ABDUL SAMI KHAN, J.---Noor Muhammad appellant was tried in case FIR No,387/2011, dated 10.08.2011, under Sections 302, P.P.C., registered at Police Station Harappa, District Sahiwal, by the learned Sessions Judge, Sahiwal, who, vide judgment dated 14.11.2012, convicted the appellant on the charge of offence under section 302-B, P.P.C. and sentenced him to undergo life imprisonment and to pay compensation amounting to Rs,2,00,000/- to the legal heirs of Mst. Siani Bibi deceased under section 544-A, Cr.P.C., failing which the appellant will further undergo S.I. for six months. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. Noor Muhammad appellant has challenged his conviction and sentence through the instant criminal appeal.
2. The prosecution story set forth in FIR (Ex.PA/1) on the basis of complaint (Ex.PA) by Azam complainant is that about four months prior to this occurrence, the marriage of Mst. Siani Bibi, younger sister of complainant, was solemnized with appellant Noor Muhammad who is also cousin of complainant. The sister of complainant after one month of marriage complained that her husband is an addict and forced her to provide money for purchasing narcotics. On 10.08.2011, at about 6.00 - p.m., the complainant along with Khadim Hussain and Talib Hussain went to see his sister in Nai Abadi Harappa and they were sitting in the courtyard; that appellant Noor Muhammad asked his wife Mst. Siani Bibi that she had called her brothers by complaining against him, therefore, a quarrel took place between husband and wife. That appellant Noor Muhammad inflicted three blows at Mst. Siani Bibi with "Chobi Pawa" and she sustained injuries on the right side, left side and back side of her head. The complainant and PWs tried to apprehend the appellant but he made his escape good along with weapon of offence. The occurrence was witnessed by Khadim Hussain, Talib Hussain besides the complainant. They attended Mst. Siani Bibi who succumbed to the injuries at the spot. The motive behind the occurrence was that appellant Noor Muhammad was addicted to narcotics and used to demand amount from Mst. Siani Bibi and she made a complaint to complainant and due to this grudge, the appellant Noor Muhammad committed murder of Mst. Siani Bibi.
3. After registration of FIR, investigation of the case was conducted by Muhay-ud-Din SI/PW.9 and after completion of investigation, report, under Section 173, Cr.P.C. was prepared and submitted before the Court. At the commencement of trial, the learned trial Court after observing legal formalities provided in the Code of Criminal Procedure 1898 framed charge against the appellant on 02.02.2012 to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case against the appellant examined as many as nine witnesses before the learned trial Court.
Azam complainant (PW-7) and Talib Hussain eye-witness (PW-8) furnished ocular account, while Muhay-ud-Din SI (PW-9) is the investigating officer who appeared before the learned trial court and stated about various steps taken by him during the course of investigation of this case.
Medical evidence was furnished by Dr. Sidra Arooj (PW-3) who had conducted the postmortem examination on the dead body of the deceased Mst. Siani Bibi. The remaining prosecution witnesses, more or less are formal in nature. After completion of the prosecution evidence, statement of the appellant as provided under Section 342, Cr.P.C. was recorded by the learned trial Court. He professed innocence and pleaded false implication in the 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.
4. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No,1 of this judgment.
5. 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 contended that the prosecution has amply proved the case against the appellant beyond any reasonable doubt, the impugned judgment does not call for any interference by this Court, so the conviction and sentence of the appellant be maintained and his appeal be dismissed.
6. I have heard the learned counsel for the parties at length, given my anxious consideration to their arguments and have also scanned the record with utmost care and caution.
7. The occurrence in this case took place on 10.08.2011 at 06.00 p.m. whereas FIR was shown to have been chalked out on the same day at 06.40 p.m. but the Postmortem Examination on the dead body of the deceased had been conducted by the doctor on 11.08.2011 at 9.30 a.m. It has been noticed that there is a delay of fifteen and half hours in conducting the Postmortem Examination of the dead body in this case. If this delay is considered with the touch stone of statement adduced by Dr. Sidra Arooj (PW-3) who had categorically stated in her statement that probable duration between injury and death is within 10 to 15 minutes and that between death and post-mortem examination was within 24 hours, it seems that the occurrence had not taken place at 6.00 p.m. on the fateful day. Talib Hussain (PW-8) admitted that the dead body remained in police station for about half an hour and the dead body was sent to police station prior to its postmortem whereas the investigating officer Muhay-ud-Din SI (PW-9) stated that he was present at Council More at about 6.30 p.m. on patrolling duty where the complainant appeared before him. During cross- examination, he negated that the dead body was taken to the police station rather it was directly sent to mortuary for post mortem from the place of occurrence. Thus the contradictions which surfaced about the time of occurrence through opinion of doctor and the statement of the complainant Azam (PW-7), Talib Hussain (PW-8) and that of investigating officer Muhay-ud-Din SI (PW.9) left an impression into my mind that delay in conducting postmortem examination was due to the fact that the dead body was taken to police station from the place of occurrence and matter had been reported to the police after due deliberations and consultations after procuring the attendance of complainant and eye-witnesses. In such like circumstances the Hon'ble Supreme Court of Pakistan has held that the delay in conducting the post-mortem examination of the dead body shows that the FIR was not lodged at the given time. Reliance is placed on the case of Khalid alias Khalidi and 2 others v. The State (2012 SCM R 327). Thus, in perspective of the delayed postmortem examination I am of the view that the FIR had not been registered by the complainant with sufficient promptitude as shown in the FIR. The Hon'ble Supreme Court of Pakistan in case of "Muhammad Ashraf v. The State" (2012 SCM R 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 FIR 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, 47-2003 at 10-00 a.m. If FIR 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 FIR was recorded with a delay and cannot be used against the appellant as a corroborative piece of evidence."
In these eventualities, it can safely be held that FIR (Ex.PA) was not 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.
8. There is no cavil to the proposition that eye-witness account is always considered as backbone of every criminal case. As regards the eye-witness account is concerned, besides himself Azam complainant (PW-7) has mentioned the names of Talib Hussain (PW8) and Khadim Hussain (given up PW) who allegedly witnessed the occurrence. However, it is quite clear from the statements of Azam complainant (PW-7) and Talib Hussain (PW-8) that prior to this occurrence, the other sister of complainant namely Rani Bibi was also murdered and a case regarding the murder of Mst. Rani Bibi was registered against PW-8 Talib Hussain and his brother Dilbar. PW-8 Talib Hussain frankly admitted in his cross-examination that he along with his brother Dilbar committed murder of Mst.
Rani Bibi and that she was murdered due to her bad character. It has also come on record that this is second marriage of Mst. Siani Bibi deceased and she was divorced by one Iqbal Hussain prior to her marriage with the appellant Noor Muhammad. The complainant Azam PW.7 during cross- examination negated that his sister Rani Bibi was of bad character, however, admitted, that Dilbar and Talib married their sister namely Zenab Bibi to his brother namely Saleem in lieu of murder of his sister Mst. Rani Bibi. In this scenario, the presence of PWs especially that of Talab Hussain (PW- 8), at the place of occurrence in the house of appellant as well as deceased on the complaint of deceased Mst. Siani Bibi is unbelievable and it does not appeal to prudent mind that a person who earlier murdered the sister of complainant would go in the house of appellant as well as deceased in the presence of such background. Even otherwise, there are many other circumstances which clearly disprove the presence of not only PWs Talib Hussain and Khadam Hussain but also of Azam complainant at the spot at the time of occurrence. I have observed that in the FIR Ex.P.A/1 the complainant has mentioned that the appellant took "Chobi Pawa" which was lying beside him and inflicted three blows which hit on the head of deceased Mst. Siani Bibi but while appearing as PW-7, the complainant contradicted the C contents of FIR and stated that appellant Noor Muhammad took "Bala" and gave three blows with it on the head of deceased. Meaning thereby, the presence of PWs at the spot at the time of occurrence is not free of doubts. Besides above, as per complaint Ex.PA, FIR Ex.PA/1 and statements of PWs shows that the appellant Noor Muhammad inflicted three blows of "Chobi Pawn" which hit the deceased on her head but as per statement of Doctor Sidra Arooj (PW-3), all the injuries were caused by sharp edged weapon. This fact clearly shows that there is contradiction between ocular account and medical evidence and the same also suggests that eye-witnesses were not present at the place of occurrence at the time of occurrence. I may observe here that according to prosecution own case; the appellant is an addict and how he escaped from the spot after committing the occurrence in the presence of three grown up witnesses when he was not even armed with firearm weapon. The unnatural conduct shown by the PWs by not apprehending the appellant at the spot proves that the PWs were not present at the spot at the time of occurrence. It is also noticed that admittedly the occurrence had taken place in a thickly populated area but no inhabitant from the locality had come forward to support the prosecution case. There are glaring contradictions between the statements of both the eye- witnesses with each other on material points. They are also interested witnesses and their statements being not worthy of reliance and confidence inspiring cannot be out rightly accepted for maintaining convictions and sentence of the appellant, without any independent corroboration by some other evidence, which is lacking in the present case. All the above 'mentioned facts clearly suggest that the occurrence had not taken place in the manner as stated by the eye- witnesses. For these reasons coupled with the factum that the FIR was also found to have not been got lodged promptly as the post-mortem examination was conducted with delay of fifteen and half hours. I have no hesitation in holding that both the eye-witnesses had not witnessed the incident and possibility of their becoming the witnesses after receiving the information of the incident being close relatives of the deceased cannot be ruled out. Keeping in mind the above discussion, I am of the definite view that the complainant Azam (PW-7), Talib Hussain (PW-8) and Khadim Hussain (given up PW) 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. Apart from the above, complainant (PW-7) and Talib (PW-8) were not residing nearby the place of occurrence. They were residing 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 appellant on the fateful day. 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 alias Nanha alias Billa Sher v. The State" (2010 SCM R 949), the Apex Court, while discussing the evidentiary value of the statements chance witnesses, has observed as below:- "The complainant PW4 and Muhammad Afzal 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."
10. 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 v. 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 v. The State" (2009 SCM R 1410) and "Altaf Hussain v. Fakhar Hussain and another" (2008 SCM R 1103). Medical evidence in the present case is in contradiction with the ocular account. PW-3 Dr. Sidra Arooj, at the time of post Azam mortem observed three incised wounds on Hussain the head of deceased Mst. Siani Bibi and during cross-examination admitted that all the three injuries on the person of, deceased Mst. Bibi were caused with sharp edge weapon. As per version of complainant and PW.8 Talib Hussain the appellant Noor Muhammad inflicted three consecutive injures on the right, left and back of head of deceased Mst. Siani Bibi with "Chobi Pawa". No injury has been attributed to the appellant Noor Muhammad with sharp edged weapon. The Doctor admitted that peace of wooden is not a sharp edge weapon. So the medical evidence is in contradiction with the ocular account.
11. As far as the recovery of alleged weapon of offence is concerned, a "Chobi Pawa" is shown to have been recovered from the appellant vide memo (Ex.PH). The complaint Ex. PA and FIR Ex.PA/1 reveals that after the occurrence, the appellant Noor Muhammad fled away along with weapon of offence. Allegedly the "Chobi Pawa" (P-4) was recovered just after six days of the occurrence which was taken into possession vide recovery memo Ex.PH. It is noticed that the word "blood stained" is not written in sequence in recovery memo as the word "blood stained" is written above the line in the recovery memo. It is also noticed that when the appellant fled away along with weapon of offence as per version of complainant party and he was arrested by the Investigating Officer on 12.08.2011 at Ravi Chowk, then how the weapon of offence i,e, "Chobi Pawa" was found in the house of appellant at the time of its recovery, hence, dishonest attempt was made as the alleged "Chobi Pawa" is shown to have been recovered in the present case from the house of appellant. All these facts clearly show that the weapon of offence "Chobi Pawa" P-4 is planted upon the appellant in order to strengthen the prosecution case.
12. The last piece of evidence available against the appellant on the file of this case is motive behind the occurrence. The motive set up by the complainant in FIR (Ex.PA/1) was that appellant was addict and he used to ask the deceased Mst. Siani Bibi to give money for narcotics and she had used to make complaint in this respect to the complainant and due to this grudge, the appellant committed the murder of the deceased. In this regard, it has been observed by this Court that while appearing as PW.7, the complainant did not state that the accused was addict and he simply stated that his sister complained to him that the appellant use to beat her and give her agony. PW-8 Talib Hussain also did not depose anything that the accused was addict. Even otherwise, admittedly, no case of narcotics was registered against the appellant. It is incumbent and obligatory upon the prosecution to prove motive through confidence inspiring evidence but the prosecution has failed to prove the same during trial and the learned trial court is quite justified in holding that the prosecution remained unable to prove motive part of its case.
13.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 circumstances creating doubt in the prosecution story is enough to acquit the accused.
Reliance can be placed on the case of "Tariq Pervez v. The State" (1995 SCM R 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 v. The State" (PLD 2002 Supreme Court 1048), while quoting a saying of the Holy Prophet (P.B.U.H.) 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 nor 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 v. 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 v. The State" (2009 SCM R 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 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".
14. The upshot of above discussion is that the prosecution has failed to prove its case against the appellant Noor Muhammad beyond any reasonable shadow of doubt. This appeal is, therefore, allowed, the impugned judgment is set-aside 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.