Shehram Sarwar Ch. J.--Haji Noor Muhammad (appellant) was tried by the learned Addl. Sessions Judge-I, Alipur in case FIR No, 320 dated 29.08.201 1, offence under Section 324, PPC (Section 302, PPC was added later on) registered at Police Station Saddar Alipur District Muzaf fargarh for the murder of Allah Wasaya (deceased) paternal grandfather of complainant. Vide judgment dated 28.06.2014, passed by the learned Addl. Sessions Judge-I, Alipur , the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a direction to pay Rs, 3,00,000/- (rupees three lakh only) as compensation to the legal heirs of decea sed, as provided under Section 544-A, Cr.P.C. and in default whereof, to further undergo simple imprisonment for six months. The appellant has also been convicted under Section 337-A(i), PPC and sentenced to pay Rs, 5000/- (rupees five- thousand only) each to Mst. Perveen and Abdul Khaliq (injured) as daman and till payment of arsh/daman , he shall have to remain in jail. The appellant has further been convicted under Section 337-A(ii), PPC and sentenced to pay 5 percent of diyat amount as arsh notified for the year 2011-12 equal to Rs, 1,57,777/- each to Mst. Perveen and Abdul Khaliq (injured) along with two years rigorous imprisonment. Benefit of Section 382-B , Cr.P.C. was extended to the appellant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No, 59 of 2014 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374, Code of Criminal Procedure, 1898. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.PD) registered on the statement of Bakhat Ali, complainant (PW.4) is that he was a labourer . Haji Noor Muhammad (appellant) was a relative of complainant and an opium addict. He was provided medical treatment by his family members and got rid of intoxication but sometimes, he became semi- mad and used to make a noise. On the night of 29.08.201 1, Allah Wasaya paternal grandfather of complainant, Abdul Khaliq and Mst. Perveen Mai, son-in-law (damad ) and daughter of Allah Walaya respectively , were sleeping in front of their house. At around 2.00 a.m. they raised noise; the complainant along with Ghulam Muhammad and Muhammad Shahid rushed towards the place of occurrence and saw that Allah Wasaya was lying on the cot in injured condition whereas Haji Noor Muhammad was causing injuries to Mst. Perveen Mai and Abdul Khaliq with danda . On seeing the complainant party , Haji Noor Muhammad again started giving danda blows on the head of Allah Wasaya. The complainant party went near and Haji Noor Muhammad ran away . Allah Wasaya, Abdul Khaliq and Mst. Perveen Mai were shifted to Alipur Hospital immediately who were in critical condition. Subsequently .
Allah W asaya died on the same day and Section 302, PPC was added in this case.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Haji Noor Muhammad (appellant) was summoned by the learned Addl. Sessions Judge, Alipur 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 Sections 302 and 337-A(ii), PPC was framed against him on 22.12.201 1, 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 17.06.2014, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why this case against him and why the PWs had deposed against him, the appellant stated as under: "It was a blind murder case. All the Private PWs are related inter se. They were inimically deposed against me. On refusal to give the hand of Mst. Perveen to Abdul Khaliq, Abdul Khaliq abducted Mst. Perveen, and contracted marriage with her. Deceased Allah Wasaya refused to give share of land to Abdul Khaliq his sons due to his bad conduct and character . Due to said reason, Abdul Khaliq was annoyed on his father and he nourished a grudge against his father . Abdul Khaliq with the connivance of his wife and complainant knitted a false story of murder of his father and falsely roped me in this false case. I am old aged person of more than 60 years and only bread winner of my family ."
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 defence evidence. However , after conclusion of 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 the crime was reported to the police with due deliberation and consultation on the part of the complainant; that the eye-witnesse s namely Bakhat Ali, complainant (PW.4), Mst. Perveen Bibi (PW.5) and Abdul Khaliq (PW.6) produced by the prosecution were not present on the spot at the time of occurrence; that Mst.
Perveen Bibi (PW.5) and Abdul Khaliq (PW.6) gave contradictory statements to that of Bakhat Ali, complainant (PW.4) as they did not mention in their examinations-in-chief that the complainant was present on the spot or they sustained any injury at the hand of appel lant; Mst. Perveen Bibi (PW.5) and Abdul Khaliq (PW.6) made dishonest improvements to strengthen the prosecution case; that the appellant was attributed head injury to the deceased with danda but no such injury was found by the medical officer; Mst. Perveen Bibi (PW.5) and Abdul Khaliq ( PW.6) made dishonest improvements to strengthen the prosecution case; that it was a night time occurrence but no source of light has been mentioned by the prosecution; that it was the case of prosecution that Muhammad Shahid and Ghulam Muhammad were also present on the spot at the time of occurrence but they were not produced before the learned trial Court and were given up being won over by the appella nt and as such the prosecution withheld the best piece of evidence available with it, therefore, adverse inference in view of Article 129(g) of the Qanoon-e-Shahadat Order , 1984 can safely be drawn against prosecution; that the alleged eye-witnesses did not make any attempt to rescue the deceased or to catch hold of the appellant at the time of occurrence; that no specific motive was set out by the prosecution and it was alleged that the appellant was an addict/semi-mad and used to raise noise; that the medical evidence is not in line with the ocular account; that the alleged recovery of sota (P.2) at the instance of the appella nt is inconsequential because of the reason that no report of Punjab Forensic Science Agency in this regard is available on record; 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 ease is doubtful in nature and the appell ant 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 assisted by the complainant, present in Court vehemently opposes this appeal on the grounds that the complainant and other eye-witnesses have absolutely no enmity with the appellant to falsely implicate him in this case; that the eye-witnesses have reasonably explained before the learned trial Court regarding their presence on the spot; that though the eye-witnesses are related to each other as well as to the deceased but at the same time, they are also related to the appellant; that no adverse inference can be drawn against the prosecution due to non-production of Muhammad Shahid and Ghulam Muhammad before the learned trial Court as it is the prerogative of the prosecution to produce as many witnesses as it deems fit, moreover , they were given up being won over by the accused party; that the prosecution has also proved motive behind the occurrence; that the ocular account is fully supported by the medical evidence; that the case of prosecution is also corroborated by the recovery of sota (P.2) at the instance of appellant which was used by him during the incident; that the version of the appellant is nothing but an aftert hought; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is to merit in this appeal.
6. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.
7. In this case, Allah Wasaya (deceased) paternal grandfather of complainant lost his life and Mst. Perveen Bibi (PW.5) and Abdul Khaliq ( PW.6) allegedly sustained injuries: The incident, as per prosecution, took place in the area of Mauza Bait Mullanwali situated within the territorial limits of Police Station Saddar Alipur District Muzaf fargarh on the night of 29.08.201 1 at about 2.00 a.m. and the matter was reported to the 'police on the same night at 3.20 a.m. through statement of Bakhat Ali, complainant (PW .4) and formal FIR (Ex.PI)) was got registered.
8. The ocular account in this case has been furnished before the learned trial Court by three eye-witnesses namely Bakhat Ali, complainant (PW.4), Mst. Perveen Bibi (PW.5) and Abdul Khaliq (PW.6), who were closely related to each other and to the deceased as the complainant (PW.4) is paternal grandson of deceased whereas Mst.
Perveen Bibi (PW.5) and Abdul Khaliq (PW.6) are daughter-in-law and son of the deceased respectively . So far as the complainant (PW.4) is concerned, he mentioned in the FIR and stated before the learned trial Court, that on hearing the noise, he along with Ghulam Muhammad and Muhammad Shahid rushed to the place of occurrence and saw that Allah Wasaya (deceased) was lying on the cot in injured condition and Haji Noor Muhammad (appellant) was beating Mst. Perveen Bibi (PW.5) and Abdul Khaliq (PW.6) with danda . It was also mentioned in the FIR that the appellant gave danda blow on the head of deceased. On the other hand, Mst. Perveen Bibi (PW.5) and Abdul Khaliq (PW.6) gave contradictory statement to that of Bakhat Ali, complainant (PW.4) as they did not state in their examinations-in-chief that the complainant was present on the spot. Mst. Perveen Bibi (PW.5) has also not mentioned that the appellant caused any injury to her or her husband. For ready .reference, examination-in-chief of Mst. Perveen Bibi is reproduced hereunder: "Stated that 2 years and 7 months ago, at about 2 a.m. at night, I alongwith my husband Abdul Khaliq was present and sleeping on separate cots. My father-in-law Allah Wasaya was also sleeping in the same havaili near the door.
Accused Haji Noor Muhammad present in the Court who is my father was addict ed: My father Noor Muhammad caused injuries on the head of Allah Wasaya with danda and committed his murder . We raised hue and cry.
Ghulam Muhammad and Muhammad Shahid came at the spot who also saw the occurrence. On seen them the accused Noor Muhammad alongwith his danda fled away ."
Before the learned trial Court, it was stated by PW.5 & PW.6 that the appellant caused head injuries to Allah Wasaya (deceased) with danda but no such head injuries were observed by the medical officer (PW.7), who medically examined Allah Wasaya and subsequently conducted his post-mortem examination. There is another circumstance which makes the presence of complainant (PW.4), Muhammad Shahid and Ghulam Muhammad (given up PWs) doubtful because according to the complainant, the appellant was armed with danda at the time of occurrence and gave its blows to the deceased; had they been present on the spot at relevant time, why did they not try to rescue the deceased or to catch hold of the appellant, who admittedly was an aged person of about 53/54 years and was not armed with any fire-ar m to ward the said eye-witnesses off or to keep them away at the time of incident. Moreover , it was a night time occurrence allegedly took place at 2.00 a.m. and it has not been brought on record as to how the eye witnesses identified the appellant because no source of light has been mentioned by the prosecution. Bakhat Ali, complainant (PW.4), Mst. Perveen Bibi (PW.5) and Abdu l Khaliq (PW.6) while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, they were confronted with their previous state ments (Ex.PD, Ex.DB & Ex.DA) and the improvements were brought on record. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain reliable. While holding so, we are fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as Muhammad Rafique and others versus The State and others"
(2010 SCMR 385) and "Syed Saeed Muhammad Shah and another versus The State" (1993 SCMR 550). All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
9. There is another aspect of the case. In the FIR as well as before the learned trial Court it was the case of prosecution that on hearing noise, the complainant along with Muhammad Shahid and Ghulam Muhammad attracted to the spot but they, (Muhammad Shahid and Ghulam Muhammad) were not produced before the learned trial Court and given up being won over by the accused side. Therefore, the prosecution withheld the best available evidence and in view of Article 129(g) of Qanoon-e-Shahadat Order , 1984, adverse inference, that had these witnesses been produced before the learned trial Court, they would not have supported the prosecution case, can safely be drawn against the prosecution. Reliance in this respect is placed on the esteemed judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of "Lal Khan vs The State" (2006 SCMR 1846 ), "Muhammad Rafique and others vs. The State and others" (2010 SCMR 385) and "Muhammad Asif vs The State" (2017 SCMR 486). In the recent case of Muhammad Asif supra, the Hon'ble supreme Court of Pakistan was pleased to observe as under: "9. In our considered opinion these two independent witnesses could provide the first degree of evidence of reliable nature, thus, adverse inference has been drawn that because they were not supporting the prosecution se set up, therefore, they were dropped at the trial. In this way, the best evidence, independent in nature, was withheld from the Court for obvious reasons. This fact by itself is sufficient to discard the evidence of the interested and related witnesses because their evidence is not only of the second degree but also for the reason given above due to their unnatural conduct."
10. No specific motive was set out in the FIR or brought before the learned trial Court and it was simply alleged that the appellant was an addict and semi-mad but no evidence in this regard was brought on record by the prosecution.
11. So far as the alleged recovery of sota (P.2) at the instance of the appellant which was taken into possession vide recovery memo. Ex.PQ) is concerned, the same is of no avail to the prosecution because of the reason that no report of Punjab Forensic Science Agency in this regard is available on record. Moreover , it was an ordinary danda and as admitted by the I.O. (PW. 11) is commonly available in every house of village area. The I.O. was also not sure whether the danda was blood-stained or not.
12. 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.
13. 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 discha rge 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 "Muhammad Akram versus The Slate" ( 2009 SCMR 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 there of 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. For the foregoing reasons, Criminal Appeal No, 99-J of 2014 filed by Haji Noor Muhammad (appellant) is allowed, convictions and sentence awarded to the appellant vide judgment dated 28.06.2014 passed of the learned Addl. Sessions Judge-I, Alipur are set aside and he is acquitted of the charge while extending him benefit of doubt.
Haji Noor Muhammad, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No, 59 of 2014 is answered in the NEGA TIVE and the sentence of death awarded to Haji Noor Muhammad (convict) is NOT CONFIRMED .