Shehram Sarwar Ch., J.--Niaz Ahmad (appellant) along with his co-accused namely Alam Shair , Allah Rakha and Aman Ullah alias Dosa was tried by the learned Addl. Sessions Judge, Tandlianwala District Faisalabad in case FIR No. 200 dated 14.04.2015, offence under Sections 302 and 34 PPC registered at Police Station Sadar Tandlianwala District Faisalabad for the murder of Mst. Irshad Bibi (deceased ) mother of complainant. Vide judgment dated 03.05.2016 passed by the learned Addl. Sessions Judge, Tandli anwala, the appellant has been convicted under Section 302(b) PPC and sentenced to death, with a further -direction to pay Rs. 2,00,000/- (rupees two lakh only) as compensation under Section 544-A of the Code of Criminal Procedure to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. Through the same judgment, Alam Shair , Allah Rakha and Aman Ullah alias Dosa, co-accused of the appellant were acquitted of the charge by extending them benefit of doubt and no appeal against their acquittal was filed either by the State or the complainant, as conceded by learned Deputy Prosecutor General and learned counsel for the complainant.
Assailing the above conviction and sente nce, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 403 of 2016 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374, 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.PJ) registered on the written application (Ex.P A) of Shafqat Hayat, complainant (PW.1) is that on 14.04.2015 at around 10.30 a.m. he (complainant) along with Muhammad Shahzad and Bashir Ahmad was present on thoroughfare in front of his baithak. All of a sudden, Niaz Ahmad (appellant), Allah Rakha both armed with 30 bore pistols, Alam Shair armed with pistol and Aman Ullah alias Dosa armed with carbine, in consultation with each other came there while raising lalkaras. Alam Shair fired at the complainant which went amiss. Niaz Ahmad (appellant) raise d lalkara to teach them a lesson for the quarrel took place a few months ago. Mother of complainant came out of the house, on the door of baithak. The appellant made a straight fire with 30 bore pistol on Mst.Irshad Bibi mother of complainant which landed on her forehead, who succumbed to the injury on the spot. Motive behind the occurrence as alleged in the FIR was that about eight months back, Niaz Ahmad etc. caused injuries to Mst. Basra Bibi wife of complainant and Yousaf cousin of complainant moved an application for registration of case. Owing to that grudge, the accused committed this incident.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Niaz Ahmad (appellant) and his co-accused . Alam Shair , Allah Rakha and Aman Ullah alias Dosa were summoned by the learned Addl. Sessions Judge, Tandlianwala 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 under Section 302 read with Section 34, PPC was framed against them on 18.02.2016, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure were recorded on 22.04.2016, wherein they refuted all the allegations of prosecution and professed their innocence. In answer to a question as to why this case against him and why the prosecution witnesses had deposed against him, the appellant stated as under: "I am innocent. Nothing happened as narrated by the complainant. Time, place and manner of alleged occurrence is highly doubtful. All the private PWs are close relatives and jointly inimical towards me and my alleged co- accused persons. For this reason, they deposed against me and my alleged co-accused falsely . The witnesses have made dishonest major improvements in their statements during trial.
Truth is that on 14.04.2015, hot words were exchanged in between Shahzad s/o Aman Ullah (real son of the alleged accused) and Ali Akbar , Shfaqat, Tariq and Nawaz etc on the basis of previous litigation in between the parties (this fact was confirmed by PW.7). On the hearing of said quarrel, deceased Mst.lrshad Bibi came out from her house to rescue both the parties, where Ali Akbar who was armed with pistol .30 bore, fired which accidentally hit the deceased. This is also important that murder of Irshad Bibi (an old woman) caters no useful purpose to me.
The complainant party accidentally killed Irshad Bibi and afterwards spread a wider net on us to fulfill their grudge of previous litigation."
The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) Code of Criminal Procedure nor did he produce any defence evidence. However , 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.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the matter was reported to the police with due delibe ration and consultation; that the presence of Shafqat Hayat, complainant (PW.1), Bashir Ahmad (PW.2) and Muha mmad Shahzad (PW.3), alleged witnesses of ocular account is doubtful in nature and they have not given any plausible reason for their presence on the spot at relevant time; that accordin g to scaled site plan (Ex.PH), the appellan t fired at the deceased from the range of about 80 feet but the postmortem examination report (Ex.PE & PE/1) shows burning around injury No. 1, which belies the story of prosecution; that the ocular account is in direct conflict with the medical evidence; that a vague motive was set up by the prosecution in the FIR and brought before the learned trial Court, which has not been proved; that alleged recovery of 30 bore pistol (P.1) at the instance of the appellant is inconsequential; that viewing from all angles, prosecution case was doubtful nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that Shafqat Hayat, complainant (PW.1), Bashir Ahmad (PW.2) and Muhammad Shahzad (PW.3) have reasonably explained their presence on the spot at relevant time which is quite natural and 'probable; that the eyewitnesses have no enmity with the appellant to falsely implicate him in this case; that a specific motive was set out in the FIR and brought before the learned trial Court, which has been proved against the appellant; that ocular account is fully supported by medical evidence; that prosecution case is further corroborated by the recovery of 30 bore pistol (P.1) at the instance of the appellant and the report of Punjab Forensic Science Agency (Ex.PN); that the version of the appellant is nothing but an afterthought, therefore, the appeal filed by the appellant merits dismissal.
6. 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 .
7. The ocular account in this case has been furnished before the learned trial Court by Shafqat Hayat, complainant (PW.1), Bashir Ahmad (PW.2) and Muhammad Shahzad (PW.3), who are closely related to each other and to the deceased as the complainant is son of deceased whereas Bashir Ahmad (PW.2) and Muhammad Shahzad (PW.3) are maternal uncle and maternal cousin of the complainant, respectively . All the PWs were cultivators by profession and it is on record through cross examination of Muhammad Shahzad (PW.3) that they were self cultivators, as such, their presence on the spot at relevant time becomes doubtful. We have further observed that in the scaled site plan (Ex.PH) prepared by Mehmood Akbar Nizami, Draftsman (PW.5) on the direction of I.O. and pointation of complainant as well as PWs, the appellant was shown to have fired at the decease d from a distance of eighty feet but the said fact has been negated by Dr. Madeeha Umar (PW.4), who had noted burning around injury No. 1 of deceased meaning thereby the deceased received firearm injury from a close range. Under the circumstances, we are of the view that the witnesses of ocular account were not present on the spot at the time of incident and have not witnessed the occurrence.
8. Motive behind the occurrence as alleged by the prosecution was to the effect that about eight months prior to the incident, Niaz Ahmad etc. caused injuries to Mst. Basra Bibi wife of complainant and her maternal uncle Nawaz which resulted in fracture of his leg. Yousaf cousin of complainant got registered case Bearing FIR No. 458/2014 against the accused. The complainant stated before the learned 't rial Court in his examination-in-chief that he used to pursue the above said case along with said Yousaf and due to that grudg e, the accused committed this occurrence. The material witnesses with regard to the motive were wife of complainant Mst. Basra Bibi and cousin Yousaf but they were not produced before the police during the course of investigation or brought in the witness box at trial. Previous enmity exists between the parties. It is well established by now that motive is a double edged weapon because if it could be a reason for commission of the crime, then at the sam,,- time, it could prompt the complainant's side for false implication of an accused, therefore, the motive alone can neither prove nor disprove a crime and the same has to be weighed with the other attending circumstances of the case. So we are of the view that the prosecution has failed to prove the motive part of the occurrence.
9. 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 ).
10. So far as alleged recovery of 30 bore pistol (P.1) at the instance of appellant is concerned which was taken into possession vide recovery memo Ex.PB, is concerned, the same is inconsequential for the reason that the report of Punjab Forensic Science Agency (Ex.PN) is simply to the effect that the pistol was in mechanical operating condition.
11. So far as version of the appellant taken by him in his statement recorded 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.
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 the case of "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. 1008 of 2016 filed by Niaz Ahmad (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 03.05.2016 passed by the learned Addl.
Sessions Judge, Tandlianwala 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.
14. Murder Reference No. 403 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Niaz Ahmad (convict) is NOT CONFIRMED.