PLJ 2026 Cr.C. (Note) 138
[Lahore High Court, Lahore]
Present: Ali Zia Bajwa, J.
AYESHA NAEEM etc.--Appellants
versus
STATE and others--Respondents
Crl. A. Nos. 67910-J, 67912-J, 67916-J & Crl. Rev. No. 67907 of 2022, heard on 12.3.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
دفعات 302(ب) اور 201 — پوسٹ مارٹم میں تاخیر: پوسٹ مارٹم میں غیر مبینہ تاخیر ایک محتاط ذہن کو یہ تقاضا کرتی ہے کہ وہ استغاثہ کے شواہد کا انتہائی احتیاط کے ساتھ جائزہ لے۔ ان حالات میں سب سے فطری نتیجہ یہی نکلتا ہے کہ تاخیر اس لیے واقع ہوئی کیونکہ ابتدائی تفتیش اور ملزم کو پھنسانے کے ساتھ ساتھ عینی گواہوں کو گھڑنے کے لیے پہلے سے مشاورت میں وقت صرف کیا گیا۔
----Ss. 302(b) & 201--Qatl-e-amd--Delay in post-mortem--An unexplained delay in post-mortem warrants a prudent mind to assess prosecution’s evidence with utmost caution--The most natural inference in these circumstances is that delay was caused as time was consumed for preliminary investigation and prior consultation to implicate accused and fabricate eye-witnesses.
[Para 7] A
2024 SCMR 1507.
Pakistan Penal Code, 1860 (XLV of 1860)--
دفعات 302(ب) اور 201 — قتلِ عمد — مجرم قرار دینے اور سزا دینے کے خلاف چیلنج — پوسٹ مارٹم میں تاخیر — معائنہ رپورٹ — کی گواہی — طبی شہادت — بیلچے کی برآمدگی: مبینہ عینی گواہوں نے پوسٹ مارٹم کے وقت یا معائنہ رپورٹ تیار کرنے کے دوران لاش کی شناخت نہیں کی۔ اگر وہ اس جگہ پر موجود ہوتے جہاں سے لاش برآمد ہوئی تھی، تو وہ قدرتی طور پر شناختی گواہ کے طور پر کام کرتے۔ یہ اہم ترک (چوک) مجھے اس نتیجے پر مجبور کرتا ہے کہ وہ وقوعہ کے وقت اور مقام پر موجود نہیں تھے۔ پی ایف ایس اے (Punjab Forensic Science Agency) کی رپورٹ جس میں انسانی خون کی موجودگی دکھائی گئی ہے، 30.09.2021 کی ہے، جس کا مطلب ہے کہ مذکورہ شے کا معائنہ انسانی خون کی موجودگی کی تصدیق کے لیے وقوعہ کے ڈیڑھ سال سے زیادہ عرصے بعد کیا گیا۔ آلہِ واردات پر خون کی موجودگی سائنسی طور پر ناممکن ہے کیونکہ انسانی خون تقریباً تین ہفتوں کے عرصے میں تحلیل ہو جاتا ہے۔ عدالتی نقطہ نظر سے جائزہ لینے پر یہ بات ظاہر ہوتی ہے کہ استغاثہ یہ ثابت کرنے میں ناکام رہا کہ اپیل کنندگان مبینہ وقوعہ میں ملوث تھے، اور اس سلسلے میں کوئی بھی قائل کرنے والا یا قابلِ اعتبار ثبوت/مواد ریکارڈ پر نہیں لایا جا سکا۔ یہ قانون کا ایک طے شدہ اصول ہے کہ فائدہِ شک دینے کے لیے ضروری نہیں ہے کہ متعدد حالات موجود ہوں، بلکہ ایک ہی حالت عدالت کے ذہن میں شک پیدا کرنے اور ملزم کو بری کرنے کے لیے کافی ہے، اور یہ بریت بطورِ احسان نہیں بلکہ بطورِ حق دی جاتی ہے۔
----Ss. 302(b) & 201--Qatl-e-amd--Conviction and sentence--Challenge to--Delay in post-mortem--Inquest report--Testimony of--Medical evidence--Recovery of shovel--The alleged eye-witnesses did not identify deceased’s body at time of autopsy or during preparation of inquest report. Had they been present at place from where dead body was recovered, they would have naturally served as identification witnesses. This significant mission compels me to conclude that they were not present at time and place of occurrence--The report of PFSA showing presence of human blood is dated 30.09.2021, which means that said article was examined to confirm presence of human blood after more than 1½ years of occurrence. The presence of blood on weapon of offence is scientifically impossible because human blood disintegrates in a period of about three weeks--When evaluated on judicial parlance, reflect that prosecution failed to bring on record any convincing/reliable evidence/material to establish that appellants were involved in commission of alleged occurrence. It is an established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one circumstance is sufficient to bring suspicion in mind of Court and to acquit an accused, not as a matter of grace, but as of right.
[Para 8, 17, 18] B, D & E
2021 SCMR 780; 2018 SCMR 1153; 2017 SCMR 1155;
2016 SCMR 2138; 1995 SCMR 1345; 1995 SCMR 1730;
2021 SCMR 736 & 2024 SCMR 1731.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 201--Qatl-e-amd--Chance witness--In our criminal jurisprudence, it is well established that unless a chance witness gives a convincing reason for being at crime scene, his testimony may not be trustworthy and could be considered unreliable.
[Para 10] C
2020 SCMR 319; 2020 SCMR 1850; 2021 SCMR 780; 2021 SCMR 325.
Mr. Nadeem Siddiqui, Advocate along with Mian Muhammad Awais Mazhar Advocate/counsel on State expenses (in Crl. Appeal No. 67910-J/2022).
Mr. Ali Hussain, Advocate for Appellant (in Crl. Appeal No. 67912-J/2022).
Ms. Sabahat Riaz, Advocate/counsel on State expenses (in Crl. Appeal No. 67916-J/2022).
Syed Muntazir Mehdi Bukhari, Assistant District Public Prosecutor for State.
Ch. Anwar-ul-Haq, Advocate for Complainant.
Date of hearing: 12.3.2025.
Judgment
Through this single judgment, I intend to decide Crl. Appeal Nos. 67910-J/2022 titled “Ayesha Naeem alias Aashi vs. The State’, 67912-J/2022 titled “Hamid Mehmood vs. The State”, 67916-J/2022 “Husnain vs. The State” filed by Ayesha Naeem alias Aashi, Hamid Mehmood and Husnain/appellants against their convictions and sentences, as well as, Crl. Revision No. 67907/2022, titled “Muhammad Nadeem Abbas vs. The State and others” filed by the complainant for enhancement of sentences of the appellants, as all these are arising out of the same judgment dated 30.09.2022 (hereinafter the impugned judgment) passed by the Addl. Sessions Judge, Hafizabad (hereinafter ‘the trial Court’).
2. Ayesha Naeem alias Aashi widow of Naeem, Ansari by caste, resident of Mohallah Tajpur, District Hafizabad, Hamid Mehmood son of Muhammad Ishaq, Rehmani by caste, resident of Madina Colony, District Hafizabad and Husnain son of Abdul Sattar, Rehmani by caste, resident of Mohallah Hussain Pura, District Hafizabad (hereinafter ‘the appellants”) were implicated in case F.I.R. No. 184/2020, dated 13.03.2020, offences under Sections 302, 201 & 34, PPC registered with Police Station City Hafizabad, District Hafizabad. They were tried by the trial Court under the afore-mentioned offences. The trial Court vide the impugned judgment, convicted and sentenced the appellants as infra:
Ø Under Section 302(b), PPC, sentenced to undergo imprisonment for life each with-the direction to pay
Rs. 5,00,000/-(Five Lacs) cach as compensation to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C. In case of default in making payment of compensation, they shall further undergo S.I. for six months each.
Ø Under Section 201, PPC, sentenced to undergo rigorous imprisonment for seven years each with the direction to pay Rs. 50,000/-(Fifty Thousand) each as fine and in case of default thereof, they shall further undergo S.I. for two months each.
Ø Both the sentences of imprisonment shall run concurrently. Benefit of Section 382-B, Cr.P.C. was also extended in their favour.
3. The prosecution story as mentioned in the impugned judgment has been reproduced as infra:
“That on 12.03.2020, Naeem Ahmad deceased met the complainant and told him that Ayesha Naeem accused had quarreled with him. On the same day, at about 09:00 p.m, he (complainant) alongwith his brother Muhammad Yousaf went to the house of Naeem deceased and settled affairs between Nacem deceased and his wife Ayesha Naeem. Keeping in view the strained relations of deceased and his wife he alongwith Muhammad Yousaf stayed in the house of Naeem deceased and slept in the gallery of the house at night, whereas, children of Naeem deceased slept in upper storey. At about 02-00/03:00 a.m (night) he woke up for drinking water and heard noise from the lower room. He awoke Muhammad Yousaf and came down together wherein electric bulb was lighting in the room of deceased. Accused Ayesha was asking her co-accused Husnain and Hamid to kill Naeem. At that time accused Hamid was armed with pistol whereas Ayesha & Husnain both were carrying respective “bailchas”. Accused Husnain made few blows of bailcha upon the head of Naeem. He made first bailcha blow upon back side of head of Naeem and also made bailcha blow upon upper side of head of deceased Naeem. After that the accused saw them on which accused Hamid pointed pistol upon them and threatened to kill them if they made a noise. Accused Ayesha also made multiple bailcha blows upon neck, face and head of Naeem deceased. Then accused Husnain also made several blows of bailcha upon different parts of body of Nacem deceased. Thereafter, accused persons took them to gallery at the upper storey, where they tied up their hands, fect, mouths and snatched their mobile phones. In the morning, as a routine Muhammad Azeem (salesman) came and while seeing the main gate open entered in the house and untied them. They told whole story to him. Then they came down and saw that neither the accused persons nor their brother Naeem was present there, they made a noise upon which some persons from the locality attracted the spot. After that they went towards railway line in search of accused persons and their brother, where they saw a white nylon bag/sake, upon the opening of which they found dead body of Naeem deceased in it. On this, they approached somebody in their Mohallah to write down application. After writing down the application he went to police station and presented said application Ex.PA which bears his signatures. Motive behind the occurrence is that deceased Naeem had some suspicion regarding the character of his wife (accused Ayesha Naeem) and used to forbid her from her immoral activities, due to said reason the accused persons have committed this occurrerce.”
4. Upon the completion of a thorough investigation, a report under Section 173, Cr.P.C. was submitted to the trial Court. During the trial proceedings, the prosecution presented as many as fourteen witnesses in support of its case. Subsequently, the statements of the appellants, as mandated under Section 342, Cr.P.C., were recorded, wherein they professed their innocence and categorically refuted all the allegations leveled against them in the prosecution’s evidence.
5. I have heard the arguments advanced by learned counsel for both sides and perused the record available on the file.
6. The prosecution’s case rests upon the ocular account, medical evidence, motive, and recovery of incriminating articles to establish the guilt of the appellants. I shall meticulously evaluate the entire evidence to determine whether the convictions and sentences rendered by the trial Court are sustainable and whether the prosecution has successfully proven its case beyond the shadow of reasonable doubt.
7. The alleged occurrence took place between 2:00 and 3:00 AM on 13.03.2020, whereas the dead body of the deceased was recovered at 6:35 AM. The FIR was registered on the same day at 8:10 AM, apparently demonstrating due promptitude in the reporting of the incident. However, it is astonishing that the autopsy was conducted at 11:00 PM, with an extraordinary delay of nearly 15 hours, which raises serious eyebrows and calls for an explanation. No explanation for this inordinate delay is available on the record. Rather, the post-mortem report reflects that the complete police papers were received at 10:30 PM on that day, merely half an hour before the autopsy was conducted. Such an unexplained delay in the post-mortem warrants a prudent mind to assess the prosecution’s evidence with utmost caution. The most natural inference in these circumstances is that the delay was caused as time was consumed for preliminary investigation and prior consultation to implicate the accused and fabricate eye-witnesses. witnesses. Reliance can be placed on the case titled Muhammad Ijaz alias Billa and another vs. The State and others 2024 SCMR 1507
8. Another crucial aspect of this case is that the alleged eye-witnesses did not identify the deceased’s body at the time of the autopsy or during the preparation of the inquest report. Had they been present at the place from where the dead body was recovered, they would have naturally served as identification witnesses. This significant omission compels me to conclude that they were not present at the time and place of the occurrence. A reference in this respect may be made to the cases reported as “Abdul Jabbar alias Jabri v. The State” (2017 SCMR 1155), “Nadeem alias Kala v. The State and others” (2018 SCMR 153) and “Liaqat Ali and another v. The State and others” (2021 SCMR 780).
9. The inquest report (Exh.PQ), post-mortem report (Exh.PM) and the testimony of Dr. Ansar Ali (PW-6) establish that the mouth of the deceased was found open, indicating that no one attempted to close it. This casts serious doubt on the presence of the alleged eye-witnesses, who were the real brothers of the deceased, at the time the dead body was recovered. Had they genuinely been present at the scene, they would have naturally attempted to close the mouth of their deceased brother. Their failure to do so raises significant doubts regarding the credibility of their testimony and the veracity of their alleged presence at the relevant The reliance can be placed upon the cases titled as “Muhammad Asif v. The State” (2017 SCMR 486), “Zahir Yousaf and another v. The State and another” (2017 SCMR 2002) and “Muhammad Rafique alias Feeqa v. The State” (2019 SCMR 1068).
10. The justification offered for the presence of the eye-witnesses at the scene of the alleged occurrence is that they had come to mediate a reconciliation between the deceased and his wife i.e. appellant Ayesha. The crime report indicates that while the matter between the spouses had been settled, tensions still lingered, compelling the eye-witnesses to remain at their house. The eye-witnesses, being residents of a nearby locality, could have easily returned home and revisited the deceased’s house the following morning if necessary. Their decision to stay overnight merely due to a marital dispute, which had been partially resolved, defies common sense and raises doubts about the plausibility of their presence at the crime scene. It is evident that the witnesses are related to both the parties and fall within the category of chance witnesses. Chance witnesses in a criminal case are witnesses who claim to have seen the crime in question by coincidence, even though they had no clear reason to be there. Their presence at the scene is unusual or unexpected, so their testimony is examined more carefully. Courts are cautious about relying on their statements and require strong supporting evidence to confirm their truthfulness. In our criminal jurisprudence, it is well established that unless a chance witness gives a convincing reason for being at the crime scene, his testimony may not be trustworthy and could be considered unreliable. Guidance in this regard can be drawn from the precedents laid down in “Mst. Mir Zalai v. Ghazi Khan and others” (2020 SCMR 319), “Ibrar Hussain and another v. The State” (2020 SCMR 1850), “Liaqat Ali and another v. The State and others” (2021 SCMR 780) and “Abdul Khaliq v. The State” (2021 SCMR 325).
11. Furthermore, it does not make sense that the appellants would commit such a serious crime knowing that the deceased’s two real brothers were in the house. Even if they were desperate, they would have likely chosen a different time when there was less risk of being caught.
The accused also left the eye-witnesses, who were the real brothers of the deceased, completely unharmed. This means that they knowingly left behind people who could easily report the crime and testify against them. If they had truly committed the offense, it is unlikely that they would have left such key witnesses alive, knowing they would be caught based on their testimony. This makes the entire situation highly improbable.
12. Another crucial point in the case is that the complainant, while testifying under oath, said that he did not know the appellants, Hussnain and Hamid, before the occurrence. His testimony is completely silent on how he later discovered their identities, enabling him to name them in the crime report along with their parentages and addresses. The relevant extract of his evidence has been reproduced hereinafter:
“I did not know accused Hasnain prior to the occurrence.”
“I did not know accused Hamid.”
This aspect of the case further deepens the doubts surrounding the prosecution’s version against the appellants. If the complainant had no prior knowledge of the appellants and his testimony does not explain how he later identified them with such precise details, it raises serious concerns about the credibility of the allegations.
13. According to the crime report, the appellants tied the hands, feet, and mouths of the eye-witnesses and left them in the upstairs gallery. They were freed by the salesman, Muhammad Azeem (PW-12), at 6:30 AM early in the morning. During cross-examination, it emerged that Muhammad Azeem (PW-12) is, in fact, the real brother of the deceased and the eye-witnesses. It is beyond comprehension that why he was referred to as a salesman in the crime report, raising serious questions about the accuracy and intent behind this misrepresentation. The testimony of Muhammad Azeem (PW-12) holds little significance, as he is not an eye-witness to the occurrence. His only rele was to arrive at the alleged place of occurrence and free the alleged eye-witnesses. However, since the presence of these eye-witnesses at the crime scene has already been deemed doubtful in the preceding discussion, the evidence of PW-12 offers no real support to the prosecution’s case.
14. According to the prosecution’s case, the children of the deceased and appellant Ayesha were also present at the alleged scene of the occurrence. However, the evidence is entirely silent on whether the appellants took the children with them or left them behind. If the children were indeed left at the scene, it is perplexing that why they did not assist the eye-witnesses in freeing themselves immediately after the occurrence. This unexplained omission further adds to the doubts surrounding the prosecution’s version of events. The three children, aged between 9 to 12 years, were fully competent to testify as child witnesses, provided their competence was assessed in accordance with legal requirements. Their potential testimony could have offered crucial insight into the alleged occurrence, yet their absence as witnesses raises further questions about the prosecution’s case. The testimony of the children, being residents of the house where the occurrence took place, constituted the best possible evidence. However, the prosecution’s failure to produce them as witnesses suggests that their statements would not have supported the prosecution’s version of events. This omission attracts the adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984, further creating doubts about the credibility of the prosecution’s case.
15. The medical evidence also lends little support to the case of the prosecution. Initially, PW-6, who conducted autopsy of the deceased, declared the cause of death as neurogenic shock and asphyxia at the level If neck. However, on receipt of reports from the office of PFSA, it reveals that lorazepam was detected in liver contents of the deceased, which further makes the presence of the eye-witnesses doubtful. Even otherwise, medical evidence is only a corroborative piece of evidence and as presence of eye-witnesses has already been declared doubtful in preceding paragraphs, it can be of no help to the prosecution to establish the guilt of the appellants.
16. The motive behind the alleged occurrence as narrated in the crime report is that the deceased had suspicion upon the character of his wife and forbade her from such illicit activities. While appearing in the dock, the complainant made dishonest improvements that Ayesha appellant had illicit relations with the remaining appellants. However, no tangible evidence has been produced to support such allegation, rather the complainant during cross-examination himself admitted that he did not ever experience or see any relationship of the male appellants with their Bhabhi. In these circumstances, the alleged motive appears devoid of credibility and is thus unworthy of reliance. Moreover, motive, at its core, is merely a circumstance that may provide insight into the commission of an offence. When the very presence of the prosecution’s eye-witnesses has already been disbelieved by this Court, a doubtful motive serves little purpose in salvaging the prosecution’s case.
17. So far as recovery of shovel on the pointing out of Ayesha Naeem appellant on 25.03.2020 as well as positive report of Punjab Forensic Science Agency (Exh.PKK) is concerned, the same cannot be relied upon as the fact remains that the occurrence in this case took place on 13.03.2020, whereas the report of PFSA showing presence of human blood is dated 30.09.2021, which means that the said article was examined to confirm the presence of human blood after more than 1½ years of the occurrence. The presence of blood on weapon of offence is scientifically impossible because human blood disintegrates in a period of about three weeks. Reliance can be placed on case titled “Faisal Mehmood versus The State (2016 SCMR 2138), wherein the prestigious Supreme Court of Pakistan has held as under:
“..... 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.”
The Chaddar recovered on the pointing out of Hamid Mehmood appellant contained blood stains. The same was sent for DNA testing and it was opined by the forensic analyst that blood stain on that Chaddar was of the deceased. This recovery was affected on 07.04.2020, whereas dead body was recovered on 13.03.2020, which was smeared with blood and there is every possibility to plant that Chaddar on appellant Hamid Mehmood. In absence of any direct evidence, DNA report is merely a corroborative piece of evidence on which, conviction cannot be sustained. The recovery of pistol on the pointing out of Hamid Mehmood appellant holds no evidentiary value as admittedly he did not use the same during the alleged occurrence, whereas no matching report of PFSA qua shovel recovered on the pointing out of Husnain appellant is available on the file.
18. During the course of investigation, suspected hair fibers from outer surface of inner sack, surface of dead body and surface of black coloured Qameez inside the sack were procured. According to PFSA report (Exh.PKK), DNA profile obtained from item # 5A (hair fiber taken from surface of dead body) is mixtures of at least two individuals with major and minor components. The major component of this DNA profile is from an unknown female individual. No blood was detected on items # 11 and 12 i.e. swabs of suspected blood taken from carpet of bed room and handle of the motorbike of the deceased. DNA profile obtained from item # 4A, 5B, 5C, 8 i.e. hairs and nails of the deceased matches with the buccal swabs of the deceased, whereas DNA profile obtained from item # 2.1, 5A and 7 is a mixture of at least two individuals. The deceased cannot be excluded as being contributor to this DNA mixture profile. From no recovered articles, DNA of any of the appellant was found to connect him with the commission of the alleged offence.
19. All the above narrated facts and circumstances, when evaluated on judicial parlance, reflect that the prosecution failed to bring on record any convincing/reliable evidence/material to establish that the appellants were involved in the commission of the alleged occurrence. It is an established principle of law that for extending the benefit of the doubt, it is not necessary that there should be several circumstances, rather one circumstance is sufficient to bring suspicion in the mind of the Court and to acquit an accused, not as a matter of grace, but as of right. Respectful reliance in this regard is placed on the ratio decidendi of the Supreme Court of Pakistan in the cases of Tariq Pervez vs. The State 1995 SCMR 1345, Riaz Masih alias Mithoo vs. The State 1995 SCMR 1730, Muhammad Akram vs. The State -2009 SCMR 230 & Najaf Ali Shah vs. The State 2021 SCMR 736. Reliance can also be placed on verdict rendered by the Supreme Court of Pakistan in Muhammad Nawaz and another vs. The State and others-2024 SCMR 1731 wherein it was held as infra:
“It is a well settled principle of law that while extending a benefit of doubt to an accused, it is not necessary that there must be multiple infirmities and doubts in the prosecution case. A single or slightest doubt in the prosecution case, would be sufficient to be extended its benefit in favour of an accused.”
20. In view of all the facts and circumstances as discussed above, this Court is fully convinced that the prosecution has failed to prove its case against the appellants beyond the shadow of reasonable doubt. Accordingly, the instant appeals are allowed, and the convictions and sentences imposed by the trial Court are set aside. The appellants are acquitted of the charge by extending them the benefit of the doubt. The appellants are in custody. They shall be released forthwith if not required in any other criminal case.
21. As far as Crl. Revision No. 67907/2022 filed by the complainant for enhancement of sentences awarded to the appellants is concerned, for the afore-stated reasons, as this Court by disbelieving the prosecution story has acquitted the convicts/respondents, therefore, the same is devoid of legal justification, which is accordingly dismissed.
(A.A.K.) Appeal allowed
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