SHEHRAM SARWAR CH, J. Sana Ullah (appellant) was tried by learned Addl. Sessions Judge, Lahore in case FIR No.696 dated 17.06.2008, offence under section 302, P.P.C., registered at Police Station Kahna District Lahore for committing murder of Amjad Ali son of the complainant. Vide judgment dated 13.09.2011 passed by learned trial court, the appellant has been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life, with a further direction to pay Rs.50,000/- (rupees fifty thousand only) as compensation to the legal heirs of deceased and in default whereof to further undergo six months simple imprisonment. Benefit of section 382-B, Cr.P.C. was extended to him. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.
2. Prosecution story, as set out in the FIR (Ex.P-A) registered on the written application (Ex.PA) of Haleema Bibi, complainant (PW.1) is that on the fateful day at about 2:30 p.m. she was plucking chilies in the field whereas her son Amjad along with. Sana Ullah (appellant) was grazing cattle in the field at some distance and due to some reason altercation took place between them whereupon the appellant started beating Amjad. Thereafter the appellant was taking Amjad Ali towards Laliani Canal while dragging him and was continuously beating him. The complainant along with Zahoor Ahmad (given up PW), who was ploughing tractor in his fields, rushed towards Amjad All in order to rescue him. When the complainant and PW reached at the Canal then suddenly the appellant threw Amjad Ali in the Canal and thereafter fled away from there. The canal water was very deep so Amjad Ali did not come up. The people of the village gathered there and started searching dead body of Amjad Ali but the same was not found.
3. I have heard arguments of learned counsel for the appellant as well as learned Deputy Prosecutor General for the State assisted by the complainant at a considerable length and have also gone through the record very minutely.
4. This unfortunate incident wherein Amjad Ali, son of the complainant was done to death, as per prosecution, took place on 16.06.2008 at about 2:30 p.m. in the area of Laliani Canal situated within the territorial jurisdiction of Police Station Kahna District Lahore. The distance between the police station and the place of occurrence is about ten kilometers. The matter was reported to the police through the written application (Ex.PA) of Haleema Bibi, complainant (PW.1) on the next day i.e. 17.06.2008 at 1:35 a.m. (night) and formal FIR was got registered on 17.06.2008 at 2:10 a.m. There is a delay of eleven hours and five minutes in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court the complainant (PW.1) did not utter even a single word about the above said delay. Therefore, I 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).
5. The ocular account in this case has been furnished before the learned trial court by Haleema Bibi, complainant (PW.1) and Muhammad Younas (PW.2), who were closely related to the deceased being his mother and maternal uncle respectively and the presence of both these witnesses on the spot at the relevant time is doubtful in nature because had they been present on the spot at the relevant time why they did not try to rescue the deceased or to catch hold of the appellant who, admittedly, was not armed with any firearm to ward the said eye-witnesses off or to keep them away at the time of incident. In the FIR as well as before learned trial court it was the case of the prosecution that Amjad Ali (deceased) and the appellant were grazing cattle in the fields and due to some reason altercation took place between them whereupon the appellant started beating the deceased and dragged him towards Laliani Canal and suddenly the appellant threw the deceased in the Laliani Canal. The story cooked up by the prosecution is improbable and does not appeal to a prudent mind because it is, normal practice and conduct of culprit that when he tried to commit such type of offence, his first anxiety is to conceal his identity so that he may go scot-free unidentified but such method was not adopted in this case. I have further observed that Haleema Bibi, complainant (PW.1) was a chance witness because the occurrence took place at Laliani Canal and though the said PW was resident of the same area but her house was far away from the place of occurrence and it has been brought on record during cross-examination conducted on the complainant (PW.1) that her house was situated at a distance of five/six acres away from the place of occurrence. Even in the scaled site plan (Ex.PJ and Ex.PJ/1) the houses of said PWs have not been shown close to the place of occurrence. No convincing or plausible reason was assigned by her for her presence at the place of occurrence. Before the learned trial court, the said eye-witness has utterly failed to establish her 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 G 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). So far as the testimony of Muhammad Younas (PW.2) is concerned, the name of said PW was not cited as eye-witness in the FIR. Even in the scaled site plan (Exh.PJ and Exh.PJ/1) prepared by Hamid-ud-Din Chishti, Draftsman (PW.10) on the pointation of the PWs, the name or presence of said PW on the place of occurrence was not shown. No motive was set out in the FIR or stated before learned trial court. In the FIR as well as before learned trial court, it was claimed by the prosecution that Amjad Ali (deceased) and the appellant were grazing cattle in the field and due to some reason altercation took place between them but the real cause/reason of this incident has not been brought on record and the same remained shrouded in mystery. During the course of investigation, nothing was recovered at the instance of the appellant.
Thereafter, considering overall circumstances of the case, I am of the view that it was an un- witnessed occurrence and the evidence of both the eye-witnesses of ocular account is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
6. As 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.
7. I 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 this regard, reliance may be placed on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).
8. For the foregoing reasons, Criminal Appeal No.1590 of 2011 filed by Sana Ullah (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 13.09.2011 passed by learned trial court are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is present in Court, on bail. His surety stands discharged from the liability of bail bonds.