Muhammad Waheed Khan, J.--This judgment shall dispose of Criminal Appeal No. 196 of 2017 filed by appellant (against his conviction and sentence) and M.R. No. 66 of 2017 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant or otherwise. As both the matters have arisen out of the same judgment dated 26.1.2017 passed by the learned Addl. Sessions Judge, Pindi Bhattian in case FIR No. 264, dated 9.12.2014 registered u/S. 302/337-F(i), PPC at Police Station Sukheke, District Hafizabad, whereby appellant was convicted and sentenced as under: Under Section 302(b). PPC awarded death sentence as Ta'zir. He was also directed to pay compensation of Rs.
1,00,000/- to the legal heirs of deceased Kishwar Bibi and in default whereof, he was ordered to further undergo six months simple imprisonment.
Whereas Allah Ditta and Akbar Ali co-accused of the appellant were acquitted of the charge by the learned trial Court vide same judgment by extending them benefit of doubt.
2. Facts narrated by the complainant Nazar Hussain while lodging FIR are as under: "That daughter of complainant. Kishwar Bibi was married to accused Sarfraz alias Sarwar prior to three months of the occurrence. On 08-12-2014 wife of complainant Khursheed Bibi took her daughter Kishwar Bibi to Darbar of Shah. Bukhari. When they returned it was late evening. Complainant alongwith his son Qaiser Ali came to the house of his daughter Kishwar Bibi to take his wife Khursheed Bibi with him. They slept in the house of his daughter Kishwar Bibi. Husband of Kishw ar Bibi expressed his annoyance to her for not obeying him. Due to that conflict on 09-12-2014 at 04:00 a.m. accused Sarfraz alias Sarwar s/o Allah Ditta, Akber Ali s/o Allah Ditta and Allah Ditta s/o Ahma with the common intention entered in the room where complainant and others were sleeping near the daughter of the complainant. Upon slight noise they woke up, in the light of bulb and saw that accused Sarfraz alias Sarwar inflicted two blows of hatchet on the left side of head of the daughte r of the complainant who succumbed to injuries at the spot. Accused persons while raising lalakaras fled away ."
3. Dr. Nagina Kausar , WMO, who conducted the post-mortem upon the dead body of the deceased Mst. Kishwar Bibi on 09.12.2014 at 02.00 p.m. appeared as PW-9 and found three injuries on person of the deceased and opined that probable time which elapsed between injuries and death was instantaneous and between death and post-mortem examination was ten hours.
4. After registration of the case, investigation was carried out by the police and on completion of the same, report u/S. 173, Cr.P.C. was submitted before the learned trial Court. Thereafter , learned trial Court after observing codal formalities, framed charge against appellant along-with his co-accused, which was denied by them, hence, the trial commenced.
5. In order to prove its case, prosecution produced as many as sixteen witnesses. Ocular account was furnished by the complainant. Nazar Hussain and eye-witness Khursheed Bibi, both parents of the deceased, who appeared as PW-4 & PW-5 respectively . Muhammad Sohara SI and Zulfiqar Ali SI, both conducted the investigation of the case appeared as PW-11 & PW-12 respect ively, whereas remaining PWs were of formal in nature. Thereafter , prosecution closed its evidence by producing certain documentary evidence.
6. After recording the prosecution evidence, appellant was examined u/s 342, Cr.P.C., wherein he denied all the allegations leveled against him. He did not opt to appear as his own witness u/s 340(2), Cr.P.C. nor produced any evidence in his defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellant in the above mentioned terms, hence, this appeal and Murder Reference.
8. In support of instant appeal learned counsels for the appellant contend that while passing the impugned judgment learned trial Court has not only mis-read the evidence but also the same is result of non-reading of evidence and finding of the learned trial Court is based on surmises and conjectures; that both the eye witnesses have failed to prove their presence at the crime scene at the relevant time and in, fact the alleged incident was a blind one and according to the version of the appellant, the deceased had committed suicide; that other co-accused persons were exonerated by the complainant himself during the course of investigation and lastly submit that by accepting the instant appeal the appellant be acquitted of the charge.
9. Conversely learned Deputy Prosecutor General strongly controverted the arguments advanced by learned counsels for the appellant and summits that the incident of murder of Mst. Kishwar Bibi was promptly reported to the police by the complainant Nazar Hussain (PW-4) in which the appellant was nominated with specific role of causing successive blows of hatchet on person of the deceased who succumbed to the injuries at the spot;, that both the witnesses have given plausible reason for their availability at the crime scene; that the weapon of offence i.e. hatchet recovered from the possessio n of the appellant and evidence of motive lend full support to the ocular version. So, the learned trial Court has rightly convicted, and sentenced the appellant, therefore instant appeal merits dismissal.
10. W e have heard learned counsel for the parties and perused the record with their assistance.
11. The alleged incident took place in the house of the present appellant as deceased Mst. Kishwar Bibi was his wife. In order to substantiate the case against . the appellant, the prosecution has adduced 'two eye-witnesses, namely , Nazar Hussain (PW-4) and Khursheed Bibi (PW-5). While narrating the incident Nazar Hussain, who is the real father of the .deceased stated that on 08.12.2014 his wife . Khursheed Bibi (PW-5) and his daughter Mst.
Kishwar BiBi deceased went to Darbar Shah Bukhari and they returned in the evening. He along with his son Qaisar Ali went to the house of Mst. Kishwar Bibi to take his wife Khursheed Bibi. On reaching there, he saw that accused Sarfraz (0'; Sarwar was quarreling with his daughter Mst. Kishwar Bibi and due to that reason, they stayed in the house of the appellant on the night of incident. On 09.12.2014 at 4:00 a.m. appellant Sarfraz Sarwar , Akbar Ali both sons of Allah Ditta and Allah Ditta s/o Ahma entered into the room with common intention, on hearing noise, they woke up and saw that the appellant Sarfraz Sarwar was inflicting hatchet blows on head of his daughter Mst. Kishwar Bibi, thereafter all the accused persons decamped from the spot. Other PW-5 Khursheed Bibi, who is the real mother of the deceased and wife of the complainant, also claims herse lf to be present at the place of occurrence and narrated the incident almost in a similar manner . The third PW Qaisar Ali, who is the son of the complainant was not produced by the prosecution.
12. As far as the availability of the PWs in the house of the appellant is concerned, we have perused the evidence of Nazar Hussain (PW-4) who while answering a question put to him by the learned defence counsel replied as under: "It is correct that his house is situated in the same village with the distance of about two acers.
So under the circumstances, we find that PWs hail from the same locality and live only two acers away from the house of the deceased and staying in the house of appellant for whole night by Nazar Hussain (PW-4) and Khursheed Bibi (PW-5) and their son Qaisar Ali (not produced) does not appeal to the prudent mind, especially when there is no previous motive or quarrel between the spouses.
13. The other aspect of the case is that while lodging FIR the complainant had nominated three accused persons in the instant case but during the course of investigation, he and other PW had submitted their affidavits. Bearing No. 554 and 555 dated 20:12.2014, in which they had exonerated the other two accus ed persons, namely , Allah Ditta and Akbar Ali from the charge. So, the police declared them as innocent and did not submit report under Section 173 Cr .P.C. to their extent accordingly .
14. There is yet another aspect of the case which raises our eyebrows qua the authenticity of the prosecution story and availability of the PWs at the crime scene that according to the prosecution version, the alleged incident took place on 9.12.2014 at 4:00 a.m., whereas the dead body of the deceased was received in the mortuary at 12:00 p.m. (noon) on the same day and autopsy was conducted at 2:00 p.m. with the delay of about 10 hours, so, it is settled proposition of law by now that delayed post-mortem suggests that in fact the eye-witnesses were not present at the place of occurrence and time had been consumed to procure the eye-witnesses and pre-consultation and due deliberation on their part cannot be ruled out. According to' the version of the eye-witnesses, the appellant- was the only person who was having hatchet in his hand, whereas other co-accuse d were empty-handed and both the PWs along with their son did not try to ward him off, especially when the accused was not equipped with any fire arm weapon.
15. As far as the motive part of the incident is concerned, it is just stated by the complainant that the appellant Sarfraz @ Sarwar was quarreling with his daughter Mst. Kishwar Bibi why did she go to Darbar Shah Bukhari without his permission and except this no previous motive was introduced by the prosecution and except oral assertion of the complainant no other evidence is available on record which shows that appellant was quarreling with the deceased on petty matter and due to- that reason PWs stayed in house of the deceased for whole night.
16. As far as the recovery of hatchet allegedly affected from the possession of the appellant is concerned, according to the prosecution during the course of investigation the appellant had got recovered hatchet P-6 vide recovery memo Ex-PQ. Although in the recovery memo the same was not shown as blood-stained but even then it was sent to the Punjab Forensic Science Agency and report submitted in this regard is negative in nature as no human blood was identified on it.
17. All the above discussed situation leads to the conclusion that the prosecution remained unsuccessful to prove its case against the appellant beyond reasonable shadow of doubt and there is no cavil with the proposition that the prosecution is supposed to prove its case against the accused beyond shadow of reasonable doubt, and if any B reasonable doubt, arises from the prosecution story , the benefit of the same shall be extended to the accused and we find, that evidence produced by the prosecution to prove the guilt of the appellant is replete with many doubts and we have got no other option but to extend the benefit of the same to the appe llant. Reliance is placed on the judgments passed by the august Supreme Court of Pakistan in cases of "Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), "Munir Ahmad and another v. The State and others" (2019 SCMR 79), "Muhammad Ahram v. The State (2009 SCMR 230), "Ayub Masih v. The State " (PLD 2002 SC 1048 ) and "Tariq Pervez v.
The State" (1995 SCMR 1345 ).
18. For the reasons discussed supra, we think that conviction should not be allowed to stand. We, therefore, allow this appeal, set aside the conviction and sentence imposed on the appellant by the learned trial Court and he is acquitted of the charge by extending him benefit of doubt. He is in jail, so, he be released forth with if not required in any other case. Resultantly , Murder Reference No. 66 of 2017 is answ ered in NEGA TIVE and death sentence of the appellant Sarfraz Sarwar is NOT CONFIRMED .