SADIQ MAHMUD KHURRAM, J. Abdul Khaliq son of Muhammad Hanif (convict) by the learned Additional Sessions Judge, Hasilpur in the case FIR No. 382 of 2019 dated 22.08.2019 registered in respect of an offence under section 302 P.P.C. at the Police Station City Hasilpur , District Bahawalpur for committing the Qatl-i-Amd of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased) and Mst. Naeem Akhtar daughter of Yousaf Ali (deceased). The learned trial court, vide judgment dated 27.11.2020, convicted Abdul Khaliq son of Muhammad Hanif (convict) and sentenced him as infra: Abdul Khaliq son of Muhammad Hanif: Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased) and Mst. Naeem Akhtar daughter of Yousaf Ali (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Abdul Khaliq son of Muhammad Hanif (convict) lodged Criminal Appeal No.283-J of 2020, though jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.14 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Abdul Khaliq son of Muhammad Hanif. We intend to dispose of the Criminal Appeal No.283-J of 2020 and Murder Reference No.14 of 2020 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by Waqas Mahmood (PW-7), the complainant of the case, are as under:- "My sister Naeem Akhtar was married with Abdul Khaliq son of Muhammad Hanif r/o ward NO. 17, Hasikpur in the year 2002 Two children were born during subsistence of marriage namely Arooba Fatima and Arfa Ali who are alive. Abdul Khaliq went abroad (Saudi Arabia) two years prior to the occurrence, he returned on Eid-ul-Azha in year 2019. My maternal aunt Mst. Nasreen was living with my sister and my brothe r in law (behnoi) used to quarrel with sister and maternal aunt on issue that my maternal aunt Nasreen purchased a house from the money sent by him from abroad and he insisted to transfer the same in his name. There was alternation (sic) between them from 2/3 days. In the intervening night of 21/22.8.2019 I went to the house of my sister and aunt in Ghareb Mohallah and try to reconcile but he insisted upon to transfer the house in his name. Accused asked us to settle the matter tomorrow . I along with sister , family and aunt put cots in the court yard and slept. At about 3:30 a.m., I wake up on the noise of my sister and put the light on and saw that the accused Abdul Khaliq had a Sairu in his hand. On the noise of me and my sister PWs Wahid Bakhsh and Zahoor came there. Meanwhile accused Abdul Khaliq inflicted the blow of Sairu at the head of Nasreen Bibi which hit on her head and she was lying on the cot. Accused made second blow on the head of my aunt, my sister tried to stop him but the accused made a blow of Sairu at the head of my sister and blood started oozing from her head and she fell on the cot. Accused further hit blows on the head of my sister . Those blows were also hit at the head of my sister . I and PWs tried to catch the accused but he succeeded to escape away . We tried to rescue my sister and maternal aunt but both were succumbed to the injuries. Accused had committed murder of my sister and aunt for not transferring the house in his name Thereafter police came at the place of occurrence. Shamas SI recorded my statement EXh.PM which was read over to me and I put my signature EXh.PM/1. After completing the proceedings, he took the dead bodies to hospital. After post mortem, I received the dead bodies vide receipt EXh.PN and EXh.PP . On 8.9.2019, I delivered two copies of stamp papers to Shamas Din SI who took the same into possession vide recovery memo."
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 was sent to face trial. The learned trial court framed the charge against the accused on 27.1 1.2019, 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 thirteen witnesses recorded. The ocular account of the case was furnished by Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8). Muhammad Nasir 829/C (PW-1) stated that on 22.08.2019, Muhammad Mazhar Iqbal 2104/C (PW-10) took six photographs (P-1/1-6) of the dead body which were taken into possession by Shamas Din, S.I. (PW-13). Muhammad Abbas ASI (PW-2) stated that on 22.08.2019, Shamas Din, S.I. (PW-13) handed over to him two sealed parcels said to contain blood stained earth and four envelopes with two sealed parcels bearing the stamp of THQ Hospital, Hasilpur and on 25.08.2019, he handed over the said parcels to Shamas Din, S.I. (PW-13) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore and further stated that on 27.09.2019, he handed over the Saroo (P-13) and the blood stained clothes of the appellant to Muhammad Boota, 1409/HC (PW-3). The prosecution witness namely Muhammad Boota, 1409/HC (PW-3) stated that on 27.09.2019, Muhammad Abbas ASI (PW-2) handed over to him the Saroo (P-13) and the blood-stained clothes of the appellant and on the same day, he handed over the said articles to Shamas Din, S.I. (PW-13) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Mst. Sajida Parveen 32/LC (PW-4) stated that on 22.08.2019, she escorted the dead bodies of the deceased to the hospital. Abdul Ghafoor 90/C (PW-6) also stated that on 22.08.2019, he escorted the dead bodies of the deceased to the hospital and also received the last worn clothes of the deceased from the Woman Medical Officer. Muhammad Hamza (PW-9) stated that he prepared the scaled site plan of the place of occurrence (Exh.PX). Muhammad Razzaq, ASI (PW-12) stated that on 22.08.2019, he recorded the formal F.I.R (Exh.PY). Naseeb Ahmed, S.I. (PW-11) investigated the case from 15.01.2020 till 29.01.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Shamas Din, S.I. (PW-13) investig ated the case from 22.08.2019 till 16.10.2019, arrested the appellant on 03.09.2019, 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.Zoha Arshad (PW-5) examined, who on 22.08.2019, was posted as Woman Medical Officer at THQ hospital Hasilpur and on the same day conducted the postmortem examination of the dead body of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased). Dr.Zoha Arshad (PW-5), on examining the dead body of Mst. Nasreen Bibi daughter of Taj Muhammad (deceased) observed as under:- "EXTERNAL INJURIES
1. A large lacerated wound of size 8cm x 4 cm x brain matter coming out from bone present on frontal area of scalp.
2. A large lacerated wound of size 10 cm x 3 cm brain matter coming out from bone present on right parietal area of scalp.
3. A lacerated wound of size about 6cm x 3 cm x brain matter coming out from bone present on the top of mid part of scalp...
Probable time that elapsed a. Between injury and death within few minutes b. Between death and post mortem 7/8 hours OPINION After thorough external and internal exam ination of the dead body , I am of the opinion that above described injuries NO.1,2 & 3 are the main cause of death. These injuries lead severe damage to the vital organ (brain) of the body ., These injuries are caused by some blunt weapon, however , various samples from body organs are taken, sealed and sent to the PFSA, Lahore for histopathology and chemical examination.
LAB EXPER T REPOR TS Vide Toxicology analysis report from PFSA NO.2019-248315T OX-13994 dated 4.10.2019. Opinion can't be expressed Vide Histopathology analysis report from PFSA NO 2019 248315-P ATH-07172. PATH 14915 dated 4.11.2019 "Histological examination of the heart sections reveals patent coronaries, the myocardial sections reveals no pathological changes. The lung sections reveals vascular congestion and presence of haemorrhages inside alveoli.
The Meninges and brain tissues are congested. There is associated haemorrhag ic necrosis of brain tissue with cerebral oedema and presence of blood clots. Histological examination of the hyoid bone reveals intact hyoid bone.
No ante mortem injury is seen"
FINAL OPINION So in the light of above reports received from PFSA, Lahore, the cause of death is injury to the brain which leads to concussion and damage to brain and skull bonds leading to neurological shock and necrosis and ultimately leads to death. Such type of injuries is usually suf ficient in ordinary course of nature to cause death."
On the same day conducted the postmortem examination of the dead body of Mst. Naeem Akhtar daughter of Yousaf Ali (deceased). Dr. Zoha Arshad (PW-5), on examining the dead body of Mst. Naeem Akhtar daughter of Yousaf Ali (deceased) observed as under:- "EXTERNAL INJURIES
1. A large lacerated wound of size 6cm x 3 cm x brain matter coming out from bone present on frontal area of scalp.
2. A large lacerated wound of size 8 cm x 3 cm x brain matter coming out from bone present on mid part of scalp.
(blood clots present on both nostrils)
OPINION After thorough external and internal exam ination of the dead body , I am of the opinion that above described injuries NO. 1 & 2 are the main cause of death. These injuries lead severe damage to the vital organ (brain) of the body ., These injuries are caused by some blunt weapon, however , various samples from body organs are taken, sealed and sent to the PFSA, Lahore for histopathology and chemical examination.
LAB EXPER T REPOR TS Vide Toxicology analysis report from PFSA NO.2019-248315 TOX-13994 dated 4.10.2019. Opinion can't be expressed Vide Histopathology analysis report from PFSA NO.2019-248315-P ATH-07172. P ATH 14977 dated 4.1 1.2019 "Histological examination of the heart sections reveals patent coronaries, the myocardial sections reveals no pathological changes. The lung sections reveals vascular congestion and presence of haemorrhages inside alveoli.
The Meninges and brain tissues are congested. There is associated haemorrhag ic necrosis of brain tissue with cerebral oedema and presence of blood clots. Histological examination of the hyoid bone reveals intact hyoid bone.
No ante mortem injury is seen'
FINAL OPINION So in the light of above reports received from PFSA, Lahore, the cause of death is injury to the brain which leads to concussion and damage to brain and skull bonds leading to neurological shock and necrosis and ultimately leads to death. Such type of injuries is usually suf ficient in ordinary course of nature to cause death."
7. On 22.10.2020, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Zahoor Ahmed as unnecessary . On 19.11.2020, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency , Lahore (Exh. PBB, Exh. PCC, Exh. PDD, Exh.PEE and Exh.PFF).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Abdul Khaliq son of Muhammad Hanif under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Abdul Khaliq son of Muhammad Hanif 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, Hasilpur 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 Saroo (P-13) was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. 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 submitte d that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel appearing on behalf of the complainant contended that the prosecution had proved its case beyond the 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 corrobor ated the statements of Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8). They further argued that the recovery of the Saroo (P-13) from the appellant namely Abdul Khaliq son of Muhammad Hanif also corroborated the ocular account. They further 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 , the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellant namely Abdul Khaliq son of Muhammad Hanif.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant and with their able assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Waqas Mahm ood (PW-7) and Wahid Bakhsh (PW-8), the eyewitnesses of the occurrence. The relationship of the prosecution witness namely Waqas Mahmood (PW-7) with the deceased is on record. The deceased namely Mst. Naeem Akhtar daughter of Yousaf Ali was the sister of Waqas Mahmood (PW-7) and the deceased namely Mst. Nasreen Bibi daughter of Taj Muhammad was the maternal aunt of Waqas Mahmood (PW-7). It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) were indeed not the residents of the place of occurrence or any place near the same. According to the prosec ution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), the occurrence took place in Ghareeb Mohallah, whereas the prosecution witness namely Waqas Mahmood (PW-7) was the resident of Azizabad Colony , which was at a distance of as much as 04-kilometres from the place of occurrence. Waqas Mahmood (PW-7) during cross- examination stated as under:- "Distance between my house and house of accused is about 4/4 1/2 k.m."
The prosecution witness namely Wahid Bakhsh (PW-8) also admitted during cross- examination that he was not the resident of the house where the occurrence took place rather , he resided in his own house, which was at a distance of 7-8 houses away from the house where the occurrence took place. The prosecution witness namely Wahid Bakhsh (PW -8) during cross examination stated as under:- "My house is situated at a distance of 7/8 houses from the house of accused. I know Zahoor Ahmad PW 4/5 months prior to the occurrence. My house is situated at a distance of four kanals from the house of this Zahoor Ahmad PW . House of Zahoor PW is situated at a distance of 1 1/2 kanal from the house of accused Abdul Khaliq."
The above-referred portions of the cross-examination of the prosecution witnesses namely Waqas Mahmood (PW- 7) and Wahid Bakhsh (PW-8) reflect that the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) (PW-10) 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 were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses, namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), failed miserably to provide any consistent evide nce as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence, when the same was taking place on the night of 22.08.2019 at about 03:30 a.m. According to the statement of the prosecution witness namely Waqas Mahmood (PW-7), the complainant of the case, the reason for him going to the place of occurrence was that two days before the occurrence, an altercation had taken place between the deceased namely Mst. Naeem Akhtar , the sister of Waqas Mahmood (PW- 7) and the appellant over the transfer of the house in the name of the appellant and therefore, the prosecution witness namely Waqas Mahmood (PW-7) had gone to the house of his deceased sister namely Mst. Naeem Akhtar to resolve the dispute between the spouses. A dispassionate analysis of the prosecution evidence reveals that the prosecution witness namely Waqas Mahmood (PW-7) failed to prove the stated reason for him to have gone to the place of occurrence. Waqas Mahmood (PW-7) in his statement before the learned trial court, gave the reason for his going to the house of Mst. Naeem Akhtar , deceased, as under:- "There was alternation between them from 2/3 days. In the intervening night of 21/22.8.2019 I went to the house of my sister and aunt in Ghareb Mohallah and try to reconcile but he insisted upon to transfer the house in his name." (emphasis supplied)
Contrary to the claim of the prosecution witness namely Waqas Mahmood (PW-7) that due to an altercation between the appellant and Mst. Naeem Akhtar two days prior to the occurrence , he had gone to the matrimonial house of Mst. Naeem Akhtar to resolve the matter , the other prosecution witness namely Wahid Bakhsh (PW-8) stated that after the occurrence, the prosecution witness namely Waqas Mahmood (PW-7) told him that the quarrel between Mst. Naeem Akhtar (deceased) and the appellant had taken place two years before the occurrence. The prosecution witness namely W ahid Bakhsh (PW -8) during cross examination, stated as under:- "Waqas told me that the accused and his wife quarreled two years ago before the occurrence and the complainant compromised the matter ." (emphasis supplied)
The relevancy of the above referred statement of the prosecution witness namely Wahid Bakhsh (PW-8) is all the more significant for the fact that the above-mentioned fact that the altercation between Mst. Naeem Akhtar (deceased) and the appellant had taken place two years ago the occurrence was told to the prosecution witness namely Wahid Bakhsh (PW-8) by the prosecution witness namely Waqas Mahmo od (PW-7) after the occurrence himself and had the argument between Mst. Naeem Akhtar (deceased) and the appellant had taken place two/three days before the occurrence, as suggested by prosecution witness namely Waqas Mahmood (PW-7), then the said fact would have been told by the prosecution witness namely Waqas Mahmood (PW-7) to the prosecution witness namely Wahid Bakhsh (PW-8) however , it was not, fully denuding the false reason given by the prosecution witness namely W aqas Mahmood (PW -7) for his arrival at the place of occurrence.
14. We have also noted that the prosecu tion witness namely Waqas Mahmood (PW-7), not only could not prove the reason for his arrival at the place of occurrence, prior to the occurrence but also failed to prove that he had woken up prior to the occurrence, which enabled him to witness the same. According to the prosecution witness namely Waqas Mahmood (PW-7), he was sleeping before the occurrence and woke up due to the argument taking place between Mst. Naeem Akhtar (deceased) and the appellant. The prosecution witness namely Waqas Mahmood (PW -7) in his statement before learned trial court claimed as under:- "I along with sister , family and aunt put cots in the court yard and slept. At about 3:30 a.m., I wake up on the noise of my sister and put the light on and saw that the accused Abdul Khaliq had a Sairu in his hand." (emphasis supplied)
Contrary to the claim of the prosecution witness namely Waqas Mahmood (PW-7), that he was sleeping before the occurrence and woke up due to the argument taking place between Mst. Naeem Akhtar (deceased) and the appellant, the prosecution witness namely Wahid Bakhsh (PW-8), stated that when he entered the house where the occurrence was taking place, after being attracted there due to the hue and cry, he saw that Mst. Naeem Akhtar (deceased) was sleeping . The prosecution witness namely Wahid Bakhsh (PW-8) during his cross examin ation, stated as under:- "Accused threatened us left (sic) the house otherwise he will hit us with Sairu. Despite that we remained standing inside the house. Five cots were placed in the courtyard. At that time, Waqas complainant & accused Abdul Khaliq were awakened while Naeem Akhtar was lying on the cot. Waqas complainant and accused were awakened while the remaining were lying on their cots. The complainant was standing in the Warranda When we entered into the house of accused, the bulb was already on. The button of bulb was inside the Warranda. When accused threatened us that he would hit us, he remained standing at his place when we exchanged hot words with the accused, Naeem Akhtar deceased remained sleeping.
I have not heard the accused and his wife quarreling before the occurrence." (emphasis supplied)
The above referred portion of the cross examination of the prosecution witness namely Wahid Bakhsh (PW-8) lays bare the false claim of the prosecution witness namely Waqas Mahmood (PW-7) that he woke up after hearing the altercation between Mst. Naeem Akhtar (deceased) and the appellant. According to the statement of the prosecution witness namely Wahid Bakhsh (PW-8), when he and Zahoor Ahmad (given up prosecution witness) entered the house where the occurrence was taking place, even at that time Mst. Naeem Akhtar (deceased) was sleeping . It is apparent that, even at the time when the prosecution witnesses namely Wahid Bakhsh (PW-8) and Zahoor Ahmad (given up prosecution witness) entered the house where the occurrence was taking place, Mst.
Naeem Akhtar (deceased) was sleeping and therefore, the statement of the prosecution witness namely Waqas Mahmood (PW-7) cannot be believed that he woke up after hearing the quarrel between Mst. Naeem Akhtar (deceased) and the appellant and thereafter , saw the occurrence. Furthermore , according to the prosecution evidence the dead body of Mst. Naeem Akhtar (deceased) was found present on the same cot where she had been sleeping though it had been claimed by the prosecution witness namely Waqas Mahmood (PW-7) that when the appellant hit Mst. Nasreen Bibi (deceased), Mst. Naeem Akhtar (deceased) proceeded from her cot towards the appellant to protect Mst. Naeem Akhtar (deceased). Had Mst. Naeem Akhtar (deceased) proceeded from her cot towards the appellant to protect Mst. Naeem Akhtar (deceased) then her dead body would have not been found present on the cot where she had been sleeping, especially in the circumstances that there had been placed two other cots between the cots of Mst. Nasreen Bibi (deceased) and Mst. Naeem Akhtar (deceased). This fact also proves that the prosecution witness namely Waqas Mahmood (PW-7) had not seen the occurrence otherwise he would not have deposed as above or would have deposed in a manner which would have been consistent with the other circumstances. In this manner , the prosecution witness namely Waqas Mahmood (PW-7), firstly could not prove the reason for his arrival at the place of occurrence and secondly also failed to prove that he had woken up on the night of occurrence prior to the occurrence, which enabled him to witness the occurrence.
15. We have also perused the statement of prosecution witness namely Wahid Bakhsh (PW-8) and find that he too, could not prove that he had arrived at the place of occurrence, prior to the occurren ce and witnessed the same. It is true that no enmity of the prosecution witness namely Wahid Bakhsh (PW-8), with the appellant was brought on record however , it is equally true that the mere fact that a witness is not related to the deceased or the complainant of the case, is not the sole criteria to judge his independence or to accept or reject his testimony , rather the true test is whether the evidence of a witness is credible and consistent with the circumstances of the case or otherwise. This is a well-known principle of appreciation of evidence that a witness to be relied upon, apart from being independent and disinterested, must be truthful and his evidence must be confidence inspiring and the mere fact that a witness is disinterested or has no motive to falsely implicate an accuse d in the case, can never be the sole reason believe his testimony . Relia nce is placed on the case of "Lal Khan Vs. The State" (2006 SCMR 1846 ). The claim of the prosecution witness namely Waqas Mahmood (PW-7) was that on the night of occurrence, at about 03:30 a.m., for no apparent reason, he woke up and left his house in the dead of the night on a motorcycle when he heard hue and cry coming out of the house where the occurrence took place and thereafter , in the company of Zahoor Ahmad (given up prosecution witness) he proceeded to enter into the house where the occurrence was taking place and saw the same. During the whole statement recorded by the learned trial court, the prosecution witness namely Wahid Bakhsh (PW-8) gave no reason at all that what had prompted him to leave his house in the dead of night. The prosecution witness namely Wahid Bakhsh (PW-8) during cross examination, stated as under:- "I took meal at my house and thereafter I slept there. I did not receive any call of the complainant Waqas. I woke up at 3:15 a.m. Zahoor PW was coming towards Awan chowk when I saw him. We met at about 3:25/27 a.m. Zahoor PW came from eastern side while I came from western side at Awan chowk. Street at the house of Abdul Khaliq accused is north to south. I and Zahoor PW met together at Awan chowk Said place was situated at a distance of one house from the house of accused. We heard noise of complainant Waqas and Naeem Akhtar sister of the complainant . I and Zahoor Ahmad PWS heard the noise from the house."
Contradicting the above referred statement that the prosecution witness name ly Wahid Bakhsh (PW-8) was attracted to the place of occurrence after hearing the hue and cry of the prosecution witness namely Waqas Mahmood (PW-7) and Mst. Naeem Akhtar (deceased), as mentioned above, the prosecution witness namely Wahid Bakhsh (PW-8) himself then claimed that at the time when they had entered the house where the occurrence took place, Mst. Naeem Akhtar (deceased) was sleeping. Wahid Bakhsh (PW-8) during cross examination, stated as under:- "When we exchanged hot words with the accused, Naeem Akhtar deceased remained sleeping.
I have not heard the accused and his wife quarreling before the occurrence." (emphasis supplied)
When the prosecution witness namely Wahid Bakhsh (PW-8) himself admitted that he had not heard Mst. Naeem Akhtar (deceased) quarreling with the appellant and also admitted that when he entered the place of occurrence, Mst. Naeem Akhtar (deceased) was sleeping, then his claim that he was attracted to the house where the occurrence took place on the hue and cry of Mst. Naeem Akhtar (deceased) is proved to be a false claim.
Moreover , as mentioned above, the prosecution witness namely Wahid Bakhsh (PW-8) could not provide any reason as to what made him leave his house in the dead of night and proceed toward the house where the occurrence was taking place.
16. We have also noted with disquiet that though, it was claimed by the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) that they had gone to the place of occurrence on motorcycles, however , during the course of the investigation, as well as before the learned trial court, the said motorcycles, allegedly used by the prosecution witness es namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) to arrive at the place of occurrence, were not produced. Waqas Mahmood (PW-7) during cross-examination stated as under:- "I went to the house of my sister on motor bike, I departed from my house situated at Aziz abad colony at about 8:45 p.m. I remained awaken till 11/11:30 p.m. and thereafter we slept. I did not inform my family member about my stay at the house of my sister ." (emphasis supplied)
Similarly , the prosecution witness namely Wahid Bakhsh (PW-8), in his statement before the learned trial court, stated as under:- "I was on motorbike. I went in front of the accused on motorbike whereas Zahoor Ahmad came there or foot.
My motorbike was parked outside the house in switched of f position"
According to the prosecution evidence, Shamas Din, SI (PW-13), the Investigating Officer of the case, visited the place of occurrence after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Shamas Din, SI (PW-13), the Investigating Officer of the case, did not take into possession the motorcycles allegedly used by the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) to arrive at the place of occurrence along with the other recoveries, though there was no occasion for the said motorcycles not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence, if the same were available.
The said motorcycles which were used by the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) were not even produced during the entire period of investigation nor were produced before the learned trial court. The non-production of the motorcycles used by the prosec ution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) to arrive at the place of occurrence and the failure of Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such motorcycles were available.
Had motorcycles been used by the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Shamas Din, SI (PW-13), the Investigating Officer of the case and the same would necessarily have been taken into possession by Shamas Din, SI (PW-13), the Investigating Officer of the case but they were not and it proves that a false claim was made by the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) that they had arrived at the place of occurrence on motorcycles. The very inception of the prosecution case is therefore put in doubt. Reliance in this regard is placed on the case of "Muhammad Ali Vs. The State" ( 2015 SCMR 137 ) wherein the august Supreme Court of Pakistan has held as under:- "The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eyewitnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material."
In this manner , the eye witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), not only failed miserably to establish the reason for their arrival and presence at the place of occu rrence, at the time of occurrence but also the mode through which they came to arrive 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 Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) had proceeded to and arrived at the place of the occurrence and the failure to prove any reason for the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) 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 our trust in Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8). 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 kilometre 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 eyewitnesses 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."
17. We have also observed that the prosecution witness namely Waqas Mahmood (PW-7) claimed that he had arrived at the house where the occurrence took place prior to the occurrence and the occurrence took place only when he was present inside the said house whereas, the prosecution witness namely Wahid Bakhsh (PW-8) claimed that he also entered the house where the occurrence took place prior to its happening. This narrative of the prosecution witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence and thereafter committed the same, in their presence and in their view, in the dead of the night, is unnatural and cannot be believed. It is opposed to human conduct that an assailant would proceed with the commission of the crime despite 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 the accused ran the risk of the witnesses deposing against the accused, even then the assailant committed the occurrence in their presence when he already knew that the witnesses were present at the place of occurrence. Such behaviour , on part of the accused, as deposed by the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), runs counter to natural human conduct and behaviour .
Hence, being perceptive of this strain of human conduct, we are holding that Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) were not present at the time of occurrence, at the place of occurre nce and had not witnessed the occurrence. The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707 ) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
In this regard reliance is placed on the case of "STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others" (2019 SCMR 1154) 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."
We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst.
Rukhsana Begum & others v . Sajjad & others ( 2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accuse d encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assai lants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
18. We have also noted that the alleged eye witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW- 8) made no effort either to save the deceased or to apprehend the accused when they were three in number , including Zahoor Ahmad (given up prosecution witness), and could have easily restrained the accused, who was alone. It is unnatural and unbelievable that the alleged eye witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) did not even move a limb to protect their near and dear ones. We have observed that despite the claimed presence of Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), no effort was made to save the lives of the deceased namely Mst. Naeem Akhtar and Mst. Naseem Bibi. As per the statem ent of Dr. Zoha Arshad (PW-5), Mst. Naeem Akhtar (deceased), the sister of the prosecution witness namely Waqas Mahmood (PW-7), had received as many as two injuries on her body and the deceased namely Mst. Nasreen Bibi, the maternal aunt of the prosecution witness namely Waqas Mahmood (PW-7), had received as many as three injuries and during this causing the said injuries, sometime must have been consumed however , the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), remained silent spectators and did not react at all or showed any response when the incident was taking place. No person having ordinary prudence would believe that such closely 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 to 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 Waqas Mahmood (PW-7) and Wahid Bakh sh (PW-8) had been present at the place of occurrence, they would have definitely intervened and prevented the assailant from murdering their dear ones. It only proves that the deceased were at the mercy of the assailant and no one was there to save them. Anothe r fact which has caused grave concern to us is the statement of the prosecution witness namely Waqas Mahmood (PW-7) that the appellant was standing near the cot where Mst. Nasreen Bibi (deceased) was sleeping and two other cots were placed in between the cot of Mst. Nasreen Bibi (deceased) and the cot on which Mst. Naeem Akhtar (deceased) was sleeping prior to the occurrence but still the prosecution witness namely Waqas Mahmood (PW-7) did not even try to restrain her sister namely Mst. Naeem Akhtar (deceased) from going towards the appellant. The prosecution witness namely W aqas Mahmood (PW -7) during cross-examination stated as under:- "Five cots were placed in the courtyard at the house of my sister . It was summer season. The electric fan was on.
Two cots were placed in between the place of my sister and aunt. Cot of accused was placed after the cot of children, which was placed beside.
During that conversation, the accused was not slept on his cot. Accused was standing at the right side of the cot of my aunt Nasreen, when he was in conversation with my sister Naeem Akhtar ."
It is all the more bizarre that none of the above-mentioned prosecution witnesses actually interfered in order to save the lives of the victim when according to them, they had arrived at the place of occurrence prior to the occurrence and also attempted to apprehend the appellant. The prosecution witness namely Waqas Mahmood (PW-7) stated during cross examination as under:- "When the accused hit first blow, I and PWS did not try to catch him. When the accused escaped away , we tried to catch him inside the house but he escaped away by brandishing Sairu in his hand."
Similarly , the prosecution witness namely W ahid Bakhsh (PW -8) during cross examination, claimed as under:- "When the accused trying to escape away from the place of occurrence, I, complainant and Zahoor PW tried to catch him but he was (sic) succeeded to escape away ."
It is strange that when the witnesses had the desire to apprehend the accused after the occurrence and were not fearful of the assailant at that time, then why they could not stop him from committing the occurrence. Such behaviour , on 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. We thus trust 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 witnesses Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) were not present at the time of occurrence, at the time of occurrence and their presence was procured subsequently . The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances. 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."
19. 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. Naeem Akhtar (deceased). Both the prosecution witnesses namely Wahid Bakhsh (PW-8) and Waqas Mahmood (PW-7), in their state ments before the learned trial court, stated that Mst. Naeem Akhtar (deceased) was blessed with the birth of as many as two children named Arooba Fatima and Arfa Ali, who both resided in the same house as Mst. Naeem Akhtar (deceased) and Mst. Nasreen Bibi (deceased). In his statement before the learned trial court, W aqas Mahmood (PW -7) stated as under:- "Two children were born during subsistence of marriage namely Arooba Fatima and Arfa Ali who are alive."
Not only the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) admitted that the children of Mst. Naeem Akhtar (deceased ) were residing in the same house where the occurrence took place but also admitted that the said children got awake due to the hue and cry raised during the occurrence and had also witnessed the same. The prosecution witness namely Waqas Mahmood (PW-7) during cross examination, stated as under:- "On our hue and cry , the children awakened."
Similarly , the prosecution witness namely W ahid Bakhsh (PW -8) during cross examination, stated as under:- "Only one female child was awakened. She was about 15/16 years of age" (emphasis supplied)
Shamas Din, SI (PW-13), the Investigati ng Officer of the case, also admitted during cross-examination that the children of the deceased were present inside the house where the occurrence had taken place however at the same time, admitted that he had not recorded the statements of the said children . Shamas Din, SI (PW-13), the Investigating Of ficer of the case, stated during cross examination as under:- "Two children were present in the house, the girl was aged about 10/12 years whereas the age of the boy was 7/8 years. These children were present at the intervening night of 21/22.8.2019. I did not record statement of those children u/s 161 Cr ,P.C, however , I asked about the occurrence from the children."(emphasis supplied)
Both, Arooba Fatima and Arfa Ali, the children of the deceased namely Mst. Naee m Akhtar , who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence and had also witnessed the occurrence, never joined the investigation of the case to get their statements recorded under section 161 Cr.P.C. nor appeared as prosecution witnesses before the learned trial court. This failure of Shamas Din, SI (PW-13), the Investigating Officer 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 us that had they been produced before the learned trial court they would not have supported the prosecution case. Reliance in this matter is placed on the case of "SHAMSHAD 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 SCMR1846) 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.
20. Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police on their own. According to the prosecution case, Shamas Din, SI (PW- 13), the Investigating Officer of the case, got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) had told him about the occurrence. Moreover , the oral statement (Exh. PM) of Waqas Mahmood (PW-7) was recorded by Shamas Din, SI (PW-13), the Investigating Officer of the case, at the place of occurrence after his arrival there. 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 FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
Furthermore, according to Shamas Din, SI (PW-13), the Investigating Officer of the case, he arrived at the place of occurrence on 22.08.2019 at about 04:30 a.m. still the oral statement (Exh. PM) of Waqas Mahmood (PW-7) was not recorded till 05.50 a.m., when according to the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8), the occurrence had taken place at 03.30 a.m. Similarly , the prosecution witnesses namely Waqas Mahmood (PW-7), Wahid Bakhsh (PW-8) and Abdul Ghafar 90-C (PW-6) all admitted that the police arrived at the place of occurrence at about 04.30. p.m. Abdul Ghafar 90-C (PW-6) stated during cross-examination as under:- "I reached at the place of occurrence at 04:30 a.m." Waqas Mahmood (PW-7) stated during cross-examination as under:- "Police came at the place of occurrence at about 4/4:30 am."
Wahid Bakhsh (PW -8) stated during cross-examination as under:- "Police came at the place of occurrence at about 4:15 a.m."
Shamas Din, SI (PW -13), the Investigating Of ficer of the case, during cross-examination, stated as under:- "I received information from police station about the occurrence at 3:30 a.m. when I was present in front of Lari Adda for patrolling. I do not remember the name of person who informed me about the occurrenc e. I can't tell whether the information was received at 15 Center . Abdul Ghafar 90-C was with me Shahid constable was also me while we took Sajida LC from her home. I do not remember whether I made telephonic call to Sajida LC before taking her from home. I informed high ups about the occurrence. After taking Sajida LC, we straight went to the place of occurrence. We reached at the place of occurrence at about 4:30 a.m.
When we entered into the house of accused, it was about 4:30 a.m." (emphasis supplied)
It is not explained as to why, despite the arrival of Shamas Din, SI (PW-13), the Investigating Officer of the case, at the place of occurrence at 04.30 a.m. it took another 1 1/2 hours to record the oral statement (Exh.PM) of Waqas Mahmood (PW-7). Obviously , the delay in recording the oral statement (Exh. PM) of Waqas Mahmood (PW-7) was occasioned due to the absence of Waqas Mahmood (PW-7) at the place of occu rrence and it was only after his arrival at the place of occurrence that the oral statement (Exh. PM) was recorded. We have noted with grave concern that there remained absolute silence on part of the prosecution witnesses namely Waqas Mahmood (PW- 7) and Wahid Bakhsh (PW-8) for as many as nearly two hours and thirty minutes after the occurrence, when they kept sitting at the place of occurrence without ever reporting the matter to the police or sending any information to the police station regarding the happenin g of the occurrence. It was of his own that Shamas Din, SI (PW-13), the Investigating Officer of the case, arrived at the place of occurrence, however , none of the witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) made any effort to relay any information to the Police Station. Not reporting the matter to the police station, staying of Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) at the place of occurrence and waiting of Shamas Din, SI (PW-13), the Investigating Officer of the case, for as many as 1 1/2 hours after his arrival at the place of occurrence before recording the oral state ment (Exh.PM), are facts which conclusively prove that the oral statement (Exh. PM) of Waqas Mahmood (PW-7) and the formal F.I.R (Exh.PY) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival and developing of a false story . The scrutiny of the statements of the prosecution witnesses reveals that the oral statement (Exh. PM) of Waqas Mahmood (PW-7) was neither prompt nor spontaneous nor natural, rather was a contrived, manufacture d and compromised document.
We have also noted another discrepancy in the prosecution case with regard to the recording of the oral statement (Exh. PM) of Waqas Mahmood (PW-7) and the formal F.I.R (Exh.PY). During the cross examination, Abdul Ghaf far, 90/C (PW -6), stated as under:- "We departed along with the dead body at about 5:30 a.m. 2/3 persons were with me at that time. Zahoor Ahmad and W ahid Bakhsh were with us."( emphasis supplied)
Whereas, W aqas Mahmood (PW -7) stated as under:- "He sent my statement to Police station at about 5:45/6:00 a.m." (emphasis supplied)
As the abovementioned statements reveal, according to Abdul Ghaf far, 90/C (PW-6), he left the place of occurrence in the company of the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) at 05:30 a.m. whereas, according to the prosecution witness namely Waqas Mahmood (PW-7), he remained at the place of occurrence and his oral statement (Exh.P A), reduced into writing by Shamas Din, SI (PW- 13) was sent to the Police Station at about 05:45/06:00 a.m. This also reflects that obvious efforts to prop up the flawed prosecution case were made. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and not reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences their absence at the time of occurrence, at the place of occurrence. This fact itself proves that both the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) made a false claim that they were presen t at the place of occurrence, at the time of occurrence. 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. This inordinate delay in reporting the matter conclusively proves that the oral statement (Exh. PM) of Waqas Mahmood (PW-7) and the formal F.I.R (Exh. PY) were prepared after a probe, consultation, planning, investigation and discussion. Reliance is placed on the cases of "Ghulam Abbas and another v. The State and another" (2021 SCMR 23), "MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others" (2017 SCMR 199), "Zafar vs. The State and others" (2018 SCMR 326) "G.M. NJAZ 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 ).
21. We have also noted with disquiet that despite the fact that the occurrence took place at about 03.30 a.m. on 22.08.2019 , the postmortem examinations of the dead bodies of the deceased were conducted after much delay .
According to Dr.Zoha Arshad (PW-5), she conducted the post mortem examination of the dead body of Mst.
Nasreen Bibi on 22.08.2019 at 10.30 a.m. and conducted the post mortem examination of the dead body of Mst.
Naeem Akhtar on 22.08.2019 at 10:40 a.m. i.e, after as many as seven hours after the death of Mst. Nasreen Bibi daughter of Taj Muhammad and after as many as seven hours and ten minutes after the death of Mst. Naeem Akhtar daughter of Yousaf Ali. According to Dr. Zoha Arshad (PW-5), the time between the post mortem examinations of the dead bodies of the deceased and the death of the deceased was determined by her to be about seven to eight hours. Furthermore, Dr. Zoha Arshad (PW-5), in her statement before the learned trial court stated as under:- "I received injury statement and inquest report of Mst.Nasreen Bibi at 10:00 a.m.
I received injury statement and inquest report of Mst Naeem re Akhtar at 10:00 a.m.
I was on duty on 21.8.2019 from 8:00 p.m. to 8:00 a.m. I received information about the dead bodies from the hospital by the senior Dr . Shafique at 1 1:00 a.m."(emphasis supplied)
The reason which is apparent for the delayed conducting of the post mortem examinations of the dead bodies of Mst. Nasreen Bibi daughter of Taj Muhammad and Mst. Naeem Akhtar daughter of Yousaf Ali 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, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others 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 FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA 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."
22. It has been argued by the learned Deputy Prosecutor General 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 accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts the presence of some eyewitnesses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of 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 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 eyewitnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder .
In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased."
In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun-e-Shahadat, 1984 is certainly not intended to relieve it of that duty. On the contrary , it is 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 prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) 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 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 their lives. 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."
23. The learned Deputy Prosecutor Gene ral and the learned counsel for the com plainant, have also relied upon the recovery of the Saroo (P-13) and the recovery of the blood-stained clothes of the appellant (P-11and P-12), made from the appellant and have submitted that it offered sufficient corroboration of the ocular account of the occurrence as furnished by Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8). The recovery of the Saroo (P-13) and the recovery of the blood stained clothes of the appellant (P-11 and P-12) from the appellant namely Abdul Khaliq cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the Saroo (P-13) and the recovery of the blood-stained clothes of the appellant (P-11and P-12) from the appellant namely Abdul Khaliq which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. 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 Saroo (P-13) and the recovery of the blood stained clothes of the appellant (P-11and P-12) from the appella nt cannot be used as incriminating evidence against the appellant, being evidence which 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."
Furthermore, according to Shamas Din, S.I. (PW-13), the Investigating Officer of the case, the Saroo (P-13) and the blood-stained clothes of the appellant (P-11and P-12) were got recovered by the appellant from the same house where the occurrence had taken place. It is an admitted part of the prosecution case that after the occurrence, on 22.08.2019 Shamas Din, S.I. (PW-13), the Investigating Officer of the case, visited the place of occurrence and remained there for a substantial period of time and in that scenario, had the Saroo (P-13) and the blood stained clothes of the appellant (P-11and P-12) been present at the place of occurrence, then their presence must have been noted by Shamas Din, S.I. (PW-13), the Investigating Officer of the case, however , it was not. It cannot be believed that the Saroo (P-13) and the blood stained clothes of the appellant (P-11and P-12) were got recovered on 10.09.2019 from the same house which Shamas Din, S.I. (PW-13), the Investigating Officer of the case, had visited on 22.08.2019 and had also conducted an extensive investigation at the said place. The prosecution witness namely Wahid Bakhsh (PW-8) admitted during cross-examination that the police officials went to the place of occurrence on the day of occurrence twice. Similarly , Shamas Din, S.I. (PW-13), the Investigating Officer of the case, admitted during cross-examination that after the occurrence, the place of occurrence remained in the possession of the complainant party and the prosecution witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) never disclosed to him that the Saroo (P-13) and the blood-stained clothes of the appe llant (P-11and P-12) were available in the same house where the occurrence had taken place. Wahid Bakhsh (PW-8) during cross-examination stted as under:- "On the day of occurrence, the police twice went to the house of accused, however , I do not know how many times thereafter the police visited the house of accused."
Shamas Din, S.I. (PW -13), the Investigating Of ficer of the case, admitted during cross-examination as under:- "I had not seen the Sairu in the house of accused on 22.8.2019. Said Sairu was of wooden colour . I had not taken into possession the cot of which the said Saint was part. After completing the proceedings, I remained in search of accused at different places in the city. It is correct that the house of the accused remained in possession of his wife and children before the occurrence and thereafter the children and in laws are in possession of said house. It is correct that the complainant or any other person from the house of accused did not inform me till 10.9.2019 that the clothes of accused and Sairu are available in the house of accused . I visited place of occurrence many time, however , I can't tell the exact number of my visit (sic)." (emphasis supplied)
The above referred portion of the cross-examination of the prosecution witnesses namely Wahid Bakhsh (PW-8) and Shamas Din, S.I. (PW-13), the Investigating Officer of the case, clearly denudes the attempt made to prop up the failing prosecution case. Therefore, the recovery of the Saroo (P-13) and the recovery of the blood-stained clothes of the appellant (P-11and P-12) from the appellant namely Abdul Khaliq are not proved, do not further the case of the prosecution in any manner and the same cannot be considered as a circumstance against the appellant. Even otherwise, as we have disbelieved the ocular account in this case, hence the evidence of the recovery of the Saroo (P-13) and the recovery of the blood-stained clothes of the appellant (P-11and P-12) would have no consequence. It is an admitted rule of appreciation of evidence that recov ery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
24. The learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Waqas Mahmood (PW-7) in the oral statement (Exh. PM) was that there was a dispute between the appellant and the deceased with regard to the ownership of the place of occurrence and the appellant wanted the house to be transferred in his name. We have perused the statements of the prosecutio n witnesses namely Waqas Mahmood (PW-7) and Wahid Bakhsh (PW-8) and find that they failed to prove the motive of the occurrence as stated by them. As mentioned above, though, it was claimed by prosecution witness namely Waqas Mahmood (PW-7) that the altercation had taken place between the deceased and the appellant two days prior to the occurrence over the question of transferring the ownership of the house in the name of the appellant however , he did not tell this fact to prosecution witness namely Wahid Bakhsh (PW-8), who went on to claim that Waqas Mahmood (PW-7) had told him that the altercation had taken place two years prior to the occurrence. Moreover , the prosecution witness namely Wahid Bakhsh (PW-8) admitted during cross-examination that he himself had not heard the deceased quarrell ing with the appellant over the transferring of the house in the name of the appellant. The prosecution witness namely Waqas Mahmood (PW-7), also admitted during cross-examination that Muhammad Aslam, the person from whom the house had been purchased, never joined the investigation of the case. Waqas Mahmood (PW-7) during cross examination, stated as under:- "I/O did not record the statement of Muhammad Aslam from whom Naeem Akhtar purchased the house."
Shamas Din, SI (PW-13), the Investig ating Officer of the case, also admitted that he did not collect any documentary evidence with regard to the motive of the case as alleged. Moreover , according to the copies of the sale agreements (P-13 and P-14) produc ed before the learned trial court during the statement of Shamas Din, SI (PW-13), the Investigating Officer of the case, the house was purchased by Mst. Nasreen Bibi, (deceased) from Muhammad Aslam on 03.03.2009 and thereafter , Mst. Nasreen Bibi (deceased) transferred the said house in the name of Mst. Naeem Akhtar (deceased) on 23.04.2010 . No evidence has been brought on record that what happened on the day of occurrence, i.e, 22.08.2019 which led to the happening of the occurrence. Had the refusal to transfer the house in the name of the appellant been the sole reason for the occurrence then it would not have taken place after as many as ten years of the purchase of the house by Mst. Nasreen Bibi (deceased). Moreover , according to the prosecution witness namely Waqas Mahmood (PW-7), the demand for the transfer of the house in the name of the appellant was being made by the appellant from Mst. Nasreen Bibi (deceased) though, according to the documents (P-13 and P-14), the house stood transferred in the name of Mst. Naeem Akhtar (deceased) since 23.04.2010. We have also noted that the appellant and Mst. Naeem Akhtar daughter of Yousaf Ali (deceased) were blessed with the birth of as many as two children. This also proves that the appellant and the deceased were having a happy and a healthy marital life and hence there did not exist any reason for the appellant to murder his loving wife. There is no evidence on record that Mst. Naeem Akhtar daughter of Yousaf Ali (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. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a poignant hush with regard to the particulars of the 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."
25. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead bodies of the dece ased by Dr. Zoha Arshad (PW-5) but the same is of no assistance in this case as medical evidence by its nature and character , cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellant' s conviction cannot be upheld on the basis of medical evidence alone.
The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another Vs. The State"
(2017 SCMR 986 ) has enunciated the following principle of law: "The medical evidence is only confirmator y or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
The august Supreme Court of Pakistan in its binding judgment titled "Naveed Asghar and two others Vs. The State" (PLD 2021 Supreme Court 600) has enunciated the following principle of law: "31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender . Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury , nature of the injury , cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."
26. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Abdul Khaliq son of Muhammad Hanif, 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 single32 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 Pakistan 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 eyew itnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
27. For what has been discussed above Criminal Appeal No.283 of 2020 lodged by Abdul Khaliq son of Muhammad Hanif (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 27.11.2020 are hereby set-aside. Abdul Khaliq son of Muhammad Hanif (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Abdul Khaliq son of Muhammad Hanif (appellant) is in custody and is directed to be released forthwith if not required in any other case.
28. Murder Reference No.14 of 2020 is answered in Negative and the sentences of death awarded to Abdul Khaliq son of Muhammad Hanif are Not Confirmed.