Shehram Sarwar Ch., J.--Sajjad Hussain (appellant) was tried by the learned Addl. Sessions Judge, Mailsi District Vehari in case FIR No, 139 dated 06.06.2009, offence under Section 302, PPC registered at Police Station Karampur District Vehari for the murder of Mst. Karam Elahi (deceased) sister of complainant. Vide judgment dated 15.04.2010 passed by the learned Addl. Sessions Judge, Mailsi, 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, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for one year. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No, 24 of 2015 for confirmation or otherwise of appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. As 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.PD) registered on the statement (Ex.PC/1) of Muhammad Mushtaq, complainant (PW.2) is that he was resident of Mouza Hassan Shah and a barber by profession in Mouza Hassan Shah. About 7/8 years ago, the parents of complainant had contracted marria ge of his (complainant's) sister namely Mst. Karam Elahi with Nazar Hussain, who was living with her husband. Two children namely Hamza aged about five years and Amjad aged about two years were born out of the said wedlock. During her stay with her husband, dispute arose between Mst.Karam Elahi and her brother-in-law (dewar ) Sajjad Hussain (appellant) and they started quarreling on petty matte rs. On 06.06.2009 at about 02:00 p.m., the complainant alongwith Muhammad Ramzan and Allah Bakhsh were coming to Mouza Zorkot to see their sister Mst. Karam Elahi. When they reached at the bank of canal, all of a sudden, heard hue and cry and rushed towards their sister's house where they saw in the residential room that Sajjad Hussain was inflicting toka blows to Mst. Karam Elahi, which landed on her neck, ears and below jaw. Mst. Karam Elahi tried to rescue herself and sustained injuries on her right and left hands. The complainant and others stepped forward to rescue their sister but the appellant threatened that if anyone came near, would face the same consequences. The complainant party did not go near due to fear of life.
Sajjad Hussain escaped from the spot with toka. The complainant party attended Mst. Karam Elahi, who was smeared with blood but she had succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that Sajjad Hussain (appellant) had bad eye on Mst.Karam Elahi, who reprimanded him and due to that grudge, the appellant committed her murder .
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. Sajjad Hussain (appellant) was summoned by the learned Addl. Sessions Judge, Mailsi to face the trial.
Copies of relevant documents were provid ed to him, as required,under Section 265-C, Code of Criminal Procedure and formal charge under Section 302, PPC was framed against him on 16.12.2009, 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 19.03.2009, wherein he refuted all the allegations of the 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: "The complainant and PWs are real brothers inter-se. They are inimical towards me and they are also interested witnesses. The PWs have implicated me due to close relationship with the complainant. PW Muhammad Ramzan and an unknown person murdered the deceased Karam Elahi because she was not willing to go with said Ramzan PW and she did not want to disturb her matrimonial life with Nazar Hussain brother of accused. Due to this revenge, Ramzan alongwith an unknown murdered his wife. They are Riyaya of Sajjad Shah ex MPA and now tehsil Naazim of tehsil Hasilpur . With the influence of said Sajjad Shah Naazim no inhabitant of the house where occurrence took place was associated. The complainant and PW just to save skin of Ramzan PW and an unknown person committed the murder of Karam Elahi. The I.O. completed its investigation within 24 hours partially and under influence of said Sajjad Shah tehsil Naazim Hasilpur who implicated the accused Sajjad falsely in this case.
The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, 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; that Muhammad Mushtaq, complainant (PW.2) and Muhammad Ramzan (PW.7), alleged witnesses of ocular account have not given any plausible reason for their presence on the spot at relevant time; that the eye-witnesses were neither resid ents of the place of incident nor have any place of business there and were chance witnesses; that ocular accou nt is in direct conflict with the medical evidence; that a vague motive was set up by the prosecution which has not been proved; that alleged recovery of toka (P.1) at the instance of the appellant is inconsequential as there was no mention in the recovery memo. (Ex.PE) that the toka was stained with blood; that the reports of Chemical Examiner (Ex.PN) and Serologist (Ex.PP) do not lend credence to the prosecution case; 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 for the State assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that Muhammad Mushtaq, complainant (PW.2) and Muhammad Ramzan (PW.7), who witnessed the incident, 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 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 recovery of toka (P.1) at the instance of the appellant and positive reports of Chemical Examiner (Ex.PN) and Serologist (Ex.PP); 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. The ocular account in this case has been furnished before the learned trial Court by Muhammad Mushtaq, complainant (PW.2) and Muhammad Ramzan (PW.7), who were closely related to deceased being her brothers and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business there. The incident took place in the house of deceased situated in Mauza Zorkot whereas the eye- witnesses are the residents of Mauza Hassan Shah, which is situated at a distance of 3/4 kilometers from the place of occurrence, as admitted by both the eye-witnesses during their cross-examinatio ns. The reason assigned by the witnesses of ocular account for their presence on the spot was that they went to Mauza Karampur for purpose of purchasing some household articles and thereafter they wanted to meet their sister at her house. The fact of going to Mauza Karampur is belied by the statement of complainant as he admitted during his cross-examination that they travelled on a motorcycle but did not go to bazaar of Karampur and that there are some shops in Basti Hassan Shah as well. No plausible reason has been offered by both the eye-witnesses for meeting their sister because the complainant also admitted in cross-examination that one day prior to the occurren ce, he (complainant) along with his parents had met his sister and went back on the same day. Before the learne d trial Court, the eye-witnesses have utterly failed to establish their presence at the place of occurrence at relevant time. It is in this context that 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 at 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 case law reported as "Mst. Sughra Begum and another vs. Qaiser Pervez and others" (2015 SCMR 1142) and "Arshad Khan vs. The State" (2017 SCMR 564).
From the above circumstances, the presence of both the witnesses of ocular account on the spot at the time of occurrence is not free from doubt.
8. Motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was to the effect that Sajjad Hussain (appellant) was brother-in-law (dewar) of Mst. Karam Elahi (deceased), who tried to develop illicit relation with the deceased and she reprimanded him. Owing to that grudge, the appellant committed the murder of deceased. Regarding the motive, Muhammad Ramzan (PW.7) brother of complainant stated during his cross-examination that his two sisters namely Jannat Bibi and Karam Elahi (deceased) were living at the place of occurrence, who were leading their lives happily with their husbands. We have also observed that Nazar Hussain husband of deceased was an important witness with regard to the motive but he was not associated with the investigation during the course of inves tigation. Even no independent witness qua motive was brought in the witness box 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.
9.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 ). Even the medical evidence is a support ive piece of evidence and relevant only if the primary evidence i,e, ocular account inspires confidence which is not the situation in this case.
10. So far as the alleged recovery of toka (P. 1) at the instance of the appellant which was taken into possession vide recovery memo. (Ex.PE) and positive reports of Chemical Examiner (Ex.PN) and Serologist (Ex.PP) are concerned, the same are inconsequential for the reasons that there was no mention in the recovery memo. (Ex.PE) that the toka was stained with blood. Reliance may be placed on the case reported as "Irfan Ali vs. The State"
(2015 SCMR 840), wherein it was held by the Hon'ble Supreme Court of Pakistan that full description of the dagger has been given but blood-stains on it were omitted, therefore, when blood was not found on it, how the Chemical Examiner could give an opinion about the presence of human blood on it.
11. So for as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosec ution evidence is doubtful in nature therefore, there is no need to discuss the same which is exculpatory in nature.
12. 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 foiled 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."
13. For the foregoing reasons, Criminal Appeal No, 194-J of 2017 filed by Sajjad Hussain (appellant) is allowed conviction and sentence awarded to him vide judgment dated 15.04.2010 passed by the learned Addl. Sessions Judge, Mailsi are set aside and the appe llant 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.
14. Murder Reference No, 24 of 2015 is answered in the NEGA TIVE and the sentence of death awarded to Sajjad Hussain (convict) is NOT CONFIRMED .