Shehram Sarwar Ch., J.--Abdul Razzaq (appellant) was tried by the learned Addl. Sessions Judge, Renala Khurd District Okara in case FIR No. 199 dated 20.6.2015, offence under Sections 302 and 34, PPC registered at Police Station Saddar Renala Khurd District Okara for murder of Muhammad Arsalan (deceased) son of complainant.
Vide judgment dated 21.3.2017 passed by the learned trial Court, 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. 192 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure.
Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Rx.PD) registered on the statement (Ex.PA) of Muhammad Sadiq alias Chhado, complainant (PW.1) is that on 20.06.2015 at around 7.00 a.m. he along with his son Muhammad Arsalan went to the sugarcane field of one Abid Yousaf in order to cut grass (fodder) for the cattle where Muhammad Aashiq and Sana Ullah were already cutting fodder . Arsalan son of complainant was cutting grass at some distance from the complainant. At about 8.00 a.m. the complainant party heard report of lire and saw here and there. The complainant proceeded towards his son and witnessed that his son had sustaine d a fire short on left side of his chest near nipple. The blood was oozing and his son was fallen. The complainant party came out of sugarcane field and saw Abdul Razzaq (appellant), his ex-son-in-law (damad ) who had given divorce to his daughter on account of domestic dispute, having a pistol in his hand. He was running along with an unknown co-accused. The complainant party tried to apprehend the appellant and his co-accused but they succeeded to run away by entering the crops.
The complainant attended his son, who had succumbed to the injury . Motive behind the occurrence as alleged in the FIR was that he got divorced his daughter through Court and due to that reven ge, the appellant along with his co-accused committed the murder of son of complainant.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Abdul Razzaq (appellant) was summ oned by the learned Addl. Sessions Judge, Renala Khurd District Okara to face the trial. Copies of relevant docu ments were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Section 302, PPC read with Section 34, PPC was framed against him on 4.1.2016, to which he pleaded not guilty and claimed trial. Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 17.2.2017, wherein he refuted all the prosecution allegations levelled against him and professed his innocence. The appellant did not opt to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure, however , he produced attested copy of suit titled "Mst. Sumaira Bibi vs. Abdul Razzaq " for dissolution of marriage, maintenance allowance, dowry articles along with affidavits of witnesses, nikah nama , list of dowry articles, order sheet, judgment and decree sheet as Ex.DD. 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 Shahid Anwar (PW.2) and Muhammad Afzal (PW.3) were not present on the spot as their names are not mentioned in the FIR; that Muhammad Sadiq, complainant (PW.1) and Muhammad Aashiq (PW.4), alleged witnesses of ocular account have not given any plausible reason for their presence on the spot at relevant time; that the said eye-witnesses made dishonest improvements before the learned trial Court in order to strengthen the prosecution case; that the ocular account is in direct conflict with the medical evidence; that a vague motive was set up by the prosecution which has not been proved; that the alleged recovery of .30 bore pistol (P.5) at the instance of the appellant is inconsequential; 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 the matter was reported to the police with promptitude; that Muhammad Sadiq, complainant (PW.1), Shahid Anwar (PW.2), Muhammad Afzal (PW.3) and Muhammad Aashiq (PW.4), 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 the prosecution case is corroborated by the recovery of .30 bore pistol (P.5) at the instance of the appella nt and positive report of Punjab Forensic Science Agency (Ex.PG); 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 Sadiq, complainant (PW.1), Shahid Anwar (PW.2), Muhammad Afzal (PW.3) and Muham mad Aashiq (PW.4). So far as Shahid Anwar (PW.2) and Muhammad Afzal (PW.3) are concerned, nowhere in the FIR, the complainant mentioned that they were present on the spot or witnessed the occurrence rather subsequently he (complainant) moved an application (Ex.P .A/1) and introduced their names as PWs. It was also stated by Khalil-ur-Rehman, Draftsman (PW.10) in the cross-examination that neither he mentioned the names of Shahid Anwar and Muhammad Afzal in the scaled site-plan nor recorded their names in his statement under Section 161, Cr.P.C., therefore, the statements of Shahid Anwa r (PW.2) and Muhammad Afzal (PW.3) are excluded from consideration.
As far as Muhammad Sadiq, complainant (PW.1) and Muhammad Aashiq (PW.4) are concerned, they were closely related to the deceased being his father and paternal uncle respectively . In the FIR and before the learned trial Court, it was case of the complainant that at about 8.00 a.m. he along with Muhammad Aashiq (PW.4) and Sana Ullah (given up PW) heard the report of fire and saw here and there. They found Muhammad Arsalan lying in injured condition having a fire-arm wound on his chest near left nipple. They came out of sugarcane crop and saw that the appellant along with unknown person were fleeing away from the sugarcane field. Almost same was the stance of Muhammad Aashiq (PW.4) before the learned trial Court, which suggests that they did not witness the appellant while making fire shot at the deceased. Moreover , both the eye-witnesses while appearing before the learned trial Court as PW.1 and PW.4 respectively , in order to strengthen the prosecution case, made dishonest improvements: they were confronted with their previous statements recorded by the police under Section 161, Cr.P.C. and the improvements were brought on record. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide intention the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as "Muhammad Rafique and others versus The State and others" (2010 SCMR 385) and "Syed Saeed Muhammad Shah and another versus The State " (1993 SCMR 550). There is another aspect of the case, which makes the presence of both the eye-witnesses on the spot doubtful as in the scaled site-plan (Ex.PW -9/F) prepared by Khalil-ur-Rehman, Draftsma n (PW.10) on the direction of I.O. and pointation of PWs, the inter-se distance between the deceased and the appellant was eleven feet at the time of incident whereas Dr. Aman Ullah (PW.11), who conducted post-mortem examination on the dead body of deceased, observed blackening around the injury sustained by the deceased. Under the above circumstances, we are of the view that the case of prosecution is not free from doubts.
8. The motive behind the occurrence as alleged in the FIR was that the complainant got divorced his daughter through Court and due to that grudge, the appellant committed the murder of his son. While appearing before the learned trial Court, the complainant has stated that his daughter namely Sumaira Bibi was married with the appellant, who used to beat her and she got divorce through Court. Muhammad Arsalan (deceased) used to pursue the case of divorce against the appellant. The complainant further stated that the appellant also extended threats to the deceased prior to the occurrence but in this regard, no application was moved by the complainant or his deceased son to the police hierarchy . Even otherwise, it was alleged by the complainant that her daughter got divorce from the appellant through Court but the record shows that the decree for dissolution of marriage was passed by the learned Judge, Family Court, Renala Khurd on 23.11.2015, much after the incident. We have also observed that no independent witness in support of the motive was associated during the course of investigation or brought in the witness box at 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. So far as the recovery of .30 bore pisto l (P.5) at the instance of appellant and positive report of Punjab Forensic Science Agency (Ex.PG) are concerned, the same are immaterial because of the reason that the crime empty was secured from the spot on 20.6.2015 vide recovery memo. (Ex.PC) and the appellant was arrested on 6.9.2015 but the crime empty and the recovered pistol were received in the office of Punjab Forensic Science Agency together on 23.09.2015. It is, by now, well settled proposition of law that if the crime empty is sent to Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the cases of "Jehangir vs. Nazir Farid and another " (2002 SCMR 1986 ), "Israr Ali vs. The State " (2007 SCMR 525) and "Ali Sher and others vs. The State" (2008 SCMR 707 ).
10. So far as the medical evidence is concerned, the same is a supportive piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case.
11. So 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.
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 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 this regard, reliance may be placed on the case law reported as " Muhammad Akram versus The State" (2009 SCMR 230 ).
13. For the foregoing reasons, Criminal Appeal No. 55471 of 2017 filed by Abdul Razzaq (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 21.03.2017 passed by the learned Addl. Sessions Judge, Renala Khurd District Okara are set aside and he 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. 192 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Abdul Razzaq (convict) is NOT CONFIRMED .