Shehram Sarwar Ch., J:--Maqsood Ahmad alias Soodi (appellant) was tried by the learned Addi. Sessions Judge, Pindi Bhattian in case FIR No. 126 dated 10.03.2013, offence under Section 302, PPC registered at Police Station Sadar Pindi Bhattian, District Hafizabad for the murder of Asghar Ali (deceased) brother of the complainant. Vide judgment dated 05,05.2016, passed by the learned Addl. Sessions Judge, Pindi Bhattian, Maqsood Ahmad alias Soodi (appellant) has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs.3,00,000/- (rupees three lakh only) as fine in the state treasury and Rs.5,00,000/- (rupees five 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 and six months, respectively . Assa iling the above conviction and sentence, Maqsood Ahmad alias Soodi (appellant) has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 285 of 2016 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. Since 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.P A/1) registered on the written application (Ex.P A) of Ghazanfar Ali, complainant (PW.1) is that on the night of 09.3.2013 there was Mehndi ceremony of one Muhammad Riaz wherein the complainant and his family were invited. At about 11:45 p.m., the complainant alongwith his brother Asghar Ali, Muhammad Akbar and other people were present. There were enough arrangement of light and the ceremony of Mehndi was going on. Meanwhile, Maqsood Ahmad alias Soodi (appellant) armed with pistol arrived there and started aerial firing, whereupon Asghar Ali forbade him 2/3 times and turned back after doing so, upon which Maqsood Ahmad alias Soodi made a straight fire of pistol on Asghar Ali which hit on his back, below left shoulder who fell down. Maqsood Ahmad alias Soodi fled away while making firing. The complainant's side attended Asghar Ali and immediately took him to THQ Hospital Pindi Bhattian but he succumbed to the injury on reaching hospital.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Addl. Sessions Judge, Pindi Bhattian 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 21.01.2015, 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, 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, Maqsood Ahmad alias Soodi (appellant) stated as under: "All the private witnesses are interse related with each other . In fact on 09.3.2 013 at night time ceremony of Mehandi of Riaz Hussain s/o Mushtaq Ahmad was held. At about 11:45 pm so many persons who participated the Mehdi ceremony of said Riaz Hussain made aerial firing and one of the fire hit the deceased who died. I have no motive to kill the deceased. Riaz Hussain whose Mehdi ceremony held not supported the false version of the complainant. It was a Qatl-i-Khata. I was involved in this case due to suspicion. I am innocent that was my first version before the I.O.
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 evidence in his defence. However , after conclusion of the 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 presence of both the eye-witnesses namely Ghazan far Ali complainant (PW.1) and Nazar Muhammad (PW.2) on the spot at the time of incident is doubtful in nature; that abscondance of the appellant has not been proved in accordance with law; that a vague motive has been alleged against the appellant; that medical evidence is only a supporting piece of evidence and relevant only if the ocular account inspires confidence which is not the situation in this case; that alleged recovery of 30 bore pistol (P.4) at the instance of appellant is inconsequential; 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 District Public Prosecutor opposes this appeal on the grounds that there is no conscious or deliberate delay in reportin g the matter to the police; that the complainant's side had no enmity against the appellant for his false implication in this case; that presence of both the eye-witnesses on the spot at the time of incident is quite natural and probable; that motive has been proved against the appellant; that abscondance of the appellant has been proved through the statements of Qaisar Ali 222/C (PW.9) and Amjad Hussain S.I. (PW.12); that the prosecutio n 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 appellant as well as the learned DPP for the State and gone through the record with their able assistance.
7. This unfortunate incident wherein Asghar Ali brother of complainant done to death, as per FIR took place on 09.03.2013 at 11:45 p.m. (night) whereas the matter was reported to the police on the same night at 12:30 a.m.
The distance between police station and the place of occurrence is five kilometers.
8. Ocular account in this case only consists of Ghazanfar Ali complainant (PW.1) and Nazar Ahmad (PW.2). It was the stance of both these PWs that they were present on the spot in order to attend the mehndi function of Muhammad Riaz and the invitation of said function was received through Nazar Muhammad Machi but the said person was not produced before the learned trial Court to substantiate the version of the complainant. In the FIR as well as before the learned trial Court it was the case of complainant that he alongwith other PWs took Asghar Ali in injured condition to Tehsil Headquarters Hospital, Pindi Bhattian but in the relevant column of post-mortem examination report of accompanying the deceased the word "police" is mentioned which fact creates doubt about the presence of both the PWs on the spot at the time of incident. The occurrence took place at night time and as per prosecution's own case there was lot of arrangements of lights on the place of occurrence but no light/bulb was taken into possession during the course of investigation. In that eventuality , the identification of the assailants became doubtful. In this regard, reliance is placed on the case law titled as "Sardar Bibi and another vs. Munir Ahmed and others" (2017 SCMR 344) and "Arshad Khan vs. The State" (2017 SCMR 564). Admittedly , both these witnesses were resident of village Dolu Kalan whereas the occurrence took place in the area of village Aothi Aana which as per cross examination of complainant (PW.1) was about seventeen kilometers away from the place of occurrence. It has been brought on record that both these PWs have neither any place of business or agricultural land near the place of occurrence. Therefore we hold that the said PWs were chance witnesses. The testimony of chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the releva nt 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 on 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 cases reported as "Mst. Shazia Parveen vs. The State" (2014 SCMR 1197) and"Muhammad Rafique vs. The State" (2014 SCMR 1698 ) Therefore, we hold that presence of both the eye-witnesses on the spot of at the time of incident is not free from doubt.
9. There is another aspect of the case.. It was the case of prosecution that mehndi function of one Muhammad Riaz was going on when the incident took place and as such the presence of said person at the relevant time cannot be doubted. He was the material witness of occurrence but he was not produced before the learned trial Court to substantiate the version of the complainant. Therefore, the prosecuti on withheld the best available evidence and in view of Article 129(g) of Qanoon-e-Shandat Order , 1984, adverse inference, that had this witness been produced before the learned trial 'Court he 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 Supreme Court of Pakistan in the cases of "Lal Khan Vs. The State" (2006 SCMR 1846 ) and "Muhammad Rafique and others vs. The State and others " (2010 SCMR 385). In the case of Muhammad Rafique and others, supra, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "33. ...It is well-settled flat if any party withholds that best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if P.W. Amir Ali could have been examined, his evidence would have been unfavourable. to the prosecution..."
10. The motive behind the occurrence was that the appellant started firing on the mehndi function of Muhammad Riaz who was forbidden by Asghar Ali (deceased) on 2/3 times and due to the said reason he committed the murder of Muhammad Asghar . No evidenc e qua motive part of incident was produced by the prosecution during the trial. No independent witness .qua motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
11. So far as alleged recovery of 30 bore pistol (P.4) at the instance of appellant is concerned the same is immaterial because the report of Punjab Forensic Science Agency (Exh.PO) qua pistol is in the negative.
12. As far as medical evidence is concerned, the same may confirm the ocular account with regard to the receipt of injury , locale of injury , kind of weapon used for causing the injury , duration betwee n the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another versus The State"
(1995 SCMR 599 ).
13. 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 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 to 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."
14. For the foregoing reasons, Criminal Appeal No. 428-J of 2016 filed by Maqsood Ahmad alias Soodi (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 05.05.2016 passed by the learned Addl Sessions Judge, Pindi Bhattian are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Maqsood Ahmad alias Soodi, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No. 285 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Maqsood Ahmad alias Soodi (convict) is NOT CONFIRMED .