Shehram Sarwar Ch. J:--Muhammad Iqbal (appellant) along with his co-accused namely Said Muhammad alias Muhammad Shahid was tried by the learned Additional Sessions Judge, Kehror Pacca in case FIR No,94 dated 27.02.2012, offence under Sections 302 and 34 PPC registered at Police Station Saddar Kehror Pacca, District Lodhran for the murder of Muhammad Iqbal (deceased) brother of complainant. Vide judgment dated 22.04.2014 passed by the learned Addl. Sessions Judge, Lodhran, the appellant has been convicted under Section 302(b)
PPC and sentenced to death with a further direction to pay Rs, 1,00,000/- (rupees one lakh only) as compensation under Section 544-A of the Code of Criminal Procedure to the legal heirs of the deceased and in default whereof to further undergo six months simple imprisonment. Through the same judgment, Said Muhammad alias Muhammad Shahid, co-accused of the appellant was acquitted of the charge by extending him benefit of doubt and no appeal against his acquittal was filed either by the State or the complainant, as concede d by learned Deputy Prosecutor General. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No,68 of 2014 for confirmation or otherwise of the 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, the same are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.PH) registered on the applicatio n (Ex.P A) of Muhammad Bilal, complainant (PW.3) is that he was resident of Mouza Mochiwali and a labourer . His brother Muhammad Iqbal was a singer . On 26.02.2012, his brother Muhammad Iqbal was invited for singing on the marriage ceremony of Allah Wasaya. Muhammad Iqbal arrived at the place of Allah Wasaya situated at Chah Shah wala marla scheme and at about 11:45 p.m. he started signing. Muhammad Iqbal armed with carbine 12 bore, Muhammad Irshad and Said Muhammad came there for listening his brother's song and sat on a nearby cot. Muhammad Iqbal yet started singing, all of sudden, Muhammad Iqbal with intention to kill his brother made a straight fire which landed on his right side of chest who fell down. Upon hue and cry, Zulfiqar and Allah Dad who were present in the function albngwith others emerged there. The complainant alongwith Zulfiqar attended his brother Muhammad Iqbal who succumbed to the injuries. They tried to apprehend Muhammad Iqbal, Irshad and Said Muhammad whereupon Muhammad Iqbal brandished his weapon and threatened that if anybody came near, would be done to death and due to that fear, the complainant's side did not go near them and the accused persons fled away from the spot.
Motive behind the occurrence was that Muhammad Iqbal had bad eye on Nawaz Bibi wife of Muhammad Iqbal (deceased) and used to tease her on the way who complained it to her husband. Muhammad Iqbal (deceased) upbraided Muhammad Iqbal (appellant) and restrained him to visit his house and due the said grudge, he (appellant) in consultation with other accused, committed the murder of Muhammad Iqbal (deceased) brother of the complainant.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Muhammad Iqbal (appellant) as well as his co-accused Said Muhammad alias Muhammad Shahid was summoned by the learned Addl. Sessions Judge, Lodhran to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them on 10.12.2013, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure were recorded on 30.01.2014, wherein they refuted all the allegations of the prosecution and professed their innocence.
In answer to a question as to why this case against him and why the prosecution witnesses had deposed against him, the appellant stated as under: "I have been involved in this case falsely just to extort money from me and on account of political rivalry . The political influence to involve me in this case is visible by the divergent opinion of the police. The P.Ws are interested witnesses and inter-se related with the complainant and deceased, hence they have falsely deposed against me."
The appellant did not opt to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) Code of Criminal Procedure, however he produced Ex.DA in his defence evidence. After conclusion of the trial, the learned trial court convicte d and sentenced the appellant and acquitted his co-accused, 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 fifty five minutes in reporting the matter to the police without there being any satisfactory explanation; that there is also noticeable delay in conducting autopsy of the dead-body of deceased; that presence of both the eye-witnesses namely Muhammad Bilal complainant (PW.3) and Zulfiqar (PW.4) on the spot at the time of incident is doubtful in nature; that a vague motive was alleged against the appellant; that medical evidence is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case; that alleged recovery of carbine 12 bore (P.6) at the instance of appellant is inconsequential; that viewing from all angles the prosecutio n 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 Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the matter to the police; that the complainant's side had no enmity against the appellant for his false implication in this case; that presence of both the eye-witnesses on the spot at the time of incident is quite natural and probable; that motive has been proved against the appellant; that ocular account is fully supported by medical evidence; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
6. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
7. The occurrence in this case, as per prosecution case, took place on 26.02.2012 at 11:45 p.m. and the matter was reported to the police on the same night at 12:40 a.m. The distance between police station and the place of occurrence is seven miles. The postmortem examination of the dead-body of deceased was conducted about eight hours and forty five minutes after the incident. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police are busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed vs. The State " (2011 SCMR 1 190) and Nazeer Ahmed vs The State " (2016 SCMR 1628 ).
8. Ocular account in this case only consists of Muhammad Bilal complainant (PW.3) and Zulfiqar (PW.4). The presence of both these PWs on the spot at the time of incident is doubtful in nature because in the FIR as well as before the learned trial court it was the case of prosecution that Muhammad Iqbal (deceased) was a singer and on the fateful night he went to the house of one Allah Wasaya to perform on his marriage ceremony which was a private function and both the eye-witness es did not utter even a single word as to under what capacity they were present on the spot at the time of incident because either they were relatives of Allah Wasaya nor his neighbours.
Admittedly , the occurrence took place at flight time and no source of light has been mentioned in the FIR. The occurrence allegedly took place in the area of Basti Shahwala, Marla Scheme mouza Veghamal whereas both these PWs were resident of mouza Mouchiwali which as per cross-examination of complainant (PW.3) was three kilometers away from the place of incident. They have neither any place of business nor agricultural land near the place of occurrence. Therefore,; we hold that the said PWs were chance witnesses. 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, provided some convincing explanations appealing to a prudent mind for his presence on 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 cases reported as "Mst Shazia Parveen vs. The State " (2014 SCMR 1197) and "Muhammad' Rafique vs. The State" (2014 SCMR 1698 ). Moreover , the testimony of Muhammad Ismaeel S.I.
(PW. 11) contradicts the version of complainant as mentioned in the FIR as well as reiterated both the witnesses of ocular account before the learned trial Court. The following portion of cross-examination of Muhammad Ismaeel S.I. (PW .1 1) is relevant which is reproduced as under: "...In the course of investigation it has come out that in the marriage ceremony many people were making fires and the some people were also preventing them from making fires. Iqbal was also making fire, he was also prevented.
Some people were trying to pull down the carbine of accused Muhammad Iqbal. In the course of this attempt of pulling down the barrel of carbine 12 bore, the carbine went on fire. It also came out in the course of investigation that the accused Muhammad Iqbal had no bad eye on Mst. Nawaz Bibi. It was also come out during the investigation that many people were drunk in musical ceremony ."
It is mentioned in the FIR that within the view of complainant and other PWs the appellant committed the murder of Muhammad lqbal (deceased) by making a fire but we failed to understand that in the . presence of a real brother and other PWs how such tragedy with the Muhammad Iqbal could happen without any intervention on their part to rescue the deceased when they were not far away as shown in the site plan. Therefore, we hold that presence of both the eye-witnesses on the spot at the time of incident is not free from doubt.
9. There is another aspect of the case. Muhammad Bilal complainant (PW.3) has stated during his cross- examination that The harmonium player and Tabbla Nawaz were sitting near the feet of my deceased brother , while the dancer was dancing near the women side. The name of harmonium player was Saleem Khan while the name of Tabbla Nawaz was Riaz Mir-e-Alam and the name of dancer was Fayyaz." All these persons were the most natural witnesses of incident but they were not produced by the prosecution during the trial. Therefore, the prosecution withheld the best available evidence and in view of Article 129(g) of Qanoon-e-Shandat Order , 1984, adverse i 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 ) and "Muhammad Rafique and others vs. The State and others " (2010 SCMR 385). In the case of Muhammad Rafique and others, supra, the Hon'ble Supreme Court of Pakistan was pleased to observe as under: "33. ...It is well-settled that if any party withholds that best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali could have been examined, his evidence would have been unfavourable to the prosecution..."
10. Motive behind the occurrence was that Muhammad Iqbal had bad eye on Nawaz Bibi wife of Muhammad Iqbal (deceased) and used to tease her on the way who complained her husband about the said fact. Muhammad Iqbal (deceased) reprimanded Muhammad Iqbal (appellant) and restrained him to visit his house and due the said grudge, he (appellant) in consultation with other accused, committed the murder of Muhammad Iqbal (deceased) brother of the complainant. Muhammad Ismaeel S.I. (PW.11) has stated during his cross-examination that during his investigation it was concluded that Muhammad Iqbal (appellant) had not bad eye on Mst. Nawaz Bibi.
Moreover , the motive incident was not reported to the police. Furthermore, no independent witness qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
11. So far as alleged recovery of carbine 12 bore (P.6) at the instance of Muhammad Iqbal (appellant) is concerned the same is immaterial because it has been brought on record that the appellant got recovered the said weapon from Jammun Shaheed graveyard which is an open place, accessible to everyone.
12. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605 ).
13. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not above 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 State" (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,222 of 2014 filed by Muhammad Iqbal (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 22.04.2014 passed by the learned Addl Sessions Judge, Kehror Pacca are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Muhammad Iqbal, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No,68 of 2014 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Iqbal (convict) is NOT CONFIRMED .
16. Before parting with this judgment, it is clarified that the Observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial court in any manner whatsoever in case of arrest and trial of co-accused of the appe llant who was proclaimed offender at the time of pronouncement of the impugned judgment.