2021 P Cr.

L J 750
[Lahore]
Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ
AKHTAR ALI and others---Appellants
Versus
The STATE---Respondent
Criminal Appeal No. 61430-J and Murder Reference No. 319 of 2017, heard on 18th January,
2021.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Criminal Procedure Code (V of 1898), S. 374---Qatl-i-amd---Appreciation of
evidence---Benefit of doubt---Delay in registration of FIR and in conducting autopsies---
Statement of injured victim---Failure to prove motive---Effect---Accused persons were
convicted, inter alia, under S. 302(b), P.P.C. and sentenced to death---Contention of accused,
inter alia, was that prosecution had failed to prove their case---Delay of four and a half hours
existed in reporting the alleged crime to police and no explanation for such delay was
provided by witnesses of ocular account---Autopsies were conducted after 12 hours from
occurrence, and such delay in setting machinery of law in motion spoke volumes against
veracity of prosecution version---Statement of injured victim under S. 161, Cr.P.C. was
recorded four days after occurrence, and such delay was without any plausible occurrence
and mere fact that such witness was injured in occurrence would not stamp him as truthful
witness---Evidence of eye-witnesses to alleged occurrence was shaky in nature and could not
be relied on for maintaining conviction of accused---Complainant and other witnesses of
ocular account did not utter any word regarding alleged lalkara raised by accused and in
examination-in-chief did not state motive alleged by prosecution, and therefore it had to be
held that alleged motive was not proved by prosecution---Ocular account was in direct
conflict with medical evidence---Case against accused was therefore replete with number of
circumstances which created doubt regarding prosecution's story and same was sufficient to
give benefit of doubt to accused---High Court set aside conviction and sentence of accused
and acquitted them while extending benefit of doubt---Appeal was allowed, accordingly.
Altaf Hussain v. The State 2019 SCMR 274; Irshad Ahmed v. The State 2011 SCMR
1190; Nazeer Ahmed v. The State 2016 SCMR 1628; Muhammad Khan v. Maula Bakhsh and
another 1998 SCMR 570; Amin Ali and another v. The State 2011 SCMR 323; Shahbaz v.
The State 2016 SCMR 1763; Imtiaz alias Taj v. The State and others 2018 SCMR 344; PLD
2019 SC 527 and Muhammad Akram v. The State 2009 SCMR 230 rel.
(b) Criminal trial---
----Benefit of doubt---Prosecution had to prove its case against accused on its own legs and
could not take benefit from weakness in the case of the defence---Single circumstance, if it
created doubt regarding prosecution's case, then same was sufficient to give benefit of doubt
to accused.
Muhammad Akram v. The State 2009 SCMR 230 rel.
 Sheraz Zaka, Ali Muhammad Zahid Bukhari and Khalida Parveen for Appellants.
Munir Ahmad Sial, Deputy Prosecutor General for the State.
Nemo for the Complainant.
Date of hearing: 18th January, 2021.
JUDGMENT
SHEHRAM SARWAR CH., J.---Akhtar Ali and Sher Khan (appellants) along with their
co-accused namely Muhammad Asghar, Muhammad Boota, Mst. Kausar Bibi, Mst. Fatima
Bibi and Babar Ali were tried by the learned Additional Sessions Judge, Phalia in case FIR
No.414 dated 06.12.2015, offence under sections 302, 324, 449, 148 and 149, P.P.C.,
registered at Police Station Qadirabad District Mandi Bahauddin for the murder of
Muhammad Aslam son of Ghulam Rasool and Mst. Nusrat Bibi, brother and sister of
complainant, respectively, and launching murderous assault upon Muhammad Aslam son of
Ahmad Din, brother-in-law (behnoi) of complainant. Vide judgment dated 27.04.2017 passed
by the learned Additional Sessions Judge, Phalia, Sher Khan and. Akhtar Ali (appellants)
have been convicted under section 302(b), P.P.C. and sentenced to death on two counts, with
a further direction that Sher Khan (appellant) shall pay Rs.3,00,000/- (rupees three lakh only)
and Rs.1,00,000/- (rupees one lakh only) as compensation under section 544-A, Cr.P.C. to
the legal heirs of deceased namely Nusrat Bibi and Muhammad Aslam, respectively, and in
default whereof to further undergo simple imprisonment for six months each whereas Akhtar
Ali (appellant) was directed to pay Rs.3,00,000/- (rupees three lakh only) and Rs.1,00,000/-
(rupees one lakh only) as compensation under section 544-A, Cr.P.C. to the legal heirs of
deceased namely Muhammad Aslam and Nusrat Bibi, respectively, and in default thereof to
further undergo simple imprisonment for six months each. The appellants were further
convicted under section 324/34, P.P.C. and sentenced to ten years' rigorous imprisonment
each along with fine of Rs.25,000/- each and in default whereof to further undergo simple
imprisonment for three months each. They were also convicted under section 337-D read
with section 34, P.P.C. and sentenced to pay Arsh equal to 1/3rd of Diyat amount of
Rs.5,75,000/-, each, payable to Muhammad Aslam (PW.9), and shall be kept in jail till the
payment of Arsh amount. The appellants were also convicted under section 449, P.P.C. and
sentenced to ten years' R.I. each along with fine of Rs.25,000/- each and in default whereof
to further undergo simple imprisonment for three months each. Through the same judgment,
learned trial Court acquitted Muhammad Asghar, Muhammad Boota, Mst. Kausar Bibi, Mst.
Fatima Bibi and Babar Ali co-accused of the appellants by extending them benefit of doubt
and against the acquittal of Asghar Ali, accused, Shamraiz Akhtar, complainant filed
Criminal Appeal No.34724 of 2017 which was dismissed due to non-prosecution vide order
dated 12.10.2020. Assailing the above convictions and sentences, the appellants have filed
the appeal in hand whereas the learned trial court has sent Murder Reference No.319 of 2017
for confirmation or otherwise of appellants' 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.PD/1) registered on the statement
(Ex.PD) of Shamraiz, complainant (PW.8) is that his sister Nusrat Bibi was married with
Muhammad Aslam son of Ahmad Din. Muhammad Aslam brother of complainant and his
wife Nazia Bibi came to Farukhpur Nau to see his sister. After a short while Bati Khan along
with his wife also came there. Mian Khan also stayed in the house of Muhammad Aslam.
After taking dinner, the guests and the host slept in their rooms. Muhammad Aslam (PW.9),
Muhammad Aslam and Nusrat Bibi (deceased) slept in the veranda. At about 12.15 a.m.
night Sher Khan, Akhtar Ali, Asghar Ali, Zubair Ahmad, Boota and Mst. Kausar Bibi while
armed with firearms came there. The electric bulbs were lit. Akhtar Ali by scaling over the
wall entered into the house and opened the gate of haveli from inside. On hearing the voice
of opening of gate the inmates of the house woke up. Sher Khan raised lalkara that they be
taught a lesson for divorcing his daughter whereupon all the accused persons started
indiscriminate firing. Sher Khan made a fire with .12 bore gun which landed on left side of
flank of Nusrat Bibi. Asghar Ali made a fire with his firearm hitting on flank of Muhammad
Aslam brother of complainant. Akhtar Ali fired with his firearm weapon hitting on the person
of Muhammad Aslam brother-in-law of complainant. The occurrence was witnessed by Bati
Khan and Mian Khan. The accused persons fled away while raising lalkaras. Muhammad
Aslam and Nusrat Bibi, brother and sister of complainant, respectively, succumbed to the
injuries on the spot, whereas, Muhammad Aslam brother-in-law of complainant was shifted
to Hospital.
3. After completion of investigation, report under section 173, Code of Criminal
Procedure was submitted in this case. The appellants were summoned by the learned Addl.
Sessions Judge, Phalia to face the trial. Copies of relevant documents were provided to the
appellants and their co-accused, as required under section 265-C, Code of Criminal
Procedure and amended charge was framed against them on 18.04.2017, to which they
pleaded not guilty and claimed trial. Statements of the appellants and their co-accused under
section 342 of the Code of Criminal Procedure were recorded on 22.04.2017, wherein they
refuted all the prosecution allegations levelled against them and professed their innocence.
The appellants did not opt to appear as their own witnesses, in disproof of the allegations
levelled against them, as provided under section 340(2), Code of Criminal Procedure. After
conclusion of the trial, the learned trial court convicted and sentenced the appellants and
acquitted their co-accused, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellants, in support of this appeal, contends that the
appellants have falsely been implicated in this case; that there is a delay of about four hours
and thirty minutes in reporting the matter to the police without there being any satisfactory
explanation; that there is also noticeable delay in conducting autopsies of the dead-bodies of
both the deceased; that Shamraiz complainant (PW.8) is not an eye-witness of the
occurrence; that Muhammad Aslam (PW.9) cannot be considered a truthful witness; that
similarly Bati Khan (PW.10) was a chance PW and his presence on the spot at the time of
incident is doubtful in nature; that Muhammad Asghar co-accused of the appellant who, as
per prosecution's own case, caused fatal injury on the person of Muhammad Aslam
(deceased) has been acquitted by the learned trial Court and appeal against his acquittal has
already been dismissed by this Court, therefore, the evidence which has been disbelieved to
the extent of Muhammad Asghar co-accused of the appellant cannot be believed against the
appellants without there being any strong corroboration which is very much missing in this
case; that the ocular account is in direct conflict with the medical evidence; that motive has
not been proved against the appellants; that alleged recoveries of .12 bore gun (P.12) and 7
mm rifle (P.13) at the instance of Sher Khan and Akhtar Ali (appellants), respectively, are
inconsequential; that viewing from all angles the prosecution case is doubtful in nature and
the appellants are entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General opposes this appeal on the
grounds that there was no conscious or deliberate delay in reporting the matter to the police;
that presence of Muhammad Aslam (PW.9) and Bati Khan (PW.10) on the spot at the time of
incident is quite natural and probable; that Muhammad Aslam (PW.9) also sustained injuries
during the incident, he was medically examined soon after the incident, his medico-legal
report is available on the record and as such the presence of said PW on the spot at the time
of incident cannot be considered unnatural or improbable; that motive has been proved
against the appellants; that ocular account is fully supported by medical evidence and further
corroborated by the recoveries of .12 bore gun (P.12) and rifle 7 mm (P.13) at the instance of
Sher Khan and Akhtar Ali, appellants, respectively; that the prosecution has successfully
brought home guilt against the appellants beyond any shadow of doubt and there is no merit
in this appeal.
6. We have heard learned counsel for the appellants as well as the learned Deputy
Prosecutor General for the State and gone through the record with their able assistance.
7. The occurrence in this case allegedly took place on 06.12.2015 at 12:15 a.m. (night)
whereas the matter was reported to the police on the same day at 04.45 a.m. The distance
between police station and the place of occurrence is seven miles. There is a delay of about
four hours and thirty minutes in reporting the crime to the police without any plausible
explanation. It is also worth mentioning here that while appearing before the learned trial
Court both the witnesses of ocular account namely Muhammad Aslam (PW.9) and Bati Khan
(PW.10) did not utter even a single word about the above said delay. Therefore, we hold that
this inordinate delay in setting the machinery of law in motion speaks volumes against the
veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain v.
The State" (2019 SCMR 274). Moreover, the autopsies of the dead-bodies of both the
deceased were conducted about twelve hours 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).
8. Ocular account in this case was furnished by Muhammad Aslam (PW.9) and Bati
Khan (PW.10). It was the case of complainant that Bati Khan (PW.10) was present on the
spot at the time of incident but surprisingly the said PW did not receive even a scratch during
the incident despite indiscriminate firing allegedly made by the appellants and their co-
accused on the spot at the time of incident. Moreover, the inordinate delay in the FIR as well
as postmortem examination of the dead-bodies of deceased also casts doubt about his
presence on the spot at the time of incident. It has been brought on record through the
statement of Shamraiz, complainant (PW.8) that Bati Khan (PW.10) was resident of village
Rerkabala which was at a distance of about 10/15 kilometers away from the place of
occurrence. The said PW has no agricultural land or business point near the place of
occurrence. Before the learned trial Court he has not given any plausible reason for his
presence on the spot at the time of incident. Therefore, we hold that the said PW was a
chance witness and admittedly, the testimony of chance witness ordinarily is not accepted
unless justifiable reasons are shown to establish his presence at the crime scene at the
relevant time. So far as testimony of Muhammad Aslam (PW.9) is concerned, he allegedly
sustained injuries during the incident but. the doctor (PW.5) who medically examined the
said PW has stated in his cross-examination that "at the time of examination, injured was in
complete senses. In his history he did not tell the name of any accused person." There is no
mention in the FIR as to on which part of body of said PW the appellant namely Akhtar Ali
caused him injury. Moreover, Muhammad Aslam (PW.9), while appearing before the learned
trial Court, improved the prosecution story by stating that Kausar Bibi accused had given him
kick blows in order to satisfy herself whether he was alive or dead and this portion of his
statement was confronted with his previous statement (Exh.DB) and it was found that
aforesaid fact regarding role of Kausar Bibi was not recorded in the said statement. We have
further noted that the occurrence took place on 06.12.2015 whereas the statement of
Muhammad Aslam, injured under section 161, Cr.P.C. was recorded on 10.12.2015 i.e. about
four days 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). Therefore, the said PW cannot be
considered a truthful witness. This argument of learned Law Officer that presence of
Muhammad Aslam (PW.9) cannot be doubted at the place of occurrence due to the injuries
on his person has no substance because merely the injury on the body of a person would not
stamp him/her truthful witness. Reliance is placed on case law titled as "Amin Ali and
another v. The State" (2011 SCMR 323). Moreover, in the FIR as well as before the learned
trial Court it was the case of prosecution that Muhammad Asghar caused fatal injury on the
person of Muhammad Aslam (deceased) but he has been acquitted by the learned trial Court
while erroneously presuming that the said injury on the person of Muhammad Aslam
(deceased) was caused by Akhtar Ali (appellant) instead of Muhammad Asghar and the
appeal against his acquittal filed by the complainant was dismissed by this Court due to non-
prosecution vide order dated 12.10.2020, therefore, the question for determination before us,
is whether the evidence which has been disbelieved qua the acquitted co-accused of the
appellant namely Muhammad Asghar can be believed against the 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."
The above said view has been further fortified in the case titled as "Imtiaz alias Taj v.
The State and others" (2018 SCMR 344). It is settled by now that a witness who lied about
any material fact must be disbelieved as to all other facts. We respectfully relied upon the
case law reported as "PLD 2019 Supreme Court 527" in the matter of Criminal
Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013 decided on
4th March, 2019. 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 appellants.
9. Motive behind the occurrence as alleged in the FIR was that Sher Khan (appellant)
raised a lalkara to the complainant party including the deceased that they be taught a lesson
for divorcing his daughter. The complainant and other witnesses of ocular account while
appearing before the learned trial Court have not uttered even a single word that Sher Khan
(appellant) had raised above said lalkara. Even they have not stated in their examination-in-
chief that the motive behind the occurrence was "Talaq" pronounced upon daughter of Sher
Khan (appellant). The said motive was also alleged against Muhammad Asghar, Muhammad
Boota, Mst. Kausar Bibi, Mst. Fatima and Babar Ali co-accused of the appellants who have
been acquitted by the learned trial Court. Moreover, no independent witness qua motive was
produced by the prosecution during the trial. Therefore, we hold that prosecution has failed
to prove motive against the appellants.
10. So far as alleged recoveries of .12 bore gun (P.12) and rifle 7 mm (P.13) at the
instance of Sher Khan and Akhtar Ali (appellants), respectively, are concerned the same are
immaterial because the learned trial Court has concluded in paragraph No.48 of the
impugned judgment that on 10.12.2015 when the I.O. had transmitted the empties to the
PFSA, both appellants namely Sher Khan and Akhtar Ali (appellants) were already under
police custody which arrest was not shown on the record. The recoveries of the weapons
from Sher Khan and Akhtar Ali accused are therefore inconsequential and are providing not
help to the prosecution case. The said findings-of the learned trial Court have not been
challenged by the complainant and are still in-field.
11. The ocular account is in direct conflict with the medical evidence because in the FIR
as well as before the learned trial Court it was the case of complainant that Muhammad
Asghar co-accused of the appellants caused only one firearm injury on the flank of
Muhammad Aslam (deceased) but Dr. Muhammad Saeed Ahmad (PW.6), who conducted
autopsy of the deadbody of Muhammad Aslam (deceased) noted two entry wounds on his
person.
12. So far as the defence plea taken by the appellants in their statements under section
342, Code of Criminal Procedure are concerned, since the prosecution evidence is doubtful in
nature, therefore, there is no need to discuss the same which are exculpatory in nature.
 13. 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 appellants
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
appellants. 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).
14. For the foregoing reasons, the appeal in hand filed by Akhtar Ali and Sher Khan
(appellants) is allowed, convictions and sentences awarded to them vide judgment dated
27.04.2017 passed by the learned Additional Sessions Judge, Phalia are set aside and the
appellants are acquitted of the charges levelled against them while extending them benefit of
doubt. The appellants are in jail. They shall be released forthwith if not required to be
detained in any other case.
15. Murder Reference No.319 of 2017 is answered in the NEGATIVE and the sentence of
death awarded to Akhtar Ali and Sher Khan (convicts) is NOT CONFIRMED.
KMZ/A-11/L Order accordingl