Shehram Sarwar Ch., J.--Maqsood Ahmad (appellant) alongwith his co-accused namely Imran Khan was tried by the learned Addl. Sessions Judge, Depalpur in a private complaint under Sections 302 and 34 PPC instituted by Mst. Nawab Bibi, complainant (PW.1) being dissatisfied with the investigation conducted by the police in case FIR No, 347 dated 24.04.2014, offence under Sections 302 and 34, PPC registered at Police Station Haveli Lakha District Okara for murder of Ghulam Ahmad (deceased) husband of the complainant. Vide judgment dated 12,07.2017 passed by the learned trial Court, Maqsood Ahmad (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 months. Through the same judgment, learned trial Court acquitted Imran Khan co-accused of the appellant by extending him benefit of doubt and no appeal against his acquittal was filed by the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 457 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 (Exh.CW .9/A) registered on the written application (Exh.P A) of Nawab Bibi, complainant (PW.1) is that on 24.04.2014 at 12:30 p.m. complainant alongwith her husband Ghulam Ahmad and daughter Rabia Bibi were cutting wheat crop from the land taken on lease. Maqsood Ahmad armed with .303 bore rifle and Imran Khan armed with .12 bore carbine came there. Maqood Ahmad raised a lalkara that today Ghulam Ahmad be taught a lesson for supporting Khizar and made a fire with rifle which landed on left side of flank of Ghulam Ahmad. He made second fire hitting on left arm, flank of Ghulam Ahmad. Third fire was made by Imran with .12 bore carbine hitting on front of back of Ghulam Ahmad. Fourth fire was made by Imran which landed below back of Ghulam Ahmad. Fifth fire was made by Maqsood Ahmad which landed on right flank of Ghulam Ahmad.
Sixth fire was made by Imran with carbine hitting above left back of Ghulam Ahmad. Complainant and her daughter Rabia Bibi came forward to rescue Ghulam Ahmad whereupon Imran inflicted butt of carbine on the teeth of Rabia Bibi due to which her teeth were damage d. Maqsood Ahmad gave rifle butt blow which landed on left side of head of complainant due to which she became injured. Rasheed Ahmad and Abdul Jabbar came on the spot and witnessed the occurrence. The accused persons fled away from the spot while making firing. Ghulam Ahmad succumbed to the injuries on the spot. Motive behind the occurrence was that a dispute of land was going on between Magsood Ahmad and Khizar and Ghulam Ahmad (deceased) was supporting Khizar and due to the said grudge the accused persons committed his murder .
3, Being dissatisfied with the investigation conducted by the police, Nawsb Bibi, complainant instituted a private complaint titled as " Nawab Bibi us, Maqsood Ahmad etc ", on the same facts as narrated in the FIR.
4. After recording of cursory evidence in the present case, the appellant and his co-accused were summoned by the learned trial Court to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against them on 15.07.2015, to which they pleaded not guilty and claimed trial: In order to prove its case, prosecution examined as many as five witnesses whereas nine were examined as Court witnesses. Statements of the appellant and his co-accused under Section 342 of the Code of Criminal Procedure were recorded on 09.06.2017, wherein they refuted all the prosecution allegations levelled against them and professed their 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 and acquitted his co-accused as detailed above. Hence this appeal and murder reference.
5. We have heard learned counsel for the appellant 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 24.4.2014 at 12:30 p.m. whereas the matter was reported to the police on the same day at 2:30 p.m. The distance between police station and the place of occurrence is eleven kilometers. There is a delay of about two hours 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 Nawab Bibi, complainant (PW.1) and Rabia Bibi (PW.2) did not utter even a single word about the above said delay . Therefore, we hold that this inordinate delay in settin g the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as " Altaf Hussain us. The State " (2019 SCMR 274 ).
7. Ocular account in this case consists of Nawab Bibi, complainant (PW.1) and Rabia Bibi (PW.2). It was the claim of both these PWs that they received injuries during the occurrence but no medico-legal-certificate of both these PWs qua the injuries allegedly sustained by them during the incident is available on record. The above said stance of both the witnesses of ocular account has been negated by Muhammad Ashiq Abid S.I. (CW.6) by stating in his cross-examination that it is correct that Rabia Bibi and Nawab Bibi PWs were not injured during the occurrence, The reason assigned by both the above said PWs was to the effect that they alongwith Ghulam Ahmed (deceased) was cutting,wheat crop ott the spot at the time of incident but 1.0, (CW,6) has stated in his cross-examination that he did not show any wheat crop in un-scaled site plan (Exh,CW ,6/F) and scaled site plan Exh.PD) and that he did not take into possession any sickle from the place of occurrence which was used for cutting the wheat crop. In the FIR as well as private complaint it was the case of complainant 'that Maqsood Ahmed (appellant) made three fire- shots which landed on the person of Ghulam Ahmad (deceased) but while appearing before the learned trial Court it was the case of both the eye-witnesses that the appellant caused two firearm injuries on the person of deceased.
Both the above said PWs while appearing before the learned trial Court, in order to strengthen the prosecution made dishonest improvements, they were confronted with their previous statements and the improvements were brought on record. Moreover , Imran Khan, co-accused of the appellant, having similar role of causing firearm injuries on the person deceased with that of the appellant, has been acquitted by the learned trial Court and no appeal against his acquittal was filed by the complainant, therefore, the question, for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant namely Imran Khan can be believed against the appellant? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz vs. The State " (2016 SCMR 1763 ), wherein it was held at page 1765 as under: "2. ... The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamara z Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758 ), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examin ation of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-amused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant."
It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts. We respectfully relied upon the case law reported as "PLD 2019 Supreme Court 527" in the matter of Crl. Misc.
Application No. 200 of 2019 in CH. Appea l No. 238-L of 2013 decided 'on 4th March, 2019. Therefore, we hold that the evidence of above two eye-witness es is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
8. Motive behind the occurrence was that a dispute of land was going on between Maqsood Ahmad and Khizar and Ghulam Ahmad (deceased) was supporting Khizar and due to the said grudge the accused persons committed his murder . Admittedly , the same motive was alleged against Imran Khan co-accused of the appellant who has been acquitted by the learned trial Court and no appeal against his acquittal was filed by the complainant. Qua motive part of incident the following portion of cross-examination of Muhammad Ashiq Abid S.I. (CW.6) is relevant which is reproduced as under: "I did not investigate about the motive part alleged by the prosecution. I did not get joined any person in the investigation in regard with the motive part of the prosecution nor was any person produced by the prosecution to prove the motive alleged by them against the accused persons. It is correct that in the FIR motive for the occurrence was stated by the complaina nt that there was a dispute of land between Maqsood accused and one Khizer and that Ghulam Ahmad decease d was favouring the said Khizer and for the said motive this occurrence took place. During my investigation, said Khizer did not join the investigation nor he made any statement before me regarding the motive occurrence ..."
Furthermore, no independent witness qua motive was joined by police in investiga tion or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
9. So far as alleged recovery of 303 bore rifle at the instance of Maqsood Ahmad (appellant) is concerned the same is inconsequential because the report of PFSA (Exh.PG) qua said rifle is simply to the effect that the same was in working order . As far as alleged recovery , of carbine .12 bore at the instance of appellant is concerned the same does1 not advance the case of prosecution because in the FIR, private complaint as well as before the learned trial Court it was not the case of complainant that the appellant caused firearm injuries with .12 bore carbine on the person of deceased rather the said allegation was confined to the extent of Imran Khan, co-accused of the appellant who has been acquitted by the learned trial Court.
10. The ocular account is in direct conflict with the medical evidence because in the FIR it was the case of complainant that the appellant and his co-accused caused six firearm injuries on the person of Ghulam Ahmad (deceased) but Dr. Muhammad Yaqoob (PW.5) who conducted autopsy of the dead-body of deceased noted only two entry wounds on the person of deceased.
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. ##TE ##
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. 73548 of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 12.7.2017 passed by the learned Addl. Sessions Judge, Depalpur are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Maqsood Ahmad, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
14.. Murder Reference No. 457 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Maqsood Ahmad (convict) is NOT CONFIRMED .