Mushtaq Ahmad (appellant) along with his co-accused namely Muhammad Aslam alias Affi, Muhammad Zahid and Shabbir alias Shabbu was tried by the learned Addl. Sessions Judge, Pir Mahal District Toba Tek Singh in a private complaint under Sections 302, 109, 148 and 149, PPC instituted by Mst. Mumtaz Bibi, complainant (PW.1) being dissatisfied with the investigation conducted by the police in case FIR No. 242 dated 22.07.2013, offence under Sections 302, 109, 148 and 149, PPC, registered at Police Station Pir Mahal District Toba Tek Singh for the murder of Abid son of the complainant. Vide judgment dated 23.05.2016 passed by the learned trial, Court, the appellant has been convicted under Section 302(b), PPC and sentenced to imprisonment for life along with fine Rs.
2,00,000/- and in default whereof to further undergo simple imprisonment for six months. He was further directed to pay Rs. 3,00,000/- (rupees three lakh only) as compensation to the legal heirs of deceased as required under Section 544-A, Cr.P.C. and in default thereof to further undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Through the same judgmen t learned trial Court acquitted Muhammad Aslam alias Affi, Muhammad Zahid and Shabbir alias Shabbu co-accused of the appellant by extending them benefit, of doubt and against their acquittal Mst. Mumtaz Bibi, complainant has filed Crl. PSLA No. 1996 of 2016. She has also filed Crl. Revision No. 286 of 2016 for enhancement of sentence of appellant from life imprisonment to death. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.
2. Prosecution story , as set out in the FIR (Exh.P A/1) registered on the applicat ion (Exh.P A) Mst. Mumtaz Bibi, complainant (PW. 1) is that on the interve ning night of 21st and 22nd of July, 2013 at about 10:00 p.m. Javed son of the complainant was present on the shop whereas her other son Abid had gone to irrigate the paddy crop. All of a sudden, Mushtaq armed with carbine, Zahid armed with .12 bore gun, Wajid armed with pistol, Aslam alias Achhi armed with pistol and Sikhawat armed with repeater came on the shop in a car and inquired about Abid. Someone present on the shop told them that he (Abid) had gone to irrigate the paddy crop. On hearing noise, complainant and Khizar Hayat came out of the house with a tube light. The accused persons went towards Square No. 21, Killa No. 902. Complainant along with her son Javed and Khizar Hayat followed them. The accused persons caught hold of Abid and fell down on the ground. Wajid, Aslam and Sikhawat armed with fire-arms started to beat Abid with the butt blows of their weapons. Mushtaq (appellant) made a fire with carbine which landed on the back lower and right side of Abid Hussain who fell on the ground. The accused persons fled away from the spot. The complainant's side took Abid in injured condition to Pir Maha l Hospital from where he was referred to DHQ Hospital Toba Tek Singh and because of his precarious condition he was further referred to Allied Hospital, Faisalabad and on the way to Allied Hospital, Faisalabad he succumbed to the injuries. Motive behind the occurrence was that a quarrel had taken place between Abid Hussain and Mushtaq etc for tethering cattle beneath the trees. Abid Hussain had filed a civil suit before the civil Court regarding the said matter . Moreover 2/3 days prior to the incident a quarrel took place between wife of Mushtaq (appellant) and Abid Hussain deceased on the issue of fastening cattle under the threes and due to the said grudge the accused persons committed his murder .
Being dis-satisfied with the investigation conducted by the police, Mst. Mumtaz Bibi, complainant instituted a private complaint titled as " Mst. Mumtaz Bibi vs. Mushtaq etc.", almost on the same facts as narrated in the FIR.
3. After recording of cursory evidence in the present case, the appellant and his co-accused Muhammad Aslam alias Affi, Muhammad Zahid and Shabbir alias Shabbu 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, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as four witnesses whereas seven were examined as Court witnesses. Statements of the appellant and his co-convict under Section 342 of the Code of Criminal Procedure were recorded, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellant did not opt to 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-convict, as detailed above. Hence this appeal and murder reference.
4. Arguments heard, record perused.
5. The occurrence in this case, as per prosecution, took place on the intervening night of 21st and 22nd of July, 2013 at about 10:00 p.m. whereas the matter was reported to the police on the following day at 8:00 a.m. The distance between, police station and the place of occurrence is nine kilometers. There is a delay of about ten 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 both the witnesses of ocular account namely Mst. Mumtaz Bibi, complainant (PW.1) and Khizar hayat (PW.2) did not utter even a single word about the above said delay .
Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks, volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain vs. The State " (2019 SCMR 274).
6. Ocular account in this case consists of Mst. Mumtaz Bibi, complainant (PW.1) and Khizar Hayat (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 presence of 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. The story , of prosecution qua arrival of accused persons on the shop of Javed son of complainant and thereafter going towards the fields where Abid (deceased) was irrigating the paddy crop is highly improbable and does not appeal to a prudent mind. The conduct of both the witnesses of ocular account qua following the accused persons for a distance of 2/3 miles without giving any inform ation to the police is also highly questionable. The inordinate delay in the FIR also casts doubt about their presence on the spot at the time of incident. In the FIR as well as before the learned trial Court it was the case of prosecution that soon after the incident the complainant's side took. Abid in injured condition to Pir Mahal Hospital from where he was referred to DHQ Hospital Toba Tek Singh and because of his precarious condition he was further 'referred to Allied Hospital, Faisalabad and on the way to Allied Hospital, Faisalabad he succumbed to the injuries but no MLC of the injured issued by the above said hospitals was produced by the prosecution during the trial. In the FIR as well as before the learned trial Court it was the case of prosecution that Mushtaq (appellant) caus ed firearm injuries with Carbine on the person of Abid (deceased) but nothing was recovered from the appellant during the course of investigation.
Moreover , the occurrence allegedly took place at night time and both the eye-witnesses saw the incident in torch light but no torch was taken into posse ssion by the police during the course of investigation. I have, further observed that both the witnesses of ocular account were chance witnesses because the occurrence in this case had taken place far away from their houses. Before the learned trial Court they have not given any plausible reason for their presence on the spot at the time of incident. Therefore, I hold that all the above said PWs were chance witnesses. Therefore, I Hold that the evidence furnished by these PWs is shaky in nature and cannot be relied, upon by maintaining the conviction of the appellant.
7. 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. Shabhir Ahmad and others " (2016 SCMR 1605 ).
8. As far as the defence plea taken by the appellant in her 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.
9. I 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 Abram versus The State " (2009 SCMR 230 ).
10. For the foregoing reasons, the appeal in hand filed by Mushtaq Ahmad (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 23.05.2016 passed by the learned Addl. Sessions Judge, Pir Mahal are set aside and the appellant is acquitte d of the charge levelled against him while extending him benefit, of doubt.
Mushtaq Ahmad, appellant is, in jail. He shall be released forthwith if not required to be detained in any other case.
11. In view of above discussion, Crl. PSLA No. 286 of 2016 filed by Mst. Mumtaz Bibi complainant against the acquittal of appellant and his co-accus ed in private complaint and Crl. Revision No. 1996 of 2016 filed by complainant for enhancement of sentence of appellant from life imprisonment to death having no merits are dismissed.