Shehram Sarwar Ch., J.--Munir Ahmad (appellant) was tried by the learned Sessions Judge, Nankana Sahib' in case FIR No. 162 dated 20.04.2016, offence under Section 302, PPC, registe red at Police Station Syedwala District Nankana Sahib for the murder of Mst. Salma Bibi daughter of the complainant. Vide judgment dated 26.04.2017 passed by the learned Sessions Judge, Nankana Sahib, 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. 351 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 (Exh.P A/1) registered on the applicatio n (Ex.P A) of Mst. Pathani Bibi, complainant (PW.1) is. that she (complain ant) and Munir Ahmad were residing in a haveli in 'two separate rooms.
On 20.04.2016 at 1:30 a.m. (night) the complainant felt thrust. She was coming towards her cot after drinking water from the hand-pump existing in the Courtyard and saw Munir Ahmad (appellant) armed with pistol coming towards the cot of her daughter Salma Bibi. The electric bulb was on in the Courtyard. Complainant raised alarm on seeing Munir Ahmad while armed with pistol. On hearing the hue and cry, Javed Iqbal son of Shameer and Javed Iqbal son of Mian Khan came there after scaling over the wall. In the meanwhile, Munir Ahmad made a fire with pistol hitting on the head of Salma Bibi. Within their view, Munir Ahmad while opening the outer door fled away while brandishing his pistol. Motive behind the occurrence was dispute of residential haveli.
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, Nankana Sahib to face the trial. Copies of relevant documents were provided to the appellant as required under Section 265-C, Code of Criminal Procedure and formal charge was framed against him on 07.03.2017 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 24.04.2017, wherein he refuted all the prosecution allegations levelled against him and profess ed 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 Proced ure nor did he produce any evidence in his defence. 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 his appeal, contends that the appellant has falsely been implicated in this case; that the occurrence did not take place at the time as mentio ned in the FIR; that there is also noticeable delay in conducting autopsy of the dead-body of deceased; that presence of both the witnesses of ocular account namely Mst. Pathani Bibi, complainant (PW.1) and Javed Iqbal (PW.2) on the spot at the time of incident is doubtful in nature; that it was a night time occurrence and both the eye-witnesses allegedly saw the incident in the light of an electric bulb but no bulb was taken into possession during the course of investigation; that motive has not been proved against the appellant; that medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence which is not the situation in this case; that alleged recovery of .30 bore pistol at the instance of Munir Ahmad (appellant) is immaterial; 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 Deputy Prosecutor General opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the matter to the police; that presence of both the witnesses of ocular account on the spot at relevant time is quite natural and probable; that motive has been proved against the appellant; that the ocular account is fully supported by medical evidence and further corroborated by the recovery of .30 bore pistol at the instance of Munir Ahmad (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 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 .
7. Ocular account in this case consists of Mst. Pathani Bibi, complainant (PW.1) and Javed Iqbal (PW.2). The presence of both these PWs on the spot at the time of incident is doubtful in nature . because they allegedly saw the incident from a close distance but we failed to understand that in the presenc e of both these PWs, who were closely related to the deceased, how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased. Moreover , the offence allegedly took place at odd hours of night and both the eye-witnesses saw the incident in the light of an electric bulb but no bulb was taken into possession during the course of investigation. We have further noted that as per prosecution's own case the occurrence allegedly took place on 20.04.2016 at 1:30 a.m. (night), the matter was reported to the police on the same night at 4:20' a.m. whereas the Postmortem examination of the dead-body of deceased was conducted on 20.04.2016 at 1:00 p.m. Dr Ammara Faisal (PW.8), who conducted autopsy of the dead-body of Salma Bibi (deceased), stated in her examination-in-chief that 'probable duration between injuries and death "Immediate" and between death and post mortem more than 18 hours' . The first question for determination before us is whether the time of incident as mentioned in the FIR does coincide with the time elapsed between death and post-mortem examination as observed by the above said doctor or not? In order to get answer of the above said question the following portion of cross examination of Dr . Ammara Faisal (PW .8) is relevant which is reproduced as under: "... It is correct that I have mentioned in my post mortem report Ex.P.L the probable time between death and post- mortem to be more than 18 hours, after examining the dead body externally as well as internally . I have mentioned this time as 18 hours according to my medical knowledge/authenticity and practice. It is correct that according to the probable dif ference between death and time of examination, the time of death is about 7:00 a.m. on 19.4.2016 The above extract of cross-examination of doctor (PW.8) reveals that the incident did not take place at the time as mentioned in the FIR rather the same was happened much prior to the above said time which has not been brought on the record. Overall circumstances of the case suggest that it was an unseen incident and both the above said PWs were not present on the spot at the time of incident. Therefore, we hold that the evidence of above two 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 dispute of residential haveli. No cogent/convincing evidence qua dispute of haveli between the parties was produced by the prosecution during the trial. Complainant (PW.1) has stated in her cross examination that "no civil dispute was pending between us and Munir Ahmad in any civil Court. I did not file civil suit against Munir Ahmad regarding the division of haveli of the occurrence' . Moreover , no independent witness qua motive was joined by police in inves tigation 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 .30 bore pistol at the instance of appellant is concerned the same is immaterial because it is mentioned in the recovery memo. (Exh.PG) that the appellant got recovered the said pistol from the tube-well room of one Rana Kashif which was an open place, accessible to everyone.
10. 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 the appellant implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others " (2016 SCMR 1605 ).
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 . In "Muhammad Akram versus The State " (2009 SCMR 230 ), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under: "13. ... it is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of. grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
13. For the foregoing reasons, Criminal Appeal No. 59874-J of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 26.04.2017 passed by the learned Sessions Judge, Nankana Sahib are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Munir Ahnmd, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
14. Murder Reference No. 351 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Munir Ahmad (convict) is NOT CONFIRMED . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.