Shehram Sarwar Ch., J.--Sabir Hussain (appellant) was tried by the learned Addl. Sessions Judge, Chichawatni District Sahiwal in case FIR No. 337 dated 13.09.2016, offence under Sections 324 and 34, PPC (Section 302, PPC was substituted with Section 324, PPC later on) registered at Police Station Shah Kot District Sahiwal for the murder of Kazim Hussain (deceased) brother of complainant. vide judgment dated 31.03.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(h), PPC and sentenced to death, with a further direction to pay Rs. 5,00,000/- (rupees five 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. 60 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, the same are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.PD/1) registered on the statement (Ex.PD) of Mst. Naheed Bibi, complainant (PW.4) is that on 13.09.2016 at around 6.00 p.m. Kazim Hussain brother of complainant was cuming towards his house (Chak No. 27/14-L) from his land and when reached opposite Jamia Mosque, all of a sudden, Sabir Hussain (appellant) and two unknown co-accused raised lalkara that Kazim Hussain will not be spared. Sabir Hussain made a straight fire at Kazim Hussain, which landed on right side of his neck, who fell on the ground. On hue and cry of Kazim Hussain, Abdul Ghafoor and Arif attracted to the spot and saved the life of complainant's brother by beseeching the accused, who went away while extending threats of dire consequences. Motive behind the occurrence as alleged in the FIR was that sometime earlier to the incident, a quarrel took place near Jamia Mosque between khichi bradri and chadhar bradri. Kazim Hussain forbade them, upon which Sabir Hussain became enraged and due to that revenge, the appellant caused fire-arm injury to Kazim Hussain. The injured was got shifted to Civil Hospital, Chichawatni for medical aid, who succumbed to the injury later on and Section 302, PPC was substituted with Section 324, PPC.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Sabir Hussain (appellant) was summoned by the learned Addl. Sessions Judge, Chichawatni to face the trial.
Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under Section 302, PPC was framed against him on 06.12.2016, 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 29.03.2017, wherein he refuted all the prosecution allegations levelled against him and professed his innocence.
The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 840(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, as detailed above. Hence this appeal and murder reference.
4. We have heard arguments of 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 .
5. The ocular account in this case has been furnished before the learned trial Court by Mst. Naheed Bibi, complainant (PW.4) and Abdul Ghafoor (PW.5), who were closely related inter-se and to the deceased as the complainant (PW.4) was sister of deceased whereas Abdul Ghafoor (PW.5) was their paternal cousin (phuphizad), as stated by complainant during her cross-examination. It was not the case of complainant in the FIR that she was accompanying her brother (deceased) or she was present on the spot at the time'of incident rather she mentioned that her brother was coming towards his house from his landed property and when he reached near Jamia mosque situated in the chowk, the appellant along with his two unknown co-accused raised lalkara and fired at the deceased. It was further mentioned by the complainant that on hue and cry of Kazim Hussain (deceased), Abdul Ghafoor (PW.5) and Arif (since given up) arrived there, meaning thereby both the alleged PWs were not present on the spot prior to the incident or at the time, when the appellant allegedly fired at the deceased. Even the number and date of the FIR have been mentio ned in the MLC (Ex.PC) of the deceas ed (then injured), which shows consultation on the part of the prosecution. We have further noted that both the eye-witnesses while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, they were confronted with their previous state ments (Ex.PD & Ex.DB) and the improvements were brought on record.
Relevant portions of their cross-examination is reproduced hereunder: Naheed Bibi. complainant (PW .4): "I had recorded in my statement Exh.PD that I alongwith my brother Kazim were coming from the field. Confronted with Exh.PD where words myself has not been mentioned. I have also got recorde d in Exh.PD that we reached in front of the house of my maternal uncle Zahoor . Confronted with Exh.PD where it is not so recorded. I had recorded in Exh.PD that Sabar accused raised Lalkara. Confronted with Exh.PD where Lalkara has been attributed to two unknown accused persons.
I had recorded in Exh.PD that accused Sabar was quarreling with women of Chadhar Bradari. Confronted with Exh.PD where quarreling of Sabar accused with women has not been mentioned."
Abdul Ghafoor (PW . 5): "I had recorded in my statement before police that I alongwith Arif was present in. the Chowk. Confronted with Exh.DB where it is not so recorded. I got recorded in my statement before police that Kazim was accompanied by Naheed Bibi his sister . Confronted with Exh.DB where it is not so recorded. I had recorded in my statement that Kazim and Naheed reached in front of house of Zahoor Hussain. Confronted with Exh.DB where it is not so recorded. I had recorded in my statement that Kazim took turn. Confronted with Exh.DB where it is not so recorded.
I had recorded in my statement that I, Arif and Naheed attended Kazim Hussain deceased. Confronted with Exh.DB where attending of deceased by Naheed Bibi is not so recorded. I had recorded that Sabar accused raised Lalkara.
Confronted with Exh.DB where it has been mentioned that Sabar Hussain accused alongwith two unknown accused raised Lalkara. Sabar accused was only present at the time of occurrence. I had recorded in my statement that two hours prior to the occurrence Sabar accused was quarrelling with Chadar bradari. Confronted with Exh.DB where quarrelling of women with women two hours prior to the occurrence is not mentioned but it is mentioned that Chadhar Bradari and Khichi Bradari were quarrelling with each other ...."
It is well settled by now that when a witness improves his statement to strengthe n the prosecution case and the moment it is concluded that the improvement was made deliberately and with malafide intention the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as "Muhammad Rafique and others versus The State and others "
(2010 SCMR 385) and "Syed Saeed Muhammad Shah and another versus The State " (1993 SCMR 550). Before the learned trial Court, the eye-witnesses have utterly failed to establish their presence on the place of occurrence at relevant time. It is in this context that the testimony of a witness ordinarily is not accepted unless justifiable reasons are shown to establish his/her presence at the crime scene at relevant time. In normal course, the presumption under the law would operate about his/her absence from the crime spot. The testimony of witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence at the crime spot are put forth, when the occurr ence took .place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
6. The motive behind the occurrence as alleged in the FIR was that sometime earlier to the incident, a quarrel took place near Jamia Mosque between khich i bradri and chadhar bradri. Kazim Hussain forbade them, upon which Sabir Hussain became enraged and due to that revenge, the appellant committed murder of deceased. Whereas before the learned trial Court, the complainant stated with regard to the motive that two hours prior to the occurrence, Sabir Hussain (appellant) was quarrelling with women of Chadar bradr i and her brother Kazim Hussain (deceased) forbade him and due to that grudge, the appellant committed his murder . During cross-examination, the complainant stated that at the time of motive quarrel, so many people were present there. Admittedly the motive incident took place between khichi and chadhar bradri but none of the person from either bradri or the people gathered at that time was associated during the course of investigation. We have also observed that no independent witness qua motive was produced before the learned trial Court at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
7. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained un-witnessed and thus the medical evidence could not point an accusing finger towards the appellant. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others " (2016 SCMR 1605 ).
8. So far as alleged recovery of .30 bore pistol (P.1) at the instance of appellant which was taken into possession through recovery memo. (Ex.PB) is concerned, the same is immaterial becaus e the prosecution has failed to associate any independent witness of the locality as admitted by Abid Sagheer , Inspector (PW.6) during cross- examination and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard.
Reliance may be placed on case law titled as " Muhammad Ismail and others vs. The State " (2017 SCMR 898 ).
9. 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 is exculpatory in nature.
10. 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 this regard, reliance may be placed on the case law reported as " Muhammad Akram versus The State " (2009 SCMR 230 ).
11. For the foregoing reasons, Criminal Appeal No. 500-J of 2018 filed by Sabir Hussain (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 31.03.2017 passed by the learned Addl. Sessions Judge, Chichawatni 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.
12. Murder Reference No. 60 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Sabir Hussain (convict) is NOT CONFIRMED.