Shehram Sarwar Ch. J.--Muhammad Azam (appellant) alongwith his co-accused namely Muhammad Arshad, Sakhi Muhammad and Muhammad Anwar was tried by the learned Addl Sessions Judge, Sheikhupura in a private complaint instituted under Sections 302 and 34 PPC by Riaz Hussain (PW.1) being dissatisfied with the investigation conducted by the police in case FIR No. 921 dated 15.12.2013, offence under Sections 302 and 34 PPC, registered at Police Station Bhiki District Sheikhupura for the murder of Mst. Abida Bibi, daughter of the complainant. Vide judgment dated 30.01.2017 passed by the learned Addl. Sessions Judge, Sheikhupura, the appellant has been convicted under Secti on 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 deceased and in default whereof to further undergo simple imprisonment for six months. Through the same judgment, Muhammad Arshad, Sakhi Muhammad and Muhammad Anwar , co-accused of the appellant were acquitted of the charges by extending them benefit of doubt and no petition for special leave to appeal against their acquittal was filed either by the State or the complainant, as conceded by learned Deputy Prosecutor General. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 134 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 (Exh.CW6/A) registered on the written application (Exh.P A) of Riaz Hussain, complainant (P W. 1) is that about two and half years ago his daught er namely Mst. Abida Bibi was married to Muhammad Azam and for that reason Muhammad Arshad, etc. started visiting his house. Muhammad Arshad developed illicit relations with his daughter-in-law namely Nusrat Bibi and contracted Nikkah with her after abduction. On 15.12.2013 he (complainant) alongwith Muhammad Yasin and Liaqat Ali came to the house of Muhammad Anwar and asked him that they wanted to take Mst. Abida Bibi with them who asked to take her with them with her consent. Meanwhile Muhammad Azam put a cloth around her neck and Muhammad Arshad and Sakhi Muhammad caught hold of her from her arms and dragged her into the room and locked the door from inside. Muhammad Anwar made aerial firing with his rifle and the complainant party saved their lives by hiding themselves. Muhammad Azam, Muhammad Arshad and Sakhi Muhammad committed murder of Mst. Abida Bibi by strangulation. The occurrence was witnessed by the complainant, Muhammad Yasin and Liaqat Ali. Motive behind the occurrence was that Muhammad Arshad had abducted daughter-in-law of the complainant, due to which the accused were not allowing the deceased to meet with them.
3. Being dissatisfied with the investigation conducted by the police, Riaz Hussain, complainant instituted a private complaint titled as " Riaz Hussain vs. Mohammad Azam and others" , on the same facts as narrated in the FIR.
4. After recording of cursory evidence in the present case, the appellant and his co-accused namely Muhammad Arshad, Sakhi Muhammad and Muhammad Anwar were summoned by the learned trial Court to face the trial.
Copies of relevant documents were provided to appellant and his co-accused, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them, to which they pleaded not guilty and claimed trial. In order to prove' its case, prosecution examined as many as two witnesses whereas seven were examined as Court witnesses. Statements of the appellant and his co-accused under Section 342 of the Code of Criminal procedure were recorded on 28.01.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocen ce. 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. After conclusion of trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused, as detailed above. Hence this appeal and murder reference.
5. 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 postmortem examination of the dead-body of Mst. Abida Bibi (deceased); that presence of both the witnesses of ocular account namely Riaz Hussain complainant (PW.1) and Muhammad Yasin (PW.2) on the spot at the time of incide nt is doubtful in nature; that both these witnesses while appearing before the learned trial Court made dishon est improvements, they were confronted with their previous statements and the improvements were brought on record; that medical evidence is only a supporting piece of evidence and relevant only if primary evidence i.e. ocular account inspires confidence which is not the situation in this case; that motive has not been proved against the appellant; that alleged recovery of dopatta at the instance of appellant is inconseq uential; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to acquittal.
6. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that matter was reported to the police with due promptitude; that presence of both the witnesses of ocular account on the spot at the relevant time is quite natural and probable; that motive has been proved against the appellant; that the ocular account is fully supported by medical evidence and further corroborated by the recovery of dopatta at the instance of appellant; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
7. We have heard 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 .
8. The occurrence in this case allegedly took place on 15.12.2013 at 4:30 p.m. whereas the matter was reported to the police on the same day at 5:00 p.m. The distance between police station and the place of occurrence is fourteen kilometers. Dr. Zartaj Ayub (CW.1) who conducted postmortem examinatio n of the dead-body of deceased noted time 17 to 19 hours that elapse d between the death and postmortem examination. It has been held repeatedly by 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 postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwit nessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed vs. The State" (2011 SCMR 1190) and "Nazeer Ahmed vs The State" (2016 SCMR 1628 ).
9. Ocular account in this case consists of Riaz Hussain complainant (PW.1) and Muhammad Yasin (PW.2). The presence of both these PWs on the spot at the time of incident is doubtful in nature because had they been present on the spot at the relevant time why they did not try to rescue the deceased or to catch hold of the appellant and his co-accused. Moreover , no evidence was produced by the prosecution during the trial Jo the effect that the appellant made aerial firing on the spot at the time of incident. Moreover , no crime empty was taken into possession by the I.O. during the course of investigation. The delay in the postmortem examination of the dead- body of deceased casts doubt about the presence of both the eye-witnesses on the spot at the time of incident.
The occurrence allegedly took place in the area of Feroze Watwan. The complainant was resident of village Eman Wala whereas Muhammad Yasin (PW.2) was resident of village Kharal Kalan. Admittedly , both the above said villages were far away from the place of occurrence. Both these PWs have not given any plausible reason for their presence on the spot at the time of incident. They have no place of business or agricultural land near the place of incident; therefore, they were chance witnesses. Moreover the story of prosecution qua catching hold of Mst. Abida Bibi (deceased) from her arms by Muhammad Arshad and Sakhi Muhammad has been disbelieved by the learned trial Court. The story of prosecution qua the murder of Mst. Abida Bibi in the presence of her father and other PWs, who were closely related to her, is improbable and does not appeal to a prudent mind. We have further noted that both the above said eye-witnesses while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, they were confronted with their previous statements 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 dnd another versus The State" (1993 SCMR 550). Therefore, we hold that the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
10. Motive behind the occurrence was that Muhammad Arshad had abducted daughter in law of the complainant, due to which the accused were not allowing the deceased to meet with them but no-convincing evidence qua alleged abduction of Mst. Nusrat Bibi daughter-in-law of complainant was produced by the prosecution during the trial. It has been brought on record throu gh cross examination of complainant (PW.1) that Mst. Nusrat Bibi filed a suit for dissolution of marriage against Muhammad Khan son of complainant and the said suit was decreed by the learned Family Court. Furthermore, 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 dopatta at the instance of Muhammad Azam (appellant) is concerned the same is immaterial because the same was an ordinary dopatta , easily available in the market.
12. 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. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605 ).
13. So far as the defence plea taken by the appellant in his statement under Section 342 of the 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.
14. 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 discharge 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 . Reliance is placed on case law titled as "Muhammad Akram versus The State" (2009 SCMR 230 ).
15. For the.foregoing reasons, Criminal Appeal No. 275 of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 30.01.2017 passed by the learned Addl. Sessions Judge, Sheikhupura are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Muhammad Azam, appe llant is in jail. He shall be released forthwith if not required to be detained in any other case.
16. Murder Reference No. 134 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Azam (convict) is NOT CONFIRMED .