SHEHRAM SAR WAR CH., J.---Samar Abbas (appellant) was tried by the learned Sessions Judge, Khushab in case FIR No.187 dated 28.07.2016, offence under section 302, P.P.C. registered at Police Station Noor Pur District Khushab for the murder of Tehmina Farzana (deceased> daughter of the complainant. Vide judgment dated 14.07.2017 passed by the learned Sess ions Judge, Khushab, the appellant has been convicted under section 302(b), P.P.C. and sentenced to death, with a further direction to pay Rs.10,00,000/- (rupees ten 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 senten ce, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.501 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, are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Exh.P A) registered on the statement of. Muhammad Zaman, complainant (PW.7) is that on 08.12.2015 the marriage of his daughter Tehmina Farzana was solemnized with Samar Abbas in exchange of marriage. About six days prior to the occurrence his daughter-in-law (bahu) Mst.
Shaheen Batool wife of Shamim Akhtar went to the house of Samar Abbas being annoyed with them. On 28.07.2016 complainant along with his son Muhammad Nadeem and Sikandar Hayat went to mauza Bambool to make her (Mst. Shaheen Batool) understand. At about 4:30 p.m. Samar Abbas son-in-law of complainant was present in the house whereas Tehmina Farzana was present in the room of her house. During conversation with Samar Abbas an altercation took place between them who took out pistol from the dub of his shalwar and went inside the room and made a fire which landed on left side of face of Tehmina Farzana. He made second fire which landed on below left back shoulder of Tehmina Farzana who fell on the spot. Samar Abbas fled away while brandishing his pistol. Complainant along with Muhammad Nadeem and Sikandar Hayat while witnessing the occurrence entered the room and attended Tehmina Farzana who succumbed to the injuries on the spot. Motive behind the occurrence was that Shaheen Batool daughter-in-law (bahu) of complainant being annoyed with them was present in the house of Samar Abbas. The complainant and other PWs went to mouza Bambool to make her (Shaheen Batool) understand where an altercation took place with Samar Abbas who committed the murder of Tehmina Farzana.
3. After completion of investigation, report under section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Sessions Judge, Khushab 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 was framed against him on 08.10.2016, to which he pleaded not guilty and claimed trial. Statement of the appellant under section 342 of the Code of Criminal Procedure was recorded on 13.05.2017, wherein he refuted all the prosecution allegations levelled against him and professed his innocence. The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor did he produce any evidence in his defence. After conclusion of trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.
4. We have heard learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely .
5. Ocular account in this case consists of Muhammad Zaman, complainant (PW.7) and Sikandar Hayat (PW.8).
The presence of both these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident. In the FIR as well before the learned trial Court it was the case of both the above PWs that they allegedly saw the incident from a close distance but we failed to understand that in the presence of both these PWs, who were closely related to the deceased, how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased. The occurrence allegedly took place in the area of Bambool whereas both the witnesses of ocular account were resident of Jamali Balochan which place, as per cross-examination, of complainant was twelve kilometers away from the place of occurrence. Both these PWs have not given any plausible reason for their presence on the spot at the time of incident. They have no place of business or agricultural land near the place of incident. Therefore, we hold that both the above said PWs were chance witnesses. 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. The testimony of chance witness may be relied upon, provided some convincing explanations appealing to a 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. Reliance may be placed on the cases reported as' "Mst. Shazia Parveen v. The State" (2014 SCMR 1197) and "Muhammad Rafique v. The State" (2014 SCMR 1698 ). The argument of learned Law Officer that in this particular case 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 has no substance because it is settled by now that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all. Reliance is placed on case law titled as "Arshad Khan v. The State" (2017 SCMR 564). 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 was that Shaheen Batool daughter-in-law (bahu ) of complainant being annoyed with them was present in the house of Samar Abbas. The complainant and other PWs went to mouza Bambool to make her (Shaheen Batool) understand where an altercation took place between Samar Abbas and complainant party and due to the said grudge the appellant committed the murder of Tehmina Farzana. No convincing evidence qua the motive part of incident is available on record. If the story of motive is admitted as true then the prime target of appellant should have been the complainant and other PWs instead of Tehmina Farzana (deceased) with whom a quarrel taken place prior to the incident. Moreover , no independent witness regarding motive was joined by police in investigation or produced by prosecution before the learned trial Court during trial. Therefore, we hold that prosecution has failed to substantiate motive against the appellant.
7. So far as alleged recovery of .30 bore pistol at the instance of Samar Abbas (appellant) is concerned the same is immaterial because the appellant was arrested on 02.08.2016 whereas as per report of Punjab Forensic Science Agency (Exh.PO) the crime empties were received in the said office on 04.08.2016 i.e. after the arrest of the appellant. It is, by now, well established proposition of law that if the crime empty is sent to the \Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Reliance in this respect is placed on the case of "Jehangir v. Nazar Farid and another" (2002 SCMR 1986 ),"Israr Ali v. The State" (2007 SCMR 525) and "Ali Sher and others v. The State" ( 2008 SCMR 707 ).
8. Medical evidence may only confirm the ocular account with regard to the receipt of injury , locale of injury , kind of weapon used for causing the injury , duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v . The State" ( 1995 SCMR 599 ).
9. 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 is exculpatory in nature.
10. 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 . In "Muhammad Akram v. The State" ( 2009 SCMR 230 ), the Hon'ble Supreme Court of Pakistan, at page 236, was pleased to observe as under:- "13. ...It is an axiomatic principle of law that in case of doubt, the benefit there of must accrue in favour of the accused as 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."
11. For the foregoing reasons, Criminal Appeal No.92485-J of 2017 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 14.07.2017 passed by the learned Sessions Judge, Khushab are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt.
Samar Abbas appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
12. Murder Reference No.501 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Samar Abbas (convict) is NOT CONFIRMED.