Shehram Sarwar Ch., J.--Sohail Ahmad (appellant) alongwith his co-accused namely Waris Ai and Rubina Kausar was tried by the learned Addl. Sessions Judge, Sheikhupura in case FIR No, 179 dated 22.03.2015 offence under Sections 302, 201 and 311, PPC, registered at Police Station Bhikhi District Sheikhupura for the murder of Mst.
Sidra Bibi daughter of the complainant. Vide judgment dated 18.01.2017 passed by the learned Addl. Sessions Judge, Sheikhupura, Sohail Ahmad (appellant) was convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs,5,00,000/- (rupees five lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of Mst. Sidra Bibi (deceased) and in default whereof to further undergo, one year simple imprisonment. He was also convicted under Section 201, PPC and sentenced to seven years I.I. with a fine of Rs, 1,00,000/- (rupees one lakh only) and in default whereof to further undergo for three months. He was further convicted under Section 338-C , PPC and sentenced to seven years R.I. alongwith fine of Rs,2,00,000/- (rupees two lakh only) and in default whereof to further undergo six months simple imprisonment. However , through the same judgment, Waris Ali and Mst. Robina Kausar co-accused of the appellant were acquitted of the charges and against their acquittal Muhammad Rafique, complainant has filed Crl. Appeal No, 179 of 2017. He has also filed Crl Revision No, 141 of 2017 against Sohail Ahmed, Respondent No, 2 for convicting. him under Section 376, PPC as well as awarding adequate compensation to the legal heirs of the deceased. Assailing the above convictions and sentences, Sohail Ahmad (appellant) has filed the appeal in hand, whereas, the learned trial Court has sent Murder Reference No, 29 of 2017 for confirmation or otherwise of his sentence of death, as required-under Section 374, Code of Criminal Procedure. Since all these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.P .A/1) registered on the application (Exh.P A) of Muhammad Rafique, complainant (PW.5) is that he (complainant) was resident of Girja Colony and used to work at Tariq Glass Factory .
The marriage of his daughter Mst. Sidra Bibi was solemnized with Waris Ali about one and half years ago. On 22.03.2015 at about 6:00 p.m. he received information that his daughter Mst. Sidra Bibi had been murdered in her room by a sharp edged weapon and tried to set her body on fire. On receiving the said information complainant and his sons Muhammad Khalid and Pervaiz reached the spot. The neck of Mst. Sidra Bibi was cut with a sharp edged weapon, and there were marks of wounds with sharp edged weapon on her both hands and her body was partially burnt, waris Ali had contracted second marriage with his daughter Mst. Sidra Bibi due to which his first wife Mst.
Robina Kausar and son Sohail Ahmad were unhappy and there were family differences between the spouses. It was further alleged in the FIR that the complainant suspected that Waris Ali, Robina Bibi and Sohail Ahmad alongwith unknown accused had committed the murder of Mst. Sidra Bibi daughter of the complainant.
3. After formal investigation, report under Section 173 of the Code of Criminal procedure, 1898 was submitted before the learned trial Court and the appellant alongwith his co-accused was sent to face trial. The learned trial Court, seized of the matter , framed the charge against the appellant and his co-accused to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as fourteen witnesses in all.
Statements of the appellant and his co-accused were recorded under Section 342, Code of Criminal Procedure on 07.01.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. To a question as to why this case against him and why the prosecution witnesses had deposed against him, Sohail Ahmad (appellant) replied as under: "My father had contracted marriage with deceased Sidra Bibi on 15.12.2013 against the will of her parents due to which her parents and other family members were annoyed with him. She was residing with my father in a separate house peacefully . I alongwith my mother and other family members i.e. paternal uncles, their wives and children were residing in other house jointly . On 22.03.2015 my step-mother Sidra Bibi deceased was murdered by unknown persons but Muhammad Rafique father of Sidra Bibi deceased become complainant of her murder case being in league with the local police and having previous grudge against my father , falsely involved us in the case after concocting and fabricating a false story .
Parents, brothers land other relatives of Sidra Bibi started extending threats of dire consequences to us and also started to force the Sidra Bibi to get divorce from my father . In this regard Sidra Bibi deceased filed a harassment petition against her father , brother and other relatives, she also got recorded a rapat in Police Station on 03.04.2014 against her parents and relati ves on account of threats given by them to her life. The PWs being close relatives to complaint have deposed false ly against me on asking of complainant having previous grudge against my father and my family members. 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 produced any evidence in his defence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused as detailed above.
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 noticeable delay in conducting post-mortem examination of the dead-body of deceased; that there is no direct evidence against the appellant; that it was an unseen incident; that DNA test report of the applicant is not helpful for the prosecution; that alleged confession of appellant about the commission of crime before the police as well as complainant's party is inadmissible in evidence; that alleged recoveries of chhurri (P. 19) and empty plastic bottle (P.22) at the instance of appellant are immaterial; that viewing from all angles the prosecution 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 was no conscious or deliberate delay in conducting post-mortem examination of the dead-body of deceased; that the complainant's side had no enmity against the appellant for his false implication in this case; that prosecution case is fully supported by medical evidence and corroborated by the recoveries of chhurri (P. 19) and empty bottle (P.22) at the instance of appellant; 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. Salient features of the prosecution case are as under:-- Undisputedly , the post-mortem examinatio n of the dead-body of deceased was conducted on 23.03.2015 at 11:45 am. i.e. about seventeen hours and forty five minutes after the incident. It has been held repeatedly by this Court and 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 post-mortem, 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. In this regard, reliance is placed on the case of "Muhammad Riaz us. The State" (2009 P.Cr.LJ. 1022 Lahore), wherein this Court has observed as under: "13. ...It is also not found correct that the F.I.R. had been got registered with promptitude as the occurrence had allegedly taken place at about 5-00 a.m. while the post-mortem examination was conducted at 1-00 p.m. and there is every possibility that the intervening period was consumed in concocting a story and to await for the relatives of the deceased, who were made witnesses subsequently , otherwise, they have failed to establish their presence at the spot ..."
Same view was affirmed by the Hon'ble Supreme Court of Pakistan in the case of "Irshad Ahmed us. The State"
(2011 SCMR 1 190), wherein it was observed as under: "3. ...We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted ..."
The above said view has been further fortified in the case law titled as Nazeer Ahmed vs The State" (2016 SCMR 1628 ).
(b) Admittedly , no one had seen the appellant while killing Mst. Sidra Bibi. The whole prosecution case is only based on the confession of Sohail Ahmad (appellant) allegedly made by him before the police and the complainant party at the time of his arrest. Undeniab ly, under Article 39 of Qanun-e-Shahadat, confession by accused of his guilt under custody of police is inadmissible in evidence. Moreover , the appellant was not produced before the learned Area Magistrate soon after his arrest for recording his judicial confession. Furthermore, the role played by the appellant in the incident in issue had not been disclosed or alleged by the prosecution through independent evidence as to under what circumstances the deceased had been done to death.
(c) As per contents of FIR, the, complainant suspected that Sohail Ahmad (appellant), Waris Ali and Mst. Robina Kausar committed the murder of Mst. Sidra Bibi daughter of the complainant meaning thereby appellant and his co- accused were implicated in this case on the basis of suspicion. The law is settled by now that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in a criminal case.
Reliance may be placed on case law titled as "Muhammad Jamshaid and another vs The State and others" (2016 SCMR 1019 ) and "Muhammad Ashraf vs. The State" ( 2016 SCMR 1617 ).
(d) This case was registered against three accused persons Sohail Ahmad (appellant), Waris Ali and Mst. Robina Kausar out of whom two persons namely Waris Ali and Mst. Robina Kausar , having similar role with that of the appellant, have been acquitted by the learned trial Court, therefore, the question, for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant namely Waris Ali and Mst. Robina Bibi can be believed against the appellant? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shehbaz vs. The State" (2016 SCMR 1763 ), wherein it was held at Page 1765 as under: "2. ...The law is settled by now that if some eyewitnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758 ), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shehbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by "the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examin ation of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and postmortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shehbaz appellant."
The above said view has been further fortified in the recent case-law titled as "Imtiaz alias Taj vs. The State and others" ( 2018 SCMR 344 ).
(e) The only distinguishing feature of the appellant's case is the positive result of DNA test (Exh.PV). Whether the report was legally admissible, keeping in view the provisions of Section 510, Cr.P.C. whereunder the report of Biochemical expert on DNA (a Biochemist) is not covered, thus it is open to a serious debate because under the above provision of law, specified experts' reports, excluding the report of above said expert, have been made admissible. At present, we are unable to hold the same as an admissible piece of evidence in absence of any sanction of law. In this regard, reliance may be placed on the case reported as "Azeem Khan and another vs. Mujahid Khan and others" ( 2016 SCMR 274 ).
(f) It was the case of prosecution that Sohail Ahmad (appellant) killed Mst. Sidra Bibi daughter of complainant after committing rape with her but no solid and convincing evidence in that regard is available on record Moreover , neither any charge under Section 376, PPC was framed by the learned trial Court against the appellant nor he was convicted in the said charge.
(g) 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 ).
(h) As far as alleged recoveries of chhurri (P. 19) is concerned the same is immaterial because no report of Punjab Forensic Science Laboratory qua chhurri is available on the records As far as empty bottle (P.22) at the instance of appellant is concerned the same does not advance the case of prosecution because it was an ordinary bottle easily available in the market.
8. So far as version of the appellant taken by him in his statement recorded 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 defence version.
9. 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 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 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 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"
10. For the foregoing reasons, Criminal Appeal No, 184 of 2017 filed by Sohail Ahmad (appellant) is allowed, convictions and sentences awarded to the appellant vide judgment dated 18.01.2017 passed by the learned Addl Sessions Judge, Sheikhupura are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Sohail Ahmad, appellant is in jail. He shall be releas ed forthwith if not required to be detained in any other case.
11. The Murder Reference No, 29 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Sohail Ahmad (convict) is NOT CONFIRMED .
12. In view of above discussion Crl Appe al No, 179 of 2017 against the acquitta l of co-accused of the appellant namely Waris Ali and Mst. Robina Kausar as well as Crl Revision No, 141 of 2017 for convicting the appellant under Section 376, PIT as well as awarding adequate compensation to the legal heirs of deceased having no merits are dismissed.