SAHIBZADA ASADULLAH, J:- Through this single judgment, we shall also decide the connected Cr.R bearing No.28-P/2022 titled "Akhtar Nawab Vs. Lateef-ur-Rehman etc." as both the matters are arising out of one and the same judgment dated 24.01.2022, passed by the court of learned Additional Session Judge, Mardan at Katlang delivered in case FIR No.594 dated 07.09.2019 under section 302 PPC police station Katlang, Mardan, whereby appellant Lateef-ur-Rehman has been convicted under section 302 (b) PPC and sentenced to imprisonment for life and to pay Rs.100,000/- as compensation to parents of the deceased under section 544-A Cr.P.C or in default whereof to undergo simple imprisonment for six months. Benefit under section 382-B Cr.P.C has been extended to him.
2. Precisely stated facts of the case, as spelt out from the record, are that on 07.09.2019 complainant Akhtar Nawab, while attending the dead body of his niece Mst. Maria at lnzargai Hospital reported the matter to Noor-ul-Wahab Khan, SI to the effect that the marriage of his niece was solemnized some three months back with Lateef-ur-Rehman (accused/ appellant). On the eventful day, he was present in his house when got information that his niece had been murdered upon which he rushed to the place of occurrence and found the dead body of his deceased niece on the roof of house. He was informed that the deceased has been done to death by her husband Lateef-ur-Rehman. Consequently, on the report of complainant, a case vide FIR No.594 dated 07.09.2019 under section 302 PPC was registered against the appellant at police station Katlang, Mardan.
3. On arrest of the appellant and completion of investigation, initially challan was submitted before the court of competent jurisdiction, charge was framed to which he did not plead guilty and wished for trial. As such the learned trial court was pleased to direct the prosecution to produce its evidence. In order to prove its case, prosecution produced and examined as many as 10 witnesses, where after statement of the accused was recorded, where the accused professed his innocence but did not opt to record his statement under section 340 (2) Cr.P.C. After conclusion of trial, the learned trial court found the appellant guilty of the charge and whilst recording his conviction, sentenced him as mentioned above, where against he has filed the instant appeal whereas the complainant has filed Cr.R.28-P/2022 for enhancement of sentence of the appellant.
4. Heard. Record gone through.
5. The unfortunate deceased was done to death and the dead body was shifted to the hospital where the matter was reported. After the report was made, the injury sheet and the inquest report were prepared and the dead body of the deceased was shifted to the hospital for post mortem examination. The investigating officer, after receiving copy of the FIR, visited the spot and on pointation of the complainant prepared the site plan. During spot inspection the investigating officer collected blood through cotton from the place of deceased and also an empty of .30 bore along with a spent bullet from the place of incident. The investigating officer also recovered a .30 bore pistol from the spot lying at a distance of 3 paces from the deceased and also observed bullet marks on the wall of the room. The accused/appellant, soon after the occurrence decamped from the spot and on his arrest he faced the trial and on conclusion of the trial, the learned trial court was pleased to convict and sentence him vide the impugned judgment.
6. The matter was thrashed by the learned trial court and it was after application of judicial mind to the evidence on file and to the statements of the witnesses, that the appellant was held responsible for the murder of the deceased. True that the deceased was the wife of the appellant and that the unfortunate couples tied the knot 3/4 months before the tragic incident, but equally true that the deceased lost her life through a firearm and that he medical evidence does tell that it was because of the firearm injury that the deceased lost her life. There is no denial to this fact that the unfortunate incident occurred inside the house of the appellant and that it was the appellant who would tell that how the unfortunate incident occurred and that how the deceased lost her life.
We are conscious of the fact that under all circumstances the prosecution is under the bounden duty to prove its case and the accused is never held responsible to prove himself innocent, but in this particular case we cannot ignore the liability of the appellant as well, as it is he to tell that how the deceased lost her life, though he is never burdened with the entire liability, rather the prosecution is still to prove that it was the appellant who killed the deceased. The learned trial court while appreciating this particular aspect of the case was highly swayed with the inter se relationship between the accused and the deceased and from the fact that the unfortunate deceased lost her life inside the house of the appellant. We are conscious of the fact that the approach of the Apex Court remained different while appreciating the circumstances in which a wife meets an unnatural death and that in that respect numerous judgments were rendered, where the liability was placed upon the shoulders of the accused/husband and also in some of the judgments the liability is placed upon the shoulders of the prosecution, but even then the accused/husband has never been absolved from the liability. The most relevant judgments in the field is Saeed Ahmad Vs the State (2015 SCM R 710), where the apex Court while highlighting the particular aspects of that particular case did not absolve the husband from the liability and along with the prosecution the accused/husband was held fully responsible for explaining the circumstances which led to the tragic incident. Even in that judgment the apex Courts did not absolve the prosecution of its liability and the apex court did not shift the burden to the accused/husband, rather a balance was struck between the two and that in those particular circumstances of the judgment (ibid) the husband was held responsible as some evidence was collected, which pointed towards the liability of the husband and it was the long association between the two under the same roof, which convinced the Apex Court, while taking a view different from the others. We are also benefited from the judgment reported as (2018 SCM R 787) where the prosecution was burdened with the liability to prove and never ever this burden was shifted to the accused/husband. The Apex Court in the judgment (ibid) has highlighted the circumstances where the prosecution must prove the charges against the accused/husband and that limited responsibility was put upon the shoulders of the husband. To cut it short when both the judgments are juxtaposed, no ambiguity is left that the approach of the Apex Court was the same, but the appreciation in respect of the particular circumstances of the above particular cases was different. This court is conscious of the fact that in both of the above referred judgments the intention was never ever to burden the husband, under all circumstances, to prove his innocence, rather the responsibility and liability was shared between the two, keeping in view the particular circumstances of a particular case. Now turning up to this particular case we are to see as to what kind of evidence is led and as to what liability can be placed over the shoulders of the appellant and that what liability the prosecution is to discharge. Though the learned Trial Court dealt with the matter comprehensively, yet this court is under the obligation to re-assess and to re-appreciate the evidence on file, so that the liability of the appellant could be fixed and so that the responsibility of the prosecution could be pointed out, as in that eventuality miscarriage of justice could be avoided.
7. The points for determination before this court are as to whether the incident occurred in the mode, manner and at the stated time; as to whether it was the appellant who killed the deceased; as to whether the prosecution could bring on record convincing evidence, which could connect the appellant with the murder of the deceased and as to whether the medical evidence supports the case of the prosecution.
8. Admittedly, the murder went un-witnessed, as no witness came forward to tell that it was the appellant who killed the deceased in his immediate presence and no witness came forward to tell that he heard the fire shot and that he saw the appellant leaving the spot. As the investigating officer could not succeed to record the statements of the inmates of the house, and that nothing was brought on record that the inmates were asked for recording their statements and that they refused. The complainant is not the eyewitness of the incident, rather when he received the information regarding the death of the deceased he rushed to Civil Hospital Inzargai, where he found the dead body of the deceased. True that the record is silent that who shifted the dead body of the deceased from spot to the hospital and that who accompanied the dead body of the deceased at the relevant time, but the record tells that as the unfortunate deceased lost her life in the house of the appellant, so these were the inmates of the house who took the dead body of the deceased to the hospital, but the report was not made within time for the reasons best known to them, as it was the complainant who being the maternal uncle of the deceased, reached to the hospital and he reported the matter. While reporting the matter the complainant disclosed the strained relationship between the spouses and he disclosed that as the appellant was compelling the deceased to fetch firewoods from the forest, to which she refused and her refusal led to the tragic incident. We are conscious of the fact that the prosecution could not succeed in examining any witness in its support, more particularly, the witnesses who saw the incident and the witnesses in whose presence the unfortunate deceased was done to death, so we are left with the circumstantial and the medical evidence, to determine the fate of the appellant and to see that whether it was the appellant who killed the deceased or that the charge was the outcome of mala fide. As admittedly, the deceased after receiving firearm injuries died on the spot, the dead body was rushed to the hospital and the matter was reported by the complainant, so this court is to see the conduct of the appellant and his presence at the stated time. The record tells that the appellant, soon after the incident, left the scene till his arrest. The record further tells that it was not the appellant who shifted the dead body of the deceased from the spot to the hospital and that it was not the appellant who reported the matter. The conduct displayed by the appellant, soon after the incident, is a circumstance, which cannot be overlooked rather it increases the anxiety of this Court to trace out his responsibility and his involvement in the murder of the deceased. As is held in case titled "Saeed Ahmed Vs. The State", (2015 SCMR 710), which is reproduced herein below: - "In criminal cases it is for the prosecution to establish its case against an accused. It is a fundamental principle of law that the burden of proof is on the prosecution (Article 117 of the Qanun-e-Shahadat Order, 1984). However, in this case the young wife of the appellant, who was living with him, was murdered. The appellant did not participate in her last rites and disappeared for a period of two months. The question that needs consideration is whether such unreasonable conduct of the appellant is of any consequence and also whether certain matters exclusively within his knowledge were not explained by him, that is, not informing the police about his wife's murder, not taking her to the hospital, not participating in her last rites and disappearing for a long period of two months. In this regard it would be appropriate to reproduce Article 122 of the Qanun-e-Shahadat Order, 1984, which is identical to the hitherto before section 106 of the Evidence Act, 1872:-- "122. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
9. The investigating officer visited the spot and on pointation of the complainant prepared the site plan. It is interesting to note that from the place of incident the investigating officer collected an empty of .30 bore and also a spent bullet coupled with the fact that he observed bullet marks on two different places just behind the deceased. As on one hand, not only a single empty was recovered, but a spent bullet was also taken into possession, along with the fact that the investigating officer observed bullet marks on the wall behind the deceased. If it was the deceased who committed suicide, then in that eventuality, a single empty of the same bore would have been collected, but apart from an empty of .30 bore, a spent bullet was also recovered and the investigating officer also observed bullet marks on the wall behind the deceased. When such is the state of affairs, then this Court is anxious to know that how the death can be termed as a suicide. If for a while, we accept that the deceased committed suicide then under all circumstances a single empty of the same bore, used for committing suicide would have been collected from the spot and that in that eventuality, no spent bullet would have been taken into possession and even there was no occasion for the bullet marks be present on the wall behind the deceased. The recoveries from the spot and the availability of bullet marks has complicated the situation and the same points towards the fact that the deceased did not commit suicide, rather it suggests the involvement of a hidden hand in her death. When the incident admittedly occurred inside the house of the deceased, that too, on the first floor of the house and when the house was inhabited and rest of the family members were living in the same, so in such eventuality, this Court cannot take into consideration that an outsider entered and committed the offence. When this Court comes to a conclusion that the deceased did not commit the suicide and when it excludes the possibility of entering of a stranger to the house, then this Court is not reluctant in placing the liability and responsibility over the shoulders of the appellant. It is the appellant to tell that how the tragic incident occurred and it is for him to convince that the deceased committed suicide.
10. The seat of injury and the manner in which the same was caused excludes the possibility that the death was suicidal. The collected pistol and the recovered empty were answered in negative by the Fire Arms Expert. Had the deceased committed suicide the two would match. The report was received in negative because the pistol used was replaced with the collected one. Though the replacement was made to avoid the consequences, but instead it added to the miseries of the appellant. Had the actual pistol been recovered, then there was every likelihood of a matching report and the same would speak in favour of the appellant, but the negative report has convinced the ill intention of the appellant and all concerned, that it was the appellant who was responsible for the murder of the deceased and that it was the appellant who replaced the weapon used for the killing of the deceased. When all these circumstances are taken into consideration, no ambiguity is left that the deceased did not commit suicide, rather it indicates that the deceased was killed and that it was the appellant who was instrumental in the killing of the deceased. When such is the state of affairs, then this Court is not reluctant in placing the liability over the shoulders of the husband, as the place of incident was in his exclusive control and as apart from him no other inmate of the house had an interest in the killing of the deceased. When the appellant could not convince the real cause of death of the deceased and when the appellant could not convince his innocence in the matter, then in our understanding it was he who killed the deceased.
11. As in such like cases there hardly an eyewitness account, but the entire case of the prosecution either hinges upon the circumstantial evidence or the medical evidence. The record tells that the deceased received an injury on the left side of parietal bone with its exit on the right side of parietal bone, so the same increases the anxiety of this court as to whether the same could be caused by the deceased and whether the same was possible in the case of a suicide. In order to understand the nature of injury and its exit we deem it essential to reproduce the relevant portion from the statement of the doctor, who was examined as P.W.2 which reads as follows:- "Entry wound 1.5 cm rounded in shape inverted margin on the left side of parietal bone 04cm above the pinna of left ear. No charring marks seen. Active bleeding from the side of wounds.
Exit wound 6.5 cm regular shaped exit wound of the right side of parietal bone 05 cm away from outer edge of the right eyebrow brain matter was protruding out of the wounds."
When the medical evidence is taken into consideration it leaves no ambiguity in telling that the deceased did not commit suicide. The selected place under all circumstances excludes the possibility and the ability of the deceased to fire in that fashion. As the medical evidence does not support the plea of suicide that too, when charring marks were not noted, so in such eventuality this Court is confident in holding that the death of the deceased was homicidal and that apart from medical evidence, the circumstantial evidence supports the story of the prosecution and the involvement of the appellant in the tragic death of the deceased. True that medical evidence is confirmatory in nature and in case of trustworthy and confidence eyewitness account the same plays a little role, but when the ocular account either fails or the same is not available, then in the particular circumstances of a particular case the medical evidence plays a decisive role. As in this particular case no eyewitness account is available, but the circumstantial evidence and the medical evidence when taken into consideration, the same lend support to each other and the unity between the two has led this Court to conclude that it was the appellant who killed the deceased. It was agitated by the learned counsel for the appellant that the investigating officer did not record the statements of the inmates of the house and that had the appellant been responsible, then it was a must for the investigating officer to record the statements of independent witnesses, but the failure on part of the prosecution has confirmed the innocence of the appellant, but the learned counsel ignored that even the appellant did not produce the inmates of his house in his defence, who could better explain the circumstances in which the unfortunate deceased died. When none from the house came in support of the claim of the appellant, then in our understanding it was the appellant alone who was instrumental for the death of the deceased and that the prosecution succeeded in connecting the appellant with the tragic incident.
12. True that the prosecution could not prove the alleged motive, but equally true that absence or weakness of motive by itself would not be sufficient for acquitting an accused, rather the same can be taken into consideration for determining the quantum of sentence to be awarded. As the deceased was the wife of the appellant and as she was residing in the house of the appellant, so under all circumstances the motive would be in the mind of the appellant and it is the appellant to tell that what prompted him to kill the deceased. Reliance could be safely placed on judgment of the Apex Court in case title "Mazhar Abbas alias Baddi Vs the State" (2017 SCMR 1884), which is reproduced as under; "It is well settled by now that once the prosecution alleges a motive and fails to prove the same during the trial, the same can be taken as a mitigating circumstance while deciding the quantum of sentence of a convict. Therefore, this appeal is partly allowed and the sentence of death awarded to the appellant is altered to imprisonment for life".
13. The appellant, soon after the incident, went into hiding till his arrest and he could not explain that why he left the place of occurrence and that why he did not shift the dead body of the deceased to the hospital and did not report the matter. The conduct displayed by the appellant is a circumstance, which invites the attention of this Court regarding his guilty conscience, when his conduct is juxtaposed with the collected evidence, no other inference can be drawn but the one that the appellant has a hand in the affair. His subsequent conduct speaks volumes of his guilt and that the same must be taken into consideration with the circumstantial evidence and the medical evidence. True that abscondance alone will not be sufficient for holding an accused guilty, but once the prosecution succeeds in connecting the accused with the offence charged for, and once the prosecution succeeds in collecting reliable evidence on file, then the unexplained abscondance can be taken into consideration. As in this particular case the appellant was the husband of the deceased and that soon after the tragic death of the deceased, he left the spot till his arrest, so the conduct he displayed is another circumstance, which can be taken into consideration in favour of the prosecution. Reliance is placed on judgment of the Apex Court reported as PLD 2008 Supreme Court 503, in case title "MUHAMMAD LATIF Vs the State", which reads as follows:- "11. As far the contention of the learned counsel that upon circumstantial evidence, one cannot be convicted and awarded the penalty of death, this plea is also misconceived because there is no bar or hindrance to pass the sentence upon a killer of three human beings when the chain of guilt is found not to be broken and irresistible conclusion of the guilt is surfacing from the evidence, which is connecting the accused with the commission of that offence without any doubt or suspicion. If the circumstantial evidence brought on the record is of such nature than the conclusion would be in the shape of conviction and no other conclusion shall be drawn by any stretch of imagination in such a case, for the guilt of the accused, penalty of death or life imprisonment shall be a normal event."
14. The cumulative effect of what has been stated above leads this court to an irresistible conclusion that the prosecution succeeded in bringing home guilt against the appellant and that the learned trial court was justified in holding the appellant responsible for the murder of the deceased. The impugned judgment is well reasoned, which does not call for interference. The instant criminal appeal, being bereft of any merit, is hereby dismissed.
15. Now diverting to the connected Cr.R.No.28-P/2022, filed by the complainant for the enhancement of the awarded sentence, we deem it essential to re-consider the relevant portions of the collected evidence and to re-consider as to whether the learned trial court was justified in awarding the awarded sentence. As admittedly, the incident occurred inside the house of the appellant and that the deceased was married to the appellant 3/4 months prior to the occurrence, so what prompted the appellant to kill the deceased is a circumstance which is a mystery, and till date the same could not be resolved. As the deceased received a single firearm injury and that no positive evidence could be brought on record, regarding the intention of the appellant, so in such eventuality when the cause of killing is shrouded in mystery, then this court has no other option, but to hold that the learned trial court was justified in awarding the awarded sentence. The instant criminal revision, being bereft of any merit, is hereby turned down.