SHEHRAM SARWAR CH., J. Muhammad Sajid (appellant) along with his co-accused namely Sakeena Bibi was tried by the learned Additional Sessions Judge, Chichawati in case FIR No 208 dated 28.05.2016, offence under sections 302 and 34, P.P.C., registered at Police Station Kassowal District Sahiwal for committing murder of Mst. Rida Bibi, daughter of the complainant. Vide judgment dated 18.02.2017 passed by learned trial court, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death with a further direction to pay Rs.2,00,000/- (rupees two lakh only) as compensation under section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months.
Through the same judgment, Sakeena Bibi, co-accused of the appellant was acquitted of the charge by extending him benefit of doubt and no appeal against her acquittal was filed either by the State or complainant as conceded by learned Deputy Prosecutor General. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.23 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 arc being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Exh.PD/1) registered on the written application (Exh.PD) of Mst. Shahnaz Bibi, complainant (PW.5) is that about 6/7 years ago Mst. Rida Bibi, daughter of the complainant, was married to Azhar Abbas and she remained with him for about two and a half years, but due to strained relation she was divorced. Thereafter, second marriage of Mst. Rida Bibi was solemnized with Muhammad Sajid (appellant) at Chak No.115/7-CR about one and a half years ago and out of this wedlock a son Muhammad Ismail was born. Due to previous divorce, Sakeena Bibi, mother-in-law, used to quarrel with Mst. Rida Bibi. On 24.05.2016, Rida Bibi after quarrelling came to the house of the complainant. On 26.05.2016, Rida Bibi making her to understand was sent to the house of her husband by Muhammad Usman, son of the complainant. On 27.05.2016 at about 09:00 p.m. Rida Bibi informed her father Muhammad Anwar on phone, who was doing labour in Islamabad that Muhammad Sajid (appellant) and Sakeena Bibi were quarrelling with her.
Muhammad Anwar informed the complainant about the said quarrel, upon which she (complainant) in order to inquire the matter sent Muhammad Tahir and Qasim Raza to Chak No.115/7-CR. On 28.05.2016 at about 05:00 a.m. Muhammad Tahir and Qasim Raza told the complainant that at around 04:00 a.m. after hearing the shrieks of Mst. Rida Bibi they entered the house of the appellant and saw that Mst. Rida Bibi was lying on the cot whereas Mst. Sakeena Bibi caught hold of her legs and the appellant was strangulating her neck and on seeing the PWs they decamped from the place of occurrence. Mst. Rida Bibi was attended to by the PWs but she expired at the spot. On getting the information, she (complainant) reached at the spot where Muhammad Tahir and Qasim Raza disclosed the incident. Motive behind the occurrence was previous divorce of Mst. Rida Bibi and due to that grudge the appellant along with his co-accused committed the murder of the deceased.
3. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State and gone through the record with their able assistance.
4. The occurrence in this case allegedly took place on 28.05.2016 at 04:00 a.m. (morning) whereas the matter was reported to the police on the same day at 01:45 p.m. (noon). The distance between station and the place of occurrence is eleven miles. There is a delay of about nine hours and forty five minutes in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the trial Court Mst. Shahnaz Bibi, complainant (PW.5), Qasim Raza (PW.6) and Muhammad Tahir (PW.7) did not utter even a single word about the above said delay. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain v. The State" (2019 SCMR 274). Undisputedly, the postmortem examination of the dead-body of Mst. Rida Bibi (deceased) was conducted about thirteen hours after the occurrence.
It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed v. The State" (2011 SCMR 1190) and "Nazeer Ahmed v. The State" (2016 SCMR 1628).
5. Admittedly, Mst. Shahnaz Bibi, complainant (PW.5) had not seen the incident and her testimony is based on hearsay evidence., therefore, the same is excluded from consideration. Ocular account in this case consists of Qasim Raza (PW.6) and Muhammad Tahir (PW.7), who were related to the deceased being her maternal cousin and paternal uncle respectively and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. In the FIR as well as before the learned trial court, it was the case of prosecution that the occurrence took place in the house of (appellant) at odd hours of night and at the time of incident Qasim Raza (PW.6) and Muhammad Tahir (PW.7) were present there but none of them tried to capture the appellant. Had they been present at the spot, they could have easily overpowered the appellant because it was not the case of the prosecution that at the time of incident, the appellant was armed with any firearm. No convincing or plausible reason was assigned by them for their presence at the place of occurrence. 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 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. The testimony of a chance 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 occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the case law reported as "Mst.
Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) and "Muhammad Javed v. The State" (2016 SCMR 2021). There is another aspect of the case. Sakeena Bibi, co- accused of the appellant, who as per FIR, caught hold of Mst. Rida Bibi (deceased) from her legs at the time of incident, has been acquitted by the learned trial Court and as such the prosecution story to the extent of Sakeena Bibi, co-accused has not been proved. The question which requires consideration by this Court is as to whether the evidence which has been disbelieved to the extent of co-accused of the appellant who has been acquitted by the learned trial Court can be believed to the extent of appellant? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz v. The State" (2016 SCMR 1763), wherein it was held at page 1765 as under:- "2. ...The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the dead body of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant."
Therefore, we hold that the evidence of above two eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/ sentence of the appellant.
6. Motive behind the occurrence as alleged in the FIR and stated before the learned trial court was that the appellant and his mother used to quarrel with Mst. Rida Bibi (deceased) because of her previous divorce and due to that grudge, the appellant along with his co-accused committed the murder of the deceased. Muhammad Ameen, S.I./I.O. (PW.9) has stated before learned trial court in his cross-examination that the complainant party did not produce any independent witness in order to prove the motive part. We may observe here that quarrel between the spouses is not unusual in our culture. Even no independent witness qua motive was produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to prove motive against the appellant. the appellant is concerned the same is immaterial because it was ordinary So far as the alleged recovery of rope/string at the instance of thing easily available in the market.
7. 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 v. Shabbir Ahmad and others" (2016 SCMR 1605).
8. 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 are exculpatory in nature.
9. 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 discharge 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. Reliance is placed on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).
11. For the foregoing reasons, Criminal Appeal No.513-J of 2018 filed by Muhammad Sajid is allowed, conviction and sentence awarded to him vide judgment Bated 18.02.2017 passed by the learned Additional Sessions Judge, Chichawatni are set aside and the appellant is acquitted of the charges levelled against him while extending him benefit of doubt. Muhammad Sajid, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
12. Murder Reference No.23 of 2017 is answer in NEGATIVE and the sentence of death awarded to Muhammad Sajid (convict) is NOT CONFIRMED.