Dr. Khurshid Iqbal, J.-
1. The appellant Ghulam Saeed was tried on the charge of qatl-i-amd (murder) of his wife Naimat Bibi (victim). By his Judgment dated 19.03.2024, the learned Additional Sessions Judge-II/Judge GBV (trial Court) in Dera Ismail Khan (D.I.K) founding him guilty for the murder, convicted and sentenced him to death as ta'zir under section 302 (b) of the Pakistan Penal Code, 1860 (PPC). He was also held liable to pay Rs. 20,00,000/- as compensation to the legal heirs of the victim within the meaning of section 544, Criminal Procedure Code, 1898 (Cr.P.C.) recoverable as arrears of land revenue; and for want of property, was to undergo simple imprisonment for six months.
2. The learned trial Court sent Murder Reference # 03 of 2024, dated 22.03.2024, to this Court, under 374, Cr.P.C. for confirmation or otherwise of the sentence of death. The appellant filed appeal against # 30 of 2024 against his conviction and sentence:
3. One Said Karam, brother of the victim (complainant /PW8) reported the occurrence to the police in DI Khan's Civil hospital at 18.30 hours on 30.09.2021 where he shifted the dead body from the house of the appellant in village Saggu Janubi. He told to the police that on the day of the occurrence, he was in village Girsal Band Kurai in connection with earning livelihood when he got information that the appellant killed the victim in a residential room of his house. He rushed to the house of the appellant. He found his sister (victim) seriously injured and dead there. On query, he was informed that at 03.30 pm, the appellant, in sudden heat of passion at some issue, hit the victim at her head by throwing a wooden leg of a cot (Urdu: pawa) due to which she got seriously injured that resulted in her death. He stated that the occurrence might have been witnessed by someone. He added that for the last some days, matrimonial relations between the appellant and the victim were strained. He charged the appellant for murdering the victim by hitting her with pawa and knife. On the basis of that report, the case in hand was registered in the Cantonment police station at # 539.
4. Sub-Inspector Asmatullah (PW11), the In-charge of investigation in the police station, visited the house--the place of the occurrence--where Abdul Manan (PW7), son, and Ms. Roza Bibi, daughter of the victim, were present. PW7 showed to him the place of the occurrence of which he prepared a site plan (ExPB). He recovered some blood from the place of the victim and the blood stained pawa from the place of the occurrence. He prepared memos of those pieces of evidence in the presence of witnesses, sealed them and forwarded them to the Forensic Science Laboratory (FSL) for chemical examination. He also took some photographs of the crime scene. He recorded statements of P7 and Ms. Roza Bibi under section 161, Cr.P.C, He, however, didn't recover the knife, the other weapon of the offence. The post-mortem report confirmed that the death was caused due to hit by blunt and sharp objects on the head of the victim. It further confirmed that the death was caused within 10-15 minutes because of such serious injuries as shattered temporal bone and leaking out of the brain matter. The FSL also returned positive reports about the blood and blood stained pawa.
5. At the commencement of the trial, copies of relevant documents and statements were provided to the appellant under section 265-C, Cr.P.C. Charge was framed against the appellant, to which he pleaded not guilty and claimed trial. At the trial, Abdul Manan son of the victim, Siad Karam, the complainant, and Sub-Inspector Asmatullah were examined as PWs 7, 8 and 11, as the star witnesses of the prosecution. Other PWs were formal. They included Dr. Tehreem, Medical Officer, who conducted post-mortem examination of the dead body of the victim, and those of recoveries, the carrier of the murasila to the police station and the official who converted the murasila to the FIR. Ms. Roza Bibi, daughter of the victim was abandoned. The appellant was examined under section 342, Cr.P.C., in which he was confronted with the prosecution evidence. He, however, didn't opt to record statement on oath under section 342, Cr.P.C., and/or to produce evidence in defence.
6. We heard Mr. Saif-ur-Rahman Khan, learned counsel for the appellant, Mr. Ghulam Muhammad Sappal, learned Addl: A.G. assisted by Mr. Saleemullah Khan Ranazai, learned private counsel for the complainant-party and perused the record carefully.
7. Key argument learned counsel for the appellant advanced were that PW7 was not mentioned in the murasila as an eye witness. PW8 didn't mention who informed him about the commission of the offence. PW7 and Ms. Roza Bibi and other children, allegedly shown as present at the place of the occurrence, were minors. PW7 didn't support the stab injury on the body of the victim. PW8 visited the house of the parties on the day of the occurrence before the occurrence and that he, being brother of the victim, is an interested witness. The knife was not recovered. He said the victim never reported to the police the alleged cruel conduct of the appellant; nor did she file a suit for dissolution of marriage.
8. The learned Addi: A.G and the learned private counsel for the complainant argued that an FIR is not a compendium of detailed facts of a criminal occurrence and that it could be lodged by anyone who receives such information. PW7 is son of the parties, no mala fide at all could be attributed to him, they maintained. As regards his presence at the place of the occurrence, they further maintained that it not only remained unimpeached, but was rather confirmed under cross examination. They also negated the argument about the complainant, arguing that no worthwhile mala fide was attributed to him. Another significant point they strived to bring home was that the appellant failed at least to offer some explanation about the unnatural death of his wife under Article 122 of the Qanun-e-Shahadat Order, 1984 (QSO).
9. We carefully considered arguments of learned counsel for the parties, perused the record and the case law produced which we shall refer to at appropriate places in this opinion.
10. The points for determination are: firstly, whether, on reappraisal of evidence, the prosecution has proved the charge beyond reasonable shadow of doubt; secondly, if the answer is yes, whether the punishment awarded is just and proper in the given circumstances of the case.
11. We propose to reappraise the evidence by breaking down the case in the following parts. Ocular account. Recoveries. Medical evidence. Motive. The evidentiary burden: Article 122 QSO.
Ocular account
12. We shall begin with the main argument of learned counsel for the appellant that the names of the eye witnesses were not mentioned in the murasila/FIR. Indeed, the complainant Said Karam (PW8) did not mention the names of Abdul Manan (PW7), the son, and Ms. Roza Bibi, the daughter of the victim, in the first information of the crime he reported to the police in the shape of a murasila. PW8 is not the eye witness of the occurrence. All that he furnished as first information of the offence was that while present in village Girsal Bund Kurai, he received information about the murder of his sister (victim). He rushed to the house of the victim in village Saggu Janubi, where he found her lying critically injured and dead in her residential room. Though in his statement before the trial court, he deposed that when he reached the house of the victim, he inquired from the children of the victim, who told him that the appellant (their father) killed her (the victim/their mother). The fact remains that he didn't name them in the first report. While under cross examination, he replied that when he reached the house of the victim, PW7 told him the story of the commission of the offence and that while he was lodging the report in the hospital, PW7 was not present there. He admitted that he didn't specifically mention in his-report-in the hospital as to who informed him about the occurrence. He, however, told under cross examination that a neighbour of the appellant informed him at about 04.30 pm, whose name he couldn't disclose. He denied a suggestion that he lodged a false report due to some grudges. He was not further asked as what the grudges were and in which background. It follows that no mala fide was established on his part. His deposition depicts that on the very day of the occurrence, he visited the house of the victim around 12.00 noon, where the victim complained that the appellant was quarrelling with her. The appellant was not present in the house at that point of time. He contacted him via his cell phone, but couldn't reach him. He, then, obtained his other active cell phone number from his son Rauf, and called him. The appellant told him that he will return home late. He remained in the. house till 02.00 pm, but left. In these circumstances, there is no indication of his ill will against the appellant. Nor did the appellant spell out any such ill will.
13. Case law would show that judicial opinion on the harmful effect of non-mentioning of eye witness(es) in the initial crime report is divided: rulings supporting the proposition, for example, are Inayatullah[1] (Peshawar: 2019), and Zahid Hussain[2] (Karachi: 1999) on which learned counsel for the appellant relied. The contrary opinion was spelt out in Jan Muhammad[3] (Supreme Court: 2002), Sikandar[4] (Supreme Court: 2006), and Raja Khurram Ali Khan[5] (Islamabad: 2019). The two cases of the supportive view are worth distinguishing for the simple reason that the complainants in both of them had stated to be present at the crime scene at the time of the occurrence, a factor missing in the Case in hand. The fact that he knew that PW7 and other children of the appellant and the victim were the eye witnesses, couldn't be seen as damaging to the prosecution case. The reason is that neither he, nor PW7, being son of the appellant and the victim, could have had any mala fide. The children were the natural witnesses, amongst them, PW7, the one elder in age, and Ms. Roza Bibi (abandoned PW) came forward, others were younger in age. The peculiarity of the case in hand is that the occurrence has taken place inside the house of the appellant and the appellant himself has been charged for the murder of his wife. Before we discuss the cases on the contrary view, it seems pertinent to state the general principle of precedential law that every criminal case has to be considered on its own facts and circumstances. The principle has been pronounced in a number of cases, for example, Supreme Court's Tariq Mehmood[6] (2002), Khan alias Khani[7] (2006), Muhammad Siddique[8] (2020), and The State[9] (2021). In the first case in which two officials were convicted for taking bribes, it was argued on the strength of two reported Supreme Court cases that "none of the members of the raiding party heard the conversation which took place between the complainant (bribe giver) and the [.. .] accused (briber receiver)" [para.7]. The Supreme Court declined to apply the cited rulings for the reason that every case has its own facts and circumstances and that a rule laid down in that case would not command universal application. The Court elaborated: [.. .] some foundation must be laid down in the case for the application of the dictum in the earlier decided case. The above criteria fully apply to the facts of this case as neither factual background of the two cited cases is similar to the facts of this case nor any foundation has been laid down in the cross examination of the witnesses to justify the application of the rule enunciated in the cited cases" (ibid).
14. Arguably, one may say that the complainant was quizzed in cross examination as regards non- mentioning of PW7 in the initial report as an eye witnesses. The peculiar facts of this case, however, are that the occurrence took place inside the house for which the appellant was charged as the sole perpetrator of the murder of his wife. Thus, the facts of this case substantially differ. In the 2020 case, the Court observed that a test applied in one criminal case may "absolutely be irrelevant" in another case for the reason that "crimes are seldom committed in identical situations; there may be cases wherein prosecution must assign distinct roles played during the occurrence..." [para 5].
In the last mentioned case of 2021, the Supreme Court while further elaborating the application of precedent in the given context, observed that a rule pronounced in one criminal case cannot be given an "omnibus" application in subsequent cases.
15. Coming now to the contrary view on the status of FIR, in the 2002 Jan Muhammad details of injuries of one of the victims were not mentioned. The Supreme Court observed that the FIR is not a substantive piece of evidence, nor an exhaustive document and that the non-mentioning of details therein would not weaken its correctness [para. 13]. The distinctive aspect of that case is that as many as 05 persons were seriously injured with hatchet blows, one amongst them, succumbed to his injuries. In Sikandar (2006), a somewhat similar situation was that the witness who lodged the FIR was not an eye witness of the occurrence. The Supreme Court observed that the evidence of such a witness though could not be treated at par with that of an eye witness, it could be considered as corroborative (para. 5). It was for the same reason that in the 2019 Raja Khurram Ali Khan, the High Court dispelled the argument that the written complaint, on the basis of which FIR was lodged, was not signed by the victim.
16. PW8 was also cross examined on certain other aspects, such as, cruel conduct of the appellant and lodging of the report in the hospital. As regards the former, he stated that the appellant would usually beat the victim. He, however, admitted that the victim never sought dissolution of marriage.
Nor did she make any report to the police against the appellant. Be that as it may, it is in the evidence that the couple had married for about 19/20 years, having as many as 10 children. It is our cultural norm that married women generally and un-educated particularly, would always be ready for great sacrifices for the sake of honour and dignity of their own parents and children. While our cultural norms are undergoing visible transformation owing to a push forward in women's empowerment women have been feeling more empowered, a paradigm shift has yet to come. The non-seeking of dissolution of marriage and/or non-complaining against the cruel conduct a of a husband to the police couldn't be seen a clear negation of the fact of cruel conduct, if it is otherwise established from evidence, as the situation is in the case in hand.
17. As far as the lodging of the report, PW8 admitted that he didn't make the report in any police station/check post lying on the way to the hospital. True, given the fact that the victim had succumbed to her injuries on the spot, the report should have been made in the nearest police station. The point that needs consideration is that whether this omission is the result of any deliberation or consultation. The attending circumstances of the case vividly demonstrate that no such evidence has come forward which may prove deliberation and consultation or other mala fide on the part of the complainant PW8.
18. We would now advert to the testimony of PW7, who furnished the ocular account of the unfortunate occurrence of his mother's death at the hands of his father. The story he told was that on the eventful day, at the relevant time, on the direction of the appellant, he went out to purchase some commodities from the shop. On his somewhat late return to home because he played outside for some time, the appellant got angry and started beating him. The victim (his mother) intervened, trying to rescue him, at which the appellant started beating her. The victim rushed to the residential room. The appellant followed her there and hit her with the wooden leg of a cot (Urdu: pawa), which injured at her head. PW7 and his sister went to the room to request the appellant not to beat their mother. But instead, the appellant took out a knife and stabbed her due to which she got further injured. The appellant decamped from the house. At about 06.30 pm, the complainant reached the house. After sometime, an ambulance of 1122 service came there in which the victim was shifted to the hospital, while PW7 stayed at home.
19. At evening time, the police investigator (Sub Inspector Asmatullah/PW11) visited the place of the occurrence, where PW7 pointed out how the occurrence took place. He showed the places of presence of the appellant, the victim, his own and of others, notably, his siblings present at that time. At his behest, the police took into his possession the blood stained pawa, as one of the weapons of the offence and some blood stained earth. PW11 either didn't find or PW7 couldn't realise to produce, the knife, the other weapon of offence. PW11 recorded statement of Ms. Roza Bibi, daughter of the victim as an eyewitness and prepared a list of all legal heirs of the victim. He prepared the site plan of the occurrence.
20. The house-the place of the occurrence--has one room, where the appellant present at point # 2, attacked at the victim at points # 1 by giving her blows with the pawa and then with a knife. PW7 and Ms. Roza--children of the appellant, present at points # 3 and 4, respectively--saw with their own eyes the occurrence having taken place. The pawa got stained with the blood of the victim was shown lying at point 'A'. The site plan, however, doesn't show the place from where the appellant grabbed the knife. In his examination-in-chief, PW7 though stated that the appellant gave stab blows to the victim, but he remained mum as from which particular place the appellant managed to get the knife.
21. PW7 was subjected to lengthy cross examination. Key aspects on which he was examined are: presence of all family members since the night before the day of the occurrence; previous conduct of the appellant with the victim; the mode and manner in which the occurrence took place; the presence of the eye witnesses; the visit of the complainant to the house of the appellant on the day of the occurrence before the occurrence; his own mental condition after the occurrence; arrival of the complainant after the occurrence; his pointation of the site plane to the IO/PW11; and, inducement to the appellant for commission of the offence. He replied that his family members were at home since last night. He added, My father used to quarrel with my mother and used to beat her on petty matters [;] however [,] on the day of the occurrence there was no quarrel or exchange of hot words between my father and mother.
He further added that the appellant slapped him while the victim tried to rescue him from the appellant. He explained the mode and manner of the occurrence in the following words: The wooden leg (pawa) of cot was lying in front of the room and therefrom my father took the same and beat my mother. The witness explained that [they] had shifted to the house one day prior to the occurrence and the household articles were not properly managed till that time. My father extended two blows of wooden leg to my mother/deceased who fell on the ground after the [second] blow [;] however, my father continued beating her and at last he stabbed her with knife and when she expired, he left the house [p. 84, the paper book of the judicial record].
Astonishingly, the defence got the place of availability of the knife clarified rather confirmed as PW7 replied, "[t]he knife was lying in the sack of floor." More astonishingly, the issue was further articulated thus: "[t]he handle of the knife was wooden [...] my father stabbed my mother at her ear with the knife. Only one blow was made with the knife to my mother."
22. Next, he stated that he and Ms. Roza Bibi, his sister and brother, were present at home on that day. He stated that the complainant had visited his house around 11.00/12.00 hours to advise him not to beat the victim. He explained on his own that while stating that none had visited the house before the occurrence, he meant someone outsider, not related to the family. In reply to a question as to whom he asked to contact the complainant (his maternal uncle) about the occurrence, he deposed that he was not in proper senses and due to extreme stress, he only asked someone who had arrived at the house to inform the complainant. He confirmed that the complainant arrived at the house at 06.30 pm. He also confirmed that the site plan was prepared at his instance. Lastly, on a query about the appellant's inducement by someone, he categorically deposed that the appellant himself would quarrel with the victim and that none from amongst his relatives had been inducing the appellant. He also denied a suggestion that he was not present at the place of the occurrence as an eye witness.
Recoveries
23. As already discussed above, the blood stained pawa, as one of the weapons of the offence, was recovered by the 10/PW11. Constable Fazal Hussain # 166 (PW13) furnished evidence of the factum of its recovery as one of the marginal witnesses of the memo (ExPW11/1). He also took the blood stained pawa along with blood stained earth to the FSL, who returned a positive report of both to the effect that it was human blood and of the same group. On return, he was examined by the IO/PW11. His testimony was not convincingly shattered under cross examination. Though he couldn't recollect after how many days of the occurrence, he was handed over the parcels containing blood stained earth and blood stained pawa, he stated that those were handed over to him on 03.10.2021, the third day of the occurrence. The FSL reports reflects that he arrived there on 04.10.2021. It stands established that on the third day--within the required 72 hours--he took the aforesaid articles to the FSL. The recoveries are, thus, proved.
Medical evidence
24. The Medical Officer Lady Dr. Tahreem (PW4) deposed that the local police produced the dead body of the victim before her at 06.00 pm. The report was made at 06.30 pm. It appears that the 06.00 pm mentioned in statement of PW4 is a clerical mistake as it is clear from the post-mortem report that PW4 received the dead body at 06.50 pm, 20 minutes after the report.
25. Learned counsel for the appellant also vehemently argued that the locale of stab injury was not supported by PW7. He argued that the stance of PW7 that the stab wound was caused near left ear pinna, is not supported by the post-mortem report. It is true. The stab wound was found on vortex of skull of the dead body of the victim. The mere fact that PW7 stated it wrongly could be of no benefit to the appellant. The reason simply is that an eye witness, most notably in given circumstances of the case in hand, where a husband was hitting his wife in the presence of his own children, can't be expected to be seeing the locale of the injuries so closely. One single aspect of a deposition couldn't be cherry-picked as against its overall credibility if it otherwise remains convincingly unimpeached.
Motive
26. From the statements of PWs 7 and 8, it is clear that the conduct of the appellant with the victim remained cruel for quite good time on what PW7 termed "petty matters" that on the day of the occurrence, the appellant started beating PW7 for being returning home late from the shop. The victim, on having intervened, paid the price of her life in the shape of her brutal murder. The reason for his cruel conduct, however, remained shrouded in mystery. `The evidentiary burden': Article 122 QSO
27. The conclusion of the above reappraisal of the evidence is that the prosecution has proved the charge of the offence of qatl-i-amd beyond reasonable shadow of doubt by establishing the essentials of the offence. It means that the prosecution has discharged what is known as 'legal or persuasive burden' of proof within the meaning of Article 117 QSO. The question now is that whether in the attending circumstances, the appellant was bound (or having 'evidential burden') to prove a fact especially in his knowledge as regards the murder of his wife within the meaning of Article 122 QSO. The record demonstrates that he never set up any such plea, including, notably in his examination under section 342 Cr.P.C.
28. in his statement under section 342 Cr.P.C., the appellant was shown the evidence indicating that he was present in his house on the day of the occurrence in his house along with his wife (victim) and children. He replied that he was not present in his house at the time of the occurrence, and-that, he. was out of the city for doing his labouring job. He also replied that he participated in the victim's funeral prayer but further stated that due to fear, he left the house, and didn't appear before the police. His replies are contradictory. The reason is that if he was out of the locality on that day, how, then, he managed to attend the funeral prayer. Then, in poof of that plea, neither he opted to record his statement on oath under section 340(2), Cr.P.C., nor did he avail an opportunity to prove the plea of his absence from his house. Article 122 QSO--requiring `evidential burden of proof --would trigger only when appellant indicates a fact especially in his knowledge. In this context, we may say that the appellant could have, at least, offered some explanation as to why and by whom his wife has been done to death inside his house. For example, whether he charged anyone for the murder, particularly while he himself states that he was present at the funeral prayer of his wife. Whether he identified and received the dead body of his wife? His statement that he ran away due to fear of police further supports the prosecution's stance that he committed the murder. Indeed, the appellant--as the language of the provision simply shows--failed to show and prove any fact especially within his knowledge as regards the unnatural death of his wife while he was present in his house at the time of the occurrence.
29. True, the burden doesn't shift to the appellant to disprove the charge. On balance, however, it is worth consideration whether Article 122 QSO still applies here. An appropriate answer could be found in the following observation of the Indian Supreme Court in Neel Kumar[10] (2012): That if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 [of the Indian Evidence Act, comparable to 122 of our QSO] is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt.
But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused (emphasis supplied).
As already noted above, the case in hand is in fact an exceptional one. It was for the appellant to have offered any explanation leading the Court to draw a different inference in the form of acquittal.
30. The doctrine of 'evidential burden' envisaged in Article 122 QSO requires proper jurisprudential understanding of its nature and scope. Is it a separate component or does it operate subject to the primary rule of legal or persuasive burden of proof under Article 117 QSO. Both the provisions use the phrase 'burden of proving' in Article 122 QSO indicates exception or defence an accused person may set up. Glanville Williams argues that the constituent elements of an offence are not inherently distinct from the elements which form exceptions or defence to it.[11] It reflects the principle that a complete legal rule encompasses both the primary requirement and its exceptions. This holistic approach can help courts to understand with greater clarity the language, applicability and implications of Article 122 QSO, where it tends to apply in the circumstances of a given case.
31. Legal or persuasive burden means that a party has an obligation to prove or disprove a fact or issue to the criminal or civil standard; beyond reasonable shadow of doubt in the former, and balance of probabilities, in the latter. If a party fails to prove a fact to the applicable standard, it will lose on that issue. Satisfaction of evidential burden, on the other hand, doesn't require a party to prove anything but to indicate evidence which suggest that certain facts existed.[12] If the prosecution fails to prove an essential element of the offence, the trial will result in acquittal without asking the accused to satisfy evidential burden as to his innocence. In R. v. Fontaine[13] , the Court concisely pronounced how the two burdens operate in a judge and jury trial: An "evidential burden" is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the "persuasive burden" determines how the issue should be decided. These are fundamentally different questions. The first is a matter of law; the second, a question of fact.
Accordingly, on a trial before judge and jury, the judge decides whether the evidential burden has been met. [emphasis supplied].
32. The prosecution's duty to prove the charge against an accused is a common law rule. It underpinned by the doctrine of presumption of innocence, which is the basic feature of the right to a fair trial and due process now a constitutionally guaranteed fundamental right [Article 10 of our 1973] in our Constitution.
33. In this perspective, the appellant was not required to prove his innocence, but to prove fact especially in his knowledge in relation to the charge of murder of his wife against him. It was observed in Saeed Ahmad[14] (Supreme Court: 2015): That with regard to vulnerable members of society, such as children, Women and the infirm, who were living with the accused or were last in his company the accused ought to offer some explanation of what happened to them. If instead he remains silent or offers a false explanation, he casts a shadow upon himself. This does not mean that the burden' of proof has shifted onto the accused as it is for the prosecution to prove its case, however, in respect of the helpless or the weak that require protection or care it would not be sufficient for the accused to stay silent in circumstances which tend to incriminate him, and if he elects to do so he lightens the burden of the prosecution. Article 122 of the Qanun-e-Shahadat Order too stipulates that if a particular fact is especially within the knowledge of any person the burden of proving that fact is upon him. In the present case the prosecution had established its case against the appellant; two eye-witnesses had deposed against him and the medical evidence 'confirmed strangulation of the deceased. The appellant did not attend to the last rites of his wife who had died whilst residing with him, he also did not inform the police nor took his wife to a hospital and disappeared for two months, such circumstances corroborate the prosecution case in the absence of the appellant offering a reasonable explanation for his, unnatural conduct.
34. To wind up the discussion, it is imperative to note that the burden never shifts to the accused definitely the same way as it lies on the shoulder of the prosecution. But, the accused has to show as to what was the special circumstance within his knowledge that prompted him to commit the murder of his wife. Two points are worth mentioning here: firstly, in an appropriate case, like the one in hand, Article 122 QSO will come into play only when the prosecution has successfully discharged its burden. Secondly, if the prosecution has failed to discharge its burden to prove the charge, Article 122 QSO would not apply. This view was expressed by our Suprme Court in the context of last seen evidence in the 1977 Rehmat[15] that may be called the first case on the issue in our jurisdiction. The Rehmat dictum was followed in Saeed Ahmad (supra) and Raja Khurram Ali Khan[16] (Islamabad: 2619), referred to above. The issue was further elaborated by the Supreme Court's Shariat Appellate Bench in Noorul Haq[17] (1992), observing that while the appellant failed to prove his defence plea, still the burden on the prosecution remained all the same to prove the charge. The Court maintained that the presumption of innocence of an accused is displaced only when the prosecution is able to prove the charge by discharging its legal or persuasive burden.
Sentencing
35. The higher courts have considered the importance of sentencing in number of cases. The Supreme Court has underlined certain factors that need consideration: for example, punishments' impact on the life and liberties of the accused person [Nadeem[18] (Supreme Court: 2010)]; avoidance of mechanical approach [Muhammad Ashraf[19] (Supreme Court: 2006); and attention to surrounding circumstances of a given case in which an offence has been committed (Saleemuddin[20] (Supreme Court: 2011)).
36. While passing the sentence of death as ta'zir, the learned trial court observed that the murder was deliberate and brutal and resulted in devastation of the family. As noted above, while the conduct of the appellant remained cruel, it didn't come to light as to what was the reason behind it.
It is reflected from the evidence that the appellant is a poor labourer, having 10 children and perhaps no house of his own. In the absence of any specific reason, his cruel conduct may be a matter of personal disposition either in addition to, or over and above, his economic hardships. In this age of distressing inflation while even the middle class of our society is fighting hard to earn two-time meal for its children, let alone other necessities such as health and education, the head of a large family like this remains always in the grip of mental stress to make both ends meet. The day of the unfortunate occurrence was the second day of the family having shifted to their one- room house where the house-hold articles were lying scattered. Such a situation was a potential source of disturbance and mental stress. The immediate cause--the late coming to PW7 that led to the happening of the unfortunate occurrence, however, definitely demonstrates a sudden heat of passion rather than a pre-meditated fiendish design to kill his wife. Keeping in view the above circumstances, we hold that imprisonment for life may serve the ends of justice.
Conclusion
37. Pursuant to our above reappraisal of evidence, we have reached to a definite conclusion that the prosecution has successfully proved the charge against the appellant. It has been convincingly proved that the appellant committed qatl-i-amd of his wife inside his house in the presence of his children, amongst whom one of his sons Abdul Manan (PW7) furnished ocular account of the occurrence. PW7, despite being of tender age, gave direct evidence in which he remained steadfast and firm. Rather, under cross examination, confirmatory questions were asked from him.
The recoveries and the medical evidence fully corroborated the main core of the prosecution case.
The non-recovery of the knife when seen in juxtaposition with other evidence, stands as a minor discrepancy, which is otherwise secondary in nature. While the prosecution has been able to discharge its burden of proving the charge beyond reasonable shadow of doubt, the appellant, on the other hand, being husband of the victim offered no explanation for her unnatural death inside his house. When confronted with the prosecution evidence in his examination under section 342 Cr.P.C., he stated that he was out of the city and that he participated in the victim's funeral prayer.
He failed to state facts especially in his knowledge or at least to offer some explanation about the murder of the victim. He didn't opt to record his statement on oath under section 340(2) Cr.P.C.
Resultantly, the first point for determination is answered in affirmative. The second point for determination partially answered in negative to the extent of imposition of death penalty.
Imprisonment for life would serve the purpose of justice. The sentence needs no interference.
Verdict
38. For the reasons articulated above and while applying the legal principles laid down in the case law, we partially allow this appeal by converting the death penalty into imprisonment for life, and uphold the remaining conviction and sentence recorded by the trial Court. We, accordingly, answer the murder reference in the negative.
39. These are details reasons of the short order of even date.
1. Inayatullah v. The State, 2019 P Cr.L.J. 1392 [Peshawar (D.I. Khan Bench].
2. Zahid Hussain v. The State, 1999 P Cr.L.J. 1044 (Karachi).
3. Jan Muhammad v. Muhammad Ali and 3 others, 2002 SCMR 1586.
4. Sikandar v. The State, 2006 SCMR 1786.
5. Raja Khurram Ali Khan and another v. Tayya ba Bibi and another, 2019 YLR 98 [Islamabad].
6. Tariq Mehmood and another v. The State, 2002 SCMR 32.
7. Khan alias Khani v. The &ate, 2006 SCMR 1744.
8. Muhammad Siddique v. The State, 2020 SCMR 342. 9
9. The State v. Ahmad Omar Sheikh, 2021 SCMR 873.
10. Neel Kutna v. The State of Haryana 2012 5 SCC766.
11. Glanville Williams, 'The Logic of "Exceptions", Cambridge Law Journal, 47(2), July 1988, pp. 261- 295.
12. Jayasena v. R. [1070] A.C. 618. R. v. Schwartz, [1988] 2 S.C.R. 443, at 467, [1988] S.C.J. No. 84 (S.C.C.)).
13. [2004] 1 S.C.R. 702, [2004] S.C.J. No. 23, at paras, 11-12 (S.C.C.).
14. Saeed Ahmad v. The Slaie, 2015 SCMR 710.
15. Rehmat v. The State, PLD 1977 SC 515, at 527.
16. Raja Khurram Ali Khan, supra note 5.
17. Noorul Haq v. The State, 1992 SCMR 1451 [Shariat Appellate Bench Supreme Court of Pakistan].
18. Nadeem alias Manha alias Billa Sher v. State, 2010 SCMR 949.
19. Muhammad Ashraf v. State, 2006 P Cr.L.J. 1431.
20. Saleemuddin v. State, 2011 SCMR 1171.