Shehram Sarwar Ch., J.--Fakhar alias Fakhro (appellant) was tried by the learned Addl. Sessions Judge, Samundri in case FIR No. 295 dated 28.10.2012, offence under Section 302, PPC, registered at Police Station Muridwala District Faisalabad for the murder of Zafar All brother of the complainant. Vide judgment dated 29.4.2017 passed by the learned Addl. Sessions Judge, Samundri, the 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 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. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 303 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, are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Exh.PB) registered on the application (Ex.PC) of Jafar Ali, complainant (PW.4) is that on 28.10.2012 at about 1:30 p.m. he alongwith his brother Zafar Ali were coming to their house after cutting foder . Zahoor Ahmad and Nazir Ahmad were following them at some distance. Fakhar alias Fakhro was standing in front of them. Zafar Ali deman ded his stolen bicycle from Fakhar alias Fakhro upon which Fakhar alias Fakhro became annoyed and started hurling abuses. In retaliation thereto the complainant's side also showed annoyance whereupon Fakhar alias Fakhro took out carbine from the folder of his shalwar and made a fire upon Zafar Ali which landed on his right thigh and went through and through. On their hue and cry, Zahoor Ahmad and Nazir Ahmad PWs came on the spot. Zafar alias Fakhro fled away from the spot while making firing: The complainant's side took Zafar Ali in injured condition to Civil Hospital Samundri from where the doctor referred him to Civil Hospital, Faisalabad, he was given first aid but due to overflowing of blood he succumbed to the injury in Civil Hospital Faisalabad. Thereafter , the complainant shifted the dead-body of Zafar Ali (deceased) to Civil Hospital, Samundri. Motive behind the occurrence was that one month ago Fakhar alias Fakhro stole the bicycle of Riaz maternal nephew of complainant as well as deceased and today Zafar Ali demanded the said bicycle from Fakhro whereupon a quarrel took place and Fakhar alias Fakhro made a fire upon Zafar Ali.
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, Samu ndri to face the trial. Copies of relevant documents were provided to the appellant as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against him on 19.02.2013 to which he pleaded not guilty and claimed trial.
Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 28.04.2017, wherein he refuted all the prosecution allegations levelled against him and profess ed his innocence. The appellant did not opt to appear as his own witness, in disproof of the allegations levelled against him,' as provided under Section 340(2), Code of Criminal Procedure. After conclusion of 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 his appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of about six hours and thirty minute s in reporting the matter to the police without there being any satisfactory explanation; that both the witnesses of ocular account namely Jafar Ali, complainant (PW.4) and Zahoor (PW.5) were chance witnesses and their presence on the spot at the time of incident is doubtful in "nature; that motive has not been proved against the appellant; that ocular account is in direct conflict with the medical evidence; that alleged recovery of carbine .12 bore at the instance of Fakhar alias Fakhro (appellant) is immaterial; that viewing from all angles the prosecution case is doubtful in nature and the appellant is entitled to acquittal.
5. On the other hand, learned Addl. Prosecutor General opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that presence of both the witnesses of ocular account on the spot at 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 carbine .12 bore at the instance of Fakhar alias Fakhro (appellant); that the prose cution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
6. We have heard learned counsel for the appellant as well as the learned Addl. Prosecutor General for the State at a considerable length and have also gone through the record very minutely .
7. The occurrence in this case allegedly took place on 28.10.2012 at about 10:30 p.m. whereas the matter was reported to the police on the same day at 8:00 p.m. The distance between police station and the place of occurrence is fifteen kilometers. There is a delay of about six hours and thirty minu tes in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Jafar Ali, complainant (PW.4) and Zahoor (PW.5) did not utter even a single word about the above said delay . Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volum es against the veracity of prosecution version. Reliance is placed on case law titled as "Fakhar alias Fakhro vs. The State" (2019 SCMR 274). Moreover , the post-mortem examination of the dead-body of deceased was conducted about twenty one hours after the occurrence. 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 post-mortem 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 ).
8. Ocular account in this case consists of Jafar Ali, complainant (PW.4) and Zahoor (PW.5). The presence of both these PWs on the spot at the time of incident is doubtful in nature as they did not receive even a scratch during the incident. Moreover , they allegedly saw the incident from a close distance but we failed to understand that in the presence of both these PWs, who were closely related to the deceased, how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased. The delay in the FIR as well as post-mortem examination of the dead-body of deceas ed also casts doubt about their presence on the spot at relevant tune.
There is another circumstance which also creates doubt about the presence of both the eye-witnesses on the spot at the time of incident which was to the effect that in the FIR it was the case of complainant that Fakhar alias Fakhro (appellant) made one fire-shot which landed on right thigh of Zafar Ali and went through and through but the doctor who conducted autopsy of the dead-body of deceased noted three entry wounds on right and left thighs of Zafar Ali (deceased). Moreover , it was also the case of complainant that soon after the incident Zafar Ali in injured condition was shifted to Civil Hospital, Samundri from where he was referred to Civil Hospital, Faisalabad where he was given the first aid but no MLR of Civil Hospital Samundri or Faisalabad is available on the record to substantiate the version of the complainant. We have further observed that both the witnesses of ocular account were chance witnesses because the occurrence in this case had taken place far away from their houses. Both these PWs have no agricultural land or place of business near the place of occu rrence. Before the learned trial Court they have not given any plausible reason for their presence on the spot at the time of incident. Therefore, we hold that both the above 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 relevant 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 otherwis e 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 the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
9. Motive behind the occurrence was that one month ago Fakhar alias Fakhro stole the bicycle of Riaz maternal nephew of complainant as well as deceased and today Zafar Ali demanded the said bicycle from Fakhar alias Fakharo whereupon a quarrel took place and Fakhar alias Fakhro made a fire upon Zafar Ali. No exact date time and place of motive incident are mentioned in the FIR. Zahoor (PW.5) has stated in his cross-examination that no FIR was got registered by the complainant regarding theft of bicycle against Fakhar alias Fakhro. Moreover , 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.
10. So far as alleged recovery of carbine .12 bore at the instance of appellant is concerned, the same is immaterial because as per report of Punjab Forensic Science Agency (Exh.PQ) both the items i.e. crime empty as well as carbine .12 bore were received together in the said office on 31.01.2013 i.e. after the arrest of the appellant. It is, by now, well established proposition of law that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of "Jehangir vs. Nazar Farid and another" (2002 SCMR 1986 ), "Israr Ali vs. The State" (2007 SCMR 525) and "Ali Sher and others vs. The State" (2008 SCMR 707).
11. As far as medical evidence is conce rned, since we have already discussed in preceding paragraph of this judgment that there is contradiction between the ocular account and the medical evidence, therefore, there is no need to discuss the same again.
12. So far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
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 bf law that in case of doubt, the benefit thereof must accrue in favour 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 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. 76988-J of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 29.04.2017 passed by, the learned Addl Sessions Judge, Samundri are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Fakhar alias Fakhro, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No. 303 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Fakhar alias Fakhro (convict) is NOT CONFIRMED .