-Testimony-Testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for was presence at crime spot are put forth, when occurrence took place otherwise his testimony would fall within category suspect evidence and cannot be accepted without a pinch of salt.

 PLJ 2022 Cr.C. 410 (DB)

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

----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Qatl-i-amd--Motive--Quarrel between spouses--Alleged recovery of sota--Medical evidence--Testimony of chance witness--Ocular account--Eye-witnesses had statedly seen occurrence when they entered house of deceased and we found it to be quite strange that if appellant had to murder deceased, then he did not have to wait for arrival of said witnesses for starting infliction of injuries upon deceased--It is well settled by now that any piece of evidence which was not put to an accused while recording his statement under Section 342, Cr.P.C. cannot be used against him--Even otherwise, no independent witness qua motive was brought in witness box at time of trial--Prosecution has not been able to substantiate motive part of occurrence--As far as medical evidence is concerned, same may confirm ocular account with a regard to receipt of injury, locale of injury, kind of weapon used for causing injury, duration between injury and death but it would not tell name of assailants--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--Further held: It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story.

                                                          [Pp. 413, 414 & 415] A, D, E & G

2009 SCMR 230 1995 SCMR 599, 2015 SCMR 1142 and
2016 SCMR 2021 ref.

Benefit of doubt--

----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.           [P. 415] F

Testimony of Chance Witness--

----It is in this context that testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at crime scene at relevant time--In normal course, presumption under law would operate about his absence from crime spot.                                   [P. 413] B

Chance witness--

----Testimony-Testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for was presence at crime spot are put forth, when occurrence took place otherwise his testimony would fall within category suspect evidence and cannot be accepted without a pinch of salt.          

                                                                                 [Pp. 413 & 414] C

2015 SCMR 1142 and 2016 SCMR 2021.

Mr. Bader Raza Gillani, Advocate for Appellant.

Ch. Muhammad Akbar, Addl. Prosecutor General for State.

Ch. Muhammad Saeed Machra, Farzan Hashmat Ch. and Malik Muhammad Awais, Advocates for Complainant.

Date of hearing: 14.9.2021.

 PLJ 2022 Cr.C. 410 (DB)
[Lahore High Court, Multan Bench]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
MUHAMMAD KHALIL AHMAD--Appellant
versus
STATE and another--Respondents
Crl. A. No. 138 & M.R No. 29 of 2017, heard on 14.9.2021.

Judgment

Shehram Sarwar Ch., J.--Muhammad Khalil Ahmad (appellant) was tried by the learned Addl. Sessions Judge, Multan in case FIR No. 147 dated 28.04.2015, offence under Section 302, PPC, registered at Police Station Qadirpur Raan District Multan for committing murder of Mst. Samina Bibi, sister of the complainant. Vide judgment dated 28.02.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 5,00,000/- (rupees five lakh only) as compensation under Section 544-A, Code of Criminal Procedure, to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for 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. 29 of 2017 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 (Ex.PA) registered on the statement (Ex.PG) of Muhammad Sajjad, Complainant (PW.6) is that about twelve years ago, Mst. Samina Bibi sister of Complainant was married to Khalil Ahmad (appellant) and out of this wedlock, three children were born. After the death of parents of the complainant, relations between the appellant and Mst. Samina Bibi became strained and he (appellant) used to beat her as she was not giving him permission to contract second marriage. On the preceding night, Mst. Samina Bibi informed the complainant about the quarrel took place between the spouses. On 28.04.2015 at about 9.00/10.00 a.m. he (complainant) along with Muhammad Imtiaz and Shabbir Ahmad went to the house of Mst. Samina Bibi and when they entered the haveli, they saw that the appellant gave a sota blow on the left side of head of Mst. Samina Bibi, who fell on the ground. The appellant gave second sota blow on the temporal region of Mst. Samina Bibi. The complainant party tried to intervene, whereupon the appellant extended threats that whoever came near would face the same consequence and thereafter while brandishing his sota decamped from the spot. Mst. Samina Bibi was attended to by the complainant party but she succumbed to the injuries on the spot. Motive behind the occurrence as alleged in the FIR was that the appellant wanted to contract second marriage and Mst. Samina Bibi (deceased) was not giving him permission and due to that reason, the appellant committed her murder.

3. We have heard learned counsel for the parties as well as the learned Addl. 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 Muhammad Sajjad, Complainant (PW.6) and Muhammad Imtiaz (PW.7), who were closely related to the deceased being her brothers and were chance witnesses because they were neither residents of the place of occurrence nor have any place of business over there. The incident took place in the house of appellant and the complainant explained during cross-examination that the distance between residence of appellant and his house could be covered within 10/20 minutes on a bicycle. Both the witnesses of ocular account have not assigned any convincing or plausible reason for their presence on the spot at the time of incident and simply stated that one day prior to the occurrence, Mst. Samina Bibi came to the complainant and told that her husband used to beat her because she was not allowing him to contract second marriage. It was not the case of eye-witnesses that the deceased called them to her house one day before the occurrence. Even the complainant admitted during cross- examination that he did not mention in Ex.PA that one day before the occurrence Samina Bibi came to his house and informed that Khalil Ahmad used to beat her. The eye-witnesses had statedly seen the occurrence when they entered the house of deceased and we found it to be quite strange that if the appellant had to murder the deceased, then he did not have to wait for arrival of the said witnesses for starting infliction of injuries upon the deceased. It is also noticeable that despite their claimed presence at the scene of crime at relevant time, the said eye-witnesses along with Shabbir Ahmad (given up PW) had not tried to stop or catch hold of the appellant who was not armed with any firearm to ward the said witnesses off or to keep them away. Before the learned trial Court, the eye-witnesses have utterly failed to establish their presence on the place of occurrence at relevant time. It is in this context that the testimony of a chance witness ordinarily is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for was presence at the crime spot are put forth, when the occurrence took place otherwise his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the case law reported as “Mst. Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) and “Muhammad Javed vs. The State” (2016 SCMR 2021). Under the circumstances, we are of the view that it was an unwitnessed occurrence and the eye-witnesses were not present on the spot.

5. Motive behind the occurrence as alleged in the FIR and brought before the learned trial Court was that Muhammad Khalil Ahmad (appellant) wanted to contract second marriage and Mst. Samina Bibi (deceased) was not giving him permission and due to that reason, the appellant committed her murder. It was also alleged that differences arose between the spouses and the appellant used to beat the deceased. We may observe here that the quarrel between the spouses is not unusual in our culture. The stance of Muhammad Ashraf, S.I./I.O. (PW.8) with regard to the motive was that he did not record the statement of any other person except complainant and PW-s. During investigation, the name of female with whom the appellant was allegedly going to marry did not come on the surface. We have noted that the motive was not put to the appellant in his statement recorded under Section 342, Cr.P.C. It is well settled by now that any piece of evidence which was not put to an accused while recording his statement under Section 342, Cr.P.C. cannot be used against him. Even otherwise, no independent witness qua motive was brought in the witness box at the time of trial. In this view of the matter, we hold that the prosecution has not been able to substantiate the motive part of the occurrence.

6. So far as the alleged recovery of soto (P.4) at the instance of appellant is concerned, the same is inconsequential for the simple reason that the report of Punjab Forensic Science Agency (Ex.PO) in this regard is in the negative.

7. As far as medical evidence is concerned, the same may confirm the ocular account with a regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants. Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599).

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 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 place on the case law reported as “Muhammad Akram versus The State (2009 SCMR 230).

10. For the foregoing reasons, Criminal Appeal No. 138 of 2017 filed by Muhammad Khalil Ahmad (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 28.02.2017 passed by the learned Addl. Sessions Judge, Multan are set aside and he 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. 29 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Khalil Ahmad (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal allowed