Sadiq Mahmud Khurram, J. Muhammad Naeem son of Sufi Akram-ul-Haq (convict) was tried by the learned Additional Sessions Judge, Rahim Yar Khan in the case FIR No. 182 of 2018 dated 03.07.2018 registered at Police Station Saddar Rahim Yar Khan, District Rahim Yar Khan in respect of an offence under section 302, PPC for committing the Qatl-i-Amd of Ayesha Bibi daughter of Manzoor Ahmad (deceased). The learned trial Court vide judgment dated 19.08.2019, convicted Muhammad Naeem son of Sufi Akram-ul-Haq (convict) and sentenced him as infra: Muhammad Naeem son of Sufi Akram-ul-Haq: Death under section 302(b). PPC as Tazir for committing Qatl-i-Amd of Avesha Bibi daughter of Manzoor Ahmad (deceased) and directed to pay Rs. 500.000/-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 convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Muhammad Naeem son of Sufi Akram-ul-Haq (convict) lodged Criminal Appeal No. 4674 of 2019 assailing his conviction and sentence. The learned trial Court submitted Murder Reference No. 22 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Naeem son of Sufi Akram-ul- Haq. We intend to dispose of the Criminal Appeal No 4674 of 2019 and Murder Reference No. 22 of 2019 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Manzoor Ahmad (PW-1), the complainant of the case are as under: "States that on 3.7.2018 at about 11.00 a.m I alongwith my son Ishaq and my nephew Amjad was going towards Adda Chak No. 72/NP when we heard the scared cries of my daughter Aisha Bibi. My nephew Amjad opened the door of house with the kick and we entered into the house where accused Naeem present in Court was pressing the neck of my daughter with cloth and on seeing us, accused Naeem fled away with the cloth. We attended my daughter but she breathed her last in our presence. Some of the residents of locality informed the police about this occurrence. Police reached there and attended the dead body. I got recorded my statement Exh.PA to the police which bears my thumb-impression. Accused has committed brutal murder of my daughter, so accused Naeem be punished in accordance with law."
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellant namely Muhammad Naeem son of Sufi Akram-ul-Haq was sent to face trial. The learned trial Court framed the charge against the accused on 15.1.2018, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as nine witnesses recorded. The ocular account of the case was furnished by Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2). Riaz Ahmad 313/HC (PW-4) stated that on 03.07.2018 Ghulam Abbas, SI (PW-3) handed over to him the last worn clothes of the deceased along with two sealed tins and eight sealed envelopes and on 17.07.2018 he handed over the said articles Ghulam Abbas,. SI (PW- 3) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Riaz Ahmad 313/HC (PW-4) further stated that on 30.07.2018 Ghulam Abbas, SI (PW-3) handed over to him a dupatta which on 01.08.2018 he handed over the same to Ghulam Abbas, SI (PW-3) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Abid Hussain 734/HC (PW-6) stated that he escorted the dead body of the deceased to the hospital for its post mortem examination and also received the last worn clothes from the decesed from the Woman Medical Officer. Qamar Hussain, SI (PW-7) stated that on 03.07.2018 he recorded the formal F.I.R (Exh.PA/1).
Muhammad Asghar Patwari (PW-8) prepared the scaled site-plan of the place of occurrence (Exh.
PG). Shaukat Ali, ASI (PW-5) investigated the case on 03.07.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Ghulam Abbas SI (PW-3) investigated the case from 03.07.2018 till 15.02.2019, arrested the appellant on 26.07.2018, 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. Maryam Mumtaz (PW-9) examined, who on 03.07.2018 was posted as Senior Demonstrator at Sheikh Zayed Hospital Rahim Yar Khan and on the same day conducted the postmortem examination of the dead body of Ayesha Bibi daughter of Manzoor Ahmad (deceased). Dr. Maryam Mumtaz (PW-9), on examining the dead body of Ayesha Bibi .daughter of Manzoor Ahmad (deceased) observed as under: "Examination of neck.
Injury No. 1: A bruise measuring 4 x 1 cm dark brown coloured situated below the right jaw line laterally, 2 cm from middle of chin.
Injury No. 2: A bruise measuring 4 x 1 cm situated just below chin, about 3 cm away from central chin line, transverse in direction and 1 cm inferomedial to injury No. 1.
Injury No. 3: Bruise measuring 1.5 x 0.5 cm situated below the body of left mandible, 3 cm away from central chin line, situated laterally and 1.5 cm above and lateral to injury No. 2 On deep dissection: There was no subcutaneous haemorrhage on arytenoid and thyroid cartilage. Hyoid bone was intact, however, taken and sent to Histopathologist. Flap of skin of Injury No. 1 and 2 were taken and sent to Histopathologist for ruling out whether ante-mortem or post mortem.
REMARKS/OPINION: After conducting thorough autopsy, I was of the opinion that the cause of death cannot be ascertained at this stage. "However, the possibility of interference at the level of neck cannot be ruled out". Flap of bruises and hyoid bone was taken and sent to Histopathologist. Final opinion could be given after receiving results from concerned departments.
Probable time that elapsed between the injuries and death was not ascertained and within 24 hours between death and post-mortem.
After the post-mortem examination, I handed over the dead body, police papers, post-mortem report and last worn cloths of the deceased and above mentioned articles to Abid Hussain 1034/C.
The post-mortem report Ex.P.H is the correct carbon copy of the original report, which is in my hand writing and bears my signatures. The diagram (two pages) showing the seat of injuries Ex.P.H/1 and Exh.PH/2 is drawn by me and it bears my signatures. The injury statement of Mst. Ayesha deceased Ex.P.PF and inquest report Ex.PF/1 prepared by police were also seen and signed by me.
Report of Forensic Toxicology Analysis bearing PFSA case No. 2018-154249-TOX-08705 dated 30.08.2018 results and conclusions is "Drugs/Poisons were not detected in liver and stomach contents in Item No. 1."
Report of Forensic Histopathology bearing Agency case No. PFSA-2018-154249-PATH-04379 dated 18.09.2018 conclusion report of "Histological examination of Sections from heart reveals patent coronaries. The myocardial sections are unremarkable. The lung sections reveal vascular congestion and presence of edematous fluid inside alveoli. The brain sections reveal vascular congestion of meninges and of brain tissue. The renal tissue is congested. The liver sections reveal no pathological changes. Histological examination of the hyoid bone reveals intact hyoid bone. No ante-mortem injury is seen. The skin and underlined tissues from Injury 1 & 2 reveals blood hemorrhages suggesting ante-mortem nature of injury".
X-rays report of Skull, C.Spine Chest, abdomen and Pelvis of deceased Ayesha Bibi bearing MLC No. 132 to 136 dated 04.07.2018 of Autopsy No. 413/MM/2018 of Radiologist is available on judicial file, which reads as under: "Views not proper with artifacts."
"No fracture of bones seen in these skiagrams. No metallic FB seen".
FINAL OPINION: After receiving the above said reports, my final opinion regarding the cause of death in this case is manipulation at the level of neck. After receiving reports from PFSA No. 2018 154249-DNA-22280 dated 31.1.2019, seminal material was found on external and internal vaginal swabs. Trace number of spermatozoa were identified on external and internal vaginal swabs. My final opinion is Exh.PH/3 which is attested copy of original and in my hand writing and bears my signature."
7. On 19.06.2019, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Amjad Ali as being unnecessary. On 10.07.2019, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. PJ, Exh. PK, and Exh. PL).
8. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Muhammad Naeem son of Sufi Akram-ul-Haq 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 Naeem son of Sufi Akram-ul-Haq opted not to get himself, examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Rahim Yar Khan 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 dupatta (P-5) was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally 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 contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The, learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2). The learned Deputy Prosecutor General further argued that the recovery of the dupatta (P-5) from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General 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, he prayed for the rejection of the appeal.
12. We 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. The whole prosecution case revolves around the statements of Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) with the deceased is on record. Ayesha Bibi (deceased) was the real daughter of Manzoor Ahmad (PW-1) and the real sister of Muhammad Ishaq (PW-2). It is also an admitted aspect of the prosecution case that both the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) were admittedly not the residents of the place of occurrence or any place near the same.
We ourselves have also perused the scaled site-plan of the place of occurrence (Exh. PG) as prepared by Muhammad Asghar Patwari, (PW-8) and the rough site-plan of the place of occurrence (Exh. PE) as prepared by Ghulam Abbas, SI (PW-3) and find that in both the site-plans (Exh. PG and Exh. PE) neither any house nor any place of business nor any land of both the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) has been mentioned which could have proved that they were residents of any place near the place of occurrence or that they had any place of business or land near the place of occurrence. According to Muhammad Ishaq (PW-2), his residence and the residence of his father namely Manzoor Ahmad (PW-1) was the same as they were residing together and their house was at a distance of as many as about 150/200 feet from the place of occurrence. Muhammad Ishaq (PW-2) further elaborated that on the day of occurrence it had taken them about twenty minutes from their house to reach the place of occurrence, which clearly reflects that both the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) were not the residents of any place near the place of occurrence. Muhammad Ishaq (PW-2) during cross-examination stated as under: "The house of decease was at a distance of 150/200 feet from my house.
We left our house at about 10.40/10.50 a.m and reached at the house of occurrence at about 11.00 a.m."
The above referred portion of the cross-examination of Muhammad Ishaq (PW-2) reflects that both the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide 'a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that both the prosecution witnesses namely Manzoor Ahmad (PW- 1) and Muhammad Ishaq (PW-2) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and that too at the very moment when the same was taking place. According to the prosecution witness, namely Manzoor Ahmad (PW-1), on the day of occurrence they had proceeded from their house for the purpose of seeing a parcel of land when they heard the hue and cry coming out of the house of the deceased and thereafter went inside and saw the occurrence. Manzoor Ahmad (PW-1) during cross-examination stated as under: "On the day of occurrence, we were going on foot to see the plot. I had got recorded in my statement before police that we were going to see plot(Confronted with Exh. PA where it is not so recorded)." (emphasis supplied)
The above referred portion of the cross-examination of Manzoor Ahmad (PW-1) clearly reflects that he had not mentioned any reason for his departure from his own house which ultimately ended with him reaching the place of occurrence in the oral statement (Exh. PA). Not only Manzoor Ahmad (PW-1) made a dishonest improvement with regard to his reason for leaving his house and arriving at the place of occurrence but the reason as given by Manzoor Ahmad (PW-1) for the purpose of leaving the house was also found to be not proved. No details were ever brought on record, either during the investigation of the case or before the learned trial Court, as to where the said parcel of land, to which the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) were allegedly going when they happened to arrive the place of occurrence, was situated nor any other particulars regarding the said parcel of land were given evidence of. A perusal of the scaled site-plan of the place of occurrence (Exh. PG) as prepared by Muhammad Asghar Patwari, (PW-8) and the rough site-plan of the place of occurrence (Exh. PE) as prepared by Ghulam Abbas, SI (PW-31 also reveals that in both the site-plans (Exh. PG and Exh. PE) the parcel of land, for visiting which land the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW- 2) had allegedly left their house, has not been mentioned in the same. The matter does not end here rather the said stated reason for leaving the house on the day of occurrence as given by the prosecution witness namely. Manzoor Ahmed (PW-1) was totally contradicted by the other prosecution witness namely Muhammad Ishaq (PW-2) who had an entirely different reason to give for the departure of the prosecution witnesses namely Manzoor Ahmed (PW-1) and Muhammad Ishaq (PW-2) from their house on the day of the occurrence. According to Muhammad Ishaq (PW- 2), on the day of occurrence the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) had left their house for the purpose of doing labour and there did not exist any reason for them to have left their house other than that and the reason given by the prosecution witness namely Manzoor Ahmad (PW-1) for leaving their house was not supported by his own son namely Muhammad Ishaq (PW-2). Muhammad Ishaq (PW-2) in his statement before the learned trial Court stated as under: "States that on 3.7.2018 at about 11.00 a.m I my father Manzoor Ahmad and my cousin Amjad alongwith came out from our house and were going for labour." (emphasis supplied).
We have thus reached at an irresistible conclusion that both the prosecution witnesses namely, Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) failed to prove the reason for them leaving their house on the day of occurrence and the same remained a claim unproved, entailing failure of the prosecution witnesses to prove the reasons for their departure from their residence and their subsequent arrival 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 Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) had left their house for some reason and due to said reason arrived at the place of occurrence and the failure to prove any reason for the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) to have proceeded from their house to the place of occurrence, has vitiated our trust in Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2). In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore the said 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."
14. We have also observed that according to the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2), the occurrence took place only when they had arrived at the place of occurrence. Manzoor Ahmad (PW-1) during cross-examination stated as under: "When we entered into the house, accused tied the neck of deceased with a cloth/doppatta and on seeing us he fled away from the outer door of the house."(emphasis supplied)
This narrative of the prosecution witnesses that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the same, at the exact same time when the witnesses arrived, is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence.
It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and them deposing against the accused, even then the assailant kept waiting for their arrival. Such behaviour, on part of the accused, as deposed by the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human conduct, we are holding that Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) 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."
15. We have also marked that the alleged eye-witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) and Muhammad Amjad (given up PW), made no effort either to save the deceased or to apprehend the appellant when they were three in number and could have easily restrained the accused, who at the time of occurrence was alone and not even arched with any weapon. It is unnatural and unbelievable that the alleged eye-witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) and Muhammad Amjad (given up PW) did not even move a limb to protect their near and dear one. We have perused the postmortem examination report of the deceased and the unfortunate deceased had received as many as three injuries on her body. During the receiving of the said injuries, nobody helped her. We have observed that despite the claimed presence of Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) and Muhammad Amjad (given up PW), no effort was made to save the life of the deceased namely Ayesha Bibi. 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 mentioned above, according to the statement of Manzoor Ahmed (PW-1), it was only at the time of their arrival that the accused started to press the neck of the deceased however, Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) and Muhammad Amjad (given up PW), remained silent spectators and did not react at all or showed any response when the incident was taking place. No person, having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere viewers, for as long as the occurrence continued, without doing anything to rescue the deceased or to apprehend the assailant. It is strange that when the witnesses had the desire to apprehend the accused after the occurrence and were not fearful of the assailant at that time, then why they could not stop him from committing the occurrence. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Manzoor Ahmed (PW-1) and Muhammad Ishaq (PW-2) and Muhammad Amjad (given up PW) had been present at the place of occurrence, then they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save her. Such behaviour, on part of the witnesses, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e--Shahadat, 1984 allows the Courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by them, was opposed to the common course of natural events, human conduct and that the witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) were not present at the time of occurrence, at the time of occurrence and their presence was procured, subsequently. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances. Reliance is placed on the case of "Zulifqar Ali v. The State" (2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under: "Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended 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 mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene"
Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under: "The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was 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 him. This makes their presence at the spot doubtful."
16. Another aspect of the case raising our doubt over the presence of the prosecution witness namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police for as many as more than three and a half hours and made no effort to take the deceased to any hospital during the said time period. According to the prosecution case, Shaukat Ali, ASI (PW-5), got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Manzoor Ahmed (PW-1) and Muhammad Ishaq (PW-2) and Muhammad Amjad (given up PW) had told him about the occurrence. Muhammad Ishaq (PW-2) during cross- examination admitted as under: "We did not go to police station rather police itself reached at the spot on the phone call made by some of the people gathered out side the house.
Similarly, Manzoor Ahmad (PW-1), the complainant of the case during cross-examination stated as under: "Public at large had gathered there and amongst those had informed the police. 8/9 police officers/officials had come there at about 12.00 noon." (emphasis supplied).
Moreover, the oral statement (Exh. PA) of Manzoor Ahmad (PW-1) was recorded by Shaukat Ali, ASI (PW-5) at the place of occurrence after his arrival there. The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 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."
We have also noted that despite the fact that the occurrence had allegedly taken place at about 11.00 a.m., however the oral statement (Exh.PA) of Manzoor Ahmad (PW-1) was recorded by Shaukat Ali, ASI (PW-5) at 2.45 p.m. and the formal FIR (Exh.PA/1) was not registered till 3.40 p.m.
While examining the statements of the prosecution witnesses we have noticed with concern that according .to the prosecution witnesses the police arrived at the plate of occurrence as early as 11.00 a.m. on the day of occurrence, however, the matter of recording the oral statement (Exh. PA) of Manzoor Ahmad (PW-1) was deferred and the same was recorded at 2.45 p.m. The prosecution witness namely Muhammad Ishaq (PW-2) during cross-examination stated as under: "Police reached at the spot at about 11.00 a.m. "(emphasis supplied).
Manzoor Ahmad (PW-1) himself stated during cross-examination that the police arrived at the place of occurrence at about 12.00 noon on the same day. Not only the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) but Shaukat Ali, ASI (PW-5), the person who recorded the oral statement (Exh. PA) of Manzoor Ahmad (PW-1), also stated during the cross-examination that he reached at the place of occurrence at 1.30 p.m. Shaukat Ali, ASI (PW-5) during cross-examination stated as under: "I reached at the place of occurrence at about 1.30 p.m."
Abid Hussain 734/C (PW-6) also stated that he along with Shaukat Ali, ASI, (PW-5) reached the place of occurrence at about 1.30 p.m. Regardless of the obvious contradictions between the prosecution witnesses with regard to the time of arrival of the police at the place of occurrence, one thing is certain that the oral statement (Exh. PA) of Manzoor Ahmad (PW-1) was not recorded immediately and many hours were taken before the said oral statement (Exh. PA) was recorded.
Not only the oral statement (Exh. PA) of Manzoor Ahmad (PW-1) was recorded with delay but the statement under section 161 of the Code of Criminal Procedure, 1898 of Muhammad Ishaq (PW-2) was also recorded with much delay. According to Ghulam Abbas, SI (PW-3), the Investigating Officer of the case, who recorded the statement under section 161 of the Code of Criminal Procedure, 1898 of Muhammad Ishaq (PW-2), he recorded the same at about 4.00 p.m. Ghulam Abbas, SI during cross-examination stated as under: "I alongwith Ijaz Ahmad Head constable and Khawar Zaman constable reached at the place of occurrence at about 4.00 p.m. Complainant along with his witnesses and 'other persons of the locality were gathered there. Before my reaching, dead body had already been sent to post mortem examination by Shoukat Ali ASI. I recorded the statements of Ishaq and Amjad PWs at the spot." (emphasis supplied)
No reason, much less plausible, has been given by the prosecution at any stage for such deferral in recording the oral statement (Exh. PA) of Manzoor Ahmad (PW-1) and the statement under section 161 of the Code of Criminal Procedure, 1898 of Muhammad Ishaq (PW-2). In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because, the witnesses never reported the matter to the police for as many as three and a half hours. This inordinate delay in reporting the matter conclusively proves that the oral statement (Exh. PA) of Manzoor Ahmad (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 Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival. As many as three and half hours were taken to invent a false and dishonest narrative of the oral statement (Exh. PA) of Manzoor Ahmad (PW-1). The scrutiny of the statements of the prosecution witnesses reveals that the oral statement (Exh. PA) of Manzoor Ahmad (PW-1) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences 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 Shafi alias Kuddoo vs. The State and others (2019 SCMR 1045).
17. We have also noted with disquiet that despite the fact that the occurrence took place at about 11.00 a.m. on 03.07.2018, the postmortem examination of the dead body of the deceased was conducted after much delay. According to Dr. Maryam Mumtaz (PW-9), she conducted the postmortem examination of the dead body of the deceased namely Ayesha Bibi (deceased) at 5.00 p.m. on 03.07.2018 i.e., after 06 hours of the occurrence. Dr. Maryam Mumtaz (PW-9), who conducted the post mortem examination of the dead body of Ayesha Bibi daughter of Manzoor Ahmad (deceased) and prepared the post mortem examination report (Exh. PH), gave the time between death and post mortem examination as being within 24 hours. Dr. Maryam Mumtaz (PW- 9) also observed developed rigor mortis at the time of conducting the post mortem examination.
Before proceeding any further, it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in- temperate climate. Similarly, the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from "The Principles and Practice of Medical Jurisprudence" by Alfred Swaine Taylor, MD, is being referred hereunder: "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 POST-MORTEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P. Moth's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), it has been, discoursed as under: "Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.
Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertropliy, and its relaxation or dilatation, atrophy or degeneration: The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.
In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However, according to HA. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor.
Time of Onset.-This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.
Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in 'winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination."
Additionally, according to the statement of Muhammad Ishaq (PW-2), the dead body had been sent to the hospital as early as at about 12.30/1.00 p.m. When the dead body had arrived at the hospital as early as at about 12.30/1.00 p.m. then there did not exist any reason for delay in conducting the post mortem examination of the dead body of the deceased except the reason which is apparent that by that time the details of the occurrence were not known and the said time was used to not only to procure the attendance of the witnesses but also to fashion a false narrative of the occurrence. No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative, after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" (2012 SCMR 327) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m, but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian Sohail Ahmed and others vs. The State and others" (2019 SCMR 956) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body" of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeqa vs. The State" (2019 SCMR 1068) has held as under: "More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting."
18. We have also noted that though it was claimed by the prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) that when they entered the place of occurrence they saw the accused pressing the neck of the deceased with the use of a dupatta/cloth and kept pressing the same till the deceased died, however, Dr. Maryam Mumtaz (PW-9), on examining the dead body of Ayesha Bibi (deceased) did not observe any marks of any ligature on or around the neck of the deceased. Dr. Maryam Mumtaz (PW-9) observed only three bruises present on and around the chin area of the dead body of the deceased. Dr. Maryam Mumtaz (PW-9) also observed as under: "On deep dissection: There was no subcutaneous haemorrhage on arytenoid and thyroid cartilage. Hyoid bone was intact, however, taken and sent to Histopathologist. Flap of skin of Injury No. 1 and 2 were taken and sent to Histopathologist for ruling out whether ante-mortem or post mortem. (emphasis supplied)
Dr. Maryam Mumtaz (PW-9) further opined as under: Report of Forensic Histopathology bearing Agency case No. PFSA-2018-154249-PATH-04379 dated 18.09.2018 conclusion report of "Histological examination of Sections from heart reveals patent coronaries. The myocardial sections are unremarkable. The lung sections reveal vascular congestion and presence of edematous fluid inside alveoli. The brain sections reveal vascular congestion of meninges and of brain tissue. The renal tissue is congested. The liver sections reveal no pathological changes. Histological examination of the hyoid bone reveals intact hyoid bone.
No ante-mortem injury is seen. The skin and underlined tissues from injury 1 & 2 reveals blood hemorrhages suggesting ante-mortem nature of injury".
X-rays report of Skull, C.Spine Chest, abdomen and Pelvis of deceased Ayesha Bibi bearing MLC No. 132 to 136 dated 04.07.2018 of Autopsy No. 413/MM/2018 of Radiologist is available on judicial file, which reads as under: "Views not proper with artifacts."
"No fracture of bones seen in these skiagrams. No metallic FB seen".
FINAL OPINION: After receiving the above said reports, my final opinion regarding the cause of death in this case is manipulation at the level of neck."
The above referred opinion of Dr. Maryam Mumtaz (PTV-9) clearly establishes that it was not a case of strangulation as suggested by the witnesses rather a case of suffocation. In Chapter 20 'Deaths from Asphyxia", at page 529 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) the term suffocation has been defined as: "Suffocation: -The term, suffocation, is applied to that form of death which is resulting from the exclusion of air from the lungs by means other than compression of the neck.
Causes of suffocation i) smothering or closure of the mouth and nostrils. ii) choking or obstruction of the air-passages from within. iii) pressure on the chest (traumatic or crush asphyxia); iv) inhalation of irrespirable gases; v) gagging; and. vi) burking. vii) There can be a combination of some of the conditions above in what might result in positional asphyxia."
In the same Chapter 20 'Deaths from Asphyxia ", from page 515 to 517 of Rai Bahadur Jaising P.
Moth's .A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) strangulation has been defined as the compression of the neck by a force other than hanging and when constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. It has been further noted that if fingers are used for throttling, marks of pressure by the thumb and the finger prints are found on the either side of the neck. At page 515 of Rai Bahadur Jaising P. Moth's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), the types of strangulation have been mentioned as under: "Types of Strangulation Ligature strangulation Throttling (manual strangulation-compressing with hand)
Mugging (compressing with forearm or foot or wrist)
Bansdola (wooden stick is used to compress the neck)
Garroting (a rope or a loincloth and a wooden stick as a lever to tighten the ligation is used)
Accidental strangulation (can arise in the course of a person's occupation when a neck tie or scarf is caught in moving machinery or belts as in mill workers or in an epileptic or an intoxicated person who may be helpless in extricating himself from such tight encirclement of the neck or in utero when the movements of the foetus cause the umbilical cord to be wound round into neck."
From page 516. to page 517 of Rai Bahadur Jaising P. Moth's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) it has been discoursed as under: "(a) Appearances on the Neck.--Appearances on the neck vary according to the means used
(1) Ligature Mark -Ligature mark is a well-defined and slightly depressed mark corresponding roughly to the breadth of the ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely. The marks are multiple if the ligature is twisted several times round the neck, also more than one firm knot of the ligature is certain of homicide. The mark may be oblique as in hanging, if the victim has been dragged by a cord after he has been strangled in a recumbent posture, or if the victim was sitting and the assailant applied a ligature on the neck while standing behind him, thus using the force backward and upward. The base of the mark, which is known as a groove or furrow, is usually pale with reddish and ecchymosed margin. It becomes dry, hard and parchment-like, several hours after death, if the skin has been excoriated. The pattern of the ligature may also be seen. Very often, there are abrasions and ecchymoses in the skin adjacent to the marks. In some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after death. A careful search of the neck may reveal minute fibres and any other material from the ligature. The fibres can be lifted off by sticking thin transparent adhesive tape-5 cm long, around the ligature mark and its surroundings. This tape, later transferred to clean microscope slides, can be examined directly under microscope, for fibres.
Inspection of the neck with oblique light, may show the pattern produced by ligature. Examination under ultraviolet light may also reveal the pattern and nature of the ligature.
(2) If fingers are used (throttling), marks of pressure by the thumb and the fingertips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other. However, the marks are sometimes found clustered together, so that they cannot be distinguished separately. These fingertip bruises, each disc-shaped and 1-2 cm in diameter, look like red bruises (six penny bruises) if examined soon after death, but they look brown, dry and parchment-like sometimes death. One should refrain from drawing inference from the direction of curved abrasion, as to how the hand of the assailant might have been applied to the neck of victim. The inherent quality of the victim's skin, the shape, and length of the fingernails of the assailant render such inferences extremely tenuous. This linear or crescentic marks produced by the fingernails are occasionally present, if the fingertips are pressed deeply into the soft tissues of the neck. A body, which is wet, may not reveal fingernail marks until drying of the skin of the body. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat.
Sometimes, both thumb marks are found on one side and several finger marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back.
Besides these marks, there may be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, if there has been a struggle. Similarly, fractures of the ribs and injuries to the thoracic and abdominal organs may be present, if the assailant kneels on the chest or abdomen of his victim while pressing his throat"
As narrated above, had the neck of the deceased been pressed in the manner as stated by the prosecution witnesses namely Manzoor Ahmed (PW-1) and Muhammad Ishaq (PW-2) then there must have been observed the evidence of the same however Dr. Maryam Mumtaz (PW-9) did not.
The oral account of the occurrence, as given by the prosecution witnesses namely Manzoor Ahmed (PW-1) and Muhammad Ishaq (PW-2), cannot be said to be in accordance with the medical evidence, rather is proved to be contrary to it.
19. 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 night or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly, the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under: "122. Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him."
It has to be kept in mind that Article 122 of the Qanun-e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun-e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of "Rehmat alias Rahman alias Waryam alias badshah v. The State" (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanun-e-Shahadat, 1984, it held as under: "Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus, rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
The ratio decidendi of the above decision was further developed by in the case of "Nasrullah alias Nasro versus The 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. 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 prosecution witnesses namely Manzoor Ahmad (PW-1) and Muhammad Ishaq (PW-2) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. The prosecution witnesses also admitted during cross-examination that the place of occurrence was owned by someone else and not the appellant. Ghulam Abbas, SI (PW-3) during cross- examination stated as under: "Arshed Hussain owner of the house also came there with photo copy of his affidavit which I placed with file.- Whereas Muhammad Asghar, Patwari (PW-8) during cross-examination stated as under: "At the time of occurrence, alleged house of occurrence was owned by Hafiz Arif."
In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be the resident 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 his life. The august Supreme Court of Pakistan has held in the case of "Muhammad Jamshaid and another vs. The State and others" (2016 SCMR 1019) as under: "only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the Courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the Courts below to be nothing but speculative".
The august Supreme Court of Pakistan has held in the case of "Arshad Khan vs. The State" (2017 SCMR 564) as under: "It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all."
The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628) as under: "It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710)."
The august Supreme Court of Pakistan was held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681) as under: "It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been 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."
20. The learned Deputy Prosecutor General has also relied upon the recovery of the dupatta (P-5) made from the appellant. The recovery of the dupatta (P-5) from the appellant namely Muhammad Naeem cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the dupatta (P-5) from the appellant namely Muhammad Naeem which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. Ghulam Abbas, SI (PW-3), the Investigating Officer of the case, candidly admitted as under: "Recovery of Doppatta was effected from a vacant plot on the back side of house of accused. At the time of recovery of Doppatta, no person from the locality gathered there."
Therefore the evidence of the recovery of the dupatta (P-5) from the appellant cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. The State (2017 SCMR 898) at page 901 has held as under: "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."
Furthermore, according to Manzoor Ahmad (PW-1) the appellant was arrested on 03.07.2018, whereas according to Ghulam Abbas, SI (PW-3), the Investigating Officer of the case, the dupatta (P-5) was recovered from the possession of the appellant on 30.07.2018. Manzoor Ahmad (PW-1) during cross-examination stated as under: "Accused was arrested on 03.07.2018 on Tuesday."
In this manner, it is proved that the appellant was kept in illegal custody and a fake recovery of the dupatta (P-5) was shown to have been made from the possession of the appellant only to prop up the failing prosecution case. Additionally, the said dupatta (P-5) was sent to the office of Punjab Forensic Science Agency, Lahore for analysis and according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PJ), the appellant was not a contributor to the DNA obtained from the said dupatta (P-5). The relevant portion of the report of the Punjab Forensic Science Agency, Lahore (Exh.PJ) reads as under: "8A Swab from one end of dupatta.
8B Swab from centre of dupatta, 8C Swab from second end of dupatta.
S1 Buccal swa b standards of Muhammad Naeem, The DNA profile obtained from item # 8A is a mixture of at least three individuals. Ayesha Bibi (item # 6) cannot be excluded as being possible contributor to the DNA obtained from item # 8A. The probability of finding an unrelated individual at random in the population as being a possible contributor to the DNA obtained from item # 8A is approximately one in 883 thousand in Caucasians. The genetic locus D2S1338 was not used for frequency calculations. No conclusion could be made about other contributors to the DNA obtained from item # 8A: The DNA profile obtained from item # 8B is an inconclusive mixture.
No Short Tandem Repeat Profiling results were obtained from item # 8C."
Therefore, the recovery of the dupatta (P-5) from the appellant namely Muhammad Naeem is not proved, does not further the case of the prosecution in any manner and the same cannot be considered as a circumstance against the appellant. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery of the dupatta (P-5) 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.
21. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Manzoor Ahmad (PW-1) in the oral statement (Exh. PA) was that the relationship of the appellant and the deceased had remained strained through their marital life, however, while appearing before the learned trial Court, Manzoor Ahmad (PW-1) made no statement with regard to the motive as mentioned in the oral statement (Exh. PA). Similarly, the other prosecution witness namely Muhammad Ishaq (PW-2), the brother of the deceased, also did not give any evidence as to the motive of the occurrence. It was also admitted that the deceased had contracted marriage with the appellant about 8 to 9 years prior to the 'occurrence and was also living with the appellant at the time of occurrence. There is no evidence on record that Ayesha Bibi (deceased) was facing any threat to her life at the hands of the 'appellant prior to the occurrence rather to the contrary she was living with the 'appellant till her tragic death. We have also noted that according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PJ), the internal and external vaginal swabs taken from the body of the deceased namely Ayesha Bibi were found to be stained with semen and the DNA profile obtained from the sperm fractions of the internal and external vaginal swabs taken from the body of the deceased namely' Ayesha Bibi was consistent with the DNA profile of the appellant. This also proves that the appellant and the deceased were having a happy and a healthy marital life, engaged in sexual activity with each other and hence there did not exist any reason for the appellant to murder his loving wife. The prosecution witnesses did not make any statement with regard to the fact that any motive existed which could have led the appellant to have committed the Qatl-i-Amd of the deceased. The prosecution witnesses simply did not give any evidence with regard to the motive of the occurrence. 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."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Naeem son of Sufi Akram-ul-Haq, the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha vs. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v.The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah vs. the State (2021 SCMR 736) in which it has been observed in paragraph No. 13 of page 236 as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the Court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let of but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loopholellacuna in the prosecution's case automatically goes in favour of an accused."
23. For what has been discussed above Criminal Appeal No 467-J of 2019 lodged by Muhammad Naeem son of Sufi Akram-ul-Haq (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial Court through the impugned judgment dated 19.08.2019 are hereby set-aside. Muhammad Naeem son of Sufi Akram-ul-Haq (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Muhammad Naeem son of Sufi Akram-ul-Haq (appellant) is in custody and is directed to be released forthwith if not required in any other case.
24. Murder Reference No. 22 of 2019 is answered in Negative and the death sentence awarded to Muhammad Naeem son of Sufi Akram-ul-Haq. is Not Confirmed.