SADIQ MAHMUD KHURRAM, J. Muhammad Siraj son Ahmed Bakhsh (convict) was tried alongwith Mst. Sarwar Mai and Mst. Shamoo Mai (both since acquitted) by the learned Additional Sessions Judge, Bahawalpur in the case F.I.R. No. 264 of 2014 dated 16.08.2014, registered at Police Station Saddar Bahawalpur , District Bahawalpur in respect of offences under sections 302 and 34 P.P.C. for committing the Qatl-i-Amd of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased). The learned trial court vide judgment dated 28.09.2016, convicted Muhammad Siraj son Ahmed Bakhsh (convict) and sentenced him as infra: Muhammad Siraj son Ahmed Bakhsh: Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased) and directed to pay Rs.100,000/- as compensati on under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict, however , was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.
Mst. Sarwar Mai and Mst. Shamoo Mai, the co-accused of the convict, were, however , acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Siraj son Ahmed Bakhsh (convict) lodged the instant Criminal Appeal No.468 of 2016 assailing his conviction and sentence.
3. Precisely , the necessary facts of the prosecution case, as narrated by Muhammad Mukhtiar (PW-6), the eye witness of the case, are as under:- "On 16.08.2014 I was present at my house. Shamim Mai deceased was my Bhatiji who was residing near my house. At about 11:00 a.m., I heard hue and cry in the house of Mst. Shamim Mai and after hearing hue and cry I entered in the house of Shamim Mai. Accused Siraj had tied Dupata around the neck of deceased Shamim Mai while Shamun Mai and Mst. Sarwar Mai had caught hold legs and arms of Shami m Mai. I raised hue and cry and on hearing the same, my brother Zafar PW attracted there. On seeing us, accused Siraj fled away from the place of occurrence. As soon as we entered in the room, our Bhatiji had died. We called on telephone to our brother Muhammad Iqbal complainant, who also reached there and after sometimes police arrived. My brother Iqbal complainant moved application to police. Police prepared rough site plan of the place of occurrence and moved dead body to hospital where after postmortem examination dead body of Mst. Shamim Mai was handed over to us.
The doctor handed over 02 sealed plastic Jars and 01 sealed Khaki envelope to the police which were taken into possession by the I.O. vide recovery memo Ex. P.B. attested by me and Muhamma d Zafar PW. The doctor handed over last worn clothes including Kameez P1, Shalwar P2 and Dupata P3 of deceased Shamim Mai to constable and the constable handed over the last worn clothes to I.O. who took the same into possession vide recovery memo Ex.P.H. attested by me and Muhammad Zafar PW. My statement u/s 161 Cr.P.C., was recorded in this regard."
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 and the accused were sent to face trial. The learned trial court framed the charge against the accused on 22.04.2016, 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 nine witnesses recorded. The ocular account of the case was furnished by Muhammad Mukhtiar (PW-6) and Muham mad Zafar (PW-7). Muhammad Iqbal (PW-5) stated that he was told about the occurrence by the prosecution witnesses and after arriving at the place of occurrence submitted his written application (Exh. P.G.) for the registration of the case. Syed Gul Hassan Shah Patwari (PW-1) prepared the scaled site plan of the place of occurrence (Exh. P.A.). Muhammad Akmal 1539/C (PW-2) stated that on 16.08.2014 the Woman Medical Officer handed over two sealed jars and one sealed envelope to Mansoor-ul-Hassan SI (PW-8), the Investigating Officer of the case, which he took into possession through recovery memo (Exh. P.B.). Ishfaq Ahmad SI (PW-4) stated that on 16.08.2014, he recorded the formal F.I.R (Exh.PG/1). Mansoor-ul-Hassan SI (PW-8) investigated the case from 16.08.2014 till 15.12.2014, arrested the appellant on 26.09.2014, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Sofia Iqbal (PW-9) examined, who on 16.08.2014 was posted as Demonstrator , Forensic Medicine Department, Quaid-e- Azam Medical College Bahawalpur and on the same day conducted the postmortem examination of the dead body of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased). Dr. Sofia Iqbal (PW-9), on examining the dead body of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased) observed as under:- "EXTERNAL APPEARANCE A dead body of a young female aged about 24 years approximately , wearing red coloured shalrwar and black and red coloured qameez, orange colour dupa tta was lying supine on autopsy table. Mouth and eyes were semi closed and fine tenacious white coloured froth was coming out of the mouth and nostrils. Petechial hemorrhage was present upon conjunctivae.
Upon external examination there was no dupatta or ligature or ligature mark upon neck except injury No.1 bruises size about 4 X 4 CM on right side of neck and injury No.2 bruises, abrasion (multiple) on the left side of neck.
Upon dissection of the neck underline tissues were ecchymosed and by doing layer by layer dissection of neck hyoid bone found fracture at the junction of body and cornu of hyoid.
OPINION: I have sent hyoid bone for ascertaining ante mortem or post mortem fracture or injury . I have received histopathology report from PFSA, Lahore. According to which "Histological examination of multiple sections from hyoid bone reveals bony fragments entrapped in those are blood haemorrhages. These features are suggestive of Ante Mortem injury to Hyoid bone."
After complete autopsy examination and report of Histopathology I am of the opinion cause of death was injury No.1 and 2 which has caused damaged to the underlying tissues of neck, constriction of trachea and causing the injury of hyoid bone and leading to the asphyxia and ultimately death. All the injuries were ante mortem in nature.
Such kind of injury leading to asphyxia was suf ficient to cause death in ordinary . course of life.
Probable time that elapsed between injury and death was within 15 minutes and between death and post mortem was 10 hours."
7. On 26.09.2016, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Ata Muhammad SI as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency , Lahore (Exh. P .N.).
8. After the closure of prosecution evidence, the learned trial court examined the appellant, namely Muhammad Siraj son Ahmed Bakhsh under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant, namely Muhammad Siraj son Ahmed Bakhsh opted not to get himself examined under section 340(2) Cr .P.C. and did not adduce any evidence in his defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Bahawalpur 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 argued that the appellant had been involved in the occurrence only on suspicion. 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 appearing on behalf of the complainant contended that the prosecution has proved its case beyond shadow of 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 Mukhtiar (PW-6) and Muhammad Zafar (PW-7). They further contende d 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 , the learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellant, namely Muhammad Siraj son Ahmed Bakhsh.
12. I have heard the learned counsel for the appellant, the learned Deputy Distric t Public Prosecutor , the learned counsel appearing on behalf of the complainant and with their able assistance perused the record and evidence recorded during the trial.
13. This Court has noticed that according to the statements of the prosecution witnesses, the occurrence was allegedly witnessed by the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), whereas Muhammad Iqbal (PW-5), the complainant of the case, stated that he had been told about the death of the deceased by the prosecution witnesses namely Muhammad Mukhtia r (PW-6) and Muhammad Zafar (PW-7). Muhammad Iqbal (PW-5) admitted during cross-examination that he had not witnessed the occurrence and also that he had named the accused in his written application (Exh. P.G.) on the basis of the information given to him by Muhammad Mukhtiar (PW-6). Muhammad Iqbal (PW-5) admitted during cross-examination admitted as under:- "It is correct that I did not witnessed the occurrence and Allah knows better . It is correct that I nominated the accused persons on the asking of Mukhtar Ahmad PW ."
This Court has also noted with grave conc ern that though it had been claimed by Muhammad Mukhtiar (PW-6) that the occurrence was witnessed by him and Muhammad Zafar (PW-7) however , Muhammad Zafar (PW-7), in his statement before the learned trial court, denied that he had witnessed the occurrence and instead came up with the claim that he had been told about the occurrence by Muhammad Mukhtiar (PW-6) and he himself had not seen the same. Muhammad Zafar (PW -7) in his examination in chief before the learned trial court stated as under:- "On 16.08.2014 I was present at my hous e. I heard hue and cry of my brother Mukhtiar and I came out of my house and my brother met me on the road who told me that Siraj accused has committed murder of Mst. Shamim Mai. When we reached inside the room where Mst. Shamim Mai was lying in approximate dead condition."
(emphasis supplied)
Muhammad Zafar (PW-7) was never re-examined by the prosecution nor any application was submitted for re- examining Muhammad Zafar (PW-7) in this regard that he had seen the occurrence or otherwise. The statement of the prosecution witness, namely Muhammad Zafar (PW-7), is in direct contrast with the statement of Muhammad Mukhtiar (PW-6), who came up with the claim that he and Muhammad Zafar (PW-7) had both witnessed the occurrence. Muhammad Mukhtiar (PW -6), in his examination in chief, had claimed as under:- "I raised hue and cry and on hearing the same, my brother Zafar PW attracted there. On seeing us, accused Siraj fled away from the place of occurrence." (emphasis supplied)
Muhammad Mukhtiar (PW -6), during cross-examination, stated as under:- "I alongwith PW Zafar straight rushed towards the room where the occurrence was taking place and I did not talk with Zafar PW at that time." (emphasis supplied)
The above-mentioned statement of Muhammad Mukhtiar (PW-6) raises doubt in the prosecution case with regard to the fact as to whether both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), were present at the place of occurrence or otherwise. The contradictory and mutually destructive statements made by the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW- 7) with regard to the presence of Muhamm ad Zafar (PW-7) at the place of occurren ce, at the time of occurrence or otherwise, have repercussions, entailing the failure of the prosecution case as against the appellant. Both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), failed to prove that the occurrence had taken place in their view and in their presence. Not only this, but the prosecution witness namely Muhammad Zafar (PW -7), even admitted that the occurrence had not taken place in his view or in his presence.
14. This Court has noted with grave concern and disquiet that the alleged eye witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), made no effort either to save the deceased or to apprehend the accused when they were two in number and could have easily restrained the accused, who was not even armed with any weapon at the time of occurrence. Muhammad Mukhtiar (PW-6) admitted during cross-examination stated as under:- "When I reached at the place of occurrence Shamim Mai deceased was standing on the floor . I witnessed the occurrence from a distance of about 40 feet and I made hue and cry. I remained standing and crying till the arrival of Zafar PW at a distance of about 40 feet. I was standing in the compound of the house of occurrence where Zafar PW came. I alongwith PW Zafar straight rushed towards the room where the occurrence was taking place and I did not talk with Zafar PW at that time. When we reached in the room my Bhatiji Shamim Mai had already died and accused Siraj had fled away When I witnessed the occurrence Shamim Mai was trembling and accused Siraj was throttling her neck."
(emphasis supplied)
Both the prosecution witnesses namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), were closely related to the deceased namely Mst. Shamim Mai daughter of Muhammad Iqbal. The deceased namely Mst.
Shamim Mai daughter of Muhammad Iqbal was the real paternal niece (Batheeji) of both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7). It is unnatural and unbelievable that the alleged eye witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), did not even move a limb to protect their near and dear one. According to the statement of the prosecution witness, namely Muhammad Mukhtiar (PW-6), he and Muhammad Zafar (PW-7) had arrived at the place of occurrence and had seen Mst. Shamim Mai (deceased) stand ing at the place of occurrence. It is strange and rather unbelievable that the accused still succeeded to strangula te the deceased in the presence of the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) and others when according to the claim of the prosecution witness, namely Muhamma d Mukhtiar (PW-6), they had been attracted towards the place of occurrence on the hue and cry of the deceased, prior to her being strangulated. It was claimed by the prosecution witness, namely Muhammad Mukhtiar (PW-6), that the deceased was alive when he and Muhammad Zafar (PW-7) saw the occurrence, but still, both the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), did not act in any manner to save the life of the poor woman. According to the observations of Dr. Sofia Iqbal (PW-9), who had conducted the post mortem examination of the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal, the deceased, had been murdered due to damage caused to the underlying tissues of the neck, constriction of the trachea and injury to the hyoid bone. More importantly , Dr. Sofia Iqbal (PW-9) observed that there were no defensive wounds observed by her on the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal. Dr. Sofia Iqbal (PW-9) also noted that neither the hands nor the feet of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal were tied. Dr . Sofia Iqbal (PW -9) during cross-examination stated as under:- "I did not find any marks on the wrists, arms and legs of the dead body except neck." (emphasis supplied)
The above referred portion of the cross-examination of Dr. Sofia Iqbal (PW-9) wherein she stated that she did not find any defensive wounds on the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal and where she stated that she had not observed any signs of tying of the hands and legs of the deceased namely Mst. Shamim Mai daughter of Muhammad Iqbal, has raised much concern. It is vexing to imagine that in what circumstances the accused succeeded in strangulating the deceased namely Mst. Shamim Mai daughter of Muhammad Iqbal in presence of the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), without facing any resistance from either the deceased or the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7). The lack of any defensive wounds on the dead body of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal and the fact that the hands and legs of the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal, were not tied is revealing of the fact that the account of the occurrence as given by the prosecution witness, namely Muhammad Mukhtiar (PW-6), was not correct and the deceased was done to death in circumstances entirely different to those which were given evidence of by the prosecution witness namely Muhammad Mukhtiar (PW-6). During the whole episode wherein the deceased, namely Mst. Shamim Mai daughter of Muhammad Iqbal, was done to death, the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), who, according to Muhammad Mukhtiar (PW- 6), were attracted to the place of occurrence on hearing the hue and cry of the deceased, did not make any effort to save the deceased or to restrain the assailant. It is all the more bizarre that none of the above-mentioned prosecution witnesses actually interfered in order to save the life of the victim when according to them, they were two in number and were standing just next to the place where the tragic deceased was being strangulated by an unarmed accused and had been standing there prior to the start of the strangulatin g process. It is worrying to note that the prosecution witnesses, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), kept watching the accused strangulating the deceased but still kept viewing and did not interfere at all. No person with ordinary prudence would believe that such close ly related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or apprehend the assailant. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) had seen the occurrence, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save her. Such behaviour , on the part of the witnesses, runs counter to natural human conduct and behaviour . Article 129 of the Qanun-e-Shahadat, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. This Court, thus, trusts the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by them, was opposed to the common course of natural events, human conduct and that the witness namely Muhammad Mukhtiar (PW-6), the only witness who claimed to had seen the occurrence, had not witnessed the occurrence. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circums tances. Reliance is placed on the case of "Zulifqar Ali v. The State"
(2021 SCMR 1373 ) wherein the august Supreme Court of Pakistan observed as under:- "Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror , cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended targe t and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene"
Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- "The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causin g the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot."
Further reliance is placed on the case of "Shahzad Tanveer v. The State" (2012 SCMR 172) at page-176 wherein the august Supreme Court of Pakistan observed as infra:- "It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot."
Reliance is also placed on the case of "Liaquat Ali v. The State" (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under: "He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
15. I have also observed that according to the prosecution witness, Muhammad Mukhtiar (PW-6), the occurrence occurred only when he and Muhammad Zafar (PW-7) arrived at the place of occurrence. Muhammad Mukhtiar (PW-6) during cross-examination stated as under:- "When I witnessed the occurrence Shamim Mai was trembling and accused Siraj was throttling her neck."
This narrative of the prosecution witness Muhammad Mukhtiar (PW-6) that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the same, at the exact same time when the witnesses arrived, is unnatural and cannot be believed. 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 assailant kept waiting for their arrival. Such behaviour , on part of the accused, as deposed by the prosecution witness namely Muhammad Mukhtiar (PW-6), runs counter to natural human conduct and behaviour . Hence, being perceptive of this strain of human conduct, this Court is holding that Muhammad Mukhtiar (PW-6), the only prosecution witness claiming to had witnessed the occurrence, was not present at the time of occurrence, at the place of occurrence and had not witnessed 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. Another aspect of the case is the fact that despite the assertion of the prosecution witnesses Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) that the occurrence had taken place on 16.08.2014 at 11.00 a.m., the matter was reported to the police on 16.08.2014 at 04.30 p.m. when the prosecution witness Muhamma d Iqbal (PW-5) submitted his written application (Exh. P.G.) for the registration of the F.I.R at the place of occurrence to Mansoor-ul-Hassan SI (PW-8). In this manner, the delay in reporting the matter to the police was of more than five hours and thirty minutes , for which delay no reason, much less plausible, was offered. No justification, much less credible, has been given by the prosecution at any stage for such deferral in submitting the written application (Exh.
P.G.) of Muhammad Iqbal (PW-5) to the police. The reason for this inordinate delay in reporting the matter to the police by the prosecution witnesses namely Muhammad Iqbal, Muhammad Mukhtia r (PW-6) and Muhammad Zafar (PW-7) is apparent, being that none of the prosecution witnesses namely Muhammad Iqbal, Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) had witnessed the occurrence and discove red the fact of the death of the deceased only subsequently whereafter the narrative of the written application (Exh. P.G.) was developed and the matter was reported to the police. The prosecution witness namely Muhammad Mukhtiar (PW-6), the only prosecution witness who claimed to had witnessed the occurrence, admitted during cross-examination that he never reported the matter to the police after the occurrence. Muhammad Mukhtiar (PW-6), during cross- examination, stated as under:- "I did not inform the police of the occurrence. I do not know who informed the police regarding occurrence."
Similarly Muhammad Zafar (PW -7) also admitted during cross-examination as under:- "We did not inform the police about the occurrence and information was conveyed to police by any neighbour ."
Muhammad Iqbal (PW-5), the complainant of the case, also admitted during cross-examination that he never reported the matter and stated as under:- "It is not in my knowledge who informed police regarding occurrence. It is not in my knowledge at what time police was informed of the occurrence."
According to Mansoor-ul-Hassan SI (PW-8), he got the information about the occurrence and reached the place of occurrence on his own. Mansoor-Ul-Hassan SI (PW -8) during cross-examination, stated as under:- "The occurrence was not reported at the police station either by complainant or by the P .W.s"
No one out of the witnesses namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), had admittedly told him about the occurrence, nor any information had been sent to the Police Station with regard to the happening of the occurrence till the arrival of Mansoor-ul-Hassan SI (PW-8) at the place of occurrence on his own. As mentioned above, the written application (Exh. P.G.) was submitted by Muhammad Iqbal (PW-5) to Mansoor-ul-Hassan SI (PW-8) after his arrival at the place of occurrence. The august Supreme Court of Pakistan, in the case of "Abdul Jabbar alias Jabbari v . The State" ( 2017 SCMR 1 155), has observed as under: "An F.I.R. in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the F .I.R. had been chalked out after deliberations and preliminary investigation at the spot."
Another factor denuding the fact that the written application (Exh. P.G.) was prepared and submitted after much invention and consultations is the admission of the prosecution witnesses that Mansoor-Ul-Hassan SI (PW-8) had arrived at the place of occurrence as early as at about 02.00 p.m. on 16.08.2014 , however , the written application (Exh. P.G.) was submitted as later as at 04.30 p.m. on 16.08.2014 . Muhammad Iqbal (PW-5), the complainant of the case, gave the time of arrival of the police as 02.00 p.m. and stated during cross-examination as under:- "As soon as I received information of occurrence I reached at the place of occurrence at 11.00/1 1.15 a.m.
Police arrived at the place of occurrence at about 02:00 p.m. It took about 15 minutes to reach place of occurrence from P .S Saddar ." (emphasis supplied)
It is evident that the delay in submitting the written application (Exh. P.G.) was for the reason that neither the prosecution witnesses, namely Muhamm ad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), were present at the place of occurrence nor the details of the occurrence were known to them. It took two hours and thirty minutes after the arrival of Mansoor-ul-Hassan SI (PW-8) at the place of occurrence for the formulation of the narrative of the written application (Exh. P.G.). In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because the witnesses never reported the matter to the police for as many as five hours and thirty minutes . This inordinate delay in reporting the matter conclusively proves that the written application (Exh. P.G.) of Muhammad Iqbal (PW-5) and the formal F.I.R (Exh.PG/1) were prepared after a probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) had not witnessed the occurrence, the delay was used for developing a false narrative of the written application (Exh. P.G.). As many as five hours and thirty minutes were taken to invent a false and dishonest account of the written application (Exh. P.G.) of Muhammad Iqbal (PW-5). The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh. P.G.) of Muhammad Iqbal (PW-5) was neither prompt nor spontaneous nor natural; instead, it was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences that they had not seen the occurrence. Reliance is placed on the case of "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:- "As per contents of F.I.R., the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morni ng at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrenc e at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chance s of deliberations and consultations before reporting the matter to the Police cannot be ruled out."
Reliance is also placed on the case of "MUHAMMAD ASHRAF JAVEED and another vs. 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 P.W.s 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 vs. 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 F.I.R. or while appearing before the learned trial Court qua the delay in lodging the F.I.R. or for that matter the belated postmortem of the deceased."
Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of "G. M.
NIAZ Vs. The State" (2018 SCMR 506), Abdul Jabbar and another Vs. The State (2019 SCMR 129) and Muhammad Shafi alias Kuddoo Vs. The State and others ( 2019 SCMR 1045 ).
17. This Court has been vexed by the fact that the deceased namely Mst. Sham im Mai daughter of Muhammad Iqbal was never taken to any hospital by the prosecution witnesses, namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), to save her life. Dr. Sofia Iqbal (PW-9), stated that the deceased remained alive for some time after receiving the injuries still the prosecution witnesses, namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), all closely related to the deceased, did not take her to any hospital. It has been proved on record that the prosecution witnesses, namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), made no effort to take the deceased to the hospital and it convincingly establishes that the said witnesses did not know about the death of the deceased and discovered the same only later. The august Supreme Court of Pakistan, in the case of "Zaheer Sadiq v.
Muhammad Ijaz and others" ( 2017 SCMR 2007 ), has observed as under: "The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police."
18. It is also an admitted fact of the prose cution case that the place of occurrence was occupied by the other family members of Mst. Shamim Mai (deceased ). All the three prosecution witnesses namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) admitted that one Mst. Sardaran Bibi, the sister of all the three prosecution witnesses, namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), was also residing in the same house where the occurrence took place. Muhammad Iqbal (PW-5), during cross-examination, stated as under:- "My one sister is sister-in-law (Bhabi) of accused Siraj is also residing In the same house where the occurrence took place and still residing in the same house. The Bhabi of accused Siraj was also residing in the house where the occurrence took place." (emphasis supplied)
Muhammad Mukhtiar (PW -6), during cross-examination, stated as under:- "Sardaran Bibi Bhabi of accused Siraj is my sister and Phopi of deceased Shamim was also living in the house where the occurrence took place and still living there."
Muhammad Zafar (PW -7), during cross-examination, stated as under:- "There were 02/03 children present there. Police remained at the place of occurrence for about two hours. My sister and Phopi of deceased and Bhabi of Siraj Guddu Mai is still residing in the house of occurrence."
Neither during the course of investigation nor before the learned trial court, the statement of Mst. Sardaran Bibi, the sister of all the three prosecution witnesses, namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) and also residing in the same house where the occurrence took place, was recorded.
This failure of Mansoor-ul-Hassan SI (PW-8), the Investigating Officer of the case, to include in the investigation Mst. Sardaran Bibi, the inhabitant of the house where the occurrence had taken place and the failure of the prosecution to produce Mst. Sardaran Bibi, the inhabitant of the place of occurrence, before the learned trial court, reflects poorly upon the veracity of the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presum ed 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 Mst. Sardaran Bibi, the resident of the place of occurrence and the most natural witness before the learned trial court has convinced me that had she been produced before the learned trial court, Mst. Sardaran Bibi 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." (emphasis supplied)
Reliance is also placed on the case of "Lal Khan versus THE STATE" (1996 SCMR 1846) wherein the august Supreme Court of Pakistan held as under:- "The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
Reliance is also placed on the case of "USMAN alias KALOO versus THE STATE" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held as under:- "A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother , wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the trial court".
Reliance is also placed on the cases of "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.
19. This Court has also noted with disquiet that despite the fact that the occurrence took place at about 11.00 a.m. on 16.08.2014 , the postmortem examination of the dead body of the deceased was conducted after much delay .
According to Dr. Sofia Iqbal (PW-9), she conducted the post mortem examination of the dead body of the deceased on 16.08.2014 at 06.00 p.m. i.e after as many as seven hours after the death of Mst. Shamim Mai daughter of Muhammad Iqbal. Dr . Sofia Iqbal (PW -9), in her statement before the learned trial court stated as under:- "According to police papers, death occurr ed on 16.08.2014 whereas postmortem was conducted on 16.08.2014 at 06.00 p.m."
Dr. Sofia Iqbal (PW-9), who conducted the post mortem examination of the dead body of Mst. Shamim Mai daughter of Muhammad Iqbal (deceased) and prepared the post mortem examination report (Exh. PM), gave the time between death and post mortem examination as being within 10 hours. Dr. Sofia Iqbal (PW-9) also observed presence of rigor mortis at the time of conducting the post mortem examination. Before proceeding any further , it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12- hours in temperate climate. Similarly , the reverse process with which rigor mortis disappears is called algor mortis.
In support of duration required to develop rigor mortis, an extract from "The Principles And Practice Of Medical Jurisprudence" by Alfred Swaine T aylor , MD, is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly , William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 'POSTMOR TEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P.
Modi' s A Textbook of Medical Jurisprudence and T oxicology (26th Edition 2018), it has been discoursed as under:-: "Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away .
Rigor mortis first appears in the involuntary muscles, and then in the voluntary . In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy , and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Postmortem delivery may occur owing to contraction of the uterine muscular fibres.
In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However , according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor .
Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.
Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in winter and 18 to 36 hours in summer . According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early , it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associat ed findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability , the death might have occurred six to twelve hours or so more before the time of examination."
The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Mst.
Shamim Mai daughter of Muhammad Iqbal is that by that time the details of the occurrence were not known and the said time was used to fashion a false narrative of the occurrence. No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence had not witnessed the occurrence and the delay in the post mortem examination was used to formulate a dishonest account after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of effort to advance a false narrative of the occurrence to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" ( 2012 SCMR 327 ) has held as under: "The incident in the instant case took place at 2.00 a.m, F.I.R. 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 F .I.R. was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others vs. The State and others" ( 2019 SCMR 956 ) has held as under: "According to the Doctor (PW-10), who did the postmortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the postmortem 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 F.I.R. 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 vs. 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."
20. This Court has also noted that though it was claimed by the prosecution witnes s, namely Muhammad Mukhtiar (PW-6), that when he entered the place of occurrence, he saw the accused pressin g the neck of the deceased with the use of a dupatta and kept pressing the same till the deceased died, however , Dr. Sofia Iqbal (PW-9), on examining the dead body of Mst. Shamim Mai (deceased) did not observe any marks of any ligature on or around the neck of the deceased. Muhammad Mukhtiar (PW-6), in his statement before the learned trial court, stated as under:- "Accused Siraj had tied Dupata around the neck of deceased Shamim Mai"
Muhammad Zafar (PW -7) in his statement before the learned trial court stated as under:- "We did not remove Dupata from the neck of deceased Shamim Mai till the arrival of police."
Dr. Sofia Iqbal (PW-9) observed only two bruises present on and around the neck area of the dead body of the deceased and did not observe presence of any Dupatta tied around the neck of the deceased. Dr. Sofia Iqbal (PW- 9) also observed as under:- "Upon external examination there was no dupatta or ligature or ligature mark upon neck except injury No.1 bruises size about 4 X 4 CM on right side of neck and injury No.2 bruises, abrasion (multiple) on the left side of neck." (emphasis supplied)
Dr. Sofia Iqbal (PW -9) further opined as under:- "No mark of pressing neck with Dupata was found on the neck."
The above referred statements of the prosecution witnesses clearly reflect the contradiction in the ocular account of the occurrence and the observations of Dr. Sofia Iqbal (PW-9). The above referred opinion of Dr. Sofia Iqbal (PW-9) also establishes that it was not a case of strangulation by dupatta tied around the neck as suggested by the witnesses. In the Chapter 20 'Deaths from Asphyxia", from page 515 to 517 of Rai Bahadur Jaising P. Modi' s A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) strangulation has been defined as the compression of the neck by a force other than hanging and when constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling . It has been further noted that if fingers are used for throttling, marks of pressure by the thumb and the finger prints are found on the either side of the neck. At page 515 of Rai Bahadur Jaising P. Modi' s A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), the types of strangulation have been mentioned as under:- "Types of Strangulation. Ligature strangulation Throttling (manual strangulation-compressing with hand) Mugging (compressing with forearm or foot or wrist) Bansdola (wooden stick is used to compress the neck) Garroting (a rope or a loincloth and a wooden stick as a lever to tighten the ligation is used) Accidental strangulation (can arise in the course of a person' s occupation when a neck tie or scarf is caught in moving machinery or belts as in mill workers or in an epileptic or an intoxicated person who may be helpless in extricating himself from such tight encirclement of the neck or in utero when the movements of the foetus cause the umbilical cord to be wound round into neck."
From page 516 to page 517 of Rai Bahadur Jaising P. Modi' s A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) it has been discoursed as under:- "(a) Appearances on the Neck.- Appearances on the neck vary according to the means used
(1) Ligature Mark - Ligature mark is a well-defined and slightly depressed mark corresponding roughly to the breadth of the ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely . The marks are multiple if the ligature is twisted several times round the neck, also more than one firm knot of the ligature is certain of homicide. The mark may be oblique as in hanging, if the victim has been dragged by a cord after he has been strangled in a recumbent posture, or if the victim was sitting and the assailant applied a ligature on the neck while standing behind him, thus using the force backward and upward. The base of the mark, which is known as a groove or furrow , is usually pale with reddish and ecchymosed margin. It becomes dry, hard and parchment-like, several hours after death, if the skin has been excoriated. The pattern of the ligature may also be seen. Very often . there are abrasions and ecchymoses in the skin adjacent to the marks.
In some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after death. A careful search of the neck may reveal minute fibres and any other material from the ligature.
The fibres can be lifted off by sticking thin transparent adhesive tape-5 cm long, around the ligature mark and its surroundings. This tape, later transferred to clean microscope slides, can be exam ined directly under microscope, for fibres. Inspection of the neck with oblique light, may show the pattern produced by ligature. Examination under ultraviolet light may also reveal the pattern and nature of the ligature.
(2) If fingers are used (throttling), marks of pressure by the thumb and the finger tips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other . However , the marks are sometimes found clustered together , so that they cannot be distinguished separately . These fingertip bruises, each disc-shaped and 1-2 cm in diameter , look like red bruises (six penny bruises) if examined soon after death, but they look brown, dry and parchment-like sometimes death. One should refrain from drawing inference from the direction of curved abrasion, as to how the hand of the assailant might have been applied to the neck of victim. The inherent quality of the victim' s skin, the shape, and length of the fingernails of the assailant render such inferences extremely tenuous. This linear or crescentic marks produced by the fingernails are occasionally present, if the fingertips are pressed deeply into the soft tissues of the neck. A body , which is wet, may not reveal fingernail marks until drying of the skin of the body . When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat. Sometimes, both thumb marks are found on one side and several finger marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back.
Besides these marks, there may be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body , if there has been a struggle. Similarly , fractures of the ribs and injuries to the thoracic and abdominal organs may be present, if the assailant kneels on the chest or abdomen of his victim while pressing his throat"
As narrated above, had the neck of the deceased been tied with the dupatta in the manner as stated by the prosecution witness namely Muhammad Mukhtiar (PW-6) then there must have been observed the evidence of the same however Dr. Sofia Iqbal (PW-9) did not. The oral account of the occurrence, as given by the only eye witness namely Muhammad Mukhtiar (PW-6), cannot be said to be in accordance with the medical evidence, rather is proved to be contrary to it.
21. This Court has already mentioned that along with the appellant his co-accused namely Mst. Sarwar Mai and Mst.Shamoo Mai (both since acquitted) were also tried. The learned trial court acquitted the above-mentioned Mst.
Sarwar Mai and Mst.Shamoo Mai, the co-accused of the appellant. This Court has 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 of the appellant, who have stated that the acquittal of Mst. Sarwar Mai and Mst.Shamoo Mai (both since acquitted) had attained finality as the acquitta l of Mst. Sarwar Mai and Mst.
Shamoo Mai (both since acquitted) by the learned trial court was never assailed either by the State or by any other aggrieved person. The question for determination before this Court now is whether the evidence of the prosecution witnesses 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 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. This Court has 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 XI 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 augu st Supreme Court of Pakistan, This Court has examined the prosecution evidence. This Court has scrutinized the statement of Muhammad Mukhtiar (PW-6), the sole the eyewitness of the occurrence. Muhammad Mukhtiar (PW -6) in his statement recorded by the learned trial court stated as under:- "Accused Siraj had tied Dupata around the neck of deceased Shamim Mai while: Shamun Mai and Mst. Sarwar Mai had caught hold legs and arms of Shamim Mai.." (emphasis supplied).
Muhammad Mukhtiar (PW-6), the sole the eyewitness of the occurrence stated that Mst. Sarwar Mai and Mst.Shamoo Mai (both since acquitted) were holding the legs and arms of the deceased at the time of the occurrence enabling the appellant to strangulate her, however , Muhammad Mukhtiar (PW-6), the sole the eyewitness of the occurrence, was found to had made a false statement with regard to Mst. Sarwar Mai and Mst.
Shamoo Mai (both since acquitted), the co-accused of the appellant. This Court is unable to find any independent corroboration of the prosecution case against the appellant as the prosecution evidence with regard to the appellant and with regard to his co-accused, namely Mst. Sarwar Mai and Mst.Shamoo Mai (both since acquitted) is similar . This Court finds no reason to believe the statement of Muhammad Mukhtiar (PW-6), the sole the eyewitness of the occurrence, with regard to the appellant in absence of any reason to do so and when the said witness namely Muhammad Mukhtiar (PW-6) has been proved to had deposed falsely against Mst. Sarwar Mai and Mst.Shamoo Mai (both since acquitted). This lying on part of Muhammad Mukhtiar (PW-6), the sole the eyewitness of the occurrence, with regard to Mst. Sarwar Mai and Mst.Shamoo Mai (both since acquitted), the co-accused of the appellant, has vitiated the trust of this Court in him. I am thus satisfied that the evidence of Muhammad Mukhtiar (PW-6) has no worth and deserves outright rejection. Reliance in this regard is placed on the case of "Tariq Vs. The State" ( 2017 SCMR 1672 ) wherein the august Supreme Court of Pakistan has held as under:- "So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity , being double edge, could be reason for false implication of the appellant."
Reliance in this regard is also placed on the case of MUNIR AHMED and others Vs. the State and others (2019 SCMR 2006 ) wherein the august Supreme Court of Pakistan has held as under: - "Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury , notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity , it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution' s dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the decease d and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitione rs and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurre nce did not place in the manner as is alleged in the crime report; argume nt that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently , Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case."
Reliance is also placed on the case of "SAFDAR ABBAS and others Versus The STATE and others" (2020 SCMR 219 ) wherein the august Supreme Court of Pakistan has held as under:- "Petitioners' father , namely , Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-ac cused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the P.W.s; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequen tial. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case."
22. The learned Deputy District Public Prosecutor and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, as stated by Muhammad Iqbal (PW-5) in the written application (Exh. P.G.), was that the relationship of the appellant and the deceased had become strained due to unemployment of the appellant and the appellant used to beat the deceased. This Court has perused the statements of the prosecution witnesses, namely Muhammad Iqbal (PW-5), Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7) and finds that they failed to prove the motive of the occurrence. A perusal of the state ments of the prosecution witness, namely Muhammad Mukhtiar (PW-6) and Muhammad Zafar (PW-7), reveals that they gave no evidence before the learned trial court concerning the motive of the occurrence. The only prosecution witness who gave evidence with regard to the motive of the occurrence was Muhammad Iqbal (PW-5), but he also failed to prove the same. Though it was claimed by the prosecution witness, namely Muhammad Iqbal (PW-5), that the appellant used to beat Mst. Shamim Mai daughter of Muhammad Iqbal (deceased), however , it was admitted that the said matter was never reported to the police or anyone else ever and furthermore, the deceased had not left the house of the appellant to live with her father for the last two years before the occurrence. Muhammad Iqbal (PW -5), during cross-examination, stated as under:- "During quarrel, only one time my daughter Shamim Bibi had left the house of Siraj due to quarrel and came to me but I sent my daughter back to Siraj accused. My daughter complained me that she was unhappy from living with her husband Siraj and she was tired of her life. My daughter Shamim had come to my house about two years before the occurrence after quarrelling with her husband. Siraj. After re-joining of Shamim with Siraj she was living with her husband." (emphasis supplied)
There is no evidence on record that Mst. Shamim Mai daughter of Muhammad Iqbal (deceased) was facing any threat to her life at the hands of the appellant prior to the occurrence rather , to the contrary , she was living with the appellant till her tragic death. This also proves that the appellant and the decea sed were having a happy and healthy marital life and hence there did not exist any reason for the appellant to murder his loving wife. The prosecution witnesses failed to provide evidence enabling this Court to determin e 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 poignant hush with regard to the particulars of the motive alleged. The prosecution produced no independent witness to prove the motive as alleged. Even otherwise, 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."
23. It has been argued by the learne d Deputy District Public Prosecutor and 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 circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accuse d 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-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 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 for the commiss ion 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 Qanune-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. 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 cases, 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 accused' s guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the accused is the law and no attempt to whittle it down can be entertained. As discussed above, the only eye witness namely Muhammad Mukhtiar (PW-6), who claimed to had seen the occurrence ,failed miserably to prove that he had witnessed the same. In a case of this nature, the appellant 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 her 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. This Court has 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 elaborat ed 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 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."
24. Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of Muhammad Siraj son Ahmed Bakhsh, 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 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 perso n 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 Pakista n Najaf Ali Shah Vs. the State (2021 SCMR 736 ) in which it has been observed in paragraph No.13 of page 236 as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer . As the preeminent English jurist William Blackstone wrote, "Better those ten guilty persons escape, than that one innocent suffer ." Benjamin Frankl in, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer ." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution' s case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner . This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of This Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345 ) and Ayub Masih v. The State (PLD 2002 SC 1048 )." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution' s case automatically goes in favour of an accused."
25. For what has been discussed above, the instant Criminal Appeal No. 468 of 2016 lodged by Muhammad Siraj son Ahmed Bakhsh (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 28.09.2016 are hereby set-aside. Muhammad Siraj son Ahmed Bakhsh (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Muhammad Siraj son Ahmed Bakhsh (appellant) is in custody and is directed to be released forthwith if not required in any other case. `