SADIQ MAHMUD KHURRAM, J. -Abdul Rasheed son of Abdul Majeed (convict) was tried alongwith Abdul Majeed and Umar Daraz (since acquitted), the co-accused of the convict by the learned Additional Sessions Judge, Lodhran in case F.I.R No. 137 of 2019 dated 06.06.2019 registered in respect of offences under sections 302 and 34 P.P.C. at the Police Station Jallah Arain District Lodhran for committing the Qatl-i-Amd of Sardar Muhammad son of Sultan Ali (deceased). The learned trial court vide judgment dated 14.03.2020, convicted Abdul Rasheed son of Abdul Majeed (convict) and sentenced him as infra: Abdul Rasheed son of Abdul Majeed : Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Sardar Muhammad son of Sultan Ali (deceased) and directed to pay Rs.300,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of the deceased; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment .
The convict was ordered to be hanged by his neck till dead.
Abdul Majeed and Umar Daraz, the co-accused of the convict, were however acquitted by the learned trial court.
2. Feeling aggrieved, Abdul Rasheed son of Abdul Majeed (convict) lodged Criminal Appeal No.655-J of 2022 through Jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.36 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Abdul Rasheed son of Abdul Majeed. We intend to decide the Criminal Appeal No. 655-J of 2022 and the Murder Reference No.36 of 2022 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Muhammad Islam (PW-1), the complainant of the case, are as under:- "Stated that 05.06.2019, I came to see my real brother Sardar Muhammad to celebrate Eid-ul-Fitar, at Chak No.384/WB. My paternal cousin namely Mst. Zarina Bibi was married with Umar Draz s/o Abul Majeed about 08/09 years ago. On 05.06.2019, at about 08:00 p.m, I alongwith Sardar Muhammad s/o Sultan Ali, Ghulam Ali s/o Muhammad Akram went to the house of our sister Mst.
Zarina Bibi, we took meal with Abdul Majeed s/o Allah Yar, Abdul Rasheed s/o Abdul Majeed, Umar Draz s/o Abdul Majeed. After taking the meal, we were sitting together and we complained to Abdul Majeed that his sons Umar Draz and Abdul Rasheed used to beat our sister Mst. Zarina Bibi, upon which some hard words were exchanged between us. On the noise, PW Abdul Malik s/o Muhammad Akram attracted the spot. Being annoyed, Abdul Rasheed took a pistol from the adjacent room and made a pistol shot straight upon Sardar Muhammad with the intention of murder, which hit upon his right side of neck and he fell down. Abdul Majeed and Umar Draz raised lalkara and asked Abdul Rasheed that the remaining three should not be spared. Abdul Rasheed accused made straight firing on us but we luckily saved. Accused persons fled away on motorcycle while extending threats. We were taking injured Sardar Muhammad to Nishtar Hospital Multan but on the way, he succumbed to the injuries. The occurrence was witnessed by PWs Ghulam Ali, Abdul Malik and myself.
Motive behind the occurrence is that accused persons Umar Draz and Abdul Rasheed used to beat our sister Mst. Zarina Bibi and we forbade them and complained to accused Abdul Majeed. All the three accused with their common intention murdered Sardar Muhammad and with the intention to murder made straight firing upon me and PWs Ghulam Ali and Abdul Malik. I submitted application Ex. PA for registration of FIR. Ex.PA which is duly thumb marked and signed by me. My signature on Ex. PA is Ex.PA/1.
On 06.06.2019, I.O of this case visited the place of occurrence, collected the blood stained earth and crime empties from the place of occurrence. I.O."
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 accused were sent to face trial. The learned trial court framed the charge against the accused on 23.10.2019, 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 Muhammad Islam (PW-1) and Ghulam Ali (PW-2) . Ghulam Abbas draftsman (PW-3) prepared the scaled site plan of the place of occurrence (Exh.PD). Saeed Hussain 80/HC (PW-6) stated that on 06.06.2019, he got recorded the formal F.I.R. and on the same day Investigating Officer of the case of the case handed over to him one sealed parcel said to contain blood stained earth and one sealed parcel said to contain empty shells of the bullets and on 10.06.2019, he handed over both the sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Collection Centre, Punjab Forensic Science Agency, Multan and on 01.07.2019, the Investigating Officer of the case handed over to him a sealed parcel said to contain a pistol and on 03.07.2019, he handed over the said sealed parcel to the Investigating Officer of the case for its onward transmission to the office of the Collection Centre, Punjab Forensic Science Agency, Multan. Muhammad Bilal 629/C (PW-7) stated that on 01.07.2019, the appellant got recovered the Pistol (P-5) and on 05.07.2019, the appellant got recovered the motorcycle (P-7). Zahid Hussain 314/C (PW-8) stated that on 05.06.2019, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Bashir Ahmad, SI (PW-9), the Investigating Officer of the case, investigated the case from 06.06.2019 till 10.07.2019, arrested the appellant on 23.06.2019, 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. Zain ul Abidin (PW-4) examined, who on 06.06.2019 was posted as Medical Officer at RHC Makhdoom Aali and on the same day conducted the postmortem examination of the dead body of Sardar Muhammad son of Sultan Ali (deceased). Dr. Zain ul Abidin (PW-4) on examining the dead body of Sardar Muhammad son of Sultan Ali (deceased) observed as under:- "DESCRIPTION OF INJURIES.
1. A wound measuring 1.5cm x 1cm on right side of back side of neck 04 cm below the right occipital protuberance 03cm lateral to mid-line(inverted margin), blackening small hole 05cm below the right mastoid process of maxilla bone(entrance point).
2. A wound measuring 2.5cm x 1.5cm on anterior side of neck, large hole (outward margins) red in colour(exit point).
3. A bruise measuring 03cm x 1.5cm on left shoulder joint near a acromoclavicular joint through and through firearm injury. --------------- FINAL OPINION.
In my opinion after careful postmortem, the cause of death was hemorrhagic shock (bleed) due to firearm injury, rapture the main jugular vein Artery neck vessel present in neck."
7. On 30.01.2020, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Ajmal 677/C and Muhammad Amin 1028/C as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh. PN and Exh.PN/1).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Abdul Rasheed son of Abdul Majeed under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Abdul Rasheed son of Abdul Majeed opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Lodhran convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant namely Abdul Rasheed son of Abdul Majeed, precisely was that the whole case was 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 submitted that the recoveries of the Pistol (P-5) and the motorcycle (P-7) from the appellant namely Abdul Rasheed son of Abdul Majeed were full of procedural defects, of no legal worth and value, and were the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution 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 and the learned counsel for the complainant contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General and 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 and the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the eye witnesses. The learned Deputy Prosecutor further argued that the recoveries of the Pistol (P-5) and the motorcycle (P-7) from the appellant namely Abdul Rasheed son of Abdul Majeed also corroborated the ocular account. The learned Deputy Prosecutor General and the learned counsel for the complainant further 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, the learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel for the complainant and with their assistance carefully perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of the eye witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2). The relationship of the said witnesses with each other and the deceased is on record. The deceased namely Sardar Muhammad son of Sultan Ali was the brother of Muhammad Islam (PW-1) and paternal cousin of Ghulam Ali (PW-2). It was also admitted by both the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) that the place of occurrence was at a distance from the houses of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) and the prosecution witness namely Muhammad Islam (PW-1) was residing at the village Yaroo, Tehsil Mirpur Mathelo District Ghotki whereas the house of the prosecution witness namely Ghulam Ali (PW-2) was at a distance of 100 feet from the house where the occurrence took place. Muhammad Islam (PW-1) stated during cross-examination as under:- "Ghulam Ali and Abdul Malik PWs are my paternal cousins. Shaukat Pw is also my remote relatives.
Zareena Bibi is daughter of my paternal uncle. I am labourer by profession. I live in a village Yaroo Tehsil Mirpur Mathelo District Ghotki. ---------------- I am residing in Sindh for last 30/35 years. My family also resides with me there." (emphasis supplied).
Ghulam Ali (PW-2) during cross-examination admitted as under:- "My house is at a distance of 100 feet from the house of accused persons."
With regard to the residence of the prosecution witness namely Ghulam Ali (PW-2), we have also perused the scaled site plan of the place of occurrence (Exh.PD) as prepared by Ghulam Abbas , Draftsman (PW3) and the rough site plan of the place of occurrence (Exh.PM) as prepared by Bashir Ahmad , SI (PW-9), the Investigating Officer of the case, and find that neither the place of the residence of the witness namely Ghulam Ali (PW-2) nor any land owned and possessed by the witness namely Ghulam Ali (PW-2) are marked in the same. In view of the above mentioned facts, it can be validly held that the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) were "chance witnesses" and therefore were under a duty to explain and prove their presence at the place of occurrence, at the time of occurrence. A perusal of the statements of prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) reveals that both the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) failed to provide any reason, consistent with the attending circumstances, due to which reason they left their houses at night and proceeded to the place of occurrence. According to the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) that they had gone to the house of Abdul Majeed (since acquitted), on the night of occurrence and took a meal with the appellant as well as Abdul Majeed and Umar Daraz (since acquitted), the co-accused of the appellant and when they complained to Abdul Majeed (since acquitted) regarding the beating of Zareena Bibi by the appellant and Umar Daraz (since acquitted), the appellant got agitated and fired at the deceased. According to the claim of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2), they had a meal at the place of occurrence, however, Bashir Ahmad, SI (PW-9) , the Investigating Officer of the case, during his visit at the place of occurrence did not find any articles which had been used by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) prior to the occurrence, during their presence at the place of occurrence. Bashir Ahmad, SI (PW-9), the Investigating Officer of the case, remained present at the place of occurrence for an extended period of time however neither took into possession any physical proof of the presence of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) at the place of occurrence nor mentioned the place where the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) had their meal. Bashir Ahmad, SI (PW-9), the Investigating Officer of the case, during cross-examination,stated as under:- "I have not mentioned the place in rough site plan where accused, deceased and complainant had their meals"
Ghulam Abbas, Draftsman (PW-3), also admitted during cross-examination, as under:- "I have also not shown in scaled site plan Exh.P-D the place where accused and deceased had their meals"
In this manner, the claim of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) that they had a meal at the place of occurrence just before the occurrence was not verified either by Bashir Ahmad, SI (PW-9), the Investigating Officer of the case, or through any physical proof.
14. Most importantly, according to the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2), they had visited the house of Abdul Majeed (since acquitted) to complain to Abdul Majeed (since acquitted) regarding the beating of Zareena Bibi by the appellant and Umar Daraz (since acquitted), however, Zareena Bibi herself never appeared before the Investigating Officer of the case nor even the learned trial court to verify this claim of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) that they had gone to the house of Abdul Majeed (since acquitted), to complain about the beating of Zareena Bibi by the appellant and Umar Daraz (since acquitted). The prosecution witness namely Muhammad Islam (PW-1) admitted during cross-examination, as under:- "Zareena Bibi was also present in the house. Her statement was not recorded during investigation.
Zareena Bibi was not produced before I/0 during investigation." ---------- Similarly, the prosecution witness namely Ghulam Ali (PW-2) admitted during cross-examination, as under:- "Zareena Bibi is my sister. Abdul Malik Pw is my brother. Zareena Bibi was not produced before the police during investigation of this case..
Zareena Bibi was also present in said house at the time of occurrence. No statement of Zareena Bibi was recorded by the police. No application was moved to police for recording statement of Zareena Bibi."
Bashir Ahmad, SI (PW-9), the Investigating Officer of the case, also admitted during cross- examination as under:- "Zareena Bibi was not present when I visited the place of occurrence.I did not summon Zareena Bibi during investigation of this case. Complainant also did not produce Zareena Bibi for recording of her statement."(emphasis supplied).
A perusal of the statements of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) reveals that the reason given by them for their presence at the place of occurrence was a concocted, invented and a false reason as the same was not even supported by Zareena Bibi, the sister of Ghulam Ali (PW-2) . In this manner, the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) failed to prove their stated reason for leaving their residences on the night of occurrence and their subsequent presence at the place of occurrence. Both the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) were badly exposed in this regard and the very foundation upon which the whole edifice of the prosecution case had been built, was shattered, resulting in the collapse of the whole prosecution case built upon the said fractured foundation.
15. Another aspect of the case noted by us with some gravity is the fact that both the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) admitted that it was dark at the time of occurrence, still none of the witnesses stated in their statements before the learned trial court that any source of light was present and lit at the place of occurrence, at the time of occurrence, which allowed the witnesses to observe the occurrence. During the course of the investigation and even before the learned trial court, no source of light was ever produced in the light of which the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) had witnessed the occurrence. Moreover, though the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) candidly admitted that it was dark at the time of occurrence, however, made no effort to state that they had any source of light with them or that any source of light was available at the place of occurrence in the light of which they had seen the occurrence.
Bashir Ahmad, SI (PW-9) , the Investigating Officer of the case, also did not observe or take into possession any source of light at the place of occurrence, in the light of which the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) could have witnessed the occurrence. During cross-examination, Bashir Ahmad, SI (PW-9) , the Investigating Officer of the case, claimed as under:- "I have not mentioned source of light in rough site plan as I visited the place of occurrence in the day time. There were two thick trees in the house where occurrence took place "
Ghulam Abbas, Draftsman (PW-3), also admitted during cross-examination that he had not identified any place in the scaled site plan (Exh.PD) where any source of light was available at the place of occurrence. Ghulam Abbas, Draftsman (PW-3), also admitted during cross-examination, as under:- "I have not mentioned blub i.e source of light in scaled site plan Exh.P-D."
Moreover, it is an admitted part of the prosecution case that no source of any light was produced either before the Investigating Officer of the case or before the learned trial court, in the light of which source the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) had witnessed the occurrence. The non-production of any light source, available and lit at the place of occurrence, at the time of occurrence and the failure of the complainant of the case 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 source of light was available with the witnesses or available at the place of occurrence which could have enabled the eye witnesses to have identified the assailant and also spectate the role of the assailant as acted by him during the occurrence. The prosecution witnesses failed to establish the fact of the availability of any light source at the place of occurrence, at the time of occurrence and in the absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in the murk. It was admitted by the witnesses themselves that it was a dark night and as the prosecution witnesses failed to prove the availability of any light source, their statements with regard to them identifying the assailant cannot be relied upon. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence, has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised"
Reliance is also placed on the case of "Hameed Gul v. Tahir and two others" (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence.
The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along."
Reliance is also placed on the case of "Basar Vs. Zulfiqar Ali and others" (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:- "7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights.
The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt."
Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:- "It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant.
Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."
Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer."
16. We have also noted that according to the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2), the deceased had no enmity with the accused. The prosecution witness namely Muhammad Islam (PW-1) , stated during cross-examination stated as under:- "Ghulam Ali & Abdul Malik are brothers of Zareena Bibi. Accused persons had no dispute with Sardar Muhammad deceased prior to occurrence. "(emphasis supplied)
According to the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2), the reason for which the occurrence took place was that when they complained to Abdul Majeed (since acquitted) regarding the beating of Zareena Bibi by the appellant and Umar Daraz (since acquitted), the appellant got agitated, brought a pistol from a nearby room and fired at the deceased. Muhammad Islam (PW-1) got recorded in his statement before the learned trial court, as under:- "After taking the meal, we were sitting together and we complained to Abdul Majeed that his sons Umar Draz and Abdul Rasheed used to beat our sister Mst. Zarina Bibi, upon which some hard words were exchanged between us. On the noise, PW Abdul Malik s/o Muhammad Akram attracted the spot. Being annoyed, Abdul Rasheed took a pistol from the adjacent room and made a pistol shot straight upon Sardar Muhammad with the intention of murder..." (emphasis supplied)
Ghulam Ali (PW-2) got recorded in his statement before the learned trial court, as under: - "After taking the meal, we were sitting together and we complained to Abdul Majeed that his sons Umar Draz and Abdul Rasheed accused used to beat our sister Mst. Zarina Bibi, upon which some hard words were exchanged between us. On the noise, PW Abdul Malik s/o Muhammad Akram attracted the spot. Being annoyed, Abdul Rasheed took a pistol from the adjacent room and made a pistol shot straight upon Sardar Muhammad with the intention of murder..." (emphasis supplied)
As mentioned above, Zareena Bibi was the sister of prosecution witness namely Ghulam Ali (PW-2) and in these circumstances, the prosecution witness namely Ghulam Ali (PW-2) should have been the prime target of the assailant. Furthermore, according to the prosecution evidence, the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) were in clear view, at a meagre distance, from the assailant and unarmed whereas the accused was allegedly armed with a pistol . Neither there was any dearth of ammunition nor that of intent and opportunity on the part of the appellant for not doing away with the prosecution witness namely Ghulam Ali (PW-2), his main adversary, who at the time of occurrence, was present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the prosecution witness namely Ghulam Ali (PW-2) was present which could have precluded the assailant from observing the presence of the prosecution witness namely Ghulam Ali (PW-2) . In this scenario, it is hard to believe that prosecution witness namely Ghulam Ali (PW-2) would have been shown the courtesy of being not even injured when the prosecution witness namely Ghulam Ali (PW-2) should have been the prime target of the assailant. In the midst of the firing, the prosecution witness namely Ghulam Ali (PW-2) did not receive even a single scratch on his body during the whole incidence. If the prosecution witness namely Ghulam Ali (PW-2) had been present in the sight of the assailant, then he would not have been spared. Blessing the prosecution witness namely Ghulam Ali (PW-2) with such an incredible consideration and showing him such favour, the person with whom the assailant had a direct dispute with, is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant and his co-accused did not cause any injury to them. Such behaviour, on part of the accused as deposed by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 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 Order, 1984, that the conduct of the assailant, as deposed to by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) was opposed to the common course of natural events and human conduct. Hence, we are holding that the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgments has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses had not witnessed the occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum & others v. Sajjad & others (2017 SCMR 596) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the F.I.R., all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other P.W.s were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e- Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
17. It is also an admitted fact of the prosecution case that the place of occurrence was occupied by other persons including Zareena Bibi, the sister of the prosecution witness namely Ghulam Ali (PW- 2) and the cousin of Muhammad Islam (PW-1). Both the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) in their statements before the learned trial court stated that Zareena Bibi was present inside the house where the occurrence took place and that Zareena Bibi was also blessed with the birth of three children and the said children were present in the same house where the occurrence took place. Muhammad Islam (PW-1), admitted during cross-examination, as under:- "Zareena Bibi has three sons and one daughter. Name of her one son is Sheraz and other is Hafeez. "
As mentioned above and as admitted by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2), neither during the course of the investigation nor before the learned trial court, the statements of Zareena Bibi and the children of Zareena Bibi, who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence, were recorded. This failure of Bashir Ahmad, SI (PW-9), the Investigating Officer of the case, to include in the investigation the inhabitants of the house where the occurrence had taken place and the failure of the prosecution to produce the said inhabitants of the place of occurrence before the learned trial court, reflects poorly upon the veracity of the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced, the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The failure of the prosecution to produce Zareena Bibi and the children of Zareena Bibi, the residents of the place of occurrence and the most natural witnesses, before the learned trial court, has convinced us that had they been produced before the learned trial court they would not have supported the prosecution case. Reliance in this matter is placed on the case of SHAMSHAD versus THE STATE (1998 SCMR 854 also cited as 1999 SCMR 2844) wherein the august Supreme Court of Pakistan held as under:- "10. The prosecution has also failed to offer a plausible explanation as to why the children of the appellant, who were, admittedly, present in the house at the time of the incident, were not produced as witnesses in the case. In fact, the children of the appellant were the most natural witnesses of the occurrence, However, the Investigating Officer thought it fit not to examine them as witnesses. When confronted with this situation at the time of his cross- examination he explained that two daughters and the son of the appellant were less than? years of age. However, in the same breath it was admitted by him that Ruhi Bano was about 8 or 9 years of age. The other children were a few years younger. However, at least the older children under normal circumstances could have given evidence in the Court. The explanation given by the Investigating Officer, therefore, was not tenable. ...............................................
13. Learned State Counsel has however, argued that in case the prosecution had failed to examine any of the appellant's children as a witness, they should have been examined as defence witnesses. It has been further argued that if there are two versions, one given by the prosecution and the other by the defence, then if the latter is not believed, the prosecution version must be believed as true. In our view, both the contentions are untenable. Burden to prove its case beyond a reasonable doubt squarely rests on the prosecution. Such burden cannot be discharged by weaknesses found in the case of the defence. The mere fact that the defence version is not believed by the Court cannot lend credence to the prosecution case if, otherwise, the prosecution has failed to discharge its burden. For the reason enumerated above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the appellant."(emphasis supplied)
Reliance is also placed on the case of Lal Khan versus THE STATE (1996 SCMR1846) wherein the august Supreme Court of Pakistan held as under:- "The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
Reliance is also placed on the case of USMAN alias KALOO versus THE STATE (2017 SCMR 622) wherein the august Supreme Court of Pakistan held as under:- "A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother, wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the trial court".
Reliance is also placed on the cases of Muhammad Irshad Vs. Allah Ditta and others (2017 SCMR 142) and G. M. NIAZ Vs. The State" (2018 SCMR 506). In this manner, the prosecution case suffers from inherent defects which are irreconcilable as it is.
18. The most terminal flaw of the prosecution case is the observation of Dr. Zain ul Abidin (PW-4), who conducted the post mortem examination of the dead body of deceased on 06.06.2019. We have also observed that Dr. Zain ul Abidin (PW-4) opined that at the time of the postmortem examination of the dead body of the deceased, the brain of dead body of the deceased was dissolved. In his statement before the learned trial court, Dr. Zain ul Abidin (PW-4), stated as under:- "Membranes Dissolved/Dissolved Brain Dissolved "
As mentioned above, Dr. Zain ul Abidin (PW-4), conducted the post mortem examination of the dead body of deceased on 06.06.2019, whereas according to the statements of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) the occurrence had taken place on 05.06.2019 at 08.00 p.m. The brain of dead body of the deceased could not have been autolyzed in such a short time as was stated by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2). In support of the duration required for the autolysis of the brain, in Chapter 15 'POST-MORTEM CHANGES AND TIME SINCE DEATH", at page 353 and page 361 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) ,it has been discoursed as under:- "(2) Putrefaction or Decomposition and Autolysis. Putrefaction is a certain sign of death. It is a slow process and consists of softening and liquefaction brought about by the digestive action of enzymes, released after death from tissue cells. This autolysis, can occur even in sterile conditions, such as seen in a macerated dead foetus. Also, ferments are produced by living saprophytic micro-organisms, which resolve the complex organised tissues of the body into simpler, inorganic compounds. These microorganisms are both aerobic and gas forming anaerobic, predominantly being C welchii, A proteus, E coli, streptococci and staphylococci and during life are found in large numbers in the alimentary canal, but within a short time after death, are found scattered in the blood and in all the tissues and organs. Post-mortem haemolysis is caused by the enzyme lecithinase, which also helps in the hydrolysis and hydrogenation of the body fat. As a result of their action, the dead body invariably putrefies, unless special means are taken to prevent their access or the tissues are rendered unfit for their use. The skeletal remains and the teeth resist putrefaction the most. -------------------- Page 361
(h) Adult Brain. The putrefaction of the adult brain initially begins at its base, and then proceeds to the upper surface. It is hastened if any injury to the brain or skull is present. The brain becomes soft and pulpy within 24 to 48 hours in summer, and becomes a liquid mass from three to four days"
Dr. Zain ul Abidin (PW-4), also stated during cross-examination as under:- "Brain membranes dissolve just after death, however, brain dissolves after 04/05 days of death. In PMR Ex.PF brain of deceased was dissolved." (emphasis supplied)
The complete autolysis of the brain of the dead body of the deceased as observed by Dr. Zain ul Abidin (PW-4) at the time of the post mortem examination of the dead body of the deceased, contradicts the time of occurrence deposed by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2). Had the occurrence taken place on 05.06.2019 at 08.00 p.m, as suggested by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW- 2), then there was no possibility that Dr. Zain ul Abidin (PW-4) could have observed a completely autolyzed brain at the time of post-mortem examination. The opinion and observation of Dr. Zain ul Abidin (PW-4) smash the whole foundation of the prosecution case and denude it to be a false one. The August Supreme Court of Pakistan in the case of "Noor Ahmad vs. The State and others "(2019 SCMR 1327) has held as under: "Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather, belies point of time of assault given in the crime report".
The August Supreme Court of Pakistan in the case of Asad Rehmat vs. The State and others "(2019 SCMR 1156) has held as under: "Occurrence, statedly, took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m.
Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March, development of rigor mortis within such short span of time is mind boggling; occurrence does not appear to have taken place at the point of time mentioned in the crime report."
In the aftermath of the above-discussion, we are swayed to hold that time of occurrence as deposed by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) is provenly wrong, evidencing their absence at the place of occurrence, on the night of occurrence.
19. We have also noted with disquiet that the postmortem examination of the dead body of the deceased was conducted with much delay. According to Bashir Ahmad, SI (PW-9), the Investigating Officer of the case, the post mortem examination of the dead body was conducted at 12.00 p.m. on 06.06.2019. Bashir Ahmad, SI (PW-9) , the Investigating Officer of the case, explained during cross-examination as under:- "Post mortem on body of deceased was conducted on 06.06.2019 at about 12-00 pm in the day.
Muhammad Islam (PW-1) also admitted that the post mortem examination of the dead body of the deceased was conducted at 12.00 p.m. on 06.06.2019 and stated as under:- "Postmortem was conducted on 06.06.2019 at about 12-00/1-00 pm in the day time."
No explanation was offered to justify the said delay in conducting the post mortem examination.
This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" (2012 SCMR 327) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others vs. The State and others" (2019 SCMR 956) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State" (2019 SCMR 1068) has held as under: "More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting."
20. We have also noted that both the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) were not mentioned either in column No.4 of the inquest report (Exh.PE/1) as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report (Exh.PE/1) nor were mentioned at page 4 of the inquest report (Exh.PE/1) as witnesses who were present at the place of occurrence at the time of preparation of the inquest report (Exh.PE/1). This fact also point towards the absence of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) at the time of preparation of the inquest report (Exh.PE/1) by Bashir Ahmad , SI (PW-9), the Investigating Officer of the case. We have also noted that the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) claimed that their clothes were smeared with the blood of the deceased ,however at the same time also admitted that they did not hand over the said clothes to the Investigating Officer of the case.
Muhammad Islam (PW-1), during cross-examination, stated as under: - "Our clothes were stained with blood which I/O examined but he did not take into possession our blood stained clothes."(emphasis supplied)
Bashir Ahmad , SI (PW-9), the Investigating Officer of the case, did not take any such blood-stained clothes of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) in possession during the investigation of the case, however, if Bashir Ahmad , SI (PW-9), the Investigating Officer of the case had taken the clothes of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2), which clothes according to the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2), but now the omission creates doubt of equal magnitude. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 SCMR 1142) and in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 SCMR 319) and in the case of NADEEM alias KALA versus The State and others (2018 SCMR 153).
21. Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Muhammad Islam (PW1) and Ghulam Ali (PW-2) at the place of occurrence, at the time of occurrence, is the fact that they never reported the matter to the police and Bashir Ahmad, SI (PW- 9) , the Investigating Officer of the case, himself reached RHC, Makhdoom Aali and received the written application (Exh. P.A.) of the prosecution witness namely Muhammad Islam (PW-1). Both the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) admitted this fact that neither they attempted to report the matter to the police nor , as mentioned above, made any effort to take the deceased to any hospital. The prosecution witness namely Muhammad Islam (PW-1) admitted during cross-examination as under:- "We did not inform police about occurrence, however someone inform the police and police came at RHC Makhdoom Aali as Sardar Muhammad deceased succumbed on the way to Multan."
(emphasis supplied).
Similarly, Ghulam Ali (PW-2) admitted during cross-examination as under:- " After death of Sardar Muhammad, we came to RHC Makhdoom Aali. None of us informed police that we are going to RHC Makhdoom Aali. Volunteered police came at RHC Makhdoom Aali at 11-30 pm.."
This utter failure of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) to report the matter to the police and their total inaction in this regard evidences the fact that they had not witnessed the occurrence and were informed about the same only subsequently.
The august Supreme Court of Pakistan has already enunciated the principle of law that when the F.I.R of the case is not lodged at the Police Station, a conclusion can be drawn that the F.I.R. had been registered after pondering and inquiry at the spot. 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 F.I.R. in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the F.I.R. had been chalked out after deliberations and preliminary investigation at the spot."
22. Another aspect of the case raising doubt over the presence of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) at the place of occurrence, at the time of occurrence, is the fact that the matter was reported to the police on 05.06.2019 at 11.50 p.m., when the prosecution witness namely Muhammad Islam (PW-1) submitted his written application (Exh.PA) to Bashir Ahmad, SI (PW9) , the Investigating Officer of the case, whereas the occurrence had taken place on 05.06.2019 at 08.00 p.m. In this manner, the delay in reporting the matter to the police was about four hours, for which delay no reason, much less plausible, was offered. No justification, much less credible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police and the delay in submitting the written application (Exh.PA) by Muhammad Islam (PW-1) to Bashir Ahmad, SI (PW-9), the Investigating Officer of the case. The reason for this inordinate delay in reporting the matter to the police by the prosecution witness namely Muhammad Islam (PW-1) is obvious, being that the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) had not witnessed the occurrence and the delay was used to procure the attendance of the witnesses and formulation of a false narrative. In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because the witnesses never reported the matter to the police for as many as four hours. This inordinate delay in reporting the matter conclusively proves that the written application (Exh.PA) as submitted by Muhammad Islam (PW1) and the formal F.I.R (Exh.PM) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) were not present at the place of occurrence, even much after the happening of the occurrence, the delay was used for procuring their arrival. The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PA) as submitted by Muhammad Islam (PW-1)was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences their absence at the time of occurrence, at the place of occurrence. Reliance is placed on the case of "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:- "As per contents of F.I.R., the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrence at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out."
Reliance is also placed on the case of "MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others" (2017 SCMR 199) wherein the august Supreme Court of Pakistan was pleased to hold as under: "The hospital is closely situated to the Police Station but neither the complainant nor P.W.s took a little pain to report the matter, nor the staff of the hospital including the treating doctor took initiative."
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Zafar vs. The State and others" (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:- "It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the F.I.R. or while appearing before the learned trial Court qua the delay in lodging the F.I.R. or for that matter the belated postmortem of the deceased."
Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of "G. M. NIAZ Vs. The State" (2018 SCMR 506), "Abdul Jabbar and another Vs. The State"
(2019 SCMR 129) and "Muhammad Shafi alias Kuddoo Vs. The State and others" (2019 SCMR 1045).
23. The learned Deputy Prosecutor General and the learned counsel for the complainant has also relied upon the recoveries of the Pistol (P-5) on 01.07.2019 and the motorcycle (P-7) on 05.07.2019 from the appellant namely Abdul Rasheed and have submitted that the said recovery from the appellant offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) .Regarding the recoveries of the Pistol (P-5) on 01.07.2019 and the motorcycle (P-7) on 05.07.2019 from the appellant namely Abdul Rasheed, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recoveries of the said Motorcycle (P-7) and the pistol (P-5) from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do."
Therefore, the evidence of the recoveries of the Pistol (P-5) on 01.07.2019 and the motorcycle (P-7) on 05.07.2019 from the appellant cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."
Moreover, as mentioned above, the Pistol (P-5) was recovered on 01.07.2019 from the same house from where the Motorcycle (P-7) was recovered on 05.07.2019. Bashir Ahmad, SI (PW-9) , the Investigating Officer of the case, had already visited the said house on 01.07.2019 with regard to getting the Pistol (P-5) recovered and had conducted a search of the said house on the said date, however, did not observe the presence of the motorcycle (P-7) on the said date rather went on to claim that the appellant got recovered the motorcycle (P-7) from the same house on 05.07.2019.
This also lays bare the attempt of Bashir Ahmad, SI (PW-9) , the Investigating Officer of the case, to pad up the prosecution case with false evidence. In this manner, the recoveries of the Pistol (P-5) on 01.07.2019 and the motorcycle (P-7) on 05.07.2019 from the appellant could not be proved and cannot be considered as a relevant fact for proving any fact in issue. Even otherwise, as we have disbelieved the ocular account in this case, hence, the evidence of recoveries of the Pistol (P-5) on 01.07.2019 and the motorcycle (P-7) on 05.07.2019 from the appellant would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable, then the recovery has no evidentiary value.
24. Learned Deputy Prosecutor General and the learned counsel for the complainant has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Muhammad Islam (PW-1) in the written application (Exh. PA) was that when they complained to Abdul Majeed (since acquitted) regarding the beating of Zareena Bibi by the appellant and Umar Daraz (since acquitted), the appellant got agitated, brought a pistol from a nearby room and fired at the deceased. We have perused the statements of the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) and find that they failed to prove the motive of the occurrence as stated by them. Though it was claimed by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) that the appellant used to beat Zareena Bibi, however, it was admitted that the said matter was never reported to the police or anyone else ever. Muhammad Islam (PW-1) admitted during cross-examination as under:- " Zareena Bibi did not move any application against accused persons regarding torture at police station, however she complained to her brothers. Zareena Bibi was never medically examined regarding torture. Zareena Bibi also did not file any family suit against her husband Umerdraz."
Similarly, Ghulam Ali (PW-2) also admitted during cross-examination, as under:- " Zareena Bibi did not move any application to police or court regarding torture against accused persons. She also did not file any suit against her husband. She remained in house of her husband along with her children. Abdul Rasheed accused and other accused reside together"
Moreover, it had been stated by the prosecution witnesses namely Muhammad Islam (PW-1) and Ghulam Ali (PW-2) that Zareena Bibi was tortured by her husband namely Umar Daraz, however, Umar Daraz was acquitted by the learned trial court and his acquittal was not assailed. When the prosecution failed to prove the motive as against Umar Daraz, since acquitted, then the same cannot be believed against the appellant in isolation. We have also noted that Zareena Bibi was blessed with birth of three children. This also proves that the husband and wife were having a happy and a healthy marital life . 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."
25. 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. In this case,the prosecution could not prove that the appellant was the resident of the same house where the occurrence took place.
With regard to the residence of the appellant , we have perused the scaled site plan of the place of occurrence (Exh.PD) as prepared by Ghulam Abbas , Draftsman (PW-3) and the rough site plan of the place of occurrence (Exh.PM) as prepared by Bashir Ahmad , SI (PW-9), the Investigating Officer of the case, and find that the house of the appellant has been marked in the said site plans (Exh.PD and Exh.PM) in the North of the house where the occurrence took place and the appellant was not the resident of the house where the occurrence took place and had a separate residence.
Moreover, 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 and the learned counsel for the complainant submitted 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:- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly, the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under: "122. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him."
It has to be kept in mind that Article 122 of the Qanun-e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun-e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of "Rehmat alias Rahman alias Waryam alias Badshah v. The State" (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanun-e-Shahadat, 1984, it held as under: "Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
The ratio decidendi of the above decision was further developed by in the case of "NASRULLAH alias NASRO Versus The STATE (2017 SCMR 724), wherein, it held as under: "It has been argued by the learned counsel for the complainant that in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the circumstances of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder. ...............................
In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased."
In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun-e- Shahadat, 1984 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. If the article was to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. Article 122 of the Qanun-e-Shahadat, 1984 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of 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 Muhammad Islam (PW-1) and Ghulam Ali (PW-2) 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 it was claimed that he was a resident of the place of occurrence. An accused person cannot be convicted merely because he did not explain the circumstances in which the deceased had lost his life. The august Supreme Court of Pakistan has held in the case of "MUHAMMAD JAMSHAID and another vs. The State and others" (2016 SCMR 1019 ) as under: "only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the courts below to be nothing but speculative".
The august Supreme Court of Pakistan has held in the case of "Arshad Khan vs. The State" (2017 SCMR 564 ) as under: "It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all."
The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628 ) as under: "It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710)."
The august Supreme Court of Pakistan has held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681) as under: "It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however, been held in the case of Abdul Majeed v.
The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement."
The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941) as under: "The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed."
26. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Abdul Rasheed son of Abdul Majeed (appellant) in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather, if only a single circumstance creating reasonable doubt in the mind of a prudent person is available, then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Najaf Ali Shah Vs. the State" (2021 SCMR 736) in which it has been held 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."
27. For what has been discussed above, Criminal Appeal No.655-J of 2022 lodged by Abdul Rasheed son of Abdul Majeed (appellant) is allowed. The conviction and sentence of Abdul Rasheed son of Abdul Majeed (appellant) awarded by the learned trial court through the impugned judgment dated 14.03.2020 are hereby set-aside. Abdul Rasheed son of Abdul Majeed (appellant) is ordered to be acquitted by extending him the benefit of doubt. The appellant namely Abdul Rasheed son of Abdul Majeed is in custody and he is directed to be released forthwith if not required in any other case.
28. Consequently, the Murder Reference No. 36 of 2022 is answered in Negative and the sentence of death awarded to Abdul Rasheed son of Abdul Majeed, is Not Confirmed.