' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Sarfraz Masih son of Younis Masih, Christian by faith and resident of Nawan Pind, Chak No,14, District Sheikhupura, appellant, was involved in case FIR No,374/2011, dated 20.09.2011, offence under section 302, P.P.C., registered with Police Station Safdarabad, and was tried by learned Sessions Judge, Sheikupura. The learned trial court seized with the matter, in terms of judgment dated 05.04.2012 convicted and sentenced the appellant in the following terms:- Under section 302(b), P.P. C., sentenced to death as Ta'zir with direction to pay Rs,2,00,000/- as compensation to legal heirs of deceased in terms of section 544-A, Cr. P. C. And in case of default in payment thereof, to undergo VI. For six months.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing Criminal Appeal No,185-J/2012 while the learned trial court forwarded Murder Reference No,176 of 2012 for confirmation of sentence of death inflicted upon the convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PB/1) lodged on the application (Exh.PB) of Irshad Bibi widow of Sakhi Muhammad, caste Muslim Sheikh (PW-3) is that she is resident of Pakka Dalla Chak No,26/RB, Tehsil Safdarabad, District Sheikhupura and a household lady. On 20.09.11 at about 5:00 p.m. Husband of the complainant namely Sakhi Muhammad son of Baqar, caste Muslim Sheikh was grazing his buffalo near the agricultural dera of Muhammad Boota son of Muhammad Siddique, caste Jatt Salotra. Nazeer Ahmed son of Sohan, caste Muslim Sheikh, resident of the same village and the complainant were also with Sakhi Muhammad. All of sudden accused Sarfraz Masih son of Younis Masih, Christian by faith and resident of Nawan Pind Virkan, Chak No,14, Police Station Safdarabad, while brandishing a knife reached there and raised lalkara to teach lesson to husband of the complainant for giving evidence against him. The accused Sarfraz Masih after assaulting upon Sakhi Muhammad inflicted different knife blows on his body, who on receipt of injuries fell down on the ground and succumbed to the injuries at the spot. On the hue and cry raised by the complainant and other PWs, the accused while brandishing his knife fled away from the scene of occurrence. It was alleged by the complainant that besides her the occurrence was witnessed by Nazeer Ahmed son of Sohan, Fayyaz Ahmed, Muhammad Naveed both sons of Murad Ali, caste Jatt and residents of Wattian Wali, Chak No,27, Safdarabad, District Sheikhupura.
' Motive behind the occurrence as discloser in the crime report was that two years prior to the occurrence Sarfraz Masih had inflicted injuries upon Sakhi Muhammad, who had made statement against him due to which the accused was convicted and thereafter he Was released from jail. Due to this grudge, Sarfraz Masih accused after inflicting repeated knife blows had committed murder of Sakhi Muhammad.
4. While leaving Nazeer Ahmed and Fayyaz Ahmed to safeguard the dead body, the complainant reached Police Station where she presented her application before Mazhar Hussain 687/MHC (PW- 5) on the basis of which formal FIR was chalked out. After registration of the case the investigation was entrusted to Muhammad Hanif, S.I. (PW-10), who visited the place of occurrence. After inspecting the dead body, the Investigating Officer prepared inquest report (Exh.PF), drafted injury statement (Exh. PG), handed down application for postmortem examination (Exh.PH) and dispatched the dead body to mortuary under the escort of Nawaz 633/C (PW-6). He collected blood-stained earth vide recovery memo Exh.PC and prepared rough site plan of the place of occurrence (Exh.PJ). After postmortem examination last worn clothes of the deceased, qameez (P- 1) and shalwar (P-2) were produced before the Investigating Officer which were taken into possession vide recovery memo Exh.PA. On 03.10.2011 the Investigating Officer arrested the appellant and obtained his physical remand. During the course of interrogation in pursuance of disclosure on 06.10.2011, the appellant led to the recovery of knife, which was taken into possession vide recovery memo Exh.PD. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PD/1). On reaching the Police Station the Investigating Officer handed over the case.
Property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned.
5. During the course of investigation having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. While placing his name in column No,3; and sent the same to the Court of Session en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. The learned trial court vide order dated 03.01.2012 formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced as many as eleven (11) prosecution witnesses.
6. Occular account in this case consists of the statements of the complainant Irshad Bibi (PW-3) and Fayyaz Ahmed (PW-4). On resentation of application, Mazhar Hussain 687/MHC (PW-5) had chalked out formal FIR while Muhammad Sarwar, Halqa Patwari (PW-7) had prepared scaled site plan of the place of occurrence. Investigation in this case was carried out by Muhammad Hanif, S.I.
(PW-10).
' On 21.09.2011, Dr. Masroor Kaifi (PW-11) had conducted postmortem examination on the dead body of Sakhi Muhammad deceased and observed following injuries on his person:- "1. A 7 x 2 cm x muscle deep wound just below the right clavicle.
2. A 3 x 1 cm wound going deep 2 cm below and medial to left nipple.
3. A 2 x .5 cm x muscle deep wound on outer side of lower 1/3rd of left arm.
4. A 2 x 2 cm muscle deep wound on outer side of right wrist joint.
5. A 2 x .5 cm x bone deep wound on back of lower most part of chest, right side 2 cm away from back bone."
' After conducting postmortem examination, the doctor opined as under:- "Death in this case has occurred due to haemorrhage leading to cardio respiratory arrest. Injury No,2 is the primary cause of death, while other injuries have contributory effect. Probable time between injuries and death was immediate and between death and post mortem was about 17 to 24 hours."
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 09.02.2012. Learned DDPP gave up Muhammad Zaman, PW, being unnecessary while Nazeer Ahmed and Muhammad Naveed, PWs, were given up on 17.02.2012 again being unnecessary. On 24.02.2012 learned DDPP further gave up Mudassar Ali, Tariq Javed and Muhammad Boota 1042/C, PWs, being unnecessary. After tendering in evidence the reports of Chemical Examiner (Exh.PL and Exh.PM) and report of Serologist (Exh.PN), prosecution evidence was closed.
8. The appellant was also examined under section 342, Cr.P.C. Wherein he opted neither to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of allegations leveled against him in the prosecution evidence nor he opted to adduce evidence in his defence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:- "This case is registered against me on the instigation of Fayyaz Ahmed PW who murdered the deceased and managed this to be registered against me. I have nothing to do with this case. I have been involved in this case due to previous enmity. All the witnesses are related to Fayyaz Ahmed. PW who is the real culprit of this case. Fayyaz Ahmed PW has enmity with me i,e, why he deposed against me. The remaining PWs are the police officials."
9. After hearing the arguments advanced by learned counsel appearing on behalf of both the parties, the learned trial court, while evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt, resulting into conviction of the appellant in the above stated terms.
10. At the very outset learned counsel for the appellant contended that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record. Contended that the story advanced by the prosecution does not ring true as the presence of the prosecution witnesses at the place of occurrence at the relevant time is highly doubtful. Argued that besides the complainant and Fayyaz Ahmed (PW-4), Nazeer Ahmed and Muhammad Naveed, PWs (since given up) claim to be present at the place of occurrence at the relevant time who had witnessed the occurrence. Although it is not the prosecution case that the appellant was armed with any lethal weapon or he had extended threats to the prosecution witnesses, none of the PWs, who all were of quite young, made any effort whatsoever to hold the appellant in order to rescue the deceased. It was argued that the complainant is widow of deceased while Fayyaz Ahmed (PW-4) was his employer, hence the prosecution witnesses made statements being interested witnesses, therefore, the same cannot be given any weight. Contended that the postmortem examination in this case was conducted with a delay of about 24 hours, which smashes the credence/plausibility of the whole prosecution version and creates serious dents in the promptness of the FIR. Learned counsel forcefully contended that no cogent evidence was produced regarding motive either during the course of investigation or during the course of trial. As far as recovery of knife allegedly effected from the appellant and reports of Chemical Examiner and Serologist are concerned, it was argued that the recovery was effected after sixteen days of the occurrence from open fields; hence the same squarely becomes inconsequential. Learned counsel finally argued that keeping in view all the facts and circumstances brought forth on record, the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt, hence, the conviction and sentence recorded by the learned trial court is not sustainable in the eyes of law, which is liable to be set aside.
11. Conversely learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant on the ground that it was a daylight occurrence; wherein the appellant is duly named with his specific role in a promptly lodged FIR. It was argued that the appellant had committed the occurrence with strong motive. Further contended that the prosecution witnesses of the ocular account while appearing in the witness box fully supported the prosecution version. Both of them were subjected to lengthy cross-examination, however, the defence failed to create any crack in their testimony from where it could be gathered that they had not witnessed the occurrence. Further contended that the complainant being widow of the deceased had no ill will to falsely, substitute the appellant in place of real culprit. It was argued that the medical evidence fully corroborates the prosecution version.
Further contended that after arrest of the appellant knife was recovered during the course of investigation and the reports of Chemical Examiner (Exh.PM) and Serologist (Exh.PN) are positive, which fully connect the appellant with the occurrence. It was argued that during the course of investigation the appellant was found guilty as such his name was placed in column No,3 of the report prepared under section 173, Cr.P.C. Lastly it was argued that the appellant by inflicting repeated knife blows had taken the life of an innocent person and the prosecution adduced its case through straight forward, reliable and confidence inspiring evidence, therefore, the learned trial court while appreciating the evidence in its true perspective, rightly convicted and sentenced the appellant, hence, the appeal in hand is liable to be dismissed.
12. We have heard the arguments advanced from both sides and perused the record with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
13. It is cardinal principle of law that each criminal case has its own peculiar facts and circumstances and same hardly coincide with each other on salient features. Undeniably it is very unfortunate occurrence in which husband of the complainant was done to death by the assailant in broad daylight. The stamp of injuries can only reflect the cause of death, severity of injuries and weapon used during the occurrence, but the same cannot disclose the name of assailant.
According to prosecution, version the occurrence in the instant case had taken place on 20.09.2011 at 5:00 p.m. While the same, was reported to the police at 6:30 p.m. Whereas inter se distance between the place of occurrence and the Police Station is 6-KMs. In order to substantiate its case the prosecution has led evidence in the shape of ocular account, motive, medical evidence, recovery of knife and reports of Chemical Examiner and Serologist in this regard, as well as investigation.
14. As far as ocular account in this case is concerned, the same is coming out from the mouth of Irshad Bibi (PW-3), widow of Sakhi Muhammad deceased and Fayyaz Ahmed (PW-4). The pivotal point to be determined by this Court is to evaluate whether the prosecution witnesses were present at the place of occurrence at the relevant time as claimed by them and if so whether the conduct shown by them appeals to a person of ordinary prudence. According to contents of the crime report it is alleged that besides the complainant, the occurrence was witnessed by Fayyaz Ahmed (PW-4), Nazeer Ahmed son of Sohan and Muhammad Naveed son of Murad Ali, PWs (both given up). As far as presence of the prosecution witnesses at the place of occurrence at the relevant time is concerned, although Irshad (PW-3) is widow of Sakhi Muhammad, however, it is not the prosecution case that she used to accompany her deceased husband in routine during grazing the cattle. Similarly although Fayyaz Ahmed (PW-4) is employer of the deceased, however, he is resident of Chak No,27/R.B. It is also not the prosecution case that PW-4 owned, any agricultural land near the place of occurrence. Moreover, there is nothing on record that for what purpose he had approached the place of occurrence at the relevant time. If for the sake of arguments the prosecution version regarding presence of the prosecution witnesses is taken as correct then admittedly besides the complainant, three young men were present at a distance of 22-feet where the appellant had inflicted injuries upon the deceased. It is also the prosecution case that when the appellant 'approached there he was armed with a conventional weapon (knife) and except raising lalkara to the deceased he had not extended threats to any of the PWs, however, surprisingly none of the PWs had even made any' attempt to rescue the B deceased from the clutches of the assailant. Their passive conduct at the scene of occurrence when Sarfraz Masih, appellant was inflicting injuries to the deceased, reflects adverse to the narrated prosecution story and the unnatural behavior canvassed by them leads us to nothing but to infer their non-presence at the place of occurrence. In this regard guidance can be sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Liaqat Ali v. The State (2008 SCM R 95) wherein, it was held as under:- "5-A. ... The explanation given by these witnesses that since Liaqat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellent to common sense as Liaqat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
' Similar view was reiterated by the august Supreme Court of Pakistan in the cases of Ali Sher v. The State (2015 SCM R 142) and Pathan v. The State (2015 SCM R 315). In the case of Pathan v. The State (2015 SCM R 315), the apex Court had held as under:- "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony..."
Keeping in view the afore-stated facts and circumstances, this Court is of the view that the prosecution version with regard to ocular account seems to be tainted, not inspiring confidence and result of due deliberations and consultations, hence the same cannot be given any legal credence.
15. As far as motive in this case is concerned while lodging the crime report the complainant, in categorical terms, stated that about two years prior to the occurrence, Sarfraz Masih had inflicted injuries upon Sakhi Muhammad, deceased, and in this regard not only a criminal case w was registered rather the appellant was also convicted in that very case on account of evidence made by the deceased, however, neither copy of the FIR was brought on record nor the judgment of conviction was produced either during the course of investigation or during the course of trial.
Hence, there is nothing on record to supplement the motive part of the case. It is established principle of law that motive once alleged it is incumbent upon the prosecution to prove the same and if the prosecution fails to prove the motive, it must suffer. The august Supreme Court of Pakistan in the dictum of law in Noor Muhammad's case (2010 SCM R 97) while dealing a similar situation had held as under:- "---S. 302(b)---Qatl-i-amd---Appraisal of evidence---Motive--When motive is alleged but not proved, then ocular evidence is required to be scrutinized with great caution."
16. Another important aspect of the case which requires attention of this Court is that the postmortem examination was conducted after the elapse of 24 hours. Although according to statement of the Investigating Officer on reaching the place of occurrence, he prepared relevant papers and dispatched the dead body to mortuary, however, according to postmortem examination report (Exh.PK) it has been mentioned that the dead body was received in the mortuary on 21.09.2011 at 8:00 a.m. While the police papers were received at 9:00 a.m. On the same day and at 10:00 a.m. The doctor conducted post mortem examination. The whole file is silent that during the intervening period spread over more than thirteen hours where the dead body was kept.
When confronted learned counsel for the complainant frankly concedes that he is unable to satisfy the Court on this aspect. The reasons for delayed postmortem examination also create suspicion in the mind of the Court regarding the promptness and genuineness of the crime report, whereas the Medical Officer has observed that the probable time that elapsed between the injury and death was immediate and between the death and postmortem examination was seventeen to twenty four hours, which also contradicts the prosecution story regarding the time of occurrence. In such like situation, the august Supreme Court of Pakistan has evaluated the prosecution evidence with suspicion and in two recent judgments has taken serious note of delayed postmortem examination while extending the benefit of doubt on this score alone. In the case of Irshad Ahmed v.The State (2011 SCM R 1190), the august Supreme Court of Pakistan, has observed as under:- "----S. 302---Qatl-i-amd---Post-mortem examination---Delay in postmortem examination is generally suggestive of a real possibility that time was consumed by police in procuring and planting eye-witnesses and in cooking up a story for prosecution before preparing police papers for getting a post mortem examination of dead body conducted".
' In the case titled Khalid alias Khalidi and 2 others v The State (2012 SCM R 327), it has been held as under:- "----Incident took place at 2-00 a.m. FIR was recorded at 4/5 a.m., doctor medically examined injured person .4/5 a.m, but conducted post-mortem examination of deceased at 3:00 p.m. i,e, after about ten hours, such facts showed that FIR was not lodged at the given time---".
17. Now the only evidence which still remains in field is in the shape of reports of Chemical Examiner and Serologist with regard to recovery of knife allegedly effected from the appellant during the course of interrogation. According to prosecution version the occurrence had taken place on 20.09.2011 whereas the alleged recovery was effected on 06.10.2011 from open fields of paddy crops, which was accessible to general public, therefore, it straightway hits the authenticity of the reports of offices of Chemical Examiner and Serologist (Exh.PM and Exh.PN). Even otherwise it is cardinal principle of law that the recovery is deemed to be corroborative in nature and it is used for support of direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Jamil v. Muhammad Akram and others (2009 SCM R 120); wherein it was held as under:- "---S. 302(b)---Appreciation of evidence---Principle---In a case of direct evidence other pieces of evidence are used for corroboration or in support of direct evidence--- When direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."
18. Before concluding we are also inclined to comment upon the contention raised by learned counsel for the complainant regarding promptness of the FIR. It goes without saying that the same is to be examined/scrutinized together with other features of the case, if this aspect of the prosecution case is taken in totality then admittedly the prosecution has squarely failed to satisfy this Court on number of other characteristics of the case. We are fortified in our view as per dictum of law laid down in the cases of Siraj v. The State (1984 SCM R 1238), Zafar Hayat v. The State (1995 SCM R 896), Mst. Dur Naz v. Yousaf and another (2005 SCM R 1906) and Id& Ali and 7 others v. The State (PLD 1971 Dacca 254).
19. From the facts and circumstances narrated above, we are persuaded to hold that the prosecution case is pregnant with major discrepancies creating serious dents in its authenticity and in such like situations it becomes incumbent upon the Court to extend the benefit of doubt in favour of the accused. Furthermore, to extend the benefit of doubt so many circumstances are not required rather one circumstance which creates reasonable doubt in the veracity of the prosecution version is sufficient for the purpose, not as a matter of grace rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Tariq Pervez v. The State (1995 SCM R 1345); wherein following principle was laid down:- "----Art. 4---Benefit of doubt, grant of--For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."
' Similarly in the case titled Aril Hussain and another v. The State (1983 SCM R 428), the august Supreme Court of Pakistan had further held as under:- "---S. 302---Murder---Evidence---Benefit of doubt---Prosecution case not free from doubt--- Charges not brought home to accused in manner required under law--Accused given benefit of doubt and acquitted".
' Moreover, it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 05.04.2012, Cr1. Appeal No,185-J of 2012 filed by Sarfraz Masih/ appellant is accepted in to as a consequence whereof he is ordered to be acquitted of the charge in case FIR No,374/2011, dated 20,09.2011, offence under section 302, P.P.C., registered with Police Station Safdarabad and directed to be released forthwith, if not required in any other case.
20. Murder Reference No,176 of 2012 forwarded by the learned trial court for confirmation of sentence of death inflicted upon the convict fails, which is answered in negative.
' Death sentence is not confirmed.