MALIK SHAHZAD AHMAD KHAN, C.J. By this single judgment we shall decide Criminal Appeal No.69111 of 2020 titled as 'Muhammad Afzal Vs. The State etc', filed by Muhammad Afzal (appellant), as well as, Murder Reference No.155 of 2020, sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Muhammad Afzal (appellant). We propose to decide both these matters by this single judgment as these have arisen out of the same judgment dated 09.12.2020 passed by the learned Addl. Sessions Judge, Gujranwala.
2. Muhammad Afzal (appellant) was tried in case FIR No.504 dated 28.12.2019 registered at Police Station Ferozwala, District Gujranwala in respect of offence under Section 302 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 09.12.2020 has convicted and sentenced Muhammad Afzal appellant as under:- Under Section 302(b) P.P.Csentenced to death as tazir for committing Qatl-i-Amd of Mst. Zareena Bibi (deceased). He was also ordered to pay Rs.500, 000/- (Rupees five hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr.P.C., recoverable as arrears of land revenue and in default thereof, to suffer imprisonment for six months S.I."
3. Brief facts of the case as given by Muhammad Imran, complainant (PW-4) in his complaint (Exh.PC), on the basis of which FIR (Exh.PB) was lodged, are that he (complainant) was a labourer by profession. Twenty years earlier the complainant's younger sister Mst. Zareena Bibi (deceased) was married to Muhammad Afzal (appellant). She had six sons and all were alive. The complainant's brother in law, namely Muhammad Afzal (appellant) very often used to beat his sister due to which his sister many a times returned to the house of her parents. A month prior to the occurrence Muhammad Afzal, appellant effected compromise with the sister of the complainant and took her to his house. On 28.12.2019, early in the morning, the complainant (PW-4) along with his paternal uncle, namely Muhammad Arshad son of Muhammad Deen caste Jatt Gill resident of Lohay Wali Pulli, Noshera Road came to the house of his sister situated at Rasool Pura Jhangi to see her. They saw that Muhammad Afzal, appellant was quarreling with the sister of the complainant (PW-4). On seeing the complainant party Muhammad Afzal, appellant cut the throat of sister of the complainant with a sharp edged sickle, who became seriously injured. Due to loss of blood she succumbed to the injury. Muhammad Afzal, appellant decamped from the place of occurrence.
4. The appellant was arrested in this case on 28.12.2019 by Muhammad Atif, Sub-Inspector (PW-11).
After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 14.03.2020, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced eleven (11) witnesses during the trial. The prosecution also produced documentary evidence in the shape of Exh.PA to Exh. PQ
6. The statements of Muhammad Afzal (appellant) under Section 342 of Cr.P.C. was recorded. The appellant refuted the allegations levelled against him and professed his innocence. Neither the appellant opted to appear 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 be produced defence evidence.
7. Muhammad Imran, complainant is present before the Court today. He is duly identified by Sajid, Sub-Inspector. He (complainant) submits that he does not want to hire the services of a private counsel in this case and will be satisfied with the arguments of learned Addl. Prosecutor-General.
Even otherwise, it is a State case and the learned Addl. Prosecutor General is ready to argue the same, therefore, we proceed to decide both these matters after hearing arguments of learned counsel for the appellant, learned defence counsel, learned Addl. Prosecutor-General for the State and perusing the record.
8. It is contended by learned counsel for the appellant and learned defence counsel at state expenses for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that there is delay of six hours and forty minutes ip lodging the FIR and delay of almost twelve hours in conducting postmortem examination on the dead-body of Mst. Zareena Bibi deceased which shows that the occurrence was unseen; that the prosecution eye-witnesses are chance witnesses as they have not given any plausible reason for their presence at the spot at the relevant time; that there is conflict between the ocular account and the medical evidence of the prosecution; that nothing incriminating was recovered on the pointing out of the appellant; that report of PFSA (Ex.PQ) was in the negative; that the prosecution has failed to prove the alleged motive against the appellant; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charge.
9. On the other hand, learned Addl. Prosecutor-General contends that the prosecution has fully proved its case against the appellant beyond the shadow of any doubt, therefore, he has rightly been convicted and sentenced by the learned trial Court; that the prosecution witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case against the appellant is substantially supported by the medical evidence furnished by the prosecution through Dr. Huma Siddiqa (PW-9); that the prosecution case against the appellant is further corroborated by the recovery of sickle (P.10) from the place of occurrence; that there is no substance in the appeal filed by the appellant, therefore, the same may be dismissed.
10. Arguments heard and record perused.
11. We have noted that no specific time of the occurrence has been mentioned in the contents of the FIR (Ex.PB) and it was simply mentioned there that the occurrence took place in the early hours of the day on 28.12.2019, however the eye-witness of the occurrence, namely Muhammad Arshad (PW-5) stated during his cross-examination that he did not know the time of reaching at the place of occurrence after Fajar prayer, however, it could be between 06:00 or 07:00 a.m. If for the sake of arguments it is presumed that the occurrence took place on 28.12.2019 at 07:00 a.m. even then the FIR (Ex.PB) was lodged on the said day at 01:40 p.m. and as such there is delay of six hours and forty minutes in lodging the FIR. The distance between the police station and place of occurrence was only 4.5 kilometers and the said witness further stated during his cross-examination that the police reached at the place of occurrence after 10 to 15 minutes of the occurrence but even then no plausible explanation has been given for the abovementioned gross delay of six hours and forty minutes in lodging the FIR (Ex.PB). The relevant parts of the statement of Muhammad Arshad (PW- 5), who was paternal uncle of the complainant (PW-4) are reproduced hereunder for ready reference:- "............I did not say "Fajar" prayer. I do not know the time of reaching at the place of occurrence after "Fajar" prayer. Voluntarily, stated it could be between 06:00 or 07:00 a.m............"
"............Police came at the place of occurrence after 10 to 15 minutes of the occurrence........"
Under the circumstances, the presence of Muhammad Imran, complainant (PW-4) and Muhammad Arshad (PW-5) at the spot at the relevant time becomes highly doubtful. We may refer here the case of "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127), wherein at Para No.5, of the judgment, the august Supreme Court of Pakistan was pleased to observe as under:- "5.............. Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate.............."
We have further noted that post-mortem examination on the dead body of Mst. Zareena Bibi (deceased) was conducted on 28.12.2019 at 06:45 p.m. and as such there is delay of about twelve hours in conducting the post mortem examination on the dead body of the deceased. The abovementioned delay in conducting the postmortem examination on the dead body of the deceased is suggestive of the fact that the occurrence was unseen and the said delay was consumed in procuring the attendance of fake eye-witnesses.In the case of 'Muhammad Ilyas v.
Muhammad Abid alias Billa and others' (2017 SCMR 54), the Apex Court of the country was pleased to observe that delay of 09 hours in conducting the postmortem examination on the dead-body of the deceased suggests that the prosecution eye-witnesses were not present at the spot at the time of occurrence therefore, the said delay\was used in procuring the attendance of fake eye-witnesses. Relevant part of the said judgment at page No. 55 reads as under:- "2............. Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution...."
Similarly, in the case of "Khalid alias Khalidi and 2 others v. The State" (2012 SCM 327), the Hon'ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time.
Similar view was taken by the Apex Court of the country in the cases reported as "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192), "Zafar v. The State and others" (2018 SCMR 326) and "Muhammad Ashraf v. The State" (2012 SCMR 419).
12. The ocular account of the prosecution was furnished by Muhammad Imran, complainant (PW- 4) and Muhammad Arshad (PW-5). They both are residents of Noshera Road, Street Lohay Wali Pulli Gujranwala, whereas the occurrence took place in the locality of Rasool Pura Jhangi of District Gujranwala. Muhammad Arshad (PW-5) stated during his cross-examination that the distance between his residence and place of occurrence was ten kilometers. Relevant part of his statement reads as under:- "..........Distance between my residence and place of occurrence was 10-kilometers............"
No special reason for visit of the house of the appellant, of the abovementioned witnesses in the early morning on the day of occurrence has been mentioned by the said witnesses. Muhammad Imran, complainant (PW-4), who was brother of the deceased has stated that Mst. Zareena Bibi (deceased) was expelled by the appellant, however, the appellant took her back one month prior to the date of occurrence and as such there was no special reason for the abovementioned witnesses to visit the house of the deceased on the day and time of occurrence. They were not residents of the locality where the occurrence took place and as such they are chance witnesses and their evidence is not free from doubt. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) at Para No.14, observed regarding the chance witnesses as under:- "14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that 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.
True that in rare cases, the testimony of chance witness may be relied upon, provided Some convincing explanations appealing to 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."
Similar view was taken in the case of "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142). Relevant part of the said judgment at Para No.2 reads as under:- ".............Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence.........."
As the above-mentioned prosecution eye-witnesses are chance witnesses and they could not prove any valid reason of their presence at the spot at the time of occurrence, therefore, their very presence at the spot at the relevant time becomes doubtful.
13. We have also noted that the conduct of the abovementioned eye-witnesses was highly unnatural. Muhammad Imran, complainant (PW-4) is real brother whereas Muhammad Arshad (PW-5) is paternal uncle of the deceased. The complainant party was compromising of two adult male members whereas the appellant was alone at the time of occurrence. As per scaled site plan (Ex.PA) the distance between the abovementioned eye-witnesses and the appellant was only ten feet at the time of occurrence. According to post mortem report (Ex.PK) of the deceased there were four injuries on her body. The appellant was not armed with any formidable weapon like firearm at the time of occurrence and he was only carrying a sickle at the relevant time. The abovementioned witnesses, who were closely related to the deceased did not try to intervene and save the deceased at the time of occurrence or even after the occurrence they did not try to apprehend the appellant at the spot. The abovementioned witnesses kept on standing like silent spectators and they allowed the appellant to inflict repeated injuries on the body of Mst. Zareena Bibi (deceased).
The abovementioned fact shows that the above-referred witnesses were not present at the spot at the relevant time. We may refer here the case of "Pathan v. The State" (2015 SCMR 315), wherein at Para No.5, of the judgment, the august Supreme Court of Pakistan was pleased to observe as under:- "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased. The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue...."
Similar view was taken by the august Supreme Court of Pakistan in the cases of "Zafar v. The State and others" (2018 SCMR 326) and "Liaquat Ali v. The State" (2008 SCMR 95). Under the circumstances, it cannot be safely held that the abovementioned eye-witnesses were present at the spot at the relevant time and they had witnessed the occurrence because their conduct is highly unnatural.
14. It is further noteworthy that the ocular account of the prosecution is in -conflict with the medical evidence because according to the ocular account the abovementioned eye-witnesses stated regarding infliction of only one injury on the neck of the deceased by the appellant with the help of sickle whereas according to the post mortem report (Ex.PK) of the deceased there were three incised wound on the neck, right hand and left cheek and one contusion around right eye extending to right forehead and tight cheek of Mst. Zareena Bibi (deceased). The remaining three injuries except Injury No.1 which was on the neck of the deceased were not explained by the abovementioned eye-witnesses. Had the abovementioned eye-witnesses seen the occurrence then they must have explained all the injuries sustained by Mst. Zareena Bibi (deceased). The Hon'ble Supreme Court of Pakistan in the case of "Usman alias Kaloo v. The State" (2017 SCMR 622) at Para No.3, observed regarding the chance witnesses as under:- "3.................... Some of the above mentioned eye-witnesses had maintained that the deceased had received only one injury at the hands of the appellant but the Postmortem Examination Report shows that the deceased had received as many as 8 injuries on different parts of his body. A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother, wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the trial court............"
Similarly in the case of "Muhammad Ali v. The State" (2015 SCMR 137) at Para No.5 the Hon'ble Supreme Court of Pakistan observed regarding ocular account and number of injuries as under:- "5. ............The medical evidence also does not support the ocular account qua the number of injuries as according to the Doctor P.W.6 the deceased had received as many as 8 injuries. Injuries Nos.6 and 8 were incised wounds, injuries Nos.1, 2 and 7 were caused by blunt weapon while injuries Nos.3, 4 and 5 were caused by firearms. Only one injury on thigh has been attributed to the appellant.........In such circumstances, the presence of the eye-witnesses at the spot is doubtful. Had they been present at the spot and had witnessed the occurrence, they could have ascribed the correct role to the accused and explain all the injuries on the person of the deceased......"
Similar view was taken by the Apex Court of the country in the case of "Irfan Ali v. The State" (2015 SCMR 840).
15. We have also noted that there are material contradictions in the statements of abovementioned eye-witnesses. Muhammad Imran, complainant (PW-4) stated that the deceased had six children and he saw two or three sons of the deceased in the house of occurrence whereas remaining two children of the deceased were playing in the street at the relevant time and they remained in the street. On the other hand, Muhammad Arshad (PW-5) had stated that only younger son of the deceased aged about three years was sitting inside the house whereas the remaining five children of the deceased were not at the house at the time of occurrence. The relevant parts of the statements of the abovementioned eye-witnesses are reproduced hereunder:- Muhammad Imran complainant (PW-4)
"I saw two or three sons of the deceased in that house of occurrence. They were Hassan aged 16- years, Husnain aged 06-years, and their two younger brothers Sohail aged 12-years, and Zohaib 10-years. They were in the street at that time at distance of 4/5-feet from the house. The children remained in the street, even after noise about the recurrence. Police came at the place of occurrence at about 08:30 or 09:00 am. At that time, the children were in the street. Voluntarily, stated once they came in the house and then they were turned out the house by someone"
Muhammad Arshad (PW-5)
"...........At the time of occurrence, youngest son of the deceased was sitting outside the house. His age was 03-years. Remaining five children of the deceased were not at home at that time..."
Likewise, Muhammad Imran, complainant (PW-4) stated that the appellant was arrested on the next day of occurrence whereas Muhammad Arshad (PW-5) stated that the appellant was arrested on the day of occurrence within two or three hours of the occurrence. The relevant parts of their statements in this respect reads as under:- Muhammad Imran, complainant (PW-4)
"............Accused was arrested on the next date of occurrence............."
Muhammad Arshad (PW-5)
"................The accused was arrested on the same day, after 2 or 3 hours of the occurrence. The accused was in police station at 02:30 p.m when I went to police station.........".
16. It is further noteworthy that two buccal swabs of Mst, Zarina Bibi (deceased), hair recovered from right and left hands of the deceased, swabs taken from the blade and handle of sickle (P-10), as well as, buccal swa b of Muhammad Afzal, appellant and his Shalwar and Qameez were also sent to the office of PFSA but according to DNA test report none from the abovementioned articles matched with the DNA profile of the appellant.
17. Insofar as recovery of sickle (P-10) is concerned we have noted that the said recovery was not effected on the pointing out of the appellant. As mentioned earlier the swabs taken from the handle and blade of sickle did not match with the DNA profile of the appellant. The said sickle was recovered on the day of occurrence by PFSA team from a drum lying at the spot but none of the prosecution eye-witnesses stated that while leaving the place of occurrence the appellant threw his sickle in the abovementioned drum. Under the circumstances, the recovery of sickle (P-10) is of no avail to the prosecution.
18. We have also noted that the complainant (PW-4) admitted during cross-examination that in the house of occurrence he saw two or three sons of the deceased and they were Hassan, aged 16 years, Husnain aged six years and their two younger brothers Sohail aged 12 years and Zohaib aged ten years. Two sons of the deceased were above twelve years and they were in a position to make statement. They being residents of the house where the occurrence took place were the most natural witnesses of the occurrence but learned APG frankly conceded that neither their statements under Section 161 Cr.P,C. were recorded during the investigation of the case nor they ever appeared before the learned trial Court, therefore, the prosecution has withheld the best piece of evidence, hence an adverse inference within the meaning of Article 129(g) of Qanun-e-Shahdat Order, 1984 can validly be drawn against the prosecution that had the abovementioned witnesses been produced in the witness box then their evidence would have been unfavourable to the prosecution. Reliance in this respect may be placed on the case reported as "Lal Khan v. The State" (2006 SCMR 1846). Relevant para No.7 of the said judgment is reproduced hereunder for ready reference:- Para No.7 "............There is no plausible explanation on the record that for what reason Mst. Noor Bibi did not disclose the story of murder of deceased till the registration of case after five days of the occurrence and why no other inmate of the house was examined in confirmation of her statement. The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
(Bold and underlining is supplied for emphasis)
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the judgments reported as "Muhammad Rafique and others v. The State and others" (2010 SCMR 385), 'Pathan v. The State'
(2015 SCMR 315) and "Riaz Ahmed v. The State" (2010 SCMR 846). We are, therefore, we are of the view that the prosecution evidence of stated eye-witnesses is not worthy of reliance and the same is hereby discarded.
19. Insofar as the motive of the prosecution case is concerned, it is noteworthy that although it has been alleged by the prosecution witnesses that appellant used to quarrel with Mst. Zareena Bibi (deceased) but admittedly the deceased was living with the appellant in his house from last 20- years. She lived with the appellant till the day of occurrence. The prosecution has not produced copy of any suit whereby the deceased sought decree for dissolution of marriage on the basis of Khula or she has ever filed any application before the concerned SHO against the appellant for quarreling with her. No specific reason of quarrel between the appellant and the deceased has been mentioned by any prosecution witness. We are, therefore, of the view that the motive alleged by the prosecution has not been proved in this case.
20. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against Muhammad Afzal (appellant) beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the truthfulness of 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 doubts about the truthfulness of the prosecution story.
21. In the light of above discussion, we are of the view that the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, therefore, we accept Criminal Appeal No.69111 of 2020 filed by Muhammad Afzal (appellant), set aside his conviction and sentence recorded by the learned trial Court vide judgment dated 09.12.2020 and acquit him of the charges by extending him the benefit of doubt. He is in custody, he be released forthwith if not required to be detained in any other case. Murder Reference No.155 of 2020 is answered in the NEGATIVE and the sentence of death of Muhammad Afzal (convict) is NOT CONFIRMED.