MUHAMMAD HASHIM KHAN KAKAR, J.---Mst. Bibi Gul Dasta met homicidal death in her home, situated at Mazai Adda, District Killa Abdullah: Wazir Muhammad son of Abdul Wajid, appellant herein, was blamed for the said crime by one Saifullah (PW-1), no other than his brother-in-law; domestic differences were cited as motive for the crime. The learned Sessions Judge, Killa Abdullah at Chaman, returned guilty verdict to the appellant and he was convicted under clause (b) of section 302 Pakistan Penal Code, 1898 (P.P.C) and sentenced to imprisonment for life as Tazir and fine Rs. 300,000/- under section 544-A, Code of Criminal Procedure (Cr.P.C.) payable to the legal heirs of deceased Gul Dasta with benefit of section 382-B, Cr .P.C. vide judgment dated 10.08.2019.
2. Prosecution in support of the charges against the appellant got examined PW-1 Saifullah (complainant), PW-2 Kamal-ud-Din, PW-3 Zia-ud-Din (sons of the appellant), who furnished ocular account regarding the crime in question while PW-4 Attaullah is the marginal witness of the recovery memo Ex.P/4-A vide which a short gun was recovered from the house of appellant PW-5 Khadim Hussain is the First Investigating Officer of the case, who took into possession the bloodstained clay and bloodstained Chadar of deceased Gul Dasta through recovery memos and produced the same as Exs.P/5-B, C and D. PW-6 Dr. Ayesha Faiz, is the Doctor , who got exhibited the Medico Legal Certificate Ex.P/6-A; whereas, PW-7 Qazi Pervaiz, Naib Tehsildar , is the Investigating Officer of the case, who produced Challan Ex.P/7-A.
3. Barrister Zahoor Hussain, learned counsel for the pauper appellant, contended that the impugned judgment is erroneously premised on misconception of law inasmuch as in the absence of positive proof, the appellant could not have been convicted on the basis of presumption or failure of appellant to satisfactorily explained circumstances leading towards his wife's death and likewise absence from law cannot be equated with his guilt.
4. On the contrary , learned Additional Prosecutor General while refuting the contentions raised on behalf of learned counsel for the appellant contended that it is a case of promptly lodged FIR, wherei n the appellant has been figured out as a sole perpetrator that too by his brother in law , as such, the appeal deserves to be dismissed.
5. The occurrence in this case had taken place in broad daylight at 5:00 p.m. inside the house of appellant situated at Mazai Adda, Killa Abdullah. An FIR in respect of the incident in question had been lodged after six hours and, thus, possibility regarding deliberations before lodging of the FIR could not safely be ruled out of consideration.
Admittedly the complainant is not eye-wit ness of the occurrence and he had lodged the FIR against the appellant without disclosing the source of knowledg e merely upon his strong belief that no one else other than the appellant could be the possible murderer . The whole case of the prosecution had been structured upon the information conveyed to Kamaluddin (P.W-2) and Zaiuddin (P.W-3), who happened to be the sons of appellant, by their uncle namely Jalaluddin, who has neither been examined before the Court nor cited as witness in the calendar of witnesses in the challan. Both the witnesses, as stated above, had not seen the occurrence themselves and raised their fingers towards appellant on the basis of A information, conveyed to them' by their uncle Jalaluddin. They have merely deposed about the crime without reference to the real culprit.
6. Reverting to the contention of learned Additional Prosecutor General that in this case deceased was a vulnerable department of the appellant and thus, some part of the onus had shifte d to the appellant to explain the circumstances in which his wife had died an unnatural death in his house. Undoubtedly , the unnatural death of deceased inside the house of appellant and his failure to discharge the said onus, is intriguing, however , it cannot be equated to qualify as evidentiary certainty , essentially required in order to saddle him with B formidable corporal consequences after discarding the remaining pieces of evidence, relied upon by the prosecution. The appellant could not be convicted for the alleged murder simply on the basis of supposition. While holding this view, we are fortified from the dictum laid down in the cases of "Nasrullah alias ,Nasro v State" (2017 SCMR 724) and "Asad Khan v. State" (PLD 2017 SC 681), wherein it has been held 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 prosecution itself is not reliable and where the prosecution fails to produce any reliable evidence to establish the complicity of alleged accused with crime in question. Similarly , mere absconsion of the appellant is also not sufficient to sustain conviction because people avoid facing C the process of law or their adversaries for a variety of reasons, not necessarily inclusive of their guilt.
7. For what has been discussed above, a conclusion is irresistible and to prove its case against the appellant inescapable that the prosecution had failed beyond reasonable doubt. This appeal is, therefore, allowed; the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
Above are the reasons of our short order dated 12th March, 2020.