SADIQ MAHMUD KHURRAM, J.---Zafran Mehmood son of Muhammad Mehboob (convict) was tried by the learned Additional Sessions Judge, Rawalpindi in the case FIR No. 298 of 2017 dated 24.09.2017 registered at Police Station Kallar Syedan, District Rawalpindi in respect of offences under section 302, P.P.C. for committing the Qatl-i-amd of Kamran Mehmood son of Muhammad Mehboob (deceased). The learned trial court vide judgment dated 13.01.2018, convicted Zafran Mehmood son of Muhammad Mehboob (convict) and sentenced him as infra: Zafran Mehmood son of Muhammad Mehboob: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-amd of Kamran Mehmood son of Muhammad Mehboob (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Kamran Mehmood son of Muha mmad Mehboob (deceased) in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Zafran Mehmood son of Muhammad Mehboob (convict) lodged Criminal Appeal No.3824 of 2018 against his conviction and sentence through jail. 'The learned trial court submitted Murder Reference No.08 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Zafran Mehmood son of Muhammad Mehboob. We intend to dispose of the Criminal Appeal No. 382J of 2018 and Murder Reference No.08 of 2018 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by the witness namely Sajida Shaheen (PW- 6) in her statement before the learned trial court are as under:- "Stated that my marriage was solemnized with Kamran Mehmood (deceased) about 14/15 years ago at Dhoke Sangral, Dakhli Dodheli Tehsil Kallar Syed an. Out of this wedlock no issue was born. My parents have already died and my husband (deceased) was working as Labourer , I along with my deceased husband were living at my parents house at Nara and oftenly we come and reside at the house of my father in law. My deceased husband's younger brother Zafran Mehmood intended to occupy his house. On 23.9.2017, at evening time we received information that my deceased husband's brother (accused) occupied at our house after breaking locks. After receiving the said information 1 along with husband Kamran Mehmood (decea sed), Aqib Hussain son of Lal Hussain and Adil Hussain son of Ahmed Hussain arrived at the disputed house at evening time and on the same night at about 11:30 p.m. we were sitting on the cots and were talking each other , meanwhile, accused Zafran Mehmood became angry and abused us and brought .12 bore rifle from his residential room and said that today I will teach the lesson to Kamran Hussain for claiming the share of the house. Zafran Mehmood accused (present in the Court) made straight fire with his .12 bore rifle which hit him on front right side of his chest and my husband (deceased) fell down and succumbed to the injuries. The occurrence was seen by me, Aqib Hussain and Adil Hussain PWs. The motive behind the occurrence is a dispute on property (house). I along with other respectable of the locality brought the dead-body of my deceased husband to THO Hospital Kallar Syedan and I.O. recorded my oral statement and I.O. read it upon Exh.PD which was signed by me with thumb impression Exh. PD/1. The postmortem was conducted by that doctor at THO Hospital, Kallar Syedan."
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 Zafran Mehmood son of Muhammad Mehboob was sent to face trial. The learned trial court framed the charge against the accused on 01.11.2017, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as ten witnesses recorded. The ocular account of the case was furnished by Sajida Shaheen (PW-6) and Adil Hussain (PW-7).. Asad Mehmood 1740/C (PW-2) stated that on 24.09.2017 he has escorted the dead body of the deceased for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Karamat Ali S.I. (PW-3) recorded the formal FIR (Exh. PE) on 24.09.2017. Jamil Hussain Shah 4321/C (PW-4) stated that on 24.09.2017 Anwar Javed S.I. (PW-10) handed over to him two sealed parcels and one sealed Jar and on 06.10.2017 Anwar Javed, S.I. (PW-10) handed over to him a sealed parcel said to contain gun .12-bore which on 09.10.2017 he handed over all the parcels said to contain empty , blood stained cotton and the gun .12-bore to Anwar Javed, S.I. (PW-10) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Mehmood Ahmad Shahzad draftsman (PW-5) prepared the scaled site plan of the place of occurrence (Exh. PF). Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) identified the dead body of the deceased. Anwar Javed S.I. (PW-10) investigated the case from 24.09.2017 till 11.10.2017, arrested the appellant on 03.10.2017, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution got Dr. Muhammad Anwar (PW-1) examined who, on 24.09.20 17, was posted as CMO at THQ Hospital, Kallar Kahar and on the same day conducted the postmortem examinat ion of the dead body of Kamran Mehmood son of Muhammad Mehboob (deceased). Dr. Muhammad Anwar (PW-1), on examining the dead body of Kamran Mehmood son of Muhammad Mehboob (deceased) observed as under: "DESCRIPTION OF INJURIES (Including findings on dissection
1. Multiple wound complex of firearm injury , 12 x 8 cm over right side of chest just above the nipple (Right) and 08 cm below the clavicle (Right) having 06 small perforation/laceration average size 1 x 1 cm and one perforation/laceration of 3 x 3 cm size. Margin inverted. No burning/blackening noted.
2. Lacerated wound 1 x 1 cm back of lumber regim (sic) 06 cm from vertebral column and about 10 cm above the iliac-crest. Upon dissection 09 metallic pallets recovered from the area of 10 x 08 cm located superficially in skin adjoined the wound. ....................................................................................................
OPINION: In my opinion death occurred due to cardio pulmonary arrest caused by hypovalumic (sic) shock (Excessive hemorrhage both internal and external caused by FAI (firearm injury) in chest. That injuries are antemartum (sic) in nature and sufficient to cause death in ordinary course of nature.
Probable time that elapsed: Time between injury and death: W ithin minutes. T ime between death and postmortem: 08-10 hours."
7. On 13.01.2018, the learned ADPP gave up PW Aqib Hussain as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the analysis of the gun with the empty (Exh.PP) and the report of Punjab Forensic Science Agency , Lahore regarding the examination of the pieces of blood-stained cotton (Exh.PQ).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Zafran Mehmood son of Muhammad Mehboob under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have depo sed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Zafran Mehmood son of Muhammad Mehboob opted not to get himself examined under section 340(2), Cr .P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also 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 Prosecutor General contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corro borated the statements of Sajida Shaheen (PW-6) and Adil Hussain (PW-7).The learned Deputy Prosecutor General further argued that the recovery from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General 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 , he prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, awl with their able assistance perused the record and evidence recorded during the trial.
13. The most vital point in the case attracting our attention is the fact that the oral statement (Exh. PD) of Sajida Shaheen (PW-6) was recorded by Anwar Javed S.I. (PW-10), the Investigating Officer of the case, at the hospital at 5.30 a.m. on 24.09.2017 whereas the occurrence had taken place on 23.09.2017 at 11.30 p.m. The oral statement (Exh. PD) was hence recorded after six hours of the occurrence and that too at the hospital and not at the police station. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one because according to the prosecution case as a result of firing made at the place of occurrence Kamran Mehmood son of Muhammad Mehboob (deceased) died at the place of occurrence and the same fact was also confirmed by the witnesses, however the witnesses never reported the matter to the police for as many as six hours. Moreover , none of the prosecution witnesses including Sajida Shaheen (PW-6) Adil Hussain (PW-7), Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) ever proceeded to the police station to report the matter and it was Anwar Javed S.I. (PW-10), the Investigating Officer of the case, who on his own reached the hospital and there recorded the oral statement (Exh. PD) of Sajida Shaheen (PW-6). Had Anwar Javed S.I. (PW-10), the Investigating Officer of the case, not proeeded to the hospital, the matter would have remained unreported as none of the prosecution witnesses namely Sajida Shaheen (PW-6), Adil Hussain (PW-7), Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) admittedly made any endeavor in this regard. The police station was at a distance of only 6.5 miles still no effort was made to report the matter to the police. Anwar Javed S.I. (PW-10), the Investigating Officer of the case, stated during cross- examination that it took only 15/20 minutes to reach at the police station from the place of occurrence. Adil Hussain (PW-7) during cross-examination stated that they had reached the hospital at 2.00 a.m., whereas the police arrived at the hospital at 6.00 a.m., however still the witnesses did not report the matter to the police. Anwar Javed S.I.
(PW-10), the Investigating Officer of the case, stated that he reached the hospital at 4.10 a.m. and then recorded the oral statement (Exh. PD) of Sajida Shaheen (PW-6). The oral statement (Exh. PD) of Sajida Shaheen (PW-6) was recorded at 5.30 a.m. on 24.09.2017 meaning thereby that even after the arrival of Anwar Javed S.I. (PW-10), the Investigating Officer of the case at the hospital, it took another hour and twenty minutes to record the oral statement (Exh. PD). This aspect of the prosecution case has left no doubt in our minds that Sajida Shaheen (PW- 6) and Adil Hussain (PW-7) had not witnessed the occurrence and Sajida Shaheen (PW-6) and Adil Hussain (PW- 7) were called from their homes to become witnesses. It is the prosecution case itself that the complainant waited for the arrival of the police at the hospital, not taking a single step to report the matter herself. There must be some plausible reason for this failure of the witnesses namely Sajida Shaheen (PW-6), Adil Hussain (PW-7), Shaban Mehmood (PW-8) and Amjad Hussain (PW-9) not to report the natter to the police promptly , however none is available and hence, doubts have arisen regarding the very presence of the witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) at the place of occurrence, at the time of occurrence. An inference against the prosecution witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) has to be drawn in this regard.
Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "G.M.NIAZ v . The State " (2018 SCMR 506 ) the august Supreme Court of Pakistan was pleased to hold as under: "An FIR in respect of the alleged occurrence had been lodged after about seven hours and forty minutes which by itself was a circumstance doubting the claimed availability of the above mentioned eye-witnesses with the deceased at the time of occurrence."
Reliance is also placed on the case of Muhammad Ashraf Javeed and another v. Muhammad Umar and others (2017 SCMR 199 ) wherein the august Supreme Court of Pakistan was pleased to hold as under: "The hospital is closely situated to the Police Station but neither the complainant nor PWs took a little pain to report the matter , nor the staff of the hospital including the treating doctor took initiative."
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Zafar v.The State and others (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:- "It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay ill lodging the FIR or for that matter the belated postmortem of the deceased."
Furthermore, it can be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the oral statement (Exh. PD) of the complainant, namely Sajida Shaheen (PW-6) was prepared and the same was neither prompt nor spontaneous, hence worthy of the no reliance.
14. The whole prosecution case orbits around the statements of Sajida Shaheen (PW-6) and Adil Hussain (PW-7).
The relationship of the said witnesses with the deceased is on record. Kamran Mehmood, deceased, was the husband of Sajida Shaheen (PW-6). Adil Hussain (PW-7) was related to Sajida Shaheen (PW-6) and was admitted to be her maternal nephew . The other witness namely Aqib Hussain (given up witness) was also admitted to be related to Sajida Shaheen (PW-6) being her paternal cousin. Sajida Shaheen (PW-6), Adil Hussain (PW-7) and Aqib Hussain (given up witness) were admittedly not the residents of the place of occurrence. Sajida Shaheen (PW-6) stated that she and her husband were residing at the house of her parents situated at village Nara, Tehsil Kahuta whereas the occurrence took place in the ancestral house of the deceased situated at Dhoke Sangral, Tehsil Kallar Syedan. According to Sajida Shaheen (PW-6) she and her husband proceeded to village Nara Tehsil Kallar Syedan after they had received a phone call that the appellant had occupied their house after breaking the locks. During cross-examination Sajida Shaheen (PW -6) stated as under:- "The telephonic call was made on cell No of my deceased husband by his sister and brother in-law . 1 do not know whether sister and brother in-law of deceased appeared before the I.O.
The failure of the prosecution to name and produce the sister and the brother in-law of the deceased who had allegedly called and informed the deceas ed regarding the taking over of his property by the appellant has resulted in failure of the prosecution witnesses to prove the reason for their presence at the place of occurrence, at the time of occurrence. The above noted portion of cross-examination clearly establishes that both the witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) miserably failed to provide any reason for their presence at the place of occurrence, at the time of occurrence . It is an admitted fact that none of the prosecution witnesses namely Sajida Shaheen (PW-6), Adil Hussain (PW-7) and Aqib Hussain (given up witness) had their residences or their houses at the place of occurrence. They were all "chance witnesses". We have also perused the scaled site plan of the place of occurrence (Exh.PF) as prepared by Muhammad Ahmad Shahzad, draftsman (PW-5) and the rough site plan (Exh.PG) as prepared by Anwar Javed S.I. (PW-10), the Investigating Officer of the case, and find that no house nor any temporary place of residence belonging to Sajida Shaheen (PW-6), Adil Hussain (PW-7) and Aqib Hussain (given up witness) is marked in the same. We have also noted that the alleged eye-witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) were not mentioned in column No.4 or page 4 of the inquest report (Exh. PC) as being the ones who were present at the time of preparation of the said inquest report (Exh. PC) by the investigating officer. These witne sses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. We have also noted that Sajida Shaheen (PW-6) and Adil Hussain (PW-7) claimed that after the occurrence they brought the dead body of the deceased to the hospital. In such a scenario the clothes of both Sajida Shaheen (PW-6) and Adil Hussain (PW-7) should have been smeared with blood however Anwar Javed S.I. (PW-10), the Investigating Officer of the case, did not take any such blood stained clothes of the witnesses in possession. Anwar Javed, SI (PW-10), 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 Sajida Shaheen (PW-6) and Adil Hussain (PW-7). 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 occurrenc e at the time of occurrence. 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 kilometer away from the place of 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 (PW3), Ghulam Farid (PW-6) and Manzoor Ahmed (PW-7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and he said eyewitnesses were, thus, chance witnesses and not worthy of reliance. Relianc e 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."
15. We have 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 Anwar Javed S.I. (PW-10), despite the fact that as per prosecution's own claim the occurrence had taken place at about 11.30 p.m. on 23.09. 2017. Even according to the oral statement (Exh.PD) no light source was mentioned in which both the eye-witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) had witnessed the occurrence and identified the accused. Furthermore, Anwar Javed S.I. (PW-10), the Investigating Officer of the case, during his investigation, did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make 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 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, Anwar Javed, S.I. (PW-l0), the Investigating Officer of the case, visited the place of occurrence after the occurrence at about 6.30 a.m. on 24.09.2017 but the electric light bulb, which was allegedly available and lighted at the place of occurrence, at the time of occurrence, was not taken into possession at the spot by the Investigating Officer along with other recoveries though there was no occasion for the said electric bulb to have not been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer during the investigation of the case. The failure of Anwar Javed, S.I. (PW-10), the Investigating Officer to take into possession the electric light bulb 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 and electric light bulb being available was made by the said witnesses. The prosecution failed to establish the fact of such availabili ty of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in dark. Reliance is placed on the case of "Hameed Gul v. Tahir and 2 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 v. Zulfiqar Ali and others " (2010 SCMR 1972 ) wherein the august Supreme Court of Pakistan observed as under:- "7. It is also alleged by the prosecution 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 ."
16. We have also noted that according to both the witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) the place of occurrence was the house which was inhabited by the sisters and the other brothers of Kamran Mehmood (deceased). Sajida Shaheen (PW-6) during cross-examination stated that her husband has three other brothers and they were residing in the said house which was owned by her father in-law . Adil Hussain (PW-7) stated during cross-examination that the two sisters of the deceased were also residing at the place of occurrence.
Anwar Javed S.I. (PW -10), the Investigating Of ficer of the case, during cross-examination stated as under:- "I observed that all the brothers of the deceased are living in the one house where the occurrence had taken place.
The sisters and brother in-law of deceased and accused are also living in the same house where the occurrence took place."
One of the brothers of the deceased namely Shaban Mehmood (PW-8) did appear as a prosecution witness before the learned trial court, however did not make any statement with regard to the ocular account. Shaban Mehmood (PW-8) only made a statement that he identified the dead body of the deceased at the time of post mortem examination. Anwar Javed S.I. (PW-10) the Investigating Officer of the case, stated that he met Shaban Mehmood (PW-8) at the hospital at the time of his first arrival there and also met the mother of the deceased at the hospital.
None of the said three brothers, two sisters and mother of the deceased appeared' before the Investigating Officer of the case to depose regarding the occurrence which had taken place in the house inhabited by them. They were the most natural witnesses of the occurrence as their presence at the place of occurrence, being inhabitants of the said house, could not be disputed. The failure of the prosecution to produce the said inmates of the place of occurrence has forced us to reject the prosecution evidence. 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 pasty 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 inhabitants of the place of occurrence has convinced us that had they been produced before the learned trial court they would not have supported the prosecution case. Reliance in this matter is placed on the case of Shamshad v. The State (1998 SCMR 854) 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 daugh ters and the son of the appellant were less than 7 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 clue 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 Muhammad Irshad v. Allah Ditta and others (2017 SCMR 142), Usman alias Kalu v . The State (2017 SCMR 622 ) and G. M. N1AZ v . The State " (2018 SCMR 506 ).
17. We have also noted with disquiet that despite the fact that the occurrence took place at 11.30 p.m. on 23.09.2017, the postmortem examination on the person of the deceased was conducted after a delay . The post mortem examination of the dead body of the deceased namely Kamran Mehmood was conducted at 8.10 a.m on 24.09.2017. Dr. Muhammad Anwar (PW-1) gave the time between death and post mortem examination as being 8 to 10 hours. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and 2 others v.
The State" (2012 SCMR 327 ) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m., Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m. i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time"
The august Supreme Court of Pakistan in the case of "Mian Sohail Ahmed and others v. The State and others"
(2019 SCMR 956 ) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the postmortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution."
The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeqa v. The State " (2019 SCMR 1068 ) has held as under: "More importantly , the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer , and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer , all reports prepared by the investigating office r are also to be handed over in order to assist in the examination of the dead body .
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly , there is a complete, chain of police custody of the dead body , right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly , post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly , post mortem of a deceased person can only be carried out by a notified governme nt Medical Officer; and finally , at the time of handing over the dead body by the police to the Medical Officer , all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body .
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body , that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay , the prosecution has to provide justifiable reasons therefor , which in the present case is strikingly wanting."
18. We have also noted with grave concern that the ocular account of the occurrence as furnished by Sajida Shaheen (PW-6) and Adil Hussain (PW-7) is flawed as it is contrary to the medical evidence available on record.
Both the witnesses namely by Sajida Shaheen (PW-6) and Adil Hussain (PW-7) stated that the deceased received only one firearm injury on his person which landed on the right side of his chest. A perusal of the postmortem examination as conducted by Dr. Muhammad Anwar (PW-1) reveals that he observed two injuries on the person of the deceased. Dr . Muhammad Anwar (PW -1) observed the following two injuries.
1. Multiple wound complex of firearm injury , 12 x 8 cm over right side of chest just above the nipple (Right) and 08 cm below the clavicle (Right) having 06 small perforation/laceration average size l x 1 cm and one perforation/laceration of 3 x 3 cm size. Margin inverted. No burning/blackening noted.
2. Lacerated wound 1 x 1 cm back of lumber regim (sic) 06 cm from vertebral column and about 10 cm above the iliac-crest. Upon dissection 09 metallic pellets recovered from the area of 10 x 08 cm located superficially in skin adjoined the wound.
As observed and described by Dr. Muhammad Anwar (PW-1), injury No.2 was an independent entry wound and was not related with injury No.1. The said injury No.2 has not been explained by both the witnesses in their statements. Furthermore, Dr. Muhammad Anwar (PW-1) stated during cross-examination that the distance from which the injuries had been received could be 25 to 30 feet whereas according to the witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) the occurrence took place when they were sitting along with the deceased in the courtyard and the appellant had allegedly brought the gun from his room and fired from the same.
The distance between the deceased and the appellant, as mentioned by the eye-witnesses, was minimal and not 25 to 30 feet in any case. The contradictions in the ocular account of the occurrence, as narrated by Sajida Shaheen (PW-6) and Adil Hussain (PW-7) and the medical evidence, clearly establishes that the prosecution has miserably failed to prove the charge against the appellant.
19. It has been argued by the learned Deputy Prosecutor General that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prose cution asserts the presence of some eye-witnesses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a perso n had taken place in his house, therefore, it must be he and none else who would have committed that murder . The learned Deputy Prosecutor General submits that it was in the knowledge of the appellant how the decease d died so it was him 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 for the commission of the crime for which he is charged. The said provision provides: "117. Burden of proof ---(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is,bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly , the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 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 Walyam 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 Qaxtun-e-Shahadat, 1984, it held as under: "Needless to emphasis that inspite 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 v. The State " (2017 SCMR 724 ), wherein, it held as under: "It has been argued by the learned counsel for the complainant that in the cases of Arshad Mehmood v. The State (2005 SCMR 1524 ) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the 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 eyewitnesses 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 degigned 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 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, both the witnesses namely Sajida Shaheen (PW-6) and Adil Hussain (PW-7) failed miserably to prove their presence at the place of occurrence at the time of occu rrence. The prosecution also failed to establish that the appellant was present inside his house when the occurrence took place. The prosecution witnesses also admitted during cross- examination that the place of occurrence was a house wherein besides the appellant his mother , brothers, sisters and husbands of the sisters were also residing. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be the 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 v . 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 v. 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 v. 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 Screed Ahmed v . The State (2015 SCMR 710 ).
The august Supreme Court of Pakistan has held in the cage of Asad Khan v. 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 7101 the said legal position had been elaborated and it had been held that an accu sed person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however , been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and0, 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 Weed v. 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. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Sajida Shaheen (PW-6) and Adil Hussain (PW-7) was that the appellant had taken over the possession of the house of the deceased. Sajida Shaheen (PW -6) during cross-examination admitted as under:- "We did not report to the local police for breaking lock of the disputed house and subsequently taking its possession by the accused nor we disclosed this fact to any elder of our family ."
Mehmood Ahmad Shahzad draftsman (PW -5) admitted during cross-examination as under:- "No proof regarding ownership of deceased Kamran Mehmood was produced before me."
Anwar Javed S.I. (PW -10) the Investigating Of ficer of the case during cross-examination admitted as under:- "I myself did not get verified the ownership of house of accused. No witness appeared before me to verify the fact that there was a dispute over house in between accused and deceased."
One of the brothers of the deceased namely Shahan Mehmood (PW-8) did appear as a prosecution witness before the learned trial court, however did not make any statement with regard to the motive of the occurrence though he was resident Of the house with regard to which the dispute had arisen. The prosec ution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. 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."
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
21. Learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the gun .12-bore (P-3) made from the appellant. With respect to recovery of weapon from the appellant it has been observed that the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said the gun .12-bore (P-3) from the appellant which was in clear violation of section 103, Cr.P.C. and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence, The august Supreme Court of Pakistan in the case of " Muhammad Ismail and others v . The State " (2017 SCMR 898 ) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
Furthermore, we have also perused the report of Punjab Forensic Science Agency , Lahore (Exh.PP) regarding the analysis of the gun .12-bore (P-3) recovered from the appellant and the empty collected from the place of occurrence. According to the said repor t both the empty and the gun .12-bore (P-3) were received by Punjab Forensic Science Agency , Lahore on the same day Jamil Hussain Shah 4321/C (PW-4) stated that on 24.09.2017 Anwar Javed S.I. (PW-10) handed over to him a sealed parcel said to contain the empty taken from the place of occurrence and on 06A0.2017 Anwar Javed S.I. (PW-10) handed over to him a sealed parcel said to contain the gun .12-bore (P-3) which on 09.10.2017 he handed over both the parcels said to contain the empty and the gun .12-bore to Anwar Javed S.I. (PW-10) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Anwar Javed S.1. (PW-10) also stated that he took both the sealed parcels containing the empty and the gun 12-bore (P-3) to the Punjab Forensic Science Agency , Lahore on the same day, hence possibility of manipulation cannot be ruled out. In this manner the said report of Punjab Forensic Science Agency , Lahore. (Exh.
PP) has no evidentiary value. The august Supreme Court of Pakistan has held in the case of Nasrullah alias Nasro v . The State (2017 SCMR 724 ) as under:- "The alleged recovery of a pistol from the appellant's possession during. the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-em pties had been received by the Forensic Science Laboratory together on one and the same day ."
The august Supreme Court of Pakistan has held in the case of Nasrullah alias Ali Sher v. The State (2008 SCMR 707 ) as under:- "The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony ."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Zafran Mehmood son of Muhammad Mehboob, the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha v . 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 v. 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 Criminal Appeal No.382-J of 2018 lodged by Zafran Mehmood son of Muhammad Mehboob (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 13.01.2018 are hereby set-aside. Zafran Mehmood son of Muhammad Mehboob (appellant) is ordered to be acquitted. Zafran Mehmood son of Muhammad Mehboob (appellant) is directed to be released forthwith if not required in any other case.
24. Murder Reference is answered in Negative and the death sentence of Zafran Mehmood son of Muhammad Mehboob is Not Confirmed .