Shehram Sarwar Ch., J.--Ghulam Murtaza (appellant) was tried by the learned Addl. Sessions Judge, Khane wal in case FIR No. 340 dated 09.12.2012, offence under Section 302, PPC registered at Police Station Kacha Khu District Khanewal for murder of Muhamm ad Abid, husband of complainant. Vide judgment dated 19.9.2016 passed by the learned trial Court, the appellant has been convi'cted 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 the 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. 112 of 2016 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the Code of Criminal Proce dure. 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 (Ex.P A) registered on the written application (Ex.PI) of Mst. Naseem Akhtar , complainant (PW.9) is that on 09.12.2012 at around 09:00 p.m. she (complainant) alongwith her husband namely Muhammad Abid, Mukaram Ali and Muhammad Khalid was present in her house. On hearing the noise, they came in the street from the house and saw in the light of bulb installed in the street that Ghulam Murtaza (appellant) was quarrelling with his mother and sister namely Mst. Nasim Akhtar widow of Muhammad Shafi and Farzana Bibi respectively . Muhammad Abid came forward and forbade the appellant from quarrelling but the appellant did not like it. Within the view of complainant party , the appellant repeatedly inflicted five churri blows, which landed on the front side of differen t parts of body of Muhammad Abid and he fell on the ground in injured condition. The complainant party rushed to rescue him, upon which the appellant extended threats that if anyone came near would face the same consequences. Meanwhile, the people of the village gathered there and the appellant while brandishing the churri fled away from the place of occurrence. The complainant party attended Muhammad Abid and was taking him to Civil Hospital, Kacha Khu for his medical treatment on Suzuki Pickup of Mukaram Ali but he succumbed to the injuries after reaching at the gate of the 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, Khanewal 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 21.02.2013, 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 18.06.2016, wherein he refuted all the prosecution allegations levelled against him and professed his innocence.
The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure nor did he produce any defence evidence. After conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. We have heard arguments of learned counsel for the parties as well as the learned Prosecutor General for the State at a considerable length and have also gone through the record very minutely .
5. This unfortunate incident wherein Muhammad Abid (deceased) husband of complainant lost his life, as per prosecution, took place on 09.12.2012 at about 9.00 p.m. (night), whereas the matter was reported to the police through written application (Ex.PI) of Mst.Nasim Akhtar , complainant (PW.9) on the same, night at 10.30 p.m. and formal FIR (Ex.P A) was got registered. However , the post-mortem examination of the dead body of deceased, as per' statement of Dr. Muhammad Sharif (PW.3), was conducted on 10.12.2012 at 8.50 a.m. i.e. about eleven hours and fifty minutes after the incident despite the fact that the dead body of deceased was received in the dead house on the same night at 9.30 p.m. Therefore, possibility exists that it was an unwitnessed murder and time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. In this regard, reliance is placed on the case law titled as "Muhammad Riaz vs. The State" (2009 P.Cr.LJ. 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 cases of "Irshad Ahmed vs. The State"
(2011 SCMR 1 190) and "Nazeer Ahmed vs. The State " (2016 SCMR 1628 ).
6. The ocular account in this case has been furnished before the learned trial Court by Mukaram Ali (PW.8) and Mst. Nasim Akhtar , complainant (PW.9), who were closely related to the deceased being his cousin (PW.8) and wife (PW.9) and their presence on the spot at the time of incident is doubtful in nature because had they been present on the spot at relevant time along with Khalid (not produced), why did they not try to rescue the deceased or to catch hold of the appellant, who admittedly was not armed with any fire-arm toward the said eye-witnesses off or to keep them away at the time of incident. It is on record through the cross-examination of Mukaram Ali (PW.8) that when the appellant was stabbing the deceased, they remained standing there without any intervention. Same was the position with regard to the wife and brother of deceased. It was case of both the eye-witnesses before the learned trial Court that they were sitting in the house of Muhammad Abid (deceased) and on hearing the noise from the street, they came out of the house and saw that the appellant was quarrelling with his sister and mother . They witnessed in the light of bulb that Muha mmad Abid stopped the appellant from quarrelling with his mother and sister , upon which the latter inflicted 4/5 churri blows to the former . We have gone through the scaled site plan (Ex.PB), which shows the place of occurrence as a street but the house of compla inant or the deceased does not figure anywhere in the street rather the houses of Abdul Jabbar , Abdul Sattar and Madrissa Arbia Teleem-ul-Quran are portrayed therein. Manzoor Hussain, S.I/I.O. (PW. 10) also did not show the house of appellant, complainant and witnesses in the site plan without scale (Ex.PJ) and volunteered that their houses were located at sufficient distance from the place of occurrence. So, in our view, both the witnesses of ocular account were chance witnesses. As far as testimony of Mukaram Ali (PW.8) is concerned, admittedly , the occurrence took place on 09.12.2012 whereas the statement of said PW under Section 161, Cr.P.C. was recorded on 21.12.2012 i.e. about twelve days after the occurrence. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delays without offering any plausible explanation. Reliance is placed on case law titled as "Muhammad Khan vs. Maula Bakhsh and another" (1998 SCMR 570). Even otherwise, it was a night time occurrence and case of eye-witnesses was that a bulb was lit in the street but no such bulb was taken into possession by the I.O. (PW.10). Before the learned trial Court, the eye-witnesses have utterly failed to establish their presence on the place of occurrence at relevant time. It is in this context that the testimony of a 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 a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at 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 case law reported as "Muhammad Rafique vs. The State (2014 SCMR 1698 ), "Mst Suehra Begum and another vs. Qaiser Pervez and others" (2015 SCMR 1142) and "Muhammad Javed vs. The State " (2016 SCMR 2021 ). No specific motive was alleged in the FIR or stated before the learned trial Court and it was case of prosecution that the appellant was quarrelling with his mother and sister , who was forbidden by the deceased but the mother and sister of appellant were not joined in investigation, as admitted by the I.O. (PW.10) during cross-examination. All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
7. So far as the alleged recovery of churri (P.4) at the instance of the appellant is concerned, the same is of no avail to the prosecution because of the reason that there is no mention in the recovery memo (Ex.PH) that the churri was stained with blood. Reliance may be placed on the case reported as "Irfan Ali vs. The State" (2015 SCMR 840), wherein it was held by the Hon'ble Supreme Court of Pakistan that full description of the dagger has been given but blood-stains on it were omitted, therefore, when blood was not found on it, how the Chemical Examiner and the Serologist could give an opinion about the presence of human blood on it. Even otherwise, the recovery is a corroborative piece of evidence and relevant only if the primary evidence inspires confidence, which is not the situation in this case.
8. 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 ).
9. So far as version of the appellant taken by him in his statement recorded 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 defence version.
10. 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 . Reliance is placed on case law report as "Muhammad Akram versus The State" (2009 SCMR. 230 ).
11. For the foregoing reasons, Criminal Appeal No. 768 of 2016 filed by Ghulam Murtaza (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 19.09.2016 passed by the learned Addl.
Sessions Judge, Khanewal are set aside and he is acquitted of the charge while extending him benefit of doubt.
The appellant is in jail. He shall be released forthwith (f not required to be detained in any other case.
12. Murder Reference No. 112 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Ghulam Murtaza (convict) is NOT CONFIRMED .