SADIQ MAHMUD KHURRAM, J. Mushtaq Ahmad son of Muhammad Yaqoob (convict) was tried by the learned Additional Sessions Judge/Model Criminal Trial Court, Khanpur in the case FIR No. 759 of 2019 dated 23.07.2019 registered at Police Station Saddar Khanpur , District Rahim Yar Khan in respect of offences under sections 302 and 338C PPC for committing the Qatl-i-Amd of Mst. Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased).
The learned trial court vide judgment dated 12.02.2020, convicted Mushtaq Ahmad son of Muhammad Yaqoob (convict) and sentenced him as infra: Mushtaq Ahmad son of Muhammad Yaqoob: i) Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. ii) Rigorous Imprisonment for seven years as ta'zir under section 338 C PPC for causing the Isqat-i-janin of the child in the womb of Mst.Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased)
The convict was ordered to be hanged by his neck till dead.
The convict, however , was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.
2. Feeling aggrieved, Mushtaq Ahmad son of Muhammad Yaqoob (convict) lodged Criminal Appeal No.69 of 2020 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.03 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Mushtaq Ahmad son of Muhammad Yaqoob. We intend to dispose of the Criminal Appeal No. 69 of 2020 and Murder Reference No.03 of 2020 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by Mst. Sham im Bibi (PW-6), the complainant of the case, are as under:- "States that I am resident of Basti Dhup Sari Chak No.1/P Tehsil Khanpur and I am a household lady. My daughter namely Mst. Shahnaz Bibi was married to Mushtaq Ahmad accused present in the court. My daughter started living with Mushtaq Ahmad in our house and Mushtaq Ahmad was my Ghar Damad. Mushtaq Ahmad accused present in the court used to beat my daughter Mst. Shahnaz Bibi and he oftenly extended threats of dire consequences too.
My daughter became pregnant of 03/4 months. On 23.07.2019 at about 03:00 AM (night) I woke up on hues and cries and saw that accused Mushtaq Ahmad was present in the room of my daughter Shahnaz Bibi, where my son in law Mushtaq Ahmad accused present in the court strangulated neck of my daugh ter with a piece of cloth and my daughter was writhing due to pain. I made hue and cry upon which my brother Ameen Akhtar and my cousin Muhammad Afzal (PWs) reached there where I and the PWS witnessed the occurrence in the light of electric bulb and rescued my daughter , but my daughter expired at the spot. Accused Mushtaq Ahmad present in the court succeeded to flee away from the spot. We informed the police about the reached at the spot where I submitted application Ex.PK for lodging of formal FIR. Accused Mushtaq Ahmad present in the court is my real culprit who has done to death my daughter Mst. Shahnaz Bibi, be punished in accordance with law ."
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 03.10.2019, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as nine witnesses recorded. The ocular account of the case was furnished by Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7). Muhammad Shahnaz, ASI (PW-1) stated that on 23.07.2019 he recorded the formal F.I.R (Exh.P A). Muhammad Sadiq 312/HC (PW-3) stated that on 23.07.2019 he escorted the dead body of the deceased to the hospital for its post mortem examination and received the last worn clothes of the deceased from the Woman Medical Officer. Abid Hussain, Patwari (PW-5) prepared the scaled site plan of the place of occurrence (Exh.PJ). Muhammad Naeem 510/HC (PW-9) stated that on 23.07.2019, the Investigating Officer of the case handed over to him two sealed parcels and six envelops and on 05.08.2019 he handed over the said two sealed parcels and six envelopes to Muhammad Riaz, SI (PW-2) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore.
Muhammad Riaz, SI (PW-2) investigated the case from 23.07.2019 till 08.08.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Amjad Hussain, SI (PW-4) investigated the case from 09.08.2019 till 23.08.2019, arrested the appellant on 09.08.2019, 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. Namra Khan (PW-8) examined, who on 23.07.2019 was posted as Woman Medical Officer at THQ hospital Khanpur and on the same day conducted the postmortem examination of the dead body of Mst.Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased). Dr. Namra Khan (PW-8), on examining the dead body of Mst. Shahnaz Bibi alias Rani wife of Mushtaq Ahmad (deceased) observed as under:- "EXAMINA TION OF NECK: A ligature mark of 2.5cm to 3cm wide present transversely on neck at the level of present adam's apple in center extending to back side of neck from both sides. A bruise mark of 2cm x 3cm was also present in the center of the neck at the level adam's apple. Bite marks of ants and other insects also present all over neck . Sample of hyoid bone taken and sent to PFSA, Lahore.
DESCRIPTION OF INJUR Y:
(1) A ligature mark of 2.5cm to 3cm wide present transversely on neck at the level adam's apple in center extending to back side of neck from both sides. A bruise mark of 2cm x 3cm was also present in the center of the neck at the level adam's apple. Bite marks of ants and other insects also present all over neck. Some ants were also present on neck.
(2) A ligature mark of 2cm x 2.5cm wide present transversely on face extending from both labial commissures up to the angle of both mandibles and was extending to back. Mouth was half opened.
OPINION: After conducting the autopsy I am of the opinion that injuries found on post mortem examination suggested strangulation but the final opinion will be given after collecting reports from PFSA, Lahore.
Expected duration between injury and death within 5 to 10 minutes and between death and post mortem (12 to 13- hours) PMR No.20-NK/2019 as Ex. PM with pictorial diagram prepared and signed by me. I also endorsed inquest report Ex. PF and application for post mortem submitted by I.O Ex, PG.
FINAL OPINION: After receiving Forensic Toxicology Analysis Report Ex.PN, no drugs/poison was detected in liver and stomach contents in item No.1. According to Report Forensic Histopathology Ex. PO, histological examination of the heart sections reveal patent coronaries and unremarkable myocardium. The lung sections reveal vascular congestion and presence of oedematous fluid inside alveoli. Histological examination of multiple sections from hyoid bone reveals bone, entrapped in those are blood haemorrhages, denoting ante morte m injuries to hyoid bone. After conducting the post mortem examination and receiving reports from PFSA, Laho re I am of the opinion that the deceased has been died of asphyxia (strangulation) caused by injuries No.1 & 2 which are sufficient to cause death in ordinary course of nature."
7. On 25.10.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Iftikhar Ahmad SI as being unnecessary . On 30.10.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Ameen Akhtar and Muhammad Sufiyan as being unnecessary . On 14.1.2020, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency , Lahore (Exh. PP).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Mushtaq Ahmad son of Muhammad Yaqoob 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 Mushtaq Ahmad son of Muhammad Yaqoob 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/Model Criminal Trial Court, Khanpur convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel appearing on behalf of the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7). 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 Mushtaq Ahmad son of Muhammad Yaqoob.
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 mainstay of the prosecution are the statements of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7).W e have noted with grave concern and disquiet that the alleged eye witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up) made no effort either to save the deceased or to apprehend the accused when they were three in number and could have easily restrained the accused, who was not even armed with any weapon at the time of occurrence. Muhammad Afzal (PW -7) admitted during cross-examination stated as under:- "Accused Mushtaq was not acquainted (sic) with any weapon occurrence."
Both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhamm ad Afzal (PW-7) were closely related to the deceased namely Mst. Shahnaz Bibi alias Rani. The deceased namely Mst. Shahnaz Bibi alias Rani was the real daughter of Mst. Shamim Bibi (PW-6) and the real maternal niece of Muhammad Afzal (PW-7).
Though Muhammad Afzal (PW-7) in his examination in chief had claimed that the deceased was the daughter of his cousin namely Mst. Shamim Bibi (PW-6), however , during the course of cross-examination namely Muhammad Afzal (PW-7) went on to claim that he was the real brother of Mst. Shamim Bibi (PW-6). Muhammad Afzal (PW-7) in his statement before the learned trial court made the following contradictory statements:- "Daughter of my cousin Shamim Bibi namely Mst.Shahnaz Bibi was married to Mushtaq Ahmad.
I am real brother of complainant Mst. Shamim Bibi. We alongwith complainant and other family members were sleeping in the court yard of the house, ....."(emphasis supplied)
No doubt that both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) claimed to had been sleeping at the place of occurrence, however , it is unnatural and unbelievable that the alleged eye witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up) did not even move a limb to protect their near and dear one. According to the statements of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7), they were sleeping prior to the occurrence and woke up after hearing the hue and cry of the deceased namely Mst. Shahnaz Bibi alias Rani, the daughter of the prosecution witness namely Mst. Shamim Bibi (PW-6) and the maternal niece of the prosecution witness namely Muhammad Afzal (PW-7). The prosecution witness namely Mst. Shamim Bibi (PW-6) further claimed that before the occurrence there were as many as six persons sleeping in the courtyard in front of the room where the occurrence took place. Mst. Shamim Bibi (PW -6) during cross-examination stated as under:- "Near about we six persons were sleeping in the court yard of the house." (emphasis supplied)
It is strange and rather unbelievable that the accused succeeded to strangulate the deceased in presence of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and others when according to the claim of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7), they were already sleeping within the house where the occurrence took place and had been attracted towards the place of occurrence on the hue and cry of the deceased. It was claimed by both the prosecution witnesses namely Mst.
Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) that the deceased was alive when they saw the occurrence but still both the prosecution witnesses name ly Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) did not act in any manner to save the life of the poor woman. According to the observations of Dr. Namra Khan (PW-8), who had conducted the post mortem examination of the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani, the deceased had been murdered by strangulation through use of a ligature. More importantly , Dr. Namra Khan (PW-8) observed that there were no defensive wounds observed by her on the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani. Dr. Namra Khan (PW-8) also noted that neither the hands nor the feet of the deceased namely Mst. Shahnaz Bibi alias Rani were tied. Dr. Namra Khan (PW-8) during cross-examination stated as under:- "I found no injury except noted by me and there were no defence mark on other part of body of the deceased. I found no mark of tying of the hands of the deceased as well as on the legs. I had not observed any torn portion of the clothes of the deceased. " (emphasis supplied)
The above referred portion of the cross-examination of Dr. Namra Khan (PW-8) wherein she stated that she did not find any defensive wounds on the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani and where she stated that she had not observed any signs of tying of the hands and legs of the deceased namely Mst. Shahnaz Bibi alias Rani, has raised much concern. Even the prosecution witness namely Mst. Shamim Bibi (PW-6) also admitted that the deceased had not suffered any other injuries on her body . Mst. Shamim Bibi (PW-6) during cross- examination stated as under:- "When we saw the dead body of my daughter Shahnaz Bibi, I did not observe any other injury on any other part of her body except the neck area."
Similarly , Muhammad Afzal (PW -7) during cross-examination stated as under:- "When I observed the dead body of Shahnaz deceased, I found no injury on her hands or on her face."
It is vexing to imagine in what circumstances the accused succeeded in strangulating the deceased namely Mst.
Shahnaz Bibi alias Rani in presence of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up) without facing any resistance from either the deceased or the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) and Amin Akhtar (given up).
The lack of any defensive wounds on the dead body of the deceased namely Mst. Shahnaz Bibi alias Rani and the fact that the hands and legs of the deceased namely Mst. Shahnaz Bibi alias Rani were not tied is revealing of the fact that the account of the occurrence as given by the two prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) was not correct and the deceased was strangulated in circumstances entirely different to those which were given evidence of by the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7). During the whole episode wherein the deceased name ly Mst. Shahnaz Bibi alias Rani was strangulated, the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7), who both claimed that they were attracted to the place of occurrence on hearing the hue and cry of the deceased, did not make any effort to save the deceased or to restrain the assailant. It is all the more bizarre that none of the above-mentioned prosecution witnesses actually interfered in order to save the life of the victim when according to them they were three in number and were standing just next to the place where the tragic deceased was being strangulated by an unarmed accused and had been standing there prior to the start of the strangulating process. It is worrying to note that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7) kept watching the accused strangulating the deceased but still kept viewing and did not interfere at all. 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 spea ks loudly that if Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7) had seen the occurrence, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save her.
Such behaviour , on 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 namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7) had not witnessed the occurrence. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circums tances. Reliance is placed on the case of "Zulifqar Ali v. The State"
(2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under:- "Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror , cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended targe t and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene"
Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- "The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causin g the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot."
Further reliance is placed on the case of Shahzad Tanveer v. The State (2012 SCMR 172) at page-176 wherein the august Supreme Court of Pakistan observed as infra:- "It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot."
Reliance is also placed on the case of Liaquat Ali v. The State (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under: "He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
14. Furthermore, the fact that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) never saw the occurrence and only discovered the dead body of the deceased subsequently is proved by the statement of Dr. Namra Khan (PW-8) who observed that there were bite marks of ants and other insects present all around the neck of the deceas ed. Dr. Namra Khan (PW-8) in her statem ent before the learned trial court stated as under:- ".........Bite marks of ants and other insects also present all over neck. Sample of hyoid bone taken and sent to PFSA, Lahore.
DESCRIPTION OF INJUR Y:
(1) A ligature mark of 2.5cm to 3cm wide present transversely on neck at the level adam's apple in center extending to back side of neck from both sides. A bruise mark of 2cm x 3cm was also present in the center of the neck at the level adam's apple. Bite marks of ants and other insects also present all over neck . Some ants were also present on neck." (emphasis supplied)
Even the prosecution witness namely Mst. Shamim Bibi (PW-6) also admitted to had seen the bites of ants and insects around the neck of her dead daughter .
Mst. Shamim Bibi (PW -6) during cross-examination stated as under:- "When we observed the injuries on the neck of my deceased daughter Shahnaz Bibi, there were ants on the neck area."
Had the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhamm ad Afzal (PW-7) witnessed the occurrence then there did not exist any possibility that they would have let ants and other insects bite the dead body of their near and dear one. This observation of Dr. Namra Khan (PW-8) that there were bite marks of ants and other insects present all around the neck of the deceased is in itself sufficien t to prove that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) had not seen the occurrence rather only discovered the dead body subsequently .
15. We have also noted that the claim of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) was that they were already sleeping within the house where the occurrence took place and had been attracted towards the room where the occurrence took place on the hue and cry of the deceased, however both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) also claimed that when they saw the dead body of the deceased, a cloth was also inside her mouth. Mst. Shamim Bibi (PW-6) during cross-examination stated as under:- "Neck of deceased Shahnaz was tied with piece of cloth and another piece of clothe (sic) was present in the mouth of deceased." (emphasis supplied)
Muhammad Afzal (PW -7) during cross-examination stated as under:- "No blood or froth was oozing from the mouth of deceased Shahnaz because a piece of clothe (sic) was present in her mouth." (emphasis supplied)
If the claim of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) that a cloth was also inside the mouth of the deceased namely Mst. Shahnaz Bibi alias Rani is correct then they could not have heard the hue and cry of the deceased namely Mst. Shahnaz Bibi alias Rani, due to which hue and cry it was claimed that prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muham mad Afzal (PW-7) woke up from sleep and witnessed the occurrence. This fact also proves that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) had never witnessed the occurrence. Adding to the multiple contradictions of the prosecution evidence is the fact that Dr. Namra Khan (PW-8), at the time of post mortem examination of the deceased namely Mst. Shahnaz Bibi alias Rani, did not observe presence of any cloth in her mouth.
16. Another vital aspect of the case is the fact that despite the assertion of the prosecution witnesses namely Mst.
Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) that they had witnessed the occurrence on 23.07.2019 at 03.00 a.m., the matter was reported to the police on 23.07.2019 at 07.30 a.m., when the prosecution witness Mst.
Shamim Bibi (PW-6) submitted her writte n application (Exh. PK) for the registration of the F.I.R at the place of occurrence to Muhammad Riaz, SI (PW-2). In this manner , the delay in reporting the matter to the police was of more than four hours and thirty minutes , for which delay no reason, much less plausible, was offered. No justification, much less credible, has been given by the prosecution at any stage for such deferral in submitting the written application (Exh. PK) of Mst. Shamim Bibi (PW-6) to the police. The reason for this inordinate delay in reporting the matter to the police by the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) is obvious, being that both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) had not witnessed the occurrence and discovered the fact of the death of the deceased only in the morning whereafter the narrative of the written application (Exh. PK) was developed and the matter was reported to the police. No doubt that both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) claimed to had been sleeping at the place of occurrence, however , they could not prove that they had made any effort to report the matter to the police after having witnessed the occurrence which according to the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) had taken place in their view. Both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) admitted that the police arrived at the place of occurrence at 07.30 a.m. Muhamm ad Afzal, (PW-7) during cross- examination stated as under:- "Police reached at the spot at about 07:30 AM."
Muhammad Riaz, SI (PW -2) during cross-examination stated as under:- "I reached at the place of occurrence at about 07:30 PM and at that time dead body of deceased Mst. Shahnaz was lying there."
According to Muhammad Riaz, SI (PW-2), he got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW- 7) had told him about the occurrence nor any information had been sent to the Police Station with regard to the happening of the occurrence till the arrival of the Muhammad Riaz, SI (PW-2) at the place of occurrence on his own. As mentioned above, the written application (Exh. PK) was submitted by Mst. Shamim Bibi (PW-6) to Muhammad Riaz, SI (PW-2) after his arrival at the place of occurrence. The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v . The State" ( 2017 SCMR 1 155) has observed as under: "An 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."
It is also noteworthy that despite the claim that the written application (Exh.PK) was submitted by the prosecution witness namely Mst. Shamim Bibi (PW-6) to Muhammad Riaz, SI (PW-2) when he arrived at the place of occurrence at 07.30 a.m. on 23.07.2019 , the formal F.I.R (Exh.P A) was recorded by Muhammad Shahnaz, SI (PW- 1) on 23.07.2019 at 01.05 p.m. The distance between the place of occur rence and the Police post according to the prosecution witness namely Mst. Shamim Bibi (PW-6) was only two kilometres. Mst. Shamim Bibi (PW-6) during cross-examination stated as under:- "The police post is situated at a distance of near about 02-KM from the place of occurrence. "
It has not been explained as to why after the written application (Exh. PK) had been received by Muhammad Riaz, SI (PW-2) at 07.30 a.m. on 23.07.2019 , the formal F.I.R (Exh. PA) was not recorded till 01.05 p.m. It took as many as five hours and thirty minutes more to record the formal F.I.R (Exh. PA). It denudes the fact that the time of receiving the written application (Exh. PK) as mentioned by Muhammad Riaz, SI (PW-2) on the same was not correct rather the same had been received much later as is obvious from the fact that the formal F.I.R (Exh. PA) was recorded at 01.05 p.m. In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because, the witnesses never reported the matter to the police for as many as four hours and thirty minutes . This inordinate delay in reporting the matter conclusively proves that the written application (Exh. PK) of Mst. Shamim Bibi (PW-6) and the formal F.I.R (Exh. PA) were prepared after a probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) had not witnessed the occurrence, the delay was used for developing a false narrative of the written application (Exh. PK). As many as four hours and thirty minutes were taken to invent a false and dishones t account of the written application (Exh. PK) of Mst. Shamim Bibi (PW-6).
The veracity of the written application (Exh. PK) was further put in doubt when the prosecution witness namely Mst.
Shamim Bibi (PW-6) went on to state that she had not submitted any application to the police rather had got recorded her oral statement whereas according to Muhammad Riaz, SI (PW-2) Mst. Shamim Bibi (PW-6) had submitted the written application (Exh.PK) to him after his arrival at the place of occurrence.
Mst. Shamim Bibi (PW -6) during cross-examination stated as under:- "I orally gave my statement to the police while standing in the compound of my house" (emphasis supplied)."
The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PK) of Mst.
Shamim Bibi (PW-6) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences that they had not seen the occurrence. Reliance is placed on the case of "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:- "As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morni ng at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrenc e at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chance s of deliberations and consultations before reporting the matter to the Police cannot be ruled out."
Reliance is also placed on the case of "MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others" (2017 SCMR 199) wherein the august Supreme Court of Pakistan was pleased to hold as under: "The hospital is closely situated to the Police Station but neither the complainant nor PWs took a little pain to report the matter , nor the staff of the hospital including the treating doctor took initiative."
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Zafar vs. The State and others" (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:- "It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay in lodging the FIR or for that matter the belated postmortem of the deceased."
Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of "G.M.
NIAZ Vs. The State" (2018 SCMR 506), Abdul Jabbar and another Vs. The State (2019 SCMR 129) and Muhammad Shafi alias Kuddoo Vs. The State and others ( 2019 SCMR 1045 ).
17. We have been vexed by the fact that the deceased namely Mst. Shahnaz Bibi alias Rani was never taken to any hospital by the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal, (PW-7) to save her life. Dr. Namra Khan (PW-8), stated that the deceased remained alive for some time after receiving the injuries still both the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muham mad Afzal (PW-7), both closely related to the deceased, did not take her to any hospital. It has been proved on record that the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) made no effort to take the deceased to the hospital and it convincingly establishe s that the said witnesses did not know about the death of the deceased and discovered the same only later. The august Supreme Court of Pakistan in the case of "Zaheer Sadiq v.
Muhammad Ijaz and others" ( 2017 SCMR 2007 ) has observed as under: "The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police."
18. We have also noted with disquiet that despite the fact that the occurrence took place at about 03.00 a.m. on 23.07.2019 , the postmortem examination of the dead body of the deceased was conducted after much delay .
According to Dr. Namra Khan (PW-8), she conducted the post mortem examin ation of the dead body of the deceased on 23.07.2019 at 01.00 p.m. i.e after as many as ten hours after the death of Mst. Shahnaz Bibi alias Rani. Dr . Namra Khan (PW -8), in her statement before the learned trial court stated as under:- "After receiving dead body on 23.07.2019 at 12:30 PM, I conducted post mortem at 01:00 PM on 23.07.2019, on receiving police documents at 12:30 p.m on the same day (23.07.2019)."
Dr. Namra Khan (PW-8), who conducted the post mortem examination of the dead body of Mst. Shahnaz Bibi alias Rani (deceased) and prepared the post mortem examination report (Exh. PM), gave the time between death and post mortem examination as being within 12-13 hours . Dr. Namra Khan (PW-8) also observed developed rigor mortis at the time of conducting the post mortem examination. Dr. Namra Khan (PW-8) during cross-examination stated as under:- "Rigor mortis has (sic) developed at the time of postmortem examination"
Before proceeding any further , it would be advantageous to mention here that rigor mortis is a term that stands for the stiffness of voluntary and involuntary muscles in the human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly , the reverse process with which rigor mortis disappears is called algor mortis . In support of duration required to develo p rigor mortis, an extract from "The Principles And Practice Of Medical Jurisprudence" by Alfred Swaine T aylor , MD , is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly , William Carroll in his research article titled as "An Examination of Muscle Function" , has declared a similar duration for rigor mortis to develop. In Chapter 15 'POST -MOR TEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P.
Modi's A Textbook of Medical Jurisprudence and T oxicology (26th Edition 2018), it has been discoursed as under:-: "Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away .
Rigor mortis first appears in the involuntary muscles, and then in the voluntary . In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy , and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.
In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However , according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor .
Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.
Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in winter and 18 to 36 hours in summer . According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early , it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associat ed findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability , the death might have occurred six to twelve hours or so more before the time of examination."
Additionally , as mentioned above, Dr. Namra Khan (PW-8) stated that she started the post mortem examination at 01.00 p.m. only after she had received the police documents at 12.30 p.m. The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Mst. Shahn az Bibi alias Rani is that by that time the details of the occurrence were not known and the said time was used to fashion a false narrative of the occurrence. No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence had not witnessed the occurrence and the delay in the post mortem examination was used to formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of an effort to advance a false narrative of the occurrence to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" ( 2012 SCMR 327 ) has held as under: "The incident in the instant case took place at 2.00 a.m, 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."
19. We have also noted that the shirt which was found wrapped around the neck of the deceased namely Mst.
Shahnaz Bibi alias Rani and the shirt which was found wrapped around the dece ased namely Mst. Shahnaz Bibi alias Rani were sent to the Punjab Forensic Science Agency , Lahore for DNA analysis and the buccal swab standards of the appellant were also submitted to the Punjab Forensic Science Agency , Lahore. According to the report of the Punjab Forensic Science Agency , Lahore (Exh. PP), the DNA profile obtained from the shirt which was found wrapped around the neck of the deceased namely Mst. Shahnaz Bibi alias Rani and the shirt which was found wrapped around the deceased namely Mst. Shahnaz Bibi alias Rani did not match the DNA profile of the appellant namely Mushtaq Ahmad. When an individual touches an object, epithelial cells are left behind. Touch DNA is also known as epithelial DNA. The same traditional DNA analysis procedures are used to analyze and examine these remaining epithelial cells as are used to analyze and examine bodily fluids. The amount left behind is often less than 100 picograms and is also called low copy DNA. This is evidence with "no visible staining that would likely contain DNA resulting from the transfer of epithelial cells from the skin to an object. Due to development, lower amounts of human DNA can be detected and, possibly , a full or partial STR profile can be generated. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to exonerate innocent individuals accused of similarly heinous actions. The technology has advanced to Polymerase Chain Reaction (PCR) based short tande m repeat (STR) testing. This system multiplies a single copy of a DNA segment to allow for the analysis of the genetic makeup of a small sample. Current analysis makes it possible to determine whether a biological tissue matches a suspect with near certainty . DNA is comprised of "coding" and "non-coding regions. The loci examined are found on "junk DNA," which are segments of the DNA not known to code for any specific trait, but known to be different between individuals. "Junk DNA" are the non-coding regions which contain valuable information about identity , but do not contain information regarding coding for other genetic traits. This allows the development of a DNA profile without an examination into other genetic markers. According to the report of the Punjab Forensic Science Agency , Lahore (Exh.PP) of two individuals were generated from the shirt which was found wrapped around the neck of the deceased namely Mst. Shahnaz Bibi alias Rani and the shirt which was found wrapped around the deceased namely Mst. Shahnaz Bibi alias Rani however out of them, the appellant was not found to be a contrib utor. The relevant portion of the report of the Punjab Forensic Science Agency , Lahore (Exh.PP) reads as under:- "1. Buccal swab(s) of Shahnaz Bibi @ Rani.
2. Buccal swab(s) of Muhammad Sufyan
3. Two pieces of shirt wrapped around Shahnaz Bibi @ Rani mouth 3A.1 Two swab(s) were taken from first piece of shirt 3.B.1 Two swab(s) were taken from second piece of shirt
4. A piece of shirt wrapped around Shahnaz Bibi @ Rani neck 4.1 Two swab(s) were taken from a piece of shirt.
SI Buccal swab standards of Mushtaq Ahmad.
Results and Conclusion The DNA profile obtained from item # 4.1 is a mixture of at least two individuals with major and minor components.
The major component of the DNA profile obtained from item # 4.1 is consistent with the DNA profile of Shahnaz Bibi @ Rani (item # 1). The probability of finding an unrelated individual at random in the population as being major contributor to the DNA obtained from item # 4.1 is approximately one in 114 quintillion in Caucasians. The minor component of the DNA profile obtained from item # 4.1 is inconclusive; therefore no comparison could be made with the DNA profiles of Mushtaq Ahmad (item # S1) and Muhammad Sufyan (item # 2).
The DNA profile obtained from item # 3B.1 is a mixture of at least two individua ls with major and minor components. The major component of the DNA profile obtained from item # 3B.1 is consistent with the DNA profile of Shahnaz Bibi @ Rani (item # 1). The probability of finding an unrelated individua l at random in the population as being major contributor to the DNA obtained from item # 3B.1 is approximately one in 114 quintillion in Caucasians.
The minor component of the DNA profile obtained from item # 3B.1 is partial and inconclusive."
The report of the Punjab Forensic Science Agency , Lahore (Exh.PP) supports the claim of the appellant that he was innocent for the reason that had the appellant handled the shirt which was found wrapped around the neck of the deceased namely Mst. Shahnaz Bibi alias Rani and the shirt which was found wrapped around the deceased namely Mst. Shahnaz Bibi alias Rani then his DNA profile must had been obtain ed from the said items because had he touched these articles, then the epithelial cells from the skin of the appellan t must have been left behind on the articles handled by him and subsequently the presence of DNA profile of the appellant would have been identified on the articles handled by him by the Punjab Forensic Science Agency , Lahore . The absence of any DNA profile of the appellant on any of the items sent to the Punjab Forensic Science Agency , Lahore for DNA analysis creates further doubt regarding the involvement of the appellant in the occurrence .
20. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Mst. Shamim Bibi (PW-6) in the writte n application (Exh. PK) was that the relationship of the appellant and the deceased had remained strained through their marital life and the appellant used to beat the deceased. We have perused the statements of the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW- 7) and find that they failed to prove the motive of the occurrence as stated by them. Though it was claimed by the prosecution witnesses namely Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) that the appellant used to beat Mst. Shahnaz Bibi alias Rani (deceased), however , it was admitted that the said matter was never reported to the police or anyone else ever and furthermore the deceased was not aggrieved with the said behavior of the appellant and never demanded divorce from the appellant. Mst. Shamim Bibi (PW-6) during cross-examination stated as under:- "The quarreled (sic) between the spous es spanned from about three months prior to the alleged occurrence.
Deceased Shahnaz Bibi never asked me to get a divorce from Mushtaq and never Shahnaz deceased demanded from me for the ousting of Mushtaq from the house.
I did not report the police regarding threats of intimidation passed by accused Mushtaq to my daughter Shahnaz on 22.07.2019 at evening time."
Similarly , Muhammad Afzal, (PW -7) during cross-examination stated as under:- "The couple was usually always in quarrel with each other . In my presence, accused Mushtaq did not extend threat of taking life of Shahnaz . Volunteered, one day prior to the occurr ence, Shamim Bibi disclosed to me that such type of threat was issued by accused Mushtaq.
Despite continuous quarrel between the spouses neither Shahnaz demanded ousted of accused Mushtaq nor Mst. Shamim/complainant ousted Mushtaq of her own house. On 22.07.2019 at evening time Mst.
Shamim / complainant informed me about threats allegedly extended by accused Mushtaq at 06:30 PM. When the threat was informed to me by Mst. Shamim at that time Mushtaq was not present in the house. I did not make any response nor asked about the threat from Mushtaq as the couple was daily in quarrel with each other ."
There is no evidence on record that Mst. Shahnaz Bibi alias Rani (deceased) was facing any threat to her life at the hands of the appellant prior to the occurrence rather to the contrary she was living with the appellant till her tragic death. This also proves that the appellant and the 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. 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 particu lars 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."
21. 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 eye-witnesses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a person had taken place in his house, therefore, it must be he and none else who would have committed that murder . The learned Deputy Prosecutor General submits that it was in the knowledge of the appellant how the deceased died so it was the appellant who was responsible, in absence of any explanation. The law on the burden of proof, as provided in Article 117 of the Qanun-e-Shahadat, 1984, mandates the prosecution to prove, and that too, beyond any doubt, the guilt of the accused for the commission of the crime for which he is charged. The said provision provides: "117. Burden of proof:- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly , the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under: "122. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him."
It has to be kept in mind that Article 122 of the Qanun-e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun- e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of "Rehmat alias Rahman alias Waryam alias Badshah v. The State" (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanun-e- Shahadat, 1984, it held as under: "Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however , the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
The ratio decidendi of the above decision was further developed by in the case of "NASRULLAH alias NASRO Versus The ST ATE (2017 SCMR 724 ), wherein, it held as under: "It has been argued by the learned coun sel for the complainant that in the case s of Arshad Mehmood v. The State (2005 SCMR 1524 ) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circums tances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the circumstance s of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder .
In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased."
In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun-e-Shahadat, 1984 is certainly not intended to relieve it of that duty. On the contrary , it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are " especially " within the knowledge of the accused and which he could prove without difficulty or inconvenience.
If the article was to be interpreted otherwi se, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. 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 Mst. Shamim Bibi (PW-6) and Muhammad Afzal (PW-7) failed miserably to prove that they had witnessed the 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 her life. The august Supreme Court of Pakistan has held in the case of "MUHAMMAD JAMSHAID and another vs. The State and others" ( 2016 SCMR 1019 ) as under: "only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the courts below to be nothing but speculative".
The august Supreme Court of Pakistan has held in the case of "Arshad Khan vs. The State" (2017 SCMR 564) as under: "It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524 ) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all."
The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628 ) as under: "It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death.
These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v.
The State (2005 SCMR 1524 ), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710 )."
The august Supreme Court of Pakistan has held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681) as under: "It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524 ) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborat ed and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however , been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement."
The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941) as under: "The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed."
22. 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 body of the deceased by Dr. Namra Khan (PW-8) 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."
23. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Mushtaq Ahmad son of Muhammad Yaqoob, the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent 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 We have 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 the32 cases of Tariq Pervaiz v. The State (1998 SCMR 1345 ) and Ayub Masih v. The State (PLD 2002 SC 1048 )."
The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
24. For what has been discussed above Criminal Appeal No.69 of 2020 lodged by Mushtaq Ahmad son of Muhammad Yaqoob (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 12.02.2020 are hereby set-aside. Mushtaq Ahmad son of Muhammad Yaqoob (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Mushtaq Ahmad son of Muhammad Yaqoob (appellant) is in custody and is directed to be released forthwith if not required in any other case.
25. Murder Reference No.03 of 2020 is answered in Negative and the sentence of death awarded to Mushtaq Ahmad son of Muhammad Yaqoob is Not Confirmed.