Shehram Sarwar Ch., J.--Muhammad Asghar (appellant) was tried by the learned Addl. Sessions Judge, Jhang in a private complaint under Sections 302, 324 and 34 PPC instituted by Umar Hayat, complainant (PW.4) being dissatisfied with the investigation conducted by the police in case FIR No. 172 dated 22.06.2014, offence under Sections 302 and34, PPC registered at Police Station 18-Hazari District Jhang for committing murder of Muhammad Safdar (deceased) and causing injuries to Umar Hayat (PW.4). Vide judgment dated 19.07.2017 passed by the learned trial Court, Muhammad Asghar (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 the deceased and in default whereof to further undergo simple imprisonment for six month's. The appellant has also been convicted under Section 324 PPC and sentenced to ten years rigorous imprisonment with fine of Rs. 10,000/- (rupees ten thousand only) and in default thereof, to further undergo three months simple imprisonment. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 495 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.CW/1-A) registered on the written application (Exh.PH) of Khizar Hayat, complainant (PW.5) is that on 18.06.2014 he alongwith his father Safdar and brother Umar Hayat were going to their house situated at Mohallah Farooqia, 18-Hazari, Jhang. At about 12:30 p.m. when they reached in street Sajid Photographer Wali, suddenly , Asghar (appellant) alongwith two unknown persons came there on motorcycle. Asghar made a straight, fire which landed on the abdomen of Safdar . He made second fire hitting on right buttock of Safdar . Umar Hayat tried to apprehend Asghar whereupon he made a fire hitting on the abdomen of Umar Hayat. Asghar made second fire hitting on back of Umar Hayat. Besides the complainant the occurrence was witnessed by Muhammad Azhar and Ijaz Hussain. The complainant shifted both the injured to Civil Hospital Jhang where their MLCs were issued and because of their precarious condition they were referred to Allied Hospital Faisalabad.
3. Being dissatisfied with the investigation conducted by the police, Umar Hayat instituted a private complaint titled as. "Umar Hayat vs. Assghar etc.", on the same facts, as narrated in the FIR.
4. After recording of cursory evidence in the present case, the appellant was summoned by the learned trial Court to face the trial. Copies of relevant docu ments were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against him on 19.06.2015, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as six witnesses whereas seven were examined as Court witnesses. Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 5.7.2017, wherein he refuted all the prosecution allegations levelled against him and professed his innocence. The appellant did not appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) of the 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.
5. 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 .
6. The occurrence in this case allegedly took place on 18.06.2014 at 12:30 p.m. whereas the matter was reported to the police on 22.06.2014 at 1:15 p.m. The distance between police station and the place of occurrence is just hundred karams. There is a delay of about four days 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 Umar Hayat (PW.4), Khizar Hayat (PW.5) and Muhammad Azhar (PW.6) did not utter even a single word I about the above said delay .
Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case) law titled as "Altaf Hussain vs. The State" (2019 SCMR274). ,
7. Ocular account in this case consists of Umar Hayat (PW.4), Khizar Hayat (PW.5) and Muhammad Azhar (PW.6).
In the FIR it was the case of prosecution that the occurrence allegedly took place in street Sajid Photographer Wali situated within the territorial limits of Police Station 18-Hazari whereas rapt No. 07, available on record, about the same occurrence was lodged at Police Station Shor Kot City, showing the fact that the occurrence did not occur at the place mentioned in the FIR. Moreover , Umar Hayat (PW.4) has stated in his cross examination that "in the occurrence my father sustained fire shots in the street known as Dar-ul-Alum Mohammadia street while I sustained fire shot in Sajid photographer street." But no blood stained earth was secured by the Investigating Officer from the street of Sajid Photographer Wali which fact has been admitted by Khizar Hayat complainant of FIR (PW.5) in his cross examination. In the FIR, private complaint as well as while appearing before the learned trial Court it was the case of complainant that soon after the incident he shifted Muhammad Safdar and Umar Hayat in injured condition to Civil Hospital Jhang but Muhammad Nawaz S.I. (CW.7) has stated in his examination-in-chief that on 18.06.2014 injured persons Muhammad Safdar and Umar Hayat came in the police station in injured condition, he prepared their injury statements and shifted them to District Headquarters Hospital, Jhang. Moreover , in the medico legal reports of both the injured persons the word 'police' is mentioned in the relevant column accompanying the injured to hospital. We have further noted that all the witnesses of ocular account while appearing before the learned trial Court in order to improve 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 and another versus The State" (1993 SCMR 550). We have further observed that the ocular account is in direct conflict with the medical evidence because in the FIR it was the case of complainant that Muhammad Asghar (appellant) caused two firearm injuries on the person of Muhammad Safdar (deceased) whereas Dr. Shafqat Mumtaz (PW.3) who conducted autopsy of the dead-body of deceased noted only one entry and one exit wound on the person of deceased. This argument of learned Law Officer as well as learned counsel for the complainant that presence of Umar Hayat cannot be doubted at the place of occurrence due to the injury on his person has no substance because merely the injury on the body of a person would not stamp him/her truthful witness. Reliance is placed on case law titled as "Amin Ali and another vs. The State" (2011 SCMR 323).
Therefore, we hold that the evidence of above three eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
8. Motive behind the occurrence was that Muhammad Safdar (deceased) was stigmatizing Muhammad Asghar (appellant) in the society . No cogent/convincing evidence qua motive is available on the record. Umar Hayat (PW.4) has stated in his cross examination that in order to prove the motive part of occurrence they did not produce any witness before the police. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
9. So far as alleged recovery of .30 bore pistol at the instance of appellant is concerned the same is immaterial because the report of Punjab Forensic Science Agency (Exh.PN) qua said pistol is simply to the effect that the same was in working order .
10. 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.
11. 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.
12. 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 titled as "Muhammad Akram versus The State" (2009 SCMR 230 ).
13. For the foregoing reasons, Criminal Appeal No. 71956 of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 19.07.2017 passed by the. learned Addl. Sessions Judge, Jhang are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt.
Muhammad Asghar , appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
14. Murder Reference No. 495 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Asghar (convict) is NOT CONFIRMED.