MALIK SHAHZAD AHMAD KHAN, J. This judgment shall dispose of Jail Appeal No. 173747 of 2018 filed by Adnan (appellant) against his conviction and sentence and Murder Reference No. 44 of 2018 sent by the learned trial Court for confirmation or otherwise of the sentence of Death awarded to Adnan (appellant) by the learned trial, Court. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 25.01.2018 passed by the learned Additional Sessions Judge, Lahore.
2. Adnan (appellant) was tried in case FIR No. 1133 dated 18.11.2011 registered at Police Station Ichra District Lahore in respect of offences under sections 302/109/34, P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 25.01.2018 has convicted and sentenced the appellant as under:- Under section 302(6), P.P.C. to 'Death as tazir' for committing Qatl-i-amd of Ahsan Ali (deceased).
He was also ordered to pay Rs.500,000/- (Rupees five hundred thousand only) to the legal heirs of the deceased as compensation under section 544-A of Cr.P.C. and in default thereof to undergo simple imprisonment for six months.
3. Brief facts of the case as given by the complainant Mian Muhammad Asif (PW-1) in his complaint (Exh.PA) on the basis of which formal FIR (Exh.PA/3) was chalked out, are that he (complainant) was resident of Faisal Street Kareem Block Ravi Road Lahore. On 18.11.2011 at about 08:00 a.m., he (complainant) and his younger brother, namely, Muhammad Afzal (given up PW) went to see their nephew, namely, Ahsan Ali (deceased) at Munir Shaheed Road, Ichra (Lahore). Ahsan Ali (deceased) wanted to marry with ex-wife of Adnan (appellant), namely, Mst. Ayesha (PW-2) who was also present in the said house at that time and they (complainant party) were discussing about the marriage. In the meanwhile, some one knocked at the door which was opened by Ahsan Ali (deceased) and Adnan (appellant), who was maternal uncle (mamoon) of Ahsan Ali (deceased) forcibly trespassed into the house, whereas, an unknown accused kept on standing outside the house. Adnan (appellant) then gave a 'churri' blow which landed at the abdomen of Ahsan Ali (deceased) due to which intestines of Ahsan Ali (deceased) came out who fell on the ground and succumbed to the injuries at the spot. Adnan (appellant) fled away from the spot while brandishing his 'churri'.
Motive behind the occurrence was that there was dispute of property between Ahsan Ali (deceased) and his mother as mother of Ahsan Ali (deceased), namely, Mst. Nazia contracted second marriage with some one. The complainant party had suspicion that Adnan (appellant), who is brother of Mst. Nazia (mother of Ahsan Ali deceased) had committed the murder of Ahsan Ali on the abetment of Mst. Nazia.
4. The appellant Adnan was arrested in this case on 27.11.2011 by Rana Naseem Ahmad, Sub- Inspector (PW-12). On 04.12.2011 Adnan appellant made disclosure and led to the recovery of 'churri'
(P-2) which was taken into possession vide recovery memo (Exh.PC). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 25.06.2012 to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced twelve witnesses during the trial and also produced documentary evidence in the shape of (Exh.PA to Exh.PO).
6. The statement of the appellant under section 342 of Cr.P.C. was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you" the appellant Adnan replied as under:- "The complainant of this case Mian Muhammad Asif PW-1 and Rauf Ahmad PW-4 are brothers of my late brother in law Arif Ali/father of Ahsan Ali deceased. Late Arif Ali had strained relations with his brothers and they were not on speaking terms in the same way the brothers of Arif Ali were also inimical to Mst. Nazia, wife/widow of Arif Ali (who is my real sister) me and my family. 1 and my sister Mst. Nazia/mother of deceased Ahsan were involved and nominated falsely in this case due to enmity. Mst. Nazia was found innocent in the investigation of Police in this case. After the occurrence the complainant and his brothers Mian Rauf Ahmad PW-4 and Mian Muhammad Afzal PW submitted an application to the President Anjuman-i-tajran Hall Road, Lahore on 28.11.2011 stating therein "that a few days ago they received an information from the police station about the murder of their nephew Ahsan Ali son of Arif Ali... ..." and they requested to distribute the property of Arif Ali in his children according to law etc. Photo copy of this application is produced as Mark A. In reply to this the children of Arif Ali and his widow dis-agreed the proposal of complainant and his brothers and also disclosed the behavior of complainant and his brothers.
Copy of their application is being produced as Mark B. Application Mark A itself reveals that the complainant and his brothers were informed by the Police Station about the murder of my nephew Ahsan Ali.
The marriage ceremony of my elder brother Nasir Ali was solemnized from 17.11.2011 to 19.11.2011 in Gujranwala. 1 participated in all the functions of marriage of my younger brother. Mst. Nazia the mother, Hassan Arif and Mohsin Arif the brothers and Mst. Fatima Arif the sister of Ahsan Ali deceased were also present in Gufranwala to take part in the marriage ceremony of my brother.
On the night of 17.11,2011 the function of Mehndi was solemnized which remained till late night. On 18.11.2012 there was Barat of my brother. I attended the Barat and then on 19.11.2011 there was Walima. 1 attended all the functions which were celebrated simply due to the death of Ahsan Ali.
On the same day I came Lahore to take part in the funeral of Ahsan Ali, where I surrendered myself before the police to prove my innocence. I remained in illegal custody of police till 27.11.2011. On the day of occurrence I was in Gujranwala. I produce the photographs of marriage Mark C, D and E.
Photo copy of Nikah Nama of my brother Nasir Ali is Mark F and photo copy of Invitation Card Mark G.
Mst. Ayesha Akram PW-2 is my ex-wife to whom I married on 23.08.2011 and divorced her on her request on 11.11.2011. I produce attested copy of Nikah Nama Ex. DD, photocopy of agreement for surrender of dower Mark H, photocopy of Divorce Deed Mark I. On 17.11.2011 Mst. Nazia the mother of Ahsan Ali along with her two sons Hassan Arif Mohsin Arif and one daughter Mst. Fatima Arif went Gujranwala to attend the marriage ceremony of her brother Nasir Ali. The elder son of Mst. Nazia, Ahsan Ali deceased remained alone in his house at Lahore. Therefore, Mst. Ayesha PW-2 taking the advantage of his aloneness went Lahore in the house of Ahsan and stayed at night with Ahsan at his house. Mst. Ayesha asked the Ahsan deceased to marry her but Ahsan deceased refused to accept her proposal therefore, they had a quarrel between them and resultantly Mst. Ayesha PW- 2 sobbed Ahsan Ali to death. Thereafter, in connivance with the complainant and his brothers who are inimical to Mst. Nazia and her family, Mst. Ayesha PW-2 my ex-wife involved me falsely in this case to save her skin."
The appellant Adnan did not opt to make his statement on oath as envisaged under section 340(2), Cr.P.C. However, he examined Abdul Samad as (DW-1) and produced documentary evidence in the shape of (Exh.DA to Exh.DD) and Mark-A to Mark-I in his defence evidence.
The learned trial Court vide its judgment dated 25.01.2018 found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
7. As per police report, Mian Muhammad Asif complainant has duly been served with the notice of this case but no one appeared on his behalf despite repeated calls. Even otherwise, it is a State case and learned Deputy Prosecutor General for the State is ready to argue the same therefore, we proceed to decide the instant case after hearing the arguments of learned counsel for the appellant, learned Deputy Prosecutor General for the State and perusing the record.
8. It is contended by learned counsel for the appellant that the prosecution eye-witnesses are chances witnesses; that the evidence of prosecution eye-witnesses is in conflict with the medical evidence; that 'churri' (P-2) was deposited in the office of PFSA, Lahore with the delay of 01 month and 10 days from the occurrence and during the abovementioned period, blood must have disintegrated therefore, prosecution evidence qua the recovery of abovementioned 'churri' And positive report of PFSA, Lahore (Exh.PN) is inconsequential; that motive has also not been proved in this case; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charge.
9. On the other hand, it is contended by learned Deputy Prosecutor General for the State that the prosecution has proved its case against the appellant beyond the shadow of any doubt therefore, he was rightly convicted and sentenced by the learned trial Court; that the prosecution case against the appellant has substantially been supported by the medical evidence and corroborated by the recovery of 'churri' (P-2), as well as, positive report of PFSA, Lahore (Exh.PN); that the motive was also proved in this case through reliable evidence of the prosecution witnesses; that there is no substance in the appeal filed by the appellant therefore, the same may be dismissed and murder reference be answered in the affirmative.
10. Arguments heard. Record perused.
11. Prosecution case as set forth in the complaint (Exh.PA) on the basis of which formal FIR (Exh.PA/3) was chalked out, has already been reproduced in paragraph No.3 of this judgment therefore, there is no need to repeat the same.
12. The occurrence in this case took place on 18.11.2011 at 08:20 a.m., and as per contents of the FIR (Exh.PA/3), the matter was reported to the police and formal FIR was lodged on the same day at 09:30 a.m., but we have noted that post-mortem examination on the dead body of Ahsan Ali deceased was conducted on the next day i.e. on 19.11.2011 at 05:45 p.m., and as such, there is delay of 33 hours and 25 minutes from the occurrence in conducting the post-mortem examination on the dead body of Ahsan Ali deceased. Dr. Burhan Ashrarf (PW-10) stated that dead body was brought to the department on 18.11.2011 at 11:30 a.m., but the police documents were received on 19.11.2011 at 05:30 p.m. It is therefore, evident that the police papers were not complete for conducting the postmortem examination on the dead body of Ahsan Ali deceased and the abovementioned delay in preparation of police papers and conducting the postmortem examination on the dead body of Ahsan Ali deceased is suggestive of the fact that the said delay was consumed in procuring the attendance of fake eye-witnesses. In the case of 'Muhammad Ilyas v. Muhammad Abid alias Billa and others' (2017 SCMR 54), the Apex Court of the country was pleased to observe that delay of 09 hours in conducting the postmortem examination suggests that prosecution eye-witnesses were not present at the spot at the time of occurrence therefore, the said delay was used in procuring the attendance of fake eye-witnesses, Relevant part of the said judgment at page No. 55 reads as under:- "2. ...Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution. ..."
Similarly, in the case of "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327); the Hon'ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time Similar view was taken by the Apex Court of the country in the cases reported as "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192),"Zafar v. The State and others" (2018 SCMR 326) and "Muhammad Ashraf v. The State" (2012 SCMR 419).
13. Ocular account of the prosecution was furnished by Mian Muhammad Asif (PW1) and Mst.
Ayesha (PW-2). The occurrence in this case took place inside the house of Ahsan Ali deceased.
Both the abovementioned eye-witnesses are admittedly not residents of the house, I where the occurrence took place. As mentioned earlier, the occurrence took place during the Winter Season i.e. on 18.11.2011 at 08:20 a.m. House of occurrence is situated at Munir Shaheed Road, Ichra, Lahore.
Mian Muhammad Asif complainant (PW-1) is resident of Faisal Street Kareem Park Ravi Road, Lahore and Mst. Ayesha (PW-2) was resident of Islampura Gujranwala. Both the eye-witnesses of the prosecution stated that they came to the house of Ahsan Ali deceased on the day of occurrence as Ahsan Ali deceased wanted to marry Mst. Ayesha (PW-2) and Mian Muhammad Asif (PW-1) along with his brother Muhammad Afzal (given up PW) came to the house of the deceased in order to discuss the issue of said marriage. Admittedly Mst. Ayesha (PW-2) is the ex-wife of Adnan appellant. It is also an admitted fact that Adnan appellant is real maternal uncle ("Mamoon") of Ahsan Ali deceased. Under the circumstances, the visit of both the abovementioned eye-witnesses to the house of the deceased on the day of occurrence for the purpose mentioned above (marriage of the deceased with his real Mumani), does not appeal to a prudent mind. We have further noted that the complainant was paternal uncle of Ahsan Ali deceased. Apart from the complainant, there were also other blood relations and family members of Ahsan Ali deceased but they had gone to attend a marriage ceremony at Gujranwala on the day of occurrence and this fact was brought on the record during the cross-examination of Mian Muhammad Asif (PW-1). It was also brought on record during the cross-examination of Mst. Ayesha (PW-2) that two other brothers of Ahsan Ali deceased were also residing in the house of occurrence. Relevant parts of the statements of Mian Muhammad Asif (PW-1) and Mst. Ayesha (PW-2) in this respect read as under:- Mian Muhammad Asif (PW-1).
"When I reached in the house of Ahsan on the day of occurrence, I asked him about his other family members and he replied that he went to Gujranwala in connection with marriage ceremony of his maternal uncle."
Mst. Ayesha (PW-2).
"In the house i.e. the place of occurrence beside Ahsan his two brothers also lived."
It is not understandable that if on the day of occurrence, the issue regarding the marriage of Ahsan Ali deceased with Mst. Ayesha (PW-2) was to be discussed then as to why on the said day, all the family members of Ahsan Ali deceased including his two brothers, who were residing in the house of occurrence, proceeded to Gujranwala to attend the marriage ceremony and in their place, Mian Muhammad Asif complainant (PW-1), along with his brother namely Muhammad Afzal (given-up PW), who were paternal uncles of the. Ahsan Ali deceased had come to the house of occurrence to discuss the abovementioned matter. No valid reason of presence of Mst. Ayesha (PW2) in the house of occurrence at the time of occurrence has been given by the prosecution. She was ex-wife of Adnan appellant who was real maternal uncle of Ahsan Ali deceased and as such, Mst. Ayesha (PW-2) fell within the prohibited degree for the deceased therefore, they cannot contract marriage with each other. Moreover, as per statement of Mst. Ayesha (PW-2), her marriage with the appellant was dissolved on 11.11.2011 and the occurrence took place on 18.11.2011 which means that even 'Iddat' period of Mst. Ayesha (PW-2) had not expired on the day of occurrence. We are therefore, of the view that both the abovementioned eye-witnesses are chance' witnesses and they could not establish any valid reason for their presence at the spot at the time of occurrence.
As both the abovementioned prosecution witnesses are chances witnesses therefore, their evidence cannot be relied upon without proving the reason of their presence at the spot at the relevant time, which reason has not been proved in this case. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) at Para No.14, observed regarding the chance witnesses as under:- "14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot.
True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
Likewise, in the case of "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) at Para No.5, the Apex Court of the country was pleased to observe as under:- "...He admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt."
Similar view was taken in the case of "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142). Relevant part of the said judgment at Para No.2 reads as under:- "...Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence As the above mentioned prosecution eye-witnesses are chance witnesses and they could not prove any valid reason of their presence at the spot at the time of occurrence, therefore, their very presence in the house of occurrence at the relevant time becomes doubtful.
14. We have further noted that conduct of the prosecution eye-witnesses is highly unnatural. The appellant was not armed with any formidable weapon like firearm at the time of occurrence and according to the prosecution case, he was armed with 'churri'. The complainant party was comprising of four members including Ahsan Ali deceased and this fact was admitted by Mian Muhammad Asif complainant (PW-1). Relevant part of his statement reads as under:- "We four persons including myself were present in the house when the accused came in the house. The other persons were Afzal, Ahsan and Mst. Ayesha beside me."
Mian Muhammad Asif complainant (PW-1) and his brother, namely, Muhammad Afzal (given up PW) were real paternal uncles of the deceased and they along with Ahsan Ali (deceased) were three adult male members of the complainant party but they (PWs) did not try to save the deceased at the time of occurrence and gave free hand to the appellant to inflict, as many as, nine injuries (as per postmortem report Exh.PE) on the body of the deceased. As per site plan (Exh.PD), there was a distance of only 13 feet between the abovementioned prosecution eye-witnesses and the appellant but they did not try to intervene during the occurrence or apprehend the appellant after the occurrence. They stood like silent spectators and gave free hand to the appellant to inflict the abovementioned injuries to their kith and kin. We are therefore of the view that conduct of the prosecution eye-witnesses, who were closely related to Ahsan Ali deceased is highly unnatural therefore, their presence at the spot is highly doubtful, hence their evidence is not worthy of reliance. We may refer here the case of "Liaquat Ali v. The State" (2008 SMCR 95), wherein at Para No.5-A of the judgment, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W.7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaquat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
Similar view was reiterated by the august Supreme Court of Pakistan in the cases of "Pathan v. The State" (2015 SCMR 315) and "Zafar v. The State and others" (2018 SCMR 326). Under the circumstances, it cannot be safely held that the above mentioned eye-witnesses were present at the spot at the relevant time and they had witnessed the occurrence because their conduct is highly unnatural.
15. We have further noted that there were glaring contradictions in the prosecution case as set forth in the FIR (Exh.PA/3) and the medical evidence. As per contents of the FIR, Adnan appellant inflicted only one injury on the abdomen of Ahsan Ali deceased with the help of 'churri' but according to the postmortem report (Exh.PE) and medical evidence furnished by Dr. Burhan Ashraf (PW-10), there were, as many as, nine injuries on the body of the deceased. At the time of recording of their statements, both the prosecution eye-witnesses, namely, Mian Muhammad Asif (PW-1) and Mst. Ayesha (PW-2) made dishonest improvements in their statements to bring their evidence in line with the medical evidence while stating that the appellant inflicted 'churri' blow which landed on the left nipple, ribs, abdomen, left flank, left arm, back side of left shoulder and on different parts of the body of Ahsan Ali deceased. Both the abovementioned prosecution eye-witnesses were confronted with their previous statements and dishonest improvements made by them were duly brought on the record. Relevant part of their statements in this respect read as under:- Mian Muhammad Asif (PW-1)
"I do not remember as to whether I had stated before the police in my statement under section 161, Cr.P.C. that as soon as Ahsan deceased opened the door, the accused Adnan present attacked upon Ahsan and started to give him churri blows who received churri blows at his chest, above left nipple, at ribs on upper part of abdomen, left flank, left arm and back side of left shoulder and also on different parts of the body. At this stage, this question has been re-asked on the request of learned counsel for the complainant. I did not mention with such a detail about injuries but I did mention which were apparent. Confronted with Ex.PA where only one injury has been mentioned whereas the remaining have not been penned down."
Mst. Ayesha (PW-2)
"It is correct that I mentioned in my examination in chief that Ahsan received churri blows at his chest above left nipple at ribs on upper part of abdomen left flank, left arm and back side of left shoulder and also on his different parts of the body. Confronted with Ex. DA where it is not so recorded and only injury in the abdomen has been specified."
It is therefore, evident from the perusal of the record that the prosecution story as set forth in the FIR (Exh.PA/3) was in conflict with the medical evidence and in order to cover the abovementioned weakness in the prosecution case, the abovementioned eye-witnesses made dishonest improvements in their statements to bring their statements in line with the medical evidence and as such, evidence of abovementioned prosecution eye-witnesses is not worthy of reliance. In the cases of 'Muhammad Ali v. The State' (2015 SCMR 137), 'Irfan Ali v. The State' (2015 SCMR 840), 'Usman alias Kaloo v. The State' (2017 SCMR 622) and Nadeem alias Kala v. The State and others'
(2018 SCMR 153), the prosecution evidence was disbelieved on account of its conflict with the medical evidence regarding the number/nature of injuries sustained by the deceased. Relevant part of the case of 'Muhammad Ali' supra, reads as under:- "5 .......In such circumstances, the presence of the eye-witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they could have ascribed the correct role to the accused and explain all the injuries on the person of the deceased...."
Likewise, in the case of 'Akhtar Ali and others v. The State' (2008 SCMR 6), the apex Court of the country disbelieved the evidence of the prosecution eye-witnesses on the ground that they made dishonest improvements in their statements recorded by the learned trial Court in order to strengthen the prosecution case.
16. According to the contents of the FIR, the motive behind the occurrence was that there was a dispute of property between Mst. Nazia (sister of the appellant and mother of Ahsan Ali deceased) and Ahsan Ali deceased as the said Mst. Nazia contracted second marriage after the death of father of Ahsan Ali deceased. No suit filed or pending between Ahsan Ali deceased and Mst. Nazia (sister of the appellant) has been produced in the prosecution evidence. No application before any form which was moved regarding the abovementioned dispute of property has J been brought on the record by the prosecution. We have also noted that apart from the abovementioned motive, prosecution also alleged another motive of proposed marriage of ex-wife of Adnan appellant, namely, Mst. Ayesha (PW-2) with Ahsan Ali deceased. It is noteworthy that Mst. Ayesha (PW-2) was the best witness to prove the said second motive of the prosecution but her evidence in respect of abovementioned second motive of the prosecution is self-contradictory. Although she stated that Ahsan deceased called her as he wanted to marry her but at the same time she denied the suggestion that she took divorce from the appellant to marry Ahsan deceased. Relevant part of her statement reads as under:- "It is incorrect to suggest that I asked Ahsan deceased that I took divorce from Adnan to marry him (Ahsan)."
As the evidence of Mst; Ayesha (PW-2) about the second motive of the prosecution is self- contradictory, therefore, we are of the view that the said motive has not been proved by the prosecution. It seems that as Mst. Ayesha (PW-2) was divorced by the appellant therefore, she tried to implicate the appellant in this case through the abovementioned second motive of the prosecution, whereas, the complainant who was paternal uncle of the appellant was annoyed due to second marriage of mother of the appellant with some one therefore, they (PWs) tried to implicate the appellant in the present occurrence which appears to be unseen. Although. Mst.
Ayesha (PW-2) has stated about the first motive of the prosecution regarding the property dispute between the deceased and the appellant but she did not allege the said motive in her statement recorded by the police (Exh.DA) and the improvements made by her in respect of the motive were also duly brought on the record. Relevant part of her statement in this respect reads as under:- "It is correct that I mentioned the fact that there was a dispute regarding the property between Ahsan and his mother and mother of Ahsan contracted second marriage. Confronted with Ex.DA where it is not so written. It is correct that I mentioned in my statement before the police about the motive behind the police that the mother of Ahsan deceased got married and there was a dispute of distribution of the property between the mother in my statement under section 161, Cr.P.C that as soon as Ahsan deceased opened the door, the accused Adnan present attacked upon Ahsan and started to give him churri blows who received churn blows at his chest, above left nipple, at ribs on upper part of abdomen, left flank, left arm and back side of left shoulder and also on different parts of the body. At this stage, this question has been re-asked on the request of learned counsel for the complainant. I did not mention with such a detail about injuries but I did mention which were apparent. Confronted with Ex. PA where only one injury has been mentioned whereas the remaining have not been penned down."
Mst. Ayesha (PW-2)
"It is correct that I mentioned in my examination in chief that Ahsan received churri blows at his chest above left nipple at ribs on upper part of abdomen left flank, left arm and back side of left shoulder and also on his different parts of the body. Confronted with Ex. DA where it is not so recorded and only injury in the abdomen has been specified."
It is therefore, evident from the perusal of the record that the prosecution story as set forth in the FIR (Exh.PA/3) was in conflict with the medical evidence and in order to cover the abovementioned weakness in the prosecution case, the abovementioned eye-witnesses made dishonest improvements in their statements to bring their statements in line with the medical evidence and as such, evidence of abovementioned prosecution eye-witnesses is not worthy of reliance. In the cases of 'Muhammad Ali v. The State' (2015 SCMR 137), 'Irfan Ali v. The State' (2015 SCMR 840), 'Usman alias Kaloo v. The State' (2017 SCMR 622) and Nadeem alias Kala v. The State and others'
(2018 SCMR 153), the prosecution evidence was disbelieved on account of its conflict with the medical evidence regarding the number/nature of injuries sustained by the deceased. Relevant part of the case of 'Muhammad Ali' supra, reads as under:- "5 .......In such circumstances, the presence of the eye-witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they could have ascribed the correct role to the accused and explain all the injuries on the person of the deceased...."
Likewise, in the case of Akhtar Ali and others v. The State' (2008 SCMR 6), the apex Court of the country disbelieved the evidence of the prosecution eye-witnesses on the ground that they made dishonest improvements in their statements recorded by the learned trial Court in order to strengthen the prosecution case.
16. According to the contents of the FIR, the motive behind the occurrence was that there was a dispute of property between Mst. Nazia (sister of the appellant and mother of Ahsan Ali deceased) and Ahsan Ali deceased as the said Mst. Nazia contracted second marriage after the death of father of Ahsan Ali deceased. No suit filed or pending between Ahsan Ali deceased and Mst. Nazia (sister of the appellant) has been produced in the prosecution evidence. No application before any form which was moved regarding the abovementioned dispute of property has been brought on the record by the prosecution. We have also noted that apart from the abovementioned motive, prosecution also alleged another motive of proposed marriage of ex-wife of Adnan appellant, namely, Mst. Ayesha (PW-2) with Ahsan Ali deceased. It is noteworthy that Mst. Ayesha (PW-2) was the best witness to prove the said second motive of the prosecution but her evidence in respect of abovementioned second motive of the prosecution is self-contradictory. Although she stated that Ahsan deceased called her as he wanted to marry her but at the same time she denied the suggestion that she took divorce from the appellant to marry Ahsan deceased. Relevant part of her statement reads as under:- "It is incorrect to suggest that I asked Ahsan deceased that I took divorce from Adnan to marry him (Ahsan)."
As the evidence of Mst. Ayesha (PW-2) about the second motive of the prosecution is self- contradictory, therefore, we are of the view that the said motive has not been proved by the prosecution. It seems that as Mst. Ayesha (PW-2) was divorced by the appellant therefore, she tried to implicate the appellant in this case through the abovementioned second motive of the prosecution, whereas, the complainant who was paternal uncle of the appellant was annoyed due to second marriage of mother of the appellant with some one therefore, they (PWs) tried to implicate the appellant in the present occurrence which appears to be unseen. Although Mst.
Ayesha (PW-2) has stated about the first motive of the prosecution regarding the property dispute between the deceased and the appellant but she did not allege the said motive in her statement recorded by the police (Exh.DA) and the improvements made by her in respect of the motive were also duly brought on the record. Relevant part of her statement in this respect reads as under:- 'It is correct that I mentioned the fact that there was a dispute regarding the property between Ahsan and his mother and mother of Ahsan contracted second marriage. Confronted with Ex.DA where it is not so written. It is correct that I mentioned in my statement before the police about the motive behind the police that the mother of Ahsan deceased got married and there was a dispute of distribution of the property between the mother of Ahsan and accused Adnan. Confronted with Ex.DA where it is not so written."
It is further noteworthy that the second motive alleged by the prosecution does not appeal to a prudent mind that Ahsan Ali deceased wanted to many with the wife of his real maternal uncle which fell under prohibited degree for him. We are therefore, of the view that both the motives alleged by the prosecution could not be proved in this case.
17. Insofar as the recovery of 'churri' (P-2) from the possession of the appellant and positive report of PFSA, Lahore (Exh.PN) is concerned, we have noted that Mushtaq Ahmad 577/C (PW-6) has stated that the abovementioned 'churi' was recovered from Mehboob Street Lal Park near wall of Govt. Tubewell under the bricks. The abovementioned 'churri' was not recovered from the house or place which was in exclusive possession of the appellant and the same was recovered from a street which was accessible to the public. Moreover, the occurrence in this case took place on 18.11.2011, whereas, 'churri' (P-2) was allegedly recovered on 04.12.2011 i.e., after 16 days from the occurrence and during the abovementioned period, the appellant had ample opportunity to wash away the blood from 'churri' (P-2). The Hon'ble Supreme Court of Pakistan in the case of 'Basharat and another v. The State' (1995 SCMR 1735) disbelieved the evidence of blood-stained dagger which was allegedly recovered from the accused after ten days from the occurrence. Relevant part of the said judgment at page No. 1739 is reproduced hereunder for ready reference: "11. The occurrence took place on 20.04.1988. Basharat appellant was arrested on 28.04.1988. The blood-stained Churri was allegedly recovered from his house on 30.04.1988. It is not believable that he would have kept blood stained churri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it."
Furthermore, churri' (P-2) was deposited in the office of PFSA, Lahore on 28.1.2011 i.e., after 01 month and 10 days from the occurrence therefore, the blood, if any, on it must have disintegrated in the meanwhile. Reliance in this respect may be placed on the case of 'Muhammad Jamil v.
Muhammad Akram and others' (2009 SCMR 120). We are therefore, of the view that evidence qua recovery of 'churri; (P-2) and positive report of PFSA (Exh.PN) are of no avail to the prosecution.
18. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled 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 doubts about the prosecution story. In the case of 'Tariq Pervez v. The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under: 5... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.
The Hon'ble Supreme Court of Pakistan while reiterating the same principle in the case of 'Muhammad Akram v. The State' (2009 SCMR 230), at page 236, observed 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 a 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."
19. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Jail Appeal No. 173747 of 2018 filed by Adnan appellant, set aside his conviction and sentence and acquit him of the charge by extending him the benefit of doubt. Resultantly, Murder Reference No. 44 of 2018 is answered in the negative. The appellant Adnan is in custody, he be released from the jail forthwith if not required to be detained in any other case.