2023 P Cr (PLP)

SHEHRAM SARWAR CH., J.

Muhammad Akram (appellant) was tried by the learned Addl. Sessions Judge, Sahiwal in case FIR No.748 dated 15.11.2016, offence under section 324, P.P.C. (sections 302 and 34, P.P.C. were added later on), registered at Police Station Ghalla Mandi District Sahiwal for the murder of Khalil-ur-Rehman father of the complainant. Vide judgment dated 28.04.2017 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.10,00,000/- (rupees ten 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.81 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under section 374, 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 (Ex.PC/1) registered on the application (Ex.PC) of Muhammad Nasir, complainant (PW.8) is that in the year 2008 Mst. Sadia Bibi sister of the complainant was married with Muhammad Akram (appellant) and out of said wedlock two children namely Naeem Akram and Waseem Akram were born. About 11/2 years ago, Mst. Sadia Bibi took divorce from Muhammad Akram on the basis of khula. Muhammad Akram kept the children in his custody forcibly upon which an altercation took place between Khalil-ur-Rehman father of complainant and Muhammad Akram (appellant) due to which Muhammad Akram extended him life threats. On the intervening night of 13/14.11.2016 complainant and his father were sleeping in the courtyard. Muhammad Iqbal and Abid Hussain, maternal uncle (mamo) and brother-in-law (behnoi) of complainant, respectively, who had come there as guests, were also sleeping in the courtyard on the cots. About 3:30 a.m. on alarm they woke up and saw in the light of bulb that Muhammad Akram while armed with pistol" as standing near the cot of Khalil-ur-Rehman and within their view, he made a fire which landed on the abdomen of Khalil-ur-Rehman. The complainant's party tried to apprehend Muhammad Akram who fled away while opening the outer door. Complainant shifted his father in injured condition to hospital and remained busy in treatment of his father.

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

4. The occurrence in this case allegedly took place on the intervening night of 13/14.11.2016 at about 3:30 a.m. whereas the matter was reported to the police on 14.11.2016 at 11:50 p.m. The distance between police station and the place of occurrence is just four furlong. There is a delay of about twenty hours and twenty 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 Nasir, complainant (PW.8) and Abid Hussain (PW.9) 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).

5. The ocular account in this case consists of Muhammad Nasir, complainant (PW.8) and Abid Hussain (PW.9). The presence of both these PWs on the spot at the time of incident is doubtful in nature because 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 him. The inordinate delay in the FIR. also casts doubt about their presence on the spot at the time of incident. The story of prosecution qua murder of Khalil-ur-Rehman (deceased) at the hands of Muhammad Akram (appellant) in the presence of his son, two close relatives and other inmates of the house at odd hours of night is improbable and does not appeal to a prudent mind. The complainant (PW.8) while appearing before the learned trial Court has conceded in his cross-examination that he got registered the case against the appellant while making consultation with his mother, sister and other witnesses of ocular account. Muhammad Riaz S.I. (PW.2) has stated in his cross-examination that he prepared injury statement of Khalil-ur-Rehman (deceased) but in the injury statement (Exh.PH) the name of appellant is not mentioned which fact shows that at the time of preparing injury statement as well as sending Khalil-ur-Rehman (deceased) in injured condition to hospital the complainant party was not certain about the involvement of appellant in this case. In the FIR as well as before the learned trial Court it was the case of complainant that he shifted Khalil-ur-Rehman in injured condition to hospital but in the medico-legal report the name of complainant is not mentioned. Muhammad Raiz S.I. (PW.2) has stated in his examination-in-chief that he sent the injured to hospital through Mumtaz 192/C for medical treatment but in the medico-legal-report the names of Anwar and Sharif are mentioned who accompanied the injured to hospital. We have further noted that Khalil-ur-Rehman (deceased) remained alive for about five days after the occurrence but his statement was not recorded by the police during the said period and that it was not the case of prosecution that the injured was not fit for making statement. We have further noted that the occurrence allegedly took place at odd hours of night and the complainant party saw the occurrence in the light of electric bulb but no bulb was taken into possession by the police during the course of investigation. The overall facts and circumstances of the case suggest that it was an unwitnessed occurrence and nobody was present on the spot at the time of incident. 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 in the year 2008 Mst. Sadia Bibi sister of the complainant was married with Muhammad Akram (appellant) and out of said wedlock two children namely Naeem Akram and Waseem Akram were born. About 1-1/2 years ago, Mst. Sadia Bibi took divorce from Muhamad Akram on the basis of khula. Muhammad Akram kept the children in his custody forcibly upon which an altercation took place between Khalil-ur-Rehman father of complainant and Muhammad Akram (appellant) due to which Muhammad Akram extended him life threats. The complainant (PW.8) has stated in his cross-examination that he had not produced decree of Khula of his sister Mst. Sadia at any forum during investigation. Moreover, the complainant did not get registered any criminal case against the appellant qua altercation allegedly took place between his father Khalil-ur-Rehman (deceased) and Muhammad Akram (appellant). Muhammad Amin S.I. (PW.11) has stated in his cross-examination that "it is correct that no document was produced by complainant party to prove that the accused and the deceased had quarreled with each other over custody of the children." Moreover, no independent witness qua 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. As far as alleged recovery of 30 bore pistol at the instance of appellant is concerned the same is not material because the report of Punjab Forensic Science Agency (Exh.PQ) qua pistol is simply to the effect that the same was in working order.

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

11. For the foregoing reasons, the appeal in hand filed by Muhammad Akram (appellant) is allowed, conviction and sentence awarded to him wide judgment dated 28.04.2017 passed by the learned Addl. Sessions Judge, Sahiwal are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

12. Murder Reference No.81 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Akram (convict) is NOT CONFIRMED. JK/M-183/L Appeal allowed.