate delay in reporting the matter to the police casts serious doubts regarding the veracity of the prosecution story.
10. Ocular account in this case was furnished by Muhammad Javed complainant (PW.1) and Khan Muhammad (PW.2). Admittedly, the occurrence took place outside of the house of the complainant in an open plot belonging to one Muhammad Ameer which as per complainant (PW.1) was at a distance of four acres away from his house, whereas, there was a distance of 6/7 acres between the house of complainant (PW.1) and Khan Muhammad (PW.2). Complainant (PW.1) has not assigned any plausible reason for his presence at the spot at the relevant time. Similarly the reason assigned by Khan Muhammad (PW.2), the other witness of ocular account, which was to the effect that he was irrigating his land B at the odd hours of night is also not plausible and does not appeal to a prudent mind. Therefore, presence of both the witnesses of the ocular account at the spot, at the relevant time is doubtful.
11. In the FIR it was the case of prosecution that firstly Mumtaz Ahmad (appellant) along with his acquitted co-accused namely Akbar, Muhammad Zaman and Rasheed Ahmad gave beating to Waziran Bibi and thereafter Rasheed Ahmad pressed her throat but Dr Zahida Irshad (PW.6) who medically examined Waziran Bibi did not observe any marks of violence on the dead-body of Waziran Bibi (deceased) except crescent abrasions (finger nail mark) on both sides of neck and according to the opinion of doctor the cause of death in this case was asphyxia and allegation of pressing throat of Waziran Bibi (deceased) as per FIR (Exh.PA/1) was against kasheed Ahmad who has been acquitted by the learned trial court. Therefore, the medical evidence does not advance the prosecution case.
12. Motive as alleged in the FIR was to the effect that there was dispute of zina between Rasheed Ahmad and Waziran Bibi and Mumtaz Ahmad (appellant) effected compromise with Rasheed Ahmad etc. Whereas Waziran Bibi did not agree with the said settlement and upon the said grudge the assailants with their common intention commuted her murder but while appearing before the learned trial court complainant (PW.1) qua the motive stated as under:-- ' "The motive behind this occurrence is that my deceased mother got registered a case FIR No,450/11 under section 376, P.P.C. P.S. Qabula Sharif against Rasheed Ahmad accused and Rasheed Ahmad accused was pressurizing my mother to compromise in the above mentioned case but my mother refused to do so, due to this grudge all the accused persons committed the murder of my mother Waziran Bibi."
' Complainant (PW.1) during the course of his cross-examination stated as under:- ... It is correct that case FIR No,450/11 under section 376, P.P.C. Registered at P.S. Qabula Sharif at the instance of my mother Mst. Waziran Bibi was cancelled..."
' There was no occasion for Mumtaz Ahmad (appellant) and his acquitted co-accused for compelling Mst. Waziran Bibi for compromise when the case registered against Rasheed Ahmad had already been cancelled. Moreover, the motive was mainly against Rasheed Ahmad (accused since acquitted) against whom the case was registered but he has been acquitted by the learned trial Court. Therefore, I hold that the prosecution has not been able to substantiate the motive against the appellant.
13. As far as appellant's absconder is concerned, the same is not of much help to the prosecution because the persons/PWs who allegedly executed the warrants and proclamation to procure the attendance of E appellant have not been produced before the learned trial Court. Moreover, the evidence of absconder was not put to the appellant while recording his statement under Section 342, Code of Criminal Procedure. It is well settled by now that a piece of evidence not put to the accused while examining him under Section 342, Code of Criminal Procedure, cannot be relied for recording/maintaining his conviction. Even otherwise the absconder is merely a corroborative/supportive piece of evidence G and relevant only when the primary evidence inspires confidence but the situation is otherwise in this case.
14. There is another aspect of the case. Three co-accused namely Rasheed Ahmad Muhammad.
Zaman and Akbar were also implicated along with the appellant out of whom, as per FIR, allegation against Muhammad Zaman and Akbar was to the that they along with Rasheed Ahmad and Mumtaz Ahmad (appellant) gave beating to Waziran Bibi and before the learned trial court they (Muhammad Zaman and Akbar) were saddled with the role of catching hold of Waziran Bibi by her arms and legs. Similarly, in the FIR as well as before the learned trial Court, there was allegation against Rasheed Ahmad that he pressed the throat of Waziran Bibi. They all were tried along with the appellant but acquitted by the learned trial court and no appeal against their acquittal was filed. The case of the appellant is thus on much better footings than that of three co-accused who were acquitted by the learned trial Court because while appearing before the learned trial Court both the witnesses of ocular account namely Muhammad Javed complainant (PW.1) and Khan Muhammad (PW.2) did not assign any role of causing the death of F Waziran Bibi to the appellant and in the FIR there was only general role of beating Mst. Waziran Bibi against the appellant.
Therefore, the prosecution evidence which has been disbelieved to the extent of acquitted co- accused of the appellant cannot be used against him for maintaining his conviction on a capital charge without there being any independent and strong corroboration, which is very much lacking in this case. I am mindful of the fact that the principle of falsus in uno falsus in omnibus is not applicable in criminal cases and for the safe administration of justice the courts are required to sift grain from the chaff but viewing from all angles there is only chaff and chaff in this case and not a grain to sift, as no corroboration can be sought from the evidence of motive and the alleged absconder of the appellant because' of the reasons recorded in paras 12 and 13 above. Therefore, the prosecution case to the extent of the appellant is J doubtful in nature.
15. The only distinguishing feature of the appellants case is the opinion of the Police. It was stressed hard by learned Deputy District Public Prosecutor that the appellant was found involved by the Police. I am of the view that the said argument of the learned DDPP is misconceived. It is by now well settled law that opinion of police qua innocence or guilt of an accused is inadmissible in evidence, therefore, the appellant cannot be convicted merely on the ground that he was declared guilty by the police during the course of investigation. Reference in this respect may be made to the case of "Muhammad Ahmad (Mahmood Ahmed) and another v. The State" (2010 SCM R 660) wherein, at page 676, the Hon'ble Supreme Court of Pakistan observed as under:- "37. ... It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such-like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt..."
16. Having examined the prosecution case, I am of the considered view that the prosecution has failed to connect the appellant with the commission of crime beyond any shadow of doubt. In "Ayub Masih v. The State" (PLD 2002 SC 1048), at page 1056 the hon'ble Supreme Court L 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."
17. So far as version of the appellant taken by him in his statement recorded under Section 342, Code of Criminal Procedure and put to the witnesses of ocular account namely Muhammad Javed (PW.1) and Khan Muhammad (PW.2) is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence version which even otherwise is exculpatory in nature.
18. Seeking guidance from the dictum of law laid down by the apex court in Ayub Masih case (supra), this appeal is allowed. Conviction and sentence awarded to Mumtaz Ahmad (appellant) vide judgment dated 20.06.2013 passed by the learned trial court is set aside and the appellant is acquitted of the charge framed against him. Mumtaz Ahmad (appellant) is in custody. He be released forthwith if not required to be detained in any other case.