SADIQ MAHMUD KHURRAM, J. Muhammad Arslan son of Muhammad Iqbal (convict) was tried by the learned Additional Sessions Judge, Layyah in the case FIR No. 50 of 2020 dated 06.02.2020 registered in respect of an offence under section 302, P.P.C. at the Police Station Kot Sultan, District Layyah, for committing the Qatl-i-Amd of Arbia Bibi daughter of Javaid Iqbal (deceased) and the Isqat-i-Janin of the unborn child Ariba Bibi (deceased) was pregnant with. The learned trial court, vide judgment dated 09.06.2022, convicted Muhammad Arslan son of Muhammad Iqbal (convict) and sentenced him as infra: Muhammad Arslan son of Muhammad Iqbal: i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-amd of Ariba Bibi daughter of Javaid Iqbal (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to tile legal heirs of Ariba Bibi daughter of Javaid Iqbal (deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead. ii) Imprisonment for seven years as Tazir under section 338C, P.P.C. for causing Isqat-i-Janin of the child Ariba Bibi daughter of Javaid Iqbal (deceased) was pregnant with and also directed to pay one-twentieth of the Diyat.
2. Feeling aggrieved, Muhammad Arslan son of Muhammad Iqbal (convict) lodged Criminal Appeal No. 584 of 2022 assailing his conviction and sentence. The learned trial court submitted Murder Reference No. 46 of 2022 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad ArsIan son of Muhammad Iqbal.
We intend to dispose of the Criminal Appeal No. 584 of 2022 and Murder Reference No.46 of 2022 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Javaid Iqbal (PW-7), the complainant of the case are as under:- "Stated that on (sic) Ariba Bibi was my daughter. She was married 6/7 months prior to the occurrence to Muhammad Arslan accused. They contracted love marriage against my will. After two months of their marriage, there arose differences between spouses. My daughter Ariba Bibi told me about her quarrel with her husband, Muhammad Arslan, accused present before the court, through telephonic call.
On 06.02.2020, I along with Muhammad Akbar and Muhammad Saleem went to the house of Muhammad Arslan accused on motor cycle at about 12/12.30 noon, As soon as we entered from gate in the house, we saw Muhammad Arslan accused present before the court was dragging my daughter Ariba Bibi while holding her hair and taking her into the room. In our view accused Muhammad Arslan immediately made fire shot, which hit at the front side of belly of Ariba Bibi. As we proceeded ahead, the accused Muhammad Arslan pointed his pistol towards us and threatened that if we would proceed, he would fire at us. We stepped back. Accused Muhammad Arslan threw the pistol there and ran away while scaling over the western wall of the house. We saw Ariba Bibi was smeared in blood, but she was died. We came out from the gate. We informed the police.
Motive behind the occurrence was matrimonial dispute between accused Muhammad Arslan and my daughter Ariba Bibi.
Police came at the spot. I got recorded my statement Exh-PB before the police, which bears my signature."
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the appellant namely Muhammad ArsIan son of Muhammad Iqbal was sent to face trial.- The learned trial court framed the charge against the accused on 21.03.2020 and reframed the charge on 06.10.2020, 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 Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8). Malik Khizhar Hayat, Halqa Patwari (PW-1), prepared the scaled site plan of the place of occurrence (Exh.PA). Zahid Abbas, 566/14C (PW-2) stated that on 06.02.2020, he received one sealed parcel said to contain the pistol recovered from the place of occurrence and one sealed parcel said to contain blood stained earth and another sealed parcel said to contain the piece of bullet recovered from the place of occurrence and he handed over the said parcels to Muhammad Riaz, SI (PW-9) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Zafar Iqbal, ASI (PW-3) stated that on 06.02.2020, he got recorded the formal FIR (Exh.PB/1).
Tehmeena Abbas 36/LC (PW-5) stated that on 06.02.2020, she escorted the dead body of the deceased to the hospital for post-mortem examination and received the last worn clothes of the deceased from the Woman Medical Officer after post-mortem examination. Ahsan Javed (PW-6) stated that he identified the dead body of the deceased at the time of its post-mortem examination and the Woman Medical Officer handed over the last worn domes of the deceased to the Investigating Officer of the case, in his presence. Muhammad Riaz, SI (PW-9) investigated the case from 06.02.2020 till 25.02.2020, arrested the appellant on 13.02.2020, 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. Sana Zahra (PW-4) examined who on 06.02.2020 was posted as Woman Medical Officer at the T.H.Q. Level Hospital, Kot Sultan and on the same day had conducted the post mortem examination of the dead body of the deceased namely Ariba Bibi daughter of Javaid Iqbal. On conducting the post mortem examination of the dead body of the deceased namely Ariba Bibi daughter of Javaid Iqbal, Dr. Sana Zahra (PW-4) observed as under:- "Description of Injuries Injury No.1 An entry wound of size 01 x 01 cm inverted margins in midline of abdomen 17 cm above anterior superior iliac spine. An area of burned black skin, semi circular in shape of diameter 03 cm around the entry wound, singeing of hair was present, abrasion collar of wound present. Shape of wound was semi circular, upon dissection mild burning of subcutaneous tissue present however deep subcutaneous fat was normal. No tattoing was seen.
Injury No.2 An exit wound of size 01 x 0.5 cm on the back 16 cm above from anterior superior illiac spine. The wound was just 1 cm right lateral to mid line the margins of wound were everted.
Injury No.3 An abrasion of size 02 x 01 cm on left patella. No erythema/swelling was seen. .....................................................
Opinion Death occurred by cardio pulmonary arrest due to Hypovolemic shock caused by firearm injury to pancreas mesentery vessels and inferior vena cava. The probable duration between injuries and death was within two hours and between death and post-mortem was six hours. During post- mortem examination, I received samples of some organs and sent to PFSA for analysis. After post- mortem examination, I handed over dead body of deceased and last-worn clothes of deceased i.e. shalwar, kameez to the police. Computerized post-mortem report Exh-PD was signed by me and diagram about locale of injuries Exh-PD/1 were also signed by me. Inquest report Exh-PE was endorsed by me."
7. On 10.02.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Mohsin Javed as being unnecessary. On 17.02.2022, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Saleem as being unnecessary.
On 18.02.2022, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the blood stained earth (Exh.P.N.), the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the empty recovered from the place of occurrence and the pistol (Exh.PM) and the report of the Punjab Forensic Science Agency, Lahore regarding the latent fingerprint examination (Exh.PL).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Arslan son of Muhammad Iqbal under section 342, Cr.P.C. and in answer to the question why this case against you and why the P.Ws. have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Arslan son of Muhammad Iqbal opted not to get himself examined under section 340(2), Cr.P.C. however got Muhammad Rizwan Ali, IT Statistical Officer (DW-l) examined in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Layyah 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, was highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to suspicion alone. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution had proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the pistol (P-4) from the place of occurrence also corroborated the ocular account.
The learned Deputy Prosecutor General along with the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, 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 Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8), the eye-witnesses of the occurrence. The relationship of the said witnesses with the deceased is on record. Ariba Bibi (deceased) was the real daughter of Javaid Iqbal (PW-7) and the maternal niece of Muhammad Akbar (PW-8). During cross-examination, the prosecution witness namely Javaid Iqbal (PW-7) stated as under:- "PW Muhammad Akbar is my brother-in-law and maternal uncle of deceased Ariba Bibi. PW Muhammad Saleem is paternal brother (Chachazad) of my wife. He is not my "Humzulf". PW Ahsan Javaid is my son."
The prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8), both of them were residents of Mohalla Balochan Wala, whereas the occurrence had taken place at Basti Masuwali, Mouza Ali Dasti, which place was admittedly at a distance from the place of residences of Javaid Iqbal (PW- 7) and Muhammad Akbar (PW-8). Muhammad Riaz SI (PW-9), the Investigating Officer of the case, during cross-examination stated as under:- "The place of occurrence is situated in Mauza Ali Dasti Basti Masuwali. On the day of occurrence, I did not join in investigation any person from Mauza Ali Dasti Basti Masuwali to verify the version of the complainant party."
It is an admitted fact that both the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) did not have their residences or their places of employment near or around the place of occurrence. The prosecution witness namely Javaid Iqbal (PW-7) during cross-examination admitted as under:- "My house is situated at a distance of about one and half kilometers towards west from the place of occurrence. PW Muhammad Akbar is also residing in the adjacent house to me. The house of PW Muhammad Saleem is situated at a distance of two and half kilometers towards north from the place of occurrence. ...............
My shop is situated at a distance of about one and half kilometers towards west from the place of occurrence. It is my routine to open shop after "Fajr" prayer and to close the shop after "Maghrib" prayer."
Similarly, the prosecution witness namely Muhammad Akbar (PW-8) during cross-examination admitted as under:- "My house is situated at a distance of about 2/3 kilometers from the place of occurrence. Same is the distance of my shop from the place of occurrence"
Ahsan Javed (PW-6) also admitted during cross-examination as under:- "The complainant Javid Iqbal is my real father. My residence is about two kilometers away from the house of the accused. The complainant and we have been residing together. ........................
PW Akbar is my maternal uncle whose residence is at a distance of about 02 kilometers from the place of occurrence. PW Saleem is also my maternal Uncle whose house is 1-1/2 kilometer away from the place of occurrence and half kilometer away from my residence towards north."
In this manner, both the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) 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 the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. In order to prove their presence at the place of occurrence, at the time of occurrence, Javaid Iqbal (PW-7) stated that the deceased namely Ariba Bibi daughter of Javaid Iqbal called him, telling him about the violence being exacted upon her by the appellant and it was this reason which persuaded the prosecution witness namely Javaid Iqbal (PW-7) to proceed to the matrimonial house of his deceased daughter namely Ariba Bibi. The prosecution witness namely Javaid Iqbal (PW-7) admitted during cross-examination that it was his routine that he used to open his shop after Fajr prayer and close the same after Maghrib prayer, therefore, during the course of the recording his evidence by the learned trial court, he invented the claim that because he had received a call from the deceased, therefore, he, on the day of occurrence, contrary to his routine, proceeded to the place of occurrence at about 12.00 noon.
The claim that the prosecution witness namely Javaid Iqbal (PW-7) had received a telephonic call from the deceased namely Ariba Bibi was not mentioned initially by Javaid Iqbal (PW-7) in his oral statement (Exh.PB) recorded at the place of occurrence, after the occurrence by Muhammad Riaz, SI (PW-9). It was only during the course of the trial that the prosecution witness namely Javaid Iqbal (PW-7), after realizing the inherent flaw in his narrative wherein no reason had been mentioned for the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW- 8) to have proceeded to the place of occurrence, on the day of occurrence, improved upon his previous statement and came up with the narrative that because his daughter had called him, therefore, he proceeded to meet her, however, the prosecution witness namely Javaid Iqbal (PW-7) was badly exposed in his effort and during the course of examination of Javaid Iqbal (PW-7), the learned trial court observed as under:- "I got recorded in my statement Exh-PB that my daughter Ariba Bibi told me about her quarrel with her husband, Muhammad Arslan, accused present before the court through telephonic call.
Confronted with Exh-PB where telephonic call is not mentioned."(emphasis supplied)
The prosecution witness namely Javaid Iqbal (PW-7) also admitted that neither during the investigation of the case nor before the learned trial court he had mentioned the phone number of the mobile phone device used by Ariba Bibi (deceased) from which Javaid Iqbal (PW-7) had received the call. Javaid Iqbal (PW-7) also admitted during cross-examination that he did not even mention his own phone number on which he had received the call of Ariba Bibi during the cOurse of the investigation. Javaid Iqbal (PW-7), during cross-examination, admitted as under:- 'I did not tell cell number of Ariba Bibi through which she telephonically informed me about the quarrel. I also did not tell my cell number to the police"
Javaid Iqbal (PW-7) during the investigation of the case and even before the learned trial court did not produce any evidence in the shape of Call Data Record (C.D.R.) of the mobile phone number under his use or under the use of Ariba Bibi (deceased) to establish that he had indeed received the telephonic call of Ariba Bibi (deceased) and after receiving the said call he and Muhammad Akbar (PW-8) had proceeded to the place of occurrence. Furthermore, Muhammad Riaz SI (PW-9), the Investigating Officer of the case, also did not collect any evidence during the investigation of the case so as to prove that Javaid Iqbal (PW-7) had indeed received a phone call of Ariba Bibi (deceased). The mobile phone device through which the deceased had called Javaid Iqbal (PW-7) was also not found present at the place of occurrence nor was produced by any witness during the investigation of the case nor was produced before the learned trial court. The Woman Medical Officer who conducted the post-mortem examination of the dead body of the deceased also did not find any such mobile phone device at the time when she conducted the post-mortem examination. The Investigating Officer of the case, also did not find any such mobile phone device at the place of occurrence, despite his presence at the place of occurrence for a continued period.
The failure of the prosecution to produce the mobile phone device under the use of Ariba Bibi (deceased) has repercussions. The very inception of the prosecution case is put in doubt due to the said failure of the prosecution. Furthermore, the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) remained at variance with regard to their departure from their shops to the place of occurrence, on the day of the occurrence. According to the prosecution witness namely Javaid Iqbal (PW-7), on the day of occurrence, Muhammad Akbar (PW-8) met him at his shop, from where they proceeded to the place of occurrence, whereas according to the prosecution witness namely Muhammad Akbar (PW-8), on the day of occurrence, Javaid Iqbal (PW-7) had come to his shop, where after they went to the place of occurrence. Javaid Iqbal (PW- 7), during cross-examination, stated as under:- "The shop of Muhammad Akbar is situated in front of my shop. He met me at the shop on that day at about 08.30/9 a.m. PW Muhammad Saleem is butcher by profession. He met me on that day at the shop situated near my shop early in the morning. We left our shops on the day of occurrence at about 11.45/12 noon." (emphasis supplied)
Muhammad Akbar (PW-8), to the contrary, during cross-examination stated as under:- "On 06.02.2020, we gathered at my shop to go to the house of accused Muhammad ArsIan. Fristly Javaid lqbal complainant and then PW Muhammad Saleem came." (emphasis supplied)
We have also noted that though it was claimed by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) that they had gone to the place of occurrence on one motorcycle, however, during the course of the investigation as well as before the learned trial court, the said motorcycle allegedly used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence was not produced. Javaid Iqbal (PW-7) during cross-examination stated as under:- "Motor cycle was owned by me on which we went to the house of accused Muhammad Arslan. I did not produce my motor cycle before the police." (emphasis supplied)
As mentioned above, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, visited the place of occurrence, after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence along with the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence, if the same was available. The said motorcycle which was used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) was not even produced during the entire period of investigation nor was produced before the learned trial court. The non-production of the motorcycle used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence and the failure of Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such motorcycle was available. Had a motorcycle been used by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Muhammad Riaz, SI (PW-9), the Investigating Officer of the case and the same would necessarily have been taken into possession by Muhammad Riaz, SI (PW-9), the Investigating Officer of the case but it was not and it proves that a false claim was made by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) that they had arrived at the place of occurrence on a motorcycle. The very inception of the prosecution case is therefore put in doubt. Reliance in this regard is placed on the case of "Muhammad Ali v. The State" (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:- 'The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material."
We have also noted with concern that both the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) made mutually destructive statements regarding the place where they had parked the motorcycle while proceeding to the place of occurrence. According to the prosecution witness namely Javaid Iqbal (PW-7), the motorcycle was parked at a distance of two feet from the place of occurrence, whereas according to Muhammad Akbar (PW-8), the place of parking of the motorcycle was as far as 40/45 feet from the place of occurrence. Javaid Iqbal (PW- 7) during cross-examination stated as under:- "I parked my motor cycle in front of gate of house of accused Muhammad Arslan at a distance of about two feet.''
Muhammad Akbar (PW-8), to the contrary, during cross-examination stated as under:- "the distance between the place where we parked the motor cycle and room of the occurrence was about 40/45 feet."
In this manner, both the eye-witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence and the mode through which they arrived at the place of occurrence. The prosecution was under a bounden duty to establish not only that the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) had a reason to proceed to the place of occurrence but also to prove the mode through which the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) arrived at the place of occurrence. The failure of the prosecution to prove the said fact has vitiated our trust in Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) as being truthful witnesses. In this respect, reliance is placed on the case of "Muhammad Rafiq v.
State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they were 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 Zaboor Ahmad, Ghulam Farid and Manzoor Ahmed in the said case who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, chance witnesses and 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 the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) claimed that the occurrence took place exactly at the same time when they had arrived at the place of occurrence. The prosecution witness namely Javaid Iqbal (PW-7) during cross-examination stated as under:- "When we reached, accused Muhammad Arslan and Ariba Bibi deceased were discussing with each other and on seeing us, accused Muhammad Arslan dragged Ariba Bibi into the room."
This narrative of the prosecution witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence and thereafter committed the same 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 Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8), runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human conduct, we are holding that the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) 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 v. 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 v. 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 noted that the alleged eye-witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) along with Muhammad Saleem (given up prosecution witness) made no effort either to save the deceased or to apprehend the accused when they were three in number and could have easily restrained the accused, who according to the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) had thrown the weapon used by him during the occurrence, in the presence of the witnesses before fleeing away from the place of occurrence. The prosecution witness namely Javaid Iqbal (PW-7), in his statement before the learned trial court, stated as under:- "As we proceeded ahead, the accused Muhammad Arslan pointed his pistol towards us and threatened that if we would proceed, he would fire at us. We stepped back. Accused Muhammad Arslan threw the pistol there and ran away while scaling over the western wall of the house. ...........................
The room of occurrence has only one door. We were standing in the room. Accused fled away from the same room where we were present. The distance between western wall of the house and room of occurrence was about 15/20 feet." (emphasis supplied)
The prosecution witness namely Muhammad Akbar (PW-8), during cross-examination, stated as under:- "Accused Muhammad Arslan was at a distance of about 10/12 feet from us towards north. He was backing towards us. The room of occurrence has two doors, one door opens towards outside and the other opens to the adjacent room. The accused Muhammad Arslan did not fire at us. The witness volunteers he pointed his pistol towards us and we stepped back. It is incorrect to suggest that volunteer portion of my statement is false. When accused threw his pistol and ran away, we did not try to chase him." (emphasis supplied)
It is unnatural and unbelievable that the alleged eye-witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) along with Muhammad Saleem (given up prosecution witness) did not even move a limb to protect their near and dear one. No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailant. It only proves that the deceased was at the mercy of the assailant and no one was there to save her. Such behaviour, on the 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 prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) were not present at the place of occurrence, at the time of occurrence and their presence was procured subsequently. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances.
Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- "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 Tan veer 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. We have also noted that Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, got information about the occurrence and reached the place of occurrence on his own. We have also observed that none of the witnesses, including Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8), ever proceeded from the place of occurrence to report the matter to the police till the arrival of Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, at the place of occurrence on his own. The oral statement (Exh. P.B.) of Javaid Iqbal (PW-7) was recorded by Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, at the place of occurrence. 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."
But most damningly for the prosecution case, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, made contradictory statements with regard to his arrival at the place of occurrence and his arrival at the hospital. Initially, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, stated that he arrived at the place of occurrence after getting the information of the same at the Police Station, remained there till 05:00 p.m and subsequently went to the hospital, however also admitted that he had gone to the hospital as early as 01:40 p.m. Muhammad Riaz, SI (PW-9), during cross-examination, admitted as under:- "I remained at the place of occurrence till 05:00 p.m. on the day of occurrence. From there went to THQ Level Hospital Kot Sultan. ............................
It is correct that at 01.40 p.m. on 06.02.2020, I was present in the hospital outside the first aid room."
(emphasis supplied)
We have also noted with grave concern that, contrary to the whole prosecution case, according to the statement of Muhammad Rizwan Ali, (DW-1), IT Statistical Officer, THQ Level Hospital, Kot Sultan, according to the record maintained at the hospital, Ariba Bibi (deceased) was brought to the hospital in an injured condition on 06.02.2022 at 01:55 p.m. and was also given treatment, the record of which was produced before the Court as (Exh.DE/1-3). Coupled with these facts, the admission of the prosecution witness namely Muhammad Akbar (PW-8) that his statement under section 161 of the Code of Criminal Procedure, 1898 was not recorded on the day of occurrence brings further doubt in the prosecution case. Muhammad Akbar (PW-8), during cross- examination, admitted as under:- "Police came at the spot at about 01.00/01.15 p.m. On the day of occurrence, police did not record my statement. We remained at place of occurrence for about two/two and half hours on the day of occurrence." (emphasis supplied).
17. We have also noted with disquiet that despite the fact that the occurrence took place at about 12.30 p.m on 06.02.2020, the post-mortem examination of the dead body of the deceased was conducted after much delay. According to Dr. Sana Zahra (PW-4), she conducted the post- mortem examination of the dead body of the deceased namely Ariba Bibi at 07.15 p.m on 06.02.2020 i.e. after 07 hours of the occurrence and after 07 hours of the recording of the oral statement (Exh.PB) of Javaid Iqbal (PW-7) by Muhammad Riaz, SI (PW-9). Dr.Sana Zahra (PW-4), who conducted the post-mortem examination of the dead body of Ariba Bibi (deceased) and prepared the post-mortem examination report (Exh. PD), gave the time between death and post- mortem examination as being six hours. According to Dr. Sana Zahra (PW-4) she received the police documents at 07.00 p.m. on 06.02.2020 and thereafter she conducted the post-mortem examination. Dr. Sana Zahra (PW-4), explained during cross-examination that the post mortem examination of the dead body of the deceased was delayed due to the fact that the police papers were not handed over till 07.00 p.m. Dr. Sana Zahra (PW-4), during cross-examination, explained as under:- "Dead body was produced by the police before me for post-mortem examination on 06.02.2020 at about 05.00 p.m. whereas documents were given to me at 07.00 p.m. I conducted autopsy at 07.15 p.m. on the same day. Police brought documents with delay at 07.00 p.m. due to that, I conducted post-mortem examination with delay." (emphasis supplied).
Despite the claim of the prosecution that the formal FIR (Exh. P.B/1) had been recorded at 01.45 p.m on 06.02.2020, five more hours were taken to submit the complete documents to the Woman Medical Officer after the registration of the formal FIR (Exh. P.B/1.). The reason which is apparent for the delayed conducting of the post-mortem examination of the dead body of Ariba Bibi daughter of Javaid Iqbal (deceased) is that by that time the details of the occurrence were not known and the said time was used 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 receiving the complete documents from the police and the delay in conducting the post-mortem examination. Furthermore, it was also not explained by the prosecution why the dead body was not sent to the hospital for as many as five hours after the occurrence when the hospital was at a distance of 1.5 kilometers from the place of occurrence. Malik Khizhar Hayat, Halqa Patwari, (PW-1), during cross-examination, stated as under:- "Inter-se distance of THQ Hospital Kot Sultan and the alleged place of occurrence is about 1-1/2 kilometer."
These facts clearly establish that the witnesses claiming to have seen the 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 dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post- mortem examination is reflective of 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 2 others v. 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 v. 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 v. 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. It has been argued by the learned Deputy Prosecutor General and the learned counsel for the complainant that where any person dies an unnatural death in the house of such accused, then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts the presence of some eye-witnesses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a person had taken place in his house, therefore, it must be he and none else who would have committed that murder. The learned Deputy Prosecutor General submits that it was in the knowledge of the appellant how the deceased died so it was the appellant who was responsible, in the 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:- (I) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly, the burden is placed on the prosecution to prove beyond doubt the guilt of the accused, which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 of Qanun-e-Shahadat, 1984 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 pari materia with Article 122 of the Qanun-e-Shahadat, 1984, 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 in the case of "Nasrullah Alias Nasro v. 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 cases, the burden is on the prosecution and never shifts. Throughout the web of the Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the accused's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the accused is the law and no attempt to whittle it down can be entertained. As discussed above, the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be one of the residents of the place of occurrence. The prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) admitted that the appellant had his siblings and parents living with him, however, claimed that they used to reside in a separate adjacent house. Javaid Iqbal (PW-7), during cross-examination, stated as under:- "The family members of accused Muhammad Arslan reside in the adjacent house. Muhammad Arslan accused has three brothers but I do not know he has how many sisters." (emphasis supplied)
Muhammad Akbar (PW-8), during cross-examination, stated as under:- "His parents are alive. They reside in the adjacent house."(emphasis supplied)
However, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, during cross- examination stated that there was no other house situated next to the house of the appellant and therefore in a manner admitted that the parents and siblings of the appellant were also the residents of the same house where the occurrence took place. Muhammad Riaz, SI (PW-9), during cross-examination stated as under:- "There was no house adjacent to the house of accused Muhammad Arslan." (emphasis supplied)
An accused person cannot be convicted merely because he did not explain the circumstances in which the deceased had lost her life. The august Supreme Court of Pakistan has held in the case of "Muhammad Jamshaid and another v. 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 v. 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 v. The State (2016 SCMR 1628) as under: "It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710)."
The august Supreme Court of Pakistan has held in the case of Asad Khan v. 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 net 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 v. 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."
19. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol (P-4) made from the place of occurrence and the report of the Punjab Forensic Science Agency, Lahore (Exh.PM) and have submitted that they offered sufficient corroboration of the ocular account of the occurrence as furnished by Javaid Iqbal (PW- 7) and Muhammad Akbar (PW-8).
The recovery of the pistol (P-4) from the place of occurrence offers no corroboration of the ocular account for the reason that the said pistol (P-4) was never recovered from the possession of the appellant. Moreover, Muhammad Riaz, SI (PW-9), the Investigating Officer of the case, submitted that it was the team of Forensic Science, Dera Ghazi Khan, which had taken into possession the pistol (P-4) and handed over the sealed parcel to him, however, during the course of trial no one from the said team of Forensic Science, Dera Ghazi. Khan, which had taken into possession the pistol (P-4), appeared as a witness before the learned trial court in support of the said fact.
Muhammad Riaz, SI (PW-9), admitted during cross-examination that he did not record the statement of any such member of the said team during the investigation of the case. Muhammad Riaz, SI (PW-9), admitted during cross-examination, stated as under:- "I did not record the statement of any member of team of PFSA Dera Ghazi Khan. I also did not mention the name of any member of the team in any document relating to this case. I did not find any empty of pistol 30 bore during whole my (sic) investigation."
Moreover, the piece of bullet recovered from the place of occurrence was also found not suitable for comparison by the Punjab Forensic Science Agency, Lahore. We have also noted that according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PL), no latent fingerprints were developed from the pistol, empty shell, magazine of the bullets and the four bullets sent to it for analysis. Therefore, the recovery of the pistol (P-4) from the place of occurrence does not further the case of the prosecution in any manner. In view of the above-mentioned facts, the recovery of the pistol (P-4) cannot be used as a circumstance against the appellant.
20. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Javaid Iqbal (PW-7) in his oral statement (Exh. P.B.) was that the deceased was suffering from violence at the hands of the appellant. We have perused the statements of the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW- 8) and find that they failed to prove the motive of the occurrence as stated by them. It was admitted by the prosecution witnesses namely Javaid Iqbal (PW-7) and Muhammad Akbar (PW-8) that Ariba Bibi (deceased) had contracted marriage with the appellant of her own free will and consent and FIR was got registered against the appellant for the abduction of Ariba Bibi (deceased) but the said FIR was cancelled after Ariba Bibi (deceased) made a statement in favour of the appellant that he had not abducted her rather she of her own free will and consent had contracted marriage with him. Javaid Iqbal (PW-7), during cross-examination, stated as under:- "It is correct that my son Ahsan Javaid got lodged FIR No.177/2019 under section 365-B, P.P.C. at Police Station Kot Sultan against the accused Muhammad ArsIan regarding abduction of my daughter Ariba Bibi. Perhaps Muhammad Saleem PW of this case was also the witness of above said case FIR No.177/19. Perhaps Akhtar son of Fiaz was also the witness of above said case. It is incorrect to suggest that I am concealing this fact deliberately with mala fide intention. Case FIR No.177/19 was cancelled, because Ariba Bib got recorded her statement in favour of accused Muhammad Arslan. It is correct that Akhtar son of Fiaz is real brother of Muhammad Akbar PW of this case. I and my family had enmity with Muhammad ArsIan accused due to his love marriage with my daughter Ariba Bibi and above said FIR No.177/19." (emphasis supplied)
Muhammad Akbar (PW-8), during cross-examination, stated as under:- "I got recorded in my statement before police that the complainant Javaid Iqbal came to my shop and told me about the matrimonial disputes between Ariba Bibi and accused Muhammad ArsIan.
Confronted with Exh-DB where it was so recorded. ..................
It is in my knowledge that Ahsan Javaid son of complainant got lodged FIR No.177/2019 under section 365-B, P.P.C. at Police Station Kot Sultan against the accused Muhammad ArsIan regarding abduction of Ariba Bibi deceased. .................
After marriage, Ariba Bibi never visited our house." (emphasis supplied)
There is no evidence on record that Ariba Bibi daughter of Javaid Iqbal (deceased) was facing any threat to her life at the hands of the appellant prior to the occurrence rather, to the contrary, she was living with the appellant till her tragic death. This also proves that the appellant and the deceased were having a happy and a healthy marital life and hence there did not exist any reason for the appellant to have murdered his loving wife. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-amd of the deceased. There is a poignant hush with regard to the particulars of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
21. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Sana Zahra (PW-4) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved occurrence. As all the other pieces of evidence relied upon by the prosecution; in this case, have been disbelieved and discarded by us, therefore, the appellant's conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another v. The State" (2017 SCMR 986) has enunciated the following principle of law: "The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit." '
The august Supreme Court of Pakistan in its binding judgment titled "Naveed Asghar and 2 others v. The State" (PLD 2021 Supreme Court 600) has enunciated the following principle of law: "31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Arslan son of Muhammad Iqbal, 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 v. 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 v.
The State (2021 SCMR 736) in which it has been as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
23. For what has been discussed above, Criminal Appeal No.584 of 2022 lodged by Muhammad Arslan son of Muhammad Iqbal (appellant) is allowed and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 09.06.2022 are hereby set-aside. Muhammad Arslan son of Muhammad Iqbal (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Muhammad Arslan son of Muhammad Iqbal (appellant) is in custody and is directed to be released forthwith if not required in any other case.
24. Murder Reference No.46 of 2022 is answered in Negative and the sentence of death awarded to Muhammad Arslan son of Muhammad Iqbal is Not Confirmed.