SADIQ MAHMUD KHURRAM, J. - Saadat Hussain son of Sarfraz (convict) was tried by the learned Additional Sessions Judge, Minchinabad in case F.I.R. No. 655 of 2021 dated 13.10.2021 registered at Police Station Minchinabad, District Bahawalnagar in respect of offences under sections 302,325 and 109 P.P.C. and under section 13 of the Arms Ordinance, 1965 (Ordinance XX of 1965) for committing the Qatl-i-Amd of Mst. Iqra Bibi daughter of Muhammad Usman (deceased). The learned trial court vide judgment dated 28.02.2023, convicted Saadat Hussain son of Sarfraz (convict) and sentenced him as infra: Saadat Hussain son of Sarfraz: - i) Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Iqra Bibi daughter of Muhammad Usman (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased,and directed to pay fine of Rs.200,000/- in case of default thereof, the convict was directed to undergo further one year of simple imprisonment. ii) Rigorous Imprisonment for one year under section 325 P.P.C. and directed to pay fine of Rs.20,000/- and in default of payment of the fine, the convict was directed to undergo simple imprisonment of further one month. iii) Rigorous Imprisonment for two years under section 13 of the Arms Ordinance, 1965 (Ordinance XX of 1965) and directed to pay fine of Rs.50,000/- and in default of payment of fine, the convict was directed to undergo simple imprisonment of further three months The convict was ordered to be hanged by his neck till dead.
All the sentences awarded to the convict were ordered to run concurrently by the learned trial court. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was also extended to the convict by the learned trial court.
2. Feeling aggrieved, Saadat Hussain son of Sarfraz (convict) lodged Criminal appeal No.105-J of 2023 through jail assailing his conviction and sentences. The learned trial court submitted Murder Reference No.07 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Saadat Hussain son of Sarfraz. We intend to dispose of the Criminal Appeal No. 105-J of 2023 and Murder Reference No.07 of 2023 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as narrated by Muhammad Usman (PW- 2), the complainant of the case, are as under: - "Stated that on 13th of 10th month of previous year at 9.00 am I was present at home, Muhammad Tariq and Ishfaq PWs were also present with me. Sadat Hussain accused, present in court, who was my son-in-law and married with my daughter Iqra Bibi deceased of this case, entered in our house while scaling over the wall. We saw him and he came to my daughter who was present at the courtyard of the house and they started quarreling and went inside the room. The PWs asked me to intercept but I told them that they were husband and wife and they might be going to finish their dispute. In our presence, Sadat Hussain and daughter went inside the room and we heard hue cry of Iqra Bibi and rushed towards room, while door of the room was bolted from inside. We saw from open window of the room, Sadat Hussain accused made fire with pistol at Iqra Bibi which landed on her left shoulder. He made second fire which hit in the middle of chest of Iqra Bibi. We cut the lattices (Jali) and we saw that Sadat Hussain tried to fire at his right temporal but the fire missed.
He threw the pistol and picked up scissor and inflicted two blows on his abdomen and fell down on the ground. We entered the room and attended Iqra Bibi and Sadat Hussain accused. Muhammad Tariq PW called rescue 1122 and Iqra Bibi as well as accused Sadat Hussain were shifted to Hospital.
On reaching the hospital, Iqra Bibi succumbed to the injuries.
Motive behind the occurrence was that Iqra Bibi was married with accused Sadat Hussain two years prior to the occurrence and she was living with Sadat Hussain in Chak No.1/1-R Teshil Haroonabad She was ousted from the house and she came to my house some weeks prior to the occurrence. Police came at hospital and I got drafted application Exh. P-B which was thumb- marked by me.
After registration of case, Abdul Sattar and Muhammad Ashraf PWs disclosed before me that prior to occurrence of murder of Iqra Bibi, Rani Bibi and Sarfraz accused persons (parents of Sedat Husasain accused) were hatching conspiracy in the house of Amina Bibi their daughter, falling near my house. Rani Bibi and Sarfraz were compelling Sadat Hussain accused to kill Iqra Bibi since she used to go to house of her parents oftently."
4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused was sent to face trial. The learned trial court framed the charge against the accused on 01.12.2021, 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 fourteen witnesses recorded. The ocular account of the case was furnished by Muhammad Usman (PW-2) and Muhammad Tariq (PW-3). Tanzila Abdullah 1729/LC (PW-1) stated that on 13.10.2021, she 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.
Amjad Rasheed 1470/C (PW-4) stated that he took the written application (Exh.PB) to the police station. Muhammad Khan (PW-5) stated that on 13.10.2021, he identified the dead body of the deceased. Abdul Ali, ASI (PW-10) stated that on 13.10.2021, he got recorded the formal F.I.R. (Exh.PB/1).
Muhammad Din Abid draftsman (PW-13) prepared the scaled site plan of the place of occurrence (Exh.PN). Muhammad Ayyub, SI (PW-12), the Investigating Officer of the case, investigated the case from 13.10.2021 till 24.11.2021, arrested the appellant in this case on 19.10.2021 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. Chaman Shafique (PW-9) examined, who on 13.10.2021 was posted as Woman Medical Officer at the THQ Hospital, Minchinabad and on the same day conducted the post mortem examination of the dead body of the deceased. Dr. Chaman Shafique (PW-9) after conducting the post mortem examination of the dead body of the deceased namely Mst. Iqra Bibi daughter of Muhammad Usman, observed and opined as under: - "i) An oval shaped lacerated wound (entry wound) 02 X 02 cm skin and muscle deep, margins were inverted with blackening and burning on front of left side of chest. Below left clavicle making track from the second intercostal space in words the chest and exit was with everted margins size about 02/21/2 cm on the back of chest 5-6 intercostal space, blood oozing present. ii) An oval shape lacerated wound (entry wound) 11/2 X 11/2 cm skin and muscle deep. Margins were inverted with blackening just below left lateral aspect of xiphisternum joint making a track in abdominal cavity (exit wound) on the back of trunk near to the vertebral column. Its margins were everted about 2 X 2 cm blood oozing from the wound was present. ..............
In my opinion injury No.1 & 2 were sufficient to cause death in ordinary course of nature by causing cardiogenic and hypovolemic shock and ultimately death. These injuries were caused by fire arm and were an anti-mortem in nature. Probable duration between injuries and death was within half and hour and between death and postmortem was within four hours."
The prosecution also got Dr. Muhammad Abu Bakar (PW-8) examined, who on 13.10.2021 was posted as Medical Officer at the THQ Hospital, Minchinabd and on the same day conducted the medical examination of the appellant namely Saadat Hussain. Dr. Muhammad Abu Bakar (PW-8) on examining the appellant namely Saadat Hussain observed as under: - "Description of Injuries:
1. A 3 x 2 cm sharp wound mid between umbilicus and xiphisternal angle, deep to skin and muscle.
2. A 2 x 1 cm sharp incised wound, 5 cm lateral to first injury, deep to skin."
7. On 14.06.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Ishfaq as being unnecessary. On 18.01.2023, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Asghar as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PL and Exh.PM ).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Saadat Hussain son of Sarfraz 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 and that on the day of the occurrence he found his wife gasping for life after having being fired at and got desperate and injured himself. The appellant namely Saadat Hussain son of Sarfraz 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, Minchinabad, convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant was that the whole case was fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and were the result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt.
11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Muhammad Usman (PW-2) and Muhammad Tariq (PW-3). The learned Deputy Prosecutor General further argued that the recovery of the Pistol (P-4) and the report of the Punjab Forensic Science Agency, Lahore (Exh.PM) also corroborated the ocular account. The learned Deputy Prosecutor General 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 prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance have perused the record and evidence recorded during the trial.
13. The whole prosecution case orbits around the statements of the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW3). The prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) were related to the deceased and their relationship is admitted. Mst. Iqra Bibi (deceased) was the daughter of Muhammad Usman (PW-2) and the paternal cousin of Muhammad Tariq (PW-3) . The learned Deputy Prosecutor General has stated that as the occurrence took place inside the house of the prosecution witness namely Muhammad Usman (PW-2), therefore, the presence of Muhammad Usman (PW-2) inside his house at the time of occurrence could not be doubted. Though, the occurrence took place inside the house of Muhammad Usman (PW-2), however, only that fact alone cannot be equated with a truthful deposition by Muhammad Usman. Only the fact that the occurrence took place inside the house of Muhammad Usman (PW-2) does not warrant acceptance of his evidence without scrutiny and his evidence is to be scrutinized on the benchmark of principles laid down for the appraisal of evidence. It is not a given that because Muhammad Usman (PW-2) was the resident of the house where the occurrence took place, therefore, he deposed nothing but the truth. Even otherwise, it is not the simple presence of a witness at the crime scene but his credibility which makes him a reliable witness and the statement of Muhammad Usman (PW-2) cannot be implicitly accepted rather, is to be attested and appraised on the principles applied for the appreciation of evidence.
The appraisal of the statement of Muhammad Usman (PW-2) proves that he was not present at the place of occurrence when the same took place. We have noted with grave concern that despite alleging that the appellant had trespassed into the house where the occurrence took place, while armed with a pistol and after scaling over the wall, still Muhammad Usman (PW-2) let the appellant go inside the room along with the deceased and did not at all stop him. Muhammad Usman (PW-2), in his statement recorded by the learned trial court, stated as under:- "Sadat Hussain accused, present in court, who was my son-in-law and married with my daughter Iqra Bibi deceased of this case, entered in our house while scaling over the wall. We saw him and he came to my daughter who was present at the courtyard of the house and they started quarreling and went inside the room. The PWs asked me to intercept but I told them that they were husband and wife and they might be going to finish their dispute." (emphasis supplied)
Similarly, Muhammad Tariq (PW-3) also stated that despite the fact that they asked Muhammad Usman (PW-2) not to let the appellant go inside the room along with the deceased as the appellant had trespassed into the house while scaling over the wall and was also armed with a pistol, however, Muhammad Usman (PW-2) did not take the advice of Muhammad Tariq (PW-3) and allowed the appellant to go inside the room along with the deceased. In his statement before the learned trial court, Muhammad Tariq (PW-3) got recorded as under:- "Accused Sadat Hussain entered in our house while scaling over the wall. We saw him and he came to Iqra Bibi deceased who was present in the courtyard and they started quarreling and went inside the room. We asked the complainant to intercept but he told us that they were husband and wife, they might be going to finish their dispute."(emphasis supplied)
This conduct of Muhammad Usma n (PW-2) that he let the appellant, who allegedly had trespassed inside the house of Muhammad Usman (PW-2) while armed with a pistol, to accompany the deceased inside the room where she was subsequently fired at and the conduct of Muhammad Usman (PW-2) that he did not even take the advice of the other witness of not letting the appellant accompany the deceased inside the room, where the occurrence took place or even to stop the appellant, who at that time was , according to the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3), quarreling with the deceased , makes it abundantly clear that Muhammad Usman (PW-2) was not present at the place of occurrence, at the time of occurrence, otherwise he would not have let the appellant accompany the deceased to the room where the occurrence took place ,specially in the circumstances when the appellant had allegedly trespassed into the house of Muhammad Usman (PW-2), while armed with a pistol and was also quarreling with the deceased. We have noted with grave concern and disquiet that the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) made no effort either to stop the appellant who was quarreling with the deceased, but rather let the appellant accompany the deceased to the room where the occurrence took place. The prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) did not even move a limb to protect their near and dear one rather actively allowed the appellant to take the deceased inside the room of the occurrence. It is vexing to imagine that in what circumstances the accused succeeded in taking the deceased inside the room where the occurrence took place in the presence of the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3).
The prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) kept watching the accused and did not interfere at all, rather, as mentioned above, they actively allowed the taking of the deceased inside the room by the appellant. No person with ordinary prudence would believe that such closely related witnesses would have acted in the manner in which they did. The allowance of the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) speaks loudly that if the prosecution witnesses Muhammad Usman (PW- 2) and Muhammad Tariq (PW-3) had been present, they would have definitely intervened and prevented the assailant from taking the deceased inside the room especially when according to the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) the appellant had trespassed into the house by scaling over the wall, was armed with a pistol and was also quarreling with the deceased before he was allowed to take the deceased inside the room where the occurrence took place. 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. 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 Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) had not witnessed the occurrence and were not even present at the time of occurrence. Reliance in this regard is placed on the cases of "Zulifqar Ali v. The State" (2021 SCMR 1373) ,Pathan v. The State (2015 SCMR 315) ,"Shahzad Tanveer v. The State" (2012 SCMR 172) and "Liaquat Ali v. The State" (2008 SCMR 95) .
14. We have also noted that according to the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3), after the appellant had taken the deceased inside the room where the occurrence took place, he locked the door of the said room and therefore, the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) had to cut the lattices of the window of the said room and thereafter witnessed the incident. Muhammad Usman (PW-2) in his statement before the learned trial court, stated as under:- "In our presence, Sadat Hussain and my daughter went inside the room and we heard hue cry of Iqra Bibi and rushed towards room, while door of the room was bolted from inside."(emphasis supplied)
In his statement recorded by the learned trial court, Muhammad Tariq (PW-3) also claimed as under:- "In our presence, Sadat Hussain and Iqra went inside the room and we heard noise of Iqra Bibi and rushed towards room while door of the room was bolted from inside. " (emphasis supplied)
During cross-examination, Muhammad Tariq (PW-3) claimed as under:- "We did not try break open the door of room of occurecne after the occurrence.Volunteered it was bolted from inside. The door of the room was made of wood. " (emphasis supplied)
The prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) also claimed that they had cut the lattices of the window of the said room and thereafter entered the room through the said cut hole in the window. During cross-examination Muhammad Usman (PW-2) claimed as under:- "We entered the room after the occurrence by breaking open the window. We had cut the lattice
(Jali) with help of sickle. We had entered the room through the hole by cutting lattices and the cut lattices was separted (sic) by us before we entered the room. I had shown and prodced (sic) that cut lattices before the police officer who visited the spot after the registration of case. The police had taken that cut lattices (Jali) in possession. Volunteered the police had not taken away that piece of lattices. The police had prepared memo of recovery of that piece of lattecies and also obtained my thumb-impression on the memo. ............. .
The hole from which we all (Tariq and Ishfaq) entered the room after occurrence was about two or three feet wide. " (emphasis supplied)
We have noted with grave concern that despite the claim of the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) that after the appellant had taken the deceased inside the room where the occurrence took place, he locked the door of the said room and therefore, the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW- 3) had to cut the lattices of the window of the said room and thereafter witnessed the incident, according to the statement of Muhammad Ayyub, SI (PW-12), the Investigating Officer of the case, neither the room where the incident took place had any door nor he observed any cut lattices of the window of the room, after cutting of which lattices the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) had claimed to have entered the said room. During cross-examination, Muhammad Ayyub (PW-12), the Investigating Officer of the case explained as under:- "I had correctly recorded in the inspection note on my first visit of the spot (place of occurrerice) that the room of occurrence had no door at all and the entrance was without any shutter whatsoever. --------------- The complainant party did not produce before me any broken piece of window or lattices at the spot. I myself, also did not take any above said pieces in possession-on my visit of the place of occurrence. I also did not notice any broken pieces of lattices at the spot. I prepared rough site plan Exh.P-K correctly in accordance with inspection note and according to the facts. In this site plan Exh.P-K also I have observed that the enterance (sic) door of room of occurrence had no shutter whatsoever and nor given the width and hight of the enterance (sic) of that room."
The above referred unchallenged statement of Muhammad Ayyub, SI (PW-12), the Investigating Officer of the case that the room where the incident took place had no door and he did not observe any cut lattices of the window of the room, after cutting of which lattices the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) had claimed to have entered the said room, lays bare the false claims of prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3). We are rather shocked at the impunity with which the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) made false statements. The fact that the room where the occurrence took place did not even have a door denudes the whole prosecution evidence against the appellant as being a pack of lies. The prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW3) claimed that they could not enter the room as the door of the said room was locked from the inside, whereas the actual fact was that there was no door of the room where the incident took place. The conduct of the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) is proof of their absence at the place of occurrence, at the time of occurrence.
15. We have also noted with grave concern that it had not been recorded in the written application (Exh.PB) submitted by Muhammad Usman (PW-2), the complainant of the case, to Muhammad Ayyub, SI (PW-12) for the registration of the case that both the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) were present inside the house prior to the occurrence and during cross-examination, Muhammad Usman (PW-2) , the complainant of the case was confronted with this fact that he had not got recorded in his written application (Exh.PB) submitted by him to Muhammad Ayyub, SI (PW-12) that he and Muhammad Tariq (PW-3) were present inside the house and the learned trial court noted as under:- "I had got written in the application Exh.P-B that at 9.00 a.m I was present at home, confrotned
(sic) with Exh.P-B where not so recorded. I had also got recorded in Exh.P-B that Tariq and Ishfaq PWs were also present with me confronted with Exh.P-B not so recorded. I had got recorded in application Exh.P-B that PWs asked me to intercept but I told them that they were husband and wife and they mighit (sic) going to finish their dispute, confronted with Exh.P-B not so recorded. I had also recorded in application Exh.P-B that we saw from open window of the room, confronted with Exh.P-B where is no mention of "open window." " (emphasis supplied)
The prosecution witness namely Muhammad Usman (PW-2) made blatant and dishonest improvements in his previous statement, however was duly confronted with the same. The fact that it had not been recorded in the written application (Exh.PB) submitted by Muhammad Usman (PW- 2), the complainant of the case, to Muhammad Ayyub, SI (PW-12) for the registration of the case that both the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) were present inside the house prior to the occurrence proves the absence of both the prosecution witnesses Muhammad Usman (PW2) and Muhammad Tariq (PW-3) at the time of occurrence. It was for the fact that the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) had not witnessed the occurrence that the above mentioned flaws crept into their statements and have led us to the irresistible conclusion that both the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) had not witnessed the incident at all.
16. We have also noted that according to the statement of Muhammad Usman (PW-2), the house where the occurrence took place was inhabited by his wife and two other daughters who were also present at the time of occurrence. During cross-examination, Muhammad Usman (PW-2) admitted as under:- "My wife and my two daughters were present in the house on the day of occurrence. All of them had appeared before police and got recorded their statements about the occurrence "
Despite the claim of Muhammad Usman (PW-2) that his wife and two other daughters had appeared before the police and got recorded their statements, Muhammad Ayyub, SI (PW-12), the Investigating Officer of the case, never verified this fact and no statement under section 161 of the Code of Criminal Procedure, 1898 was recorded of the said wife and two daughters of Muhammad Usman (PW-2) by Muhammad Ayyub, SI (PW-12), the Investigating Officer of the case. Moreover, the said wife and two daughters of Muhammad Usman (PW-2) also did not appear before the learned trial court. For the fact that the occurrence took place at 9.00 a.m, the presence of the said wife and two daughters of Muhammad Usman (PW-2) inside their house was very much possible and therefore, they were the best witnesses who could have narrated the facts of the case, however, none of them was produced before the learned trial court, resulting in the loss of precious evidence. 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 gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The failure of the prosecution to produce the wife and two daughters of Muhammad Usman (PW- 2), 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 SCMR 1846) wherein the august Supreme Court of Pakistan held as under:- "The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
Reliance is also placed on the case of USMAN alias KALOO versus THE STATE (2017 SCMR 622) wherein the august Supreme Court of Pakistan held as under:- "A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother, wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the trial court".
Reliance is also placed on the cases of Muhammad Irshad Vs. Allah Ditta and others (2017 SCMR 142) and G. M. NIAZ Vs. The State" (2018 SCMR 506). In this manner, the prosecution case suffers from inherent defects which are irreconcilable as it is.
17. We have also noted that despite the assertion of the prosecution witnesses namely Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) that they had witnessed the occurrence on 13.10.2021 at 9.00 a.m., the matter was reported to the police on 13.10.2021 at 11.50 a.m., when the prosecution witness Muhammad Usman (PW-2) submitted his written application (Exh.PB) for the registration of the F.I.R at the THQ hospital Minchinabad to Muhammad Ayyub, SI (PW-12). According to the prosecution witnesses namely Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) they did not report the matter to the police at all and Muhammad Ayyub, SI (PW-12), after receiving the information, on his own reached the hospital. Moreover, according to the statements of the prosecution witnesses, the police arrived at the hospital at 09.00 a.m., however, still it took another two hours and fifty minutes for the presenting of the written application (Exh.PB), which was submitted by Muhammad Usman (PW-2) to Muhammad Ayyub, SI (PW-12) at the THQ hospital Minchinabad at 11.50 a.m . In his statement recorded by learned trial court, Amjad Rasheed, 1470/C (PW-4) stated as under:- "Stated that on 13.10.2021, 1 was deputed on general duty at P.S Minchinabad. On the same day at about 09:00 AM, I alongwith Muhammad Ayub SI, Shah Nawaz 768/C, Tanzeela Iqbal 1729/LC and Muhammad Iqbal PQR were present at THQ Hospital Minchinabad. The complainant of the case namely Muhammad Usman presented an application for registration of FIR to Muhammad Ayub Sl.
" (emphasis supplied)
No justification, much less credible, has been given by the prosecution at any stage for such deferral in the presenting of the written application (Exh.PB) even after the arrival of the police at the hospital ,which had arrived at the hospital at 09.00 a.m. whereas the written application (Exh.PB), was submitted by Muhammad Usman (PW-2) to Muhammad Ayyub, SI (PW-12) at the THQ hospital Minchinabad at 11.50 a.m . The reason for this delay in presenting the written application (Exh.PB) is obvious, being that both the prosecution witnesses namely Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) were not present at the place of occurrence, at the time of occurrence and the delay was used to procure their attendance. This inordinate delay in presenting the written application (Exh.PB) conclusively proves that the said written application (Exh.PB) and the formal F.I.R (Exh.PB/1) were documents laced with malafide content. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in the presentation of the written application (Exh.PB) 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. Furthermore, the August Supreme Court of Pakistan has already declared that when an application for the registration of FIR is not presented at the police station, an inference can be drawn that such application was a result of deliberations and preliminary investigation. Reliance in this regard is placed on the case of Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1155) wherein the august Supreme Court of Pakistan 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."
18. We have also noted that during cross examination, the prosecution witness namely Muhammad Tariq (PW-3) admitted that his statement under section 161 Cr.P.C regarding the incident and the statement of the prosecution witness namely Muhammad Usman (PW-2) regarding the incident were recorded on the next day of the incident. During cross examination, the prosecution witness namely Muhammad Tariq (PW-3) admitted as under:- "My statement about the occurrence was recorded by police on the following day of the occurrence at the spot. Statements of Ishfaq PW and the complainant were also recorded by the police at the same time at the spot about this occurrence " (emphasis supplied)
It is trite that the delayed recording of the statement of a prosecution witness under section 161 of the Code of Criminal Procedure, 1898 reduces its value to nothing unless there is a plausible explanation for such delay. No explanation, much less plausible, has been given by the prosecution witness Muhammad Tariq (PW-3) for not getting his statement under section 161 of the Code of Criminal Procedure, 1898 recorded immediately and therefore no value can be attached to his statement. The august Supreme Court of Pakistan in the case of "Abdul Khaliq Vs. The State" (1996 SCMR 1553) has held as under: "It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay".
The august Supreme Court of Pakistan in the case of "Muhammad Khan Vs. Maula Bakhsh" (1998 SCMR 570) has held as under: "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C is recorded with delay without offering any plausible explanation".
The august Supreme Court of Pakistan in the case of "Syed Saeed Muhammad Shah and another Vs. The State" (1993 SCMR 550) at page 571 has held as under: "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation".
19. We have also noted that the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) claimed that the Punjab Emergency Services (Rescue 1122) were called after the incident and they shifted the deceased to the hospital, however, no proof was brought on record that the deceased was shifted to the hospital by the Punjab Emergency Services (Rescue 1122) . Moreover, both the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) were not mentioned either in column No.4 of the inquest report (Exh.PG/3) as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report (Exh.PG/3) nor were mentioned at page 4 of the inquest report (Exh.PG/3) as witnesses who were present at the time of preparation of the inquest report (Exh.PG/3) .This fact also points towards the absence of the prosecution witnesses namely Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) at the time of preparation of the inquest report (Exh.PG/3) by Muhammad Ayyub, SI (PW-12), the Investigating Officer of the case.
20. The learned Deputy Prosecutor General submitted that the recovery of the motorcycle by the appellant on 18.10.2021 offered sufficient corroboration of the statements of the prosecution witnesses. Regarding the recovery of the motorcycle from the appellant namely Saadat Hussain son of Sarfraz, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the motorcycle from the appellant namely Saadat Hussain son of Sarfraz 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."
Furthermore, it is admitted part of the prosecution case that the motorcycle was shown to be recovered from the house of one Ghulam Qadir and the exclusive possession of the appellant of the motorcycle was never proved. Moreover, the recovered motorcycle was not even produced before the learned trial court Therefore, the evidence of the recovery of the motorcycle from the appellant namely Saadat Hussain son of Sarfraz 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."
21. The learned Deputy Prosecutor General submitted that the recoveries of the Pistol (P-4) and the scissors (P-3) from the place of occurrence offered sufficient corroboration of the statements of the prosecution witnesses. Regarding the recoveries of the Pistol (P-4) and the scissors (P-3) from the place of occurrence , it has been observed that neither the fingerprints were lifted from the said Pistol (P-4) and the scissors (P-3) for their comparison with the fingerprints of the appellant nor the DNA Profile of the appellant was generated from the said Pistol (P-4) and the scissors (P-3).It is an admitted part of the prosecution case that the said Pistol (P-4) and the scissors (P-3) were never sent to the Punjab Forensic Science Agency, Lahore for DNA analysis. When an individual touches an object, epithelial cells are left behind. Touch DNA is also known as epithelial DNA. The same traditional DNA analysis procedures are used to analyze and examine these remaining epithelial cells as are used to analyze and examine bodily fluids. The amount left behind is often less than 100 picograms and is also called low copy DNA. This is evidence with "no visible staining that would likely contain DNA resulting from the transfer of epithelial cells from the skin to an object. Due to development, lower amounts of human DNA can be detected and, possibly, a full or partial STR profile can be generated. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to exonerate innocent individuals accused of similarly heinous actions.
The technology has advanced to Polymerase Chain Reaction (PCR) based short tandem repeat
(STR) testing. This system multiplies a single copy of a DNA segment to allow for the analysis of the genetic makeup of a small sample. Current analysis makes it possible to determine whether a biological tissue matches a suspect with near certainty. DNA is comprised of "coding" and "non- coding regions. The loci examined are found on "junk DNA," which are segments of the DNA not known to code for any specific trait, but known to be different between individuals. "Junk DNA" are the non-coding regions which contain valuable information about identity, but do not contain information regarding coding for other genetic traits. This allows the development of a DNA profile without an examination into other genetic markers. Had the appellant namely Saadat Hussain son of Sarfraz handled the Pistol (P-4) and the scissors (P-3) then his DNA profile must have been obtained from the said items but it was not which also proves that the appellant namely Saadat Hussain son of Sarfraz had not handled the Pistol (P-4) and the scissors (P-3) .
22. The learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witness Muhammad Usman (PW-2) in his written application (Exh.PB) was that the appellant had sent the deceased back to the house of her father some weeks prior to the occurrence. It has not been explained by the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) that if the appellant himself had sent the deceased back to her father's home then how could it be the motive of the incident ? Realizing this flaw in the prosecution case with regard to the motive of the incident, the prosecution witnesses Muhammad Usman (PW- 2) and Muhammad Tariq (PW-3) made further statements that the motive of the incident was that the appellant was aggrieved by the conduct of the deceased of visiting the house of her parents often. This statement of the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) with regard to the motive of the incident that the appellant was aggrieved by the conduct of the deceased of visiting the house of her parents often is self contradictory as earlier it had been stated in the written application (Exh.PB) that the appellant himself sent back the deceased to the house of her parents. Muhammad Usman (PW-2) also admitted during cross- examination that there was no litigation instituted between the appellant and the deceased after the deceased had been sent back to the house of her father. During cross-examination, Muhammad Usman (PW-2) , admitted as under:- "My daughter Iqra had come to my home about one month before the occurrence .During this period, not before that ever there were any litigation of any sort between me and the accused party."
Even Muhammad Ayyub, SI (PW-12) , the Investigating Officer of the case also did not collect any evidence in support of the motive alleged. As mentioned above, the prosecution witnesses Muhammad Usman (PW-2) and Muhammad Tariq (PW-3) were themselves confused with regard to what was the motive of the occurrence and therefore, made contradictory statements with regard to the motivation of the appellant to have murdered the deceased. 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."
23. The learned Deputy Prosecutor General has also laid much stress upon the stance taken by the appellant namely Saadat Hussain son of Sarfraz while making answers to the questions posed to him during his examination under section 342 of the Code of Criminal Procedure, 1898 and the fact that the appellant was also injured and examined by Dr. Muhammad Abu Bakar (PW8) . The stance taken by the appellant during the trial was that on the day of the occurrence he found his wife gasping for life after having been fired at and got desperate and injured himself. This stance of the appellant was verified by Muhammad Ayyub, SI (PW-12), the Investigating Officer of the case, who admitted during cross-examination as under:- "It was also established that when Sadat accused entered the room, Mst. Iqra had already received fire arm injury and was seriously wounded before his coming to her house. It was also established during investigation that Sadat accused, on account of grief and shock caused injury on his abdomen at the spot" (emphasis supplied)
Moreover, the onus to prove the facts in issue never shifts and always lies on the prosecution. That the law is quite settled by now that if the prosecution fails to prove its case against an accused person, then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased ,which at least was not the plea of the appellant namely Saadat Hussain son of Sarfraz in this case. Reliance is placed on the case of Azhar Iqbal Vs. The State (2013 SCMR 383) wherein the august Supreme Court of Pakistan has held as under:- "It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand."
24. With regard to the conviction of the appellant under section 325 P.P.C. it has been observed that no evidence was brought on record in support of the said charge. Moreover, already the Majlis-e- Shoora (Parliament), by way of the Criminal Laws (Amendment) Act, 2022, which received the assent of the President on the 23rd December,2022, has omitted section 325 from the Pakistan Penal Code, (XLV of 1860).
25. With regard to the conviction of the appellant under section 13 of the Arms Ordinance, 1965 (Ordinance XX of 1965), the same is not sustainable as the recovery of the pistol (P-4) was not made from the possession of the appellant nor was proved to had been possessed by him.
26. 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. Chaman Shafique (PW-9) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by 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 Vs. The State" (2017 SCMR 986) has enunciated the following principle of law: "The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
The august Supreme Court of Pakistan in its binding judgment titled "Naveed Asghar and two others Vs. The State" (PLD 2021 Supreme Court 600) has enunciated the following principle of law: "31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."
27. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Saadat Hussain son of Sarfraz, the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad 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 observed 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 the earlier judgments of We have 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."
28. For what has been discussed above Criminal Appeal No.105-J of 2023 lodged by Saadat Hussain son of Sarfraz (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 28.02.2023 are hereby set-aside. Saadat Hussain son of Sarfraz (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Saadat Hussain son of Sarfraz (appellant) is in custody and is directed to be released forthwith if not required in any other case.
29. Murder Reference No. 07 of 2023 is answered in Negative and the sentence of death awarded to Saadat Hussain son of Sarfraz, is Not Confirmed.