2022 PLP 31 (YLRN)

SHEHRAM SARWAR CH. J.

Muhammad Ashraf (appellant) along with his co-accused namely Allah Ditta and Jafar Ali was tried by the learned Sessions Judge, Sahiwal in case FIR No.398 dated 03.09.2015, offence under sections 302 and 34, P.P.C., registered at Police Station Harappa District Sahiwal for the murder of Muhammad Mansha (deceased) son of the complainant. Vide judgment dated 25.02.2017 passed by the learned Sessions Judge, Sahiwal the appellant has been convicted under section 302(b), P.P.C. and sentenced to death, with a further direction to pay Rs.15,00,000/- (rupees fifteen 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. Through the same judgment, learned trial Court acquitted Allah Ditta and Jafar Ali co-accused of the appellant while extending them benefit of doubt. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.34 of 2017 for confirmation or otherwise of appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. The complainant has filed Crl. Appeal No.348 of 2017 against acquittal of Allah Ditta and Jaffar Ali. Since all 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.PE/1) registered on the statement (Ex.PE) of Mst. Dolan Bibi, complainant (PW.3) is that about 27/28 years ago, his son Muhammad Mansha contracted marriage with Mst. Sughran Bibi and out of said wedlock three daughters and one son were born. The son of complainant divorced Mst. Sughran Bibi about eight years ago. On 03.09.2015 at about 5:00 p.m. complainant along with her son Muhammad Mansha, Faiz and Bashir were cutting maize crop in their land situated at square No.28, Kila No.12. In the meanwhile, Ashraf armed with 30 bore pistol, Allah Ditta armed with 12 bore single barrel and Jaffar armed with hatchet came in their land. Jaffar and Allah Ditta raised lalkara that Muhammad Mansha be taught a lesson for giving divorce to their sister whereupon Ashraf made a fire with 30 bore pistol hitting on left side of ribs of Muhammad Mansha due to which he became injured. Ashraf made a second fire which landed on left ear near temporal region of Muhammad Mansha who succumbed to the injuries on the spot. The accused persons fled away from the spot while raising lalkaras and making firing. Motive behind the occurrence was that eight years back Muhammad Mansha son of complainant had divorced Mst. Sughran Bibi sister of accused persons and intended to contract second marriage and due to the said grudge the accused persons committed his murder.

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

4. The ocular account in this case consists of Faiz Ahmad (PW.1), Bashir Ahmad (PW.2) and Mst. Dolan Bibi (PW.3). The presence of all these PWs on the spot at the time of incident is doubtful in nature because they did not receive even a scratch during the incident despite the fact that many fire-shots were made on the spot at the time of occurrence. Moreover, all these PWs allegedly saw the incident from a close distance but we failed to understand that in the presence of all these PWs how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased. In the FIR as well as before the learned trial Court it was the case of complainant that Muhammad Ashraf (appellant) made a fire with 30 bore pistol hitting on left side of ribs of Muhammad Mansha (deceased). He made a second fire which landed on left ear near temporal region of Muhammad Mansha (deceased). Dr. Muhammad Shahid Rasool (PW.8), who conducted autopsy of the dead-body of deceased, noted four firearm injuries on the person of deceased including two entry wounds on head near left ear and back of right side of chest. He also noted two exit wounds on back and right side of head as well as on front and left side of chest below left nipple. Admittedly, injuries Nos.2 to 4 as mentioned in the postmortem-examination-report have not been explained by the complainant in the FIR. Moreover, Faiz Ahmad (PW,1) and Bashir Ahmad (PW.2) while appearing before the learned trial Court improved the prosecution story qua injury on ribs allegedly sustained by Muhamad Mansha (deceased) at the hands of Muhammad Ashraf (appellant). Therefore, we hold that the ocular account is in direct conflict with the medical evidence and that the evidence furnished by the above said three eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant. Reliance is placed on case law titled as "Muhammad Akram v. The State and others" (2016 SCMR 2081).

5. Motive behind the occurrence was that eight years back Muhammad Mansha son of complainant had divorced Mst. Sughran Bibi sister of accused persons and intended to contract second marriage and due to the said grudge the accused persons committed his murder. Admittedly the motive incident took place about eight years prior to the main incident and during the said interregnum no untoward incident had taken place. No cogent/convincing evidence 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 substantiate motive against the appellant.

6. As far as alleged recovery of 30 bore pistol at the instance of Muhammad Ashraf (appellant) is concerned, suffice it to observe that the occurrence allegedly took place on 03.09.2015, the appellant was arrested in this case on 15.09.2015 whereas the crime empties were deposited in the office of Punjab Forensic Science Agency on 14.09.2015 i.e. just one day prior to the arrest of the appellant and as such the chances of padding cannot be ruled out. Moreover, Anjum Zia S.I. (PW.9) has stated in his cross examination that till his presence on the spot no crime empty was recovered from the place of occurrence. Moreover, there is no mention in the inquest report (Exh.PK) regarding recovery of crime empty from the place of occurrence. Therefore, we hold that this piece of evidence does not advance the case of prosecution.

7. As far as medical evidence is concerned, since we have already discussed in preceding paragraph of this judgment that there is contradiction between the ocular account and the medical evidence, therefore, there is no need to discuss the same again.

8. 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.

9. 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).

10. For the foregoing reasons, the appeal in hand filed by Muhammad Ashraf (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 25.02.2017 passed by the learned 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.

11. Murder Reference No.34 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Ashraf (convict) is NOT CONFIRMED.

12. In view of above discussion, Crl Appeal No.348 of 2017 against acquittal of Allah Ditta and Jafar Ali filed by the complainant having no merit is dismissed. JK/M-187/L Order accordingly.