By way of this appeal, Mst. Anam Shahzad (hereinafter referred to as the appellant) has called in question the judgment dated 18.05.2017, passed by the learned Sessions Judge, Jhelum, whereby in a private complaint, filed under Section 302/34, PPC, by Muhammad Latif (hereinafter referred to as the complainant) , against her as well as Mst. Abida Parveen, Shahid Javed and Nauman alias Mani, she has been convicted under Section 302(b)
PPC, for committing murder of Muhammad Sheraz (hereinafter referred to as the deceased) and sentenced for imprisonment for life, with compensation of Rs. 10,00,000/-, payable to legal heirs of the deceased, failing which to ,undergo simple imprisonment for six months, alongwith benefit of Section 382-B, Cr .PC.
2. Initially , the matter was reported to the Police by the complainant, through fard biyan (Ex.PD), with the contentions that marriage of his son namely Muhammad Shahzad, was solemnized with the appellant; on 19.08.2016, Muhammad Shahzad came at Jhelum, but called back by the appellant; at about 7.00 PM, the appellant had called Muhammad Sheraz deceased, in the house of Mst. Abida Parveen (co-accused since acquitted), hence the deceased told him (complainant), that as per calling of the appellant, he was going to the house of Mst. Abid Parveen (co-accused since acquitted); during the night, the phone of the deceased was found off, hence the complainant became worried, who at about 2:30 AM (mid-night), alongwith Nauman Younas (PW-11) and Bilal Younas, reached at the house of Mst. Abida Parveen (co-accused since acquitted), where they found dead body of the deceased, lying in a room and the appellant was removing the snare (phanda) from his neck, who on seeing them, fled away thereafter Mst. Abida Parveen and Shahid Javed (co-accused since acquitted) also fled away; Muhammad Sheraz was done to death, as character of the appellant was not fair and the deceased used to abstain her from such like activities.
3. On the basis of the above said complaint, formal FIR (Ex.PD/1) bearing No. 163, dated 20.08.2016, under Section 302/34, PPC, at Police Station Civil Lines, District Jhelum was registered. The Police had investigated the case and found Mst. Abid Parveen, Shahid Javed and Nauman alias Mani (co-accused since acquitted) to be innocent, hence declared them so.
4. Feeling aggrieved, the complainant had filed the private complaint (Ex.PL), wherein the above mentioned story was reiterated. The appellant and her co-accused (since acquitted) were summ oned to face the trial. Formal charge against the all was framed on 09.02.2017, which was denied and trial was claimed, hence the prosecution evidence was summoned and recorded. During the trial, as many as eleven persons were recorded as PWs, whereas two as CWs. The material witnesses, with gist of their evidence were as under:-- i) PW-1 Dr. Hammad Mehmood , had conducted postmortem examination of dead body of Muhammad Sheraz on 20.08.2016 and prepared the report (Ex.PA) and pictorial diagram (Ex.P A/1 & PA/2). As many as six injuries on different parts of body of the deceased were noticed and Injury No. 1, found on the neck was declared as fatal and cause of death. The probable time between the injury and death was 20 to 30 minutes, whereas between death and postmortem examination as 12 to 24 hours. ii) PW-10 Muhammad Latif , complainant had narrated almost the same story , as was described by him, in the fard biyan (Ex.PD) and private complaint (Ex.PL). iii) PW-11 Nauman Younas , had tried to support version of the complainant (PW -10). iv) CW-1 Mazhar Hussain Shah ASI and CW-2 Ikram Hussain SI were Investigating Officers of the case, who during their respective proceedings, had performed the functions and prepared the documental, fully highlighted in their statements.
5. On completion of the prosecution evidence, the appellant and her co-accused were examined, as required under Section 342, Cr.PC, during which questions arising out of the prosecution evidence were put to them, but they had denied almost all such questions, while pleading their innocence and false involvement in the case. The question "Why this case against you and why the PWs deposed against you?" was replied by the appellant in the following words:-- "I contracted love marriage with Muhammad Shahzad son of the complainant/real brother of the deceased due to which the complainant and his whole family became inimical towards me and they used to quarrel with me, therefore, I alongwith my husband was shifted to a rented house in Jhelum and then to Dongi AJ&K. The deceased Sheraz was involved in immoral and illegal activities and was also an addict. He also had relations with persons of bad repute. Due to his immoral and illegal activities, some unknown persons committed his murder at some unknow n place and that is why his motorcycle was recovered from the area of PP: Kala Gujran, PS: Sadar , Jhelum. Neither I was present in Jhelum at the time of alleged occurrence nor I committed the same, due to which my husband Shahzad did not join the funeral ceremony of his deceased brother Sheraz as we were not aware of his death. As I have contracted love marriage with son of the complainant, therefore, I was falsely implicated in this case and all the P.Ws have deposed against me due to said grudge because they were interse related. I am innocent."
At that time, the appellant had opted to lead evidence in her defence, but not to make statement under Section 340(2) Cr.PC. But thereafter , through statement dated 09.05.2017, she had refused to produce any evidence in her defence. Finally , the impugned judgment was pronounced, in the above menti oned terms. Consequently , the appeal in hand.
6. Arguments advanced by learned counsel for the appellant as well as learned Prosecutor , assisted by the learned counsel for the complainant have been heard and record has also been perused.
7. The complainant's stance was that his son was done to death on 20.08.2016, at about 2:30 am. (mid-night). At the time of post-mortem examination of dead body of the deceased on 20.08.2016 at 8:30 a.m, the doctor (PW-1) declared the time between death and post-mortem examination as 12 to 24 hours. If 12 hours are considered, then time of the alleged occurrence becomes 8:30 p.m. of 19.08.2016, whereas if 24 hours time is taken into account, then the death had occurred on 8:30 a.m. on 19.08.2016. In this way, the time of death, described by the complainant, in fard biyan (Ex.PD), private complaint (Ex,PL) as well as during statement before the learned trial Court does not correspond with the above mentioned findings and observations, made by the doctor .
8. According to the doctor (PW-1) as well as the post-mortem report (Ex.P A), the dead body was received in the mortuary on 20.08.2016, at about 6:00 a.m., whereas the Police had provided the complete documents to the doctor at 8.30 a.m. The above mentioned delay , regarding non-provision of necessary documents by the Police, to the doctor was a clear indication that time was consumed in introducing unjustified evidence and documents. In the complaint (Ex.PD) before the Police, the complainant had got written that he alongwith Nauman Younas (PW-11) had directly gone to the house of Mst. Abida Parveen (co-accused since acquitted). In the said document, it was not clarified that how they had gained knowledge about availability of the deceased, in the said house. During evidence before the Court, the complainant (PW-10) had contended that as motorcycle of the deceased was found parked, in front of house of Abida Parveen (co-accused since acquitted), hence they went inside the house, whereas version of Nauman Younas (PW-11) was that at about 1:40 a.m. a shopkeeper had indicated them about house of the above named lady accused. The complainant (PW-10) had not disclosed about any information, made to them, by any shopkeeper , whereas PW-11 never stated about parking of motorcycle of the deceased at any place. Furthermore, it is not appealable to a prudent mind that at 1:40 am., any shop was functional and its shopkeeper had met the complainant s party and informed it about any house. The complainant (PW-10) as well as Nauman Younas (PW-11) were not residents of the vicinity , where house of Abida Parveen was situated, hence their alleged availability at the house during odd hours of the night, had made them as chance witnesses.
9. Admittedly , the room in question, was having only one door, therefore it is not believable that the present appellant was seen by the complainant and his above named companion (PW-11), while performing the above stated alleged function, but despite that, she was allowed to cross the door, where the complainant and the above named other witness were standing and both remained silent spectators. It is also not believable that after the alleged departure of the appellant, from the spot, her co-accused (since acquitted) also left the place, but the complainant's party again remained silent spectators. The said conduct of the complainant (PW-10) and the above named other witness (PW -11) had made their presence at the spot, highly improbable.
10. The house in question was of Mst. Abida Parveen, who alongwith Shahid Javed and Nauman alias Mani, has been acquitted of the charge, as the above named witnesses have been disbelieved to their extent. Therefore, believing witnesses qua the appellant, strong independent corroboration is required, which is missing in the case in hand. In this regard, reference may be made to the case titled "Muhammad Akram versus The State " reported as 2012 SCMR 440 , wherein the august Supreme Court of Pakistan has held as under:-- "Except for the oral statements of eye-witnesses there is nothing on record which could establish the presence of both the eye-witnesses at the spot and as their presence at the spot appears to be doubtful, no reliance could be placed on their testimonies to convict the appellant on a capital charge. Since the same set of evidence has been disbelieved qua the involvement of Muhammad Aslam? as such, the same evidence cannot be relied upon in order to convict the appellant on a capital charge as the statements of both the eye-witnesses do not find any corroboration from any piece of independent evidence."
11. The facts and circumstances highlighted above, are sufficient enough to hold the prosecution case and charge against the appellant highly doubtful. It is an admitted principle and proposition of law, that the prosecution should establish its case and prove charge, against an accused, beyond shadow of all reasonable doubts and even a slightest doubt would entitle an accused, due benefit of acquittal, not as a matter of grace or concession, but as of right. In this regard reliance may be place d upon the dictum laid down by the august Supreme Court of Pakistan in the case titled "TARIQ PERVAIZ Vs. THE STATE" reported as 1995 SCMR 1345 , wherein it has been held as under: "If a simple circumstance creates reasonable doubt in a prudent mind about guilt of accused, then he will be entitled to such benefit not as a matter of grace or concession, but as a matter of right."
The same view has been reiterated in a subsequent judgment titled "Ayub Masih Vs. The State " reported as, PLD 2002 SC 1048 , whereby it has been directed that while dealing with a criminal case, the golden principle of law "it is better that ten guilty persons be acquitted, rather than one innocent person be convicted " should always be kept in mind.
12. Resultantly , the appeal is allowed , impugned judgment towards conviction and sentence of Mst. Anam Shahzad appellant is set aside and she is acquitted of the charge, while extending her the 'benefit of doubt. The appellant is in custody , 'therefore it is directed that she be released from the jail, if not required to be detained in any other case. The disposal of the case property shall be as directed by the learned trial Court, in the impugned judgment.