2023 PLP 78 (YLRN)

SHEHRAM SARWAR CH. J.

Muhammad Aslam (appellant) was tried by the learned Addl. Sessions Judge, Multan in case FIR No.463 dated 03.07.2016, offence under Section 302, P.P.C., registered at Police Station Seetal Mari District Multan for the murder of Mst. Nazia Bibi, sister of the complainant. Vide judgment dated 28.03.2017 passed by the 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.5,00,000/- (rupees five lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of 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.51 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 (Ex.PA) registered on the statement (Ex.PH) of Muhammad Imran, complainant (PW.7) is that Mst. Nazia Bibi, sister of the complainant, was married to Muhammad Aslam (appellant) and out of this wedlock a daughter Ayesha Aslam was born. Both the spouses used to quarrel with each other as the appellant was jobless and did not pay maintenance, etc. to Mst. Nazia Bibi. The relations between the spouses became strained time and again, but the matter was patched up through panchayat. On the preceding night, Mst. Nazia Bibi sent a message, upon which today at around 10:00 a.m. he (complainant) along with Muhammad Ibrahim and Muhammad Boota was coming to the house of Mst. Nazia Bibi at Abbas Town and when they reached near Abbas Town, they saw that the appellant was beating Mst. Nazia Bibi in an open field near maize crop in front of house of Muhammad Imran. Meanwhile, the appellant, who was armed with bugda, gave its repeated blows to Mst. Nazia Bibi, which hit on her hands and different parts of body. Mst. Nazia Bibi ran away from there and at some distance the appellant while chasing her inflicted blows on the head of Mst. Nazia Bibi, as a result whereof she fell on the ground. The appellant also gave bugda blow in front of neck of Mst. Nazia Bibi while she was in fallen position due to which she started writhing. The appellant while throwing the bugda escaped from the place of occurrence. Mst. Nazia Bibi was attended to by the complainant party but she succumbed to the injuries on the spot. The occurrence was witnessed by the complainant along with the PWs. Motive behind the occurrence as alleged in the FIR was that the appellant was jobless due to which the relations between the spouses were strained and they oftenly used to quarrel with each other. Owing to that reason, the appellant committed the murder of the deceased.

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

4. This tragic incident wherein Mst. Nazia Bibi (deceased) sister of complainant lost her life, as per prosecution, took place on 03.07.2016 at about 10.00 a.m. and the matter was reported to the police through statement (Ex.PH) of complainant on the same day at 10.50 a.m. but the postmortem examination of the dead body of deceased was conducted on the same day at 10.00 p.m. i.e. after the delay of about twelve hours of the incident. 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 remain 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 has been furnished before the learned trial court by Muhammad Imran, complainant (PW.7) and Muhammad Boota (PW.8), who were closely related to the deceased being brother and brother-in-law (behnoi) respectively. 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. We have further observed that both the witnesses of ocular account were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. The incident took place at Seetal Mari District Multan whereas the eye-witnesses were residents of Kassowal Tehsil Chichawatni District Sahiwal. The complainant (PW.7) while appearing before learned trial court has stated in his examination-in-chief that one day prior to the occurrence Mst. Nazia Bibi (deceased) requested him to come to her house and took her with him as the appellant was physically torturing her, if it was so, then as to why he did not visit the house of the deceased on the same day for taking her to his house. Before the learned trial court, the eye-witnesses have utterly failed to establish their 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 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). Under the circumstances, we are of the view that it was an unwitnessed occurrence and the eye-witnesses were not present on the spot.

6. Motive behind the occurrence as alleged in the FIR and brought before the learned trial court was to the effect that the appellant was jobless due to which the relations between the spouses were strained and they oftenly used to quarrel with each other. Owing to that reason, the appellant committed the murder of the deceased. Undoubtedly quarrel between the spouses is not unusual in our culture but merely on this reason it is not expected that a husband will kill his wife. No cogent/convincing evidence qua motive part of incident was produced by the prosecution during the trial. 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 prove motive against the appellant.

7. So far as alleged recovery of blood stained clothes i.e. shalwar (P.3) and kameez (P.4) of appellant, which was taken into possession through recovery memo (Ex.PC) is concerned, the same is immaterial because the appellant was arrested in this case on 4.7.2016 and got recovered clothes stained with blood from his personal possession whereas contrary to that, Javed Hussain, Inspector/I.O. (PW.9), conceded during cross-examination that as per statement of Muhammad Imran, 906/H.C. (PW.1), he (PW.9) handed over three parcel said to contain blood stained earth, bugda and blood stained clothes of accused on 03.07.2016 i.e. one day prior to the arrest of the appellant. As far as the alleged recovery of mobile phone (P.2) at the instance of appellant is concerned the same does not advance the case of prosecution because it was an ordinary thing, easily available in the market.

8. As far as medical evidence is concerned, the same may 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 this regard, reliance may be place on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).

11. For the, foregoing reasons, Criminal Appeal No.515 of 2018 filed by Muhammad Aslam (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 28.03.2017 passed by the learned Addl. Sessions Judge, Multan are set aside and he 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.51 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Aslam (convict) is NOT CONFIRMED. JK/M-190/L Appeal allowed.