Shehram Sarwar Ch., J.--Lutaf Ullah (appellant) was tried by the learned Addl. Sessions Judge, Chiniot in case FIR No. 410 dated 04.09.2016, offence under Section 302, PPC registered at Police Station Chenab Nagar District Chiniot for murder of Mst. Atiya-tulNoor (deceased) daughter of complainant. Vide judgment dated 07.06.2017 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. 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. 417 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 (Ex.PG/1) registered on the written application (Ex.PG) of Muhammad Anwar , complainant (PW.6) is that about seventeen years ago, Mst. Atiya-tul-Noor daughter of complainant, aged about 33 years was married to Lutaf Ullah (appellant) and they were blessed with five sons and a daughter , who were alive. Oftenly there was quarrel between the spouses on petty matters. The appellant was a vagabond, who used to tease and harass daughter of complainant. On 04.09.2016 at around 7.30 a.m., the complainant along with Nadeem Ahmad Tariq and Khawar Akram went to the house of his daughter to see her. On reaching door of the house, they heard voice of quarrel and noise. They entered the house and saw the appellant, giving toka blows to Mst. Atiya-tul-Noor in the room, who was writhing smeared with blood. Having seen the complainant party , the appellant decamped from the backside of house while brandishing toka. Atiya-tul-Noor succumbed to the injuries on the spot after a short while. Motive behind the occurrence as alleged in the FIR was domestic quarrel.
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 Sessions Judge, Chiniot to face the trial. Copies of relevant documents were provided to the appella nt, as required under Section 265-C, Code of Criminal Procedure and formal charge under Section 302, PPC was framed against him on 18.11.2016, 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 31.05.2017, wherein he refuted all the prosecution allegations levelled against him and professed his innocence.
The appellant did not opt to appear as his own witness, in disproof of the alleg ations levelled against him, as provided under Section 340(2), Code of Criminal Procedure, however , he produce d certain documents (Mark-A to Mark-G) as defence evidence. Faizan Ullah was also produced and his statement was recorded as DW.1. 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 Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely .
5. The ocular account in this case has been furnished before the learned trial Court by Muhammad Anwar , complainant (PW.6) and Nadeem Ahmad Tariq (PW.7), who were closely related to the deceased being her father (PW.6) and maternal cousin (PW.7) and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. The occurrence took place in the house of deceased as well as the appellant situated in Mohallah Darul Rehmat, Chenab Nagar . The complainant admitted during his cross-examination that the deceased was residing in next street to his house whereas Nadeem Ahmad Tariq (PW.7) was resident of Mohallah Nasiraba d Sharqi. No plausible or convincing reason was offered by both the eye- witnesses for going to the house of deceased and it was simply stated by them that they along with Khawar Akram (given up PW) went to the house of Atiya-tul-Noor to meet her and to provide her medicine. It was not case of the witnesses of ocular account that the deceased was sick in those days and in order to show their presence on the spot, it was merely stated by Nadeem Ahmad Tariq (PW.7) in cross-examination that prior to the occurrence, the appellant beat Atiya-tul-Noor (deceased), who caused injuries to her and they went to give her medicine. This assertion of PW.7 is belied by the stateme nt of Dr. Kiran Kamal (PW.3), who did not observe any earlier injuries on the body of deceased except the injuries sustained by her during this incident. The presence of both these PWs on the spot at the time of incident is doubtful in nature because had they been present on the spot at relevant time, why they did not try to rescue the deceased or to catch hold of the 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. 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 accepte d unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In norma l 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 withou t 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.
6. Motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was domestic quarrel between Lutaf Ullah (appellant) and Mst. Atiya-tul-Noor (deceased). It was also stated by the complainant in his examination-in-chief that for the last three years, they had strained matrimonial relations; his daughter forbade the appellant many a times from his bad deeds but he used to abandon the home for one year or sometime for six months. On the contrary , the complainant admitted during cross-examination that the appellant used to pay the rent of house and maintain his children. Moreover , Muhammad Iqbal, S.I/I.0 (PW.9) has showed ignorance to the suggestion that the appellant and deceas ed did not move any application to the police station regarding any family dispute. 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.
7. So far as the alleged recovery of toka (P.4) at the instance of the appellant which was taken into possession vide recovery memo. Ex.PH is concerned, the same is inconsequential for the reason that no report of Punjab Forensic Science Agency in this regard is available on record.
8. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and thus the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605).
9. 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.
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 . In this regard, reliance may be placed on the case law reported as " Muhammad Akram versus The State" (2009 SCMR 230 ).
11. For the foregoing reasons, Criminal Appeal No. 77457-J of 2017 filed by Lutaf Ullah (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 07.06.2017 passed by the learned Addl.
Sessions Judge, Chiniot 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.
12. Murder Reference No. 417 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Lutaf Ullah (convict) is NOT CONFIRMED.