PLJ 2024 Cr.C. (Note) 182
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Muhammad Tariq Nadeem, JJ.
versus
STATE and another--Respondents
Crl. A. No. 1465 of 2019 & M.R. No. 1 of 2020, heard on 12.12.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Qatl-i-amd--Natural human conduct and behavior--Related witness--Delay in post mortem examination--Site plan--Opinion of doctor--Withhold the evidence--Witness mentioned in inquest report--Recovery--No independent witness--Blood on weapon of offence--Benefit of doubt--Acquittal of--The relationship of the said witnesses with the deceased is on record deceased was the sister of PW-7 and the cousin of the prosecution witness PW-8--PW-7 House where the occurrence took place was at a distance of only 8 to 10 acres from their own houses and both the prosecution witnesses were not the inhabitants of the house where the occurrence had taken place--Both the prosecution witnesses can be validly termed as “chance witnesses”--During the purported stay of the appellant at the hospital they did not even for once, visit the hospital nor inquired after the appellant from the deceased is revealing of the sham claim of the prosecution witnesses--No proof was produced before him that the appellant had ever remained admitted in a hospital--Prosecution witnesses had their own residences at a distance of only 8 to 10 acres from the place of occurrence--Neither in the scaled site plan of the place of occurrence as prepared by draftsman (PW-1) nor in the rough site plan of the place of occurrence as prepared by Investigating Officer, the room where the prosecution witnesses were sleeping prior to the occurrence has been marked--Alleged eye witnesses made no effort either to save the deceased or to apprehend the appellant when they were three in number and could have easily restrained the accused--It is unnatural and unbelievable that the alleged eye witnesses did not even move a limb to protect their near and dear--No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators--Appellant had inflicted all the injuries using the sharp edge of the axe wielded by him--Dr. observed the presence of a crushed injury on neck of the dead body of the deceased--The observations and opinion of the doctor were in themselves sufficient to bring down the whole edifice of the prosecution case as narrated by the prosecution witnesses--No effort was made by the prosecution witnesses to challenge the observations and opinion of the doctor--Place of occurrence was occupied by the children of deceased--Said children were present in the same house where the occurrence took place--Neither during the course of the investigation nor before the trial Court, the statements of the children of deceased, who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence, were recorded--Both the prosecution witnesses were not mentioned earlier in column No.4 of the inquest report as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report nor were mentioned at page 4 of the inquest report as witnesses who were present at the place of occurrence at the time of preparation of the inquest report--Accused person could not be convicted merely on the basis of a presumption--Regarding the recovery of the axe the same cannot be relied upon--Investigating Officer of the case, did not join any witness of the locality during the recovery of the axe which was in clear violation of section 103 Code of the Criminal Procedure, 1898--Such a long period the blood available on the axe would have disintegrated--Blood available on the axe had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, scientifically impossible to detect the origin of the blood--There is no evidence on record that deceased was facing any threat to her life at the hands of the appellant prior to the occurrence--Criminal appeal is allowed and sentence of the appellant awarded by the Trial Court are hereby set-aside--Appellant is acquitted. [Para 13, 14, 16, 18, 19, 21, 22,
23 & 24] A, B, C, D, E, F, G, J, H, I, J, M, N, O, P, Q, S,
U, Z, AA, CC
2017 SCMR 898; 2016 SCMR 2138; 2016 SCMR 2021 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129--Natural human conduct and behavior--Article 129 of the Qanun-e-Shahadat, 1984 allows the Court to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case--Why thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984--The conduct of the witnesses, as deposed by them, was opposed to the common course of natural events, human conduct. [Para 14] K & L
2015 SCMR 315; 2012 SCMR 172; 2008 SCMR 95 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that. [Para 16] R
1998 SCMR 854; 1999 SCMR 2844; 1996 SCMR 1846; 2017 SCMR 622; 2017 SCMR 142; 2018 SCMR 506; 2017 SCMR 1155 ref.
Delay in the Postmortem Examination--
----Delay in the postmortem examination--Delay in the postmortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. [Para 19] T
2012 SCMR 327; 2019 SCMR 956; 2019 SCMR 1068 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 117 & 122--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 of the Qanun-e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence--Burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution’s case.
[Para 21] V, W & X
PLD 1977 SC 515; 2017 SCMR 724; 2005 SCMR 1524; 2015 SCMR 710; 2011 SCMR 941; 2016 SCMR 1019; 2017 SCMR 564; 2016 SCMR 1628; PLD 2017 SC 681; 2011 SCMR 941 ref.
Benefit of Doubt--
----For giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstances 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. [Para 24] BB
2018 SCMR 772; 1995 SCMR 1345; 2008 SCMR 1221; 2009 SCMR 230; 2014 SCMR 749; 2021 SCMR 736; PLD 2019 SC 64; 1998 SCMR 1345; PLD 2002 SC 1048; 2010 SCMR 129 ref.
Mr. MudassarAltaf Qureshi, Advocate for Appellant.
Mr. Riaz Ahmed Saghla, Additional Prosecutor General for State.
Khawaja Qaiser Butt, Advocate for Complainant.
Date of hearing: 12.12.2023.
Judgment
Sadiq Mahmud Khurram, J.--Muhammad Ilyas son of Allah Yar (convict) was tried by the learned Additional Sessions Judge/ Model Criminal Trial Court, Burewala in the case F.I.R. No. 39 of 2018 dated 22.02.2018 registered in respect of an offence under Section 302, PPC at the Police Station Sahuka, District Vehari, for committing the Qatl-i-Amd of Tahira Bibi daughter of Muhammad Ameen (deceased). The learned trial Court, vide judgment dated 06.12.2019, convicted Muhammad Ilyas son of Allah Yar (convict) and sentenced him as infra:
Muhammad Ilyas son of Allah Yar:
Death under Section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Tahira Bibi daughter of Muhammad Ameen (deceased) and directed to pay Rs. 500,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved. Muhammad Ilyas son of Allah Yar (convict) lodged Criminal Appeal No. 1465 of 2019 assailing his conviction and sentence. The learned trial Court submitted Murder Reference No. 01 of 2020 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ilyas son of Allah Yar. We intend to dispose of the Criminal Appeal No. 1465 of 2019 and Murder Reference No. 01 of 2020 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Nasir Mehmood (PW-7), the complainant of the case are as under:-
“Stated that eight years ago, my sister Mst. Tahira Bibi was married with Muhammad Ilyas s/o Allah Yar, the accused present in the Court. Out of that wedlock, three daughters namely Mst. Zainab, Mst. Iram and Mst. Neelam, all alive, took birth. Accused Muhammad Ilyas was admitted in the Hospital at Pakpattan for his treatment. After recovery, he returned to his house.
On 21.02.2018, I alongwith Muhammad Irshad s/o Saddar Din and Muhammad Abbas s/o Khair Muhammad went to the house of Ilyas (my brother in law) accused to attend upon him. We made night stay there. On 22.02.2018, at about 01:00 (night), we heard alarm from the adjoining room of my sister Mst. Tahira. After hearing the alarm, when we woke up and reached the room of Mst. Tahira Bibi then in the light of bulb so lit in the room, we saw that accused Ilyas was armed with hatchet. In our view, Ilyas accused inflicted a blow of hatchet which hit on the left side of neck of my sister Mst. Tahira Bibi. Accused Ilyas repeated the hatchet blow which landed on the left side of head of my sister Tahira Bibi. The third hatchet blow given by accused Ilyas was also landed on the left side of head of my sister. After sustaining injuries, my sister collapsed in the cot. I alongwith PWs attempted to apprehend the accused, however accused while brandishing the hatchet, extended threats of being done to death to us. Then, accused managed to decamp from the place of occurrence alongwith hatchet. I and other PWs attended upon Mst. Tahira Bibi, however she succumbed to the injuries.
The motive behind the occurrence is that accused Ilyas used to compel my sister to receive her legal share in the ancestral property. However, my sister was not ready to follow suit the desire of accused. Due to the same reason, accused used to develop disputes with and maltreat my sister Mst. Tahira Bibi and accordingly he committed the murder of my sister.
After receiving information about the occurrence, police came at the place of occurrence, I.O. recorded my oral statement which is Exh.PF and I signed the same.”
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court and the accused was sent to face trial. The learned trial Court framed the charge against the accused on 15.05.2018, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as nine witnesses recorded. The ocular account of the case was furnished by Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8). Muhammad Arshad-ur-Rehman (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA). Mumtaz Begum 374/LC (PW-3) stated that on 22.02.2018 she escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Ghulam Abbas 703/HC (PW-4) stated that on 22.02.2018, he got recorded the formal F.I.R (Exh.PF/1) and on the same day received one sealed parcel said to contain blood stained cotton a cot and last worn clothes of the deceased from the Investigating Officer of the case and on 02.03.2018, he received one sealed parcel said to contain an axe from the Investigating Officer of the case and on 13.03.2018, he handed over the sealed parcels said to contain blood stained earth and the axe to Syed Munawar Shah, SI (PW-9) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Jehangir, SI (PW-6) stated that on 22.02.2018, he identified the dead body of the deceased at the time of post mortem examination. Syed Munawar Hussain Shah SI (PW-9) investigated the case from 22.02.2018 till 14.03.2018, arrested the appellant on 23.02.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court.
6. The prosecution also got Dr. Shireen Faraz (PW-2) examined who on 22.2.2018 was posted as Woman Medical Officer at RHC Sahuka and on 22.02.2018 was posted as woman Medical Officer at RHC Sahuka and on the same day had conducted the post mortem examination of the dead body of the deceased namely Tahira Bibi daughter of Muhammad Ameen. On conducting the post-mortem examination of the dead body of the deceased namely Tahira Bibi daughter of Muhammad Ameen, Dr. Shireen Faraz (PW-2) observed as under:
“EXAMINATION OF NECK:
7 x 3 cm extensive crushing injury on left side of neck, below left ear lobule to front of neck with massive crushing of muscles, vessels and bones,
CRANIUM AND SPINAL CORD:
Two injuries of 7x3 cm deep on left temporal region by sharp weapon parallel to each other, crushing the skull. Multiple fractures seen on it. Damage the brain and vessels, excessive amount of blood present inside.
....................
Opinion:
After performing post mortem examination, I was of the opinion that in this case, death had occurred due to massive hemorrhage, as a result of crushing of major vessels and brain, all injuries were ante-mortem and by sharp weapon. These injuries were sufficient to cause death in ordinary course of life.”
7. On 18.11.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Abbas as being unnecessary. On 23.10.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Abbas son of Faqeer Muhammad, Muhammad Amin and Naveed Islam 72/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PM).
8. After the closure of proton evidence, the learned trial Court examined the appellant namely Mohammad Ilyas son of Allah Yar under Section 342 CPC and in answer to the question why this care against you and why the Ps hove deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Ilyas son of Allah Yar opted not to get himself examined under Section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court, Burewala convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to suspicion alone. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Additional Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Additional Prosecutor General and the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Additional Prosecutor General and the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8). The learned Additional Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the axe (P-4) from the appellant also corroborated the ocular account. The learned Additional Prosecutor General and the learned counsel for the complainant 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 Additional Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Additional Prosecutor General and with their able assistance, perused the record and evidence recorded during the trial.
13. The whole prosecution case circulates around the statements of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8), the eye witnesses of the occurrence. The relationship of the said witnesses with the deceased is on record. Tahira Bibi (deceased) was the sister of Nasir Mehmood (PW-7) and the cousin of the prosecution witness namely Muhammad Irshad (PW-8), Nasir Mehmood (PW-7) in his statement before the learned trial Court, stated as under:
“Irshad PW is my paternal cousin (Phoophizad). PW Abbas is my real maternal uncle (Mamoon).”
It was the claim of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) themselves that the occurrence had taken place on 22.02.2018 at 01.00 a.m (night).It was also a fact admitted by the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) that the the house house where the occurrence took place was at a distance of only 8 to 10 acres from their own houses and both the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) were not the inhabitants of the house where the occurrence had taken place. The prosecution witness namely Nasir Mehmood (PW-7) during cross-examination, stated as under:
“It is correct that all of us are residents of same village i.e. Chak No. 40/KB. It is correct that all the PWs are residing separately at our “Bhaniees”.
“My house is also situated at the distance of 8/10.Acres from the house of accused Ilyas. The intervening distance between my house and the houses of Ahmad Yar and Ghaffar is 150/200.feet”
The prosecution witness namely Muhammad Irshad (PW-8) during cross-examination stated as under:
“The intervening distance between my house and the house of accused Ilyas is 8/10. Acres”
In this manner, both both the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) can be validly termed as “chance witnesses” and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. In order to prove their presence at the place of occurrence, at the time of occurrence, the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) claimed that prior to the occurrence, on 21.02.2018 at about 08.45 p.m, they had arrived at the house where the occurrence took place, ostensibly to inquire about the health of the appellant who had just returned from the hospital after having remained admitted in the same for as many as 20/25 days, however, both the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) candidly admitted that neither they knew as to in which hospital the appellant had remained admitted nor they knew as to what aild the appellant, which then motivated the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) to inquire about his health after his return from the hospital. The prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) also admitted that during the entire period of the stay of the appellant in the hospital, both the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) never visited him so as to inquire after him nor ever visited the deceased to inquire about the health of her husband. The prosecution witness namely Nasir Mehmood (PW-7), during cross-examination, stated as under:
“I do not know that at which hospital at Pakpattan accused Ilyas was admitted. I cannot disclose the nature of ailment of accused Ilyas due to which he was admitted in hospital.
……………………….
I never visited the hospital when accused Ilyas was admitted there. For about 20/25 days, accused Ilyas would have remained admitted in the hospital. Accused was admitted into the hospital 20/25 days prior to the day of occurrence. I cannot tell the exact date of admission of accused in hospital.”(emphasis supplied)
The prosecution witness namely Muhammad Irshad (PW-8) during cross-examination, stated as under:
“I do not know that at which hospital at Pakpattan accused Ilyas was admitted. I cannot disclose the nature of ailment of accused Ilyas due to which he was admitted in hospital
I never visited the hospital when accused Ilyas was admitted there. For about 20/25.days, accused liyas would have remained admitted in the hospital. Accused was admitted into the hospital 20/25.days prior to the day of occurrence.
When accused Ilyas was admitted in hospital at Pakpattan, then neither I went to his house nor spent night there. During the course of admission of accused in hospital at Pakpattan, we never inquired from Mst. Tahira Bibi about the ailment of accused Ilyas.” (emphasis supplied)
This admission of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) that during the purported stay of the appellant at the hospital they did not even for once, visit the hospital nor inquired after the appellant from the deceased is revealing of the sham claim of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) that after the appellant had returned from the hospital, they went to visit him and while being present there, had witnessed the occurrence. Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case, also admitted during cross-examination thay that no proof was produced before him that the appellant had ever remained admitted in a hospital and that it was after the discharge of the appellant from the hospital that the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) had proceeded to inquire after the health of the appellant and thereafter witnessed the occurrence. Syed Munawar Hussain Shah, SI (PW-11) admitted during cross-examination as under:
“It did not surface during my examination as to when the accused came home after discharge from the hospital. It also was not revealed as to how many days he remained in the hospital. The complainant and eye witnesses did not disclose before me the date of discharge of accused from hospital. I did not collect any record from the hospital regarding admission and discharge of the accused. I did not visit any hospital at Pakpattan.”
What has convinced us regarding the absence of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) at the place of occurrence, at the time of occurrence is the fact that, as mentioned above, the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) had their own residences at a distance of only 8 to 10 acres from the place of occurrence, however, the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) opted to sleep in the house where the occurrence took place and did not proceed to their own residences, though there was no reason for them to had opted to sleep at the place of occurrence. Despite our repeated queries, the learned Additional Prosecutor General and the learned counsel for the complainant are unable to explain this unnatural conduct of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) of not sleeping in their own houses after having met the appellant on the very night when the occurrence had taken place. Both the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) also admitted that the appellant and the deceased had been married for as many as eight years prior to the occurrence and during the said eight years, either of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) had never ever slept in the house where the occurrence took place. The prosecution witness namely Nasir Mehmood (PW-7), during cross-examination, stated as under:
“It is correct that prior to the ocurrence and after the marriage of my sister, I or none of the PWs never spent a night at the house of my deceased sister.”
The prosecution witness namely Muhammad Irshad (PW-8), during cross-examination, stated as under:
“Prior to the occurrence, I never spent a night at the house of Mst. Tahira Bibi”
We have also noticed that neither in the scaled site plan of the place of occurrence (Exh.PA) as prepared by Muhammad Arshad urRehman, draftsman (PW-1) (PW-1) nor in the rough site plan of the place of occurrence (Exh.PL) (as prepared by Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case the room where the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) were sleeping prior to the occurrence has been marked nor the cots upon which the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) were sleeping were marked in the said site plans (Exh.PA and Exh.PL). Muhammad Arshad urRehman, draftsman (PW-1) admitted during cross-examination as under:
“The complainant as well as PWs did not show to me the room where they were slept at the time of occurrence due to which I did not show the said Room in Ex.PA, Ex.PA/1 and Ex.PA/2”
(emphasis supplied)
Similarly, Syed Munawar Hussain Shah, SI (PW-11), during cross-examination, admitted as under:
“I have not mentioned any cot (charpai) where the complainant and eye witnesses were sleeping in my visual site plan Exh.PL”
All the above mentioned facts prove that the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) made untrue statements for their reason to had arrived at the house where the occurrence took place and their having slept in the same house till the happening of the occurrence, despite their own residences being at a distance of only 8 to 10 acres from the house where the occurrence took place.
14. We have also noted that the alleged eye witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and Muhammad Abbas (given up prosecution witness) made no effort either to save the deceased or to apprehend the appellant when they were three in number and could have easily restrained the accused, who, according to the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8), was alone. It is vexing to imagine that in what circumstances the accused succeeded in the presence of the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and Muhammad Abbas (given up prosecution witness), without facing any resistance from the said prosecution witnesses. All the three witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and Muhammad Abbas (given up prosecution witness), were closely related to the deceased namely Tahira Bibi. It is unnatural and unbelievable that the alleged eye witnesses, namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and Muhammad Abbas (given up prosecution witness), did not even move a limb to protect their near and dear one. According to the statements of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) they did not act in any manner to save the life of the poor woman. The prosecution witness namely Nasir Mehmood (PW-7), during cross-examination, admitted as under:
“The actual occurrence continued for 15/20 seconds. During that course, we did not offer any resistance”
Similarly, the prosecution witness namely Muhammad Irshad (PW-8) during cross-examination, admitted as under:
“During that course we did not try to resist or intervene in the commission of occurrence, volunteered that the accused completed the occurrence hurriedly.
........................
We viewed the occurrence from the distance of 20/25.feet. We did not proceed further towards the deceased or accused with a view to resist during the occurrence”
No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailant. It only proves that the deceased was at the mercy of the assailant and no one was there to save her. Such behavior, on the part of the witnesses, runs counter to natural human conduct and behavior. Article 129 of the to Qanun-e-Shahadat, 1984 allows the Court to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by them, was opposed to the common course of natural events, human conduct and that the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-S) were not present at the place of occurrence, at the time of occurrence and their presence was procured subsequently. The august Supreme Court of Pakistan has enunciated binding principles for the appreciation of evidence in such circumstances. Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:
“No man on the earth would believe that a clase relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot”
Further reliance is placed on the case of Shahzad Tanveer v. The State (2012 SCMR 172) at page-176 wherein the august Supreme Court of Pakistan observed as infra:
“It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot
Reliance is also placed on the case of Liaquat Ali v. The State (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under:
“He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.”
15. The perusal of the prosecution evidence also reveals the presence of a serious contradiction between the ocular account of the occurrence as narrated by the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and the medical evidence as furnished by Dr. Shireen Faraz (PW-2). The inconsistency in the ocular account of the occurrence and the medical evidence is of such magnitude that it has resulted in proving that the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) had not witnessed the occurrence and it was for that reason that the flaw cropped up. Both the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) stated that the deceased was inflicted injuries with an axe while using the sharp edge of the same. The prosecution witness namely Nasir Mehmood (PW-7), during cross-examination, stated as under:
“The accused had inflicted blows with the sharp edge side of the hatchet”
Contrary to this claim of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) that the appellant had inflicted all the injuries using the sharp edge of the axe wielded by him, Dr. Shireen Faraz (PW2), who conducted the post-mortem examination of the dead body of the deceased on 22.02.2018 observed the presence of a crushed injury on the neck of the dead body of the deceased. Dr. Shireen Faraz (PW-2) in her statement before the learned trial Court, stated as under:
“EXAMINATION OF NECK:
7x.3 cm extensive crushing injury on left side of neck, below left ear lobule to front of neck with massive crushing of muscles, vessels and bones
.............
It is correct that I have not mentioned the kind weapon used in neck injury. It is correct that crush wounds and incise wounds are totally different with each other. It is correct that above mentioned injuries might be occurred with different weapons” (emphasis supplied)
The prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) very well knew that the observations and opinion of Dr. ShireenFaraz (PW-2) were in themselves sufficient to bring down the whole edifice of the prosecution case as narrated by the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8), however, even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. ShireenFaraz (PW-2) or if the same could not be challenged, then to explain the same. We have noted that during the course of the trial, the prosecution witnesses failed to explain as to why was there such a huge, gaping and all consuming, inexplicable and baffling error in the statements of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8). Despite repeated queries, the learned Additional Prosecutor General and the learned counsel for the complainant have failed to explain the said discrepancy in the prosecution evidence. In this manner, an irreconcilable and distressing contradiction has cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and the medical evidence as furnished by Dr. Shireen Faraz (PW-2). This contradiction in the ocular account of the occurrence, as narrated by prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and the medical evidence as furnished by Dr. Shireen Faraz (PW-2) clearly establishes that the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) miserably failed to prove their presence at the place of occurrence, at the time of occurrence. Had the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) seen the occurrence then there did not exist any possibility that they would have fallen into error.
16. It is also an admitted fact t of the prosecution case that the place of occurrence was occupied by the children of Tahira Bibi (deceased). Both the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8), in their statements before the learned trial Court stated that Tahira Bibi (deceased), was blessed with the birth of as many as four children and the said children were present in the same house where the occurrence took place. The prosecution witness namely Nasir Mehmood (PW-7) stated during cross-examination, as under:
“Daughter of the deceased namely Mst. Zainab Bibi is about 8 years, other daughter Mst. Neelam is about 5½ years or 06 years and third daughter Mst. Iram is of the age of about 3 years.” (emphasis supplied)
Neither during the course of the investigation nor before the learned trial Court, the statements of the children of Tahira Bibi (deceased), who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence, were recorded Nasir Mehmood (PW-7) admitted during the cross-examination that the children of the deceased, who were present in the house where the occurrence had taken place, at the time of occurrence, were now residing with their maternal uncle and were in his care and custody. Nasir Mehmood (PW-7) during cross-examination, stated as under:
“All the daughters of the deceased are currently in the custody of their paternal uncle”
In this manner, Nasir Mehmood (PW-7), the complainant of the case, could have and should have produced the said children of the deceased not only before the Investigating Officer of the case, but also before the learned trial Court. Moreover, there is no evidence on record that on the day of occurrence, at the time of occurrence, the said children were living some where else than with their parents. Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case, also failed to include in the investigation the inhabitants of the house where the occurrence had taken place and this joint failure of the prosecution witnesses including Nasir Mehmood (PW-7), the complainant of the case and Syed Munawar Hussain Shah SI (PW-11), the Investigating Officer of the case, to produce the said inhabitants of the place of occurrence before the learned trial Court, reflects poorly upon the veracity of the prosecution case Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:
“(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
The failure of the prosecution to produce, the children of the deceased, who were admittedly the residents of the place of occurrence and the most natural witnesses, before the learned trial Court, has convinced us that had they been produced before the learned trial Court they would not have supported the prosecution case. Reliance in this matter is placed on the case of Shamshad versus The State (1998 SCMR 854 also cited as 1999 SCMR 2844) wherein the august Supreme Court of Pakistan held as under:
“10. The prosecution has also failed to offer a plausible explanation as to why the children of the appellant, who were, admittedly, present in the house at the time of the incident, were not produced as witnesses in the case. In fact, the children of the appellant were the most natural witnesses of the occurrence, However, the Investigating Officer thought it fit not to examine them as witnesses. When confronted with this situation at the time of his cross-examination he explained that two daughters and the son of the appellant were less than? Years of age. However, in the same breath it was admitted by him that Ruhi Bano was about 8 or 9 years of age. The other children were a few years younger. However, at least the older children under normal circumstances could have given evidence in the Court. The explanation given by the Investigating Officer, therefore, was not tenable.
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13. Learned State Counsel has however, argued that in case the prosecution had failed to examine any of the appellant’s children as a witness, they should have been examined as defence witnesses. It has been further argued that if there are two versions, one given by the prosecution and the other by the defence, then if the latter is not believed, the prosecution version must be believed as true. In our view, both the contentions are untenable. Burden to prove its case beyond a reasonable doubt squarely rests on the prosecution. Such burden cannot be discharged by weaknesses found in the case of the defence. The mere fact that the defence version is not believed by the Court cannot lend credence to the prosecution case if, otherwise, the prosecution his failed to discharge itx burden. For the reason enumerated above, we have no hesitation in coming to the conclusion that the prosecution has failed to extablish its case against the appellunt. (emphasis supplied)
Reliance is also placed on the case of Lal Khan versus The State (1996 SCMR 1846) wherein the august Supreme Court of Pakistan held as under:
“The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence.
Reliance is also placed on the case of Usman alias Kaloo versus The State (2017 SCMR 622) wherein the august Supreme Court of Pakistan held as under:
“A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother, wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the trial Court”.
Reliance is also placed on the cases of Muhammad Irshad vs. Allah Ditta and others (2017 SCMR 142) and G. M. Niaz vs. The State” (2018 SCMR 506). In this manner, the prosecution case suffers from inherent defects which are irreconcilable.
17. We have also noted that Syed Munawar Hussain Shah SI (PW-9), the Investigating Officer of the case, got information about the occurrence and reached the place of occurrence on his own. We have also observed that none of the witnesses, including Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8), ever proceeded from the place of occurrence to report the matter to the police till the arrival of Syed Munawar Hussain Shah SI (PW. 9), the Investigating Officer of the case, at the place of occurrence on his own. The oral statement (Exh. P.F) of Nasir Mehmood (PW-7) was recorded by Syed Munawar Hussain Shah S1 (PW-9), the Investigating Officer of the case, at the place of occurrence. The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1155) has observed regarding the doubt attached to receiving the applications for the registration of the case at the place of occurrence as under:
“An F.I.R in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the F.I.R had been chalked out after deliberations and preliminary investigation at the spot.”
18. We have also noted that both the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) were not mentioned either in Column No. 4 of the inquest report (Exh.PD) as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report (Exh.PD) (nor were mentioned at page 4 of the inquest report (Exh.PD) as witnesses who were present at the place of occurrence at the time of preparation of the inquest report (Exh.PD). Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case, admitted during cross-examination as under:
“It is correct that column No. 4 of inquest report relates to the persons who identify the dead body. It is correct that I have not mentioned the names of complainant and eye witnesses in column No.4 of inquest report”
This fact also point towards the absence of the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) at the place of occurrence, at the time of preparation of the inquest report (Exh. PD) by Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case.
19. We have also noted with disquiet that despite the fact that the occurrence took place at about 01.00 a.m on 22.02.2018, the post-mortem examination of the dead body of the deceased was conducted after much delay. According to Dr. ShireenFaraz (PW-2), she conducted the post-mortem examination of the dead body of the deceased namely Tahira Bibi at 06.30 a.m on 22.02.2018 Dr. ShireenFaraz (PW-2), who conducted the post-mortem examination of the dead body of Tahira Bibi (deceased) and prepared the post-mortem examination report (Exh. PB), gave the time between death and post-mortem examination as being 5-6 hours. Furthermore, Mumtaz Begam 374/LC (PW-3) stated that she had brought the dead body of the deceased to the RHC Sahuka at 06.00 a.m and it took her only 10 to 12 minutes to arrive at the said hospital whereas Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case had recorded the oral statement (Exh.PF) of Nasir Mehmood (PW-7) at 02.00 a.m. Mumtaz Begam 374/LC (PW-3) explained during cross-examination as under:
“I reached mortuary along with dead body at 6:00 am (morning) on a private vehicle. The intervening distance between the place of occurrence and hospital RHC Sahuka, in about 6/7 km. It took about 10/12 minutes in reaching RIIC Sahuka, from the place of occurrence” (emphasis supplied)
The reason which is apparent for the delayed escorting of the dead body of the deceased to the hospital and the delayed conducting of the post-mortem examination of the dead body of Tahira Bibi daughter of Muhammad Ameen (deceased) is that by that time the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion a false narrative of the occurrence. These facts clearly establish that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post-mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post-mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and two others vs. The State (2012 SCMR 327) has held as under:
“The incident in the instant case took place at 2.00 am. F.I.R. was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 pm i.e. after about ten hours, which fact clearly shows that the F.I.R. was not lodged at the given time”.
The august Supreme Court of Pakistan in the case of “Mian Sohail Ahmed and others vs. The State and others” (2019 SCMR 956) has held as under:
“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 am on 01.9. 2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 pm. and formal F.I.R was registered at 9.00 pm. On 31.8.2006 gives rise to an inference that the incidem wax not reported as stated by the prosecution”
The august Supreme Court of Pakistan in the case of “Muhammad Rafique alias Feega vs. The State” (2019 SCMR 1068) has held as under:
“More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer: and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefore, which in the present case is strikingly wanting.”
20.There is another discrepancy in the prosecution case which reflects that the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) did not know the facts of the case which is that according to Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case, the post mortem examination of the dead body of the deceased had been conducted at RHC Sahuka, whereas according to the statement of Dr. ShireenFaraz (PW-2) she had conducted the post mortem examination of the dead body at the THQ hospital Burewala. Syed Munawar Hussain Shah, SI (PW-11), the Investigating Officer of the case, during cross-examination, claimed as under:
“I reached R.H.C. Sahuka at about 09:00 a.m. The dead body was lying there at that time. Post mortem was conducted at R.H.C. Sahuka. Statements of the PWs regarding identification of the dead body were recorded at R.H.C. Sahuka at about 09:00 am. Last worn clothes of the deceased were presented before me at RH.C. Sahuka.”(emphasis supplied)
Dr. Shireen Faraz (PW-2), however stated during cross-examination, as Under:
“I conducted the instant postmortem examination of dead body at Tehsil Headquarter Burewala”
The prosecution witnesses could not even state with any degree of certainty as to where post mortem examination of the dead body was conducted.
21. It has been argued by the learned Additional Prosecutor General and the learned counsel for the complainant 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 Additional Prosecutor General and the learned counsel for the complainant submit that it was in the knowledge of the appellant how the deceased died so it was the appellant who was responsible, in the 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 of Qanun-e-Shahadat, 1984 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, 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 heyond reasonable doubt and this section cannot be construed to mean that the omus 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 gulit 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 in the case of “Nasrullah alias Nasro versus The State (2017 SCMR 724) wherein, it was 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.
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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. 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 cases, 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, the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be one of the residents of the place of occurrence. The prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) admitted that the appellant had his other family members living with him. 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 dead body 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 shits 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 heen 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 . The State” (ibid) where the accused admittedly was present in the house when his wife was killed.”
22. The learned Additional Prosecutor General and the learned counsel for the complainant have submitted that the recovery of the axe (P-4) from the appellant namely Muhammad Ilyas offered sufficient corroboration of the statements of the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8), Regarding the recovery of the axe (P-4) from the appellant namely Muhammad Ilyas, 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 axe (P-4) from the appellant namely Muhammad Ilyas which was in clear violation of Section 103 Code of Criminal Procedure, 1898. The provisions of Section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:
“103-(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectabile inhabitants of the locality in which the place to be searched it situate to attend and witness the search and may issue an under in writing to them or any of them se to do.”
Therefore, the evidence of the recovery of the axe (P-4) from the appellant namely Muhammad Ilyas cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. 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.”
Furthermore, it is admitted part of the prosecution case that the Axe (P-4) was shown to be recovered from an open place and the exclusive possession of the appellant of the axe (P-4) was never proved. It has also been noticed by this Court that the occurrence took place on 22.02.2018, whereas the Axe (P-4) was sent to the office of Punjab Forensic Science Agency, Lahore on 13.03.2018 and was analyzed on 30.05.2018. During such a long period the blood available on the axe (P-4), if any, would have disintegrated. It is not possible to believe that the blood available on the axe (P-4) had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of “Faisal Mehmood vs. The State” (2016 SCMR 2138) has held as under:
“The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is doted 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05 2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”
All these facts denude the effort made by Syed Munawar Hussain Shah SI (PW-9), Investigating Officer of the case to prop up the failing prosecution case by showing sham recovery of the axe (P-4).
23. The learned Additional Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Nasir Mehmood (PW-7) in his oral statement (Exh.PF) was that the appellant forced the deceased to get her share in the property of her father and on her refusal murdered her. We have perused the statements of the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) and find that they failed to prove the motive of the occurrence as stated by them. Both the prosecution witnesses namely Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) admitted during cross-examination that the property was in the name of the father of the deceased and was yet to be distributed among his legal heirs including Nasir Mehmood (PW-7) and the deceased. The prosecution witness namely Nasir Mehmood (PW-7), during cross-examination, admitted as under:
“At the time of occurrence, no property was in the name of my sister, volunteered that the entire property is still in the name of my deceased father We are four brothers and sisters. During the course of investigation, I did not produce the proof of property which vested in the name of my father, volunteered that I.O. did not demand any such like thing”
Muhammad Irshad (PW-8) during cross-examination also admitted as under:
“A piece of land measuring 2½ to 2¾ Kanals is expected come to the lot of Mst. Tahira Bibi from the inheritance of her father. The father of Tahira Bibi owned land measuring 14. Kanals. In my presence, accused Ilyas never made demand from Tahira Bibi to receive her share from her ancestral property, volunteered that she used to disclose the same while visiting the house of her parents.” (emphasis supplied)
Furthermore, though the prosecution witnesses Nasir Mehmood
(PW-7) and Muhammad Irshad (PW-8) claimed that they remained in conversation with the appellant on the night of occurrence for an extended period, however, did not State that the appellant ever made a demand from the deceased or from the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) regarding the transfer of the share of the deceased in the property of her father. It was also admitted by the prosecution witnesses Nasir Mehmood (PW-7) and Muhammad Irshad (PW-8) that the appellant and the deceased had been married for more than eight years. There is no evidence on record that Tahira Bibi (deceased) was facing any threat to her life at the hands of the appellant prior to the occurrence rather, to the contrary, she was living with the appellant till her tragic death. This also proves that the appellant and the deceased were having a happy and healthy marital life, blessed with the birth of four children and hence there did not exist any reason for the appellant to have murdered his loving wife. 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 appellant to have committed the Qatl-i-Amd of the deceased. There is a poignant hush with regard to the particulars of the 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.”
24. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Ilyas son of Allah Yar, 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 Akram v. The State (2009 SCMR 230) and Muhammad Zamany. 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 held 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 SC64) while relying on 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.”
25. For what has been discussed above, Criminal Appeal No. 1465 of 2019 lodged by Muhammad Ilyas son of Allah Yar (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment dated 06.12.2019 are hereby set-aside. Muhammad Ilyas son of Allah Yar (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Muhammad Ilyas son of Allah Yar (appellant) is in custody and is directed to be released forthwith if not required in any other case.
26. Murder Reference No. 01 of 2020 is answered in Negative and the sentence of death awarded to Muhammad Ilyas son of Allah Yar is Not Confirmed.
(K.Q.B.) Appeal allowed
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