SADIQ MAHMUD KHURRAM, J. The appellant namely Hasnat Ahmed son of Muhammad Hussain was tried by the learned Additional Sessions Judge/Model Criminal Trial Court (MCTC), Chakwal alongwith his co-accused namely Muhammad Hussain and Abdul Manan alias Imran (both since acquitted) in case FIR No. 30 of 2019 dated 16.04.2019 registered at Police Station Neela, District Chakwal in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Mubashir Mehmood son of Muhammad Dura iz (deceased). The learned trial court vide judgment dated 24.02.2020 convicted Hasnat Ahmed son of Muhammad Hussain (convict) and sentenced him as infra: Hasnat Ahmed son of Muhammad Hussain: Imprisonment for Life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mubashir Mehmood son of Muhammad Duraiz (deceased) and directed to pay Rs.5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo simple imprisonment for six months.
The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was extended to the convict by the learned trial court.
Muhammad Hussain and Abdul Manan alias Imran, the co-accused of the convict, were however acquitted by the learned trial court.
2. Feeling aggrieved, Hasnat Ahmed son of Muhammad Hussain (convict) lodged the Criminal Appeal No.215 of 2020 assailing his conviction and sentence. Muhammad Qadeer , the complainant of the case, filed Criminal Revision 61 of 2020 seeking the enhancement of the sentence of the convict namely Hasnat Ahmed son of Muhammad Hussain. This Court intends to dispose of the Criminal Appeal 215 of 2020 and Criminal Revision No. 61 of 2020 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by Muhammad Qadeer (PW-5) before the learned trial court, are as under:- "On 15.04.2019 at about 09.00 p.m myself and my brothers Mubashir Mehmood (deceased) and Muhammad Nazir went in the jungle land/area of Dhok Hatta r Dakhli Hasil in search of our cattle which had not returned after grazing and we all were proceeding back home when Mubashir Mehmood (deceased) was a little ahead of us and at 12.10 a.m (16.04.2019) (midnight) when we arrived near Dera of Muhammad Hussain accused present before the court, we heard the shrieks of our brother Mubashir Mehmood deceased on which we were attracted to the venue of occurrence and saw that door of Bethak of Muhammad Hussain was open, light was on and we saw that Muhammad Hussain , present in the court, armed with Danda, Hasnat, accused present in custody and Imran alias Manan, accused present in custody , were there in said Bethak who had befallen Mubashir Mehmood in the bethak Muhammad Hussain accused exhorted that he would not be let go alive and within our view and presence Hasnat Ahmad fired a shot with pistol hitting Mubashir Mehmood on front on the chest, Hasnat Ahmad fired a second fire shot with pistol hitting Mubashir on right flank and again Hasnat Ahmad fired a shot with a pistol hitting Mubashir on right elbow , Imran accused fired a shot with his pistol hitting Mubashir Mehmood on the back and Imran accused then fired another shot with pistol hitting on left forearm of Mubashir Mehmood (deceased) who got seriously injured while the accused persons while firing and extending threats ran away towards the Jungle. Motive for commission of said occurrence/crime by the accused persons is that few days before this occurrence my brother Mubashir Mehmood (deceased) had a quarrel with Hasnat Ahmad accused due to the dogs and the accused persons have nourished a grudge due to that reason the accused persons had inflicted firearm injuries upon my brother in their Bethak and in this way committed great highhandedness. Myself and Muhammad Nazir took Mubashir Mehmood in a private vehicle to DHQ Hospital where Muhammad Akram S.I recorded my statement/report about the occurrence (Ex-PB) which was read over to me and I put my signatures as well as thumb impression in token of its correctness.
On 16.04.2019 I was present with Muhammad Akram S.I P.S Neela when he recovered blood through cotton from the above mentioned place of occurrence and made it into a sealed parcel in a "Dabbi" (P-4) which was taken into possession vide recovery memo Ex-PK and said I.O also recovered and took into possession 04 empties of 30- bore pistol (P-5) which were taken into possession vide recovery memo Ex-PL. Both the recovery memos were signed by me as well as by my brother Muhammad Nazir PW who was also present on said occasion at the spot with me and the police."
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, wherein the appellant namely Hasnat Ahmed son of Muhammad Hussain and his co-accused namely Muhammad Hussain and Abdul Manan alias Imran (both since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 12.06.2019, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as ten witnesses examined. Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) gave evide nce regarding the ocular account. Muha mmad Munir , draftsman (PW-1) prepared the scaled site plan of the place of occurrence. Mohsin Raza, 105/HC (PW-2) stated that on 16.04.2019 he got recorded the formal FIR (Exh. PC) and on the same day Muhammad Akram, S.I. (PW-9) handed over to him two sealed parcels said to contain an empty fired from a pistol and blood stained cotton which on 23.04.2019 he handed the said parcels to Muhammad Akram, S.I. (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Mohsin Raza 105/HC (PW-2) further stated that on 05.05.2019 Nazar Hayat, S.I.
(PW-8) handed over to him a sealed parcel said to contain a pistol which on 08.05.2019 he handed over the said parcel to Nazar Hayat (PW-8) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore.
Kashif Munir 204/C (PW-4) stated that on 16.04.2019 he escorted Mubashar Mehmood (then injured later deceased) to the hospital for his medical examination and received the last worn clothes of Mubashar Mehmood (then injured later deceased) from the Medical Officer. Sajawal Hussain (PW-7) stated that on 26.04.2019 he identified the dead body of the deceased at the time of its post mortem examination and on 05.05.2019 the appellant led to the recovery of the pisto l (P-6) in his presence. Nazar Hayat, S.I. (PW-8) investigated the case from 25.04.2019 till 10.05.2019 and narrated the facts of the investigation conducted in his statement before the learned trial court. Muhammad Akram, S.I. (PW-9) investigated the case from 16.04.2019 till 25.04.2019, arrested the accused on 24.04.2019 and narrated the facts of the investigation conducted in his statement before the learned trial court. Muhammad Zarait Balouch, Inspector (PW-10) investigated the case from 31.05.2019 till 23.10.2019 and narrated the facts of the investigation conducted in his statement before the learned trial court.
6. The prosecution also got Dr. Taimoor Ahmad (PW-3) examined, who on 16.04.2019 was posted as Medical Officer at DHQ Hospital Chakwal and on the same day at about 3.57 a.m exam ined Mubashar Mehmood (then injured later deceased) and observed as under:- "Description of injuries:-
1. Entry wound 1.5 x 1.5 cm, 6 cm below and medial to left nipple on the left side of chest, margins inverted and lacerated, blackening of the wound present. Exit 10 cm below the sternal notch, 06 x 02 cm long, wound on the chest, margins are everted.
2. Entry wound 25 cm above superior iliac spine on the posterior lateral aspect of right lower chest, 02 x 1.5 cm.
Black wound with margins inverted and lacerated. Exit 14 cm below left nipple on anterior axillary line in left lower chest, margins everted and lacerated with bruising around the wound (2.5 x 1.5 cm).
3. Entry wound 6 cm above wrist on left forearm anteriorly 1 x 1 cm margins inverted and lacerated. Exit 05 cm above wrist joint on palmer side in left thumb, wound is 1.5 x 1 cm, margins everted.
4. Entry wound 4 cm below right elbow on posterior forearm, blackening of the wound (5 x 0.5 cm), margins inverted and lacerated. Exit 06 cm above elbow on right arm posterior side of the arm, 1 x 0.5 cm approximately margins everted and lacerated.
5. Entry wound 1 x 1 cm approximately in the center of the thoracic spine, margin s inverted and lacerated, no exit wound present."
Dr. Taimoor Ahmad (PW-3) also conducted the post mortem examination of the dead body of the deceased Mubashar Mehmood son of Muhammad Doraiz on 26.04.2019 and observed the same Medico Legal Examination Certificate (Exh. PD) and further opined as under:- "Final Opinion.
In my opinion, the primary cause of death is firearm injury leading to multiple organs damaged which lead to surgery and later sepsis and multi organs failure and death."
7. On 20.02.2020, the learned ADPP gave up prosecution witness namely Tajamm al Abbas as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency , Lahore (Exh. PV) regarding the blood-sta ined cotton and the report of Punjab Forensic Science Agency , Lahore (Exh. PW) regarding the comparison of the pistol and empty .
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Hasnat Ahmad son of Muhammad Hussain under section 342 Cr.P.C. and in answer to the questio n why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant namely Hasnat Ahmad son of Muhammad Hussain opted not to get himself examined under section 340(2) of the 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 (MCTC), Chakwal convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that 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 F.I.R., on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy District Public Prosecutor along with the learned counsel for the complainant contended that the prosecution has proved its case beyond a shadow of a doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) and the dying declaration of Mubashar Mehmood (deceased). They further argued that the recovery of the pistol (P-6) from the appellant namely Hasnat Ahmad son of Muhammad Hussain also corroborated the ocular account. They 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 , they prayed for the rejection of the appeal.
12. I have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy District Public Prosecutor and with their assistance, carefully perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6). The relationship of the said witnesses with the deceased is on record. Mubashar Mehmood, deceased, was the brother of both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6). Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were admittedly not the residents of the place of occurrence. According to Nazar Hayat, S.I. (PW-8), the Investigatin g Officer of the case, the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) had their residence at the distance of about 1.5 kilometres from the place of occurrence. Muhammad Nazir (PW-6) stated that their residence was at a distance from the place of occurrence which distance could be covered within 8 to 10 minutes. Both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) lived in the same house alongwith the deceased. It is an admitted fact that none of the prosecution witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) had their residences or their houses or any temporary residence near the place of occurrence. This Court has also perused the scaled site plan of the place of occurrence (Exh. PA) as prepared by Muhammad Munir , Draftsman (PW-1) and the rough site plan (Exh.PS) as prepared by Muhammad Akram, S.I. (PW-9) and finds that neither any house nor any shop nor any temporary place of residence belonging to Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) is marked in the same. In this manner , both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) can be termed as "chance witnesses". Both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6), being not the residents of the place of occurrence, were under a bounden duty to prove, through evidence, the reason for their chance presence at the place of occurrence, at the time of occurrence. Both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) failed to prove the reason for them to be present at the place of occurrence, a place which was at a distance of as much as about 1.5 kilometres from their residence and that too at 12:10 a.m. in the night . Both the witnesses namely Muhammad Qadeer (PW- 5) and Muhammad Nazir (PW-6) claimed that they along with their deceased brother had gone to a jungle within the area of Dhok Hattar Dakhli Hasil in search of their cattle which had not returned and when they were returning from the said jungle, on a path back to their residence, they witnessed the occurrence. According to the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) they had left their residence on 15.04.2019 at about 9.00 p.m in search of the cattle whereas they witnessed the occurrence on 16.04.2019 at about 12:10 a.m. in the night. Muhammad Qadeer (PW-5) during cross-examination stated that the Jungle to which they had proceeded in search of their cattle was situated on the western side of Moran Wali Bunn and the distance between the place of occurrence and the said Moran Wali Bunn was about one kilometre. Muhammad Qadeer (PW-5) during cross-examination admitted that he had not mentioned the number of the cattle which had gone missing in his oral statement (Exh. PB). Nazar Hayat, (PW-8), the Investigating Officer of the case, stated that during the investigation of the case, Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) did not show him the cattle which had gone missing and for the search of which the said witnesses had proceeded from their residence.
Similarly , Muhammad Akram, S.I. (PW-9), another Investigating Officer of the case, also stated during cross- examination that none of the witnesses told him about the number of the cattle which had gone missing and for whose search the witnesses had procee ded from their house. Furthermore, Muhammad Qadeer (PW-5) stated during cross-examination that there was only one passage leading to the jungle and the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were returning to their residence using the said path when they witnessed the occurrence. Muhammad Akram, S.I. (PW-9), the Investig ating Officer of the case, stated that in the rough site plan of the place of occurrence (Exh. PS) as prepared by him he had not shown any passage leading from the jungle to the place of occurrence, contrary claim of both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) who had state d that when they were returning from the jungle on a path towards their own house, they witnessed the occurrence. Muhammad Akram, S.I. (PW-9) , the Investigating Officer of the case stated as under:- "I did not show any passage in site plan which might have led from dera of Muhammad Hussain to Jungle."
Similarly , Muhammad Munir , draftsman (PW-1) also admitted during cross-examination that he had not shown any passage in the scaled site plan of the place of occurrence (Exh. PA). Muhammad Munir , draftsman (PW-1) stated as under:- "I have not mentioned the passage from which the PWs and the deceased had come. I have not shown the Jungle as well as its distance from the house of occurrence.
I had seen the Jungle situated in that vicinity which was at a distance of 02/03 kilometers from the house of occurrence."
In this manner , the prosecution witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. This Court has also noted that both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) claimed that after the occurrence they brought the then injured Mubashar Mehmood (deceased) to their house while holding him. In such a scenario the clothes of both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) should have been smeared with blood however Muham mad Akram, SI (PW-9), the Investigating Officer of the case, did not take any such blood-stained clothes of the witnesses in possession. Muhammad Akram, SI (PW-09), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of the eye witnesses, which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency , Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence, at the time of occurrence. Both these witnesses were under a duty to provide a convin cing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 SCMR 1142) wherein it has been held as under:- "20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer , otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses."
The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 SCMR 319 ) has held as under:- "Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced".
The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 SCMR 153 ) has held as under:- "For the following reasons the prosecution case against the appellant is doubtful in nature:-
(a) ..........
(b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injure d condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross- examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police."
Both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) also claimed that on their way back from the place of occurrence to their residence, the blood of Mubashar Mehmood (then injured later deceased) fell on the path taken by them, however , no blood-stained earth was collected to prove the said claim. Contrary to the statement of both the witnesses namely Muhammad Akram, S.I. (PW -9) during cross-examination stated as under:- "Neither I found blood outside the dera of accused Muhammad Hussain nor the complainant showed me any blood trail on the passage leading from the dera of accused Muhammad Husain to the house of complainant."
In a similar manner , Muhammad Qadeer (PW -5) also admitted during cross-examination as under:- "After the occurrence, I and Nazir brought the injured Mubashir Mehmood to him by giving him support.
We did not show the trail of blood outside the bethak to police when police came at the spot. We did not tell Patwari about the trail of the blood when he came at the spot."
Moreover , though the occurrence had taken place at 12.10 a.m at night and Mubashar Mehmood (then injured later deceased) had received as many as five firearm entry wounds, however , still, he was not taken to the hospital and was brought to his home. Mubashar Mehmood (then injured later deceased) arrived at the hospital at 3.50 a.m i.e after more than 3 1/2 hours of the occurrence. It is hard to believe and is against human conduct that Mubashar Mehmood (then injured later deceased), who had received as many as five firearm entry wounds on his person, kept bleeding at his house for such a long period and was brought to the hospital subsequently . This fact also proves that both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were not present and had they been present then they necessarily would have taken the then injured Mubashar Mehmood (deceased) to the hospital. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State"
(2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant, Ghulam Farid and Manzoor Ahmed who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and the said eye- witnesses were, thus, chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. It is also noted that no source of light , which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants, was taken into possession by the Investigating Officer namely Muhammad Akram, S.I. (PW-9), despite the fact that as per prosecution' s own claim the occurrence had taken place at about 12.10 a.m (night time) on 16.04.2019. Muhammad Munir , draftsman (PW-1) admitted during cross-examination as under:- "No point showing bulb is mentioned in the scaled site plan."
The Court has also itself perused the scaled site plan of the place of occurre nce (Exh. PA) as prepared by Muhammad Munir , draftsman (PW-1) and the rough site plan of the place of occur rence (Exh. PS) as prepared by Muhammad Akram, S.I. (PW-9) and finds that no source of light has been mentioned in the same. Both the witnesses Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) also admitted during cross-examination that they were only carrying sticks and did not possess any torch or any other source of light at the time of occurrence which could have enabled them to witness the same. Furthermore, Muham mad Akram, S.I. (PW-9), the Investigating Officer of the case, during his investigation, did not take into possession any article so as to prove that sufficient light was available at the place of occurrence, at the time of occurrence for the witnesses to have made such a positive identity of the assailant nor the witnesses produced any such source of light during the investigation of the case or during the trial. As mentioned above, no such electric light bulb or any other light source was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence. According to the prosecution evidence, Muhammad Akram, S.I. (PW-9) the Investigating Officer of the case, visited the place of occurrence after the occurrence but the electric light bulb, which was allegedly available and lighted at the time of occurrence, or any other light source available at the place of occurrence was not taken into possession at the spot by the Investigating Officer alongwith other recoveries though there was no occasion for not doing so. The failure of Muhammad Akram, S.I. (PW-9), the Investigating Officer to take into possession any source of light allegedly present at the place of occurrence and lighted at the time of occurrence proves that none was available and only an invented and false claim of such an electric light source being available at the place of occurrence was made by the said witnesses. The absence of any light source at the place of occurrence is also manifested by the fact that Muhammad Akram, S.I. (PW-9), the Investigating Officer of the case, did not inspect the place of occurrence till morning. Muhamm ad Qadeer (PW-5), the complainant of the case during cross-examination stated as under:- "Police reached at the place of occurrence at about 8.00/9.00 a.m."
The prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, this Court cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in murky shadows out of the depth of which the prosecution cannot get itself out. Reliance is placed on the case of "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11.45 p.m. during the fatefu l night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised"
Reliance is also placed on the case of "Hameed Gul v. Tahir and two others" (2006 SCMR 1628 ) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurren ce. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along."
Reliance is also placed on the case of "Basar Vs. Zulfiqar Ali and others" (2010 SCMR 1972 ) wherein the august Supreme Court of Pakistan observed as under:- "7. It is also alleged by the prosecutio n that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt."
Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:- "It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."
Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnesse d by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer ."
15. This Court has also observed that according to both the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) the occurrence took place only when they had arrived at the place of occurrence. This narrative of the witnesses that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the same is unnatural and cannot be believed. Moreover , Muham mad Akram, S.I. (PW-9) , the Investigating Officer of the case, admitted in cross-examination that he had not shown any passage in the site plan (Exh. PS) as prepared by him on which the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were travelling when they were attracted to the place of occurrence. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence. It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and them deposing against the accused even then the assailants kept waiting for their arrival. Such behaviour , on part of the accused, runs counter to natural human conduct and behaviour . Hence this Court has reached an irresistible conclusion that both Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were not present at the time of occurrence, at the place of occurrence and had not witnesse d the occurrence. In this regard, reliance is placed on the case of STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others ( 2019 SCMR 1 154) wherein the august Supreme Court of Pakistan held as under:- "Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case."
Reliance is also placed on the case of Muhammad Imran Vs. The State (2020 SCMR 857) wherein the august Supreme Court of Pakistan held as under:- "These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself."
16. This Court has already mentioned that along with the appellant his co-accused namely Muhammad Hussain and Abdul Manan alias Imran (both since acquitted) were also tried. The learned trial court acquitted the above mentioned co-accused of the charge. I have queried the learned Deputy District Public Prosecutor and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co- accused, who have stated that the acquittal of Muhammad Hussain and Abdul Manan alias Imran (both since acquitted) had attained finality as the appeal filed by the complainant against the acquittal of Muhammad Hussain and Abdul Manan alias Imran (both since acquitted) ,the co-accused of the appellant, bearing Criminal Appeal No. 396 of 2020 had already been dismissed by this Court vide order dated 28.10.2020 and the matter was not agitated any further . The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of the same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. I have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth then his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:- "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony .
The very fact that there is a whole chapter , numbered XI, dedicated to such offenc es amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XW titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.
Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country . A court of law cannot permit something which the law expressly forbids.
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society . Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury ."
Guided by the said judgment of the augus t Supreme Court of Pakistan, I have exam ined the prosecution evidence.
I have scrutinized the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6), the eye witnesses of the occurrence. Muhammad Qadeer (PW -5) in his statement before the learned trial court, stated as under: "we saw that Muhammad Hussain , present in the court, armed with Danda, Hasnat, accused present in custody and Imran alias Manan , accused present in custody , were there in said Bethak who had befallen Mubashir Mehmood in the bethak.
Imran accused fired a shot with his pistol hitting Mubashir Mehmood on the back and Imran accused then fired another shot with pistol hitting on left forearm of Mubashir Mehmood (deceased) who got seriously injured."
Similarly , Muhammad Nazir (PW -6) in his statement before the learned trial court, stated as under: "Muhammad Hussain , present in the court, armed with Danda , Hasnat Ahmad, accused present in custody and Imran alias Abdul Manan , accused present in custody , were all there in said Bethak who had befallen Mubashir Mehmood (deceased).
Imran accused fired a shot with his pistol hitting Mubashir Mehmood on the back and Imran accused then fired another shot with pistol hitting on left forearm of Mubashir Mehmood (deceased)."
The perusal of the above-mentioned portions of the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) reveals that according to the said eye witness it was the appellant and his co-accused namely Abdul Manan alias Imran (since acquitted) who had fired at the deceased. Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) had also saddled Muhammad Hussain (since acquitted) with the responsibility of raising a lalkara.
Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) did not draw any distinction with regard to the role of the appellant and his co-accused namely Abdul Manan alias Imran (since acquitted) during the occurrence while making their statements before the learned trial court. This Court is unable to find any independent corroboration of the prosecution case against the appellan t and is unable to distinguish the case of the appellant from the case of acquitted co-accused namely Abdul Manan alias Imran (since acquitted) as the prosecution evidence with regard to the appellant namely Hasnat Ahmad and with regard to his co-accused namely Abdul Manan alias Imran (since acquitted), is similar . Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) were adjudged to have deposed falsely not only against Abdul Manan alias Imran but also against Muhammad Hussain (both since acquitted). I find no reason to believe their statements with regard to the appellant in absence of any reason to do so. This lying on part of the of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) with regard to Muhammad Hussain and Abdul Manan alias Imran ( both since acquitted) has vitiated the trust of this Court in them. I am thus satisfied that the evidence of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) has no worth and is to be rejected outright.
17. It has also been noted that according to the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) the incident of firing at the deceased happened at the house of Muhammad Hussain (since acquitted), the co-accused of the appellant. Muhammad Akram, S.I. (PW-9), the Investigating Officer of the case, during cross- examination explained as under:- "It is correct that Bethak in which alleged occurrence took place, is residential room of Adnan and his wife Imrana Bibi."
Muhammad Qadeer (PW-5) also admitted during cross-examination that the place where the occurrence took place had a double bed and stated as under:- "At the Bethak of Muhammad Hussain accused when I visited alongwith police I saw a double bed, a cot, almirah, an iron box and chairs lying there. The courtyard of dera of Muhammad Hussain is on eastern side."
The above referred portion of cross-examination of the witnesses establishes that the place of occurrence was a room which was inhabited by Imrana Bibi. Neither during the investigation of the case nor before the learned trial court the statement of the said Imrana Bibi was recorded. Imrana Bibi, who admittedly was the resident of the place of occurrence, did not appear during the investigation of the case and did not depose anything regarding the occurrence. It is not the case of the prosecution that the said Imrana Bibi was not present in the house at the time of the occurrence. This failure of the prosecution to produce the said Imrana Bibi as a witness has repercussions, which entail the failure of the prosecution case against the appellant. 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 said Imrana Bibi, the resident of the place of occurrence and the most natural witness ,before the learned trial court , has convinced this Court that had she been produced before the learned trial court she 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.
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 reaso nable 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 prose cution has failed to discharge its burden. For the reason enumerated abov e, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the appellant."
Reliance is also placed on the cases of Lal Khan versus THE STATE (1996 SCMR 1846) USMAN alias KALOO versus THE STATE (2017 SCMR 622) 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 as it is.
18. The prosecution has also relied upon the statement (Exh.PT/1) of Mubashar Mehmood (deceased) recorded by Muhammad Akram, S.I. (PW 9) on 19.04.2019 at the Holy Family Hospital, Rawalpindi though the learned trial court declared the said statement (Exh.PT/1) as being worthy of no reliance. Before giving a conclusive finding regarding the legal worth of such statement of the deceased, I deem it appropriate to have a look at the law relevant on the subject. Such a statement is relevant under the provision of Article 46 of Qanun-e-Shahadat Order , 1984. The term dying declaration, genera lly, stands for the statement of a person who is in expectation of his death and relates to the causes of his death. Such a statement is admissible in evidence though its maker does not appear in the witness box so as to provide an opportunity of cross-examination to an accused facing the charge of his murder . The admissibility of the dying declaration is an exception to the genera l rule which makes inadmissible any hearsay evidence. Dying declaration can be made the basis for awarding conviction provided it is free from the menace of prompting and tutoring and is proved to have been made by none other than the deceased himself. The paramount reason for attaching importance and credibility to such a statement is the presumption that a dying person seldom lies. For the recording of dying declaration no hard and fast rules are laid down, however , a glean through the provisions of the Police Rules, 1934 reveals that a procedure and brief guidelines are provided in chapter-25, Rule 21 which are being reproduced below for advantage sake:- "25.21. Dying declarations.-(1) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declaration made to a police officer should, under section 162, Code of Criminal Procedure, be signed by the person making it."
From above, it can be gathered that prefe rably such a statement is to be recorded either by a Magistrate or in the presence of a gazetted Police Officer and in the absence thereof in front of two or more unconcerned reliable witnesses. However , if neither of the above-mentioned persons is available, only then such a statement can be recorded in the presence of two or more police officers. The perusal of the record reveals that the Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the concerned hospital. Another aspect of the case is that the said statement (Exh.PT/1) of Mubashar Mehmood (deceased) was recorded at the Holy Family Hospital, Rawalpindi and the certificate regarding the ability of Mubashar Mehmood (then injured later deceased) was also issued by a Medical Officer posted at the Holy Family Hospital, Rawalpindi, however the said Medical Officer was not produced before the learned trial court to prove the said certificate (Exh.PT). The prosecution only got Dr. Taimoor Ahmed, Medical Officer (PW-3) examined, who stated that Mubashar Mehmood (then injured later deceased), was not in a position to make any statement. Dr. Taimoor Ahmed, Medical Of ficer (PW -3) during cross-examination stated as under:- "Muhammad Akram S.I. Police Station Neela moved an application for opinion of medical officer that whether the injured was capable to make any statement. The same was endorsed by me and I opined that the patient was not in condition to give or make any statement . The said application is Ex.PE which bears my signatures as Ex- PE/1."(emphasis supplied)
In absence of evidence that Mubashar Mehmood (then injured later deceased) was able to make the statement (Exh.PT/1) no reliance can be placed on the same. This Court has also noticed that Muhammad Akram, S.I. (PW-9) during cross-examination also admitted that the handwriting on the documents prepared on 16.04.2019 was different from the documents which were prepared on 19.04.2019 including the handwriting of the statement (Exh.PT/1) of Mubashar Mehmood (deceased). Moreover , Mubashar Mehmood, deceased remained alive and admitted to the hospital for a considerable time, however , his purported statement (Exh. PT/1) was not attested by any of ficial working at the hospital. Muhammad Akram, S.I. (PW -9) during cross-examination admitted as under:- "I did not mention the name of any doctor or member of any paramedical staff on the said dying declaration. I did not record statement of any paramedica l staff or any witness in presence of whom the dying declaration was recorded by me."
Additionally , as mentioned above, the deceased remained alive and under treatment for a considerable time, during which there was sufficient time for the investigating officer to record the dying declaration through a Magistrate which exercise was not done. Likewise, this Court has not been able to trace any explanation from the perusal of the record that as to why the statement of the deceased (Exh. PT/1) was not recorded in the presence of the doctor as it does not bear his signatures. It needs no mention that for a dying person, a doctor is like nothing less than an angel and the last ray of hope for him in his capacity as a saviour of his life. In this backdrop, a doctor can be the best person to endorse the dying declaration as it is expected from a dying person to tell the whole truth to the Doctor . In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan expressed in the case of Mst.
Zahida Bibi v . The State ( PLD 2006 Supreme Court 255 ) to the following ef fect:- "The rule of criminal administration of justice is that the dying declaration like an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie. This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts."
This aspect of the matter is like the final nail in the coffin of the prosecution so far as it covers the dying declaration.
These aspects of the prosecution evidence are sufficient on their own to reject the evidence with regard to the statement (Exh. PT/1) of Mubashar Mehmood (deceased). According to well-sett led principles laid down for the appraisal of dying declaration, such a statement is to be appraised like the testim ony of any other witness. The document (Exh. PT/1), the purported dying declaration of Mubashar Mehmood (deceased) is proved to be a fabricated and manufactured document and was rightly rejected by the learned trial court. .
19. It has been argued by the learned Deputy District Public Prosecutor as well as by 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 circum stances in which such unnatural death had occurred. According to the statements of Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) the incident of firing at the deceased happened at the house of Muhammad Hussain (since acquitted), the co-accused of the appellant, whereas Muhammad Akram, S.I. (PW-9), the Investigating Officer of the case, during cross-examination explained that the Bethak in which the alleged occurrence took place was the residential room of Adnan and his wife Imrana Bibi. The place of occurrence was a room which was inhabited by Imrana Bibi and was not a room under the use of the appellant. Furthermore, according to the scaled site plan of the place of occurrence (Exh. PA) and the rough site plan of the place of occurrence (Exh. PS) the place of occurrence was the house of Muhammad Hussain (since acquitted), the co-accused of the appellant, and the said Muhammad Hussain was acquitted by the learned trial court, which acquittal was not even challenged. Moreover , 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-witnes ses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a person had taken place in his house, therefore, it must be he and none else who would have committed that murder . The learned Deputy District Public Prosecutor submits that it was in the knowledge of the appellant how the deceased died so it was the appellant who was responsible, in absence of any explanation. The law on the burden of proof, as provided in Article 117 of the Qanun e-Shahadat, 1984, mandates the prosecution to prove, and that too, beyond any doubt, the guilt of the accused of the commission of the crime for which he is charged. The said provision provides: "117. Burden of proof:- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly , the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under: "122. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him."
It has to be kept in mind that Article 122 of the Qanun e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun - e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of "Rehmat alias Rahman alias Waryam alias Badshah v. The State" (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanun e- Shahadat, 1984, it held as under: "Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however , the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
The ratio decidendi of the above decision was further developed by in the case of "NASRULLAH alias NASRO Versus The ST ATE (2017 SCMR 724 ), wherein, it held as under: "It has been argued by the learned coun sel for the complainant that in the case s 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 circums tances 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 circumstance s of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder .
In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased."
In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun e-Shahadat, 1984 is certainly not intended to relieve it of that duty. On the contrary , it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.
If the article was to be interpreted otherwi se, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. The article 122 of the Qanun e-Shahadat, 1984 cannot be used to undermine the well- established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. Throughout the web of the Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the prisoner is the law and no attempt to whittle it down can be entertained. As discussed above, the witnesses namely Muhammad Qadeer (PW-5) and Muhammad Nazir (PW-6) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. The prosecution witnesses also admitted during cross-examination that the place of occurrence was a house wherein besides the appellant, one Imrana Bibi and the co-accused of the appellant Muhammad Hussain and Abdul Manan alias Imran ( both since acquitted) were also residing with their family . In a case of this nature, the appellan t could not have been convicted for the alleged murder merely because he happened to be one of the residents of the place of occurrence. An accused person cannot be convicted merely because he did not explain the circumstances in which the deceased had lost his life. The august Supreme Court of Pakistan has held in the case of "MUHAMMAD JAMSHAID and another vs. The State and others" ( 2016 SCMR 1019 ) as under: "only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the courts below to be nothing but speculative".
The august Supreme Court of Pakistan has held in the case of "Arshad Khan vs. The State" (2017 SCMR 564) as under: "It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524 ) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all."
The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628 ) as under: "It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death.
These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v.
The State (2005 SCMR 1524 ), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710 )."
The august Supreme Court of Pakistan has held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681 ) as under: "It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524 ) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however , been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecu tion stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement."
The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941) as under: "The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed."
20. The learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the complainant of the case have contended that the evidence of motive corroborated the ocular account. The motive of the occurrence as stated by the witnesses was an alleged quarrel which had taken place a few days prior to the occurrence between the deceased and the appellant on account of dogs . Muhammad Qadeer (PW-5) admitted during cross-examination that he had not witnessed the episode of the quarrel between the deceased and the appellant. Muhammad Qadeer (PW -5) during cross-examination stated as under:- "I was not present when the motive occurrence i.e quarrel over a dog took place interse my brother Mubashir Mehmood and accused Hasnat. A friend of mine had told me about the motive occurrence."
During the course of investigation Muham mad Qadeer (PW-5) even did not name his friend who had allegedly told him about the quarrel between the deceased and the appellant. Even before the learned trial court Muhammad Qadeer (PW-5) failed to name the said friend who was the bearer of the said knowledge regarding the motive of the occurrence and his failure to do so has convinced this Court that no such quarrel had taken place. Nazar Hayat, S.I. (PW-8), the Investigating Officer of the case, also admitted that the complainant did not produce before him any witness in support of the motive of the occurrence. The prosecution did not produce any evidence, oral or documentary , so as to establish any reason existed with the appellant to murder the deceased. No independent witness was produced by the prosecution to prove the motive as alleged. This Court has thus reached a conclusion that the prosecution remained unable to establish any motive of the occurrence. The learned trial court rightly disbelieved the evidence of the prosecution with regard to the motive. The prosecution witnesses failed to provide evidence enabling this Court 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. It is trite that 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."
Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular acco unt is found to be unreliable then the evidence of motive and recovery have no value and lost their significance.
21. The learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the complainant have also relied upon the recovery of the pistol (P-6) made from the appellant. With regard to the recovery of the pistol (P-6) from the appellant namely Hasnat Ahmad son of Muhammad Hussain, it is observed that the said recovery has no evidentiary value in the eyes of law as the same was made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The said recovery of the pistol (P-6) from the appellant namely Hasnat Ahmad son of Muhammad Hussain cannot be used as incriminating evidence against the appellant, being evidence, which was attained through illegal means and hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the pistol (P-6) from the appellant namely Hasnat Ahmad son of Muhammad Hussain, to witness the same. 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 assoc iate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
With regard to the report of Punjab Forensic Science Agency , Lahore (Exh. PW) which states that the crime empties sent for analysis were fired in the pistol (P-6) recovered from the possession of the appellant namely Hasnat Ahmad son of Muhammad Hussa in, this Court has noted that according to the statement of Mohsin Raza 105/HC (PW-2) on 16.04.2019 Muhammad Akram, S.I. (PW-9) handed over to a sealed parcel said to contain an empty which on 23.04.2019 he handed the said parcel to Muhammad Akram, S.I. (PW-9) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Mohsin Raza 105/HC (PW-2),in his examination-in -chief, stated as under:- "On he same day, Muhammad Akram, S.I. Handed over to me two sealed parcels, said to contain one empty of pistol and one sealed parcel said to contain blood stained cotton." (emphasis supplied)
Contrary to the statement of Mohsin Raza 105/HC (PW-2) that he had received a parcel containing one empty , four empties were received at the Punjab Forensic Science Agency , Lahore. Mohsin Raza 105/HC (PW-2) was not declared hostile by the prosecution and in presence of his unchallenged testimony , it can be safely determined that the prosecution failed to prove the number of empties which were actually collected from the place of occurrence.
In this manner , the safe custody of the empties which were found to have been fired in the pistol (P-6) was not proved. In this scenario possibility of fabrication on part of the Investigating Officer in order to obtain a favourable report of the Punjab Forensic Science Agency , Lahore cannot be ruled out. Therefore, the recovery of the pistol (P- 6) from the appellant does not further the case of the prosecution in any manner . In view of the above-mentioned facts, the alleged recovery of the pistol (P-6) is not proved and the same cannot be used as a circumstance against the appellant.
22. Considering all the above circumst ances, this Court entertains serious doubt in its mind regarding the involvement of the appellant namely Hasnat Ahmad son of Muhammad Hussain, in the present case. It is settled principle of law that for giving 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 Zaman v . The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Muhammad Akram Vs. the State" ( 2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
23. For what has been discussed above, the Criminal Appeal No. 215 of 2020, lodged by Hasnat Ahmad son of Muhammad Hussain (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 24.02.2020 are hereby set-aside . The appellant namely Hasnat Ahmad son of Muhammad Hussa in is ordered to be acquitted by extending him the benefit of the doubt.
Hasnat Ahmad son of Muhammad Huss ain (appellant) is directed to be released forthwith if not required in any other case.
24. Pursuant to the discussion made and conclusions arrived at above, the Criminal Revision No. 61 of 2020, seeking the enhancement of the sentence of the accused namely Hasnat Ahmad son of Muhammad Hussain, is hereby dismissed .