SADIQ MAHMUD KHURRAM, J. Rehmat Ali son of Ismail (convict) was tried by the learned Additional Sessions Judge, Fortabbas in the case F.I.R. No. 90 of 2019 dated 18.03.2019 registered at Police Station Marrot, District Bahawalnagar in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Mst. Naseem Bibi daughter of Atta Muhammad (deceased). The learned trial court, vide judgme nt dated 16.09.2019, convicted Rehmat Ali son of Ismail (convict) and sentenced him as infra: Rehmat Ali son of Ismail: Imprisonment for Life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Mst. Naseem Bibi daughter of Atta Muhammad (deceased) and directed to pay Rs.200,000/- as compensation 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 benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was extended to the convict by the learned trial court.
2. Feeling aggrieved, Rehmat Ali son of Ismail (convict) lodged the Criminal Appeal No.553-J of 2019 through jail, assailing his conviction and sentence. Mumtaz Bibi, the complainant of the case, filed Criminal Revision 194 of 2019 seeking the enhancement of the sentence of the convict namely Rehmat Ali son of Ismail. This Court intends to dispose of the Criminal Appeal 553-J of 2019 and Criminal Revision No. 194 of 2019 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by Mumtaz Bibi (PW-1), the complainant of the case, are as under:- "Stated that I am resident of colony of Chak NO.327/H.R. and house hold lady. My husband Atta Muhammad had been died 22/23 years ago. I have three sons and three daughters, who are alive. That 15/16 year ago my daughter Mst. Naseem Bibi was married to Rehmat Ali S/o Ismail and out of their wedlock four children born. After some time my daughter came to my hous e after quarrel with her husband and she was again returned to the house of accused Rehmat Ali. My daughter used to sent me the massages of quarre l. That on 18.03.2019 at about 08:30AM, I alongwith Abdul Rasheed, Naveed Akram my grand son came to the house of my daughter , when we entered into courtyard and saw that accused Rehmat Ali armed with repeater gun was abusing her that he will teach her a lesson of daily quarrel beca use Rehmat Ali had suspicion about the character of my daughter . On seeing us, the accused Rehmat Ali made straight fire with his, repeater gun upon Mst.Naseem Bibi, who after receiving fire shot fell on the ground and accused succeeded to flee away while brandishing his weapon. I along with the Pws rescued my daughter , but she succumbed to the injuries. The accus ed has committed the murder of my daughter without any reason. Hence, I filed the written application Exh.P .A for registration of case."
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Rehmat Ali son of Ismail was sent to face trial. The learned trial court framed the charge against the accused on 08.05.2019, 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 Mum taz Bibi (PW-1) and Abdul Rasheed (PW-2). Mushtaq Ahmad, SI (PW-4) stated that on 18.03.2019, he got recorded the formal F.I.R (Exh.P A/2). Pervez Akhtar 210/C (PW-5) stated that on 18.03.2019, he escorted the dead body of the deceased to the hospital and also received the last worn clothes of the deceased from the Woman Medical Officer after post mortem examination. Muhammad Amin tracer (PW-6) prepared the scaled site plan of the place of occurrence (Exh. P.G.). Muhammad Abbas 23/H.C. (PW-8) stated that on 18.03.2019, the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained earth and empties and on 26.03.2019, he handed over the said parcels to Ehsan Ullah Cheema, SI (PW-7) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore and further stated that on 06.04.2019, the Investigating Officer of the case handed over to him a sealed parcel said to contain a Repeater gun which on 07.04.2019, he handed over the said sealed parcel to Ehsan Ullah Cheema, SI (PW-7) for its onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Azmat Ali, S.H.O. (PW-3) investigated the case from 01.04.2019 till 22.05.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Ehsan Ullah Cheema, SI (PW-7), investigated the case from 18.03.2019 till 01.04.2019, arrested the appellant on 21.03.2019, 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. Farzeen Ashraf (PW-09) examined, who on 18.3.2019 was posted as Woman Medical Officer at T.H.Q. Hospital, Fortabbas and on the same day conducted the postmortem examination of the dead body of Mst. Naseem Bibi daughter of Atta Muhammad (deceased). Dr. Farzeen Ashraf (PW-09), on examining the dead body of Mst. Naseem Bibi daughter of Atta Muhammad (deceased), observed as under:- "Description of injuries: Injury No.1.
There is a lacerated wound measuring 4cm x 4cm with irregular everted margins on the right breast at the level and 2.1cm from right nipple and 4.cm from right axilla. Blackening, bruising and tattooing present.
Injury No.2.
There was round lacerated wound measuring 2x2cm with everted margins on right arm (medial side) 6.5cm from right axilla. Muscle were exposed but not torn.
Opinion: After doing careful examination external and internal examination of dead body , in my opinion, death was caused by injury No.1 which caused damage to right lung. Right lung ruptured, blood collected in the pleural cavity which is sufficient in ordinary course of life to cause death. Probable time between injury and death was within 30 minutes and between death and post mortem approximately 10 hours."
7. On 15.06.2019, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Naveed Akram as being unnecessary . On 13.07.2019 the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore (Exh. P.N.) relating to the analysis of the blood stained earth and the report of the Punjab Forensic Science Agency , Lahore (Exh. P.Q.) related to the comparison of the empties recovered from the place of occurrence and the Repeater gun recovered from the appellant.
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Rehmat Ali son of Ismail, 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 Rehmat Ali son of Ismail opted not to get himself examined unde r 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, Fortabbas, convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the Repeater gun was full of procedural defects, of no legal worth and value, and the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel for the complainant, contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned coun sel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the Repeater gun from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , they prayed for the rejection of the appeal.
12. I have heard the learned counsel for the appellant, the learned Deputy Prosec utor General and with their able assistance, perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2), the eye witnesses of the occurrence. The relationship of both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) with the deceased is on record. Mst. Naseem Bibi (deceased) was the daughter of the prosecution witness namely Mumtaz Bibi (PW-1) and the real sister of the prosecution witness namely Abdul Rasheed (PW-2). Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) were also admittedly not the residents of the place of occurrence. It is an admitted fact that both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2), were residing in their own house, which was situated in the village Chak 327/H.R . whereas the occurrence had taken place in the village Chak 318/H.R. In this manner , both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and they were also under a duty to prove their presence by producing some physical proof of the same. As mentioned above, despite the fact that both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2), were not the residents of the place of occurrence, it was also proved that they could not give any consistent reason as to why they had suddenly planned to go to the house of the deceased on the day of the occurrence. Both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) neither in the written application (Exh. P.A.) nor in their statements recorded by the police nor even before the learned trial court stated as to what made them travel to the house of the deceased on the very day that the occurrence took place and that too at the very time when the occurrence was taking place. Though both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) claimed that the deceased used to send them messages of her quarrel with the appellant but admittedly , no proof of such messages was either brought to the notice of the Investigating Officer of the case or produced before the learned trial court as evidence. Even the bearer of the said alleged messages of the deceased to the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) was not identified nor the mode through which such alleged messages of the deceased were conveyed to the prosecution witnes ses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) was given evidence of. During the investigation of the case and even before the learned trial court no evidence in the shape of Call Data Record (C.D.R.) of the mobile phone number under the use of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) or under the use of Mst.Naseem Bibi (deceased) was produced to establish that any messages of the deceased had been conveyed to the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) which resulted in the departure of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) from their village Chak 327/H.R. to the place of occurrence situated in village Chak No. 318/H.R. Furthermore, Azmat Ali, S.H.O. (PW-3) , the Investigating Officer of the case, also did not collect any evidence during the investigation of the case so as to prove that the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) had indeed been sent any messages by the deceased, which messages then gave reason to the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) to proceed to the place of occurrence. Another very important aspect of the case is that according to the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2), the marriage between the deceased and the appellant had been solemnized without the consent of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) and furthermore, due to this fact, the relationship between the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) and the deceased and the appellant remained strained. Moreover , it was admitted by the prosecution witness namely Mumtaz Bibi (PW-1) that the deceased and her children had been got recovered through court in an application filed under section 491 of the Code of Criminal Procedure, 1898 by the appellant and thereafter had accompanied the appellant. Mumtaz Bibi (PW -1), during cross-examination, admitted as under:- "I cannot tell the names of Nikkah-Khawan as well as witness of Nikkah Nama as my daughter contracted run away marriage in Sindh with the accused Rehmat Ali.
It is correct that Rehmat Ali accused present in the court filed petition u/s 491 Cr.P.C before the court of learned A.S.J., Fort-Abbas. It is correct that Mst.Naseem Akhter my daughter accompanied to accused Rehmat Ali along with her children. " (emphasis supplied)
Similarly , Abdul Rasheed (PW -2) also admitted during cross-examination as under:- "My sister Mst.Nascem Bibi contracted love marriage with the accused Rehmat Ali.
It is correct that accused Rehmat Ali filed application u/s 491 Cr.P.C for production of his wife Mst. Naseem Bibi and his children."
Not only the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) admit during cross- examination that the deceased had contracted marriage with the appellant of her own free will and consent but they also admitted that due to the said marria ge, the brothers of the deceased were much angered. The prosecution witness namely Mumtaz Bibi (PW -1) admitted during cross-examination as under:- "It is correct that F.I.R. U/s 324 PPC was registered against my four sons namel y Majeed, Akram, Rasheed and Haji Khalid (since dead). V olunteered the injuries was caused by the complainant of that case.
It is correct that at that time, Rehmat Ali accused made different applications at different forums against us that he and his wife and children would be murdered by my sons.
Whenever my sons showed any intenti on to kill the accused Rehmat Ali, I requested them to forgive him in the name of Allah Al-mighty ."
Likewise, Abdul Rasheed (PW -2) also admitted during cross-examination as under:- "We had rage of love marriage of my sister .
It is correct that after marriage with Naseem Bibi, accused Rehamat Ali has no visiting terms with us.
My sister Naseem Bibi deceased left four children namely Abdul Rehman aged about 11 years, Sawaira Bibi 9 1/2 years, Javeria Bibi aged about 07 years and Laraiba Bibi is aged about 02 years. I am unable to tell their exact ages as I have not visiting terms with them "
The above referred portion of the cross-examination of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) establishes the fact that the deceased had contracted marriage with the appellant of her own free will and consent and was bless ed with the birth of as many as four children and she was got recovered from the house of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) through an application filed under section 491 of the Code of Criminal Procedure, 1898 and that the brothers of deceased were much annoyed due to the said marriage of the deceased with the appellant therefore, in the presences of all these admitted circumstances, there did not exist any possibility that the deceased would have called the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2). The very inception of the prosecution case is thus, put in doubt. In this manner , both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence. Furthermore, the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) also did not give any evidence as to the mode through which they arrived at the place of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) had proceeded to and arrived at the place of the occurrence and the failure to prove any reason for the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) to have proceeded to the place of occurrence and the failure to prove the mode through which they came to arrive at the place of occurrence, has vitiated the trust of this Court in Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2). I, thus, am satisfied that the evidence of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) has no intrinsic worth and is to be rejected out rightly . In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State"
(2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant, Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore, the said eye-witne sses , being chance witnesses, were declared not worthy of reliance.
Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. This Court has also perused the scaled site plan of the occurrence (Exh. P.G.) as prepared by Muhammad Amin, tracer (PW-6) and the rough site plan of the place of occurrence (Exh. P.K.) as prepared by Ehsan Ullah Cheema, SI (PW-7) and finds that in both the site plans, (Exh. P.G. and Exh. P.K.), the place of occurrence has been mentioned as a room whereas the house where the occurrence took place has been shown to be surrounded by a boundary wall. Both the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) stated that when they entered the courtyard of the house, they witnessed the occurrence and never stated that actually , the occurrence had taken place inside a room and not inside the courtyard of the house.
15. This Court has also noted that according to the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2), the occurrence took place only when they had arrived at the place of occurrence and at the very moment of their arrival. The coincidence of the simultaneous arrival of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) at the place of occurrence at the very instant when the occurrence was taking place, from a far off village, at the exact relevant moment, is a coincidence too rare to be believed in the absence of strong proof of the same, which proof, provenly lacked in the instant case. 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."
This narrative of the witnesses that the accused, despite being observant of the fact that the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2), were present inside the house where the occurrence took place, still committed the same, is atypical and cannot be believed. It is opposed to human conduct that an assailant would, despite having the knowledge of the presence of the witnesses, proceed with the commission of the offence. It is all the more illogical that being perceptive of the chance and rare presence of the witnesses, the accused ran the risk of committing the offence in their presence. Such behavior , on part of the accused, as deposed by the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) runs counter to natural human conduct and behavior . Hence, being perceptive of this strain of human conduct, I am holding that the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence.
16. It is also an admitted fact of the prose cution case that the place of occurrence was occupied by the other family members of the Mst. Naseem Bibi (deceased). The prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2), in their statements before the learned trial court, stated that Mst. Naseem Bibi (deceased) was blessed with the birth of four children who were living in the same house where the occurrence took place. In her statement before the learned trial court, Mumtaz Bibi (PW -1) stated as under:- "That 15/16 year ago my daughter Mst. Naseem Bibi was married to Rehmat Ali S/o Ismail and out of their wedlock four children born."
Similarly , the prosecution witness namely Abdul Rasheed (PW-2) in his statemen t before the learned trial court, stated as under:- "That 15/16 year ago my sister Mst.Naseem Bibi was married to Rehmat Ali S/o Ismail and out of their wedlock four children born.
My sister Naseem Bibi deceased left four children namely Abdul Rehman aged about 11 years, Sawaira Bibi 9 1/2 years, Javeria Bibi aged about 07 years and Laraiba Bibi is aged about 02 years . I am unable to tell their exact ages as I have not visiting terms with them and now they are living with the house of accused." (emphasis supplied)
Neither during the course of investigation nor before the learned trial court, the statements of the children of Mst.
Naseem Bibi (deceased), who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence, were recorded. Azmat Ali, S.H.O. (PW-3), the Investigating Officer of the case, admitted during cross-examination as under:- "Daughters and son of deceased were not associated by me in investigation, though they were residing with the deceased." (emphasis supplied)
Similarly , Ehsan Ullah Cheema, SI (PW-7), another Investigating Officer of the case, admitted during cross- examination as under:- "I have not associated in investigation the children of accused as they were of tender age. I cannot tell the age of children of deceased. I never met the children of deceased for the purpose of investigation." (emphasis supplied)
This failure of Azmat Ali, S.H.O. (PW-3) and Ehsan Ullah Cheema, SI (PW-7), the Investigating Officers of the case, to include in the investigation the inhabitants of the house where the occurrence had taken place and the failure of the prosecution to produce the said inhabitants 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 presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order , 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The failure of the prosecution to produce the residents of the place of occurrence and the most natural witnesses before the learned trial court, has convinced this Court that had they been produced before the learned trial court, they would not have supported the prosecution case. Reliance in this matter is placed on the case of SHAMSHAD 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.
17. I have also noted that according to the formal F.I.R (Exh.P A/2), the prosecuti on witness namely Mumtaz Bibi (PW-1) submitted the written application (Exh. P.A.) at the Police Station on the basis of which the formal F.I.R (Exh.P A/2) was recorded, however , the prosecution witness namely Mumtaz Bibi (PW-1) stated during cross- examination that she never moved any written application for the registration of F.I.R rather had told the occurrence to the police orally . Mumtaz Bibi (PW -1) during cross-examination stated as under:- "We departured (sic) to the place of occurrence at about 08:30AM and we reached at the house of accused Rehmat Ali at about 09:00AM. We informed the police about the occurrence and there after police reached at the spot and escorted the dead body of deceased . We returned to our home at about 10/11AM. We reached at the police station at about 10:00AM as we started the journey from 09:00AM. I orally informed the police about the occurrence and they direct ed to me to go to home . My sons remained with the dead body of deceased." (emphasis supplied)
The above referred portion of the cross-examination of the prosecution witness namely Mumtaz Bibi (PW-1) clearly shows that the formal F.I.R (Exh.P A/2) was registered after the police had arrived at the place of the occurrence and had taken the dead body of the deceased from the same. The above referred portion of the cross-examination of the prosecution witness namely Mumtaz Bibi (PW-1), also proves that the written application (Exh. P.A.) was never submitted by Mumtaz Bibi (PW-1). It is also a fact that the written application (Exh. P.A.) did not mention on it any time of receiving of the same. Mushtaq Ahmad, SI (PW -4) admitted during cross-examination as under:- "It is correct that at Exh.P .A no time is mentioned for receiving the said applicat ion. Similarly no time regarding registration of case mentioned in Exh.P .A. "
Hence, it is proved that the formal F.I.R (Exh.P A/2) was prepared after probe, consultation, planning, investigation and discussion and was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and compromised document.
18. This Court has also noted with disquie t that despite the fact that the occurrence took place at about 08.30 a.m. on 18.03.2019 , the postmortem examination of the dead body of the deceased was conducted after much delay .
According to Dr.Farzeen Ashraf (PW-9), she conducted the post mortem examination of the dead body of Mst.
Naseem Bibi on 18.03.2019 at 07.00 p.m. i.e, after as many as ten hours after the death of Mst. Naseem Bibi daughter of Atta Muhammad . Accordi ng to Dr.Farzeen Ashraf (PW-9) the time between the post mortem examination of the dead body of the dece ased and the death of the deceased was determined by her to be about ten hours . Furthermore, Dr .Farzeen Ashraf (PW -9), in her statement before the learned trial court stated as under:- "Complete documents received on 18.03.2019 at about 06:45Pm and autopsy was conducted on 07:00P m dated 18.03.2019."(emphasis supplied)
The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Mst.
Naseem Bibi daughter of Atta Muhammad is that by that time, the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion a false narrative of the occurrence. No explanation was offered to justify the said delay in conducting the post mortem examination and also the delay in submission of the police papers. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence were not present at the time of occurrence and the delay in the post mortem examinations was used to procure their attendance and 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 the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and 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 post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem 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."
19. Another noticeable flaw in the prosecution case is the fact that Dr. Farzeen Ashraf (PW-9), who conducted the post mortem examination of the dead body of Mst. Naseem Bibi, on 18.03.2019 at 07.00 p.m., did not observe the presence of any entry wound on the dead body of the deceased but rather noted wounds which had everted margins . Dr. Farzeen Ashraf (PW-09), on examining the dead body of Mst. Naseem Bibi daughter of Atta Muhammad (deceased), observed as under:- "Description of injuries: Injury No.1.
There is a lacerated wound measuring 4cm x 4cm with irregular everted margins on the right breast at the level and 2.1cm from right nipple and 4.cm from right axilla.. Blackening, bruising and tattooing present.
Injury No.2.
There was round lacerated wound measuring 2x2cm with everted margins on right arm (medial side)6.5cm from right axilla. Muscle were exposed but not torn." (emphasis supplied)
The prosecution witnesses never explained this aspect and the discrepancy . Furthermore, Dr. Farzeen Ashraf (PW- 9) also opined that the injuries observed by her on the body of Naseem Bibi (dece ased) had apertures of different dimensions and gave her opinion that the injuries could have been caused by different weapons. During cross- examination Dr .Farzeen Ashraf (PW -9) stated as under:- "Almost there is double dimension of injury No.1 from injury No.2. May be the weapon of offence used to injury No.2 is dif ferent from injury No. 1. " (emphasis supplied)
The above referred opinion of Dr. Farzeen Ashraf (PW-9) also militates against the evidence as given by the prosecution witnesses namely Mumtaz Bibi (PW -1) and Abdul Rasheed (PW -2) .
20. It has been argued by the learned Deputy Prosecutor General that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prose cution asserts the presence of some eye-witnesses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a perso n had taken place in his house, therefore, it must be he and none else who would have committed that murder . The learned Deputy Prosecutor General submits that it was in the knowledge of the appellant how the 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 commission of the crime for which he is charged. The said provision provides: "117. Burden of proof:- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly , the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under: "122. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him."
It has to be kept in mind that Article 122 of the Qanun e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun - e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of "Rehmat alias Rahman alias Waryam alias Badshah v. The State" (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanun e- Shahadat, 1984, it held as under: "Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however , the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
The ratio decidendi of the above decision was further developed by in the case of "NASRULLAH alias NASRO Versus The ST ATE (2017 SCMR 724 ), wherein, it held as under: "It has been argued by the learned coun sel for the complainant that in the case s of Arshad Mehmood v. The State (2005 SCMR 1524 ) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circums tances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the circumstance s of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder .
In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased."
In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun e-Shahadat, 1984 is certainly not intended to relieve it of that duty. On the contrary , it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are " especially " within the knowledge of the accused and which he could prove without difficulty or inconvenience.
If the article was to be interpreted otherwi se, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. The article 122 of the Qanun e-Shahadat, 1984 cannot be used to undermine the well- established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. Throughout the web of the Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the 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 witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be the one of the residents of the place of occurrence. An accused person cannot be convicted merely because he did not explain the circumstances in which the deceased had lost 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. We have found such an approach adopted by the courts below to be nothing but speculative".
The august Supreme Court of Pakistan has held in the case of "Arshad Khan vs. The State" (2017 SCMR 564) as under: "It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524 ) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all."
The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628 ) as under: "It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death.
These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v.
The State (2005 SCMR 1524 ), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710 )."
The august Supreme Court of Pakistan has held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681) as under: "It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524 ) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been 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."
21. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the Repeater gun made from the appellant and have submitted that it offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2). The recovery of the Repeater gun from the appellant namely Rehmat Ali cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the Repeater gun from the appellant namely Rehmat Ali, resident of the area around the place of recovery to witness the same, which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898.
Azmat Ali, S.H.O. (PW-3), the Investigatin g Officer of the case, in his statement before the learned trial court stated as under:- "No person from the surrounding of the place of recovery was associated at the time of recovery in recovery ."
The provisions of this section, unfortunately , are honoured more in disuse than compliance. To appreciate it better , this section is being reproduced:- "103.--(1) Before making a search. under this chapter , the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
Therefore, the evidence of the recovery of the Repeater gun from the appellant cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898 ) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
I have also noticed that the Repeater gun was shown to have been recovered on 05.04.2019 from the same house where the occurrence had taken place on 18.03.2019 . Abdul Rasheed (PW-2) in his statement before the learned trial court stated as under:- "On 05.04.2019 during investigation the accused Rehmat Ali made disclosure that he can get recover the weapon of offence and took us along-with police to his house and he got recovered repeater 12-bore from the box lying in a room " (emphasis supplied)
Similarly , Azmat Ali, S.H.O. (PW-3), the Investigating Officer of the case, in his statement before the learned trial court stated as under:- "On 05.04.2019 accused Rehmat Ali during investigation made disclosure regarding weapon of offence and in sequel of his disclosure, led us to the place of recovery in the area of Chak No.318/H.R. and while entering into his house got recovered pump action 12-bore along with one cartridge from his residential room for which he cannot produce its license." (emphasis supplied)
The padding of the prosecution case by showing a false recovery of the Repea ter gun on 05.04.2019 from the same house where the occurrence took place on 18.03.2019 is obvious. Ehsan Ullah Cheema, SI (PW-7), the Investigating Officer of the case, spent substantial time at the place of occurrence on 18.03.2019 and also made certain recoveries of articles present there and in that manner had the Repeater gun been present at the same house where the occurrence took place, then the same would have definitely been observed by Ehsan Ullah Cheema, SI (PW-7), the Investigating Officer of the case, however , it was not. It simply cannot be believed that the Repeater gun was recovered on 05.04.2019 from the same house where the occurrence had taken place on 18.03.2019. Moreover , the appellant namely Rehmat Ali son of Ismail was arrest ed on 21.03.2019 , however the empties taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency , Lahore on 27.03.2019 . There was no reason for keeping the empties, which were taken into possession on 18.03.2019 , at the Police Station and not sending them to the office of Punjab Forensic Scien ce Agency , Lahore till after the appellant had been arrested. In this manner , the said report of Punjab Forensic Science Agency , Lahore. (Exh.
P.Q.) has no evidentiary value as the possibility of fabrication is apparent. Reliance is placed on the case of Muhammad Amin Vs. The State and another (2019 SCMR 2057 ) wherein the august Supreme Court of Pakistan has held as under:- "Interestingly , two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circu mstances, the positive report of F.S.L. is of no avail to the prosecution and is inconsequential."
Therefore, the recovery of the Repeater gun from the appellant does not further the case of the prosecution in any manner . In view of the above-mentioned facts, the alleged recovery of the Repeater gun is not proved and the same cannot be used as a circumstance against the appellant. Even otherwise, as this Court has disbelieved the ocular account in this case, hence the evidence of recovery of the Repeater gun would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable, then the recovery has no evidentiary value.
22. The learned Deputy Prosecutor General 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 the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) was that the appellant had doubt over the character of the deceased. I have perused the statements of the prosecution witnesses and find that the prosecution failed to prove the motive of the case as alleged. As mentioned above, the deceased had married the appellant of her own free will and consent and it was admitted by the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) that the brothers of the deceased were much angered by the said marriage of the deceased with the appellant and it was also admitted by the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) that the appellant got the deceased and his children recovered from the custody of the prosecution witnesses namely Mumtaz Bibi (PW-1) and Abdul Rasheed (PW-2) prior to the occurrence and the deceased had chosen to accompany the appellant when produced before the court during the proceedings of the application under section 491 of the Code of Criminal Procedure, 1898 as filed by the appellant and it was also admitted that the prosec ution witness namely Abdul Rasheed (PW-2) and his brothers had to be restrained by Mumtaz Bibi (PW-1) from murdering the appellant over the dispute of the marriage of the deceased with the appellant. Even on the day of occurrence, the deceased was living with the appellant. It has also been mentioned above that the appellant and the deceased were blessed with the birth of as many as four children and the whole family was living together even on the day of the occurrence. There is no evidence on record that Mst.
Naseem Bibi (deceased) was facing any threat to her life at the hands of the appellant prior to the occurrence instead, to the contrary , she was living a happy matrimonial life with the appellant till her tragic death. 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 haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution 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."
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable, then motive and recovery have no evidentiary value and lost their significance.
23. Considering all the above circumstan ces, this Court entertains serious doubt regarding the involvement of the appellant namely Rehmat Ali son of Ismail 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 circum stances rather , if only a single circumstance creating reasonable doubt in the mind of a prudent person is available, then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan, in the case of "Muhammad Mansha Vs. The State" ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of 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 that ten guilty persons escape, than that one innocent suffer ." Benjamin Franklin, 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 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."
24. For what has been discussed above Criminal Appeal No.553-J of 2019 lodged by Rehmat Ali son of Ismail (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 16.09.2019 are hereby set-aside. Rehmat Ali son of Ismail (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Rehmat Ali son of Ismail (appellant) is in custody and is directed to be released forthwith if not required in any other case.
25. Pursuant to the discussion made and conclusions arrived at above, the Criminal Revision No. 194 of 2019, seeking the enhancement of the sentence of the accused namely Rehmat Ali son of Ismail, is hereby dismissed.