RAJA SHAHID MEHMOOD ABBASI, J.---Through this single judgment, we intend to decide Criminal Appeal No.58364-.I of 2017 filed by Tariq Ali appellant against his conviction and sentence along with reference under section 374, Cr.P.C. sent by learned trial court for confirmation or otherwise of the sentence of death of the appellant, numbered as Murder Reference No.244 of 2017 , as both these matters have originated from the judgment dated 04.04.2017, handed down by learned Additional Sessions Judg e, Lahore, in case FIR No.901 dated 30-09-2014, registered under section 302, P.P.C., at Police Station Shandra Town, Lahore, whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to death with the direction to pay an amount of Rs.5,00,000/- as compensation to the legal heirs of Mst. Fozia Bibi deceased or in default thereof to undergo six months S.I.
2. The prosecution story set' forth in FIR (Ex.P A/2) by Liaqat Ali, complainant (PW.1) is that he was a labourer having three sons and four daughters, out of whom one son and three daughters were married. In the year 2001, his daughter Mst. Fozia Bibi was married with Tariq Ali alias Baoo, resident of Mohallah Hakim Ghari Sharaqpur Sharif and the spouses were blessed with three children, but Tariq Ali used to beat Mst. Fozia Bibi and there remained quarrel between them, however , the complainant ignored the matter in order to rehabilitate his daughter .
Ultimately Tariq Ali divorced Mst. Fozia Bibi by keeping two elder sons Nazir and Qaiser with him but handed over one son Asim to Mst. Fozia Bibi. On 30-09-2014, Mst. Fozia Bibi and her son went to see the other daughter of complainant namely Nazia at Haji Kot Shandra as she was sick. After a short while, the complainant, his brother Rehmat Ali and his brother-in-law Iftikhar Ahmad also came at Haji Kot to see his ailing daughter Nazia. When they reached at Chowk Shandra, they saw Mst. Fozia Bibi standing there in the company of her ex-husband Tariq Ali.
Both Mst.Fozia Bibi and Tariq Ali turned towards Tomb of Noor Jahan Shandra, who were followed by the complainant and his companions and when reached in Noor Jahan Tomb Park, they kept on seeing them while hiding themselves. At about 7:30 p.m. they heard hue and cry upon which they attracted to the scene of occurrence and saw that accused Tariq Ali was inflicting repeated churri blows to Mst.Fozia Bibi. On hue and cry of the complainant party , the accused took to his heels while waiving churri. The complainant attended his daughter , who was smeared in blood, having blows on different parts of her body . They tried to handle her but she succumbed to the injuries.
3. After completion of investigation, report under section 173, Cr .P.C. was prepared and submitted before the court.
4. On indictment, the appellant pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as fourteen vitnesses before the trial court. Liaqat Ali, complainant (PW.1) and Iftikhar Ahmad (PW.2) furnished eye-witness account. Muhammad Sarfraz 23482/C (PW.5) testified about the recovery of churri at the instance of the appellant vide recovery memo (Ex. PD) . Amjad Iqbal , S.I. (PW.12) testified about various steps taken by him during the investigation of this case. Medical evidence was furnished by lady Doctor Mansoora Mirza (PW.10), who conducted autopsy on the dead body of Mst. Fozia Bibi deceased vide postmortem report (Ex.PF), whereby she noted the following injuries:--
1. A wound complex of 03 incised wound present on right side front of neck on right side front of neck in an area (10 x 15) cm. the injury had clean cut margins with minimum size (3x1) cm and (10 x 5) cm maximum size. All the right sided blood vessels, esophagus and trachea were cut under this injury .
2. A wound complex of three inside woun d with clean cut margins and edges prese nt on left side front of neck with an area 11 x 6 cm, minimum size 2 x 1 cm maximum size 11 x 2.5 cm involving left side mandible, left cheek injury this injury is muscle deep.
3. An incised wound with clean cut margins and edges 1.5 x 5 cm about left upper lip (skin deep).
4. A wound complex of ten multiple wound in a area of 25 x 35 cm present on front of whole abdomen with minimum size 2 x 1.5 cm upto 2.5 x 4 CM with loops of intestines coming out of one of the wound or left side of abdomen. On exploration mesentery lever and right 8th rib on front are damaged and right seven intercostal space muscles are bruised.
A wound complex of six wounds all clean cut margin and edges present on left upper back and outer aspect of left chest in a area of 11 x 22 cm including back of left shoulder 10 cm left of midline 19 cm above left iliac crest measuring minimum 0.5 x 1.5 cm upto maximum 4.5 x 2 cm all are muscle deep.
6. A wound complex of 4 incised wounds with clean cut margins in an area of 16 x 10 cm present on the middle 1/3 of back 11 cm above coccyx and 24 cm below nap of neck, minimum 0.5 x 2.5 cm upto maximum .75 x 3 cm (injury was muscle deep).
7 A wound complex of 7 incised wounds with clean cut margins in an area of 25 x 17 cm on outer aspect of left buttock and thigh 14 cm above left knee joint, 12 cm left of mid line, minimum 2 x 1 cm upto maximum 4 x 2 cm (injury is muscle deep).
8. An incised wound measuring 0.5 x 2.5 cm on right buttock 7 cm right of midline (muscle deep).
9. An abraded wound 3 x 1 cm on front of left shoulder , 3 cm below tip of left shoulder (skin deep).
10. A wound complex of five wounds on front of left shoulder in an area of 7 x 3 cm minimum 0.5 x 01 cm upto 1 x 1.5 cm all with clean cut margins.
11 . A wound complex on left arm inner side with four incised wounds 4 cm below axilla left an area on 7 x 2.5 cm with minimum 0.7 x 0.7 cm upto 2 x 1.5 cm.
12. Six multiple incise wound on front of left hand in an area 8 x 6 cm.
13. Two incised on front of inner side of right arm minimum 2.5 x 1 cm upto maximum 5 x 2 cm with clean cut margin.
14. Six multiple incises wounds in front of right hand in an area on 9 x 3 cm with clean cut margins.
15. A bruised area 8 x 5 cm on front of right forearm 3 cm below right elbow joint.
16. A bruised area 3.5 x 3 cm inner side right arm 4 cm above right elbow joint.
The doctor opined that all the injuries were ante-mortem; injuries Nos.1 to 14 were caused by sharp edge weapon and injuries No.15 and 16 were caused by blunt means. The cause of death was due to injury to right sided vessels of neck under injury No.1 leading to profuse hemorrhage, shock and death and that was sufficient to cause death in ordinary course of nature. Duration between the injuries and death was immediate and between death and postmortem examination was 36 to 42 hours.
The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up PWs Rehmat Ali and Rashid Shafique 115783/C being unnecessary and closed its evidence after tendering the reports (Ex.PN and Ex.PO) of the Punjab Forensic Science Agency .
5. The appellant in his statement under section 342, Cr.P.C. professed his innocence and pleaded false implication in the case. While answering to the quest ion, "why this case was registered against you and why the PWs deposed against you ?" he stated as under:- " I got married with Fozia deceased daughter of the complainant Liaqat and later on I divorced her. During the period of marriage deceased Fozia Bibi developed her relations with one Farooq Rana and she wanted to get marry with Farooq Rana. On 20-05-2014 an lqrar Nama was written between me and Liaqat Ali father of deceased Fozia Bibi, which was witnessed by Muhammad Arty; Fozia Bibi, Zahid Ali, Haji Sadaqat Ali and Sheikh Bisal Munir .
Deceased and her parents compelled me to divorce her. Due to this reason on 02-06-2014 I sent her first notice of divorce, second notice of divorce was sent on 05.07.2014 and third notice of divorce was sent on 23-07-2017. Due to this reason this false case has been lodged against me by the complainant and only Liaqat Ali father of the deceased Fozia and Iftikhar Ahmad is real maternal uncle of the deceased Fozia and brother in law of the complainant Liaqat Ali. Due to this reason witnesses have falsely deposed against me."
The appellant did not opt to record his statement under section 340(2), Cr.P.C. however , he produced certain documents i.e. Iqrarnama (Ex. PD), copies of first notice of divorce (Mark-A), second notice of divorce (Mark-B) and third notice of divorce (Mark-C).
6. At the conclusion of trial, learned trial court found the appellant guilty of the charge; convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected murder reference.
7. Learned counsel appearing on behalf of the appellant contends that the appellant has been maliciously involved in this case due to erratic guess work and malicious intention of the complainant party; that postmortem examination on the dead body of the deceased was conducted with considerable delay , which proved that the matter was reported to the police after due deliberation and consultation. Goes on to maintain that the prosecution has miserably failed to substantiate the factum of accusation by producing any worthy of credence evidence which aspect of the matter went unnoticed, causing serious prejudice against the appellant; that the so-called eye- witnesses were related inter se and were interested witnesses, who were nothing but chance witnesses because they could not advance any plausible justification for their presence at the spot at relevant time; that medical evidence was not in consonance with ocular version, which aspect of the matter has not been dilated upon properly; that the ocular account is full of intentional dishonest improvements and there are various glaring contradictions which have been ignored by learned trial court resulting into serious miscarriage of justice against the appellant; that the recovery of churri was planted one and the report (Ex.PO) was maneuvered from the Punjab Forensic Science Agency which otherwise is hardly helpful to the prosecution's case; that the motive is farfetched and could not be proved by the prosecut ion through any independent evidence. While concluding his arguments, learned counsel submits that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, prayed that while accepting his appeal, the appellant may be acquitted of the charge.
8. Conversely , learned Law Officer assis ted by the learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and inter alia maintains that the appellant is sole perpetrator of the offence, well-nominated in a promptly lodged FIR with specific role of inflicting repeated churri blows and committing murder of an innocent lady and the role attributed by the eye-witnesses to the appellant is fully established through the medical evidence; that the appellant was previously known to eye-witnesses, which excluded the chance of his mis-identification; that the presence of eye-witnesses at the place of occurrence is quite natural and could not be shattered during cross-examination; that the prosecution case finds further corroboration from the recovery of weapon of offence effected at the instance of appellant as well as the positive report of the Punjab Forensic Science Agency; that the prosecution has proved the motive part of the occurrence as well and its case stood proved beyond any shadow of reasonable doubt, thus, prayed that while dismissing the appeal filed by the appellant and answering the murder reference in af firmative, his sentence of death may be confirmed.
9. We have heard the arguments advanced by learned counsel for the appellant, learned counsel for the complainant as well as learned Additional Prosecutor General and have perused the record with their assistance.
10. The ill-fated lady Mst. Fozia Bibi, was the daughter of Liaqat Ali complainant (PW.1), who was brutally murdered on 30-09-2014 at about 7:30 p.m. and ostensibly the incident was reported to police by the complainant at about 8:30 p.m. whereas crime report was lodged during the same evening at 8:50 p.m. at Police Station Shandra Town, Lahore, located at a distance of 1-1/2 kilometers from the venue of incident. The prosecution has made an attempt by showing that the incident was reported to the police within just one hour, but could not offer any explanation that if the crime report was lodged with such promptitude, then why the autopsy on the dead body of the deceased was conducted with the considerable delay of forty hours after the incident. As per record, the dead body was received in the dead house on 30.09.2014 at 10:50 p.m. but the relevant documents were produced before lady Dr. Mansoora Mirza (PW10) on third day i.e. 02.10.2014 at 11:15 a.m. and thereafter the said doctor conducted autopsy at 11:30 p.m. the delay so occurred was only because the police papers were provided to the doctor at much belated stage, therefore, an adverse inference to the prose cution's case can be drawn that the intervening period of about forty hours had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were subsequently introduced as eye-witnesses of the tragic incident, otherwise there was no justification for providing police papers and conducting autopsy with such delay . In an identical situation, the Hon'ble Supreme Court of Pakistan while deciding the case of "Muhammad Ashraf v.
The State " (2012 SCMR 419) has visualized the tendency on the part of the police in showing that the FIR was got recorded with promptitude, but the Cour ts are bound to see it with distinct source. The relevant portion of the judgment is reproduced as under:- "Incident in the present case had taken place, according to the prosecution on 3-7-2003 at evening ,time and case of the prosecution is that FIR. was recorded at 9-00 p.m. without inordinate delay and on the other hand postmortem was conducted by P. W.3 Dr. Asghar Ali Hunjra on the next day i.e. 4-7-2003 at 10-00 a.m. If FIR was recorded with such a promptitude then why the postmortem was conducted with such a delay . Even otherwise, according to P. W.3 Dr. Asghar Ali Hunjra, the time between death and postmortem was 15 to 16 hours. So, the FIR was recorded with a delay and cannot be used against the appellant as a corroborative piece of evidence."
The delay in conducting postmortem examination hints towards 'a possibility that the daily diary was withheld and thereafter an ante-dated FIR was lodged, which carted serious doubt about the story narrated therein, therefore, the prosecution evidence has to be scrutinized with utmost care and caution.
11. As discussed above, Tariq Ali appellant was the ex-husband off Mst. Fozia Bibi deceased, who was nominated in this case as a sole perpetrator of the offence and in order to prove his culpability , the prosecution heavily relied on the direct evidence in the shape of eyewitness account, supporting pieces of evidence i.e. medical evidence, recovery coupled with forensic reports and the motive. Firstly we would like to assess the eye-witness account which is normally considered as a backbone of every criminal case. The eye-witness account in the present case came out from the mouths of Liaqat Ali, complainant (PW.1) and Iftikhar Ahmad (PW.2), who were real father and maternal uncle of Mst. Fozia Bibi deceased respectively . The pivotal question to be determined by this Court is to analyze as to whether they could prove their presence at the venue of incident at the time when the tragedy had taken place and whether the conduct shown by them was virtually acceptable to a human prudence. According to the prosecution version, Liaqat Ali, compla inant (PW.1), his brother Rehmat Ali (given up) and brother-in-law Iftikhar Ahmad (PW.2) had witnessed the tragedy with their own eyes and according to them, the matrimonial bindings between the appellant and the deceased had ended into separation three months prior to the occurrence, but it is very disgusting that the aforementioned so-called eye-witnesses, who claimed to have seen their close female relative Mst. Fozia Bibi (deceased) in the company of her ex-husband Tariq. Ali appellant while proceeding from Shandra Chowk towards Tomb of Noor Jahan, Shandra, kept on following them and did not at all bother to interrupt them. The story set up by the prosecution does not appeal to any prudent mind and the conduct of the complainant and other alleged eye- witnesses is quite unnatural, as after recent pronouncement of divorce, there was absolutely no occasion for Mst. Fozia B Bibi to be in the company of her ex-husband, as not much time had passed when she was divorced by him, particularly when it is not the case of the prosecution that the deceased was forcibly taken by the appellant to the crime spot. The prosecution story is absolutely silent that for what purpose the deceased had met with her ex-husband/appellant after separation and why she was present at the place of occurrence at the relevant time. If for the sake of arguments , the presence of these prosecution witnesses is admitted as claimed by them, their conduct was highly improbable and unnatural as according to their own version, they were three in numbers and all were of strong stature and physique. On the other hand, the appe llant was alone and was present at a distance of 40/45 feet and he was not armed with any lethal .weapon rather was equipped with a conventional weapon (churri) , with which he had allegedly inflicted repeated churri blows and caused 16 injuries on the body of the deceased, which definitely had consumed considerable time due to the pause in between the first injury and the last one, but the so-called eye-witnesses had neither tried to apprehend the appellant nor made any resistance to stop him from causing such a large number of injuries on the person of deceased. No prudent mind would believe that such close relatives would remain silent spectators in a situation like this because the intervention in such terrible situation was but natural to rescue the deceased but they did nothing nor made any attempt to chase the accused and apprehend him at the spot. This passive conduct of the prosecution witnesses reflects adverse to the narrated prosecution story and the unnatu ral behavior canvassed by them leads us to nothing but to infer their non- availability at the place of occurrence. Reliance is placed upon "Pathan v. The State " (2015 SCMR 315) wherein the apex Court had held as under:- "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony ..."
Keeping in view the unnatural conduct of the prosecution witnesses when real daughter of the complainant and niece of the other prosecution witnesses was being taken to the task by the assailant but no attempt whatsoever was made by them, the eye-witness account seems to be tainted and result of deliberations and consultations which cannot be given any legal credence.
12. Apart from the above, the delay of forty hours in conducting postmortem examination also indicates about the non-availability of Eye-witnesses at the scene of occurrence at the relevant time as held by the Hon'ble Supreme Court of Pakistan in the cases of "Irshad Ahmed v. The State" (2011 SCMR 1190) and "Nazeer Ahmed v. The State" (2016 SCMR 1628 ). We have further observed that both the prosecution witnesses claimed that the appellant inflicted repeated churri blows on the body of the Mst. Fozia Bibi deceased and did not cause any blunt weapon injury , but lady Doctor Mansoora Mirza (PW.10), who had conducted autopsy on the dead body of deceased Mst. Fozia Bibi, categorically stated that injuries Nos.15 and 16 were caused by blunt means. To this extent, the medical evidence appears to be in direct conflict with the ocular evidence, therefore, it is not safe to rely on the statements of alleged eye-witn esses, in the circumstances, of the case. Reliance is placed upon "Muhammad Afzal alias Abdullah and others v . The State and others" (2009 SCMR 436 ).
13. The prosecution has also failed to prove the motive part of the occurrence. No independent or substantial piece of evidence was led by the complainant to substantiate the motive part of the occur rence. Even otherwise motive is double edge weapon which can cut either side. If it may be a reason behind commission of an offence, it may equally be the reason for false implication of the accused.
14. Now the only evidence, which still remains in field is in the shape of reports of Chemical Examiner and Serologist with regard to recovery of churri (P.6) allegedly effected from the appellant during the course of investigation. The said recovery is shown to have been effected from Noor Jahan Tomb, which is an open place and accessible to general public, therefore, it straightway hits the authenticity of the report of the office Punjab Forensic Science Agency , Lahore (Ex.PO). Even otherwise it is a cardinal principle of law that the recovery is deemed to be corroborative in nature and it is used for support of direct evidence and as per dictates of justice whenever direct evidence is disbelieved it would not be safe to maintain conviction on confirmatory evidence.
Reliance is placed upon the case of Muhammad Jamil v . Muhammad Akram and others (2009 SCMR 12 ).
15. We have considered all the pros and cons of this case and have come to an 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, but in this case the prosecution remained failed to discharge its responsibility . It is also well established principle of law 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 . Reliance is placed upon "Muhammad Akram v . The State" (2009 SCMR 230 ).
16. For the foregoing reasons, Criminal Appeal ,No .583644 of 2017 filed by Tariq Ali, appellant is accepted, conviction and sentence awarded to him vide judgment dated 04-04-2017 passed by the learned trial court is set aside and he is acquitted of the charge levelled against him while extending the benefit of doubt in his favour . He shall be released forthwith if not required to be detained in any other case.
17. Murder Reference No.244 of 2017 is answered in negative and sentence of death, of Tariq Ali appella nt is not confirmed .