Abdul Sami Khan, J.:- Aamir appellant was tried by learned Additional Sessions Judge/Judge of the Juvenile Court, Lahore in case FIR No.529/05 dated 12.11.2005, under section 302 PPC, Police Station Wahdat Colony , Lahore, who vide judgment dated 26.02.2013, convicted and sentenced the appellant as under:- Under section 302(b) PPC to undergo imprisonment for life (S.I.) as Ta'zir with direction to pay compensation amount to the tune of Rs.2,00,000/- as required under section 544-A Cr.P.C. and in default thereof to further undergo 06-months S.I. The benefit of section 382-B Cr.P.C. was also extended to the appellant.
The appellant has challenged his convicti on and sentence through Criminal Appea l No.73-J of 2013, whereas Mst.
Razia Sultana complainant has filed Criminal Revision No.41 1 of 2013 seeking enhancement of sentence of the appellant from imprisonment for life to death. The criminal appeal as well as criminal revision have arisen out of one and the same judgment dated 26.02.2013, therefore, I propose to decide both these matters through this judgment.
2. Brief facts of the case as disclosed in FIR (Ex.P A) are that Mst. Razia Sultana complainant was residing alongwith her daughter namely Tabassum Arif in lower portion of a rented house, owned by one Jahangir , for the last two years (from the date of occurrence). On upper portion of the house, Shahzad alias Puppi was residing alongwith his wife and Amir alias Bodhi (appellant). On 12.11.2005 at about 08:00 a.m. Mst. Razia Sultana complainant went to bazaar to purchase grocery and when she returned to her house at 08:30 a.m. she saw that her daughter was injured by Aamir Butt with a scissor and she was lying while smeared in blood. There were severe injury marks on wrist of her left hand, left flank, left and front sides of her chest. Accused Aamir Butt, Shahzad alias Puppi and his wife fled away from the place of occurrence. In the meantime, Muhammad Rafique and Nazeer Ahmad also reached there. The complainant alongwith PWs shifed Mst. Tabassum Arif to Sheikh Zaid Hospital while she was in injured condition, where she succumbed to the injuries.
Motive behind the occurrence was that the deceased had to recover Rs.7000/- from Shahzad alias Puppi and his wife Mst. Saima and in this regard a scuffle had also taken place between them . On the day of occurrence, the deceased again demanded her amount, but they refused to return the same and accused Aamir committed murder of Mst. Tabassum Arif, daughter of the complainant, on the asking of his sister and brother-in-law in order to take revenge of their insult.
3. After registration of FIR, the investigation of the case was conducted by Waseem Sabir S.I. and after completion of the investigation, report under section 173 Cr.P.C. was submitted before the court. At the commencement of trial, after observing legal formalities, learned trial court framed charge against the appellant, to which he pleaded not guilty and claimed trial. It is quite relevant to mention here that the appellant was declared juvenile by the learned trial court vide order dated 04.12.2012. To prove its case, the prosecution produced as many as twelve witnesses before the learned trial court. Ocular account was furnished by Mst. Razia Sultana complainant (PW-8), Muhammad Rafique (PW-9) and Nazeer Ahmad (PW-10). Arshad Bashir S.I. (PW-1) is the scribe of FIR (Ex.PA), Muhammad Akbar constable (PW-2) escorted the dead body of the deceased to mortuary for the purpose of postmortem examination, Dr. Atfa Naheed (PW-3) conducted postmortem examination on the dead body of the deceased, Ijaz Iqbal constable (PW-4) testified about the collection of blood stained earth with cotton from the place of occurrence vide memo Ex.PD as well as recovery of scissor from the appellant vide memo Ex.PE, Syed Younas Bokhari, Draftsman, (PW5) prepared site plan (Ex.PF), Muhammad Kaleem Ullah Khan (PW-6) identified the dead body of the deceased and signed the inquest report (Ex.PF), Fazal Hussain S.I. (PW-7) recorded "fard biyan" (Ex.PG) of Mst.Razia Sultana complainant (PW-8) and Abbas Ali head constable (PW-11) deposed that the investigating officer handed over to him one sealed parcel said to contain blood stained swabs, which he handed over to Muhammad Akbar constable for onward transmission to the office of Chemical Examiner.
Waseem Sabir S.I. (PW-12) testified about the investigation conducted by him. After tendering in evidence the report of Chemical Examiner (Ex.PN) and the report of Serologist (Ex.PQ), the prosecution closed its evidence.
After completion of prosecution evidence, statement under section 342 Cr.P.C. of the appellant was recorded by learned trial court, wherein he professed innocence and pleaded false implication in this case. He did not opt to get record his statement under section 340(2) Cr.P.C. and did not produce any witness in his defence. At the end of trial, after thrashing entire evidence and evaluating arguments advanced by learned counsel for the parties in support of their respective versions, learned trial court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, convicted and sentenced him as mentioned and detailed in paragraph No.1 above. Hence, the instant criminal appeal and connected criminal revision before this Court.
4. Learned counsel for the appellant submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt, hence , the appellant deserves clean acquittal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the prosecution has amply proved its case against the appellant beyond any reasonable doubt, so the conviction and sentence of the appellant be maintained and his appeal be dismissed. In addition thereof, learned counsel for the complainant prayed for enhancement of sentence of the appellant.
5. I have heard the learned counsel for the appellant, learned Deputy Prosecutor General and learned counsel for the complainant and have also gone through the record with their able assistance. As per FIR (Ex.PA), the occurrence took place on 12.11.2005 at 08:30 a.m. and was reported to the police by Mst.Razia Sultana complainant (PW-8) by way of recording her statement under section 154 Cr.P.C. (Ex.PG) before Fazal Hussain S.I. (PW-7) on the same day at 12:00 p.m. It is mentioned in FIR (Ex.PA) that Mst. Razia Sultana complainant (PW-8), Muhammad Rafique (PW-9) and Nazeer Ahmad (PW-10) shifted Mst.Tabassum Arif deceased in the hospital. It is further mentioned in FIR (Ex.PA) that Mst. Tabassum Arif deceased had already succumbed to the injuries at the time when Mst. Razia Sultana complainant (PW-8) got recorded her statement under section 154 Cr.P.C. (Ex.PG) i.e. 12:00 p.m. but according to postmortem report (Ex.PC) of the deceased, the time of her death is mentioned as 01:00 p.m. on 12.11.2005. Now I come to the inquest report (Ex.PJ) which tells another story as far as the time of death in this case is concerned which is clearly mentioned as 02:00 p.m. Above all, Dr. Atfa Naheed (PW-4) who conducted postmortem examination on the dead body of the deceased has not given the probable duration between the occurrence and death of Mst. Tabassum Arif deceased so as to ascertain the time of her death. Postmortem report (Ex.PC) shows that Mst. Tabassum Arif deceased died on 12.11.2005 at 01:00 p.m. and postmortem examination on her dead body was conducted by Dr. Atfa Naheed (PW-3) on the next date i.e. 13.11.2005 at 10:00 a.m. whereas the probable duration between the death and postmortem examination is mentioned as 21 hours. It can, therefore, safely be held that it was a case of delayed postmortem, which casts serious doubt as if the FIR was got recorded on 12.11.2005 at 12:15 p.m., then what was the circumstance for not conducting postmortem examination for such a considerable time of 21 hours after the death of Mst. Tabassum Arif deceased. Inference can be drawn that the intervening period had been consumed in fabricating the prosecution story after the preliminary investigation; otherwise there was no justification for conducting postmortem with such delay . The Hon'ble Supreme Court of Pakistan in case of "Muhammad Ashraf vs. The State" (2012 SCMR 419) has visualized the tendency on the part of the police in showing that the FIR was got recorded with promptitude, but the Courts are bound to see it with distinct source. The relevant portion is reproduced as under:- "Incident in the present case had taken place, according to the prosecution on 3-7-2003 at evening time and case of the prosecution is that F.I.R. was recorded at 9-00 p.m. without inordinate delay and on the other hand postmortem was conducted by P.W.3 Dr. Asghar Ali Hunjra on the next day i.e. 4-7-2003 at 10-00 a.m. If F.I.R. was recorded with such a promptitude then why the postmortem was conducted with such a delay . Even otherwise, according to P.W.3 Dr. Asghar Ali Hunjra, the time between death and postmortem was 15 to 16 hours. So, the F.I.R. was recorded with a delay and cannot be used against the appellant as a corroborative piece of evidence."
In these eventualities of the facts, it would not appeal to any prudent mind that FIR (Ex.P A) was lodged at the date and time mentioned therein rather it was got recorded after preliminary investigation, therefore, it cannot be used as a corroborative piece of evidence. As such the prosecution story has to be seen with great care and caution.
6. As regards the eye witness account is concerned, besides herself Mst. Razia Sultana complainant (PW-8) has mentioned the names of Muhammad Rafique and Nazeer Ahmad who allegedly witnessed the occurrence.
However , it is quite clear from bare perusal of the FIR (Ex.P A) as well as statement of Mst. Razia Sultana complainant (PW-8) that the accused had also escaped from the place of occurrence before the arrival of PWs namely Muhammad Rafique and Nazeer Ahmad. Even otherwise, there are many other circumstances which clearly disprove the presence of not only PWs Muhammad Rafique and Nazeer Ahmad but also of Mst. Razia Sultana at the spot at the time of occurrence. I have observed that in her examination in chief, Mst.Razia Sultana complainant (PW-8) has tried her best to support the story mentioned in FIR (Ex.P A), but during cross examination, she admitted that it was not she but the inhabitants of the locality who reported the occurrence to the police. She further admitted that she was working as lady health visitor during the days of occurrence and claimed to be on leave without pay, but neither had she brought on record any proof in respect of her leave during the course of investigation nor before learned trial court while recording statement as PW-8. Inference can be drawn that Mst.Razia Sultana complainant (PW-8) was not present at the spot at the time of occurrence, in fact she was on her official duty and this is the reason she did not produce any proof of her leave on the day of occurrence.
Muhammad Rafique (PW-9) deposed in line with Mst. Razia Sultana compl ainant (PW-8) as far as their examination in chief is concerned, but during cross-examination he frankly admitted that he had not seen the appellant inflicting scissor blows on the deceased and had only seen him fleeing from the place of occurrence. As far as the third alleged eye witness namely Nazeer Ahmad (PW-10) is concerned, he was serving police department as Sub-Inspector during the days of occurrence and he candidly admitted in his cross-examination that he was not on leave on the fateful day; he did not enter his departure in roznamcha in the police station and even he did not get short leave on that day. Meaning thereby , the presence of Nazeer Ahmad (PW-10) at the spot at the time of occurrence is not free of doubts. Besides above, Waseem Sabir S.I. (PW-12) who is the investigating officer of the case acknowledged that as many as 26 inhabitants of the locality tendered affidavits before him, mentioning therein that nobody was present at the spot at the time of occurrence and that Mst. Tabassum Arif deceased was taken to the hospital in injured condition by one Tariq Malik.
7. Apart from the above, Muhammad Rafique (PW-9) and Nazeer Ahmad (PW-10) were not residing nearby the place of occurrence. They were residing and performing their duties at considerable distance from the place of occurrence and they have not given any plausible explanation or reason behind their visit to the house of Mst.
Razia Sultana complainant (PW-8) during early hours of the morning. At the most, they were chance witnesses and they have not advanced any plausible justification for their presence at the place of occurrence. In case of "Nadeem @ Nanha @ Billa Sher vs. The State" (2010 SCMR 949), the Apex Court, while discussing the evidentiary value of the statements chance witnesses, has observed as below:- "The complainant PW4 and Muhammad Afzaal PW5 are chance witnesses as they should not normally be present at the place of occurrence and it is difficult to rely upon their statements being chance and highly interested witnesses."
8. It is worthy to mention here that the appellant was about 14/15 years of age at the time of occurrence, while the deceased was aged about 24 years and was a healthy and strong lady. Similarly, Mst.Razia Sultana complainant (PW-8) and Muhammad Rafique (PW-9) were also healthy and strong persons, but both of them did not try to capture the appellant who was allegedly armed with scissor. Even Nazeer Ahmad (PW-10) who was a Sub- Inspector and claimed to be an active, strong and efficient person,, though stated that he had tried to apprehend the appellant at the spot, but surprisingly the appellant who was merely 14/15 of age and was allegedly armed with scissor easily escaped from the clutches of such a so called effective and active police officer. Keeping in mind the above discussion, I am of the definite view that Mst. Razia Sultana complainant (PW-8), Muhammad Rafique (PW-9) and Nazeer Ahmad (PW-10) were not present at the spot at the time of occurrence, therefore, I am not inclined to believe them as trustworthy or confidence inspiring witnesses.
9. Insofar as medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injuries, nature of the injuries, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer versus Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another versus The State" (2009 SCMR 1410) and "Altaf Hussain versus Fakhar Hussain and another" (2008 SCMR 1103). It is also an admitted fact that the doctor (PW-3) had taken vaginal swabs during postmortem examination on the dead body of Mst. Tabassum Arif deceased and according to postmortem report (Ex.PC) her hymen was old torn, but there is no report of the Chemical Examiner in this regard. Apparently the report of the Chemical Examiner has been deliberately withheld by the prosecution and possibility cannot be ruled out of consideration that the occurrence has not taken place in a mode and manner as alleged by the prosecution. Even otherwise, in the absence of trustworthy and confidence inspiring ocular account, medical evidence does not bear any significance.
10. As far as the recovery of alleged weapon of offence is concerned, a scissor (P3) is shown to have been recovered from the appellant vide memo (Ex.PE). Allegedly the scissor (P3) was recovered just after twenty three days of the occurrence, but it was admittedly clean and was not stained with blood. Moreover , it has established during cross-examination on Wasim Sabir S.I. (PW-12) that scissor (P3) was not properly sealed and even it was in unsealed condition at the time of its production before the learned trial court. Therefore, the recovery of scissor allegedly af fected from the appellant cannot be used against him.
11. What to say about the motive part of prosecution which is specifically attribute d to co-accused Shahzad alias Puppi and his wife Mst. Saima, who both were declared innocent by the investigating officer and Mst. Razia Sultana complainant (PW-8) did not challe nge the outcome of investigation before any forum either by way of filing private complaint or by moving application for the change of investigation. The motive is not attributed to the appellant in any manner , hence does not bear any significance to his extent.
12. The above minute scrutiny of the record and evidence clearly depicts that the prosecution case against the appellant is of doubtful nature and his conviction and sentence on the basis of such type of shaky , undependable and untrustworthy evidence cannot be maintained. It is settled law that not many circumstances creating doubt in the prosecution story are required but only a single circumstance creating doubt in the prosecution story is enough to acquit the accused. Reliance can be placed on the case of "Tariq Pervez versus The State" (1995 SCMR 1345 ), wherein the Hon'ble Supreme Court of Pakistan has observed 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 case in hand is replete with number of circumstances which have created serious doubt about the prosecution story . It is also universally recognized principle of law that conviction can only be based upon unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused not as a matter of grace, but of right. In "Ayub Masih vs. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Proph et (PBUH) that 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent" , and making reference to the maxim, that 'it is better that ten guilty persons be acquitted rather than one innocent person be convicted' , the learned Apex Court of our country 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 vs. 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".
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of "Muhammad Akram versus The State " (2009 SCMR 230 ) observed as under:- "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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 SCMR 1345 ) that for giving the benefit of doubt, it was not necessary that there should be many circum stances 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".
13. The upshot of above discussion is that the prosecution has failed to prove its case against the appellant beyond any reasonable shadow of doubt. This appeal is, therefore, allowed and the appellant is acquitted of the charge by extending benefit of doubt to him. He is in jail, be released forthwith if not required in any other case.
14. Adverting to criminal revision No.41 1 of 2013 filed by Mst. Razia Sultana complainant for enhancement of sentence of the appellant from imprisonm ent for life to death, I would like to obse rve here that the appellant was tried by the learned trial court under the Juvenile Justice System Ordinance, 2002, and as he had already been sentenced to imprisonment for life, the criminal revision for enhancement of his sentence to death is not maintainable. Even otherwise, keeping in view the findings given in the preceding paragraphs, this criminal revision stands dismissed .