MUHAMMAD TARIQ NADEEM, J. Through this single judgment, we intend to dispose of Criminal Appeal No.105580 of 2017, filed by Muhammad Sarwar, appellant against his conviction and sentence along with Murder Reference No.599 of 2017, transmitted by learned trial court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 31-10-2017 passed by learned Additional Sessions Judge, Chunian in case FIR No.347 dated 24.11.2015, under section 302, P.P.C. registered at Police Station Kanganpur, District Kasur, whereby the appellant was convicted under section 302(b), P.P.C. and was sentence to death with the direction to pay a sum of Rs.5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased, in default thereof to further undergo six months S.I.
2. The brief facts as narrated in FIR (Ex.PH) lodged by Muhammad Jabir, complainant (PW.3) is that he was resident of New Kahna, Lahore. The marriage of his sister Mst. Salma Bibi (deceased) was solemnized with the accused Muhammad Sarwar about 20-22. years back and from the wedlock three sons and two daughters were born. They had developed dispute due to non-payment of maintenance allowance and Muhammad Sarwar, appellant used to beat Salma Bibi (deceased).
On 23-11-2015, Muhammad Sarwar, accused gave beatings to his sister. She made a phone call from someone phone to the complainant and asked him to take her back due to fear of life, upon which he (PW.3) made call to Ghulam Nabi and Muhammad Arif, PWs, to come at the house of Salma Bibi, next morning. On 24-11-2015 at 09:30 a.m., complainant reached at the house of his sister where Ghulam Nabi and Arif, PWs were already present. They reprimanded the accused but of no avail. The complainant and the PWs were taking back Salma Bibi (deceased) and started leaving the house upon which Muhammad Sarwar, accused brought out gun 12 bore double barrel and made a fire shot on Salma Bibi targeting her back, who succumbed to the injuries at the spot.
The occurrence was witnessed by complainant and PWs. Hence, the FIR.
3. After completion of investigation, the report under section 173., Cr.P.C. was prepared and submitted before the learned trial court. The learned trial court after observing codal formalities, as provided under the Code of Criminal Procedure. 1898 framed charge under section 302, P.P.C. against the appellant on 11.02.2016 to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 09 witnesses during the trial: Muhammad Jabir, complainant (PW.3) and Ghulam Nabi (PW.4), have furnished the ocular account Master Sadiq, draftsman appeared as (PW.1), who prepared scaled site plan of the place of occurrence as (Ex.PA). Sabir Hussain (PW.6) was the witness of recovery of gun 12 bore (P.5) got recovered by the police on the disclosure of the appellant from his residential house, vide recovery memo (Ex.PG).
Shahad Investigating Officer (PW.9), stated about the various steps taken by him during investigation of the case.
The medical evidence was furnished by Doctor Sadia Ashraf, WMO (PW.8), who appeared as secondary witness on behalf of Doctor Saba Qayyum and testified the autopsy report (Ex.P1), according to which on 24-11-2015 Doctor Saba Qayyum conducted autopsy on the body of deceased Salma Bibi and noted following injuries on her body:-- INJURIES
1. Lacerated circular wound size 2.5 cm x 2.5 cm with inverted margin burnt margin is present on superomedial aspect of aerola (breast) 12 cm below the clavicle and 4 cm lateral to mid line corresponding hole is present on clothes.
2. 5 exit wounds measuring 0.2 x 0.2 cm each with everted margin present on left side of back. 5 CM away from mid line and 14 CM below left shoulder. Corresponding hole present on clothes (shirt back).
She opined that the deceased had died due to hemorrhage and shock which caused by firearm, which is due to injuries Nos.1 and 2. Both injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. Direction of firearm was from backward to forward straight. Probable time between injury and death was within few minutes and probable time between death and postmortem was nine hours.
4. Rest of the prosecution witnesses are almost formal in nature. The prosecution gave up Muhammad Arif and Talib Hussain, PWs being unnecessary and after tendering reports of Punjab Forensic Science Agency, Lahore (Ex.PO and Ex.PP), closed its evidence.
5. Thereafter, the statement under section 342, Cr.P.C. of the appellant was recorded wherein he denied the allegations levelled against him and claimed his innocence. While answering to a question, "why this case registered against you and why the PWs deposed against you the appellant Muhammad Sarwar replied as under:-- "I have been falsely involved in this case. Jabir (PW.3)/ complainant had altercation with me.
During said altercation he caused a fire which hit Mst. Salma Bibi, causing her death. Complainant is real brother of deceased. Whereas, Ghulam Ali (PW. 4) is nephew of deceased and Muhammad Jabir complainant/(PW.3). Muhammad Jabir, complainant/(PW.3) in, order to save himself falsely involved me in this case. He is red brother of deceased. They fabricated a story regarding beating by me to Mst. Salma Bibi and previous dispute between husband and wife. Witnesses have falsely deposed just to strengthen this case."
He neither opted to appear as his own witness within the scope of section 340(2), Cr.P.C. nor produced any defence evidence.
6. Upon conclusion of the trial, the learned trial Court vide impugned judgment dated 31-10-2017 convicted and sentenced the appellant as referred to above.
7. Learned counsel for the appellant submits that the appellant has been falsely implicated in this case by the complainant party; that eye-witnesses of the case are not only inter se related but they are inimical towards the appellant rather they are chance witnesses, therefore, their evidence is not reliable without independent corroboration which is very much lacking in this case; that no independent witness from the vicinity where the occurrence took place had been produced by the prosecution either, during the investigation or before the learned trial court; that none of the inmates of the house supported the prosecution version, causing serious doubt upon the veracity of the prosecution case; that the medical evidence is in conflict with the ocular account of the prosecution; that a fake recovery of weapon of offence was planted against the appellant; that the prosecution has failed to prove the motive, of the case; that it is an established view of the Apex Court of the country that a slightest doubt in the prosecution evidence is sufficient to give benefit of doubt to the accused and the case in hand is full of doubts, therefore, by accepting the appeal, the appellant be acquitted of the charge.,
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the appellant is nominated in FIR with specific role attributed to, him, which is borne out from postmortem examination report of the deceased; that the prosecution witnesses had no reason to falsely implicate the appellant in this case or to substitute him in lieu of real culprit, which is a rare phenomenon and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprit; that the medical evidence furnished by the doctor in this regard fully corroborates the ocular account; that the prosecution witnesses are consistent on each and every material point and there seem no discrepancies in their statements; that there was no previous or enmity between the parties, so possibility of false implication of the appellant in this case is ruled out; that the prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appeal filed by the appellant may be dismissed and murder reference may be answered in affirmative.
9. We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.
10. The detail of the prosecution case as set forth in the FIR (Ex. PH) and in the complaint (Ex.PC), has already been given in paragraph No.3 of this judgment, therefore, there is no need to repeat the, same.
11. The incident in the present case, according to the prosecution, was alleged to have taken place at 09:30 a.m. on 24.11.2015 within the area of Kot Akbar Bashmoola Veer Ke Kohna, about 11 Kilometers towards North from Police' Station Kanganpur and the same was reported by Muhammad Jabir, complainant (PW.3) through complaint (Ex.PC), recorded by Shahadat Ali, SI (PW.9) on the same day on the basis of which formal FIR (Ex.PH) was chalked out by Muhammad Akram, SI/DO (PW.7) at 11:00 a.m. within a period of one and half hour but the postmortem examination on the dead body of the deceased Mst. Salma Bibi was conducted by Lady Doctor Saba Qayyum with the delay of ten hours and fifteen minutes after registration of FIR. Keeping in view this material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case can be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, otherwise there was no justification for not dispatching the dead body to the mortuary and providing police papers with such delay. Reliance in this regard is placed upon the cases titled as "Irshad Ahmad v. The State (2011 SCMR 1190) "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068), "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192) "Muhammad Yasin and another v. The State through P. G. Punjab and others" (2020 SCMR 1237), and "Khalid Mehmood and another v. The State and others" (2021 SCMR 810).
12. In an attempt to make it a case of direct evidence against the appellant on the charge of undoing his own better half, the prosecution has heavily relied on the statements of Muhammad Jabir, complainant (PW.3) and Ghulam Nabi (PW.4), who happened to be the real brother and nephew of Mst. Salma Bibi deceased respectively. The alleged occurrence took place at Kot Akbar Bashmoola Veer Ke Kohna at a distance of 11 Kilometers towards North from Police Station Kanganpur, whereas Muhammad Jabir, complainant (PW.3) is resident of New Kahna, Tehsil and District Lahore and Ghuiam Nabi (PW.4) is resident of Iqbal Kot Kanganpur. Both the supra mentioned PWs are not resident of village Kot Akbar Bashmoola Veer Ke Kohna where the occurrence took place, which fact was also admitted by Shahadat Ali, Investigating Officer (PW.9), who stated during his cross-examination that brothqrs of deceased live at Kahna District Lahore and at Kasur City at Kanganpur. Although, in the FIR (Ex.PH), it has been narrated by Muhammad Jabir, complainant (PW.3) that on 23-11-2015 his sister Mst. Salma Bibi informed him telephonically through someone's phone that her husband had beaten her but during whole evidence, the prosecution has failed to describe phone number through which Salma Bibi (deceased) made call to the complainant. Moreso, Muhammad Jabir, complainant (PW.3) has also not described about his phone number upon which he received the phone call of Salma Bibi (deceased). He further stated in cross-examination that:-- "...I had strained relations with my brother in law accused Sarwar, hence, I used to visit house of my sister only few times. It is correct that I had quarrel with my brother-in-law accused Sarwar due to this reason - I had less visiting relations with my deceased. sister..." (Bold for emphasis).
He (PW.3) further stated that he cannot tell the exact ages of all the children of E his deceased sister. This fact also indicates that complainant had no visiting terms with her sister and for that reason he failed to describe the ages of her children. Both the above mentioned eye-witnesses, therefore, could not justify the reason given by them for their presence in the house of the occurrence at the relevant time. They are, therefore, chance witnesses and as such their evidence is not free from doubt. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) at para No.14, observed regarding the chance witnesses as under:- "14... A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.
Likewise, in the case of "Sufyan Nawaz and another v. The State and others"(2020 SCMR 192) at Para No.5, the Apex Court of the country was pleased to observe as under:-- " He admitted that in his statement before police, he had not assigned any reason for coming to village on the day of occurrence. In these circumstances, complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his presence at the spot at the relevant time is not free from doubt."
Similar view was taken in the case of "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142). Relevant part of the said judgement at Para No.2 reads as under: " Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence...."
As the above mentioned prosecution eye-witnesses are chance witnesses and they could not prove the reason of their presence at the spot at the time of occurrence, therefore, their very presence in the house of occurrence at the relevant time becomes doubtful.
13. Similarly, according to the prosecution evidence, the ill-fated lady has three sons and two daughters, who were also inmates of the house but not a single child was produced during the trial as a witness. Although, Shahadat Ali, SI/ 1.0 (PW.9) during his cross-examination stated that he had interrogated the children but he did not bring on record their interrogation. In the given scenario, abandoning of the abovesaid witnesses obviously leads to an adverse inference in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984 that had they been produced in the witness box, they might have not supported the prosecution case. We may observe here that if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Reliance in this respect is placed on the cases of "Lal Khan v. The State" (2006 SCMR 1846) and "Muhammad Rafiq and others v. The State" (2010 SCMR 385).
13. Another intriguing aspect of the case is that according to the prosecution story, the appellant made fire shot upon Salma Bibi (deceased), which landed on her back but the doctor Saba Qayyum, who conducted the autopsy on the dead body of deceased Salma Bibi has described this injury as exit wound, description of which has already been mentioned in paragraph No.3 of this judgment. In this way, there is a material contradiction between the ocular and medical evidence.
We fortify our view from the case laws titled as "Ali Sher and others v. The State" (2008 SCMR 707), "Amin Ali and another v. The State" (2011 SCMR 323), "Abdul Jabbar and another v. The State"
(2019 SCMR 129), "Ishtiaq Hussain and another v. The State and others" (2021 SCMR 159) and "Najaf All Shah v. The State" (2021 SCMR 736).
15. So far as recovery of gun 12 bore double barrel (P.5) vide recovery memo (Ex.PG) from the appellant is concerned, the appellant was arrested in this case on 30-11-2015 and he got recovered 12 bore double barrel gun (P.5) on 06-12-2015 and item No. SSI cartridge, has been fired from the same gun, the crime empty was sent to the office of Punjab Forensic Science Agency on 02-12-2015 after the arrest of appellant. Although report of Punjab Forensic Science Agency (Ex.PP) is positive qua the gun but it has not been explained by the prosecution that why the crime empty was not sent to the Office of Punjab Forensic Science Agency till the arrest of appellant, this fact makes the report of Punjab Forensic. Science Agency inconsequential. Reliance is placed on the cases reported as "Muhammad Amin v. The State and another" (2019 SCMR 2057) and "Asad Rehmat v.
The State and others" (2019 SCMR 1156).
Even otherwise, such recovery being purely corroboratory in nature cannot only be considered to sustain conviction on a capital charge.
It is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of such type of evidence howsoever convincing it may be. Reliance is placed upon the cases titled as "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142) and "Muhammad Mansha v. The State" (2018 SCMR 772).
16. Now the only piece of evidence still remains in field is the motive advanced by the prosecution behind the unfortunate incident, which, as per Muhammad Jabir, complainant (PW.3) and Ghulam Nabi (PW.4) was the quarrel between the spouses i.e. appellant did not pay maintenance allowance to the deceased but it was an oral assertion of the complainant and no material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive alleged by the prosecution. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution set up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the cases titled as "Noor Muhammad v. The State and 'another" (2010 SCMR 97), "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344), "Manzoor Ahmed Shah and others v. The State and others" (2019 SCMR 2000), "Muhammad Ilyas and another v. Ameer All and another" (2020 SCMR 305), "Liaqat Ali and another v. The State and others" (2021 SCMR 780) and "Khalid Mehmood and other v. The State and others" (2021 SCMR 810).
17. As far as the argument advanced by learned counsel for the complainant that the deceased in this case was a vulnerable dependent of the appellant and, thus, by virtue of Article 122 of the Qanun-e-Shahadat, Order 1984, some part of the onus had shifted to the appellant to explain the circumstances in which his wife had died an unnatural death in his house which part of the onus had not been discharged by the appellant. In this regard, we may observe here that the Hon'ble Supreme Court of Pakistan, in a recent judgment reported in case of "Nazir Ahmad v. The State"
(2018 SCMR 787) has been pleased to hold that when every other piece of evidence relied upon by the prosecution has been found to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition. Further guidance can be sought from the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) and "Asad Khan v. The State"
(PLD 2017 SC 681) wherein the Apex Court was pleased to hold 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 Ahmad 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 prosecution stands demolished or is found to be utterly unbelieveable 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 unbelieveable 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..."
It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. Mere recovery of dead body from the house of the appellant, not supported by any inmate of the house, hardly connects him with the commission of crime.
18. The responsibility to prove its case beyond any shadow of reasonable doubt squarely lies with the prosecution and if it fails to successfully discharge it, the only result can be the extension of benefit of doubt to the accused person and it is, by now, established proposition that multiple doubts are not required in this regard, even a single circumstance creating doubt in a prudent mind is sufficient. 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. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Mansha v. The State" (2018 SCMR 772) at para No.4, observed regarding the chance witnesses as under:- "4... Needles 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 than 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)..."
Similar view was taken in the case of "Muhammad Imran v. The State" (2020 SCMR 857). Relevant part of the said judgement at Para No.5 reads as under:-- It is by now well settled that benefit of 'a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction...."
Similar view was taken in the cases of "Najaf Ali Shah v. The State" (2021 SCMR 736) and "The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others" (2021 SCMR 873).
19. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. So by extending the benefit of doubt to Muhammad Sarwar, appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
20. Murder Reference No.599 of 2017 is answered in negative and death sentence passed by learned trial court against Muhammad Sarwar appellant is not confirmed.