Anwaarul Haq Pannun, J.--Through this single judgment, we propo se to decide Criminal Appeal No.1574 of 2016 & Murder Reference No:398 of 2016 filed against judgment dated 27.08.2016, passed, on the conclusion of trial, in case FIR No.309, dated 27.09.2015, for an offence under Section 302 PPC, registered at Police Station Piplan, District Mianwali, by the learned Additional Sessions Judge, Piplan whereby he has been convicted and sentenced as under:- "Under Section 302(b) PPC Death and compensation of Rs. 2,50,000 1- payable to legal heirs of deceased Mst. Zakia Naheed and in case of default, to undergo six months S. 1.
2. Precisely , prosecution's webpage, the FIR (Exh.P A), lodged on the complaint (Exh.P A/1) of Hakim Khan (PW-1), is that on 27.09.2015 of about 08:30 a.m., he along with his brother Saif Ullah (given up PW) and paternal cousin Abdul Chaf fer (PW-2) came to see Mst. Zakia Naheed (deceased) on the occasion of Eid and were sitting in the Courtyard of her Rafique (appellant) while armed with rifle 7-MM came out from his residential room and raised Lalkara to Zakia Naheed, his daughter , that he will teach a lesson for causing quarrel and clash in the house, made a straight fire shot on her which landed on her aorta (shah rag) due to which she fell down on the ground. The complainant and the witnesses attended her whereas the accused rain towards eastern side. Mst. Zakia Naheed was shifted to THQ Hospital, Piplan through a Dala but she succumbed to the injuries on reaching in the hospital.
3. The motive behind the occurrence was stated to be the quarrel and clash of appellant with the deceased Mst.
Zakia Naheed and Muhammad Latif her husband.
4. Registration of the case after its usual investigation encapsulated into a report under Section 173 Cr.P.0 which was duly submitted before the learned trial Court, the appellant, after supplying him with the copies of incriminating material under Section 265(c) Cr.P.C, was charged sheeted to which he denied and pleaded not gurity , while professing his innocence and claiming trial, the prosecution was directed to produce evidence.
5. The prosecution has produced as many as ten witnesses besides tendering, in evidence, reports of Punjab Forensic Science Agency Firearms & Toolmarks Examination and Forensic DNA & Serology Analysis as Exh.PQ & Exh.PR.
6. Lady Dr. Misbah Maqbool, W.M.O, THQ Hospital, Piplan (PW-7), on 27.09.2015, conducted the post-mortem examination over the dead body of deceased and observed the following injuries:--
1. Entry wound of 1 x 1 cm present on back (posterior surface of right shoulder close to neck having inverted margins. No blackening, tattooing present. Blood mixed serum oozing out.
2. Exit wound of 7 x 6 cm present on front of neck everted margins. No blackening tattooing present. Blood mixed serum oozing out of wound.
In her opinion, death occurred due to injury No. 1 passing through major vessels of neck causing ruptured of major vessels leading to hemorrhage, shock and death in ordinary course of nature. Both the injuries were ante-mortem in nature.
Probable time that elapsed between injuries and death was immediate and betwe en death and post-mortem was about 3 to 6 hours.
7. The ocular account in this case has been furnished by Hakim Khan (PW-1) and Abdul Ghaf far (PW-2).
Muhammad Akram S.I/Investigation officer has appeared as PW-9. Rest of the witnesses are formal in nature and not of much importance, therefore, in order to avoid repetition of account, the detail of the same is not being given.
8. When examined under Section 342 Cr.P.C, the appellant denied every bit of incriminating material produced against him by the prosecution through its evidence. While replying the question that as to why this case against him and why the prosecution witnesses had deposed against him, he stated as under:-- "Actually the murder of the deceased was committed in a mysterious way. I had divorced sister of PW Abdul Ghaf far and Zulfiqar and complainant has close relationships with PW-2 and PW-3 and due to this grudge as well as in order to take revenge, they in connivance with complainant, falsely roped me in this false case. The rest of the PWs are police officials and they deposed against me just to show their efficiency before their high ups.
Moreover , the PWs remained fail to prove their stance by producing cogent and convincing evidence. The complainant remained fail to prove the motive part of the occurrence as I have no reason to murder my sister in law just on alleged hot words for which no witness has come forward to prove the same."
9. The appellant neither opted to appear as his own witness under Section 340(2) Cr.P.C nor produced any defence evidence. On the conclusion of trial, he has been convicted and sentenced as aforesaid, hence the aforementioned criminal appeal as well as connected Murder Reference.
10. Arguments heard. Record perused.
11. The pivotal question, in this case, requiring its answer , in the light of establish ed principles for dispensation of criminal justice, for deciding criminal cases consisting upon direct evidence/eye-witness account casting a foremost duty on the prosecution to establish, while excluding all hypotheses of their being a chance witnesses, the presence of the witnesses at the relevant time at the place of occurrence besides proving that they had witnessed the occurrence with their own eyes. The demeanor and behavior of the PWs at the time of occurrence and little thereafter is also relevant for believing their evidence. After undertaking judicial scrutiny of the evidence, if the Court concludes that the presence of the eye-witnesses at the relevant time is established, their evidence is normally relied upon for recording convic tion but in case it is found that the witnes ses are chance witnesses, their evidence, for the safe administration of justice. is rejected/disbelieved and accused is acquitted.
12. The prosecution has produced Hakim Khan, complainant as PW-1 and Abdul Ghaf far as PW-2 as eye-witness.
According to, the prosecution's version, they alongwith a given up PWs, reached the house of deceased i.e. the place of occurrence, at about 08:30 am., they were sitting in the Courtyard when the occurrence took place at about 09:00 a.m. i.e. after 1/2 an hour of their arrival. The motive behind the occurrence is stated that there were strained relations between the appellant and the deceased and one day prior to the occurrence, hot words and abuses were exchanged between them and due to this grudge, the appellant had committed the murder of Mst.
Zakia Naheed daughter of the complainant. Although both the PWs have narrated the story in their examination-in- chief, like a parrot, as contained in the FIR yet while facing the test of cross-examination, the real test in order to judge the veracity of a witness, it has come on the record that both the eye-witnesses are actually residents of 'near Railway Station Samand Wala Tehsil & District Mianwali. PW-1 is father of the deceased whereas PW-2 is paternal cousin of PW -1. In his cross-examination, PW -1 has deposed as under:-- "I am land owner at Samand Wala District Mianwali. It is correct that Saif Ullah PW is real uncle of deceased Mst.
Zakia Naheed. It is correct that about 07/08 years ago Muhammad Rafiq divorced Nasrcen Bibi sister of Abdul Ghaf far s/o Ghulam Qadir .--The distance between my house and alleged place of occurrence is 65/66 K.Ms. We were on two motorcycles.
I was on a separate motorcycle whereas Abdul Ghaf far and, Saifullah were on another motorcycle. I do not remember the registration numbers of above said motorcycles."
13. Similarly , PW -2 during cross-examination, has deposed as under:- "I am private driver of tractor . I along with Hakim Saifullah left Samand Wala for Piplan at about 07:00 a.m. We were on motorcycle. I arid Saifullah were on one motorcycle and Hakim was on another motorcycle. Samand Wala is situated at a distance of 65 K.Ms, from the place of occurrence. Mst. Zakia Naheed deceased was my cousin. It is correct that Mst. Naseem Bibi was divorced by Muhammad Rafique accused about 07 years ago. One of the sister of accused is wife of my brother Zulfiqar PW ."
14. The above excerpts from the evidence of PW-1 & 2 have convinced us to doubt the presence of witnesses at the place of occurrence at the crime time for the reason that (i) it is admitted position that the said PWs are the residents of 60/65 Kilometers away from the place of occurrence. According to the said PWs, they all travelled on two motorcycles. Amazingly none of them remained able to tell the numbers of the motorcycles. Moreover , the motorcycles have not been produced before the investigating officer during investigation. Even otherwise, it is not believable that all of them had covered a long distance on motorcycles which is not safe means of conveyance.
They reached at the place of occurrence at 08:30 a.m. and the occurrence had taken place just after half an hour of their arrival. The motive behind the occurrence is stated to be the quarrel taken place one day prior to the occurrence. Had there been any strength in the motive, there was sufficient time for the appellant to commit the murder of the deceased prior to the occurrence. Moreover , none of the PWs was present at the time of said quarrel. Sufficient time had already elapsed from the point of time when the earlier occurrence of motive had taken place. Therefore, the anger , if any, must have subsided during this interregnum. There is another reason for us to disbelieve the presence of the said witnesses at the place of occurrence. Admittedly , sister of PW-2 namely Mst.
Naseem Bibi was divorced by the appellant about seven years ago. Therefore, keeping in view the admitted factum of divorce by the appellant to the real sister of PW-2, his presence at the place of occurrence cannot be believed, hence we unanimously have concluded that the real test, for making a Court to believe the evidence of the witnesses has not been sufficiently established by the prosecution. Moreover , the appellant and the deceased were residing in the same house, thus, there was no reason for the appellant to commi t the murder of the deceased in the presence of the witnesses. After going through the evidence, we have come to the conclusion that the prosecution has failed to establish the presence of the aforesaid PWs at the place of occurrence at the relevant time.
15. Now, coming to the motive of the occurrence which is stated to be the quarrel allegedly took place between the appellant and the deceased one day prior to the occurrence but as such, no evide nce has been brought on record to establish that a quarrel took place as alleged by the prosecution witnesses and there existed strained relations between the appellant and the deceased. Although the motive has specifically been attributed to the appellant but, the prosecution remained fail to substantiate its version regarding the same through trustworthy and confidence inspiring documentary evidence. The motive as set up by the prosecution remained unsubstantiated and far from being proved by the prosecution.
16. The investigating officer (PW-9) secur ed empty of 7-MM rifle at the time of his first visit of the plat of occurrence on the same day of occurrence on 27.09.2015 in the presence of witnesses and took into possession the same through recovery memo Exh.PC. The appellant had been arrested on 06.10.2015 and during physical remand on 09.10.2015, weapon of offence i.e. rifle 07-MM (P-5) along with two live cartridges (P-6/1-2) was recovered from a room of his residential house on his pointi ng out, taken into possession through recovery memo Exh.PF and sent to office of Punjab Forensic Science Agenc y on 15.10.2015. Though the report of Serologist is also positive yet the same alone, being corroboratory piece of evidence, is not suf ficient to convict the appellant.
17. In view of the entire discussion, we are of the considered view that the prosecution has not been able to prove the charge of homicide death of the deceased against the appellant through cogent, convincing, reliable, trustworthy and confidence inspiring evidence. The evidence of the complainant and eye-witness has been shattered on almost all major aspects of the case and the their presence at the venue of occurrence at the relevant time has not been established. The motive as to what was the actual cause of murder of deceased remained shrouded in mystery . The prosecution, story as ascribed by the claimed eye witnesses does not coincide with the real facts of the case. The role assigned to the appellant is highly doubtful, and the benefit of doubt, even slightest, always goes in favour of the accused, which is sufficient to tilt the scale of justice in his favour . It is also well-settled principle by now that once there appears a single doubt as to the presence of the claimed eye witnesses at the crime scene, it would be sufficient to discard his testimony as a whole. Reliance in this regard is placed on case titled "Mst. RUKHSANA BEGUM and others versus 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 service in cases such witness/witnesses are seriously- inimical or appears to be a chance witness because judicial mind would remain disturbed about the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system."
18. The nutshell of above discussion is that. Criminal Appeal No. 1574 of 2016 filed by appellant Muhammad Rafique is allowed , his conviction and sentence awarded by the learned trial Court are set aside and he is acquitted of the charge by giving him the benefit of doubt. He is directed to be released from jail forthwith, if not required to be detained in connection with any other case.
19. Murder Reference No.398 of 2016 is answered in the NEGA TIVE and the Death Sentence awarded to appellant Muhammad Rafique is not confirmed .