Shehram Sarwar Ch., J.--Imran (appellant) was tried by the learned Addl. Sessions Judge, Faisalabad in case FIR No. 836 dated 28,09.2015, offence under Section 302, PPC registered at Police Station Civil Lines District Faisalabad for the murder of Mat. Irshad Bibi (deceased) sister of complainant. Vide judgment dated 29.04.2017 passed by the learned trial Court, 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. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 347 of 2017 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.P A/1) of Imtiaz Ali, complainant (PW.5) is that Imran brother-in-law (behnoi) of complainant was living in a quarter situated at Islam Nagar , Plot No. 100 for the last about 16/17 years. Mst. Irshad Bibi sister of complainant along with her children was living with her husband (appellant) and both the spouses used to work in the houses of different people in order to earn their livelihood. About 2/3 years back, Imran (appellant) left the work while sister of complainant continued her work for upbringing of her children and on this issue, the spouses used to quarrel with each other .
On 28.09.2015 at around 5.00 p.m. the complainant along with Muhammad Aslam and Ali Niaz came to see his sister Mst. Irshad Bibi. Meanwhile, Imran (appellant) arrived there and during talk, a quarrel took Place between husband and wife. Within the view of complainant party , Imran took the, dopatta of Mst. Irshad Bibi from her head and while putting the same around the neck strangulated her, who fell on the cot and died on the spot. In the meantime, Imran (appellant) fled away from the spot. Motive behind the occurrence as alleged in the FIR was that sister of complainant used to do labour for upbringing of her children and Imran (appellant) oftenly demanded money from her and on the day of occurrence, a quarrel also took place betwe en them on this issue and the appellant committed murder of complainant's sister .
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, Faisalabad 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 16.02.2016, 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 29.04.2017, 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 allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. However , 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 this appeal, contend that the appellant has falsely been implicated in this case; that the matter was reported to the police with due deliberation and consultation on the part of the complainant; that the post-mortem examination of the dead body of deceased was conducted after about sixteen hours and fifty minutes of the incident; that Imtiaz Ali, complainant (PW.5), Muhammad Aslam (PW.6) and Ali Niaz (PW.7), alleged witnesses of ocular account have not given any plausible reason for their presence on the spot at relevant time; that the said eye-witnesses were neither residents of the place of incident nor have any place of business over there and were chance witnesses; that ocular account is in direct conflict with the medical evidence; that the alleged motive set up by the prosecution in the FIR or stated before the learned trial Court has not been proved; that the alleged recovery of dopatta (P.1) at the instance of the appellant is inconsequential; that the version of the appellant is more proba ble, convincing and even gets full support from prosecution's own case; 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 assisted by learne d counsel for the complainant vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that the complainant was not responsible for the delay in conducting post-mortem examination of the dead body of deceased; that Imtiaz Ali, complainant (PW.5), Muhammad Aslam (PW.6) and Ali Niaz (PW.7), who witnessed the incident, have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that the eye-witnesses have no enmity with the appellant to falsely implicate him in this case; that a specific motive was set up in the FIR and brought before the learned trial Court, which has been proved; that ocular account is folly supported by medical evidence; that the prosecution case is corroborated by the recovery of dopatta (P.1) at the instance of the appellant; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in this appeal.
6. We have heard arguments of learned counsel for the parties 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. This unfortunate incident wherein Mst. Irshad Bibi (deceased) sister of complainant lost her life, as per prosecution, took place on 28.09.2015 at about 5.00 p.m. in the area of Mohallah Islam Nagar situated within the territorial limits of Police Station Civil Lines District Faisalabad. The distance between the place of occurrence and the police station is just one and a half kilometers but inspite of that, the matter was reported to the police after the delay of about six hours through written application (Ex.P A/1) of Imtiaz Ali, complainant (PW.5) at 11.00 p.m. on the same night and formal FIR (Ex.P A) was got registered at 11.10 p.m. There was absolutely no convincing of plausible reason for this inordinate delay in reporting the crime to the police in the FIR or stated before the learned trial Court by the complainant. Even the post-mortem examination of the dead body of deceased was conducted on the next day at 9.50 a.m. i.e. after about sixteen hours and fifty minutes of the incident despite the fact that the dead body of deceased was received in the dead house on the same night at 2.15 a.m. as is evident from post- mortem examination report (Ex.PC). It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasio ned 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 unwitnessed 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. The ocular account in this case has been furnished before the learned trial Court by Imtiaz Ali, complainant (PW.5), Muhammad Aslam (PW.6) and Ali Niaz (PW.7), who were closely related to the deceased as the complainant (PW.5) was brother of decea sed whereas PW.6 was father-in-law (susar) of deceased's daughter and PW.7 was paternal cousin of deceased. All the witnesses of ocular account were chance witnesses because they were neither residents of the place of incident nor have any place of business over there. The occurrence took place in Mohallah Islam Nagar , Faisalabad whereas the eye-witnesses were residing in Mohallah Rehmat Pura, Bucheki District Nankana Sahib. No plausible or convincing reasons were assigned by the eye-witnesses before the learned trial Court for their presence on the spot and they simply stated in their examination-in-Chief that they went to see Mst. Irshad Bibi (deceased) sister of complainant in her house situated in Mohallah Islam Nagar , Plot No. 100. The story cooked up by the witnesses of ocular account appears to be improbable and makes their presence on the spot, doubtful because according to them, the appellant took the dopatta from the head of deceased, put the same around her neck and strangulated her; had they (eye-witnensses) been present on the spot at relevant time, why did they not try 6o rescue the deceased during this whole episode or caught hold of appellant, who admittedly was not armed with any fire-arm to ward the said eye-witnesses off or to keep them away at the time of incident. In this regard, reliance may be placed on the case law reported as "Irshad Ahmed vs. The State" (2011 SCMR 1190). 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 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 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 "Mst. Sughra Begum and another vs. Qaiser Pervez and others" (2015 SCMR 1142) and "Muhammad Javed vs. The State " (2016 SCMR 2021 ). All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
9. The motive behind the occurrence as alleged in the FIR was that Mst. Irshad Bibi (deceased) sister of complainant used to do labour for upbringing of her children and Imran (appellant) oftenly demanded money from her and on the day of occurrence, a quarrel also took place between them on this issue and the appellant committed murder of complainant's sister . However , before the learned trial Court, the motive as stated by the complainant was to the effect that the appellant was not in the habit of doing any work and his sister insisted that he (appellant) should do some job which was felt ill by the appellant and committ ed her murder . According to the complainant, the appellant left his work about 2/3 years prior to the incident but no untoward incident took place during this long interregnum. We may observe here that the quarrel between the spouses is not unusual in our culture. Furthermore, no independent witness in support of the motive was associated during the course of investigation or brought in the witness box at trial. In this view of the matter , we hold that the prosecution has not been able to substantiate the motive part of the occurrence.
10. So far as the. recovery of dopatta (P.1) at the instance of appellant which was taken into possession vide recovery memo (Ex.PG) is concerned, the same is not much helpful to the prosecuition for the reason that the dopatta is an ordinary thing and can easilsve be managed from anywhere. Moreover , no report of Punjab Foren sic Science Agency in this regard is available on record.
11. So far as medical evidence is concerned, the same is a supportive piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence, which is not the situation in this case.
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 is 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 this regard, reliance may be placed on the case law reported as "Muhammad Akram versus The State " (2009 SCMR 230 ).
14. For the foregoing reasons, Criminal Appeal No. 64529-J of 2017 filed by Imran (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 29.04.2017 passed by the learned Addl. Sessions Judge, Faisalabad are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
15. Murder Reference No. 347 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Imran (convict) is NOT CONFIRMED .