2022 PLP 28 (YLRN)

SHEHRAM SARWAR CH. J.

Ameer Hussain (appellant) was tried by the learned Addl. Sessions Judge, Khanewal in case FIR No.289 dated 11.09.2013, offence under section 302, P.P.C., registered at Police Station Kacha Khu District Khanewal for the murder of Abdul Kareem Khan son of the complainant. Vide judgment dated 11.10.2017 passed by the learned trial Court, Ameer Hussain (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, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.161 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 are being decided together through this single judgment.

2. Prosecution story, as set out in the FIR (Exh.PJ) registered on the written application (Exh.PJ/1) of Muhammad Ashraf Khan, complainant (not produced) is that on 11.09.2013 at 12:30 p.m. complainant along with his sons Muhammad Mukhtar, Muhammad Anwar and Abdul Kareem were eating meal while sitting in his baithak. In the meanwhile Ameer Hussain armed with churri knocked the door of baithak. Abdul Kareem who was sitting near the door stood up and just went out while opening the door, Ameer Hussain inflicted churri blow which landed on left side of his chest who fell down after sustaining injuries. The complainant along with his sons tried to apprehend Ameer Hussain but he succeeded in fleeing away from the spot. The complainant party attended Abdul Kareem in injured condition and shifted him to District Headquarters Hospital Khanewal through rescue 1122 from where the doctor referred him to Nishtar Hospital due to his precarious condition but on the gate of District Headquarters Hospital he succumbed to the injuries. Motive behind the occurrence was that on the fateful day at morning time an altercation took place between Abdul Kareem (deceased) and Ameer Hussain (appellant) and due to the said grudge the appellant committed is murder.

3. We have heard learned counsel for the appellant as well as learned DDPP for the State and gone through the record with their able assistance.

4. The occurrence in this case allegedly took place on 11.09.2013 at 12.30 p.m. whereas the matter was reported to the police on the same day at 8:00 p.m. The distance between police station and the place of occurrence is ten miles. There is a delay of about seven hours and thirty 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 both the witnesses of ocular account namely Muhammad Anwar Khan (PW.9) and Mukhtar (PW.10) 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 deceased was conducted about nine 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 the deceased which happens only when the complainant and police are 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. The ocular account in this case consists of Muhammad Anwar Khan (PW.9) and Mukhtar (PW.10). 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. The delay in the FIR as well as postmortem examination of the dead-body of deceased also casts doubt about their presence on the spot at the time of incident. In the FIR as well as before the learned trial Court it was the case of prosecution that Abdul Kareem Khan (deceased) in injured condition was shifted to District Headquarters Hospital, Khanewal through rescue 1122 but no PW of rescue 1122 was produced by the prosecution during the trial to substantiate the version of complainant. It was also the case of complainant that Abdul Kareem Khan in injured condition was referred to Nishtar Hospital but Muhammad Anwar Khan (PW.9) has stated in his cross-examination that they did not get any death slip from Nishtar Hospital. Muhammad Anwar Khan (PW.9) has stated in his cross-examination that "I did not inform police on

15. My brother Mumtaz had later on informed police on 15 when we had proceeded to the hospital" but Mukhtar (PW.10) has stated in his examination-in-chief-that Ashraf Khan informed the local police about the occurrence, however, the said PW has stated in his cross-examination that no one made call at

15. 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 on the fateful day at morning time an altercation took place between Abdul Kareem (deceased) and Ameer Hussain (appellant) and due to the said grudge the appellant committed his murder. Ghulam Mustafa S.I. (PW.13) has stated in his cross-examination that "I interrogated about the motive of this case which was nothing but accused and deceased was habitual of addicts". No detail as to on which issue altercation took place between the appellant and the deceased has been brought on record. Moreover, no independent witness qua motive part of incident was produced by the prosecution during the trial. Therefore, we hold that prosecution has failed to prove motive against the appellant.

7. So far as the alleged recovery of churri at the instance of appellant is concerned the same is immaterial because no report of Punjab Forensic Science Agency qua said weapon is available record.

8. 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 culprit implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605).

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. Reliance is placed on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).

11. For the foregoing reasons, Criminal Appeal No. 368 of 2018 filed by the appellant is allowed, conviction and sentence awarded to him vide judgment dated 11.10.2017 passed by the learned Additional Sessions Judge, Khanewal are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Ameer Hussain appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

12. Murder Reference No.161 of 2017 is answered in NEGATIVE and the sentence of death awarded to Ameer Hussain (convict) is NOT CONFIRMED. JK/A-103/L Appeal allowed.