' This criminal appeal is directed against the judgment dated 21.9.2010 passed by the learned Sessions Judge, Sahiwal whereby the appellant was convicted u/S. 302(b), PPC and was sentenced to imprisonment for life with compensation of Rs, 1,00,000/-, to be paid to the legal heirs the deceased under Section 544-A, Cr.P.C., in default whereof, to further suffer six months S.I. Benefit of Section 382-B, Cr.P.C. Was also given to the convict.
2. Brief fats of the case are that on 29.10.2009 at about 05:00 a.m. Accused Pervaiz Maseeh informed the complainant that his sister Mst. Shamim wife of Pervaiz Maseeh) has died. The complainant reached at the place of occurrence where PWs told him that his sister has been died through torturing by the hands of her husband and they had witnessed the said occurrence. Motive behind the occurrence was that accused Pervaiz Maseeh had suspected that his wife had illicit relations with Aashir Maseeh and due to that grudge he committed the murder of his wife.
3. Firstly, accused Pervaiz Maseeh remained, absconder till 15.11.2009 and was arrested on said date. During physical remand, accused led to the recovery of weapon of offence and after finding him guilty and the challan was submitted against him in the trial Court. The learned trial Court framed the charge on 06.03.2010 which was denied by the appellant and he claimed trial.
4. During the trial, to prove guilt of the accused, the prosecution examined as many as ten witnesses. PW-1 Bashir Ahmad 1007/C who conducted the post-mortem examination on the dead body of Mst. Shamim Bibi and received one sealed parcel containing last worn cloths of deceased from doctor and handed over to Investigating Officer which he took into possession vide recovery memo. Exh.PA. PW-2 Abdul Ghafoor ASI, on 06.12.2009 handed over one sealed parcel containing blood-stained earth to Muhammad Mansha 913/C for onward transmission to the office of Chemical Examiner, Lahore. Muhammad Mansha appeared as PW-3 deposed that on 06.12.2009 he deposited a sealed parcel containing blood-stained earth to the office of Chemical Examiner, Lahore. PW-4 Samuel Maseeh identified the dead body of deceased Mst. Shamim Bibi at the time of autopsy and after post-mortem examination, doctor handed over to him the last worn clothes of deceased, which he produced to I.O. PW-5 Lady Dr. Uzma Ashraf, conducted post-mortem examination on the dead body of Mst. Shamim Bibi deceased on 29.10.2009 and found following injuries on the dead body:--
1. Lacerated wound 4 x 1 cm x bone exposed on back of right head, behind right ear and injured middle of right ear.
2. Lacerated wound 1 x 1 cm x skin deep on right cheek, 3 cm from right ear.
3. Lacerated wound 4 cm x 1/2 cm x bone exposed, on back of right side of head.
4. Lacerated wound 5x1 cm x bone exposed on back of left side of head.
5. Lacerated wound 4x4 cm L-shaped x bone exposed, on front middle of head near hairline.
6. Lacerated wound 2x2 cm x scalp deep on back of left side of head.
7. Lacerated wound 4 x 1/2 cm x skin deep on right side of chin, which was fracture of right mandible bone.
8. Lacerated wound 1/4 x 1/4 cm x skin deep on middle of back of left forearm.
9. Lacerated wound 1 x 1/4 cm x skin deep below right knee.
10. Lacerated wound 1 x 1/2 cm x skin deep on left ankle, middle orright leg.
11. Swelling 5x5 cm i.e, fracture of right ankle joint.
12. Lacerated wound 3 x 1/2 cm x skin deep, on left ankle.
13. Lacerated wound 2 x 1/4 cm x skin deep, on middle of left leg.
14. Lacerated wound 1/4 x 1/4 cm x skin deep, on middle of back of left fore-arm.
15. Lacerated wound 2 x 1 cm on back of left hand i.e, fracture of index finger of left hand.
' As per opinion of the doctor, the cause of death in this case was multiple injuries especially Injury Nos. 1, 3, 4, 5 & 7 which caused hemorrhage and shock and in ordinary course of nature, these injuries were sufficient to cause death.
' PW-6 Saeed Akhtar Draftsman, who on the direction of police and on the pointation of PWs took rough notes from the place of occurrence and on 02.11.2009 prepared scaled site-plan in duplicate Ex.PC and Ex.PC/1. Victor Maseeh complainant appeared as PW-7 and deposed the same as narrated in his complaint Ex.PD. PW-8 Boota Maseeh and PW-9Shaukat Maseeh were the eye- witness of the occurrence. PW-10 Muhammad Rustam S.I. Conducted investigation of the case, arrested accused Pervaiz Maseeh, who led to the recovery of iron blow-pipe from his residential house which he took into possession vide recovery memo. Ex.PE, recorded statements of PWs and after conducting investigation declared accused guilty and submitted challan before Court through SHO.
5. After closing the prosecution evidence, statement of the accused was examined under Section 342, Cr.P.C. And in reply to the question that why this case was against him, he replied as under: "I have been falsely implicated in this case, due to suspicion only. I have not committed the murder of my wife. She had illicit relations with 2-3 persons, who on the fateful night quarreled with each other and during this fight one of them killed my wife. Even I was nct present in my house on the fateful night.. The liWs deposed against me due to relationship with the complainant Victor Maseeh and my wife. PW Poota Maseeh belongs to Chak No, 31/11-L, which is at a distance of 30-kilometers from the place of occurrence and Shaukat Maseeh PW also belongs to Chak No, 109/12-L, which is at a distance of 20-miles from the spot. Both the witnesses were not present at the place of occurrence at the time of occurrence. Rather they were introduced subsequently. Their names were also not included as eye-witnesses in the FIR. The occurrence took place on 29.10.2009 at 3:00 a.m. According to FIR and both the witnesses were called by the complainant on 29.10.2009 even after one day, after the occurrence."
6. The appellant/accused neither produce any witness in defence, nor did he opt to make statement under Section 340(2), Cr.P.C.
7. Learned counsel for the appellant has contended that the impugned judgment passed by the learned trial Court is the result of mis-reading and non-reading of the evidence; that the impugned judgment is based on surmises and conjectures and passed in a hasty manner; that there is so many contradictions in 'prosecution case, as the two eye-witnesses of the occurrence cited in the FIR have been given up by the prosecution; that the complainant is not the eyewitnesses of the occurrence; probable duration between injuries and death was 4 to 5 hours whereas between death and post-mortem examination was 8 to 9 hours; so called eye-witnesses of the occurrence, who figured in FIR, were associated during the process of investigation, which factum can easily be confirmed from the statement of these witnesses and the clarification statement of I.O. Which proves that said witnesses were not present at the time of occurrence, therefore, this case is of no evidence, therefore, the appellant being innocent is entitled for acquittal.
8. On the other hand learned Deputy Prosecutor General vehemently opposed this appeal and supported the impugned judgment. He further contended that medical evidence fully corroborates the ocular account, therefore, the appellant is not entitled for acquittal and prayed for enhancement of sentence of the appellant to death.
9. Arguments heard. Record perused.
10. According to complaint Ex.P.D, the witnesses of the occurrence were Riaz Maseeh son of Sardar Maseeh and Pervaiz Maseeh son of Anwar Maseeh. The complainant stated in the complaint Ex.PD that these two PWs told the occurrence to the complainant which shows that he was not the eye- witness of the occurrence and he came to know about the occurrence through telephone that his sister Mst. Shamim Bibi has been died and the above mentioned two PWs told about the occurrence that at 3 a.m. (night) the accused, Pervaiz Maseeh son of Samuel Maseeh who is the husband of the complainant's sister murdered his wife with iron pipe/phoonkni () in his house but astonishingly these two PWs were never produced by the prosecution during the trial proceedings rather they were given up as being won over, instead Boota Maseeh, PW-8 and Shaukat Maseeh, PW-9 were introduced by the prosecution later on as witnesses. The prosecution introduced two 'witnesses namely, Victor Maseeh, PW-7 who are the real brother of the deceased and Boota Maseeh, PW-8 and Shaukat Maseeh, PW-9 who are also close relatives of the deceased. All of them are closely related inter se. Boota Maseeh, PW-8 admitted in his cross-examination that he was permanently resident of Chak No, 6/11-L and his chak was 30 kilometer away from the place of occurrence, therefore, he was a chance witness and he did not disclose any reason why he was present in the area where the alleged occurrence took place. He further admitted that he had not gone inside the room nor had entered into Ihata at the time of occurrence. The complainant Victor Maseeh, PW-7 stated in his statement that in between of 28/29.10.2009 at about 5 a.m. Pervaiz Maseeh accused informed him through telephone that his sister Shamim Bibi had died. At 10 a.m.
On the same day when he reached at Adda of Chak No, 6/11-L Riaz Maseeh and Pervaiz Maseeh PWs told him that Pervaiz accused had committed the murder of his sister by causing injuries on her body with iron blow-pipe. He further admitted in his cross-examination that the accused had suspicion that his wife had immoral relations with one Ashar Maseeh. The complainant resides in Chak No, 99/10-R, therefore, he is not the eyewitness of the occurrence. Boota Maseeh, PW-8 stated that he along with his Behnoi Shaukat Maseeh PW stayed in the house of their relative Ilyas Maseeh.
They heard alarm and noises and attracted to the spot and saw the occurrence in the light of electric bulb that Pervaiz Maseeh, accused was causing injuries on the body of his wife. This witness resides in Chak No, 31/11-L 30 kilometer away from the place of occurrence but he failed to disclose any purpose of his stay in the house of Ilyas Maseeh on fateful night. Likewise, Shaukat Maseeh, PW-9 stated in his statement that he stayed in the house of Ilyas Maseeh on 28.10.2009 and at about 3 a.m. On hearing alarm he and Boota Maseeh woke up and they went to the house of Pervaiz Maseeh, accused, and saw that the accused was beating his wife with a blowpipe. He further stated in his cross-examination that they saw the occurrence while standing outside the main gate, therefore, he is also a chance witness and he failed to show any purpose of his stay in the house of Ilyas Maseeh. Likewise, said Ilyas Maseeh was never produced to corroborate his presence at his house at the time of occurrence. All the above witnesses were closely related to the deceased and complainant and were the chance witnesses. Shaukat Maseeh, PW-9 stated that the main gate was at the height of about 61/2 feet and boundary wall of 51/2/6 feet and they saw the occurrence while standing outside the main gate. According to the prosecution the occurrence took place in a room then how the PWs saw the occurrence from outside the Ihata in a room. No person of the locality appeared before the police as well as the Court of law to strengthen the story of the prosecution that the accused murdered his wife at 3 a.m. Night. According to the I.O./PW-10 that iron blow-pipe was not stained with blood. It is very important that if any person murder someone with iron blow-pipe then why the same was not stained with blood. He further admitted in his cross-examination that it is correct that the complainant Victor Maseeh did not mention the name of Shaukat Maseeh, PW-9 and Boota Maseeh, PW-8 who were become witnesses later on. He further stated that he recorded the statements of Boota Maseeh and Shaukat Maseeh on 30.10.2009 on the next day after hearing about the occurrence. The occurrence was committed at the odd hours of the night, therefore, the above conduct of the PWs shows that nobody witnessed the occurrence. Had the PWs were present at the place of occurrence at the time of occurrence then why none of the PWs caught hold of the accused because he has only iron blow-pipe in his hands and can easily be captured by the PWs. No other witness has been made from around the house of the deceased as well as appellant except the close relatives of the deceased. According to the prosecution the occurrence took place at 3 a.m. (night) and she had died at the same time but according to post-mortem report probable time between injuries and death was 4 to 5 hours and death and post-mortem was 89 hours. Post mortem was conducted at 7 p.m. Which means that the death of the deceased was 10 a.m. When the matter was already reported to the police at 10.30 a.m. The PWs mentioned in the complaint Ex.PB have not been produced as witnesses without any justification and it creates serious doubt that why they did not support the prosecution story whereas the evidence of chance witnesses has been recorded. The above facts do shows that it was an unseen occurrence. As far as motive of the occurrence that the deceased had illicit relations with Ashir Maseeh, the same was not established through any cogent and reasonable evidence. Admittedly, the occurrence took place at 3 a.m. (night) but the matter was reported to the police at 10.30 a.m. After delay of 7.30 hours which shows that the same was get registered with deliberations and consultation. According to the statement of PW-10, Rustam Ali SI who investigated the case, when he reached at the spot he found seven injuries on the dead body which he duly mentioned in the inquest report Ex.PF but when the doctor conducted the post- mortem examination of the deceased she mentioned 15 injuries on her body, therefore, there is a lot of difference between 7 and 15 injuries. In the similar circumstances, the August Supreme ourt of Pakistan in the case of Mst. Shazia Parveen us. The State (2014 SCM R 1197) held as under:-- "It has straightway been observed by us that the incident in issue had taken place at about 10.30 p.m. Inside the house wherein the appellant and her husband were living and no source of light at the spot had been disclosed or shown anywhere on the record. All the eye-witnesses produced by the prosecution were closely related to the deceased and they were admittedly chance witnesses who had failed to bring anything on the record to establish the stated reason for their availability near the deceased at the relevant time. Such related witnesses had failed to receive any independent corroboration inasmuch as there was no independent evidence produced regarding the alleged motive, the alleged recovery of a rope was legally inconsequential and the medical evidence had gone a long way in contradicting the eye-witnesses in many ways. The duration of the injuries and death recorded by the doctor in the Post mortem Examination Report had rendered the time of death alleged by the eye-witnesses quite doubtful, the stomach contents belied the eye-witnesses regarding the time of occurrence and the negative report of the Chemical Examiner showed that no poison or intoxicant had been detected inside the body of the deceased which squarely contradicted the eye-witnesses. In these circumstances it could not have been held by the learned Courts below that the prosecution had succeeded in establishing the appellant's guilt beyond reasonable doubt."
11. In the present case the occurrence took place at 3 a.m. At odd hours of the night, all the witnesses are chance witnesses as they failed to establish their reason being present there, no source of light was taken into possession and all the eye-witnesses produced by the prosecution were closely related interse and with deceased, thus the learned trial Court wrongly held that the prosecution had succeeded in establishing the appellant's guilt beyond reasonable doubt. There is another aspect of the matter that out of the wedlock of the appellant and the deceased four children, three sons and one daughter were born, they were residing in the tame house with their parents (deceased as well as accused) who were the star witnesses of the occurrence but they were never produced before the police. The August Supreme Court in the case of Mst. Shamshad vs. The State (1998 SCM R 854) has held as under:- "The prosecution has also failed to offer a plausible explanation as to why the children of the appellant, who were, admittedly, present in the house at the time of the incident, were not produced as witnesses in the case. In fact, the children of the appellant were the most natural witnesses of the occurrence. However, the Investigating Officer thought it fit not to examine them as witnesses. When confronted with this situation at the time of his cross-examination he explained that two daughters and the son of the appellant were less than 7 years of age. However, in the same breath it was admitted by him that Ruhi Bano was about 8 or 9 years of age. The other children were a few years younger. However, at least the older children under normal circumstances could have given evidence in the Court. The explanation given by the Investigating Officer, therefore, was not tenable."
' All the above mentioned circumstances make the case of the prosecution highly doubtful. It is well-settled principle of law that if a single circumstance creates reasonable doubt in a prudent mind, about guilt of an accused, then he will be entitled to such benefit not as a matter of grace or concession, but as of right.
12. In view of what has been discussed above, the appeal in hand is allowed, impugned judgment is set aside and the appellant, namely, Pervaiz Maseeh is acquitted of the charge. He is on bail, through suspension of his sentence, hence his bail bonds are discharged.