2022 PLP 201 (YLRN)

SHEHRAM SARWAR CH. J.

Naveed Shah (appellant) was tried by learned Addl. Sessions Judge, Shorkot in case FIR No.308 dated 23.10.2014, offence under section 302, P.P.C., registered at Police Station Waryam District Jhang for committing murder of Mst. Amtar Shaheen, wife of the complainant. Vide judgment dated 23.02.2016 passed by learned trial court, the appellant has been convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a further direction to pay Rs.2,00,000/- as compensation under section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo six months S.I. Benefit of section 382-B, Cr.P.C. was extended to the appellant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the complainant also preferred Crl. Revision No.347 of 2016 for enhancement of sentence of the appellant. 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 (Ex.PA/1) registered on the statement (Ex.PA) of Muhammad Raza, complainant (PW.1) is that four years back, he had contracted marriage with Mst. Amtar Shaheen and out of this wedlock two children were born. Some time ago, Mst. Amtar Shaheen after being annoyed went to the house of her parents and thereafter he (complainant) also started to live there but four months prior to the occurrence he went to his house at Sheikh Choharr. On 22.10.2014 he went to the house of his in-laws to make reconciliation and his father-in-law and mother-in-law were agreed upon but his brother-in-law namely Naveed Shah (appellant) did not accede to. At about 8:30 a.m. he (complainant), Pir Shah and Aftab Shah were present at the house of his in-laws whereas Mst. Amtar Shaheen was baking breads. Meanwhile, the appellant armed with 30 bore pistol came there and within the view of complainant party he made a straight fire at Mst. Amtar Shaheen, which landed on the left side of her head and resultantly she fell down. Mst. Amtar Shaheen was attended to by the complainant party but she succumbed to the injury on the spot. The occurrence was witnessed by the complainant along with Pir Shah, Aftab Shah and Faisal Shah. Motive behind the occurrence as alleged in the FIR was that the appellant was not willing to send his sister Mst. Amtar Shaheen (deceased) with the complainant and due to that grudge, the appellant committed murder of the deceased.

3. Arguments heard. Record perused.

4. This occurrence allegedly took place on 23.10.2014 at 8:30 a.m. whereas the matter was reported to the police on the same day at 10:40 a.m. The distance between police station and the place of occurrence is ten kilometers. There is a delay of about two hours and ten minutes in reporting the crime to the police without there being any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account did not utter even a single word about the above said delay. Therefore, I 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). Moreover, there is noticeable delay of eight hours and thirty minutes in the postmortem examination of the dead-body of Amtar Shaheen (deceased). 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). The ocular account in this case consists of Muhammad Raza, complainant (PW.1) and Faisal Shah (PW.2). 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 I failed to understand that in the presence of both these PWs who were closely related to Amtar Shaheen how such tragedy with deceased could happen without any intervention on their part to rescue her. I have further noted that the ocular account is in direct conflict with the medical evidence because in the FIR it was the case of prosecution that Naveed Shah (appellant) made a fire with pistol which landed on left side of head of Amtar Shaheen (deceased) but Dr. Shaheen Shakoor (PW.5) who conducted autopsy of the dead-body of deceased noted the said injury as an exit wound. Moreover, the complainant in the supplementary statement as well as while appearing before the learned trial Court changed the locale of injuries alleged caused by appellant on the person of deceased by stating that Naveed Shah (appellant) made a fire with pistol which landed on right side of nose of Amtar Shaheen and made its exit from left back side of head. The occurrence allegedly took place at mouza Rustam Sargan whereas the complainant,(PW.1) was resident of mouza Sheikh Chuhar which was far away from the place of occurrence. The said PW has no place of business or agricultural land near the place of occurrence. He was a chance witness. In the case of "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600), the apex Court held that testimony of chance witnesses require cautious scrutiny and was not to be accepted unless they give satisfactory explanation of presence at or near the place of occurrence at the relevant time. The other witness of ocular account namely Faisal Shah (PW.2) has not given any plausible reason for his presence on the spot at the time of incident. The house of said PW has not been shown in the scaled site plan close to the place of occurrence. The most important witness of the occurrence was Fazal Shah father of the deceased who was inmate of the same house where the incident took place but he was not produced by the prosecution during the trial.' Therefore, the prosecution withheld best available evidence and in view of Article 129(g) of Qanun-e-Shahadat Order, 1984, adverse inference, that had this witness been produced before the learned trial court he would not have supported the prosecution case, can safely be drawn against the prosecution. Reliance is placed on case law titled as "Lal Khan v. The State" (2006 SCMR 1846) and "Muhammad Rafique and others v. The State and others" (2010 SCMR 385). I have further noted that no solid evidence qua motive part of incident was produced by the prose-cution during the trial. The alleged recovery of 30 bore pistol at the instance of appellant is concerned the same is immaterial because no crime empty was secured by the I.O. at the time of spot inspection.

5. 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.

6. I 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 placed on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).

7. For the foregoing reason, the appeal in hand filed by Naveed Shah, appellant is allowed, conviction and sentence awarded to him vide judgment dated 23.02.2016 passed by the learned trial Court are set aside and he is acquitted of the charge while extending him benefit of doubt. Naveed Shah, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.

8. In view of above discussion, Crl Revision No.347 of 2016 filed by the complainant having no merits is dismissed. SA/N-35/L Appeal allowed.