SADAQA T ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No.1098 of 2016 filed by Khan appellant (against his conviction) and M.R. No,337 or 2016 sent by Trial Court for confirmation of his death sentence or otherwise, as both the above stated matters have arisen out of the same judgment dated 9.5.2016 passed by learned Additional Sessions Judge, Chiniot whereby he was convicted and sentenced as under:- Khan appellant 302(b), P.P.C.He was sentenced to DEATH along with compensation of Rs, 3,00,000/- payable to the legal heirs of the deceased which shall be recovered as arrears of land revenue. in case FIR No,190 dated 2.7.2014 under section 302/34, P .P.C. police station Chanab Nagar , District Chiniot.
2. The facts of the case have been stated by Khizar Hayat complainant (PW-11) in his statement before the learned trial court, which is hereby reproduced for narration of the facts:- "States that between the intervening night of 1/2 July, 2014 my brother Sakhawat Ali deceased slept on a cot in front of our shop after closing the same. I along with PW Arif and PW Imran son of Hayat slept on the roof of above said shop. At about 1:30 a.m. (night) I and above mentioned PWs heard hue and cry and request for rescue of deceased Sakhawat Ali and we awoke up. I and PWs witnessed from the roof that two accused were committing the murder of deceased Sakhawat Ali, subsequently , PWs Imran son of Sultan and Chragh son of Mansha narrated before me and I subsequently nominated accused Khan present in the court and accused Khalil (since P.0). (Under objection by learned defence counsel as being hear say portion of evidence). Accused Khan was armed with Kassi and accused Khalil (since PO) was armed with hatchet. In our view accused Khan caused Kassi blows on the face and forehead of deceased Sakhawat Ali, while accused Khalil caused hatchet blows- on the left shoulder , right arm and on the left hand of deceased, as a result of which thumb and fingers of left hand of Sakhawat Ali deceased were cut. We raised hue and cry and lalkara to accused and came down from the roof but in the meanwhile both the accused fled away from the spot. I attended my deceased brother Sakhawat Ali, who succumbed to the injuries at the spot. Accused Khan left his shoes, at the time of escaping from the place of occurrence.
I proceeded to inform the police, and at Adda Riaza Abad police met me, where I filed application Exh.PB to the police, I.O. read over the same to me and I signed the same as token of its correctness. I.O. sent the complaint through a constable to police station. While I accompanied the I.O. and other police officials and proceeded to the place of occurrence.
When we reached at the spot PWs name ly Imran son of Sultan and Chragh son of Mansha met me at the spot, who both disclosed before me turn by turn that they both were coming from Adda Riaza Abad on a motorcycle to their homes for the purpose of taking "Sehri". Both the PWs narrated before me at about 1:30 a.m. (night) when they reached near the shop of Sakhawat Ali, they saw in the light of their motorc ycle then accused Khan armed with blood stained Kassi and was bare footed, while accused Khalil armed with blood stained hatchet were running from the side of place of occurrence. Both the above mentioned PWs tried to chase and to stop the accused persons, upon which accused Khan threatened them to go back otherwise they would be treated in the same manner as of Sakhawat Ali deceased. Due to this reason both the above ment ioned PWs did not go forward.
(Under objection by learned defence counsel as inadmissible in evidence being hearsay).
Motive behind the occurrence was that accused persons had suspicion that Sakhawat Ali deceased had illicit relations with Shahnaz Bibi daughter of accused Khan, due to which they filed a petition against us in the court as well and due to above said grudge both the accused committed the murder of my brother Sakhawat Ali."
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 against the appellant under section 302, P.P.C., to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced as many as 13 witnesses (PW1 to PW13) along with certain documents Exh. PA to Exh.
PR.
6. Medical evidence has been furnished by Dr. Munir Ahmad Mubashir PW6, who conducted postmortem examination on the dead body of Sakhawat Ali deceased and observed as under:- "Description of Injuries.
1. Multiple incised injuries, uncountable, starting from the head and reaching up to the chin. The bones of skull and face were cut in multiple pieces. Land marks of the face were totally destroyed with heavy cutting sharp edged weapon.
2. Incised wound 17 x 7 c.m. on the top of the left shoulder . Underline bone expose and scapula was fractured.
3. Incised wound 10 x 4 c.m. on front of the left shoulder . Underlying bone was exposed.
4. Incised wound 7 x 4 c.m. on front and top of the left-upper arm. Underlying bone was exposed and humorous was fractured.
5. Totally cut left thumb and index finger , and other partially cut fingers.
6. Incised wound 6 x 2 c.m. on the back of right elbow . Underlying bone was exposed and ulna was exposed.
7. Incised wound 8 x 2 c.m. medial and below to the injury No,6. Underlying bone was exposed and fractured.
8. Incised wound 11 x 7 c.m., 10 c.m. below to elbow just on the back of the forea rm. Both underlying bones were exposed and fractured.
9. Incised wound 14 x 4 c.m. on the back of the right forearm staring from the mid and extending to the hand. Both underlying bones were exposed and fractured.
10. Incised wound cutting both right little and ring finger . Metacarpal were fractured.
Opinion.
In my opinion injuries were ante mortem in nature and with heavy and sharp edged weapon.
Probable duration between injury and death was five minutes or so. Time between death and post-mortem was nine to eighteen hours. After the postmortem opinion the cause of death in this case was due to injury No, 1 which lead to massive hemorrhage, shock and death in ordinary course of the nature. Brain damage lead to cessation of vital functions of the body ."
7. On the other hand, statement of Khan appellant was recorded under section 342, Cr.P.C. who refuted the allegations so leveled against him. The appellant neither opted to appear as witness under section 340(2), Cr.P.C., nor produced any oral defence evidence. However , he produced documents Exh.DA to Exh.DH in his defence and in reply to question "why this case agains t you and why the PWs deposed against you?" Khan appellant replied as under:- "On 26.06.2014 I filed a petition under sections 22-A/22-B, Cr.P.C. against SHO Police Station Chenab Nagar , Bashir son of Muhammad caste Kumhar resident of Banwray , Dost Muhammad son of Mukhtar and Shah Muhammad son of Sultan, both of Haral by caste and residents of Banwray . I made information in the instant petition that in the area of my village and other adjacent villages, a big police official purchased land of 25/30 square and forced the poor persons to do labour without any compensation. If anyone had not been obeyed him, he through his servants got booked a false case against him and the SHO respon dent No,1, without investigation would challaned him. I further made averments that I refused to make labour of the brother of said police official and on the result of that my son and maternal nephew were challaned in a blind murder case vide FIR No,462/09, three four years prior to filing of this petition. I further expressed my apprehension that now respondent No,2 intended to be challaned me through any person in a false case. I further leveled the allegation that the SHO culled me at police station and also raided at my house and without any justification let me free after two three days and also extended threats, that if I had not been come on their line you would have been killed him in police encounter or otherwise challaned in the false case. I made request to the justice of peace and filed petition along with my affidavit. Mr. Shahzad Hussain, Addl. Sessions Judge Chiniot as justice of peace made order not to illegally harass me on 03.07.2014. Dost Muhammad son of Mukhtar respondent No,3 of that petition is the servant of Muhammad Ameen Waince, Additional I.G Punjab (now) and respondents Nos,2 and 4 are also his servants. The son of Dost Muhammad was murdered by unknown persons and a blind murder case was registered, later on when this fact came into knowledge of said police official he abused them and also forced to involve me and my son in this blind murder case. He also made order verbally in this regard to SHO Chenab Nagar and then Shaukat Ali was deputed to fulfill this nefarious desire of said high up of the police official. I and my son Khalil had not done this murder . We are innocent in this case."
8. After conclusion of the trial, learned trial court convicted the appellant with above said sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:-
(i) impugned judgment of the trial court is against law and facts on the file and is liable to be set aside.
(ii) 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 learn ed trial court has convicted the appellant on the basis of 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 that instant appeal may be accepted and the impugned judgment of the trial court may kindly be set aside and appellant/ convict may be acquitted.
10. On the other hand, learned DPP assis ted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellant 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 DPP assisted by learned counsel for the complainant and perused the record. i. The detail of prosecution case has already been given in para-2 of this judgment; therefore, there is no need to repeat the same to avoid the duplication and repetition. ii. Sakhawat Ali was done to death in between night of 1/2 July, 2014 at 1:30 a.m. in front of his shop regarding which FIR was registered on 2.7.2014 at 4:40 a.m. on the written application Exh.PB moved by his brother Khizar Hayat PW.11 against unknown accused. No source of light has been mentioned in the FIR. Complainant Khizar Hayat PW-11 after registration of the FIR on 2.7.2014 by moving written application Exh.PM introduced the appellant and his son Khaleel (accused since P.0) culprits of this case on the basis of statements of Charagh Ali given up PW and Imran son of Sultan PW-9 who stated in his statement (examination-in-chief) that he and Charagh Ali (given up PW) run Karyana shops at Adda Riaza Abad. On 2.7.2014 at B 1:10 a.m. (night), they left their shops to eat "Sehri", proceeded towards their houses situated in Mouza Banwray , at about 1:30 a.m. (night) when they reached near the shop of Sakhawat Ali deceased, they saw in the light of motorcycle that Khan appellant while armed with blood stained `Kassi' having no shoes in his feet along with his son Khaleel (accused since P.0) armed with blood stained Hatchet running from place of occurrence, they tried to apprehend them but Khan appellant extended threat to them of dire consequences. Thereafter , they both went to the place of occurrence. iii. Site plan Exh.PF does not show the shop of Imran son of Sultan PW-9 around the place of occurrence. This witness Imran son Sultan PW9 was the chance witness but has failed to establish his presence at said place at the relevant time. Name of this witness (Imran son of Sultan PW-9) has not been mentioned in the FIR. Even otherwise, evidence of Vajtakar is a weak type of evidence and same can be procured at any time during the investigation when prosecution has no direct evidence. Reliance is placed on case titled "Muhammad Mansha Kausar v. Muhammad Asghar and others" (2003 SCMR 477) in which Hon'ble Supreme Court of Pakistan has observed at page 479 as under:- "6. Learned counsel attempted to persuad e us to accept the evidence furnished by Wajtakar' witnesses but, in our view, without any ocular evidence, no importance can be attached to this evidence, which is otherwise weak and infirm". iv. Khizar Hayat complainant PW-11 had not nominated the appellant in the FIR rather he introduced appellant as an accused after registration of the FIR on 2.7.2014 by moving written application Exh.PM on the evidence of `Vajtakkar' furnished by Imran son of Sultan .PW-9 which has already been discarded above. Khizar Hayat PW-11 stated in his cross-examination that distan ce between his house and house of Khan appellant is one and half acre, he knew Khan appellant and his son for about 14/15 years, he had not named accused persons Khan appellant and his son Khaleel (since P.0) in his application Exh.PB moved by him for registration of the FIR, he was not able to identify them at the time of occurrence. He further stated in his volunteer portion that his eye sight is weak and he could not see clearly at night. In such eventuality , the supplementary statement of Khizar Hayat complainant PW-11 in which he has nominated the appellant as accused is not believable. No identification parade has been held for identification of the appellant. v. Imran son of Hayat PW-10 also claims himself to be the eye-witness of the occurrence. He stated in his cross- examination that one brother of deceased as well as the complainant namely Umar Hayat alias Ranjha is his brother-in-law , his father Hayat and father of deceased and complainant namely Dost Muhammad are inter-se maternal (paternal) brothers with each other . He further stated in his cross-exami nation that his residence is at a distance of 9/10 acres from the place of occurrence. He further stated in his cress-examination that he runs the business of selling milk, has no shop regarding his business. He further stated in his cross-examination that at the time of occurrence, the light was not on, he had seen the occurrence in the darkness. vi. Considering this, identity of the appellant in the dark hours of the night is not free from doubt. Even otherwise, this witness Imran son of Hayat PW-10 was the chance witness but has failed to establish his presence at the time of occurrence at the place of occurrence with his stated reasons. Reliance is place d on case titled Arshad Khan v.
The State (2017 SCMR 564 ) in which Hon'ble Supreme Court of Pakistan has observed at page 566 as under:- "Both the eye-witnesses produced in this case, i,e, Zahid Khan complainant (PW-8) and Muhammad Sadiq (PW-9) were very closely related to Mst. Naheed Akhtar deceased and they were admittedly chance witnesses. The said witnesses had maintained before the trial court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site-plan of the place of occurrence at all. No mosque near the house of occurrence had been shown in the said site-plan and, thus, the stated reason for presence of the said eye- witnesses near the place of occurrence never stood established on the record through any evidence whatsoever". vii. No motive has been mentioned in the FIR, rather complainant Khizar Hayat PW-11 after registration of the FIR introduced motive by moving written application Exh.PM on 2.7.2014 stating there in that appellant had suspicion of having illicit relations of Sakhawat deceas ed with his daughter Shahnaz but did not produce any solid reason in this respect. Considering the peculiar circumstances of this case, we are of the view that prosecution has failed to prove the motive. vii. Shaukat Ali Inspector PW-12 stated in his statement (examination-in-chief) that on 10.7.2014 he arrested the appellant who on 13.7.2014 during interrogation disclosed and got recovered `Kassi' blood stained P-1 having human hair stuck with it from his residential house. Contrary to this, recovery witness Muhammad Sharif constable PW-3 does not say in his statement (examination-in-chief) that `Kassi' P-1 was having human hair stuck with it.
Report of Punjab Forensic Science Agency (Exh.PR) also does not show that human hair was found stuck with the `Kassi'. Above said contradiction is not ignorable, rather shatters the recovery proceedings. viii. Imran son of Sultan PW-9 stated in his statement (examination-in-chief) that he saw appellant while running from the place of occurrence left by Khan appellant which were taken into possession by Shaukat Ali S.I PW-12 through recovery memo Exh.PH. Shaukat Ali S.I PW-12 did not state in his state ment (examination-in-chief) that above said shoes were shown to Khan appellant who owns the same. Even otherwise, this recovery is not believable.
12. In view of the above discussion, we entertain serious doubt in our minds regarding participation of the appellant
(Khan) in the present case. 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 circumstance 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 SCMR 230).
13. For the foregoing reasons, this appeal is allowed, conviction and sentence of Khan appellant awarded by the Trial Court through impugned judgment are hereby set-aside and he (Khan) is acquitted of the charges. He is directed to be released forthwith if not required in any other case. Murder Reference is answered in NEGA TIVE and death sentence of appellant (Khan) is NOT CONFIRMED.