Shehram Sarwar Ch., J.--Muhammad Imran (appellant) alongwith his co-accused namely Ghulam Farid was tried by the learned Addl. Sessions Judge, Arifwala in a private complaint instituted under Sections 302 and 34, PPC by Muhammad Afzal, complainant being dissatisfied with the investigation conducted by police in case FIR No. 322 dated 07.07.2013, offence under Sections 302 and 34, PPC, registered at Police Station Saddar Arifwala District Pakpattan Sharif for the murder of Shazia Bibi (deceased) sister of the complainant. Vide judgment -dated 08.06.2016 passed by the learned Addl. Sessions Judge, 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. Through the same judgment, Ghulam Farid, co-accused of the appellant was acquitted of the charge by extending him benefit of doubt and against his acquittal complainant has filed Crl.
P.S.L.A No. 331 of 2016. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 336 of 2016 for confirmation or otherwise of appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. Since all 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 (Ex.P A/2) registered on the applicatio n (Ex.P A) of Muhammad Afzal, complainant (PW. 1) is that he was a labourer . About six years ago, Muhammad Imran (appellant) contracted "Sharai Nikah " with sister of complainant namely Shazia Bibi who.had kept Mst. Shazia Bibi at lhata of one Faiz.
Out of said wedlock a child namely Su]eman aged about 31/2 years was born. Mst. Shazia Bibi had been asking time and again to Muhammad Imran to transfer two acres of his land in favour of her son but he (Muhammad Imran) used to linger on the matter whereupon an altercation took place between them. On 07.07.2013 at about 05:00 p.m. the complainant alongwith Imran alias Kareli and Sultan were coming back to their homes from labour work and when they reached outside the street of house of Mst. Shazia Bibi, they heard her hue and cry whereupon complainant alongwith Imran alias Kareli and Sultan entered her house and saw that Imran, Ghulam Farid and one unknown person while armed with 30-bore pistol were present there and Imran had put ponytail (paranda ) of Mst. Shazia Bibi around her neck and was strangulating whereas Ghulam Farid caught hold of her from her arms. Mst. Shazia Bibi was lying on the ground and was writhing and within their view Mst. Shazia Bibi breathed her last whereupon Imran and Ghulam Farid released Shazia Bibi. Ghulam Farid extended threat and the unknown person pointed his pistol towards the complainant party and asked that if any one came near, would no done to death and fled away from the place of occurrence on motorcycle. The complainant party attended Mst.
Shazia Bibi who had died. Motive behin d the occurrence was that Muhammad Imran and Mst. Shazia Bibi had contracted "Sharai Nikah " with each other and out of the said wedlock a son namely Suleman aged abou t 31/2 years was born. Mst. Shahzia Bibi was compelling her husband to get two acres land transferred in favour of her son but Muhammad Imran was reluctant to do so and due to that grudge he committed the murder of Mst. Shazia Bibi.
3. Being dissatisfied with the investigation conducted by the police, Muhammad Afzal, complainant instituted a private complaint titled as "Muhammad Afzal vs. Ghulam Farid" , on 27.11.2013 the same facts as narrated in the FIR.
4. After recording of cursory evidence in the present case, Muhammad Imran (appellant) alongwith his co-accused was summoned by the learned trial Court to face the trial. Copies of relevant docum ents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Section 302 read with Section 34, PPC was framed against them on 29.03.2014, to which they pleaded not guilty and claimed trial. Statements of the appellant and his co-accused Ghulam Farid under Section 342 Code of Criminal Procedure were recorded on 19.05.2016, wherein they refuted all the prosecution allegation levelled against them and professed their innocence. In answer to a question as to why this case against him and why the prosecution witnesses had deposed against him, the appellant stated as under: "Police and the complainant have joined hands with each other and got me challaned falsely . Both police and the complainant expected money from me but I did not give them, therefore, I have been falsely challaned,"
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 defence evidence. However , after conclusion of the 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 a delay of about two hours and ten minutes in reporting the matter to the police without there being any satisfactory expla nation; that presence of both the eye-witnesses namely Muhammad Afzal complainant (PW. 1) and; Muhammad Imran alias Kareli (PW.2) on the spot at the time of incident is doubtful in nature; 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 nothing was recovered from the appellant during the course of investigation; 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.
6. On the other hand, learned DPP assis ted by learned counsel for the complainant opposes this appeal on the grounds that matter was reported to the police with due promptitude; there is no conscious or deliberate delay in reporting 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 the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
7. We have heard learned counsel for the parties as well as the learned DPP for the Stare and gone through the record with their able assistance.
8. This unfortunate incident wherein Mst. Shazia Bibi sister of the complainant was done to death, as per FIR took place on 07.07.2013 at 5:00 p.m. whereas the matter was reported to the police on the same day at 7:10 p.m. i.e. with a delay of about two hours and ten minutes after the occurrence. The distance between police station and the place of occurrence was just six kilometers. There is absolutely no plausible or convincing reason for the aforesaid delay in reporting the matter to the police which casts serious doubt about the veracity of prosecution story .
Reliance may be placed on case law titled as "Mehmood Ahmed and three others vs. The State and another"
(1995 SCMR. 127 ) wherein the Hon'ble Supreme Court of Pakistan at page 131 has observed as under: "5. ...Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculated preparing report keeping the names of accused open for roping, in such persons: whom ultimately prosecution may wish to implicate..."
The post-mortem examination of the dead-body of deceased was conducted about ten hours after the incident. It has been held repeatedly by this Court and the Hon'ble Supreme Court of Pakist an 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 vs. The State" (2009 P.Cr.L.J.
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 vs. The State"
(2011 SCMR 1 190), wherein it was observed as under:-- "3....W e have further observed that the post-mortem examination of the dead body 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 dead body conducted..."
The above said view has been further fortified in the case law titled as "Nazeer Ahmed vs The State" (2016 SCMR 1628 ).
9. Ocular account in this case only consists of Muhammad Afzal complainant (PW.1) and Muhammad Imran alias Kareli (PW.2). The presence of both these PWs on the spot at the relevant time is doubtful in nature because they have not given any plausible reason for their presence on the spot at the time of incident. The delay in the FIR as well as post-mortem examination of the dead-body deceased also casts doubt about their presence on the spot at the time of incident. We failed to understand that in the presence of a real broth er as well as close relative how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased when they were not far away as shown in the site plan. It is mentioned in the FIR that both the appellant and deceased were living in the Ihata of one Faiz but the said person was not produced before learned trial Court during the trial in order to substantiate the version of the complainant. Admittedly , both these witnesses were chance witnesses because complainant Muhammad Afzal (PW.1) has categorically stated in his cross examination that the house of Imran PW was in the 7th street from the place of occurrence whereas his residenc e was also away from the place of occurrence. It has been brought on record that both these PWs have neither and 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 same 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 Rafinue vs. The State" (2014 SCMR 1698 ). Therefore, we hold that presence of both the eye-witnesses on the spot at the time of incident is not free from doubt.
10. There is another aspect of the case Ghulam Farid, who as per FIR, caught hold of Shazia Bibi (deceased) from her arms at the time of incident, has been acquitted by the learned trial Court and as such the prosecution story to the extent of Ghulam Farid co-accused of the appellant has not been proved. The question which requires consideration by this Court is as to whethe r the evidence which has been disbelieved to the extent of co-accused of the appellant who has been acquitted by the learned trial Court can be believed to the extent of appellants. In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz 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 eye-witnesses 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. Mama raz 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 Shahbaz 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-m ortem examination of the dead body of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem 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 Shahbaz appellant"
The above said view has been further fortified in the recent case law titled as "Imtiaz alias Taj v. The State and others" (2018 SCMR 344 ).
11. Motive behind the occurrence was that Muhammad Imran and Mst. Shazia Bibi had contracted "Sharai Nikah" with each other and out of the said wedlock a son namely Suleman aged about 31/2 years was born. Mst. Shazia Bibi was compelling her'husband to get two acres land transferred in favour of her son but Muhammad Imran was not agreed to do so and due to that grudg e he committed the murder of Mst. Shazia Bibi. No exact date and time of motive incident have been mentioned in the FIR. No evidence 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.
12. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained un-witnessed 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 ).
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 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 Perez 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."
15. For the foregoing reasons, Criminal Appeal No. 1356 of 2016 filed by Muhamm ad Imran (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 08.06.2016 passed by the learned Addl Sessions Judge, Arifwala are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Muhammad Imran, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
16. Murder Reference No. 336 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Imran (convict) is NOT CONFIRMED.
17. In view of above discussion Crl. PSLA No. 331 of 2016 filed by Muhammad Afzal, complainant against the acquittal of co-accused of the appellant namely Ghulam Farid having no merits is dismissed.