Shehram Sarwar Ch., J.--Muhammad Afzal (appellant) was tried by the learned Sessions Judge, Mianwali in case FIR No. 340 dated 29.06.2016, offence under Section 302, PPC registered at Police Station Saddar District Mianwali for the murder of Ghulam Muhammad (deceased) father of Comp lainant. Vide judgment dated 18.04.2017 passed by the learned Sess ions Judge, Mianwali, the appellant has been convicted under Section 302(b), 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. 289 of 2017 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.PF) registered on the statement of Aman Ullah, complainant (PW.6) is that Ghulam Muhammad alias Wadda father of complainant used to make amulets (taveez) while sitting in his house. On 29.06.2016 at around 11.30 a.m. the complainant along with Ikram Ullah Khan and Aziz-ur-Rehman was present in his house while his father was available in the baithak. Meanwhile, they heard-noise of complainant's father and rushed towards baithak. Muhammad Afzal (appellant) armed with toka was present in the baithak along with father of complainant. Within the view of complainant party , the appellant raised lalkara to teach a lesson to Ghulam Muhammad for emulating upon him and inflicted two successive toka blows to him which landed on left side of his neck who fell down in injured condition. Muhammad Afzal (appellant) ran out of the baithak while brandishing toka. The complainant party attended Ghulam Muhammad who succumbed to the injuries on the spot.
Motive behind the occurrence as alleged in the FIR was that one month prior to the occurrence, Muhammad Afzal (appellant) complained to the complainant that his father has made amulets upon him, so he will teach him a lesson and due to that revenge, the appellant committed murder of deceased.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Muhammad Afzal (appellant) was summoned by the learned Sessions Judge, Mianwali 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 03.11.2016, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 18.04.2017, wherein he refuted all the allegations Of prosecution and professed his innocence. 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, as detailed above. Hence, this appeal and murder reference.
4. Learned counsel for the appellant, in support of his appeal, contends that the appellant has falsely been implicatedln this case; that the matter was reported to the police with due deliberation and consultation; that Aman Ullah, complainant (PW.6) and Aziz-urRehman (PW.7) alleged witnesses of ocular account are closely related to the deceased and have not given any plausible reason for their presence on the spot at relevant time; that the ocular account is in direct conflict with the medical evidence as in the FIR, two injuries were attributed to the appellant whereas the medical officer (PW.3) observed three injuries on the dead body of deceased; 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 toka (P.I) at the instance of the appellant is inconsequential as there are no chances that the blood would remain present on the toka after the expiry of about twenty days; that viewing from all angles, prosecution case is doubtful in 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 Addl. Prosecutor General for the State vehemently opposes this appeal on the grounds that Aman Ullah, Complainant (PW.6) and Aziz-ur-Rehman (PW.7) have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that the eye-witnesses 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 toka (P.1) at the instance of the appellant and positive report of Punjab Forensic Science Agency (Ex.PK); 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 appellant as well as the learned Addl. 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 Aman Ullah, Complainant (PW.6) and Aziz-ur-Rehman (PW.7), who were closely related to the deceased being his son (PW.6) and maternal grandson (PW.7). We have observed that it was case of both the eye-witnesses before the learned trial Court that they along with Ikram Ullah Khan (given up PW) heard noise from the baithak and rushed towards it where Muhammad Afzal (appellant) armed with toka was present in the baithak along with father of complainant and within their view, the appellant raised lalkara to teach a lesson to Ghulam Muhammad (deceased) for making amulets upon him and inflicted him toka blows. Thereafter , the appellant went out of the baithak while brandishing toka and ran towards his house. The story cooked up by both the witnesses of ocular account appears to be improbable and makes their presence on the spot doubtful because according to them, the appellant was armed with toka at the time of occurrence and gave its blows to the deceased; had they (eye-witaesses) been present on the spot at relevant time along with Ikram Ullah Khan (given up PW), why did they not try to rescue the deceased during whole episode or to catch hold of the appellant, who admittedly was not armed with any fire-arm to ward the said eye-witnesses off or to keep them away at the time of incident. In this regard , reliance may be placed on the case law reported as "Irshad Ahmed vs. The State" (2011 SCMR 1190). There is another circumstance which negates the presence of PWs on the spot as in the FIR, it was case of prosecution that the appellant inflicted two toka blows to the deceased which landed on left side of his neck. Dr. Awais-ur-Rehm an (PW.3) who conducted postmortem examination of the dead body of deceased observed three incised wounds on the person of deceased; two on left side of neck and one on left side of skull. The complainant while appearing before the learned trial Court improved his statement in order to bring ocular account in line with the medical evidence and stated that the appellant inflicted three toka blows to the deceased which landed on left side of his neck and also on head. All these factors clearly suggest that it was an unwitnessed occurrence and the alleged eye-witnesses were not present on the spot.
8. The motive as alleged in the FIR and stated before the learned trial Court was to the effect that one month prior to the occurrence, Muhammad Afzal (appellant) complained to the complainant that his father (deceased) has made amulets upon him, so he will teach him a lesson and due to that reveng e, the appellant committed his murder . As per complainant, the appellan t made complainat to him regarding emulating upon him by his father and teaching a lesson to the deceased one month prior to the incident but no untoward incident had happened during this interregnum.
Moreover , the appellant made threatening complaint to the complainant for teaching lesson to his father but the complainant did not report that matter to the police. Even otherwise, no independent witness qua motive was produced before police during the course of investigation or brought in the witness box at trial. Therefore, we hold that the prosecution has not been able to substantiate the motive part of the occurrence.
9. So far as the alleged recovery of toka (P.1) at the instance of the appellant which was taken into possession vide recovery memo. (Ex.PE) is concerned, the same is inconsequential for the reason that the occurrence took place on 29.06.2016, the toka (P.1) was got recovered by the appellant on 14.07.2016, which was received in the office of Punjab Forensic Science Agency on 19.07.2016 i.e. about , twenty days after the occurrence, therefore, it was unlikely that the blood on the toka would not disintegrate during the above mentioned period: Reliance is placed on the case law reported as "Muhammad Jamil vs. Muhammad Akram and others" ( 2009 SCMR 120 ).
10. 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 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 this regard, reliance may be placed on the case law reported as "Muhammad Akram versus The State" ( 2009 SCMR 230 ).
13. For the foregoing reasons, Crl. Appeal No. 58546-J of 2017 filed by Muhammad Afzal (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 18.04.2017 passed by the learned Sessions Judge, Mianwali 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. 289 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Afzal (convict) is NOT CONFIRMED.