SARDAR AHMED NAEEM, J.---This judgment shall dispose of Criminal Appeal No.624-J of 2016 titled as Muhammad Aslam v. The State filed by Muhammad Aslam (appellant)' and Murder Reference No.81 of 2016 titled as The State v. Muhammad Aslam transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, being originated from the same judgment dated 23.12.2016 passed by the learned Additional Sessions Judge, Chishtian, District Bahawalnagar in case FIR No.117/2016, under section 302, P.P.C., registered at Police Station Shaher Farid, Tehsil Chishtian, District Bahawalnagar , whereby Muhammad Aslam (appellant-accused) was convicted under section 302(b), P.P.C. and sentenced to death, with the direction to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C. and in case of default to further undergo simple imprisonment for six months.
2. The prosecution story , in brief, is that on 05.05.2016 at 04:00 a.m. Muhammad Aslam appellant armed with hatchet inflicted successive blows hitting on different parts of the body of the deceased,. namely , Mst. Atta Elahi, who succumbed to the injuries.
3. After usual investigation, challan was submitted in the Court. The learned trial court after observing all the pre- trial codal formalities, charge sheeted the appellant to which he pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case, produced as many as ten PWs during the trial. Medical evidence, in this case, was furnished by W.M.O. Shaista Khalid (PW.1). On 05.05.2016 at 2:00 p.m., she conducted post- mortem examination of Mst. Atta Elahi deceased and found following injuries on her person:-
1. Multiple incised wound in front of neck:- i. Incised wound 12 cm x 4 cm, into cutting the muscle of the right side of the neck. Hyoid bone, larynx trachea, esophagus starting from near the right ear lobule up till 2 cm lateral to mid line on left side the neck. ii. An incised wound 10 cm x 4 cm into cutting the trachea esophagus. 3rd cervical vertebra and all the muscles of the right side of the neck. iii. Incised wound 8 cm x 2 can over right supra clavicular region cutting the right caroted artery . iv. Incised wound, 15 cm x 4 cm into cutting on the flap of the skin is present over the posterior aspect of right ear . v. Incised wound with 8 cm x 4 cm into the bone expose/indirection on the posterior aspect of right hand and forearm. vi. Incised wound 2 an x 1 cm into muscle deep on right side of chin. vii. Incised wound 8 cm x 3 cm into skin deep and on the internal aspect of the left shoulder . viii. Incised wound 4 cm x 5 cm into bone expose on the posterior aspect of the body above the right scapular region slightly lateral to mid line. xi. Incised wound 4 cm x 3 cm into bone expose over the right scapular region below the above mentioned injury .
In her opinion, cause of death in this case was cardio respiratory failure due to excessive bleeding, hemorrhage and shock from injury No.1 which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature and were caused with sharp edge weapon. The duration between injuries and death was within 5 minutes and between death and post mortem examination was within 24 hours.
5. Ocular account in this case was furnish ed by Allah Ditta complainant (PW.5) and Muhammad Ashiq (PW.6). Both the PWs supported the prosecution story as mentioned in the FIR.
6. Muhammad Akram, Constable (PW.3) escorted the dead body of the deceased. Syed Abdul. Razaq, S.I. (PW.4) reached at the spot. on 05.05.2016, recorded statement of the complainant (Exh.PD) and sent complaint to the Police Station for registration of FIR.
7. Younas Ali, Inspector (PW.8) investigated the case. Abdul Razaq Patwari (PW.10) visited the place of occurrence and inspected the spot on the direction of the police and on the pointing out of PWs. He prepared the scaled site plan (Ex.PK) Rest of the. PWs are of formal nature, therefore, need not to be reproduced.
8. The prosecution gave up Bashir Ahmad and Muhammad Siddique PWs being unnecessary and after tendering into evidence reports of P .F.S.A. (Exh.PL and Exh.PM) closed the prosecution evidence.
9. The statement of the appellant under section 342, of The Code of Criminal Procedure, 1898, was recorded. He refitted the allegations levelled against him and professed their innocence. Responding to the question "Why this case is against you and why PWs deposed against you?, appellant replied as under: "In fact, instant occurrence was blind one I am a patient of TB and chest infection and suffering from asthma 'due to which I cannot even walk speedily . On the day of occurrence, I was not present at my house. Some unknown persons committed the. murder of my wife Attah Elahi and most probably it can be said that accused persons of case FIR No.206/14, under section 376, P. P. C. committed the murder of my wife but the complainant party designed a concocted story to falsely implicate me just to grab money from me. It is evident from record that death of my wife was not caused at the time and date as narrated by the complainant party rather , it is badly contradicted by medical evidence and other important aspects of this case. The PWs allegedly stated a countless witnesses present at the time of occurrence but only one person who is patient of T.B could not be overpowered by them. In spite of this fact, the prosecution case is (accused fled away from the place of occurrence while throwing his hatchet in crops beside the room place of occurrence and further it is very mating, the complainant himself stated that accused thrown his hatchet at the place of occurrence). I am innocent. I pray mercy from Almighty Allah and justice from Hon'ble Court."
10. The appellant neither appeared as his own witness on oath as provided under section 340(2) of The Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him nor produce evidence in his defence.
11. The learned trial Court vide its judgment dated 23.12.2016, held the appellant guilty , convicted and sentenced him as mentioned and detailed above.
12. Learned counsel for the appellant, inter alia, contended that the prosecution miserably failed to prove its case against the appellant; that no independe nt witness was cited by the prosecution; that all the witnesses failed to justify their presence at the crime scene; that the best evidence in this case was withheld; that the recovery of hatchet in the peculiar circumstances of the case was of no help; that the motive remained unproved; that medical evidence lend no corroboration to the prosecution story; that the learned trial court failed to appreciate the prosecution evidence in its true perspective, thus, the impugned judgment cannot be sustained.
13. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed the appeal with vehemence and submitted that the parties were known to each other , there was no question of mistaken identity; that the eye-witnesses had no grudge or grouse for false implication of the appellant; that conviction on a capital charge can be awarded on a single testimony; that part of onus was shifted upon the appellant as to how his wife met un-natural death in his house; that the ocular account furnished the details in a straight forward manner and no favourable material was extrac ted during the cross-examination of the eye-witnesses, thus, appeal deserves dismissal.
14. We have given our anxious considerations to the arguments advanced by the learned counsel for the parties and have minutely perused the record with their able assistance.
15. The parties in this case are related to each other . The complainant was sala' of the appellant and Mst. Atta Elahi (deceased) was wife of the appellant. It was in the evidence that the appellan t along with his wife and children shifted to a room in the dera of Mian Qudrat Ullah Matiyana one month prior to the occurrence. The spouses had strained relations and the deceased with her children stayed with the complainant for about one and half year prior to the occurrence. The deceased had a "Jhoti" (young buffalo) and the appellant wanted to sell that which resulted into altercation between the spouses. The hue and cry of the children of the deceased at about 04:00 a.m. attracted the complainant, who rushed' to the crime scene along with Ashiq and Bashir Ahmad, PWs. They claimed to have witnessed the occurrence and saddled the appellant with the responsibility of causing hatchet blows to the deceased hitting on various parts of her body. Upon apprehending the PWs, the appellant fled away from the crime scene leaving behind the hatchet.
16. The occurrence took place on 05.05.2016 at 04:00 a.m. No source of light was mentioned by the PWs at the crime scene. The occurrence took place in the residential room of the house situated at the Dera of Mian Qudrat Ullah Matiyana. It was in the evidence and also suggested by the scaled site plan that the deceased after sustaining injuries fell on a cot lying in the said room but no cot was taken into possession during the investigation.
The material available on record further suggested that the complainant was living at a distance of 4/5 acre from the place of occurrence with his family in a nearby 'Basti' having about 100 houses. The appellant was also chased by her family members. The family of Bashir Ahmad PW. also came to the crime scene and witnessed the occurrence admitted by the complainant, namely , Allah Ditta (PW.5) but none from their families was cited as witness. The appellant got married to the deceased 15/16 years ago and had three sons including Shahbaz (aged about 15 years), Sarfraz (12 years) and Zahid (10 years). The sons of the appellan t except Shahbaz were present inside the room but they were also not examined at the crime scene. It was in the evidence that the place of occurrence i.e. the room had no outlet/window , thus, it appears to be improbable that the appellant could manage his escape, in particular , leaving behind the hatchet in presence of so many family members/relatives of the deceased. The statement of Muhammad Ashiq (PW.6) is at variance with that of the complainant which reflected that he had witnessed the occurrence along with the children standing outside the room. He had also admitted that they made no ef fort to shut the door or bolt the same from outside.
17. It was in the evidence that many people had come to the crime scene at the time of occurrence. It was admitted by Younas Ali, Inspector (PW.8) that he separately recorded statements of Syed Chan Peer, Bashir Ahmad, Muhammad Mazhar , Nazar Khan and Zulfiqar but none of them was cited as a witness nor examined during trial.
The Investigating Officer further admitted that in unsealed site plan there was no mention' of the appellant and the PWs along with the children. The names of the PWs were also not mentioned in the unsealed site plan and that cot was not taken into possession. Abdul Razzaq (PW.10) also admitted that he was not shown the point of presence of the appellant by the PWs, thus, he has not mentioned any particular point showing his presence in the scaled site plan (Exh.PK).
18. It was case of the prosecution that the appellant inflicted hatchet blows to his wife and managed his escape from the place of occurrence in their presence leaving behind the hatchet (P.5). He was arrested on 12.05.2016 but amazingly , he got recovered hatchet (P.5) from the back side of his room lying under the sugarcane. The crime report further suggested that the appellan t was given chase by the eye-witnesses but he managed his escape and no material was available on the file that while leaving the spot, the appellant conc ealed the crime weapon behind the crime scene i.e. his residential room. The Investigating Officer further admitted that the recovery memo does not suggest if it was blood-stained.
19. The dead body of the deceased was shifted to hospital by the PWs including Muhammad Ashiq son of Ghulam Muhammad and Muhammad Siddique son of Muhammad Hussain. She was bleeding profusely and, thus, there was a possibility of having the blood-stains on the clothes of those persons, who shifted the dead body to hospital but none from the said PWs produced their clothes before the Investigating Of ficer during the investigation.
20. The Medical Officer conducted post-mortem examination on 05.05.2016 at 02:00 p.m. and observed seven incised wound on the upper part of the body of the deceased. The postmortem (Exh.P A) reflected that the Rigor mortis was fully developed. He also admitted during the cross-examination that Rigor mortis fully developed in 24 hours. The occurrence took place, at 04:00 a.m. on the same day. The. incident was reported at 09:00 a.m. with unexplained delay of five hours and the postmortem was conducted at 02:00 p.m. meaning thereby that the occurrence had taken place not at the time as mentioned by the PWs in their statements.
21. The contention of the learned counsel for the complainant has substance that part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by the apex Court in the case "Abdul Majeed v. The State" (2011 SCMR 941) that where the prosecution completely failed to discharge its initial onus then no part of the onus shifts to the accused person at all.
22. It is an axiomatic principle of law that benefit of doubt is always extended in favour of the accused. The case of the prosecution if found" to be doubtful then every doubt even slightest is to be resolved in favour of the accused.
In this case prosecution miserably failed to prove the case against the appellant beyond reasonable doubt.
Reliance in this context can be placed on "Muhammad Mansha v. The State" (2018 SCMR 772) and relevant observations of their lordships appearing in para-4 at page No.778 can advantageously be reproduced hereunder: "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilty of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent perso n be convicted" Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )."
In another judgment titled "Abdul Jabbar v . The State and another" ( 2019 SCMR 129 ), their lordships observed: "It is settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict... benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
Reliance can also be placed on case titled "Muhammad Adnan and another v. The State and others" (2021 SCMR 16 ).
23. The resume of the above discussion is that the ocular account is belied by the host of circumstances. No source of light was shown at or around the crime scene. The complainant admitted in the cross-examination that in the summer season people usually sleep in the open space. Inside the room there was no other item except the cot. Children of the deceased witnessed the occurrence inside the room. The Medical Officer observed seven incised wound on her body but the postmortem report negates the version of the complainant and contradicted the statements of the eye-witnesses including the time of occurrence due to the complete development of rigor mortis.
The fact of throwing hatchet by the accus ed at crime scene and then recovery of the said hatchet at the instance of the appellant after his arrest was also astonishing. Nobody came forward from the families of the complainant and Bashir Ahmad to depose against the appellant. Similarly the independent witnesses Syed Chan Peer, Bashir Ahmad, Muhammad Mazhar , Nazar Khan and Zulfiqar Khan was also not examine d at trial, thus, best evidence in this case was withheld by the prosecution and thus necessary inference must be raised against the prosecution under Article 129(g) of Qanun-e-Shahadat, 1984. The dispute of the deceased to sell her `Jhoti' leading to the altercation between the spouses was also not proved. The aspect of shifting the deceased along with her family to the Dera of Mian Qudrat Ullah Matiyana one month prior to the occurrence was also not thrashed by the Investigating Officer during the investigation and the fact that Muhammad Ashiq and Bashir Ahmad PWs were also the witnesses of case FIR No.206/2014, under section 376, P.P.C., got registered at Shaher Farid by the deceased established that on such sketchy evidence the conviction on a capital charge cannot be sustained.
24. For the reasons mentioned above, the conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reaso nable shadow of doubt. The appeal is, therefore, allowed, the conviction and sentences of the appellant is set aside. He is acquitted of the charge. He shall be released from jail forthwith if not required to be detained in any other criminal case.
25. Murder Reference No.81 of 2016 is answered in the NEGA TIVE and death sentence of Muhammad Aslam (convict)/appellant is NOT CONFIRMED.
The case property shall be dealt with strictly in accordance with law and the record of the learned trial court be, sent down immediately .