SHEHRAM SARWAR CH. J.---Niamat Ali (appellant) was tried by the learned Addl. Sessions Judge, Kasur in case FIR No,47, dated 28.01.2013, offence under Section 302, P.P.C. registered at Police Station B-Division District Kasur for the murder of Mst. Nazia Bibi (deceased) daughter of complainant. Vide judgment dated 28.06.2014 passed by the learned Addl. Sessions Judge, Kasur, Niamat Ali (appellant) has been convicted under Section 302(b), P.P.C. and sentenced to death, with a further direction to pay Rs,1,00,000/- (rupees one lakh only) as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for four months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No,286 of 2014 for confirmation or otherwise of appellant's sentence of death, as required under section 374, Code of Criminal Procedure. Since 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/A) registered on the written application (Ex.PA) of Muhammad Rafique, complainant (PW.5) is that he was permanent resident of Jhala Zeldaran Wali Bashmula, Raja Jhang and a cultivator. About two years back, marriage of Mst. Nazia daughter of complainant was contracted with Niamat Ali (appellant). For the last about 5/6 months, domestic disputes started between the spouses and the complainant side tried to reconcile the same. On 27.01.2013, the complainant received information about altercation between husband and wife, whereupon he along with his son Muhammad Fayaz and Muhammad Munir came to Basti Charagh Shah. At night the complainant party made them understand and stayed there. In the morning, they woke up and were ready to leave but Mst. Nazia Bibi who was kneading the flour stopped them to have breakfast. The complainant party sat down, in the meantime, Niamat Ali (appellant) while taking hatchet from inside started giving its blows to complainant's daughter, which landed on her head, face and neck. The complainant party came out and saw that Niamat Ali (appellant) was giving her hatchet blows and she received grievous injuries on her jaw and head. Niamat Ali fled away by brandishing hatchet. The complainant party attended Mst. Nazia Bibi who had succumbed to the injuries. It was alleged in the FIR that the occurrence was witnessed by the complainant, Muhammad Fayaz and Muhammad Munir.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. The appellant was summoned by the learned Addl. Sessions Judge, Kasur to face the trial. Copies of relevant documents were provided to him, as required under section 265- C, Code of Criminal Procedure and formal charge under section 302, P.P.C. was framed against him on 28.03.2013, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under section 342, Code of Criminal Procedure was recorded on 21.05.2013, wherein he refuied all the allegations of the prosecution and professed his innocence.
In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, the appellant stated as under:-- "I am innocent. I do not know about the occurrence. Complainant has falsely involved me in this false case. Nothing was recovered from my possession. All the proceedings were conducted by the police while sitting at the P.S in connivance with complainant party. I am poor person."
The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. However, 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 there is a delay of about seven hours in the registration of FIR and no plausible reason for such delay has been assigned in the FIR of disclosed before the learned trial court; that the postmortem examination of the dead body of deceased was also conducted after a considerable delay of more than twenty six hours; that the eye-witnesses namely Muhammad Rafique, complainant (PW.5) and Muhammad Fayaz (PW.6) produced by the prosecution were related to the deceased and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business there; that the alleged witnesses of ocular account have not been able to give any plausible reason for their presence at the spot at relevant time, therefore, they are chance witnesses; that the motive set out by the prosecution has not been proved; that the recovery of hatchet (P.10) allegedly effected at the instance of the appellant is inconsequential for the reason that the hatchet was received in the Office of Punjab Forensic Science Agency with a considerable delay of about twenty one days after the occurrence; that the ocular account is not in line with the medical evidence; that the prosecution completely failed to discharge its onus, therefore, no onus lies on the appellant to explain as to how and under which circumstances, his wife has died; that the version of the appellant is more convincing, probable and even gets full support from the prosecution's own case; 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 Addl. Prosecutor General for the State assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the complainant and other eyewitness have absolutely no enmity with the appellant to falsely implicate him in this case; that there was no conscious or deliberate delay in lodging the FIR; that the eye-witnesses have reasonably explained their presence before the learned trial court that they went to the house of Mst. Nazia Bibi (deceased) to reconcile the matter as there was an altercation between the appellant and deceased; that though the eye-witnesses are related to each other as well as to the deceased but merely because of their inter-se relationship or with the deceased, their evidence cannot be discarded; that the recovery of hatchet (P.10) has been effected at the instance of the appellant, who was found fully involved during the course of investigation; that the ocular account is fully supported by the medical evidence; that since the deceased died in the house of appellant, therefore, it was his duty to explain the reasons of her unnatural death; that the version of the appellant is nothing but an afterthought; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
6. We have heard learned counsel for the parties as well as learned Addl. Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.
7. Salient features of the prosecution case are as under:-
(a) This incident wherein Mst. Nazia Bibi (deceased) daughter of complainant lost her life, as per prosecution, took place in the area of Basti Charagh Shah situated within the territorial limits of Police Station B-Division District Kasur on the morning of 28.01.2013 at about 7.00/8.00 a.m. During cross-examination, the complainant stated that the incident took place at 7.00 a.m. The matter was reported to the Police through written application (Ex.PA) of Muhammad Rafique, complainant (PW.5) on the same day at 2.00 p.m. i,e, after the delay of about seven fours and formal FIR (Ex.PA/A) was got registered. The distance between the police station and the place of occurrence is one kilometer. No reason whatsoever has been mentioned in the FIR by the complainant for such delay in reporting the crime to the police. Even before the learned trial court, no plausible reason has been assigned by the complainant and he (complainant) simply stated that by leaving his son Muhammad Fayaz (PW.6) and Munir Ahmad (since given up) at the spot, he left for Police Station B-Division, which shows that no sincere effort was made by the complainant's side to report the matter to the police with due promptitude. The postmortem examination of the dead body of deceased was conducted on 29.01.2013 at 9.15 a.m. i,e, about more than twenty six hours after the incident. Therefore, possibility exists that it was an un-witnessed murder and time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution. In this regard, reliance is placed on the case of "Muhammad Riaz v. The Slate" (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 eyewitnesses 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) The ocular account in this case has been furnished before the learned trial court by two eye- witnesses namely Muhammad Rafique complainant(PW.5) and Muhammad Fayaz (PW.6), who were closely related and chance witnesses. Muhammad Rafique, complainant (PW.5) is father and Muhammad Fayaz (PW.6) is brother of the deceased. Both the eye-witnesses were chance witnesses because they were neither residents of the place of occurrence nor have any place of business there. They are residents of Raja Jang, Kasur whereas the occurrence took place in Basti Charagh Shah, Kasur. Even these witnesses have not assigned any plausible reason for going to the house of deceased and they simply stated that Niamat Ali (appellant) and Nazia Bibi (deceased) have developed some dispute and she (deceased) told Fayaz Ahmad (PW.6) that the appellant used to quarrel with her. It was case of both the alleged eye-witnesses that they stayed/slept in the house of appellant, so it does not appeal to a prudent mind that the appellant did not cause any harm to Mst. Nazia Bibi at night time when her father and brother (PW.5 and 6) were sleeping but astonishingly committed her murder in their presence in the morning when they were about to leave. Before the learned trial court, the eyewitnesses have utterly failed to establish the stated reason for their presence at the place of occurrence at relevant time. It is in this context that the testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course the presumption under the law would operate about his absence from the crime spot. The testimony of chance witness may be relied upon providedsome convincing explanations appealing to prudent mind for his presence at the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt Reliance may be placed on the case law reported as "Mst.
Sughra Begum and another v. Qaiser Pervez and others" (2015 SCM R 1142) and "Muhammad Javed v. The State" (2016 SCM R 2021). The presence of both the eye-witnesses along with said Muhammad Munir (given up PW) at the spot at early hours of the day is also not free from doubt because had they been present at the spot at relevant time, why they did not try to rescue the deceased or to catch hold of the appellant, who admittedly was not armed with any firearm toward the said eye-witnesses off or to keep them away at the time of incident. c) No specific motive has been mentioned in the FIR or disclosed before the learned trial court rather it was alleged that the appellant used to quarrel with his wife over domestic affairs. We have observed that no independent witness in support of the motive was produced during investigation or brought before the learned trial court. Even otherwise, disputes between the spouses over domestic affairs are not unusual in our culture, therefore, there is no need to discuss the motive any further. d) So far as the alleged recoveries of hatchet (P.10) at the instance of the appellant which was taken into possession vide recovery memo Ex.PH and positive report (Ex.PK) of Punjab Forensic Science Agency are concerned, the same are inconsequential for the reason that the occurrence took place on 28.01.2013, the appellant was arrested on 11.02.2013 and the recovery of hatchet was got effected on 14.02.2013, which was received in the office of Punjab Forensic Science Agency on 18.02.2013 i,e, after at out twenty one days of the occurrence, therefore, it was unlikely that the blood on the hatchet would not disintegrate during the above mentioned period. Reliance is placed on the case law reported as "Muhammad Jamil v. Muhammad Akram and others" (2009 SCM R 120).
So far as the medical evidence is concerned, in the FIR and before the learned trial court, it was case of the prosecution that the appellant gave three hatchet blows to the deceased which landed on her forehead, mouth and neck but Dr. Hafsa Asim (PW.10) who conducted postmortem examination of the dead body of deceased observed nine incised wounds on head, forehead, face, neck, chin and right forearm of the deceased. Therefore, in our view, the ocular account is not in line with the medical evidence. f) So far as the murder of deceased in the house of appellant is concerned, we may observe here that in such like cases, some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the matrimonial house but where the prosecution completely fails to discharge its initial onus, there no part of the onus shifts to the accused person at all. In this regard, reliance is placed on the cases reported as "Abdul Majeed v. The State" (2011 SCM R 941) and "Arshad Khan v. The State" (2017 SCM R 564).
8. So far as version of the appellant taken by him in his 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. 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 L 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 "Muhammad Akram v. The State" (2009 SCM R 230), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe 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 Tarig Pervez v. The State 1995 SCMR 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,430-J of 2014 filed by Niamat Ali (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 28.06.2014 passed by the learned Addl. Sessions Judge, Kasur are set aside and he is acquitted of the charge while extending him benefit of doubt. Niamat Ali, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No,286 of 2014 is answered in the NEGATIVE and the sentence of death awarded to Niamat Ali (convict) is NOT CONFIRMED.