2026 PLP 783 (SCMR)

ISHTIAQ IBRAHIM, J.

Muhammad Siddique, the petitioner, charged for committing murder of Ghulam Fareed, the deceased, in case FIR No.312 dated 14.09.2015, registered under section 302 of the Pakistan Penal Code, 1860 ( P.P.C. ), at Police Station Pindigheb, District Attock, was tried by the Additional Sessions Judge, Pindigheb. Upon conclusion of trial, the Trial Court vide judgment dated Ol.06.2017, convicted the petitioner under section 302(b) P.P.C. and sentenced him to death as Ta azir and to pay Rs.5,00,000/-, as compensation under section 544-A of the Code of Criminal Procedure, 1898 ( the Code ) to legal heirs of the deceased and in default thereof to further undergo six months simple imprisonment.

2. The Lahore High Court, Rawalpindi Bench, Rawalpindi ( the High Court ), while dismissing the appeal of the petitioner-convict, maintained his conviction under section 302(b), P.P.C., but commuted the sentence of death to imprisonment for life. Consequently, the High Court answered Murder Reference No. 56 of 2017, forwarded by the Trial Court for confirmation or otherwise of the death sentence of the petitioner-convict, in the negative vide its judgment dated 04.03.2020 ( impugned judgment ).

3. Through Criminal Petition No. 346 of 2020, the petitioner-convict seeks leave to appeal against the impugned judgment of the High Court. Conversely, through Criminal Petition No. 417 of 2020, the complainant-petitioner, Sikandar Din, seeks enhancement of the sentence of the convict-respondent from imprisonment for life to the normal penalty of death prescribed for the offence under section 302 P.P.C.

4. The prosecution s case, as unfolded in the First Information Report (FIR) E;xh.PG/ 1, is that on 14.09.2015 Sikandar Din complainant (PW.7) was grazing his cattle in the fields known as Ghoti Parri. At some distance, Abdul Ghani and Rukhan Din were also grazing their cattle. At about 06:00 p.m., Ghulam Fareed son of the complainant, serving in Kohat Cement Factory, arrived at the spot and met his father. When he proceeded towards Talikna, the petitioner-convict Muhammad Sidduqe, allegedly ambushed in a Kassi armed with a Kalashnikov, emerged and raised a Lalkara that he would teach a lesson for desertion of his daughter Mst. Shazia and opened fire on Ghulam Fareed, as a result, he got hit fell to the ground and died on the spot. The occurrence was allegedly witnessed by the complainant as well as Abdul Ghani and Rukhan Din. The motive behind the crime, according to the complainant, was that Mst. Shazia daughter of the petitioner had been married to Muhammad Hanif, another son of the complainant, but subsequently she was deserted from her husband s home due to which the petitioner harboured animosity and, acting on such grudge, committed the offence.

5. Upon arrest of the petitioner and completion of investigation, report under section 173 of the Code was submitted against him before the Trial Court. After facing regular trial, the petitioner was convicted and sentenced by the trial Court as detailed in the initial part of the judgment. The learned High Court while maintaining the conviction of the petitioner commuted the death sentence into imprisonment for life through the impugned judgment.

6. We have heard the arguments of learned counsel for the parties as well as the Deputy Prosecutor General, Punjab, appearing on behalf of the State and perused the record, evidence and the judgments of the Courts below.

7. Keeping in view the time of occurrence i.e. 6:00 p.m. in the month of September, which ordinarily corresponds with sunset, the presence of the complainant Sikandar Din (PW-7) and the other alleged eye-witness Abdul Ghani (PW-8), in the fields for the purpose of grazing their cattle, coupled with the arrival of the deceased purportedly to meet them while he was employed at the Kohat Cement Factory, appears highly improbable story on the part of the alleged eye-witnesses. It is a matter of common rural experience that villagers take their cattle for grazing early in the morning, return home around noon, and then take them out again in the afternoon, ensuring their return well before sunset. The claim of the alleged eye-witnesses that they were grazing their cattle at the very fag end of the day thus seems to be highly improbable. The complainant s cross-examination further casts a shadow of doubt on his presence at the spot. He admitted that someone from the spot informed him about the occurrence and that people advised him not to approach the police station, as the petitioner-convict was armed with a Kalashnikov and might kill him as well. If the complainant had actually witnessed the incident, it defies logic and normal human conduct that others would need to apprise him of the petitioner-convict s presence or advise him not to visit Police Station.

8. Another disturbing aspect that renders the prosecution s case doubtful relates to the family relationship between the parties. The complainant himself stated that two daughters of the petitioner-convict were married to his two sons. The daughter married to the deceased was living with him along with their three children in an atmosphere described as cordial and harmonious. The other daughter of the petitioner-convict, namely, Mst. Shazia, was living in her parental home due to strained with her husband Hanif. If this was the prevailing domestic situation, the alleged murder of the deceased, against whom the petitioner-convict had no motive, is wholly uncomprehensible. The complainant has offered no cogent explanation as to why the petitioner-convict would commit such a grave offence against a son-in-law with whom no animosity existed so as to make his grand children orphans and daughter a widow. The inconsistencies and improbabilities, referred above makes the prosecution s case highly doubtful.

9. Another purported eye-witness, Abdul Ghani, appeared as PW-8. In his examination-in-chief he supported, in material terms, the version put forth by the complainant. However, during cross-examination he conceded that he was a resident of village Guliyal, Tehsil Jhand, and that his CNIC reflected the same address. In these circumstances, Abdul Ghani clearly was a chance witness. It is a well-settled principle of law that the testimony of a chance witness is to be relied upon after great care and caution, and before reliance can be placed upon it, such a witness must convincingly prove his presence at the scene of occurrence through strong, natural, and independent circumstances. We have gone through the testimony of PW Abdul Ghani. He admitted that there existed a jungle on both sides of his house. The complainant has also admitted the said fact by stating that PW Abdul Ghani ordinarily grazed his cattle in the jungle near his house, which was situated at a distance of approximately 20 25 minutes walk from the place of occurrence. It is, therefore, highly improbable that PW Abdul Ghani would have been present at the spot at the relevant time for grazing his cattle, particularly at that late hour of the evening. No plausible explanation has been offered by PW Abdul Ghani as to why, when suitable grazing land existed near his own house, he chose to take his cattle to a distant location at sunset time. PW Abdul Ghani, thus, remained unsuccessful to prove his presence at the spot at the time of occurrence through some strong and convincing evidence.

10. The unexplained delay in lodging the FIR is yet another strong circumstance making the presence of the alleged eye-witnesses at the spot at the time of occurrence highly doubtful. As per the FIR, the occurrence took place on 14.09.2015 at 6:00 p.m., but the matter was reported to the police at 11:20 p.m, after an unexplained delay of more than five hours, despite the fact that the police station Pindigheb was merely 17 kilometres from the place of occurrence. Such delay, without any satisfactory explanation, not only erodes the credibility of the prosecution s case but also renders the presence of the alleged eye-witnesses at the time of occurrence highly doubtful. Complainant Sikandar Din (PW.7) in his report and statement has not furnished any explanation for the said delay. It is settled law that unexplained delay in reporting the occurrence, creates doubt in the prosecution s case and its benefit has to be extended and construed in favour of the accused. In case titled, Mst. Asia Bibi v. The State and others (P L D 2019 Supreme Court 64), this Court has held that in absence of any plausible explanation, the delay in lodging of FIR is always considered to be fatal, as it casts suspicion on the prosecution story. In case of Zeeshan @ Shani v. The State (2012 SCMR 428), this Court observed that unexplained delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected by prosecution and the time was consumed in making effort to give a coherent attire to the prosecution s case, which hardly proved successful. Same is the view of this Court in case of Muhammad Fiaz Khan v. Ajmer Khan (2010 SCMR I05).

11. The postmortem examination of the deceased was conducted on the following day of occurrence i.e. 15.09.2015 at 12:20 a.m. by Dr. Ijaz Ahmed (PW-4). No explanation, much less a plausible one, has been furnished by the prosecution for this delay. It is also well-settled that unexplained delay in conducting a postmortem examination raises serious doubts regarding the veracity of the ocular evidence and the presence of the alleged eye-witnesses at the spot at the time of occurrence. This Court, in Muhammad Ilyas v. Muhammad Abid alias Billa and others (2017 SCMR 54), held that such delay in the postmortem examination may indicate that the eye-witnesses were not present at the spot and that the intervening time was consumed in procuring their attendance. Further reliance may also be placed on the judgments of this Court in Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327), 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 prosecution has failed to establish the alleged motive against the petitioner-convict. As regards the recovery of twelve (12) empties from the crime spot and the Kalashnikov (Exh.P-5) on the pointation of the appellant-convict, and positive PFSA report (Exh.PN) in respect thereof, the same would not advance the prosecution s case because it is well-settled that such piece of circumstantial evidence, when the direct evidence of the prosecution has already been disbelieved, cannot form the basis for conviction, particularly in a capital charge. Circumstantial evidence derives its weight and efficacy only when considered in conjunction with reliable direct evidence, and not in isolation. In this context, reliance may be placed on the principles laid down by this Court in Ijaz Ahmed v. The State (1997 SCMR 1279) and Asadullah v. The State (PLD 1971 SC 541), wherein it was held that circumstantial evidence must supplement credible direct evidence to sustain a conviction. Similarly, in Saifullah v. The State (1985 SCMR 410), it was observed by this Court that when there is no eye-witness evidence of reliance, then there is nothing which can be corroborated by the recovery. in the present case, since the ocular evidence of the prosecution has been disbelieved, therefore, the alleged recovery, by itself, cannot sustain a conviction of the petitioner-convict.

13. Upon an independent appraisal of the evidence on record, we have reached the irresistible conclusion that the courts below, by failing to appreciate the evidence in its true perspective and by overlooking the contradictions, improbabilities, and infirmities in the testimony of the alleged eye-witnesses, have arrived at an erroneous conclusion in holding the petitioner-convict guilty of the offence. The prosecution case is replete with doubts, the benefit of which must, in law, accrue to the petitioner-convict. It is a well-settled principle of law that for extending the benefit of doubt, it is not necessary that multiple circumstances creating doubt should exist; even a single circumstance which creates a reasonable doubt in a prudent mind is sufficient to entitle an accused to such benefit, not as a matter of grace or concession, but as a matter of legal right. Reliance in this regard may be placed on the judgments of this Court in Muhammad Mansha v. The State (2018 SCMR 772) and Najaf Ali Shah v. The State (2021 SCMR 736).

14. For the foregoing reasons, Criminal Petition No.346 of 2020 is converted into an appeal and allowed. The conviction and sentence of the petitioner/appellant recorded by the courts below are set-aside and he is acquitted of the charge levelled against him. He shall be released forthwith if not confined in any other case. Criminal Petition No.417 of 2020

15. On acquittal of the respondent-convict, the instant petition for enhancement of his sentence has become infructuous, therefore, the same is dismissed. JK/M-1/SC Petition dismissed.