Sadaqat Ali Khan, J.--Appellant (Muhammad Imran) has been tried by learned trial Court in case FIR No. 521 dated 25.9.2014 offences under Sections 302/324, PPC registered at Police Station City Khanewal and was convicted and sentenced vide judgement dated 10.03.2016 as under: MUHAMMAD IMRAN APPELLANT Under Section 302(b), PPC "He was sentenced to death for committing the Qatal-e-Amd of Mst. Hameed Bibi (deceased) along-with compensation Rs. 100,000/- payable to the legal heirs of the deceased under Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I.
Under Section 324, PPC He was sentenced to imprisonment for 10-years with fine of Rs. 20,000/- and in default thereof to further undergo 3-months S.I.
Sentences of the appellant were ordered to be-run concurrently with benefit of Section 382-B, Cr .P.C."
Appellant has filed this criminal appeal against his conviction whereas learned trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.
2. Brief facts of the case have been stated by the complainant Ghulam Hussain (PW6) in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:- "About 13-months ago I alongwith Muhammad Yousuf and Fakhar Hussain PWs was coming to Khanewal from my village Chak No 87/10-R. It was about 11:30 AM when we were passing. through a road from Chak No. 88/10-R lying near the house of ray sister Mst. Hameed Bibi deceased residing in that village. We heard hue and cry from the house of the deceased, attracted there and saw that two unknown assailants had caught hold of the deceased from her arms while her husband Muhammad Imran accused present in Court equipped with Churi was operating the Churi on the back side of neck of the' deceased who fell on the ground and succumbed to the injuries.
Thereafter accused caused injuries with Churi on the neck of his daughter Mst. Abida Bibi aged about 21/2 years standing nearby . We tried to apprehend the accused but he fled the scene with the Churi extending life threats to us. Mst. Abida Bibi injured was shifted, to Civil Hospital Khanewal. Motive behind this occurrence was that two daughters had born from the womb of the deceased and the semen of the accused over which the accused was not happy and used to blame the deceased for giving birth to female babies. Leaving Muhammad Yousuf and Fakhar PWs to guard the dead body , I came at the police station and submitted written application EX.P-G for registration of the FIR."
3. Arguments heard, record perused.
4. Mst. Hameed Bibi (deceased) was done to death in the house of her husband Muhammad Imran appellant on 25.09.2014 at 11.30 a.m., FIR was lodged on the same day i.e. 25.09.2014 at 1.05 p.m. on the written application of her brother Ghulam Hussain complainant PW-6 who and his maternal uncle Muhammad Yousuf PW-7 while claiming themselves to be the eye-witnesses of the occurrence stated in their statements before the trial Court that on the day of occurrence at 11.30 a.m. when they were passing through a road from Chak No. 88/10-R near the house of Mst. Hameed Bibi (deceased), heard hue and cry from her house, attrac ted there and saw two unknown assailants had caught hold of Mst. Hameed Bibi deceased from her arms while Muhammad Imran (appellant) armed with Churri. inflicting injuries on backside of her neck. Appellant also caused injuries with Churri on the neck of Mst. Abida Bibi aged about 21/2 years (not PW). Contrary to this, Dr. Suma ira PW-4 who conducted post- mortem examination on the dead body of Mst. Hameed Bibi (deceased) observed the following four injuries on her person:--
1. A lacerated wound of 15cm x 5cm on left side of neck tearing all the muscles exposing neck structure.
2. Lacerated wound on lower abdomen. It was skin deep.
3. A lacerated wound of 5 x 2.5 cm under the left breast 9cm below left nipple. It was going deep ribs cut underneath.
4. A lacerated wound of 7 x 2.3 cm on the front of left leg which was 7cm below left iliac region.
Except Injury No. 1 reproduced above, other three injuries reproduced above have not been explained by these two eye-witnesses that who caused these three injuries on the person of Mst. Hameed Bibi deceased in their presence. This is shows that both these eye-witnesses were not present at the time of occurrence at the place of occurrence, had they been present, they would have been explained the above said injuries on the person of Mst.
Hameed Bibi (deceased). Even otherwise, Ghulam Hussain complainant. PW-6 is resident of Chak No. 87/10-R Tehsil and District Khanewal whereas Muhammad Yousuf PW-7 is resident of Pull Venohi Tehsil Kabirwala, District Khanewal and are not the resident of Chak No. 88/10-R Tehsil and District Khanewal, where house of occurrence is situated. They were the chance witnesses but have failed to establish their presence at the time of occurrence at the place of occurrence with their stated reasons. Reliance is placed on cases titled "Arshad Khan vs. The State "
(2017 SCMR 564 ) and " Muhammad Rafique v . The State" (2014 SCMR 1698 ).
5. The argument of learned DPG that in the circumstances like the present one, the conviction of the appellant can be maintained when his wife is found dead/murdered in his house and he does not satisfactorily explain the circumstances of the death, has no force because the basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea. If he takes one. The alleged unnatural death of the appellant's wife in his house may be a circumstance to be taken into account alongwith the other prosecution evidence. However , this by itself would not be sufficient to establish the appellant's guilt in absence of any positive evidence of the prosecutio n connecting, him to the crime, which is missing in the present case.
Reliance is placed on cases "Abdul Majeed v. The State " (2011 SCMR 941) and "Arshad Khan vs. The State"
(2017 SCMR 564 ) wherein Hon'ble Supreme Court of Pakistan has observed in para 4 at page 567 as under: "It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524 ) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court 'in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all."
6. Muhammad Azhar S.I., I.O. of the case, PW10 stated in his statement before the trial Court that on 09.11.2014 appellant during interrogation disclosed and got recovered Churri P4 from his house but did not state that Churri P4 at the time of its recovery was blood stained. Recovery memo. Exh.PI also does not show that Churri P4 at the time of its recovery was blood stained, hence positive report of PFSA Exh.PN in this regard is not believable which is hereby discarded.
7. In view of the above discussion, we entertain serious doubt regarding participation of the appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right.
8. For the foregoing reasons, instant criminal appeal filed by Muhammad Imran appellant is accepted, conviction and sentences of the appellant (Muhamm ad Imran) awarded by learned trial Court through impugned judgment are set-aside and the appellant Muhammad Imran is ordered to be acquitted of the charges. He is directed to be released forthwith if not required in any other case. M.R is answered in NEGA TIVE and death sentence of Muhammad Imran appellant is NOT CONFIRMED.