PLJ 2022 Cr.C. 1568 (DB)
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 117 & 122--Burden of proof--On a conceptual plain, Article 117 of Qanun-e-Shahadat, 1984 enshrines foundational principle of our criminal justice system, whereby accused is presumed to be innocent unless proved otherwise--Accordingly, burden is placed on prosecution to prove beyond doubt guilt of accused which burden can never be shifted to accused, unless legislature by express terms commands otherwise--Held: It is only when prosecution is able to discharge burden of proof by establishing elements of offence, which are sufficient to bring home guilt of accused then, burden is shifted upon accused, inter alia, under Article 122 of Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for prosecution to prove, to avoid conviction. [P. 1586] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 122--Burden of proof--Article 122 of Qanun-e-Shahadat, 1984 comes into play only when prosecution has proved guilt of accused by producing sufficient evidence, except facts referred in Article 122 Qanun-e-Shahadat, 1984, leading to inescapable conclusion that offence was committed by accused--Burden is on accused not to prove his innocence, but only to produce evidence enough to create doubts in prosecution’s case. [Pp. 1586 & 1587] B
PLD 1977 SC 515.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 122--Burden of proof--In a criminal case, burden of proof is on prosecution and article 122 of Qanun-e-Shahadat, 1984 is certainly not intended to relieve it of that duty--On contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for prosecution to establish facts which are “ especially “ within knowledge of accused and which he could prove without difficulty or inconvenience--If article was to be interpreted otherwise, it would lead to very startling conclusion that in a murder case burden lies on accused to prove that he did not commit murder because who could know better than he whether he did or did not--The article 122 of Qanun-e-Shahadat, 1984 cannot be used to undermine well-established rule of law that, save in a very exceptional class of case, burden is on prosecution and never shifts--Throughout web of Law one golden thread is always to be seen, that it is duty of prosecution to prove accused’s guilt subject to any statutory exception--No matter what charge, principle that prosecution must prove guilt of accused is law and no attempt to whittle it down can be entertained. [P. 1588] C
2017 SCMR 724.
Conviction--
----An accused person cannot be convicted merely because he did not explain circumstances in which deceased had lost her life.
[P. 1588] D
2016 SCMR 1019 and 2017 SCMR 564.
Appreciation of Evidence--
----It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if ocular account is found to be unreliable then recovery has no evidentiary value.
[P. 1591] E
Appreciation of Evidence--
----It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance. [P. 1593] G
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Murder reference--Qatl-e-amd--Conviction and sentence--Challenge to--Benefit of doubt--Appreciation of evidence--Burden of proof--The prosecution witnesses failed to provide evidence enabling us to determine truthfulness of motive alleged, and fact that said motive was so compelling that it could have led convict to have committed Qatl-i-Amd of deceased--There is a lingering silence with regard to minutiae of motive alleged--No independent witness was produced by prosecution to prove motive as alleged--Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence--The only other piece of evidence left to be considered by us is medical evidence with regard to injuries observed on dead body of deceased by Dr. (CW-1) but same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence--As all other pieces of evidence relied upon by prosecution, in this case, have been disbelieved and discarded by us, therefore, convicts conviction cannot be upheld on basis of medical evidence alone--All above circumstances, we entertain serious doubt in our minds regarding involvement of convict in present case--Held: It is a settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of
right--Murder reference was answered in negative.
[Pp. 1592, 1593 & 1594] F, H & I
2016 SCMR 2021, 2017 SCMR 986, PLD 2021 SC 600, 2018 SCMR 772 & 2021 SCMR 736.
Mr. Najeeb Ullah Jatoi, Deputy Prosecutor General for State.
Mr. Shakeel Ahmad Malik, Advocate for Complainant.
Date of hearing: 24.1.2022.
PLJ 2022 Cr.C. 1568 (DB)
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram and Ali Zia Bajwa, JJ.
versus
MUHAMMAD ZEESHAN--Respondent
M.R. No. 58 of 2016, heard on 24.1.2022.
Judgment
Sadiq Mahmud Khurram, J.--Muhammad Zeeshan son of Munir Ahmad (convict) was tried along with Muhammad Furqan, Munir Ahmad and Mst. Abida Bibi alias Rani (all since acquitted) by the learned Additional Sessions Judge, Chishtian in the case instituted upon the private complaint titled “Ghulam Abbas vs. Muhammad Zeeshan and three others” (relating to case FIR No. 418 of 2013 dated 15.08.2013 registered at Police Station Saddar Chishtian, District Bahawalnagar), in respect of offences under sections 302, 338 C and 34, PPC for committing the Qatl-i-Amd of Shazia Perveen daughter of Ghulam Abbas (deceased). The learned trial Court vide judgment dated 31.08.2016, convicted Muhammad Zeeshan son of Munir Ahmad (convict) and sentenced him as under:
Muhammad Zeeshan son of Munir Ahmad:
i) Death under section 302(b), PPC as Tazir for committing Qatl-i-Amd of Shazia Perveen daughter of Ghulam Abbas (deceased) and directed to pay Rs. 200,000/-as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
ii) Directed to pay one-twentieth of the Diyat (calculated to be Rs. 1,08,729/-) under section 338-C, PPC. For causing Isqat-i-janin of the unborn child in the womb of Shazia Perveen (deceased).
The convict namely Muhammad Zeeshan son of Munir Ahmad was ordered to be hanged by his neck till dead.
Muhammad Furqan, Munir Ahmad and Mst. Abida Bibi, the co-accused of the convict, were acquitted by the learned trial Court.
2. An important question in this case is that the convict namely Muhammad Zeeshan son of Munir Ahmad absconded from the learned trial Court at the time of announcement of impugned judgment and has still not surrendered. The learned trial Court has submitted the instant Murder Reference No. 58 of 2016 under section 374, Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to the convict namely Muhammad Zeeshan son of Munir Ahmad. Though the convict namely Muhammad Zeeshan son of Munir Ahmad has not filed any appeal assailing his conviction and sentences still the learned trial Court has submitted instant Murder Reference No. 58 of 2016 under section 374, Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to the convict namely Muhammad Zeeshan son of Munir Ahmad. The provisions of section 376 of the Code of Criminal Procedure, 1898 provide as under:
376. Power to High Court to confirm sentence or annul conviction: In any case submitted under Section 374 the High Court,--
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or
(c) may acquit the accused person:--
Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.
Reliance is also placed upon the case of Hayat Bakhsh and others v. The State (1981 SCMR 1) wherein the august Supreme Court of Pakistan observed as under:
“that even if it is a case of confirmation of death sentence under Section 374, Cr.P.C. if the convict decamps, he thereby forfeights the right of audience and the High Court would, in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence the confirmation of course will have to be on merits of the case.”
Therefore, in view of the provisions of section 376 of the Code of Criminal Procedure, 1898, the instant Murder Reference is being decided.
3. Precisely, the facts necessary, as divulged through the statement of Ghulam Abbas (PW-1), the complainant of the case, are as under:
“Stated that Shazla Parveen was my daughter who was married with one Nazeer Ahmad s/o Atta Mohammad, R.O. Chak No. 106-Fateh Azafi Basti about 13/14 years prior to the occurrence. Nazeer Ahmad was employee in Army. My daughter has 03 daughters and one son from her marriage with Nazeer Ahmad and she was having pregnancy of 07 months. My daughter and her children used to reside with Munir Ahmad, brother of her husband Nazeer Ahmad in the joint house. Present accused persons used to level false allegations upon my daughter Shazia Parveen and frequently quarreled with her. On 15.08.2013 at 03 a.m. morning accused Munir Ahmad telephonically informed me that my daughter Shazia Parveen was murdered. I along with Azhar Abbas, my son and Ghulam Mustafa, my brother went to the house of Munir Ahmad where the dead body of my deceased daughter Shazia Parveen covered with the blood was lying on the bed in the residential room of the house and on her neck and head there were marks of fires. We came to the hospital along with the police where the post mortem of deceased Shazia Parveen was conducted. After post mortem the dead body of deceased daughter Shazia Parveen and the dead body of newly born child of 07 months was handed over to us by the police. After the funeral and burial of the dead bodies we went to the police station at evening time. Police at the police station chalked out FIR against unknown offenders on its own and delivered its copy to us. I made various applications to the police high ups but no officer listened to me. After ‘Khatam’ of ‘Nawaan’ (9), Tayyaba Maryum daughter of the deceased told me that the night of occurrence accused Munir and Zeshan fought with the deceased Shazia Parveen who went inside the room and kept on weaping (sic). At the late night she heard the Ahat and saw that accused Munir armed with rifle and accused Zeshan armed with pistol along with the accused Furqan and Mst. Abida Bibi were present in the room and accused Furqan and Mst. Abida Bibi caught hold the deceased Shazia and accused Zeshan made two fires with his pistol which hit at the head and neck of the deceased Shazia Parveen who succumbed
to the injuries. Tayyaba also told us that she was under
the shock hence could not tell about the occurrence immediately. Thereafter, I along with the witnesses went to the police station and the police also heard the statement of Tayyaba Mariyum but refuse to record the same by giving the reason that she was minor. Police being in league and connivance with the accused persons challaned the accused Zeshan only and declared the other accused persons innocent during investigation without any lawful justification, upon which I filed the present private complaint Exh.P.A which bears my signature as Exh.P.A/1.”
4. The accused were summoned to face trial in the case instituted upon the private complaint titled “Ghulam Abbas vs. Muhammad Zeeshan and three others” (relating to case FIR No. 418 of 2013 dated 15.08.2013 registered at Police Station Saddar Chishtian, District Bahawalnagar), in respect of offences under Sections 302, 338 C and 34, PPC for committing the Qatl-i-Amd of Shazia Perveen daughter of Ghulam Abbas (deceased). The learned trial Court framed the charge against the accused on 09.06.2014, to which the accused pleaded not guilty and claimed trial.
5. The complainant of the case in order to prove its case got recorded statements of as many as three witnesses. Tayyaba Maryum (PW-2) gave evidence regarding the ocular account of the occurrence. Ghulam Abbas (PW-1) gave the same evidence as has been reproduced in the paragraph 3 of the judgment. Azhar Abbas (PW-3) stated that on 15.08.2013, the deceased was murdered, the police authorities visited the place of occurrence and took various articles into possession from the same and thereafter Tayyaba Maryum (PW-2) told the other witnesses that she had witnessed the occurrence and subsequently on 25.09.2013 the convict namely Muhammad Zeeshan led to the recovery of pistol (P-5).
6. The learned trial Court also examined as many as nine witnesses as Court witnesses. Muhammad Aslam, SI (CW-2) stated that on 15.08.2013 he recorded the formal FIR (Exh.CW-2/A). Khalil Ahmad, Draftsman (CW-3) stated that he prepared the scaled site-plan of the place of occurrence (Exh.CW-3/A). Muhammad Ashraf 694/HC (CW-5) stated that on 15.08.2013 he received a parcel from THQ hospital Chishtian which on 10.09.2013 he handed over to Muhammad Firdous 828/C (CWS-4) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Ashraf 694/HC (CW-5) further stated that on 25.09.2013, the Investigating Officer of the case, handed over to him a sealed parcel said to contain a pistol which on 30.09.2013 he handed over the said parcel to Muhammad Akhtar 1081/C (CW-6) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Shahbaz 73/HC (CW-7) stated that on 15.08.2013, the Investigating Officer of the case, handed over to him two sealed parcels said to contain blood stained earth and empties taken from the place of occurrence and he handed over the said parcels to Muhammad Firdous 828/C (CW-4) for their onward transmission to the Punjab Forensic Science Agency, Lahore. Muhammad Khalid 1360/C (CW-8) stated that on 15.08.2013 he received the last worn clothes of the deceased from the Woman Medical Officer and handed over the same to the Investigating Officer of the case. Matloob Ahmad, SI (CW-9) investigated the case from 15.08.2013 till 11.10.2013, arrested the convict namely Muhammad Zeeshan son of Munir Ahmad on 12.09.2013 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court.
7. The learned trial Court also examined Dr. Shaista Parveen (CW-1) who on 15.08.2013 was posted as Woman Medical Officer at THQ hospital Chishtian and on the same day conducted the post mortem examination of the dead body of the deceased namely Shazia Perveen daughter of Ghulam Abbas. Dr. Shaista Parveen (CW-1) on examining the dead body of the deceased namely Shazia Perveen daughter of Ghulam Abbas, observed as under:
“DESCRIPTION OF INJURIES .
Injury No. 1
A lacerated wound measuring 2 cm x 1 cm into going to cranial cavity on posterior aspect of middle of Pinna of left car, margins of the wound were inverted, blackening was present around the wound, it was entry wound.
Injury No. 2.
A lacerated wound measuring 2 cm x 1 cm into going to cranial cavity on upper aspect of left side of neck 04 cm below the first injury, margins of the wound were inverted and blackening was present around the wound.
Injury No. 3.
Blackening of 2 cm x 1 cm over left shoulder.
Injury No. 4.
A lacerated wound measuring 3 cm x 4 cm with everted margins on posterior aspect of right side of head on upper aspect of occiput area, the brain matter was coming out from the wound. No burning and blackening was present around the wound, this was the exit wound of injury No. 1.
Injury No. 5.
A lacerated wound measuring 4 cm x 3 cm with everted margins on posterior aspect of head and upper aspect of right side of occiput area just along with injury No. 4. Brain matter was coming out of the wound. No burning and blackening
was present around the wound, it was the exit wound of injury No. 2.
On palpation of skull fractured wounds could be felt. On exploration of the injuries No. 1,2,4 & 5 the occiput wound was fractured piecemeal. All the membranes of the brain the brain matter and the blood vessels was crushed. Brain matter was sheltered over the bed as well. A big haemaetoma was also present inside the cranium cavity. Pieces of metal in the form of bullets were also removed from the wound and were handed over to police.
……………….
Organs of generation uterus was containing about 06 months foetus that was baby girl, this foetus was removed and handed over to police, two vaginal swabs, piece from shalwaar and 5 cc blood was taken and sent for DNA test, piece from shalwaar and vaginal swabs were taken for semen detection.
…………….
OPINION
After thorough external and internal postmortem of the dead female body I was of the opinion that cause of death in this case was cardio respiratory failure due to excessive bleeding from haemrhage and shock from crushing of the brain from injury No. 1,4,2,5 which is sufficient in ordinary course of nature to cause death. All injuries were ante-mortem in nature and were caused by fire-arm weapon. Time between injury and death was instantaneous, and between death and post mortem within 24 hours. “
8. On 11.06.2016, the learned counsel for the complainant gave up the prosecution witness namely Ghulam Mustafa as being unnecessary. On 23.08.2016, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PH) regarding the DNA analysis of the items sent to it for analysis, the report of Punjab Forensic Science Agency, Lahore (Exh.PJ) regarding the comparison of the empties and the pistol (P-5) and the report of Punjab Forensic Science Agency, Lahore (Exh.PK) regarding the analysis of the blood stained piece of foam.
9. After the closure of prosecution evidence, the learned trial Court examined the convict namely Muhammad Zeeshan son of Munir Ahmad under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. The convict namely Muhammad Zeeshan son of Munir Ahmad opted not to get himself examined under section 340(2), Cr.P.C., and did not adduce any evidence in his defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge, Chishtian, convicted and sentenced the convict as referred to above.
11. The learned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the convict. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statement of Tayyaba Maryum (PW-2). The learned Deputy Prosecutor General further argued that the recovery of the pistol (P-5) from the convict also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General prayed for confirmation of the sentence of death awarded to the convict.
12. On the other hand the learned counsel appearing on behalf of the complainant has submitted that he has been instructed by the complainant not to oppose the acquittal of the convict as the matter between the parties has been resolved and all the legal heirs of the deceased have entered into a compromise with the convict namely Muhammad Zeeshan.
13. We have heard the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
14. It is evidence from the perusal of the evidence recorded during the trial of the case that initially the formal FIR (Exh.CW-2/A) was registered as against unknown accused with the narrative that unknown accused persons had committed the murder of Shazia Parveen (deceased) for an unknown motive. According to the statement of Matloob Ahmad, SI (CW-9), after receiving the information regarding the occurrence he reached the place of occurrence where Ghulam Abbas (PW-1) submitted the written application (EXh.CW-9/A) to him for the registration of the FIR. During the course of trial, Ghulam Abbas (PW-1) stated that it was only after the post mortem examination of the dead body had been conducted and the funeral prayers as well as burial had taken place that he went to the police station to report the matter, however further claimed that the police on its own recorded the written application (EXh.CW-9/A) as well as the formal FIR (Exh.CW-2/A). In this manner, Ghulam Abbas (PW-1), the complainant of the case, in his statement before the learned trial Court denied submitting the written application (EXh.CW-9/A) or getting the formal FIR (Exh.CW-2/A) registered. Moreover, both the prosecution witnesses namely Ghulam Abbas (PW-1) and Azhar Abbas (PW-3) also admitted that they had not witnessed the occurrence and had been told about the same by Tayyaba Maryum (PW-2) and that too after as many as ten days of the occurrence. Ghulam Abbas (PW-1) during cross examination stated as under:
“I gave evidence on the basis of information provided by Tayyaba Maryam.”
Similarly, Azhar Abbas, (PW-3) during cross-examination admitted as under:
“It is correct that I did not myself witness the occurrence.”
In view of the above discussion, it can be safely determined that the statements of the prosecution witnesses namely Ghulam Abbas (PW-1) and Azhar Abbas, (PW-3) do not prove any relevant fact.
15. The complainant of the case also got recorded the statement of Tayyaba Maryum (PW-2) who claimed that she had witnessed the occurrence and had seen the convict alongwith his acquitted co-accused committing the murder of the deceased. It was admitted by the prosecution witnesses namely Ghulam Abbas (PW-1), Tayyaba Maryum (PW-2) and Azhar Abbas, (PW-3) that Tayyaba Maryum (PW-2) had not made any statement, that she had seen the occurrence, on the first day of occurrence even to the prosecution witnesses namely Ghulam Abbas (PW-1) and Azhar Abbas, (PW-3). Ghulam Abbas (PW-1), as mentioned above, in his statement before the learned trial Court, stated that Tayyaba Maryum (PW-2) told him about the fact of witnessing the occurrence on the 9th day after the death of the deceased. Tayyaba Maryum (PW-2) also admitted in her statement before the learned trial Court that she did not tell anyone about her having witnessed the occurrence, however told the same to the complainant subsequently. Tayyaba Maryum (PW-2) in her statement before the learned trial Court stated as under:
“I went into shock and could not tell Immediately. When my fear subsided I told the facts of the occurrence to my maternal grandfather/complainant and witnesses who took me to police station but the police did not record my statement by giving the reason that I was minor.
………………
Police did not ask any questions from us about the occurrence at the place of occurrence or at the house of my maternal grandfather. I made statement for the first time after the occurrence after Khatam of 9th (Nowaan). I made statement before police on the said time i.e. after Khatam of 9th (Nowaan). I gave the statement to the police at the police station. Police did not record my statement.”. (emphasis supplied)
We have also noted with concern that the prosecution witness namely Tayyaba Maryum (PW-2) did not tell anyone that she had witnessed the occurrence for so many days, even when she had returned to the house of Ghulam Abbas (PW-1), her maternal grandfather. More importantly ,a perusal of the written application (Exh.CW-9/A) of Ghulam Abbas (PW-1) reveals that the prosecution witness namely Tayyaba Maryum (PW-2) was not even named as a witness in the said document. Even in the subsequent statements of Ghulam Abbas (PW-1) and Azhar Abbas, (PW-3), Tayyaba Maryum (PW-2) was not named as a witness who had seen the occurrence. Matloob Ahmad, SI (CW-9) the Investigating Officer of the case, during cross-examination stated as under:
“It is correct that on 15.08.2013 complainant Ghulam Abbas on his own presented before me application Exh.CW 9/A after signing the same. It is correct that in Exh.CW-9/A, complainant had not mentioned that anybody witnessed the occurrence. It is correct that on the same day complainant Ghulam Abbas also presented before me another application regarding the involvement of present accused persons. It is correct that in said application complainant had not mentioned any eye witness of the occurrence and on basis of said application I recorded the supplementary statement of the complainant without any addition or omission which is Exh.D.A. It is correct that in the statement of complainant Exh.D.A, statement of Azhar Abbas Exh.D.B and statement of Ghulam Mustafa Exh.D.C they had only stated that they had satisfied themselves and had threshed the matter that the present accused persons were involved in the occurrence. It is correct that in the aforementioned statements they did not disclose the source regarding the involvement of the accused persons.”
It might be true that Tayyaba Maryum (PW-2) was overcome by fear and could not narrate the details of the occurrence to Ghulam Abbas (PW-1), however, it is not explained as to why Ghulam Abbas (PW-1) did not mention in any of his applications or statements before the Investigating Officer of the case that Tayyaba Maryum (PW-2) was also present at the place of occurrence, inside the room where the deceased had met her death. Tayyaba Maryum (PW-2) may not have by then stated that she had witnessed the occurrence but her presence inside the room where the occurrence took place should have been observed and mentioned in the statements of the complainant as well as the other prosecution witnesses however, the same was not done, denuding the fact that Tayyaba Maryum (PW-2) had not witnessed the occurrence. Matloob Ahmad, SI (CW-9), the Investigating Officer of the case, also admitted during cross-examination that during the whole investigation, the complainant of the case or any other person, did not ever claim that he had witnessed the occurrence. Matloob Ahmad, SI (CW-9), the Investigating Officer of the case ,admitted as under:
“It is correct that during whole investigation as remained with me, no witness in his statement recorded U.S.161, Cr.P.C. stated that he witnessed the occurrence.
……………
It is correct that during whole investigation as remained with me neither Mst. Tayuba Maryum (d/o deceased Mst. Sharia Parveen) made statement U.S.161, Cr.P.C. that she was eye witness of this occurrence nor she stated that she was present in the room of occurrence at the time of occurrence.”(emphasis supplied)
16. We have also noted that according to the prosecution witnesses namely Ghulam Abbas (PW-1), Tayyaba Maryum (PW-2) and Azhar Abbas, (PW-3), the statement of Tayyaba Maryum (PW-2) was not recorded by the police during the investigation of the case, despite them having made an effort to get the same recorded. Moreover Ghulam Abbas (PW-1), the complainant of the case and Tayyaba Maryum (PW-2) remained adamant even before the learned trial Court that the police did not record the statement of Tayyaba Maryum (PW-2) during the investigation of the case. Ghulam Abbas (PW-1) though admitted that the police refused to record the statement of Tayyaba Maryum (PW-2) during the investigation of the case, however also admitted that he did not move any application against the Investigating Officer of the case for the said omission. Ghulam Abbas (PW-1) during cross-examination admitted as under:
“I did not file any petition S.22-A, Cr.P.C. in the Court of learned ASJ, Chshtian regarding the fact that the police had not correctly recorded my version and was not recording the statement of Tayyaba Mariyum. Similarly I also did not file any writ-petition before the Hon’ble High Court Bahawalpur Bench Bahawalpur regarding the same. After the occurrence, police did not interrogate from minors/children of the deceased Shazia Parveen including Tayyaba Mariyum.” (emphasis supplied) .
Tayyaba Maryum (PW-2) also admitted during cross-examination that her statement was not recorded by the police and stated as under:
“After the occurrence police had come at the place of occurrence. Police did not ask any questions from us about the occurrence at the place of occurrence or at the house of my maternal grandfather. I made statement for the first time after the occurrence after Khatam of 9th (Nowaan). I made statement before police on the said time i.e. after Khatam of 9th (Nowaan). I gave the statement to the police at the police station. Police did not record my statement.” (emphasis supplied).
There is no evidence on record that Tayyaba Maryum (PW-2) ever appeared before the police and got recorded her statement claiming therein to be an eye witness of the occurrence. In absence of that evidence, we cannot place implicit reliance on the statement of Tayyaba Maryum (PW-2).
17. Another vexing aspect of the prosecution case is that the deceased received the injuries inside the room and no evidence has been brought on record so as to prove that at the time of receiving the fatal injuries, anyone else was also with the deceased. The only eye witness of the occurrence namely Tayyaba Maryum (PW-2) admitted during cross-examination that during the days of occurrence the whole family was sleeping in the Courtyard due to heat of the summer and it was only the deceased who had gone inside the room when she was attacked by the assailant. Tayyaba Maryum (PW-2) during his cross-examination stated as under:
“It is correct that the month of occurrence was peak of summer, however, the rains had also fallen during the days of occurrence. During the days of occurrence, whole family used to sleep in Courtyard due to summer. I did not raise the noise on seeing the accused persons because I had become afraid. I did not try to wake up my mother. Our Courtyard is at a distance of 3/4 feet from the room of occurrence.”
The fact that the deceased was alone inside the room at the time of occurrence is further supported by the statement of Khalil Ahmad, Draftsman (CW-3) who stated that he had not shown the presence of anyone else except the deceased inside the room where the occurrence took place. Khalil Ahmad, Draftsman (CW-3) admitted during cross-examination as under:
“It is correct that I mentioned all the facts which were pointed out by the complainant and the other facts which complainant did not narrate before me I had not mentioned in Exh.CW-3/A and CW-3A/1. It is correct that according to Exh.CW-3/A, I had not mentioned that anybody witness the occurrence. Similarly I had not mentioned the presence of any cot near the dead body of deceased nor presence of Mst. Tayaba Maryum daughter of deceased.” (emphasis supplied).
Moreover, Matloob Ahmad, SI (CW-9), the Investigating Officer of the case, was cross-examined by the learned counsel for the complainant and in answer to a question replied as under:
“I also did not show the presence of Tayuba Mariyum in the room, volunteered that at the time of occurrence, a small baby of Mst. Shazia Parveen deceased was with her.”
Although it was claimed by Ghulam Abbas (PW-1), the complainant of the case and Tayyaba Maryum (PW-2) that the statement of Tayyaba Maryum (PW-2) was not recorded during the investigation of the case, however, Matloob Ahmad, SI (CW-9), the Investigating Officer of the case, stated that he did record the statement of Tayyaba Maryum (PW-2) on 17.08.2013 during the investigation of the case, however, Tayyaba Maryum (PW-2) never claimed that she was present inside the room where her mother received the fatal injuries. Matloob Ahmad, SI (CW-9), during cross-examination stated as under:
“It is correct that on 17.08.2013, I went to the house of complainant Ghulam Abbas situated in Chak No. 20-Gajiani, where I made interrogation in the form of questions and answers from children of the deceased namely Mst. Tayuba Maryum, Alisha Nazeer and Ahmad Waleed. It is correct that first of all I recorded statement of Mst. Tayuba Maryum in the shape of ‘Daryaft’ and she stated before me that on the night of occurrence she was sleeping in the Courtyard of house of the occurrence and her mother deceased Mst. Shazia Parveen went inside the room along with her brother Ahmad Waleed at evening time.”
Additionally, during the investigation of the case any beddings or cot under the use of Tayyaba Maryum (PW-2) on the night of occurrence was recovered from the room, where the occurrence took place nor the same articles were produced before the learned trial Court so as to provide a physical proof of the presence of Tayyaba Maryum (PW-2) inside the same room where the deceased had died. In absence of any evidence to prove the presence of Tayyaba Maryum (PW-2) inside the same room where the occurrence took place, we cannot envision the same on our own.
18. We have also noted that the occurrence took place inside a room on 15.08.2013 at about 3.00 a.m. at night, however, the prosecution failed to prove that there existed any source of light which was lit at the time of occurrence which allowed the prosecution witness namely Tayyaba Maryum (PW-2) to identify the assailants. Though Tayyaba Maryum (PW-2) claimed that a light bulb was available in the room where the occurrence took place, however, gave the voltage of the same as being minimal. Tayyaba Maryum (PW-2) during cross-examination stated as under:
“Zero bulb was enlightened (sic) towards the northern wall near the door of the room.”
During the course of investigation and even before the learned trial Court the said electric bulb never produced. The non-production of the electric bulb, the light of which used by the Tayyaba Maryum (PW-2) to identify the assailants, is all the more a matter of disquiet for the reason that the trial of the case was conducted in a private complaint and if the said electric bulb was indeed available, then the complainant of the case could have easily produced the same before the learned trial Court. The failure of the complainant of the case to produce the same before the learned trial Court leads to only one conclusion, and that being that no such source of light was available at the place of occurrence which could have enabled Tayyaba Maryum (PW-2) to have identified the assailants and also spectate the individual roles of the assailants as acted by them during the occurrence. According to the prosecution evidence, Matloob Ahmad, SI (CW-9), the Investigating Officer of the case, visited the place of occurrence after the occurrence but the electric bulb, in the light of which Tayyaba Maryum (PW-2) had witnessed the occurrence, at the time of occurrence, was not taken into possession at the spot by the Investigating Officer along with other recoveries, though there was no occasion for the said electric bulb not to have been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer or it being not taken into possession by the Investigating Officer during his visit at the place of occurrence. Matloob Ahmad, SI (CW-9), the Investigating Officer of the case, admitted during the cross-examination by the learned counsel for the complainant as under:
“I had not mentioned the electricity bulb in the room of occurrence nor I took the same into possession.”
Matloob Ahmad, SI (CW-9), further admitted as under:
“It is correct that place of occurrence is a room surrounded by four walls. It is correct that in Exh.CW-9/B, I had not shown anywhere source of light as well as presence of electric bulb”.
Similarly, Khalil Ahmad, Draftsman (CW-3) admitted during cross-examination as under:
“It is correct that in the room of occurrence no body pointed out me presence of any electric bulb nor they stated before me this fact.”
The failure of Ghulam Abbas (PW-1), the complainant of the case to produce the said electric bulb and the failure of Matloob Ahmad, SI (CW-9), to take into possession the electric bulb, the light of which was allegedly used by Tayyaba Maryum (PW-2) to witness the occurrence, proves that none was available and only an invented and false claim of such electric bulb being available was made by Tayyaba Maryum (PW-2). The prosecution witnesses failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in murk. It was admitted by the witnesses themselves that it was a dark night and Tayyaba Maryum (PW-2) needed the light of the electric bulb, never produced, to identify the assailants during the occurrence and as the prosecution witnesses failed to prove the availability of such light source, the statement of Tayyaba Maryum (PW-2) with regard to her identifying the assailants cannot be relied upon. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of “Gulfam and another v. The State” (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:
“The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the Courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The Courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised”
Reliance is also placed on the case of “Hameed Gul v. Tahir and two others” (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:
“Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along.”
Reliance is also placed on the case of “Basar vs. Zulfiqar Ali and others” (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:
“7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.”
Reliance is also placed on the case of “Azhar Mehmood and others v. The State” (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:
“It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case.”
Reliance is also placed on the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:
“The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer.”
We have scrutinized the statement of Tayyaba Maryum (PW-2) and have reached an irresistible conclusion that Tayyaba Maryum (PW-2) had not witnessed the occurrence.
19. It has been argued by the learned Deputy Prosecutor General that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts the presence of some eye-witnesses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a person had taken place in his house, therefore, it must be he and none else who would have committed that murder. The learned Deputy Prosecutor General submits that it was in the knowledge of the convict how the deceased died so it was the convict who was responsible, in absence of any explanation. The law on the burden of proof, as provided in Article 117 of the Qanun-e-Shahadat, 1984, mandates the prosecution to prove, and that too, beyond any doubt, the guilt of the accused for the commission of the crime for which he is charged. The said provision provides:
“117. Burden of proof: (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly, the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under:
“122. Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him.”
It has to be kept in mind that Article 122 of the Qanun-e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun-e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution’s case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of “Rehmat alias Rahman alias Waryam alias Badshah v. The State” (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanun-e-Shahadat, 1984, it held as under:
“Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence.”
The ratio decidendi of the above decision was further developed by in the case of “Nasrullah alias Nasro versus The State (2017 SCMR 724), wherein, it held as under:
“It has been argued by the learned counsel for the complainant that in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the circumstances of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder.
……………………………………………………….
In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased.”
In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun-e-Shahadat, 1984 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. If the article was to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. The article 122 of the Qanun-e-Shahadat, 1984 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. Throughout the web of the Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the accused’s guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the accused is the law and no attempt to whittle it down can be entertained. As discussed above, Tayyaba Maryum (PW-2) failed miserably to prove that she had witnessed the occurrence. In a case of this nature, the convict could not have been convicted for the alleged murder merely because he happened to be the one of the residents of the place of occurrence. An accused person cannot be convicted merely because he did not explain the circumstances in which the deceased had lost her life. The august Supreme Court of Pakistan has held in the case of “Muhammad Jamshaid and another vs. The State and others” (2016 SCMR 1019) as under:
“only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the Courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the Courts below to be nothing but speculative”.
The august Supreme Court of Pakistan has held in the case of “Arshad Khan vs. The State” (2017 SCMR 564) as under:
“It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person’s wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all.”
The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628) as under:
“It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710).”
The august Supreme Court of Pakistan has held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681) as under:
“It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however, been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant’s conviction and sentence merely on the basis of an inference or a supposition qua his involvement.”
The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941) as under:
“The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant’s wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant’s guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of “Afzal Hussain Shah v. The State” (ibid) where the accused admittedly was present in the house when his wife was killed.”
20. The learned Deputy Prosecutor General has also submitted that the recovery of the pistol (P-5) from the convict and the report of the Punjab Forensic Science Agency, Lahore (Exh.PJ) corroborated the prosecution case against the convict. Regarding the recovery of the pistol (P-5) from the convict namely Muhammad Zeeshan, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said pistol (P-5) from the convict which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the convict, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. Matloob Ahmad, SI (CW-9), admitted during cross-examination as under:
“I did not associate any Lumberdar, Pattidar or the owner of concerned land in the recovery proceedings.”
The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. The State (2017 SCMR 898) at page 901 has held as under:
“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”
We have also noticed that the Pistol (P-5) was shown to have been recovered from an area which was accessible to public and it was not proved that the pistol (P-5) had been recovered from the exclusive possession of the convict. Azhar Abbas, (PW-3) during cross-examination admitted as under:
“It is correct that place of recovery of pistol is an open place and accessible to every person.”
Matloob Ahmad, SI (CW-9), the Investigating Officer of the case, during cross-examination admitted as under:
“Recovery was effected from Zeshan accused from an open place on the back of shops. It is correct that place of recovery is an open place and accessible to every person.” (emphasis supplied) .
Therefore, the recovery of the pistol (P-5) from the convict does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the Pistol (P-5) is not proved and the same cannot be used as a circumstance against the convict. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery of the Pistol (P-5) would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
21. The learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Tayyaba Maryum (PW-2) was that on 14.08.2013, the convict namely Muhammad Zeeshan and Munir Ahmad, the co-accused of the convict, since acquitted, quarreled with the deceased. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. Ghulam Abbas (PW-1), admitted during cross-examination that the deceased had not reported the matter of quarrel prior to the occurrence to anyone. Ghulam Abbas (PW-1) during cross-examination admitted as under:
“My daughter did not submit any application before the police or filed any suit regarding the quarrel prior to the occurrence. I also did not submit any application to the police regarding the quarrel prior to the occurrence.”
Tayyaba Maryum (PW-2) though claimed to had witnessed the quarrel between the convict namely Muhammad Zeeshan and Munir Ahmad, the co-accused of the convict, since acquitted and the deceased, however was found to have made a dishonest improvement in this regard and was duly confronted with the same. Tayyaba Maryum (PW-2) had admitted that her statement had never been recorded by the police and was confronted with her statement recorded during the proceedings under section 202 of the Code of Criminal Procedure, 1898 in relation to the instant private complaint wherein Tayyaba Maryum (PW-2) also had not mentioned the date of the quarrel between the convict and the deceased as being 14.08.2013. During the cross-examination of Tayyaba Maryum (PW-2), it was noted by the learned trial Court as under:
“It is correct that I recorded my cursory statement on 07.04.2014 before the Court. I got recorded in my cursory statement that on 14.08.2013 quarrel has taken place between my mother and accused Zeshan and Munir. Confronted with cursory statement Exh.D.A where the date is not mentioned.” (emphasis supplied).
The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the convict to have committed the Qatl-i-Amd of the deceased. There is a lingering silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:
“The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.”
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
22. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Shaista Parveen (CW-1) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the convicts conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another vs. The State” (2017 SCMR 986) has enunciated the following principle of law:
“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”
The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others vs. The State” (PLD 2021 Supreme Court 600) has enunciated the following principle of law:
“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not “corroborative evidence” in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”
23. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of convict namely Muhammad Zeeshan son of Munir Ahmad in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha vs. The State” (2018 SCMR 772) has enunciated the following principle:
“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zaman v.The State (2014 SCMR 749).”
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah vs. the State (2021 SCMR 736) in which it has been observed in paragraph No. 13 of page 236 as infra:
“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the Court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, “Better that ten guilty persons escape, than that one innocent suffer.” Benjamin Franklin, who was one of the leading figures of early American history, went further arguing “it is better a hundred guilty persons should escape than one innocent person should suffer.” All the
contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution’s case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that “if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused.”
24. For what has been discussed above, the conviction and sentence of the convict namely Muhammad Zeeshan son of Munir Ahmad awarded by the learned trial Court through the impugned judgment dated 31.08.2016 are hereby set-aside. Muhammad Zeeshan son of Munir Ahmad (convict) is ordered to be acquitted by extending him the benefit of the doubt.
25. Murder Reference No. 58 of 2016 is answered in Negative and the sentence of death awarded to Muhammad Zeeshan son of Munir Ahmad is Not Confirmed.
(A.A.K.) Reference Negative
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