BABAR MASIH Versus State
SHEHRAM SARWAR CH., J.--- Babar Masih (appellant) was tried by the learned Addl. Sessions Judge, Kasur in case FIR No.494 dated 18.11.2014, offence under sections 302 and 34, P.P.C., registered at Police Station Kot Radha Kishan District Kasur for the murder of Manzoor Ahmad (deceased) father of complainant. Vide judgment dated 23.12.2017 passed by the learned trial court, the appellant was convicted under section 302(b), P.P.C. and sentenced to death with a further direction to pay Rs.1,00,000/- (rupees one Iakh only) as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo 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.95 of 2018 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, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Exh.PC) registered on the application (Ex.PC/1) of Allah Wasaya, complainant (PW.6) is that on the fateful night, his father Manzoor Ahmad slept in the courtyard of the house whereas he (complainant), his brother Muhammad Faryad and paternal uncle Muhammad Ramzan were sleeping in the veranda of the house. His mother and sisters were present nearby them on their cots. At about 11:00 night on hue and cry of Manzoor Ahmad, complainant, Faryad and Muhammad Ramzan woke up. Three unknown accused persons, out of whom, one was armed with .30 bore pistol and two were empty-handed grappled with Manzoor Ahmad. They went towards them in order to rescue Manzoor Ahmad and within their view the unknown accused person, armed with .30 bore pistol, made a straight fire hitting on right side of chest of Manzoor Ahmad who fell down and succumbed to the injury. The bulb was lit in the courtyard. On seeing them the accused persons fled away while scaling over the wall.
3. We have heard learned counsel for the appellant as well as learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
4. Undeniably, the postmortem examination of the dead-body of Manzoor Ahmad (deceased) was conducted about twelve hours and fifteen minutes after the occurrence. 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 post-mortem 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 consists of Allah Wasaya, complainant (PW.6), Muhammad Ramzan (PW.7) and Shazia Bibi (PW.11). The appellant is not nominated in the FIR either by name of description. In the first information report (Exh.PC), it was the case of complainant that on the night of 18.11.2014 at 11:00 p.m. three unknown accused persons entered his house out of whom one of accused made a fire with 30 bore pistol which landed on right side of chest of his father namely Manzoor Ahmad (deceased). It was further alleged in the FIR that the bulb was lit in the courtyard of the house at the time of incident and that the accused persons could be identified on their confrontation but no bulb was taken into possession by the Investigating Officer during the course of investigation. Thereafter, the appellant was implicated in this case on 22.11.2014 through supplementary statement (Exh.DA) of complainant mentioning therein that he came to know through reliable sources that Babar Masih (appellant) committed the murder of his father by making a fire. It is not mentioned in the said supplementary statement as to from which source the complainant came to know about the name of the appellant. The supplementary statement (Exh.DA) was got recorded by the complainant about four days after the occurrence without there being any satisfactory explanation. The complainant (PW.6) has clarified in his cross-examination that he came to know about the name of appellant through his sister namely Shazia Bibi. The complainant has further stated in his cross-examination that "My sister Shazia Bibi started working under the employment of accused, on daily wages about 3/4 years prior to the occurrence. Accused Babar Masih used to visit our house during the period of his employment of my sister. I met with accused Babar Masih for number of time". Meaning thereby the complainant was well acquainted with the appellant prior to the incident, if it was so, then as to why he did not nominate the appellant straightway in the FIR. So far as testimony of Muhammad Ramzan (PW.7) is concerned, the presence of said PW on the spot at the time of incident is doubtful in nature because he was closely related to the complainant but he did not make even an abortive attempt to save the deceased from the clutches of the appellant. We have further noted that the prosecution case was mainly based upon the statement of Shazia Bibi (PW.11) who has stated in her examination-in-chief that on the fateful night the appellant came to her house in order to meet her who was apprehended by her father and the appellant committed his murder by making a fire. Admittedly, the name of Shazia Bibi (PW.11) is not mentioned in the FIR. The statement of said PW under section 161, Cr.P.C. was recorded by Noor Ahmad S.I. (PW.8) on 18.09.2015 i.e. about ten months after the occurrence. It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. Reliance is placed on case law titled as "Muhammad Khan v. Maula Bakhsh and another" (1998 SCMR 570). Moreover, the affidavit (Exh.DB) executed by Shazia Bibi (PW.11) about the occurrence has no value in the eye of law. Therefore, we hold that the evidence of above three eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellant.
6. So far as alleged recovery of 30 bore pistol at the instance of appellant is concerned the same is immaterial because the appellant got recovered the same from nearby an electric pole which was an open place, accessible to everyone.
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 the appellant 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 of the 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 placed on case law titled as "Muhammad Akram v. The State" (2009 SCMR 230).
10. For the foregoing reasons, the appeal in hand is allowed, conviction and sentence awarded to the appellant vide judgment dated 23.12.2017 passed by the learned Addl. Sessions Judge Kasur are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Babar Masih, appellant is in jail. He shall be released forthwith if not required to be detained in any other case.
11. Murder Reference No.95 of 2018 is answered in the NEGATIVE and the sentence of death awarded to Babar Masih (convict) is NOT CONFIRMED.
JK/B-7/L Appeal allowed.