It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant-

 PLJ 2022 Cr.C. 639

Delay in Post-Mortem--

----Autopsy of dead body--Delay in--Incomplete police papers--It has been held repeatedly by Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to Medical Officer to conduct postmortem examination of dead body of deceased which happens only when complainant and police remain busy in consultation and preliminary inquiry regarding culprits in such cases of unwitnessed occurrence.                                                   [P. 642] A

2011 SCMR 1190 and 2016 SCMR 1628.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Delay in post-mortem--Incomplete papers of police report--Ocular account--Testimony of witness--Testimony of PW.7 is concerned, said PW has, not given any plausible reason for his presence on spot at time of incident--He also did not receive even a scratch during incident--His place of residence has not been shown in scaled site plan close to place of occurrence--Testimony of chance witness require cautious--scrutiny and was not to be accepted unless he gives satisfactory explanation of presence at or near place of occurrence at relevant time--In FIR it was case of complainant that appellant made a fire which landed on left side of back of deceased--All pros and cons of this case and have come to this irresistible conclusion that prosecution could not prove its case against appellant beyond any shadow of doubt--Held: It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellant--Appeal allowed.

                                                                         [Pp. 642, 643] B, C & D

2011 SCMR 323 and PLD 2021 SC 660

Benefit of doubt--

----It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story.         [P. 643] E

2009 SCMR 230.

Mr. Muhammad Younas and Ch. Tayyab  Shaheen Dhillon, Advocates for Appellant.

Mr. Ahmad Saeed, Deputy Prosecutor General for State.

M/s. Shahid Azeem, Hamza Hassan Tawana and Muhammad Shafique Awan, Advocates for Complainant.

Date of hearing 4.11.2021.

Judgment

Alamdar (appellant) alongwith his co-accused namely Muhammad Sharif and Muhammad Anwar was tried by the learned Addl. Sessions Judge, Jhang in a private complaint instituted under Sections 302, 324, 337-F(iv), 109 and 34, PPC by Muhammad Iqbal, complainant being dissatisfied with the investigation conducted by the police in case FIR No. 408 dated 24.06.2009, offence under Sections 302, 324, 337-F (iv), 109 and 34 PPC, registered at Police Station Mochiwala District Jhang. Vide judgment dated 19.04.2016 the appellant has been convicted under Section 302(b), PPC and sentenced to life imprisonment with a further direction to pay Rs. 50,000/- (rupees fifty thousand only) as compensation to the legal heirs of deceased as required under Section 544-A, Cr.P.C. and in default whereof to further undergo six months simple imprisonment. Benefit of Section 382-B, Cr.P.C. was extended to the appellant. Through the same judgment learned trial Court acquitted Muhammad Anwar and Muhammad Sharif co-accused of the appellant by extending them benefit of doubt and against their acquittal complainant has filed Crl. PSLA No. 202 of 2016. The complainant has also filed Crl. Revision No. 616 of 2016 for enhancement of sentence of the appellant as well as compensation amount imposed upon him. Assailing the above conviction and sentence, the appellant has filed the appeal in hand.

2. Precisely the facts of the case are that on 24.06.2009 at 5:00 p.m. Mushtaq Ahmad (deceased) had come to the house of complainant. At about 6:00 p.m. Mushtaq Ahmad (deceased) left the house of complainant (PW.6) in order to go to his dhari. The complainant and Muhammad Ishaq (PW.7) also accompanied him. When they reached in the chowk of bazar near the house of Muhammad Waris. All of a sudden, Alamdar and Ali armed with .30 bore pistols came there on a motorcycle. Mushtaq Ahmad was ahead of them. Alamdar raised lalkara that they had come to teach a lesson to Mushtaq Ahmad for developing illicit relation with Humaira Bibi, his wife and made a fire with pistol which landed on left side of back of Mushtaq Ahmad and went through and through. Complainant stepped forward in order to attend Mushtaq Ahmad whereupon Ali (since PO) made a fire with .30 bore pistol which landed on index finger of his left hand. Muhammad Waris, PW came there while witnessing the occurrence. The other inhabitants of the locality also attracted to the spot. The accused persons while brandishing their firearms fled away from the spot on their motorcycle. Motive behind the occurrence was that Alamdar suspected that Mushtaq Ahmad had developed illicit liaison with his wife namely Mst. Humaira Bibi who was murdered by his brother Ali, one month prior to the occurrence.

The accused persons committed this occurrence at the abetment of Muhammad Sharif and Anwar.

3. Arguments heard, record perused.

4. Undisputedly, the autopsy of the dead-body of Mushtaq Ahmad (deceased) was conducted about nine hours and thirty 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 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 vs. The State" (2011 SCMR 1190) and "Nazeer Ahmed vs The State" (2016 SCMR 1628). Ocular account in this case consists of Muhammad Iqbal, complainant (PW.6) and Muhammad Ishaq (PW.7). In the FIR, private complaint as well as before the learned trial Court it was the case of complainant that Ali co-accused of the appellant made a fire with pistol which landed on index finger of left hand of complainant but Muhammad Aslam S.I. (CW.4) has stated in his examination-in-chief that the said accused was not involved in this case meaning thereby the story of complainant qua sustaining injury during the incident at the hands of Ali has been disbelieved. Moreover, on 24.06.2009 at 6:00 p.m. the complainant sustained injury but he was medically examined on 25.06.2009 at 3:20 a.m. i.e. about nine hours and twenty minutes after the occurrence and no plausible explanation has been given by the said PW as to where he remained present during the said time. In view of the above facts and circumstances, Muhammad Iqbal, complainant (PW.6) cannot be considered a truthful witness. This argument of the learned Law Officer as well as learned counsel for the complainant that presence of Muhammad Iqbal (PW.6) cannot be doubted at the place of occurrence due to the injury on his person has no substance because merely the injury on the body of a person would not stamp him/her a truthful witness. Reliance is placed on case law titled as "Amin Ali and another vs. The State" (2011 SCMR 323). So far the testimony of Muhammad Ishaq (PW.7) is concerned, the said PW has not given any plausible reason for his presence on the spot at the time of incident. He also did not receive even a scratch during the incident. His place of residence has not been shown in the scaled site plan close to the place of occurrence. He was a chance PW. In the case of "Naveed Asghar and 2 others vs. The State" (PLD 2021 SC 660), the apex Court held that testimony of chance witness require cautious. scrutiny and was not to be accepted unless he gives satisfactory explanation of presence at or near the place of occurrence at the relevant time. In the FIR it was the case of complainant that the appellant made a fire which landed on left side of back of Mushtaq Ahmad (deceased) but Dr. Syed Shabab Alam (CW.1) who conducted autopsy of dead-body of deceased noted injury on outer side of his left chest. Motive behind the occurrence was that Alamdar suspected that Mushtaq Ahmad had developed illicit liaison with his wife namely Mst. Humaira Bibi who was murdered by his brother Ali, one month prior to the occurrence. No cogent/convincing evidence qua motive part of incident was produced by the complainant during the trial and said piece of evidence has rightly been disbelieved by the learned trial Court in paragraph No. 15 of the impugned judgment. The alleged recovery of .30 bore pistol at the instance of appellant does not advance the case of prosecution because no report of PFSA qua said weapon is available on the record. Likewise the alleged recovery of motorcycle at the instance of appellant is of no avail to the prosecution because no make, model or registration of said motorcycle are mentioned in the FIR. Therefore, I hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon by maintaining the conviction/sentence of the appellant.

5. As 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 versus The State" (2009 SCMR 230).

7. For the foregoing reasons, the appeal in hand filed by Alamdar (appellant) is allowed, conviction and sentence awarded to him vide judgment dated 19.04.2016 passed by the learned Addl. Sessions Judge, Jhang are set aside and the appellant is acquitted of the charge levelled against him while extending him benefit of doubt. Alamdar, 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. PSLA No. 202 of 2016 against acquittal of co-accused of appellant namely Muhammad Sharif and Muhammad Anwar as well as Crl. Revision No. 616 of 2016 filed by complainant for enhancement of sentence of appellant having no merits are dismissed.

9. Before parting with this judgment, it is clarified that the observations recorded in this judgment are relevant only for the disposal of this appeal which shall not influence the learned trial Court in any manner whatsoever in case of arrest and trial of Ali co-accused of the appellant who was proclaimed offender at the time of pronouncement of the impugned judgment.

(A.A.K.)          Appeal allowed