SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No,355-J of 2013 filed by Muhammad Shafique appellant (against his conviction) and M.R No,323 of 2013 sent by Trial Court for confirmation of death sentence of Muhammad Shafique appellant or otherwise, as both the above stated matters have arisen out of the same judgment dated 7.10.2013 passed by learned Sessions Judge, Kasur, according to which appellant was convicted and sentenced as under:- Muhammad Shafique son of Mehr Din.
Under section 302(b), P.P.C. He was sentenced to DEATH as `Tazie along with compensation Rs,1,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default thereof further undergo six months S.I.
Whereas, his co-accused namely Abdul Hameed was acquitted in case FIR No,13 dated 20.10.2010 under section 302/34, P.P.C. Police Station Usmanwala, District Kasur.
2. The facts of the case have been stated by Muhammad Hussain (PW9) real brother of Mst.Kalsoom Bibi (deceased) in his statement before the learned trial court, which is hereby reproduced for narration of the facts:-- "Kalsoom deceased was my sister. On 20.10.2010, at about 9:30 a.m. I along with Ahmad Ali, Shaukat were present in the house of Kalsoom Bibi deceased. Kalsoom Bibi went to the house of neighbor to take eggs when she was returning to her house when she reached near the door of her house, I heard noise in the street. We came in front of the door of house of Kalsoom Bibi. I saw Hameed and Shafique accused armed with pistol 30 bore. On seeing Kalsoom Bibi Shafique accused fired at Kalsoom Bibi which hit on her back of the chest. Then Hameed accused fired with his pistol 30-bore which hit on her back of chest. Kalsoom Bibi in injured condition started running to the house of her Jaith Muhammad Younis adjacent to the house of deceased. Hameed and Shafique accused followed her in the house of Muhammad Younis. We also came at the door of Younis's house.
Shafique accused again fired at Kalsoom which also hit on her back side. Kalsoom Bibi succumbed to the injures at the spot.
The motive behind the occurrence was that accused Shafique and Hameed abducted daughter of Kalsoom Bibi and prepared a forged Nikah Nama. Kalsoom Bibi got registered a case against accused persons and also filed civil suit in the court. Court gave decision in favour of Kalsoom Bibi deceased. Due to this grudge they committed the murder of Kalsoom Bibi. I Shaukat Ali, Ahmad Ali saw the occurrence.
Police came at the spot. I along with Shaukat Ali, Ahmad Ali and other persons of the Mohallah appeared before the police. Firstly police took the dead body of the deceased in possession then I.O. secured blood stained earth from the place of occurrence and made sealed into parcel.
Recovery memo was prepared Exh.P.E. I and Shaukat Ali attested the recovery memo. After that I.O. collected two crime empties of pistil 30 bore from the street and one empty from near the dead body of the deceased Kalsoom. Sealed parcels was prepared and same was secured by the I.O. vide recovery memo Exh.P,F, I along with Shaukat Ali attested the recovery memo. I got recorded my statement to the I.O. under section 161, Cr.P.C."
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 23.01.2011 against the appellant along with his co-accused Abdul Hameed (since acquitted) under section 302/34, P.P.C. to which they pleaded not guilty and prosecution evidence was summoned.
5. The Prosecution produced Abdul Rashid 409/C PW-1, Ashfaque TASI PW-2, Muhammad Nasrullah, draftsman PW-3,. Muhammad Irfan PW-4, Muhammad Farooq PW-5, Ahmad Ali (complainant)
PW-6, Rustam Ali 9/H.C. PW-7, Shaukat Ali PW8, Muhammad Hussain PW-9, Qurban Shabbir, S.I. PW- 10, Muhammad Saleem S.I PW-11 and Dr. Zulfiqar Ahmad PW-12, whereas, PWs namely Pervaiz Iqbal and Abdul Jabbar given-up by the prosecution being unnecessary and after tendering documentary evidence i,e, Exh.PA to Exh.P0, closed the prosecution evidence.
6. Medical evidence has been furnished by Dr. Zulfiqar Ahmad PW12, who stated in his statement (examination-in-chief) as under:-- "On 21.10.2010 I was posted at DHQ. Hospital, Kasur. On the said date Lady doctor Noshaba was also posted at DHQ) Hospital, Kasur as woman medical officer. She worked with me. Lady doctor Noshaba has left the Government Job and her whereabouts are not known to any one. I can identify the hand writing and signatures of lady doctor Noshaba. On 21.10.2010 lady doctor Noshaba conducted post - mortem examination on the dead body of Kalsoom Bibi wife of Abdul Ghaffar and she issued PMR. No, 103/2010 dated 21.10.2010. Carbon copy of said PMR is available on the judicial file. The same is in the hand writing of lady doctor Noshaba and bears her signature which is Ex.P.L. Pictorial diagrams Ex.P.L/1 and Ex:P.L/2 are also signed by the lady doctor Noshaba. (At this stage learned defence counsel raised objection regarding exhibit of PMR that PMR cannot be exhibited in. the statement of Dr. Zulfiqar Ahmad recording secondary evidence. The objection will be decided at the time of final arguments)."
7. On the other hand, statements of Muhammad Shafique appellant and his co-accused Abdul Hameed (since acquitted) were recorded under section 342, Cr.P.C. who refuted the allegations so leveled against them. The appellant did not opt to appear as witness under section 340(2), Cr.P.C.
However; he produced documents Exh.DA to Exh.DN in his defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" Muhammad Shafique appellant replied as under:-- "Nabeela, the daughter of the deceased was in love with me. This affair was known to everyone in the vicinity. Nabeela eloped with me and false case was registered against me for her kidnapping under section 365-B, P.P.C. vide FIR No,868/2009 at P.S. Khudian Kasur. In Writ Petition No, 4066 of 2010 before the Hon'ble High Court, Nabeela gave the statement in my favour and thus the writ petition was disposed of by Mr. Manzoor Ahmad Malik, Judge Hon'ble Lahore High Court on 12.3.2010.One of the daughters of the P.W.8 who was a close relative of the deceased was also eloped with her lover on which he registered a case in Police Station Kanganpur. P.W.8 also stood as eye-witness of the kidnapping of Nabeela which case was found groundless by the Hon'ble Lahore High Court therefore, no reliance can be placed on the testimony of false witnesses. The family of the deceased was looked down upon in the area due to the love affairs of their females.
The death of Kalsoom Bibi was a blind murder and I am roped in this case on the connivance of false witnesses. The complainant specially stated before the Court that it was one Younas Mochi who committed the murder, since he had a dispute of over 50 lacs with the deceased lady. The complainant of the case denied the whole prosecution story and specially stated that the FIR was jotted down without his instructions. The alleged eyewitnesses P.Ws were also stated to be not there by the complainant.
The alleged P.Ws. are also close relatives of the deceased and none of them have justified their presence at the place and at the time of occurrence. All the P.Ws are chance witnesses who harbor hatred against me due to my relationship with Nabeela. The P. Ws made dishonest improvements during their testimony which renders their testimony highly unbelievable. There are stark contradictions in the testimony of the P.Ws. The statements recorded by P. Ws under section 161, Cr.P.C. are in handwriting of 2nd I.O. i,e, P.W.11 Muhammad Saleem, S.I. who took the charge on the case on 01.11.2010 whereas, on 20.10.2010, P. W .9Qurban Shabbir SI was the I.O. of the case. This fact alone establishes that I am roped in this case on the instruction of false witnesses. The prosecution is also guilty of withholding best evidence. The police never took the statement of Nabeela and Javed in whose house the dead body of Kalsoom was found. No testimony of any neighbour was ever recorded by the Police because they knew that the truth will come on the surface."
8. After conclusion of the trial, learned trial court while acquitting Abdul Hameed co-accused of the appellant, convicted the appellant with above said sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:-- (i)the judgment of the trial court dated 7.10.2013 is against law and facts on the file and is liable to be set-aside.
(ii)that the prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial court has convicted the appellant on the basisof surmises and conjectures; (iii)it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law; (iv)Lastly submitted thatinstant appeal may be accepted and the judgment of the trial court dated 7.10.2013 may kindly be set aside and appellant/convict may be acquitted.
10.On the other hand, learned D.P.G assisted by learned counsel or the complainant has vehemently opposed the appeal and submitted that:--
(i) the prosecution has proved its case beyond any shadow of doubt against the appellant/ convict with solid evidence and prayed for the dismissal of the appeal.
11.We have heard the learned counsel for the appellant as well as learned D.P.G. assisted by learned counsel for the complainant and perused the record.
12.The detail of prosecution case has already been given in para.-2, of this judgment, therefore, there is ilti need to repeat the same to avoid the duplication and repetition.
13.According to the FIR, occurrence took place on 20.10.2010 at 9-30 a.m., whereas FIR was registered on the same day (20.10.2010) at 10:35a.m. on the written application Exh.PB/1 moved by Ahmad Ali complainant PW6, real brother of Mst.Kalsoom Bibi deceased. Place of occurrence is the street in front of house of Mst.Kalsoom Bibi deceased. The prosecution has introduced following accused in this case:-- 1 Abdul Hameed This accused has been acquitted by the Trial Court through the impugned judgment and complainant/ State has not filed any appeal against his acquittal as stated by learned G.P.G.
2 Muhammad Appellant Shafique
14. Ahmad Ali complainant PW6, his brother Muhammad Hussain PW9 and his cousin Shaukat Ali PW8 claim themselves to be the eye-witnesses of the occurrence. Ahmad Ali complainant. PW6 (real brother of Mst.Kaisoom Bibi deceased) while appearing in the Trial Court stated in his statement (examination-in-chief) that he was not present at the time of occurrence. He further stated that in his statement (examination-in-chief) that the police obtained his signature on blank paper and later on police on their own chalked out the FIR. He further stated in his statement (examination-in-chief) that he came at the spot after the occurrence. He farther stated in his statement (examination-in-chief) that his brother, Muhammad Hussain PW9 had gone to Khudian along with his mother and his cousin Shaukat Ali PW8 had gone to Bahawalpur in order to purchase goats, which was his business. This witness was declared hostile on the request of learned DDPP. His statement is hereby reproduced:-- "Stated that at the time of occurrence, I was not present at the place of occurrence. Police obtained my signature on a blank paper and later on the police at their own chalked out the FIR. I came at the spot after the occurrence.My brother Muhammad Hussain (PW) had gone to Khudian along with my mother, whereas, Shaukat Ali P.W. had gone to Bahawalpur in order to purchase the he- goats as he did the said business. I had not witnessed the accused, present in the court, at the crime scene at the time of occurrence. The accused present in court are innocent."
15. Muhammad Hussain, real brother of Mst.Kalsoom Bibi deceased PW9 and his cousin Shaukat Ali PW8 stated in their statements that on 20.10.2010, they were present in the house of Mst.Kalsoom Bibi deceased and saw the occurrence took place in the street. Admittedly, these two witnesses were not residing in the house of Mst. Kalsoom Bibi deceased in front of which, occurrence took place in the street. They were chance witnesses, but have failed to establish their presence at the time of occurrence at the place of occurrence. Further, Ahmad Ali complainant PW6, real brother of Mst. Kalsoom Bibi deceased has not supported the prosecution story, rather he admitted in cross- examination as under:- "It is correct that I had made a statement on television Dunya Channel in which I had stated that real murderer of the deceased, Kalsoom Bibi is Younis Mochi. It is correct that an amount of Rs,50 to 60 lac was given by the deceased to the said Younis Mochi for the business purpose. It is correct that when the deceased demanded back his money the said Younis Mochi became annoyed. It is correct that about 30 minutes prior to this occurrence the said Younis Mochi snatched the pistol from the deceased."
16. Abdul Hameed real brother and co-accused of the appellant has been attributed effective role of fire shot on the person of Mst.Kalsoom Bibi deceased and he has been acquitted by the Trial Court through the impugned judgment by disbelieving the evidence of Shaukat Ali PW8 and Muhammad Hussain PW9, complainant/ State has not filed any appeal against his acquittal, same evidence against the appellant cannot be believed absence of any independent corroborative evidence, which is missing in the present case. Reliance is placed on case titled "Shahbaz v. The State" (2016 SCM R 1763) in which Hon'ble Supreme Court of Pakistan has observed at pages 1765 as under:-- "The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then he same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11). Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758) lftikhar Hussain and others v. The State (2004 SCM R 1185) and Akhtar Ali and others v. State (2008 SCM R 6).
In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequentialbecause the recovered chhurri was not stained with blood".
17. Muhammad Saleem S.I PW11/I.O. of this case stated in his statement (examination-in-chief) that on 11.11.2010 he arrested Muhammad Shafique appellant and thereafter, on 18.11.2010 the appellant during interrogation disclosed and got recovered pistol 30-bore P3. Perusal of report of FSL Exh.PO shows that crime empties were received in the office on 23.11.2010 after the arrest of the appellant.
Considering above, possibility cannot be ruled out that the crime empties have been manufactured before its dispatch to the FSL. Hence, positive report of FSL Exh.P0 is not believable and the same is hereby discarded. Reliance is placed on case titled "Masood Aslam alias Shada v.
The State" (2002 PCr.LJ 1603) in which Hon'ble Division Bench of this Court has observed at page 1610 as under:-- "The recoveries effected during the investigation of this case had not been believed by the learned trial Court for the detailed reasons recorded in the impugned judgment. Even otherwise the alleged recoveries of fire-arm weapons from the appellants were not of much avail to the prosecution as the statements of PWs. 2, 5 and 11 show that the crime-empties and the said weapons had been sent to the Forensic Science Laboratory together. Thus a possibility of manufacturing of the said crime-empties before their dispatch to the Forensic Science Laboratory could not be ruled out of consideration."
18. In view of the above discussion, we are of the view that prosecution has failed to prove the case against the appellant beyond shadow of doubt. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstances which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as 'Muhammad Akram v. The State)" (2009 SCM R 230), 'in which, Hon'ble Supreme Court of Pakistan has observed in para-13 of page 236 as under:-- "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 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 he would be entitled to its benefit not as a matter of grace of concession, but as a matter of right."
19. For the foregoing reasons, this appeal is allowed. Conviction and sentence of Muhammad Shafique appellant awarded by the Trial Court through impugned judgment are hereby set aside and Muhammad Shafique appellant is acquitted of the charge in case FIR No,13 dated 20.10.2010 under section 302/34, P.P.C. Police-Station" Usmanwala, District Kasur. He is directed to be released forthwith if not required in any other case. Murder Reference No,323 of 2013 is answered in NEGATIVE and death sentence of Muhammad Shafique appellant is NOT CONFIRMED.