Raja Shahid Mehmood Abbasi, J.--Through this appeal under section 410, Cr.P.C. Umar Hayat, appellant has challenged the vires of judgment dated 28-02-2017 passed by learned Additional Sessions Judge, Kamalia whereby the appellant was convicted under section 302(b), PPC and sentenced to death for committing Qatal-e- Amd of Mst. Rehana Bibi, deceased. He was also ordered to pay compensation of Rs. 200,000/- (Rupees two hundred thousand only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. or in default thereof to undergo simple imprisonment for six months. On the other hand, learned, trial Court has sent a Reference under section 374, Cr.P.C. for confirmation or otherwise of the death sentence passed against the appellant, which has been numbered as Murder Reference No. 138 of 2017. We propose to decide both these matters together through this single judgment.
2. The prosecution story set forth in FIR (Exh.P A/1) lodged on the complaint (Ex.P A) of Ahmad Bakhsh, complainant (PW.7) is that he was a labourer and four months prior to the occurrence, marriage of his daughter Mst. Rehana Bibi (deceased) was solemnize d with Umar Hayat (appellant) but after some time, relations between the spouses became strained. On 14-12-2016, Mst. Rehana Bibi informed the complainant about the quarrel between the spouses, upon which the complainant alongwith his son Shakeel Ahmad and one Muhammad Ibrahim went to their house situated at Mohallah Paghlanwala Kamalia, but the spouses had gone to Mohallah Bagai Wala for attending marriage of their relative. At about 10:00 p.m. (night), when Mst. Rehana Bibi and accused Umar Hayat came back from marriage ceremony , the complainant and his companions tried to settle the matter between them but they started quarreling and in the meantime, accused Umar Hayat took Mst. Rehana Bibi to another room where he put his hand on her mouth and closed her breath. Upon hearing hue and cry of Mst. Rehana Bibi, they rushed to the room and saw that accuse d Umar Hayat had laid his better half on the cot and was pressing her mouth with his hand. They tried to catch hold the accused but he fled away from the spot. They attended Mst.
Rehana Bibi but she had breathed her last at the spot. Domestic violence was the motive behind this incident.
3. After registration of crime report, Ghulam Mustafa, S.14.0. (PW.9) conducted investigation of the case and after completion of investigation he submitted report under section 173, Cr.P.C. before the Court. The accused, on indictment, pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced 09 witnesses, namely , Muhammad Saleem 456/MHC (PW.1), Ayaz Qasir 1108/C (PW.2), Khalid Hussain (PW.3), Shahzad Ashraf, draftsman (PW.4), Haq Nawaz, AS1 (PW.5), Lady Doctor Marya Iqbal, WMO (PW.6), Ahmad Bakhsh, complainant (PW.7), Shakeel Ahmad (PW.8) and Ghulam Mustafa, SI (PW.9) Amongst them, Ahmad Bakhsh, complainant (PW.7) and Shakeel Ahmad (PW.8) are witnesses of ocular account. Ghulam Mustafa, Inspector/I.O.
(PW9) testified about various steps taken by him during the course of investigation. Doctor Marya Iqbal, WMO (PW.6) conducted autopsy on the dead body of the deceased vide post-mortem report (Ex.PD) and observed the following injuries:
1. Two scratch mark first .5 x .25 cm. Second 1.00 cm x .25 cm present on left side of face between angle of mouth and angle of mandible.
2 Bruise 2.5 cm x 1 cm on left lateral side of neck, light blue in colour .
3. Abrasion 3 x 2 cm on left side of neck.
4. Abrasion 3.5 x 1.2 cm over right side of neck.
The doctor was of the opinion that death had occurred due to shock under Injuries No. 2, 3 and 4, which were ante- mortem in nature and sufficient to cause death in ordinary course of nature, however , the duration between injury and death and death and post-mortem was not exactly determined by her .
Rest of the prosecution witnesses more or less, are formal in nature. The prosec ution gave up PWs Muhammad Ibrahim and Ali Raza, being unnecessary and closed its evidence after tendering the reports (Ex.PL, Ex.PM and Ex.PN) of the Punjab Forensic Science Agency , Lahore.
4. Thereafter , the appellant was examined under section 342, Cr.P.C. whereby he professed his innocence in the matter and denied all the allegations leveled against him. He did not opt to depose within the scope of section 340(2), Cr.P.C. or adduce evidence in his defence. The contention adopted by him in reply to the question as to why this case against him and why the PWs had deposed against him, reads as under: "No motive was given in this case against me because the complainant and witnesses were well aware that I loved my deceased wife Mst. Rehana Bibi. I had no reason to commit her murder , I was not present at the room where murder alleged to have been committed. No oral and medical evidence corroborate the prosecution story about suffocation allegedly committed by me. The PWs are closely related with the deceased so they have deposed falsely . No independent witness - of the locality supported and corroborated the version of the complainant anywhere in the case. The complainant and PWs got lodged this case against me due to suspicion and no occurrence was took place as stated by prosecution. The deceased was patient of lungs disease of pulmonary- odema and she died due to her lung disease."
The learned trial judge on conclusion of the trial held the appellant guilty of the offence charged and sentenced him as mentioned hereinabove.
5. Learned counsel for the appellant emphatically contended that the impugned judgment is against law and facts of the case; that the material available on record does not justify the conviction and sentence awarded to the appellant and the same is not sustainable in the eyes of the law; that the appellant has been falsely involved in this case by the complainant; that the story narrated by the complainant in the FIR is false and frivolous; that the relations between the spouses remained cordial throughout and appellant had no occasion to murder his own better half; that the statements of the prosecution witnesses are full of contradictions and discrepancies which were not properly appreciated by learned trial Court in its true perspective and passed the impugned judgment in hasty manner; that the ocular account in this case has been furnished by interested and chance witnesses who were inimical towards the appellant; that no independent witness from the vicinity where the occurrence took place had been produced by the prosecution either during the investigation or before the learned trial Court; that none of the inmates or the house supported the prosecution version, causing serious doubt upon the veracity of the prosecution case; that the medical eviden ce runs contrary to the ocular account; that motive also remained far from being proved by the prosecution against the appellant; that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. Learned counsel finally prayed for acquittal of the appellant from the charge.
6. On the other hand, learned Additional Prosecutor General assisted by learned counsel for the complainant contended that the appellant is nominated in FIR with specific role attributed to him and the role attributed to him is borne out from post-mortem examination report of the deceased; that the prosecution witnesses had no reason to falsely implicate the appellant in this case or to substitute him in lieu of real culprit, which is a rare phenomenon and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprit; that the medical evidence furnishe d by the doctor in this regard fully corroborates the ocular account; that the prosecution witnesses are consistent on each and every material point and there seem no discrepancies in their statements; that there was no previous or enmity between the parties, so possibility of false implication of the appellant in this case is ruled out; that the prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appeal filed by the appellant may be dismissed and murder reference may be answered in af firmative.
7. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their assistance.
8. For reappraisal of evidence, we have taken everything into our full consideration in the light of arguments advanced by both the sides. It is cardina l principle of law that each criminal case has its own peculiar facts and circumstances and same hardly coincide with each other on salient features. Undeniably , it is an unfortunate occurrence in which a newly married young girl breathed her last in the house of her in-laws and the accusation was against none else but her own husband. In order to substantiate its case, the prosecution has led evidence in the shape of ocular account, medical evidence, reports (Ex.PL, Ex.PM and Ex.PN) of Punjab Forensic Science Agency , Lahore and lastly the motive.
9. The incident in the present case, accor ding to the prosecution, was alleged to have taken place at 10:00 p.m. on 14.12.2016 within the area of Paghlanwala, about 2 Kilometers towards west from Police Station City Kamalia and the same was reported by Ahmad Bakhsh, complainant (PW.7) through complain t (Ex.P A), recorded by Ghulam Mustafa, SI (PW.9) on the next morning i.e. 15-12-2016 at 09:30 a.m. on the basis of which formal FIR (Ex.P A/1) was chalked out by Muhammad Saleem, 456/MHC at 9:45 a.m. In FIR (Ex.P A/1) as well as in his statement before the learned trial Court, Ahmad Bakhsh complainant (PW.7) has not advanced any plausible justification whatsoever that if he alongwith Shakeel, Muhammad Ibrahim and Ali Raza was available at the scene of occurrence at the relevant time, then what compelled him for not reporting the incident to police instantaneously and why the crime report was lodged with an inordinate delay of eleven hours and forty five minutes. We have further observed that the post-mortem examination on the dead body of the deceased Mst. Rehana Bibi was conducted by Lady Doctor Marya Iqbal, WMO (PW.6) with further delay of four hours and forty five minutes after registration of FIR. Keeping in view these material discrepancies arising out from the prosecution case, an adverse inference to the prosecution's case can be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently , otherwise there was no justification for not dispatching the dead body to the mortuary and providing police papers with such delay . Reliance is placed upon "Muhammad Ashraf vs. The State" (2012 SCMR 419). The delay in lodging the FIR as well as conducting post-mortem examination also indicate about the non-availability of eye- witnesses at the scene of occurrence at the relevant time as held by the Hon'ble Supreme Court of Pakistan in The cases of "Irshad Ahmed vs. The State " (2011 SCMR 1190) and "Mazeer Ahmed vs. The State " (2016 SCMR 1628 ).
10. In an attempt to make it a case of direct evidence against the appellant on the charge of undoing his own better half, the prosecution has heavily relied on the statements of Ahmad Bakhsh, complainant (PW.7) and Shakeel Ahmad (PW.8), who happened to be the real father and brother of Mst. Rehana Bibi deceased respectively , but residents of Mohallah Fazil Dewan situated about one kilometer away from the place of occurrence i.e. Mohallah Paghlanwala, Kamala. While appearing in the witness box before learned trial Court, both Ahmad Bakhsh, complainant (PW.7) and Shakeel Ahmad (PW.8) stated that on 14.12.2016, Mst. Rehana Bibi informed them that quarrel had taken place between her and her husband Umar Hayat appellant, upon which, they alongwith Muhammad Ibrahim (not examined) went to the house of Umar Hayat appellant at Mohallah Paghlanwala on foot, where they came to know that the spouses had gone to attend the marriage ceremony of their relative. In order to justify their arrival, they (PW.7 and PW.8) maintained that they came there to settle matrimonial dispute between the deceased and the appellant but both the prosecution witnesses miserably failed to disclose any source of communication by which Mst. Rehana Bibi had allegedly informed them about quarrel with her husband Mst.
Rehana Bibi deceased did not even disclose the fact to them that she alongwith her husband was going to attend the marriage ceremony of some relative. There is another circumstance that according to prosecution's own version, the appellant was alone and was not equipped with any weapon whatsoever whereas the alleged eye- witnesses were three in numbers and were of strong statures and physique. Though both the prosecution witnesses claimed that after hearing the shrieks of the deceased, they went inside the room where they saw the appellant, while putting his hands on the mouth of the deceased in order to cause suffocation which would have definitely consumed reasonable time, but all the prosecution witnesses including real father and brother did not react or showed any response to interrupt the appellant. It is not acceptable to a prudent mind that such close relatives would remain silent spectators in a terrible situation, when naturally intervention was required to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot. The presence of the prosecution witnesses at the spot due to their passive conduct has become highly doubtful.
Reliance in this respect is placed on the case of Masood Ahmad and Muhamamd Ashraf vs. The State (1994 SCMR 6). Similar view was reiterated by the august Supreme Court of Pakistan in the case of Pathan v. The State (2015 SCMR 315 ) wherein the apex Court had held as under: "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony ..."
It is for the above reasons that we are not at all inspired with the depositions of Ahmad Bakhsh complainant (PW.7) and Shakeel Ahmad (PW.8) and are of the view that these witnesses are neither trustworthy nor confidence inspiring, raising serious doubt about their veracity as well as presence at the spot. We, therefore, have no hesitation to hold that it is not safe to maintain conviction on such type of shaky evidence.
11. Apart from the highly inconsistent and discrepant eye-witness account, the prosecution version is badly shattered by unbridgeable medical contradiction with regard to the actual cause leading to the death of Mst.
Rehana Bibi, for which the prosecution has no explanation to offer. The medical evidence in this case has been adduced by Lady Doctor Marya Iqbal, WMO (PW.6), who, during cross-examination stated that she did not mention any sign of mouth suffocation in autopsy report (Ex.PD) of the deceased. She further stated that she had not seen any sign of injury at upper and lower lips and had also not observed petechiae on the face as well as eyeball and eyelid of deceased. She could not comment about tongue of deceased due to developing of rigor mortis and was also unable to mention the exact time of death as well as duration between the injuries and death. The doctor also admitted that there was no sign of injury on the whole body of deceased except some minor bruise, abrasions and scratch mentioned in post-mortem report (Ex.PD). She destructively admitted that she had not found any signs of suffocation on the body of deceased. In this way, the medical evidence has totally negated the prosecution version that the deceased had died due to suffocation allegedly caused by the appellant. As regards the opinion of the doctor that the cause of death in this case was Injuries No. 2, 3 and 4, admittedly these injuries were minor bruise and abrasions which may not be sufficient to cause death in ordinary course of nature. We are, therefore, of the view that the death of Mst. Rehana Bibi due to suffocation could not be proved during trial and the prosecution has even failed to bring on record actual cause of her death.
12. Now the only piece of evidence still remained in field is the motive advanced by the prosecution behind the unfortunate incident, which, as per Ahmad Bakhsli, complainant (PW.7) and Shakeel Ahmad (PW.8) was the quarrel between the spouses, but when Ahmad Bakhsh complainant (PW.7) alongw ith Shakeel Ahmad (PW.8) and Muhammad Ibrahim (not examined) allegedly reached in the house of the appellant, they found that the spouses had gone to attend the marriage of some relative. In this way, the contradictory stance of the prosecution itself is enough to draw inference that no quarrel had taken place between the appellant and his better half/deceased.
13. As far as the argument advanced by learned counsel for the complainant that the deceased in this case was a vulnerable dependent of the appellant and, thus, by virtue of the law declared by the Hon'ble Supreme Court of Pakistan in the cases of "Saeed Ahmed vs. The State" (2015 SCMR 710) and "Arshad Mehmood vs. The State"
(2005 SCMR 1524 ) some part of the onus had shifted to the appellant to explain the circumstances in which his wife had died an unnatural death in his house which part of the onus had not been discharged by the appellant. In this regard, the Hon'ble Supreme Court of Pakistan, in a recent judgment reported in case Of "Nazir Ahmad vs. The State" (2018 SCMR 787) has been pleased to hold that when every other piece of evidence relied upon by the prosecution has been found to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition. Further guidance can be sought from the case of "Nasrullah alias Nasro v.
The State" (2017 SCMR 724) and "Asad Khan v. The State" (PLD 2017 SC 681) wherein the Apex Court was pleased to hold that the above mentioned shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosec ution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. Mere recovery of dead body from the house of the appellant, not supported by any inmate of the house, hardly connects him with the commission of crime especially when his own version was that he was away from his house at the time of occurrence.
14. The upshot of our discussion made above is that the prosecution has failed to prove its case against Umar Hayat appellant beyond any reasonable shadow of doubt. It is settled law that no many circumstances creating doubt in the prosecution story are required to acquit an accused rather one circum stance creating doubt is enough to extend benefit of same to the accuse d. So by extending the benefit of doub t to Umar Hayat, appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
15. Murder Reference No. 138 of 2017 is answered in negative and death sentence passed by learned trial Court against Umar Hayat appellant is not confirmed .