ASJAD JAVAID GHURAL, J.---Through this criminal appeal under Section 410, Cr.P.C., appellant Muhammad Islam has challenged the vires of judgment dated 06.05.2010 passed by the learned Additional Sessions Judge, Depalpur in case FIR No,52 dated 12.02.2006, in respect of an offence under Section 302, P.P.C., registered at Police Station, City Depalpur District Okara whereby he was convicted and sentenced as under:- Under Section 302(b)) PPC Imprisonment for life and to pay Rs,1,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof, to further undergo simple imprisonment for six months.
He was held entitled for the benefit of Section 382-B, P .P.C.
2. The prosecution story unfolded in the crime report (Ex.PB/1) registered on the complaint of Muhaninmd Ramzan (PW-5) is that he was tractor driver by profession and serving Rao Abdul Rasheed as driver . In the evening of 11.02.2006, Muhammad Mumtaz and Rajab Ali came to see him. He had to go to Chak No,38-D in order to plough the fields. Muhammad Mumtaz and Rajab Ali accompanied him. At about 9:00 p.m., they returned, parked tractor at the Dera of Rao Abdul Rasheed and when they reached at the outer gate of his house, the electric bulb was on, they saw Muhammad Islam (appellant) giving hatchet blows at the head, left and right side of neck, chest and teeth of his wife Saima Bibi, who fell down and succumbed to the injuries at the spot. They attempted to apprehend Muhammad Islam but he extended threat s of dire consequences and fled away from the spot while brandishing his hatchet by scaling over the wall. They raised hue and cry and attracted people of the locality , who also witnessed the occurrence. Motive behind the occur rence was that Muhammad Islam used to force Saima Bibi, wife of the complainant to develop illicit relations with him but on her refusal, he killed her .
3. Muhammad Ashraf, SI (PW-10) visited the place of occurrence on the same night, took all necessary steps of initial investigation, prepared relevant documents, escorted the dead body to the mortuary and recorded the statements of witnesses under Section 161, Cr.P.C. He arrested the appellan t on 16.02.2006, who made a disclosure and led to the recovery of weapon of offence i,e, hatchet on 19.02.2006. After completion of investigation, he got prepared report under Section 173 Cr .P.C.
4. Dr. Yasmeen Kausar (PW-11) held autopsy on the dead body of deceased Saima Bibi on 12.02.2006 and observed following injuries:-
1. Incised wound 8 cm x 2 cm, muscle deep on left side of neck.
2. Incised wound 2 cm x 1 cm below left lower lip.
3. Incised wound 1 cm x 1/2 cm, on left upper lip. (teeth broken, upper left canine, lower right canine).
4. 6 Incised wounds in an area 9 cm x 8 cm into muscle deep on right side of neck.
5. Incised wound 8 cm x 3 cm into bone exposed, on top of head..
The cause of death was shock and hemo rrhage due to above said injuries, which were sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was immediate, whereas between death and post mortem examination it was 15 to 16 hours.
5. At the commencement of the trial, learned trial Court had framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
6. The prosecution produced 11 witnesses besides the reports of Chemical Exam iner (Ex.PK), Serologist (Ex.PL) and report of the Chemical Examiner (Ex.PM). The appellant in his statement recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact levelled against him. He neither opted to make statement under Section 340(2) Cr .P.C. nor produced any evidence in his defence.
7. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant as stated above vide impugned judgment dated 06.05.2010. Hence, this appeal,
8. Learned counsel for the appellant submits that the appellant is quite innocent and he had nothing to do with this occurrence; it was a dark-night occurrence and no source of light was available; that the eye-witnesses were chance witnesses, which is evident from their unnatural conduct for neither making effort to stop the appellant from inflicting hatchet blows to the deceased lady nor attempting to apprehend the appellant at the Spot especially by husband of the deceased lady including two others; that none of the children of the complainant, being the natural witnesses, was joined with the investigation; that the delay of more than nine hours in reporting the matter to the police by itself speaks volume with regard to the correctness of the contents of the crime report; that both the witnesses of ocular account were not consistent inter-se on all material aspects of the case in their deposition before the learned trial court. At the end, he has made a request for acquittal of the appellant.
9. Conversely , learned Additional Prosecutor General appearing for the State has vehemently contended that the appellant had a history of teasing the deceased for sexual assault prior to this occurrence and when he remained unsuccessful, he murdered her without any fault on her part; that both the witnesses of ocular account had no enmity or animosity against the appellant to implicate him falsely while letting off the real culprit; that the ocular account was quite natural, straight forwa rded and fully supported with the medical evidence; that no one in our society volunteers to make statement in order to invite enmity; that the recovery of blood stained hatchet at the instance of the appellant coupled with the positive reports of the Chemical Examiner and that of the Serologist provides further corroboration to the ocular account. Finally , he has prayed for dismissal of the appeal.
10. I have heard learned counsel for the appellant, learned Additional Prosecutor General appearing for the State and perused the record with their able assistance.
11. The mainstay of the prosecution case was on the testimony of Muhammad Ramzan (PW-5)/complainant, husband and Rajab Ali (PW-6) brother of deceased Saima Bibi. The complainant while appearing in the dock in the courtroom deposed that in the evening of 11.02.2006 Muhammad Mumtaz and Rajab Ali came to see him at his house. He had to go to Chak No,38-D for the purpose to plough the fields, Muhammad Mumtaz and Rajab Ali accompanied him, they returned at 09:00 p.m., parked his tractor at the Dera of Rao Rasheed and when they reached at the outder gate of the house, they saw in the light of electric bulb Muhammad Islam inflicting hatchet blows at the head, left and right side of neck, chest and teeth of his wife Saima Bibi, who fell down and succumbed to the injuries at the spot. They attempted to apprehend the appellant but he wave d the hatchet and fled away by scaling over the Walls. They raised hue and cry and attracted people from the locality . Rajab Ali (PW-6) made almost same statement implicating the appellant for inflicting the hatchet blows on specific locale to his sister Saima Bibi. They claimed to have witnessed the occurrence in the light of electric bulb but no such bulb was taken into possession by the Investigating Officer at the time of his first visit of the place of occurrence. The complainant had one son Rizwan seven years of age, and three daughters including Sajida aged about 8/9 years but surprisingly , none of them made hue and cry to attract people from the vicinity in order to rescue their mother . It is the prosecution's own case that the complainant along with his wife and children were residing in a single room and in the same compound there were different rooms where 7/8 other people were residing and they too, did not attract at the spot. In this backdrop how one person can harm a lady in the night by inflicting five hatchet blows in a free-hand manner without making noise by the children or attracting any other person from the compound.
12. The unnatural conduct of the eye-witnesses has much relevancy to this discussion. The complainant, being husband, Rajab Ali, being real brother and Muhammad Mumtaz, being brother-in-law of the deceased lady attracted at the place of occurrence and in their view the appellant inflicted first blow at the head, second at left, third at right side of neck, fourth at the chest and fifth at the face of the deceased lady but none of them intervened to rescue her. The complainant claimed that they stopped being afraid due to the alarm given by the appellant.
Admittedly , the appellant was not holding any conventional weapon at the time of occurrence and the claimed eye- witnesses, who were three in number , were in a better position to easily overpower the appellant at the spot and deter him from repeating the hatchet blows. Such inhuman and unbelievable behavior on part of the claimed eye- witnesses runs counter to the human conduct as envisaged under the provisions of Article 129 of the Qanun-e- Shahadat Order , 1984 and, thus, this Court is not inclined to accept their testimony . In the circumstances, the presence of both the claimed eye-witnesses at the venue of occurrence at the relevant time, is not free from doubt.
A reference may be made to case .titled "LIAQA T ALI v. THE STATE" (2008 SCMR 95) wherein it has been held as under:- "Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W.7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaqat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away . He was a single alleged 'assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
13. This shows that none of the eye-witne sses was present at the venue of occurr ence, they reached when it was already over and on the basis of suspicio n the appellant was entangled in this case. This fact is further verified by the statement of the complainant itself who had stated during cross-examination that "After coming back to my house I rang up Rao Rasheed at his residence at Depalpur . After arrival of Rao Rasheed we consulted to get the case registered". This shows that the case was got registered after getting legal opinion with due consultation, deliberation and fabrication. He further deposed that besides inflicting injuries on the person of his wife' Saima Bibi the accused had inflicted injuries at the person of his daughter Sajida Bibi with wrong side of F hatchet but no medico-legal certificate is available of said Sajida Bibi in that regard. He further deposed that he followed the appellant up to his house with the intention to apprehend him and at the same breath he stated that he did not know the distance from his house to the house of the appellant. The inhabitants of the area also followed him at the time when he was following the appellant but he could not tell the names of those persons. The complainant was not certain with regard to his deposition and also dif ferent steps of the occurrence.
14. Admittedly , Rajab Ali (PW-6) was resident of Madina Colony , Depalpur City. He had given the explanation that he along with Muhammad Mumtaz came to see his brother-in-law Muhammad Ramzan and accompany him to the fields at Chak No,38.-D, which was far away from the place of occurrence. He was a chance witness and he could not H explain the reason of his visit to the complainant's house satisfactorily and why he accompanied the complainant to the fields. He along with two other male healthy eye-witnesses neither attempted to stop the appellant from repeating the hatchet blows nor made any effort to apprehended him at the spot. In legal parlance, a chance witness is one, who is not supposed to be present at the crime scen e unless he offers cogent and convincing reason of his presence. Once the acclaimed eye-witness has failed to prove the purpose or definite work of his presence at the venue of occurrence at the relevant time, the established principle of law is that his testimony cannot be relied upon to maintain the conviction and sentence under the capital charge. Reliance is placed on case titled "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596) wherein it has been held as under:- "A single doubt reasonably showing that a witness/witnesses' presence on the crime spot was doubtful when a tragedy takes place would be sufficient to discard his/their testimony as a whole. This principle may be pressed into serve in cases where such witness/witnesses are seriously inimical or appears to be a chance witness because judicial mind would remain disturbed abou t the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system."
15. Dr. Yasmin Rashid held autopsy on the dead body of the deceased lady on the next day i,e, 12.02.2006 at 02:00 p.m. and observe five incised wounds at the left side of her neck, lower lip, upper lip, right side of neck and top of the head, which fractured the occipital bone. These injuries were ante-mortem and caused by sharp-edged weapon. The cause of death was hemorrhage and shock due to the aforesaid injuries. The duration between injuries and death was immediate, wherea s between death and postmortem 15/16 hours. This unexplained delay in conducting the post-mortem examination on the dead body of the deceased lady points out towards a real possibility that the time had been consumed by the local police and the complainant party in order to procure and plant the eye-witnesses for cooking up a false story for the prosecution. A referen ce may also be made to cases titled "Muhammad Ilyas v. Muhammad Abid alias Billa and others " (2014 SCMR 1698 ), "FAQEER MUHAMMAD v. SHAHBAZ ALI and others " (2016 SCMR 1441 ) and "Muhammad Ilyas v. Muhammad Abid alias Billa and others" (2017 SCMR 54 ) wherein it has been held as under:- "Post-mortem Examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution."
16. The motive as set up by the prosecution was that the appellant used to tease the deceased lady and forced her to develop illicit relations with him but on her refusal, he had taken an extreme step to kill her. The complainant had not stated that he was told by his wife regarding aforesaid obnoxious conduct of the appellant prior to this occurrence and even on the fateful day the complainant was not in a position to state that what actually happened prior to this incident. Admittedly , the complainant neither convened any Punchayat to highlight conduct of the appellant nor he reported the matter to the police. The motive part of the occurr ence was nothing but w6rds of mouth, which could not get corroboration or support from any independent sourc e. What actually happened just before the occurrence remains a shrouded mystery .
17. The prosecution tendered the attes ted photocopies of the reports of the Chemical Examiner (Ex.PK and Ex.PM) and that of the Serologist (Ex.PL) regarding blood-stained hatchet (P-6) recovered at the instance of the appellant on 19.02.2006. Though the aforesaid reports had been received with positive result yet the same being photocopies are against the mandate of Section 510, Cr.P.C. and are not worth reliance especially when none of the scribers was examined by the prosecution in order to verify the contents thereof. Such like issue had already been dealt with by this Court in case titled "MUHAMMAD BAKHSH v. STATE (2011 PCr.LJ. 1466 )" wherein at page No,480, it has been held as under: "Report of Chemical Examiner Ex.PE, placed on the record is duplicate one which is contrary to mandatory provision of Section of 510, Cr.P.C. and prosecution did not prove the report of Chemical Examiner by examining the Chemical Examiner as a witness. The report of Chemical Examiner Ex.PE also shows that it pertains to a case titled "The State v . Muhammad Yaseen" which also create doubts regarding its genuineness."
18. From the aforesaid discussion, I have reached at an irresistible conclusion that the prosecution has not been able to prove the charge of murder again st the appellant beyond shadow of reasonable doubt. Rajab Ali (PW-6) being resident of city Depalpur was a chance witness and he remained fail to establish his presence at the venue of occurrence at the relevant time. The unnatural conduct of both the eye-witnesses for neither intervening to rescue the deceased lady and remained counting the injuries specific locale like silent spectators nor making any effort to apprehend the appellant at the spot, is another factor which speaks volume with regard to their presence at the venue of occurrence. It could not be expected from a husband, real brother and brother-in-law to scare themselves away being afraid of on alarm of the accused of the consequences especially when he was not equipped with any conventional weapon. The natural witnesses i,e, a son and daughters of the deceased lady and 7/8 other persons residing in the adjacent rooms were not associated with the investigation in support of the complainant's stance. The case of the prosecution is highly doubtful and benefit of doubt always extends in favour of the accused. I am not in agreement with the conclusion arrived at by the trial Court qua the conviction and sentence of the appellant. The only irresistible conclusion is that the prosecution has miserably failed to prove the charge against the appellant beyond shadow of reasonable doubt.
19. The epitome of above discussion is that the appeal in hand is allowed the conviction and sentence of the appellant are set aside and he is acquitted of the charge by giving the benefit of doubt to him. He is directed to be released forthwith if not required to be detained in connection with any other case.
Appeal allowed the case, moved an application before the learned trial court requesting for the age determination of the accused/respondent through proper inquiry and medical board in the light of section 7 of the Ordinance ibid. The learned trial court, after hearing arguments of the learned counsel for the parties, dismissed the application vide order dated 14.9.2017, hence the instant criminal revision petition.
3. Arguments heard and the available record perused.
4. Since the learned counsel for the petitioner banks upon Section 7 of the Juvenile Justice System Ordinance, 2001, therefore, the same is reproduced as under for ready reference:- "7. Determination of age.- If a question arises as to whether a person before it is a child for the purposes of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child."
After going through the recitals of the aforesaid section of law, the question to be decided is that whether under section 7 of the ibid law, it is obligatory on the trial court to have recourse to the Medical Board for the determination of the age of an accused in every case. Certainly , under this provision of law, when there is no concrete proof or documentary evidence qua the juvenility of an accused, the trial court can resort to such exercise of sending the matter to the Medical Board, but in the instant case, the accused/re spondent, before the framing of the charge, presented his DMC of SSC examination in support of his claim of minority which the learned trial court accepted as an authentic document. More so, the petitioner has not challenged the validity or authenticity of the document produced by the accused/respondent in the form of DMC of SSC issued by the BISE, Peshawar , either before the learned trial court in his application nor before this court through the instant petition but has simply averred that the age of the accused/respondent be determined through the Medi cal Board. Otherwise too, when the said document has not been held by the competent forum as fraudulent or bogus, its authenticity cannot be brushed aside on the bald assertion of the petitioner . As per his Matric DMC, at the time of the alleged commission of the offence on 21.5.2616, the accused/petitioner was below 18 years of age, i,e, 17 years, 8 months and 11 days.
In view of the foregoing discussion, the learned trial court has rightly dismissed the application of the petitioner . I am fortified in my view by the dictum laid down by the august apex Court in the case reported as Muhammad Ishaq v. Muhammad Nadeem and another (2002 SCMR 440) and Intizar Hussain v. Hamza Amir and others (2017 SCMR 633 ).
5. Resultantly , this criminal revision petition, being without any substance, stands dismissed along with Cr.Misc.
No,335-P/2017.