MUHAMMAD ARIF Versus State
SHEHRAM SARWAR CH., J .---Muhammad Arif (appellant) along with his co-accused namely Hakeem-ud-Din and Mst. Fozia was tried by the learned Addl. Sessions Judge, Multan in case FIR No.629 dated 28.10.2012, offence under sections 302 and 34, P.P.C., registered at Police Station New Multan District Multan for the murder of Muhammad Khalid alias Dhalli, brother of the complainant. Vide judgment dated 11.12.2014 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.1,00,000/- (rupees one 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, Hakeem ud Din and Mst. Fozia, co-accused of the appellant were acquitted of the charge and no appeal against their acquittal was filed either by the State or the complainant, as conceded by learned Additional Prosecutor General and learned counsel for the complainant. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No.71 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.PA/1) registered on the written application (Ex.PE) of Muhammad Wahid, complainant (PW.11) is that on 28.10.2012 at about 12:00 p.m. (noon) he (complainant) along with his brother Tahir and Nadeem Ali was standing in the street. Muhammad Khalid alias Dhalli, brother of the complainant, went to the grocery shop of Hakeem-ud-Din to purchase biscuits for the children, where Mst. Fozia and her husband Muhammad Arif (appellant) were sitting and Hakeem-ud-Din started abusing to Muhammad Khalid. Meanwhile Muhammad Tahir and Nadeem Ali also reached there. Mst. Fozia went inside the room, brought a pistol and handed over to the appellant and asked him to make fire on Muhammad Khalid. The appellant made consecutive fires, which landed on the front of chest, abdomen and left thigh of Muhammad Khalid. Hakeem-ud-Din gave a brick blow to Muhammad Khalid, which hit on his shoulder. The complainant along with Muhammad Tahir and Nadeem Ali witnessed the occurrence. Nadeem Ali tried to capture the appellant, whereupon he extended threats that if anyone came near would face the same consequences and thereafter decamped from the place of occurrence. The complainant party was shifting Muhammad Khalid in injured condition to the hospital for his medical treatment but Muhammad Khalid alias Dhalli succumbed to the injuries after reaching in the street of Madrasa Jamia ul Uloom. Motive behind the occurrence as alleged in the FIR was that Muhammad Khalid (deceased) caught red handed Muhammad Arif (appellant) while committing theft and gave him beating and due to that grudge the appellant along with his co-accused in consultation with each other committed the murder of the deceased.
3. We have heard learned counsel for the parties as well as the learned Additional Prosecutor General for the State and gone through the record with their able assistance.
4. The ocular account in this case has been furnished before the learned trial court by Abdul Wahid, complainant (PW.11) and Nadeem Ali (PW.12), who were closely related to the deceased being his brother and brother-in-law (bhenoi) respectively. The medical evidence in respect of the deceased has contradicted the ocular account as in the FIR, it was mentioned by the complainant that the appellant made consecutive fires, which landed on the front of chest, abdomen and left thigh of Muhammad Khalid (deceased). Same was the version of eye-witnesses before the learned trial court. Dr. Aamir Qayyum (PW.7) conducted postmortem examination of the dead body of deceased and observed six injuries on the body of the deceased and out of them four injuries were caused by firearm weapons. No injury on the front chest of deceased, as claimed by the witnesses of ocular account, was pointed out by the said doctor (PW.7) or shown in the postmortem report (Ex.PC) of the deceased rather the same was shown an exist wound. Moreover, the injuries Nos.2-A, 3-A and 4-A on the body of the deceased as observed by PW.7 in the post-mortem examination have not been explained in the FIR or before learned trial court. This conflict between ocular and medical evidence is not ignorable rather shattering the credibility of eye-witnesses-and creates doubt in the prosecution story. Reliance is placed on case law titled as "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) and "Safdar Abbas and others v. The State and others" (2020 SCMR 219). Moreover, as per prosecution's own case the occurrence allegedly took place in the area of Mohallah Fareedabad from where Bashir Ahmad, S.I. (PW.13) collected blood stained earth and secured the same through recovery memo (Exh.PG), attested by Nadeem Ali (PW.12) and Tahir Ali (since given up), however, the report of Punjab Forensic Science Agency (Exh.PL) qua soil is in the negative wherein it is mentioned that 'Presumptive testing indicated the presence of blood on soil taken into possession from the place of occurrence (item # 1) but the sample could not confirm as human in origin'. There is another aspect of the case. Hakeem-ud-Din, co-accused of the appellant, who as per FIR, gave a brick blow on the shoulder of the deceased, has been acquitted by the learned trial Court and as such the prosecution story to the extent of Hakeem-ud-Din, co-accused has not been proved. The question which requires consideration by this Court is as to whether the evidence which has been disbelieved to the extent of co-accused of the appellant who has been acquitted by the learned trial Court can be believed to the extent of appellant?. In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz v. The State" (2016 SCMR 1763), wherein it was held at page 1765 as under:-
"2. ...The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant."
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.
5. Motive behind the occurrence as alleged in the FIR and stated before the learned trial court was to the effect that Muhammad Khalid (deceased) caught red handed Muhammad Arif (appellant) while committing theft and gave him beating and due to that grudge the appellant along with his co-accused committed the murder of the deceased. No exact date and time as to when the appellant was apprehended by the deceased while committing theft has been mentioned in the FIR or stated before learned trial court. As conceded by the complainant (PW.11) during cross-examination, the motive part of this incident was not reported to the police. 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.
6. So far as the alleged recovery of 30 bore pistol (P.4) at the instance of Muhammad Arif (appellant) is concerned the same is immaterial because the report of PFSA (Exh.PM) qua pistol is in the negative.
7. 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 culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem v. Shabbir Ahmad and others" (2016 SCMR 1605).
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. In this regard, reliance may be placed on the-case law reported as "Muhammad Akram v. The State" (2009 SCMR 230).
10. For the foregoing reasons, Criminal Appeal No.13-J of 2015 filed by Muhammad Arif (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 11.12.2014 passed by the learned Additional Sessions Judge, Multan are set aside and he is acquitted of the charges 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.71 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Arif (convict) is NOT CONFIRMED.
JK/M-182/L Appeal allowed.