Muhammad Ajmal son of Faiz Bakhsh (convict) was tried by the learned Additional Sessions Judge, Khanpur in the case FIR No. 79 of 2016 dated 01.02.2016 registered at Police Station Saddar Khanpur, District Rahim Yar Khan in respect of an offence under Section 302, PPC for committing the Qatl-i- Amd of Mst. Kareeman Mai daughter of Allah Diwaya (deceased). The learned trial Court vide judgment dated 05.07.2017, convicted Muhammad Ajmal son of Faiz Bakhsh (convict) and sentenced him as infra: - Muhammad Ajmal son of Faiz Bakhsh: Imprisonment for Life under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Mst.
Kareeman Mai daughter of Allah Diwaya (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.
The benefit provided under section 382-B of the Code of Criminal Procedure. 1898. was extended to the convict by the learned trial Court.
2. Feeling aggrieved, Muhammad Ajmal son of Faiz Bakhsh (convict) lodged \the Criminal Appeal No. 385 of 2017 assailing his conviction and sentence. Irshad Ahmad, the complainant of the case, filed Criminal Revision 163 of 2017 seeking the enhancement of the sentence of the convict namely Muhammad Ajmal son of Faiz Bakhsh. This Court intends to dispose of the Criminal Appeal 385 of 2017 and Criminal Revision No. 163 of 2017 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Irshad Ahmad (PW-1), the complainant of the case are as under:- "Stated that on 01.02.2016 at about 11 a.m, I was present at hospital in the area of Chak 131/IL where I received telephonic information that my sister Kariman Mai was murdered by her husband Muhammad Ajmal, accused present before the Court and tried to depict the incident as suicide. I reached alone at Neelgarh at main road where Hazoor Bakhsh S/0 Rahim Khan and Nawaz my brother were also joined me. I informed the police by calling on 15. Thereafter we reached to the house of Kariman Mai deceased. People were already gathered there. Dead body of Kariman Mai was lying on a cot under "CHAPRA"I saw that there were many injuries upon the body of Kariman were Mai deceased including injuries on back side of her head, on her left eye, on her chin below lower, lip. There were also marks of injuries under eye near the nose of the deceased and also upon her neck. I observed that body of Kariman Mai was warm so I called for rescue 1122. Street was narrow so we took Kariman Mai to the end of street where ambulance was parked. They examined her and told that she was expired.
The motive behind the occurrence later on known to us that there was a quarrel between Kariman Mai and her husband on the dispute of milking. Ajmal accused used to torture my sister Kariman Mai and we many times took her to our home due to quarrel between them. Once he tortured Kariman Mai due to which bleeding from her head was occurred and we informed the police through application but due to compromise no F.I.R was registered. When we reached the house of accused Ajmal he was not present there as he already fled away from the spot on motorbike along with another person. The police reached at the spot, my statement was recorded by police officer which is EX. PA which bears my signature EX. PA/1. Police Officer made his proceedings. Abdul Hameed and Ghulam Yasin met me at the spot. They told me that they witnessed Muhammad Ajmal murdering Kariman Mai. They were passing from there and saw that accused Ajmal gave back blow of "KASSI" to back side of head of Kariman Mai that and murdered her. I wrote an application Ex. PB upon which my signature are Ex.PB/1 in this regard and submitted to the SHO. SHO alongwith one Thanedar was present at the spot. SHO called for both the witnesses and their statements were recorded at the place of occurrence. Dead body was transmitted to THQ Hospital Khanpur through ambulance of 1122. After conducting of postmortem they handed over dead body to me after taking receipt Ex. PC which bear my signature Ex. PC/1. I took the dead body to my home and performed her funeral ceremony. Muhammad Ajmal accused did not take part in her Janaza, Qulkhani etc. Accused Muhammad Ajmal present in the Court murdered Kariman Mai without any reason. He be convicted and sentenced accordingly."
4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant namely Muhammad Ajmal son of Faiz Bakhsh was sent to face trial. The learned trial Court framed the charge against the accused on 01.06.2016, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as twelve witnesses recorded. The ocular account of the case was furnished by Abdul Hameed (PW-2) and Ghulam Yasin (PW-3). Irshad Ahmad (PW-1) stated as has been reproduced in paragraph 3 of the judgment. Hazoor Bakhsh (PW-4) stated that on 01.02.2016, the police officials took a piece of carpet (P-1), Datri (P-2) and a piece of cloth (P-3) and also stated that subsequent to the occurrence, the appellant namely Muhammad Ajmal was arrested and led to the recovery of Kassi (P-8). Rao Muhammad Saleem Patwari (PW-5) stated that he prepared the scaled site plane of the place of occurrence (Exh.PG). Muhammad Azam ASI (PW-6) stated that on 0I.O2.2016, he recorded the formal F.I.R (Exh.PA/1). Farhat Hussain (PW-7) stated that on 01.02.2016, the. Investigating Officer of the case handed over to him sealed parcels and on 03.03.2016, he handed over the said parcels to Fida-ur-Rehman SI (PW-8) for their onward transmission to the office of Punjab Forensic Science Agency Lahore. Farhat Hussain (PW-7) further stated that on 06.06.2016, he handed over two sealed parcels to Wazir Ahmed ASI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Naseer-ud-Din Gillani SI (PW-10), recorded the oral statement (Exh. PA) of Irshad Ahmed (PW-1), investigated the case on 01.02.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Saifullah Khan Inspector (PW-12) investigated the case from 01.02.2016 till the submission of the report under Section 173 Cr.P.C., arrested the appellant on 18.03.2016, 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. Mariya Razzaq (PW-11) examined, who on 01.02.2016 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. Kareeman Mai daughter of Allah Diwaya (deceased). Dr. Mariya Razzaq (PW-11), on examining the dead body of Mst. Kareeman Mai daughter of Allah Diwaya (deceased), observed as under:- "EXAMINATION OF NECK: Neck had a prominent ligature mark on anterior right and left sides below the chin area. Bronish
(sic) in colour. On dissection hyoid bone was fractured taken, and sent to PFSA Lahore. There was blood clots present around the thyroid cartilage and glands. Parathyroid glands were also injured.
DESCRIPTION OF INJURY: It was the dead body of female lying naked and supine on the mortuary table. Postmortem staining was present and rigor mortis present.
1. Lacerated wound 4 X 1 CM, Bone exposed at right parietooccipital area with bleeding from wound 12 CM above and behind right ear.
2. Laceration of 1 X 1 CM just below the anterior angle of left eye, clotted blood present on wound.
3. An abrasion 4 X 1 CM on left cheek near nose lower part.
4. An abrasion 3 X 1 CM on upper lip.
5. An abrasion 5 X 0.5 CM on left side of chin.
6. Ligature mark 10 X 2 CM in horizontal direction below the chin on neck anterior right and left side.
OPINION After receiving reports from PFSA. Lahore, Toxicology Analysis report No. 2016-Tox-712 dated 0I.O4.2016, No DRUG/ POISON DETUCTED (sic) in the liver in Item No. 1. Also by report No. PFSA-2016 PATH277-PATH6821 dated 0I.O7.2016 by Forensic Histopathology Section of PFSA, Lahore LUNGS SECTIONS SHOWED VASCULAR CONGESTION AND OEDEMATOU ALVEOLI AND HYOID BONE HAVING FOCI FO BLOOD HEMORRHAGAS SUGGESTIVE OF ANTIMORTEM INJURY OF HYOID BONE. According to forensic DNA and Serology Analysis report No. PFSA 2016-DNA4788 dated. 09.06.2016, HUMAN BLOOD WAS IDENTIFIED ON ITEM Nos. 1 AND 2.
Hence, the final opinion is that deceased had died due to Injuries No. 1,2,3,4,5 & 6. These injuries were antemortem and caused by blunt weapon for Injury No. 1,2,3,4,5 and ligature for Injury No. 6.
These injuries were antemortem and sufficient to cause death in an ordinary course of nature.
Expected duration between death and post (within twelve hours) PMR No. 04/2016 MR as mortem Ex.PK with pictorial diagram prepared and signed Yar Khairy me. I also endorsed injury statement Ex.PH and inquest report Ex. PJ."
7. On 15.02.2017 the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Saima Bibi, Muhammad Bilal Muhammad Nawaz and Naseer Ahmad 994/C as being unnecessary. On 27.05.2017 the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Younas SI as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh.PM, Exh.PN and Exh.PO).
8. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Muhammad Ajmal son of Faiz Bakhsh 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 Muhammad Ajmal son of Faiz Bakhsh opted not to get himself examined under Section 340(2), Cr.P.C. however, produced the certified copy of-the application (Exh.DD), the certified copy of the statement of Saima Bibi recorded under Section 164, Cr.P.C. (Exh.DE) along with the certificate (Exh.UF) as evidence in his defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, 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 submitted that the recovery of the Kassi (P-8) was full of procedural defects, of no legal worth and value, and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity. The learned counsel for the appellant finally submitted that the prosecution 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 learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Abdul Hameed (PW-2) and Ghulam Yasin (PW-3). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the Kassi (P-8) from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were-related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal.
12. I have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
13. This Court has already reproduced the statement of Irshad Ahmad (PW-1), the complainant of the case, in paragraph 3 of the judgment and a perusal of the same reveals that Irshad Ahmad (PW-1) had not witnessed the occurrence and only reported the matter to the police. Irshad Ahmad (PW-1) also admitted the said fact that he had not witnessed the said occurrence and during cross-examination stated as under: "It is correct that I am not the eye-witness of the occurrence."
Irshad Ahmed (PW-1) claimed in his statement recorded by the learned trial Court that the occurrence was witnessed by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) and they had also told him about the details of the instant occurrence. In this manner, it is an admitted fact that the prosecution witness namely Irshad Ahmad (PW-1), the complainant of the case, on whose oral statement (Exh.PA), the formal (Exh.PA/1) was recorded, was not an eye-witness of the occurrence. The whole prosecution case revolves around the statements of Abdul Hameed (PW-2) and Ghulam Yasin (PW-3), the eye-witnesses of the occurrence. The relationship of both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) with the deceased is on record. Mst. Kareeman Mai (deceased) was the real cousin (Mamozad) of Abdul Hameed (PW-2) and the real paternal cousin of Ghulam Yasin (PW-3).
Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were also admittedly not the residents of the place of occurrence. According to both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3), they had their own separate houses, which houses were at quite a distance from the place of occurrence. Abdul Hameed (PW-2) during cross-examination stated as under: "I am cousin (MAMOZAD) of complainant and Kariman Mai deceased. .............................................
My house is 12/13 KM away from the house of Ajmal accused. ..........................................
The house of PW Ghulam Yasin is about 18/20 KM away from the house of Ajmal accused."
Similarly Ghulam Yasin (PW-3) during cross-examination, stated as under: "I am cousin (CHACHAZAD) of complainant and deceased. I am R/O Bagho Bahar which is 12 KM away from the house of Ajmal accused."
Irshad Ahmad (PW-1) also stated during cross-examination as under: "House of Abdul Hameed PW is 7/8 KM away from the house of Ajmal accused. House of Yasin PW.
10/12 KM away from the house of Ajmal accused."
It is an admitted fact that both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not the residents of anywhere near the place of occurrence rather they were residing in their own houses which were at a distance of about 12 Kilometers from the place of occurrence, in case of the prosecution witness namely Abdul Hameed (PW-2) and at a distance of about 18 Kilometers, in the case of prosecution witness namely Ghulam Yasin (PW-3). In this manner, both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and they were also under a duty to prove their presence by producing some physical proof of the same. In order to prove their presence at the place of occurrence, at the time of occurrence, the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) claimed that when they were on their way to Khanpur from Bagho Bahar when they happened to pass from the near the place of occurrence and saw the happening of the occurrence. A perusal of the record reveals that both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) failed miserably to prove the fact that they had witnessed the occurrence. During the cross-examination, it was brought on record that both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) made blatant and dishonest improvements to their previous statements recorded during the investigation of the case with regard to their claim that they were on their way to Khanpur from Bagho Bahar when they happened to pass from the near the place of occurrence and saw the happening of the occurrence. The prosecution witness namely Abdul Hameed (PW-2) was cross-examined and the learned trial Court observed as under: "I got recorded in my examination in chief that I was going towards Khanpur from Bagho Bahar.
Confronted with Ex. DA where it is not so recorded."
Similarly, the prosecution witness namely Ghulam Yasin (PW-3) was cross-examined and the learned trial Court observed as under: "I got recorded in my examination in chief that I was going towards Khanpur from Bagho Bahar.
Confronted with Ex. DB where it is not so recorded."
The said improvements made by prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statements, Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) impeached their own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: "151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;"
As Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence, their credit stands impeached and Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the Court. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf vs. State" (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha vs. The State" (2018 SCMR 772) has enunciated the following principle: "Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence".
The august Supreme Court of Pakistan in the case reported as Muhammad Arif vs. The State (2019 SCMR 631) has enunciated the following principle: "it is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Amin Ali and another vs. The State" (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- "11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased.
Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No. 1/B which was an exit wound.
If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P. W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P. Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance.
From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution. ..........................................................
13. From the above evidence of the P. Ws they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence."
14. As mentioned above, both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not the residents of the place of occurrence and claimed that they were going to Khanpur from Bagho Bahar when they witnessed the occurrence however, besides having not stated so in their statements recorded by the police, it was also proved that they could not give any consistent reason as to why they were proceeding to the city of Khanpur on the day of the occurrence. According to the prosecution witness namely Abdul Hameed (PW-2), he and Ghulam Yasin were going to Basti Haleeli to see the goats which had been purchased by Abdul Hameed (PW-2) whereas according to the prosecution witness namely Ghulam Yasin (PW-3), he had no idea why they were going to Basti Haleeli. Abdul Hameed (PW-2) during cross-examination stated as under: "Ghulam Yasin accompanied with me to see goats which. I purchased from Rajanpur. I and Ghulam Yasin were going to see the goats to. Basti of Halili which was near to the house of Ajmal accused."
Whereas Ghulam Yasin (PW-3) during cross-examination stated as under: "I do not know that why Abdul Hameed was going to Basti Halili. I was going to Khanpur with Abdul Hameed just for meeting but nothing. Basti Halili is situated at a distance accused of 30 minutes from the house of Ajmal accused. " (emphasis supplied)
Furthermore, though both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) claimed that the occurrence had taken place inside the house of the appellant Muhammad Ajmal and that they had witnessed the same, however, admitted that they did not even enter the house where the occurrence had taken place. The prosecution witness namely Abdul Hameed (PW-2) during cross-examination stated as under:-.
"I and Ghulam Yasin did not enter into the house of Ajmal accused."
Similarly, the prosecution witness namely Ghulam Yasin (PW-3) during cross-examination stated as under: "Volunteer, we did not enter into the house of Ajmal accused."
When both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) admitted that they had not even entered the house where the occurrence took place then they were under a duty to prove that they were present at a place which was at such a distance that they could have witnessed the details of the occurrence which was taking place while being present at the said place, however, both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) admitted that they were present at a place which was quite far away from the place of occurrence therefore it would not have been possible for the said prosecution witnesses to have witnessed the occurrence from such a huge distance. The prosecution witness namely Abdul Hameed (PW-2) admitted during cross-examination as under:- "The house of Ajmal accused is situated on the eastern side of above mentioned road at a distance of 7/8 acres."(emphasis supplied)
In this scenario, it would have been impossible for the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) to have witnessed the occurrence from a distance of 7/8 acres when they did not even enter the house where the same was taking place. This Court has also perused the scaled site plan of the occurrence (Exh. PG) as prepared by Rao Muhammad Saleem Patwari (PW-5) and the rough site plan of the place of occurrence (Exh. PL) as prepared by Saifullah Khan Inspector (PW-12) and find that in both the site plans, (Exh.PG and Exh PL), the place of occurrence has been mentioned as a room whereas the house where the occurrence took place has been shown to be surrounded by a boundary wall. Moreover, both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) admitted that the house where the occurrence took place was on the northern side of the road whereas the door of the said house had been constructed on the western side of the house itself, clearly establishing the fact that any person travelling on the road could not have been able to witness the occurrence happening inside the room of the house for the simple reason that his view would have been obstructed by the wall of the said house. Abdul Hameed (PW-2) during cross-examination admitted as under: "The main entry of house of Ajmal accused is towards western side."
Both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) claimed that they had witnessed the occurrence by standing on the road and were able to do so because the door of the house was open but admitted that the door of the said house was constructed on the western side. A similar description of the place of occurrence has been given in the scaled site plan of the occurrence (Exh. PG) as prepared by Rao Muhammad Saleem Patwari (PW-5) and the rough site plan of the place of occurrence (Exh. PL) as prepared by Saifullah Khan Inspector (PW- 12). In this manner, it is proved that both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) made a false claim with regard to them 'witnessing the occurrence.
Furthermore, it was claimed by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) that they had gone to the place of occurrence on a motorcycle, however, during the course of the investigation as well as before the learned trial Court, the said motorcycle allegedly used by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) to arrive at the place of occurrence was not produced. Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, visited the place of occurrence, after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) to arrive at the place of occurrence alongwith the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of occurrence, if the same was available. The said motorcycle which was used by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) was not even produced during the entire period of investigation nor was produced before the learned trial Court. The non- production of the motorcycle used by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) and the failure of Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) as well as the Investigating Officer of the case to produce the same before the learned trial Court, leads to only one conclusion and that no such motorcycle was available. The very inception of the prosecution case is therefore put in doubt. In this manner, both the eyewitnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) not only failed miserably to establish the reason for their arrival and presence at the place of occurrence, at the time of occurrence but also the mode through which they came to arrive at the place of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) had proceeded to and arrived at the place of the occurrence and the failure to prove any reason for the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) to have proceeded to the place of occurrence and the failure to prove the mode through which they came to arrive at the place of occurrence, has vitiated the trust of this Court in Abdul Hameed (PW-2) and Ghulam Yasin (PW-3).
I, thus, am satisfied that the evidence of Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) has no intrinsic worth and is to be rejected out rightly. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant, Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore, the said eye-witnesses being chance witnesses, were declared not worthy of reliance.
Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
15. I have also marked with concern that the alleged 'eye-witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3), made no effort either to save the deceased or to apprehend the appellant when they were two in number and could have easily restrained the accused, who at the time of occurrence, was alone and not even using the sharp side of the Kassi allegedly carried by him. It is unnatural and unbelievable that the alleged eye-witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) did not even move a limb to protect their near and dear one. I have perused the postmortem examination report of the deceased and the unfortunate deceased had received as many as six injuries on her body. During the receiving of the said injuries, nobody helped her. I have observed that despite the claimed presence of Abdul Hameed (PW-2) and Ghulam Yasin (PW-3), no effort was made to save the life of the deceased namely Kareeman Mai.
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 had arrived at the place of occurrence, prior to the occurrence. As per the statement of Dr. Mariya Razzaq (PW-11), the deceased had received six injuries and that during this episode of causing the said injuries some time must have been consumed however, Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) remained silent spectators and did not react at all or showed any response when the incident was taking place. According to the opinion of Dr. Mariya Razzaq (PW-11), the deceased died after about 30 minutes of receiving the injuries however, even in those 30 minutes, no effort was made by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) to save the deceased. I have noted a very worrying statement made by the prosecution namely Ghulam Yasin (PW-3) that they left the place of occurrence and went on to visit Basti Haleeli, when at the time of their leaving, Mst. Kareeman Mai was still alive. Both the prosecution witnesses also admitted that they did not tell anyone regarding the occurrence and conveniently left the place of occurrence to visit Basit Haleeli despite the fact that they had allegedly just witnessed the brutal murder of their cousin. Ghulam Yasin (PW-3) during cross-examination stated as under: "It consumed 5 to 10 minutes while we saw the occurrence. We did not inform any one when we the occurrence. We went straight to Basti Halili. .................................................
Kariman Mai deceased had not died in our presence"(emphasis supplied)
A similar statement was made by Abdul Hameed (PW-2) who during cross-examination stated as under: "I did not stop the accused physically. ..............................
It consumed two minutes while we were seeing the occurrence. After that we went away from there to Basti Halili. It is correct that we did not inform any one regarding the occurrence."(emphasis supplied)
No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailant The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) had been present at the place of 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. I 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 eposed by them, was opposed to common course of natural events, human conduct and that the witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not present at the time of occurrence at the crime scene. I hence am holding that these witnesses, namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not present at the place of occurrence, at the time of occurrence and their presence was procured subsequently. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances. Reliance is placed on the case of "Zulifqar Ali v. The State" (2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under: "Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target 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 mind boggling 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 causing 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 hint. This makes their presence at the spot doubtful."
16. This Court also observed that according to the witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3), the occurrence took place only when they had arrived at the place of occurrence. This narrative of the witnesses that the accused, despite observant of the fact that the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3), were present outside the house where the occurrence took place, still committed the same, is atypical and cannot be believed. It is opposed to human conduct that an assailant would, despite having the knowledge of the presence of the witnesses, proceed with the commission of the offence. It is all the more illogical that being perceptive of the chance and rare presence of the witnesses, the accused ran the risk of committing the offence in their presence. Such behavior, on part of the accused, as deposed by the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) runs counter to natural human conduct and behavior. Hence, being perceptive of this strain of human conduct, I am holding that Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence. In this regard reliance is placed on the case of "State through Advocate-General, Khyber Pakhtunkhwa, Peshawar vs. Hassan Jalil and others" (2019 SCMR 1154) wherein the august Supreme Court of Pakistan held as under:- "Arrival of Noor Seema; PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case."
Reliance is also placed on the case of Muhammad Imran vs. The State (2020 SCMR 857) wherein the august Supreme Court of Pakistan held as under: "These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself"
17. Another aspect of the case noted by this Court with some gravity is the fact that both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not mentioned as witnesses who had witnessed the occurrence in the oral statement (Exh.PA) of Irshad Ahmad (PW-1) as recorded by Naseer-ud-Din Gillani SI (PW-10). According to the statement of Naseer-ud-Din Gillani SI (PW-10), he had recorded the oral statement (Exh.PA) of Irshad Ahmad (PW-1) on 0I.O2.2016 at 03.00 p.m. however, admittedly both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not mentioned as witnesses in the said oral statement (Exh.PA). Naseer-nd-Din Gillani SI (PW-10) during cross-examination stated as under: "It is correct that I wrote the time of sending the complaint to the police station at 03.00 p.m."
According to the statement of Irshad Ahmad (PW-1), he had met both the witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) prior to the recording of his oral statement (Exh.PA) but still the names of both the witnesses namely Abdul Hameed (PW-2i and Ghulam Yasin (PW-3) were not mentioned in the oral statement (Exh.PA) of Irshad Ahmad (PW-1) which fact in itself proves that both the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW- 3) had made a false, delayed, planned, contrived and a sham claim of having witnessed the occurrence. Irshad Ahmad (PW-1) during cross-examination admitted as under: "Police reached at the spot at about 1.30 p.m. I, Hazoor Bakhsh, Nawaz, Yasin, Iqbal and some females and other people of locality were present when police reached there. The above said Yasin is the same person as my witness in this case. It is correct that names of Yasin and Abdul Hameed are not mentioned in Ex. PA."(emphasis supplied)
Abdul Hameed (PW-2) during cross-examination stated as under: "It consumed 20/25 minutes in Basti Halili there after we came back to the house of Ajmal accused. ..........................................
Police reached at the place of occurrence at 11.00 a.m. Police remained at the place of occurrence for two hours."
Furthermore, Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, admitted during cross-examination that the presence of the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) had not been mentioned by him in the rough site plan of the place of occurrence (Exh.PL). Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, during cross-examination stated as under: "It is correct that I have not mentioned the presence of above said PWS in my rough site plan in Ex.PL"
Moreover, this Court has also noted that the alleged eyewitnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not mentioned in Column No. 4 or page 4 of the inquest report (Exh. PJ) as being the ones who were present at the time of preparation of the said inquest report (Exh. PJ) by the investigating officer. In Column No. 4 and page 4 of the inquest report (Exh. PJ) the names of Saima Bibi and Muhammad Bilal (mentioned in Column No. 4), Muhammad Nawaz and Hazoor Bakhsh (mentioned at page 4) had been recorded and, the names of both Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) did not figure in the same. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be believed.
18. Another aspect of the case raising doubt over the presence of the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (FW-3) at the place of occurrence, at the time of occurrence is the fact that as mentioned above, Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) never reported the matter to the police or to anyone and made no efforts to take the deceased to any hospital during, the said time period. Furthermore, according to the prosecution case, Naseer- ud-Din Gillani SI (PW-10), got the information about the occurrence and reached the place of occurrence however, the oral statement (Exh.PA) of Irshad Ahmad (PW-1) was recorded by Naseer- ud-Din Gillani SI (PW-10) at the place of occurrence after his arrival there at 03.00 p.m. The august Supreme Court of Pakistan in the case of "Abdul Jabber alias Jab bani v. The State" (2017 SCMR 1155) 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."
I have also noted that despite the fact that the occurrence had allegedly taken place just before 11.00 a.m, however the oral statement (Exh.PA) of Abdul Hameed (PW-2) was recorded by Naseer- ud-Din Gillani SI (PW-10) at 3.00 p.m and the formal FIR (Exh.PA/1) was not registered till 3.30 p.m.
The prosecution witness namely Ghulam Yasin (PW-3) gave the time of arrival of the witnesses at the place of occurrence as under: "We departed from my house at 10.00 a.m. ........................................................................
We reached at the house of Ajmal accused at 11.00 a.m."
As mentioned above, according to the statement of prosecution witness namely Abdul Hameed (PW-2), the police had arrived at the place of occurrence at about 11.00 a.m. however,-still the oral statement oral statement (Exh.PA) of Irshad Ahmad (PW-1) was recorded by Naseer-ud-Din Gillani SI (PW-10) at 3.00 p.m. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one, because, the witnesses never reported the matter to the police for as many as four hours. This inordinate delay in reporting the matter conclusively proves that the oral statement (Exh.PA), written application (Exh.PB) of Irshad Ahmed (PW-1) and the formal F.I.R (Exh.PA/1) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival. As many as four hours were taken to invent a false and dishonest narrative of the oral statement (Exh.PA) and written application (Exh.PB) of Irshad Ahmed (PW-1). The scrutiny of the statements of the prosecution witnesses reveals that the oral statement (Exh.PA) and written application (Exh.PB) of Irshad Ahmad (PW-1) were neither prompt nor spontaneous nor natural, rather were contrived, manufactured and compromised documents. 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 their absence at the time of occurrence, at the place of 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 morning 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 occurrence at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In. the circumstances, chances 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 Shaft alias Kuddoo vs. The State and others (2019 SCMR 1045).
19. It is also an admitted fact of the prosecution case that the place of occurrence was occupied by the other family members of the Mst. Kareeman Mai (deceased). Irshad Ahmad (PW-1) in his statement before the learned trial Court stated that Mst. Kareeman. Mai (deceased) was blessed with the birth of children and the said children were present in the same house where the occurrence took place. In his statement before the learned trial Court, Irshad Ahmad (PW-1) stated as under: "Kariman Mai has two sons and four daughters. Muhammad Ajmal has not contracted second marriage. The younger child is female of 2 or 21/2 years of age. The eldest is a son 14/15 years of age. Her daughter Saima is two year younger from the eldest son Amjad. ..............................................
It is correct that I recorded in my statement when that Saima Bibi and Bilal were present when I reached the spot." (emphasis supplied)
Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, also admitted during cross- examination asunder: "It is correct that six children of deceased and accused Muhammad Ajmal were residing (Sic)"
Furthermore in the inquest report (Exh.PJ) the names of Saima Bibi and Muhammad Bilai (Mentioned in Column No. 4) were recorded. The said Saima Bibi, daughter of the deceased namely Kareeman Mai, though was Cited as a prosecution witness in the report under Section 173, Cr.P.C. however, she was given up by the learned Deputy District Public Prosecutor as an unnecessary witness on 15.02.2017. Neither during the course of investigation nor before the learned trial Court, the statements of the other children of Mst. Kareeman Mai (deceased), who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence, were recorded. This failure of Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, to include in investigation the inhabitants of the house where the occurrence had taken place and the failure of the prosecution to produce the said inhabitants of the place of occurrence, reflects poorly upon the veracity of the prosecution case. Article 129 of the Qanun-e- Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under: "(g) that evidence which could be and is not produced would; if produced, be unfavourable to the person who withholds it."
The failure of the prosecution to produce the residents of the place of occurrence and the most natural witnesses, before the learned trial Court, has convinced this Court that had they been produced before the learned trial Court they would not have supported the prosecution case.
Reliance in this matter is placed on the case of Shamshad versus The State (1998 SCMR 854 also cited as 1999 SCMR 2844) wherein the august Supreme Court of Pakistan held as under: "10. The prosecution has also failed to offer a plausible explanation as to why the children of the appellant, who were, admittedly, present in the house at the time of the incident, were not produced as witnesses in the case. In fact, the children of the appellant were the most natural witnesses of the occurrence, However, the Investigating Officer thought it fit not to examine them as witnesses. When confronted with this situation, at the time of his cross-examination he explained that two daughters and the son of the appellant were less than? years of age. However, in. the same breath it was admitted by him that Ruhi Bano was about 8 or 9 years of age. The other children were a few years younger. However, at least the older children under normal circumstances could have given evidence in the Court. The explanation given by the Investigating Officer, therefore, was not tenable. ....................................................................
13. Learned State Counsel has however, argued that in case the prosecution had failed to examine any of the appellant's children as a witness, they should have been examined as defence witnesses. It has been further argued that if there are two versions, one given by the prosecution and the other by the defence, then if the latter is not believed, the prosecution version must be believed as true. In our view, both the contentions are untenable. Burden to prove its case beyond a reasonable doubt squarely rests on the prosecution. Such burden cannot be discharged by weaknesses found in the case of the defence. The mere fact that the defence version is not believed by the Court cannot lend credence to the prosecution case if, otherwise, the prosecution has failed to discharge its burden. For the reason enumerated above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the appellant. "(emphasis supplied)
Reliance is also placed on the case of Lal Khan versus The State (1996 SCMR 1846) wherein the august Supreme Court of Pakistan held as under: "The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
Reliance is also placed on the case of Usman alias Kaloo versus The State {2017 SCMR 622) wherein the august Supreme Court of Pakistan held as under: "A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother, wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the Investigating Officer nor were they produced before the trial Court".
Reliance is also placed on the cases of Muhammad Irshad vs. Allah Ditta and others (2017 SCMR 142) and G. M. NIAZ vs. The State" (2018 SCMR 506). In this manner, the prosecution case suffers from inherent defects which are irreconcilable as it is.
20. It has been argued by the learned Deputy Prosecutor General that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the 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 tact 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 State (2017 SCMR 724), wherein, it held as under: "It has been argued by the learned counsel for the complainant that in the cases 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 circumstances 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 circumstances 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 otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. The Article 122 of the Qanun-e-Shahadat, 1984 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. Throughout the web of the Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the accused's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the accused is the law and no attempt to whittle it down can be entertained. As discussed above; the witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be the one of the residents of the place of occurrence. An accused person cannot be convicted merely, because he did not explain the circumstances in which the deceased had lost her life. The august Supreme Court of Pakistan has held in the case of "Muhammad Jamshaid and another vs. The State and others" (2016 SCMR 1019) as under: "only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the Courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the Courts below to be nothing but speculative".
The august Supreme Court of Pakistan has held-in the case of "Arshad Khan vs. The State" (2017 SCMR 564) as tinder: "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 SCM R 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 u. 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 elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house. It had, however, been held in the case of Abdul Majeed v.
The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of.an inference or a supposition qua his involvement."
The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941) as under: "The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed."
21. The learned Deputy Prosecutor General along with the learned counsel for the complainant has submitted that the recovery of the Kassi (P-8) and, the report of Punjab Forensic Science Agency,, Lahore (Exb.PN) offered sufficient corroboration of the statements of the eye-witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3). Regarding the recovery of the Kassi (P-8) from the appellant namely Muhammad Ajmal son of Faiz Baldish, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Kassi (P-8) from the appellant which was in clear violation of Section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. The State (2017 SCMR 898) at page 901 has held as under: "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard."
I have also noticed that the Kassi (P-8) was shown to--have been recovered on 28.03.2016 from the same house where the occurrence had taken place on 01.02.2016. Saifullah Khan Inspector (PW-12) admitted the said fact and stated during cross-examination as under: "It is correct that I have mentioned on the eastern sick of place of recovery room as place of occurrence. It is correct that the above said room is that room from where I recovered some articles i.e. Kapra, Daranti and piece of Carpet on 01.02.2016."
The padding of the prosecution case by showing a false recovery of the Kassi (P-8) on 28.03.2016 from the same house where the occurrence took place on 01.02.2016 is obvious. Saifullah Khan Inspector (PW-12),the Investigating Officer of the case, spent substantial time at the place of occurrence on 01.02.2016 and also made certain recoveries of articles present there and in that manner had the Kassi (P-8) been present at the same house where the occurrence took place, then the same would have definitely been observed by Saifullah Khan Inspector (PW-12),the Investigating Officer of the case, however, it was not. It simply cannot be believed that the Kassi (P- 8) was recovered on 28.03.2016 from the same house where the occurrence had taken place on 01.02.2016. Moreover, Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, admitted that he had not mentioned in the recovery memo. (Exh. PE) through which the Kassi (P-8) was taken into possession that the same, was blood stained. Saifullah Khan Inspector (PW-12), the Investigating Officer of the case, during cross-examination admitted as under: "It is correct that I have not mentioned Exh.PE that Kassi weapon of offence was blood stained."
In absence of the evidence that the recovered Kassi (P-8) was stained with human blood; the recovery of the same offers no corroboration of the statements of the eye-witnesses namely Abdul Hameed (PW-2) and Ghulam Yasin (PW-3). It has also been noticed by this Court that the occurrence took place on 01.02.2016, whereas the Kassi (P-8) was sent to the office of Punjab Forensic Science Agency, Lahore on 06.06.2016 and was analyzed on 09.06.2016. During such a long period the blood available on the Kassi (P-8), if any, would have disintegrated. It is not possible to believe that the blood available on the Kassi (P-8) had not J disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of "Faisal Mehmood vs. The State" (2016 SCMR 2138) has held as under: "The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks."
Therefore, the recovery of the Kassi (P-8) from the appellant does not further the case of the prosecution in any manner. In view of the above-mentioned facts, the alleged recovery of the Kassi (P-8) is not proved and the same cannot be used as a circumstance against the appellant. Even otherwise as this Court has disbelieved the ocular account in this case, hence the evidence of recovery of the Kassi (P-8) would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
22. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Irshad Ahmad (PW-1) was that there was a quarrel between the deceased namely Kareeman Mai and the appellant on the dispute of milking the cows. It was further stated by Irshad Ahmad (PW-1) that the appellant namely Muhammad Ajmal accused used to torture the deceased namely Kareeman Mai and many times Kareeman Mai (deceased) had to be taken to her parent's house so as to be protected from the appellant The prosecution witness namely Irshad Ahmad (PW-1) admitted that the incident regarding the dispute between the appellant and the deceased concerning the Milking of the cows was not witnessed by any of the prosecution witnesses rather the same had been brought to their knowledge subsequently.
Irshad Ahmad (PW-1) in his statement before the learned trial Court did not explain as to when and through whom he came to know about the quarrel between the appellant and the deceased over the milking of the cows. In absence of any evidence so as to prove such a quarrel, this Court cannot presume the same. The other part of the motive as stated by Irshad Ahmad (PW-1) was that there used to be episodes of beating being given to the deceased by the appellant however Irshad Ahmad (PW-1) himself admitted that the said episodes of beating were never reported either to the police or to anyone else. Irshad Ahmad (PW-1) also did not state that the said episodes of the beating of the deceased by the appellant ever happened in his presence. No evidence has been brought on record to establish that the deceased had ever left her matrimonial home to live with her parents or her brother Irshad Ahmad (PW-1). Even on the day of occurrence, the deceased was living with the appellant. It has also been mentioned above that the appellant and the deceased were blessed with the birth of as many as six children and the whole family was living together even on the day of the occurrence. There is no evidence ' on record that Mst.
Kareeman Mai (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 a happy matrimonial life with the appellant till her tragic death. The prosecution witnesses failed to provide evidence enabling this Court 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 haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
23. The only other piece of evidence left to be considered is the medical evidence with regard to the injuries observed on the dead body, of the deceased by Dr. Mariya Razzaq (PW-11) 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 this Court, 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 confirmatory 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."
24. Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of appellant namely Muhammad Ajmal son of Faiz Bakhsh 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 u. 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 "ii is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful,the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused ."
25. For what has been discussed above Criminal Appeal No. 385 of 2017 lodged by Muhammad Ajmal son of Faiz Bakhsh (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment dated 05.07.2017 are hereby set-aside. Muhammad Ajmal son of Faiz Bakhsh (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Muhammad Ajmal son of Faiz Bakhsh (appellant) is in custody and is directed to be released forthwith if not required in any other case.
26. Pursuant to the discussion made and conclusions arrived at above, the Criminal Revision No. 163 of 2017, seeking the enhancement of the sentence of the accused namely Muhammad Ajmal son of Faiz Bakhsh, is hereby dismissed.