Shehram Sarwar Ch. J.--Muhammad Shehbaz (appellant) was tried by the learned Addl. Sessions Judge.
Chichawatni in case FIR No. 45 dated 01.02.201 1, offence under Section 324, PPC (Section 302, PPC was added later on), registered at Police Station City Chichawatni District Sahiwal for the murder of Mst. Shamsa Bibi (deceased) daughter of complainant. Vide judgment dated 29.01.2014 passed by the learned Addl. Sessions Judge, Chichawatni, the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs, 2,00,000/- (rupees two lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 21 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, are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.PB/1) registered on the statement (Ex.PB) of Muhammad Sadiq, complainant (PW.2) is that he was a labourer and his daughter Mst. Shamsa Bibi was running a beauty parlor in Gharib Mohallah. On 01.02.201 1 at sham wela, the complainant and his son Muhammad Tahir came to beauty parlor after taking fodder for his donkey and after closing beauty parlor , they were going to their house along with Mst. Shamsa Bibi. When they reached near Gulistan Sahaba Mosque, all of a sudden, Muhammad Shehbaz (appellant), having a plastic jug containing acid in his hand, came from behind and threw acid on Mst. Shamsa Bibi which fell on her back and legs, who badly burnt. Some of the acid also fell on the complainant which burnt his clothes from backside. Mumtaz Ahmad brother of complainant was going to purcha se grocery , who also witnessed the occurrence. The complainant, his brother and son raised alarm and the appellant fied away while throwing jug.
The complainant party shifted Mst. Shamsa I3ibi to Civil Hospital, Chichawatni in injured condition for medical aid.
Motive behind the occurrence as alleged in the FIR was that about nine years ago, marriage of Mst. Shamsa Bibi was solemnized with one Shafaqat Ali, a close relative of Muhammad Shehbaz (appellant) in Gojra and two years back, the daughter of complainant got divorce from Shafaqat Ali, Muhammad Shehbaz (appellant) many a times made telephonic calls to the complaina nt and demanded the hand of his daughter and on refusal by the complainant, extended him threats of killing Mst. Shamsa Bibi by pouring acid on her. Subsequently , Mst. Shamsa Bibi died on 02.02.201 1 and Section 302, PPC was added in this case.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted before the learned trial Court. Muhammad Shehbaz (appellant) was summoned by the learned Addl. Sessions Judge, Chichawatni 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 Section 302, PPC was framed against him on 29.04.201 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 16.01.2014, wherein he refuted all the allegations of prosecution and professed his 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 falsely involved in this case. I am innocent. Mst. Shamsa Bibi deceased was married with my cousin Shafaqat Ali after some time, Mst. Shamsa Bibi filed a suit for dissolution of marria ge against Shafaqat Ali whereas Shafaqat Ali filed suit for restitution of conjugal rights at Gojra wherein I was cited as witness in the suit of Shafaqat Ali but later on through Punchayat Shafaqat Ali divorced Mst. Shamsa Bibi deceased and it was borne grudge in the complainant's mind that Shafaqat Ali divorced Shamsa Bibi on my asking. On the fateful night of occurrence, Mst. Shamsa Bibi committed suicide while throwing acid upon her in her house and she was shifted to THQ Hospital, Chichawatni through her Aunt and at the time of medical examination, in brief history of MLR of Mst.
Shamsa Bibi she has stated that some un-known person had thrown acid on Sharnsa Bibi and she was medically examined 'at about 07.30 p.m. whereas according to the prosecution story , the alleged occurrence took place at about 05.30 p.m. How it is possible that after the delay of two hours, Mst. Shamsa Bibi reached Hospital at THQ Chichawatni if the distance is about one k.m. from shown place of occurrence to THQ Hospital, Chichawatni. All the story is planted and concocted story . I am innocent."
The appellant neither opted to appear as his own witness in disproof of the prosecution allegations 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; the matter was reported to the police with due deliberation and consultation; that the ocular account was furnished by Muhammad Sadiq, complainant (PW.2) and his brother Murntaz (PW.3) who claimed that after the incident, they along with Muhammad Tahir (given up PW) shifted Mst. Shamsa Bibi (deceased) to THQ Hospital, Chichawatni, for medical treatment but the doctor (PW.5) who medically examined Mst. Shamsa Bibi (deceased, then injured) stated during cross-examination that the injured was accompanied by her aunt and the name of above said eye-witnesses is not mentioned in the MIX (Ex.PJ) or disclosed by the medical officer (PW.5); that the version of aunt of the deceased before the medical officer was that some one threw acid on Shamsa Bibi; that the said aunt was not produced during investigation or before the learned trial Court 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 MLC (Ex.PT) of Muhammad Sadiq, complainant (PW.2) does not show the time of his arrival in hospital or his medical examination whereas the probable duration of the injury as stated by Dr. Saeed Iqbal (PW.11) was within twelve hours; that mere burn injury on the person of an injured does not stamp him a truthful witness; that a vague motive was set up by the prosecution in the FIR and brough t before the learned trial Court which has not been proved; that alleged recoveries of plastic jug (P.1) and plastic cane (P.5) from the place of incident are inconsequential as the same are ordinary things and can easily be obtained from the market; that the version of the appellant is more probable, convincing and even gets full support from prosecution's own case; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to acquittal.
5. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that Muhammad Sadiq, complainant PW.2) and Mumtaz (PW.3) have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that the eye-witnesses have no enmity with the appellant to falsely implicate him in this case; that Muhammad Sadiq, complainant (PW.2) is an injured witness of this case and the medical officer (PW.11) who medically examined the said injured did not state anywhere before the learned trial Court that the chemical burnt injury on his person was self inflicted: that a specific motive was set out in the FIR and brought before the learned trial Court which has been proved against the appellant; that ocular account is fully supported by medical evidence; that prosecution case is further corroborated by the recoveries of plastic jug (P.1) and plastic cane (P.5) from the place of occurrence which were used by the appellant during the incident; that the version of the appellant is nothing but an afterthought; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
6. We have heard arguments of learned counsel for the parties as well as the learned Deputy Prosecutor General for the. State at a considerable length and have also gone through the record very minutely .
7. In this case, Mst. Shamsa Bibi (deceased) daughter of complainant, has lost her life. The incident, as per prosecution, took place in the area of Mosque Gulistan Gharib Mohallah situated within the territorial limits of Police Station City Chichawatni District Sahiwal on 01.02.201 1 at sham wela. During examination-in-chief, the complainant stated the time of occurrence as 5.30 p.m. The matter was reported to the police on the same day at 6.10 p.m. through statement (Ex.PB) of Muhammad Sadiq, complainant (PW.2) and formal FIR (Ex.PB/1) was got registered at 6.20 p.m. The distance between the police station and the place of occurrence as per relevant column of the FIR is one and a half kilometers.
8. The ocular account in this case has been furnished before the learned trial Court by Muhammad Sadiq, complainant (PW.2) and Mumtaz (PW.3), who are brothers inter-se and closely related to the deceased as well, being her father and paternal uncle, respectively . No convincing and plausible reason has been assigned by both the eye-witnesses for their presence on the spot and the complainant (PW.2) simply stated before the learned trial Court that he along with his son Muhamm ad Tahir (given up PW) came at the, beauty parlor of his daughter Mst.
Shamsa Bibi (deceased) after taking feed for his donkey whereas the stance of Mumtaz (PW.3) is that he was going to purchase grocery from a shop when he witnessed the occurrence near Gulistan-e-Sahaba Mosque.
During cross-examination. Mumtaz (PW.3) admitted that his house is situated near G.T, Road and many shops are located on G.T.' Road including grocery shops, fruit shops, tyre shops etc. hence the going of Mumtaz (PW.3) to Gharib Mohallah i,e, place of occurrence for purchase of grocery is not understandable. The claim of both the eye- witnesses before the learned trial Court was that after the incident, they along with Muhammad Tahir (given up PW) shifted Mst. Shamsa Bibi (deceased) to THQ Hospital, Chichawkni, for medical treatment but the stance of eye- witnesses is belied by the statement of lady doctor Saima Saba (PW.5), who medic ally examined Mst. Shamsa Bibi (deceased, then injured) and stated during cross-examination that the injured was accompanied by her aunt. The name of above said eye-witnesses is not mentioned in the MLC (Ex.PJ) of Mst. Shamsa Bibi (deceased) or disclosed by the medical officer (PW.5) as the persons accompanying the deceased at that time and as such, the presence of witnesses of ocular account at the place of occurrence at relevant time become doubtful. The aunt of the deceased did not name the appellant before the medical officer rather stated that that someone threw acid on Shamsa 13ibi. There is another circumstance which makes the presence of complainant on the spot doubtful because his MLC (Ex.PT) does not show the time of his arrival in hospital or his medical examination. The probable duration of the injury as stated by Dr, Saeed lqbal (PW.11) was within twelve hours, which suggests that the complainant was brought to THQ Hosp ital, Chichawatni after consuming so much time. The argument of the learned DPG that presence of Muhammad Sadiq, complainant (PW.2) cannot be doubted at the place of occurrence due to the burnt injury on his person has no substance because merely the injury on the body of a person would not stamp him/her truthful witness. Reliance is placed on case law titled as "Amin Ali and another vs. The State" (2011 SCMR 323). Even the learned trial Court has not charged or convicted the appellant for the burnt injury alleged caused to the complaina nt. After considering all the relevant circumstances, we hold that the evidence of both the eye-witnesses was not consistent, truthful and confidence inspiring.
9. There is another aspect of the case, According to cross-examination of lady doctor Saima Saba (PW.5), Mst.
Shamsa Bibi (deceased) was accompanied by her aunt but the name of said aunt was not brought on record, Even she was not produced during investigation or brought before the learned trial Court and as such the prosecution withheld the best available evidence and in view of Article 129(g) of Qanoon-e-Shahadat Order . 1984, adverse inference, that had this witness been produced before the learned trial Court, she 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 Suprem e Court of Pakistan in the cases of "Lal Khan vs The State" (2006 SCMR 1846 ), "Muhammad Rafique and others vs. The Stale and others" (2010 SCMR 385) and "Muhammad Asif vs. The State" (2017 SCMR 486). In the 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 so sat 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. Motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was to the effect that about nine years ago, marriage of Mst. Shamsa Bibi (deceased) daughter of complainant was solemnized with one Shafaqat Ali, a close relative of Muhammad Shehbaz (appellant) in Gojra and two years back, the daughter of complainant got divorce from Shafaqat Ali. Muhammad Shehbaz (appellant) many a times- made telephonic calls to the complainant and demanded the hand of his daughter and on refusal by the complainant, extended him threats of killing Mst. Shamsa Bibi by pouring acid on her. We have noted that no application was filed before the police hierarchy by the complainant regarding the threats extended to him by the appellant. During cross- examination, the complainant has stated that his daughter filed a suit against her husband Shafaqat Ali for dissolution of marriage but no documentary evidence was brought on record in support of the same. Even no independent witness qua motive was produced during investigation or before the learned trial Court during trial. In this view of the matter , we hold that the prosecution has not been able to substantiate the motive part of the occurrence.
11. So far as the alleged recoveries of plastic jug (P.1) and plastic cane (P.5) from the place of incident which were taken into possession vide recovery memos Ex.PC and Ex.PF , respectively are concerned, the same are inconsequential because of the reasons that these are ordinary things and can be obtained from the market.
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 any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" ( 2016 SCMR 1605 ).
13. As far as the defence plea taken by the appellant in his statement 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 same which is exculpatory in nature.
14. 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 6 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 the case of "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 thereof 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 shou ld 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."
15. For the foregoing reasons, Criminal Appeal. No, 420-J of 2017 filed by Muhammad Shehbaz (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 29.01.2014 passed by the learned Addl. Sessions Judge, Chichawatni are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
16. Murder Reference No, 21 of 2014 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Shehbaz (convict) is NOT CONFIRMED .