SHEHRAM SARWAR CH., J.---Mst. Aajzan Bibi (appellant) was tried by the learned Addl Sessions Judge, Shakargarh in case FIR No.81/2012 dated 13.05.2012, offence under section 302, P.P.C. registered at Police Station Kot Nainan District Narowal for the murder of Arslan and Bilal (deceased) grandsons of the complainant, Vide judgment dated 13.11.2012 passed by the learned Addl. Sessions Judge, Shakargarh, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death on two counts with a further direction to pay Rs.3, 00,000/- (rupees three lakh only) each as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo six months' S.I. on two counts. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.20 of 2013 for confirmation or otherwise of Mst. Aajzan Bibi 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) registered on the statement (Ex.PA/1) of Ghulam Rasool complainant (PW.6) is that marriage of his son Imran Ali was solemnized with Mst. Aajzan Bibi (appellant) and out of the said wedlock two sons namely Arslan aged about three years and Bilal aged about one year were born. The relations between the spouses were strained. On 13.05.2012, Mst. Aajzan Bibi (appellant) along with her both sons left the house in order to get medicine but when she did not return, the complainant got worried. He along with Imran Ali and Jahangir Khan started their search. When they reached near Defence BUND, they saw that Mst. A ajzan Bibi (appellant) within their view threw her both sons in the swamp/bog one by one and covered them with swa mp. They while raising hue and cry reached there and pulled out both the sons from the swa mp but they had already died.
3. The appellant was summoned by the learned Addl. Sessions Shakargarh to face the trial. Copies of relevant documents were provided to her as required under section 265-C, Code of Criminal Procedure and charge under section 302, P.P.C. was framed against her on 02.07.2012 to which she pleaded not guilty. After closure of prosecution evidence, statement of the appellant under section 342, Code of Criminal Procedure, was recorded. On 18.10.2012, wherein she refuted all the allegations of the prosecution and professed her innocence. In answer to a question as to why the case against her and why the prosecution witnesses had deposed against her, Mst. Aajzan Bibi (appellant) stated as under:- "I was married with Muhammad Imran son of complainant prior to 6/7 years ago. Out of this wed- lock two children namely ArsIan aged about 4-1/2 years and Bilal aged about 2 years were born. I was living in the house of my in-laws and there is no complaint from my side to my husband but occasionally parents of my husband teased me in different manners. On 12.05.2012 petty quarrel took place between me and mother of my husband namely Abida Bibi and Ghulam Rasool. They snatched both the minor children from me and kicked out me from their house at about evening time. I went to my parental house at village Phagwari and told this fact to my father who advised me let Muhammad Imran my husband be come back from Lahore then they will tell him all the facts and matter would be patched up. On the next day at about evening time someone told me that your both children have died, when they were playing in front of the house of complainant while falling in the village pond which is adjacent to their house. Being real mother of minors I could not stop myself to see the dead bodies. I along with my father went to the village of my in-laws where the entire circumstances were changed and police apprehended me there. I and my father cried that actual facts are not the same. All the allegation leveled by the complainant against me are false, I do nothing regarding the death of my children but no one heard me. It is not possible for a mother to kill his own children without any reason. I.O. of this case was in league with the complainant party and he dishonestly and with mala fide in connivance with the complainant challaned me in this case without any fair investigation. Furthermore the story of prosecution is contradicted by medical evidence. I have nothing to do this with occurrence. PWs are inter se related and inimical towards me. They deposed falsely against me.
The appellant neither appeared as her own witness, in disproof of the allegations leveled against her, as provided under section 340(2), Code of Criminal Procedure nor did she produce any evidence in her defense. 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 this appeal, contends that the appellant has falsely been implicated in this case; that as per FIR (Exh.PA) the alleged incident took place on 13.05.2012 at 9:00 a.m. whereas the matter was reported to the police on the same day at 7:45 p.m. i.e. about ten hours and forty five minutes after the incident without there being any satisfactory explanation despite the fact that the distance between the place of occurrence and the police station was just twelve kilometers; that the prosecution has failed to establish presence of both the witnesses of ocular account i.e. Ghulam Rasool complainant (PW.6) and Jehangir Khan (PW.7) at the spot at the relevant time; that motive against the appellant has not been proved in accordance with law; 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 Deputy Prosecutor General, opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the matter to the police; that it is case of single accused and substitution in such like cases is a rare phenomenon as kith and kin of the deceased especially grandfather of the deceased would not implicate an innocent person by letting off the real culprits; that ocular account is fully supported by medical evidence; that motive has been proved against the appellant in accordance with law; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
6. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor- General for the State and gone through the record with their able assistance.
7.Salient features of the prosecution case are as under:-
(a) This unfortunate incident wherein ArsIan and Bilal grandsons of the complainant initially taken by the appellant, their real mother, on the pretext to get medicine and thereafter committed their murder, as per FIR (Ex.PA), took place on 13.05.2012 at 9:00 a.m. whereas the matter was reported to the police on the same day at 7:45 p.m. i.e. about ten hours and forty five minutes after the occurrence. The distance between police station and the place of occurrence was just twelve kilometers. There is absolutely no plausible or convincing reason for the aforesaid delay of more than ten hours in reporting the matter to the police which casts serious doubt about the veracity of prosecution story. Reliance may be placed on case laws titled as "Mehmood Ahmed and three others v. The State and another" (1995 SCM R 127) and "Nazeer Ahmad v. Gehne Khan and others"
(2011 SCM R 1473). Moreover, as per doctor (PW.4), the time elapsed between the death and postmortem was about fourteen hours. It has been held repeatedly by this Court and the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the 'Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. In this regard, reliance is placed on the case of "Muhammad Riaz v. The State" (2009 PCr.LJ 1022 Lahore), wherein this Court has observed as under:- "13. ...It is also not found correct that the FIR had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the post-mortem 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..."
Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of "Irshad Ahmed v.
The State" (2011 SCM R 1190), wherein it was observed 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 eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted..."
The above said view has been further fortified in the recent case law titled as "Nazeer Ahmed v. The State" (2016 SCM R 1628).
(b) Ocular account was furnished by Ghulam Rasool complainant (PW.6) and Jehangir Khan (PW.7). Both these witnesses have not given any plausible reason for their presence at the spot at the relevant time. In the FIR as well as before the learned trial Court it was the case of prosecution that within the view of complainant's side consisting of three male members the appellant, who was a woman, committed the murder of two minor grandsons of complainant. We have found it to be quite strange that if the appellant had to murder the deceased then she did not have to wait for arrival of the above said witnesses for throwing both the deceased in the swamp. The presence of these witnesses at the spot at the relevant time is doubtful in nature because if had they been present at the spot at the relevant time why they did not try to rescue both the deceased or to catch hold of the appellant who, admittedly, was not armed with any firearm to ward the said eye- witnesses off or to keep them away at the time of incident. Therefore, we hold that presence of both these eyewitnesses at the spot at the relevant time is not free from doubt.
(c) So far as motive is concerned, in the FIR as well as before the learned trial Court it was the case of prosecution that there were strained relations between the spouses namely Mst. Aajzan Bibi (appellant) and Muhammad Imran and due to the said reason the appellant had committed the murder of her both sons. The version of the prosecution qua motive occurrence does not appeal to a prudent mind because if there were any strained relations between husband and wife the target would have been Muhammad Imran husband of the appellant instead of her deceased sons.
Moreover, Muhammad Imran husband of the appellant was the star witness qua motive but he has not been produced before the learned trial Court and was given up being unnecessary. Therefore, we hold that the prosecution has failed to prove motive against the appellant.
(f) The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmiad and others (2016 SCM R 1605). .
8. So far as version of the appellant taken by her in her statement recorded under section 342, Code of Criminal Procedure, is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the defence version.
9. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that 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 failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In "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."
10.For the foregoing reasons, Criminal Appeal No.1910 of 2012 filed by Mst. Aajzan Bibi (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 13.11.2012 passed by the learned Addl. Sessions Judge, Shakargarh is set aside and the appellant is acquitted of the charge of murder of Irslan and Bilal (deceased) while extending her benefit of doubt. Mst.
Aajzan Bibi, appellant is in jail. She shall be released forthwith if not required to be detained in any other case.
11.Murder Reference No.20 of 2013 is answered in the NEGATIVE and the sentence of death awarded to Mst. Aajzan Bibi (convict) is'NOT CONFIRMED.