SADIQ MAHMUD KHURRAM, J.-Waqar Ali son of Waris Khan (convict) was tried by the learned Additional Sessions Judge/Model Criminal Trial Court, Attock in case F.I.R. No. 169 of 2019 dated 23.06.2019 registered at Police Station Hazro, District Attock in respect of offences under sections 302,452,354,337-F(i) and 337-F(ii) P.P.C. for committing the Qatl-i-Amd of Sajida Bibi wife of Liaquat (deceased). The learned trial court vide judgment dated 06.01.2021, convicted Waqar Ali son of Waris Khan (convict) and sentenced him as infra: Waqar Ali son of Waris Khan: - i) Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Sajida Bibi wife of Liaquat (deceased) and directed to pay Rs.500,000/- 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 undergo further six months of simple imprisonment. ii) Rigorous Imprisonment for two years under section 354 PPC. iii) Rigorous Imprisonment of one year under section 337- F(i) PPC and directed to pay Daman of Rs.50,000/- to Nida Bibi (PW-11) iv) Rigorous Imprisonment of three years under section 337- F(ii) PPC and directed to pay Daman of Rs.80,000/- to Nida Bibi (PW-11). v) Rigorous Imprisonment of seven years under section 452 PPC and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to undergo further six months of simple imprisonment.
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, Waqar Ali son of Waris Khan (convict) lodged Criminal appeal No.587-J of 2021 through jail assailing his conviction and sentences. The learned trial court submitted Murder Reference No.10 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Waqar Ali son of Waris Khan. We intend to dispose of the Criminal Appeal No. 587-J of 2021 and Murder Reference No.10 of 2021 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as narrated by Nida Bibi (PW-11), the injured witness of the case, are as under: - "Stated that on 23.06.2019, at about 03:00 AM, I alongwith my brother Usama and my mother Sajida Bibi were sleeping bulbs in our house. Inside and outside of bulbs of our house, were lighting at that time. In the meanwhile, Waqar Ali son of Waris Khan (accused present in the court) who is our relative, scaled over the wall of our house. He awoke me and tried to outrage my modesty and I resisted. He was holding Churri in his hand. He injured me while inflicting Churri blows on my hands and leg. On my shouting, my brother Usama and mother Sajida Bibi were awaked and they tried to apprehend the accused. As accused was armed with Churri, therefore, my mother became frightened and entered into bathroom in fear. Accused followed her and also went into bathroom.
He caught hold my mother Sajida Bibi and gave consecutive blows of Churri on her body who fell down on the floor of bathroom in injured condition. Then accused decamed from the spot while brandishing Churri.
In the meanwhile, my maternal uncle Muhammad Refan came there and I narrated whole the occurrence to him. Accused entered into our house with bad intention, tried to outrage my modesty and also injured me and my mother. Thereafter, I and my mother were brought to THQ Hospital Hazro where our medical examinations were conducted. Police also arrived there and recorded statements u/sec. 161 Cr.P.C.."
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 19.12.2019, 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 thirteen witnesses recorded. The ocular account of the case was furnished by Nida Bibi (PW-11). Muhammad Refan (PW-10) stated that on the night of occurrence he saw the appellant coming out of the house of the deceased while armed with a Churri and was told about the details of the occurrence by Nida Bibi (PW-11). Waqar Ali (PW-12) stated that on 23.06.2019, he identified the dead body of the deceased at the time of its post mortem examination and on 05.07.2019, the appellant got recovered Churri (P-9). Asif Mahmood, ASI (PW-2) stated that on 23.06.2019, he got recorded the formal F.I.R. (Exh.PD). Muhammad Yaseen 2170/HC (PW-3) stated that on 23.06.2019, he escorted Nida Bibi (PW-11) and Sajida Bibi (then injured later deceased) to the hospital and received the last worn clothes of Nida Bibi (PW-11) from the Woman Medical Officer and handed them over to the Investigating Officer of the case. Shaila Bibi 679/LHC (PW-5) stated that on 23.06.2019, she escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Woman Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Irfan 1836/HC (PW-8) stated that on 23.06.2019, the Investigating Officer of the case handed him over one sealed parcel said to contain blood stained cotton swab, last worn clothes of Nida Bibi (PW-11) and Sajida Bibi (deceased) and on 02.07.2019, he handed over the sealed parcels said to contain the blood stained cotton swab to Anjam Sohail (PW-13) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 05.07.2019, the Investigating Officer of the case handed over to him a sealed parcel said to contain a Churri which on 14.07.2019 , he handed over to the Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Bashir Ahmad Awan, draftsman (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PP). Sahib Khan, SI (PW-6) investigated the case on 23.06.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Anjum Sohail, SI (PW-13), the Investigating Officer of the case, investigated the case from 23.06.2019 till 28.08.2019, arrested the appellant in this case 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. Huma Ikram (PW-1) examined, who on 23.06.2019 was posted as Woman Medical Officer at the THQ Hospital, Hazro and on the same day conducted the post mortem examination of the dead body of the deceased. Dr. Huma Ikram (PW-1) after conducting the post mortem examination of the dead body of the deceased namely Sajida Bibi wife of Liaquat, observed and opined as under: - "Description Of Injuries
1. An incised wound 1.8cm approximately in size about 8.5cm below the clavicle and 3.5cm to the left of lateral border of sternum.
2 Incised wound 1.8cm in size about 14cm to the left/posterior to the nipple of left breast.
3. Incised wound about 8cm posterior to the left anterior axillary fold.
4. A wound 1cm approximately in size about 5cm below and 10cm to left of nipple of left breast.
5. Incised wound 1.5cm in size at the back of patient on left side about 4cm away from the mid line and 10 cm above the iliac crest.
6. Incised wound 1.5cm in size about 14.5cm above the olecranon process of left elbow on extensor surface of arm.
7. An incised wound 1cm in size approximately 4cm away from the sixth wound.
8. A lacerated wound approximately 1.5cm x 1.5cm in size on the little finger of left hand.
9. An abrasion 1cm x 1cm on right arm on extensor surface just below olecranon process.
10. An incised wound Icm in size at lower border of left patella ................
Opinion In my opinion, cause of death was cardiopulmonary arrest due to hypovolemic shock resulting from injury No. 1 to 4."
The prosecution also got Dr. Shajar Abbas (PW-4) examined, who on 23.06.2019 was posted as Woman Medical Officer at the THQ Hospital, Hazro and on the same day conducted the medical examination of Nida Bibi (PW-11). Dr. Shajar Abbas (PW-4) on examining Nida Bibi (PW-11) observed as under: - "Description of Injuries: On examination, I found following injuries on the person of injured:
1. A small.1cm x 1cm incised wound on the base of left index finger. All the movements at joint are intact.
2. 2cm x 1cm lacerated wound, 5cm away from right popliteal fossa on lateral aspect. No active bleeding and all the movements at joint are intact. No swelling or bruise at the time of examination."
On 23.06.2019 Dr. Shajar Abbas (PW-4) also conducted the medical examination of Sajida Bibi (then injured later deceased). Dr. Shajar Abbas (PW-4) on examining Sajida Bibi (then injured later deceased) observed as under: - "1. 2cm x 1cm wound on left anterior side of chest 16cm away from left shoulder's joint (laceration).
2. 1cm x 1cm on left side of chest below axilla 21cm from left shoulder's joint (laceration).
3. 1.5cm x 1cm wound on left side of chest below axilla 23cm from left shoulder's joint (laceration).
4. 2cm x 1cm wound on left back side of chest 20cm from left shoulder's joint (laceration).
5. 2cm x 1cm wound on left little finger (laceration).
6.5cm x.5cm incised wound 2cm away from patella left leg"
7. On 05.11.2020, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Usama and Liaquat Ali as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PU).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Waqar Ali son of Waris Khan 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 Waqar Ali son of Waris Khan opted not to get himself examined under section 340(2) Cr.P.C however got Kamran Ali 998/HC examined who produced the copies of documents (Exh.DA and Exh.DB).
9. On the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court, Attock, 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 statement of Nida Bibi (PW-11) was 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 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 statement of Nida Bibi (PW-11). The learned Deputy Prosecutor General further argued that the recovery of the Churri (P-9) and the report of Punjab Forensic Science Agency, Lahore (Exh.PU) 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 learned Deputy Prosecutor General has vehemently argued that as the prosecution witness namely Nida Bibi (PW-11) was injured during the occurrence, therefore, her statement could not be doubted in any manner. The stamp of injuries on the person of a witness may be proof of her presence at the place of occurrence, at the time of occurrence, however the same can never guarantee a truthful deposition. Injuries received by a witness during an incident do not warrant acceptance of her evidence without scrutiny. At the most, such traumas can be taken as an indication of her presence on the spot, but still, her evidence is to be scrutinized on the benchmark of principles laid down for the appraisal of evidence. It is not a given that a witness who suffered injuries during the occurrence will depose 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. It has been held by the august Supreme Court of Pakistan repeatedly that the facts which an injured witness narrates are not to be implicitly accepted rather, they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under: "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that the presence of injuries does not stamp a witness to be a truthful one and observed as under:-.
"12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not s h o w that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the F.I.R. namely Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."
In the case of Mehmood Hayat supra at page 1417, it has been observed as under:- "10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony."
In the case of Mehmood Ahmed supra, this Court at page 7 observed as under: "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."
13. From the above evidence of the P. Ws, they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence."
With this principle of appreciation of evidence in our minds that an injured witness cannot be presumed to be also a truthful witness, we have proceeded to examine the statement of the prosecution witness namely Nida Bibi (PW-11) , the only witness produced by the prosecution who stated that she had witnessed the occurrence. In this regard we have noticed that though the prosecution witness namely Nida Bibi (PW-11) claimed that the appellant had inflicted blows upon her with a knife and Dr. Shajar Abbas (PW-4) when examined Nida Bibi (PW-11) observed the presence of two injuries on her body, however, Dr. Shajar Abbas (PW-4) herself declared that the possibility of fabricating the said injuries could not be ruled out. Dr. Shajar Abbas (PW-4), after examining Nida Bibi (PW-11), stated as under:- "Possibility of Fabrication: Cannot be ruled out"
It is also a fact that Sahib Khan, SI (PW-6) and Anjum Sohail, SI (PW-13), the Investigating Officers of the case, did not take any blood stained cotton swabs from the place of occurrence where Nida Bibi (PW-11) was present and had suffered the injuries which also proves the absence of Nida Bibi (PW-11). Furthermore, according to Nida Bibi (PW-11), on the night of the occurrence she, along with her minor children, the deceased and her brother namely Usama were sleeping in the one room of the house where the occurrence took place on cots. Nida Bibi (PW-11) during cross-examination stated as under:- "Three cots were lying in the compound"
A perusal of the scaled site plan of the place of occurrence (Exh.PP) as prepared by prepare by Bashir Ahmad draftsman (PW-9) and the rough site plan of the place of occurrence (Exh.PM) as prepared by Sahib Khan, SI (PW-6) reveals that no such cots have been marked in the said site plans (Exh.PP and Exh.PM) as being present in the said site plans at the place of occurrence. It is also a fact that during the course of investigation, Sahib Khan, SI (PW-6) and Anjum Sohail, SI (PW- 13), the Investigating Officers of the case, did not take any such cots into possession on which cots Nida Bibi (PW-11) along with her minor children and her brother namely Usama were sleeping on the night of occurrence. All these facts prove the absence of Nida Bibi (PW-11) at the place of occurrence, at the night of the occurrence.
14. More importantly, we have noticed with grave concern that the statement of Nida Bibi (PW-11) was in direct contradiction to the opinion and observations of Dr. Shajar Abbas (PW-4). In this regard, it is observed that according to the prosecution witness namely Nida Bibi (PW-11), the appellant had used a Churri to inflict the various injuries upon her as well as the deceased.
Obviously, a Churri is a sharp edged weapon and any injury inflicted by using the same would result in causing incised wounds. In Chapter 25, 'INJURIES BY MECHANICAL VIOLENCE', from page 615 to page 620 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), it has been discoursed as under:- "Lacerated wounds are tears or splits produced by blows from blunt objects and missiles, by violent falls on hard projecting surfaces, by machinery and railway accidents, by the wheels of a vehicle causing a grinding compression by their weight resulting in avulsion of the skin. They can also be caused by the claws, teeth or horns of animals and by projecting nails, or by over stretching of the skin over broken bones. These wounds do not generally correspond in shape or size to the weapon producing them. Their edges are torn, jagged, irregular and swollen or contused. The tissues are torn and the skin beyond the seat of injury is ecchymosed and the underlying bones are likely to be fractured, while the internal organs may be injured. Foreign bodies, such as earth, grease, machine oil, cinders, hair, or fibres of clothing are frequently found in the wound and hence they are also predisposed to infection.
When produced by a blunt weapon, such as a club (lathi), crowbar, stone, or brick, a lacerated wound is usually accompanied by a considerable amount of bruising of the surrounding and underlying tissues, and has inverted and irregular edges. When a heavy weight like a wheel of a heavy cart of a truck passes over any extremity, by its shearing and grinding force, it tears the skin from the underlying tissues and crushes the muscles and soft parts beneath it, releasing considerable blood and fat in them. Crush syndrome or fat emboli may occasionally follow. The direction of the shelving of the margins of a lacerated wound indicates the direction of the blow applied to cause the wound.
External haemorrhage in lacerated wounds is, as a rule, not extensive, owing to the fact that the arteries are not cut evenly, but are torn across irregularly so as to facilitate clotting of the blood. But internal haemorrhage from ruptured viscera may be severe and fatal. In lacerated wounds of the scalp, the temporal arteries often spurt as freely and forcefully as when cut cleanly. These arteries being firmly bound are unable to contract, and may therefore, spurt and continue to bleed for a long time. ......................
Incised or Slash Wounds. An incised or slash wound is defined as orderly solution of skin and tissue by a sharp cutting weapon drawn across the skin. It may either be produced by light sharp cutting instruments such as knife, razor, scissors, or heavy sharp cutting weapons such as sword, gandasa (chopper), axe, hatchet, scythe, kookri or any object such as a broken piece of glass or metal which has a sharp, cutting pointed or linear edge and are mostly intentionally inflicted. The cutting edge of a knife may be completely or partly sharp and partly blunt and the other edge may be blunt, serrated, scalloped or hollow, all these variations affect the shape of the wound.
Character of an Incised or Slash Wounds. An incised or slash wound is always broader than the edge of the weapon causing it owing to the retraction of the divided tissues. It is somewhat spindle-shaped and gaping, its length being greater than its width and depth. This gaping is greater in deep wounds when the muscle fibres have been cut transversely or obliquely. Its edges are smooth, even, clean-cur, well-defined and usually everted. The edges may be inverted, if a thin layer of muscular fibres is closely united to the skin, as in the scrotum. They may be irregular in cases where the skin is loose as in axilla and abdominal wall or the cutting edge of the weapon is blunt, as the skin will be puckered in front of the weapon before it is divided. The length of the incised wound has no relation to the length of the cutting edge of the weapon, but it may give some idea of the depth of penetration.
The edges of a wound made by a heavy cutting weapon, such as an axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon, such as a knife, or razor and may show signs of contusion. Such a wound is, as a rule, associated with extensive injuries to deep underlying structure or organs.
A curved weapon, such as a scythe or sickle, first produces a stab or puncture and then an incised wound; sometimes the intervening skin may be left intact." (emphasis supplied)
In this manner, if the statement of Nida Bibi (PW-11) was correct that the appellant had used a Churri to inflict the injuries upon her and the deceased, then not only she but the deceased must have suffered from smooth incised wounds without any signs of contusion, however, according to the statement of Dr. Shajar Abbas (PW-4), the injuries suffered by the deceased as well as Nida Bibi (PW-11) included lacerated wounds. Dr. Shajar Abbas (PW-4) on 23.06.2019 conducted the medical examination of Nida Bibi (PW-11) and observed as under: - "Description of Injuries: On examination, I found following injuries on the person of injured:
1. A small.1cm x 1cm incised wound on the base of left index finger. All the movements at joint are intact.
2. 2cm x 1cm lacerated wound, 5cm away from right popliteal fossa on lateral aspect. No active bleeding and all the movements at joint are intact. No swelling or bruise at the time of examination."
On 23.06.2019 Dr. Shajar Abbas (PW-4) also conducted the medical examination of Sajida Bibi (then injured later deceased) and observed as under: - "1. 2cm x 1cm wound on left anterior side of chest 16cm away from left shoulder's joint (laceration).
2. 1cm x 1cm on left side of chest below axilla 21cm from left shoulder's joint (laceration).
3. 1.5cm x 1cm wound on left side of chest below axilla 23cm from left shoulder's joint (laceration).
4. 2cm x 1cm wound on left back side of chest 20cm from left shoulder's joint (laceration).
5. 2cm x 1cm wound on left little finger (laceration).
6..5cm x.5cm incised wound 2cm away from patella left leg" (emphasis supplied)
Out of the six injuries observed by Dr. Shajar Abbas (PW-4) at the time of the medical examination of Sajida Bibi (then injured and later deceased), five injuries were declared to be lacerations and only one injury was declared to be an incised wound. Similarly, out of the two injuries observed on the person of Nida Bibi (PW-11), one injury was a laceration, whereas the other was an incised wound of the dimension of 0.1cm x 0.1cm present on the index finger of her left hand. As mentioned above, if a Churri had been used to inflict the injuries upon Sajida Bibi (deceased) and Nida Bibi (PW-11) then Dr. Shajar Abbas (PW-4) would have observed the presence of smooth incised wounds without any signs of contusion, however, she observed the presence of as many as five lacerated wounds on the body of Sajida Bibi (deceased) at the time of her medical examination.
Moreover, Dr. Shajar Abbas (PW-4) explained during cross-examination, as under:- "It is correct that injuries No. 1 to 5 of Sajida Bibi are lacerated wounds whereas sixth injury is an incised wound. It is not necessary that lacerated wound would occur due to blow of blunt weapon.
Normally, an incised wound is caused by a sharp edge weapon. Injuries on the body of Sajida Bibi might be caused by two different weapons."
In this manner, there remains no doubt that the statement of Nida Bibi (PW-11) is directly contradicted by the opinion and observations of Dr. Shajar Abbas (PW4).We have noted with serious anxiety that the ocular account of the occurrence as furnished by the prosecution witness namely Nida Bibi (PW-11) is inconsistent with the medical evidence as furnished by Dr. Shajar Abbas (PW-4)) and flawed beyond mending , resulting in disfiguring the complexion of the whole prosecution case beyond reparation and recognition. The opinion and observations of Dr. Shajar Abbas (PW-4) were never challenged by the prosecution either during the investigation of the case or during the course of the trial. The prosecution witnesses very well knew that the observations and opinions of Dr. Shajar Abbas (PW-4) were in themselves sufficient to shatter the very foundation upon which the prosecution case was built, however, even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. Shajar Abbas (PW-4) or if the same could not be challenged, then to explain the same.
Despite our repeated queries, the learned Deputy Prosecutor General has failed to explain the said discrepancy in the prosecution evidence. In this manner, irreconcilable and harrowing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witness namely Nida Bibi (PW-11) and the medical evidence as furnished by Dr. Shajar Abbas (PW-4). The contradiction in the ocular account of the occurrence, as narrated by prosecution witness namely Nida Bibi (PW-11) and the medical evidence as furnished by Dr. Shajar Abbas (PW-4)), sound the death knell for the prosecution case and proves to be the cause of its sad demise. Had the prosecution witness namely Nida Bibi (PW-11) seen the occurrence then there did not exist any possibility that she would fallen into such a grave error. Reliance is placed on the cases of "Muhammad Ali Vs. The State" (2015 SCMR 137) "Muhammad Ashraf Vs. The State"
(2012 SCMR 419) USMAN alias KALOO Vs. The State (2017 SCMR 622), Muhammad Hussain Vs. The State (2008 SCMR 345) and "Ain Ali and another Vs. The State" (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of prosecution witnesses when the same was found to be in contrast with the medical evidence. The learned Deputy Prosecutor General has rightly stated that according to the observations of Dr. Huma Ikram (PW-1), the deceased had indeed suffered from incised wounds, however, is unable to explain as to why they were such colossal differences with regard to the number of injuries, dimensions of the injuries and the kinds of injuries in the observations of Dr. Huma Ikram (PW-1), who had conducted the post mortem examination of the dead body and the observations of Dr. Shajar Abbas (PW-4) who had examined the deceased in an injured condition. From the perusal of the observations of Dr. Huma Ikram (PW-1), who had conducted the post mortem examination of the dead body and the observations of Dr. Shajar Abbas (PW-4) who had examined the deceased in an injured condition, it is clear that their observations were so diametrically opposed to each other, that they do not even said to be related to the examination of the same person, bringing the case of the prosecution more under the dark clouds of uncertainty than offering any proof of the same.
16. We have noted that according to Nida Bibi (PW-11) , the only prosecution witness who claimed to had seen the occurrence, the occurrence took place in the dead of night at about 03.00 a.m in the balmy 23rd night of the month of June, 2019, however, admittedly no source of light, which could have enabled Nida Bibi (PW-11) to had rightly identified the accused was produced by the witnesses during the investigation of the case or even before the learned trial court. Nida Bibi (PW- 11) claimed that she had witnessed the occurrence in the light of an electric bulb which was lit at the place of occurrence, however, Nida Bibi (PW-11) also admitted during cross-examination that she never produced the said electric bulb which was lit at the place of occurrence before the Investigating Officer of the case during the investigation of the case. According to the prosecution evidence, Sahib Khan, SI (PW-6) and Anjum Sohail, SI (PW-13), the Investigating Officers of the case, both visited the place of occurrence after the occurrence but the electric bulb, which was allegedly available and lit at the place of occurrence, at the time of occurrence, was not taken into possession at the spot by the said Investigating Officers alongwith other recoveries, though there was no occasion for the said electric bulb not to have been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officers or it being not taken into possession by the Investigating Officers during their visits to the place of occurrence. Sahib Khan, SI (PW-6) , the Investigating Officer of the case, admitted during cross-examination as under:- "I did not take any bulb into possession from the spot."
Anjum Sohail, SI (PW-13), who also investigated the case, admitted during cross examination, as under:- "I had not collected any bulb or light from place of occurrence."
Muhammad Refan (PW-10), the complainant of the case, also admitted during cross-examination, as under:- "I.O did not take into possession the bulb of the compound of occurrence."
The non-production of the electric bulb which was lit at the place of occurrence is all the more a matter of disquiet for the reason that if the said source of light was indeed available then the complainant of the case could have easily produced the same before the learned trial court. The failure of the complainant 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 at the place of occurrence which could have enabled Nida Bibi (PW-11) to have identified the assailant during the occurrence. As mentioned above, no such electric bulb which was lit at the place of occurrence was taken into possession by the Investigating Officers in the light of which Nida Bibi (PW-11) had allegedly witnessed the occurrence and it is also for this fact of lack of any light source that Nida Bibi (PW-11) made a contradictory statement with regard to the kind of weapon used during the incident. The joint failure of Nida Bibi (PW-11) , Muhammad Refan (PW-10),the complainant of the case and Sahib Khan, SI (PW-6) and Anjum Sohail, SI (PW-13), the Investigating Officers of the case,to produce the electric bulb allegedly present at the place of occurrence and lit up at the time of occurrence, proves that none was available and only an invented and false claim of such an electric bulb being available was made by the said witnesses. The prosecution witnesses failed to establish the fact of such availability of a light source 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 dark. It was admitted by Nida Bibi (PW-11), the only prosecution witness who claimed to had seen the occurrence, that it was a dark night and she had used the light of the electric bulb, never produced, to identify the assailant during the occurrence and as the prosecution witnesses failed to prove the availability of such light source, the statement of Nida Bibi (PW-11) 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 "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." (emphasis supplied)
Reliance is also 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 "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."
17. With regard to the statement of the prosecution witness namely Muhammad Refan (PW-10) that on the night of the occurrence he saw the appellant coming out of the house of the deceased while armed with a Churri and was told about the details of the occurrence by Nida Bibi (PW-11), we have come to the conclusion that it had no evidentiary value. Firstly according to the prosecution witness namely Muhammad Refan (PW-10), he himself had not witnessed the occurrence whereas with regard to his statement that on the night of the occurrence, he had seen the appellant coming out of the house of the deceased while armed with a Churri, Muhammad Refan (PW-10) admitted that though it was a dark night, however, he had not mentioned any source of light which allowed him to identify the appellant. Muhammad Refan (PW-10) during cross-examination, admitted as under:- "I also did not mention the source of light through which I identified the accused."
Muhammad Refan (PW-10) also admitted during cross-examination that in his oral statement (Exh.PQ), he had not mentioned the presence of any electric bulb being lit at the time of his arrival at the place of occurrence and stated as under:- "I did not mention in complaint that at the time of my reaching on the spot, bulb in the compound was lighting"
For these facts the statement of Muhammad Refan (PW-10) that on the night of the occurrence he had seen the appellant coming out of the house of the deceased while armed with a Churri cannot be believed.
18. Both the prosecution witnesses namely Muhammad Refan (PW-10) and Nida Bibi (PW-11) stated that Usama, 21 years old son of the deceased, was also sleeping in the same room in which the appellant had entered. The prosecution witnesses also admitted that the occurrence took place in a house which had only one room and in which one room not only Nida Bibi (PW-11) with her children, the deceased but also Usama, the 21 years old son of the deceased, were sleeping on the night of the occurrence. Anjum Sohail, SI (PW-13), the Investigating Officer of the case, stated as under:- "The house of occurrence is spread over 4 to 5 marlas and is consists of one room."
The claim of the prosecution witness namely Nida Bibi (PW-11) was that on the night of occurrence , the appellant trespassed into their house in order to outrage her modesty, however, Nida Bibi (PW- 11) did not explain at all that why would the appellant have trespassed into the house where the occurrence took place when he knew that the said house comprised only one room and in the said room not only Nida Bibi (PW-11) with her children, the deceased but also Usama, the 21 years old son of the deceased, were sleeping. Furthermore, Nida Bibi (PW-11) also claimed that when the appellant attempted to outrage her modesty, he was stopped by not only the deceased but also Usama, her brother but could not explain as to why the assailant only acted against the deceased and did not cause even a single injury to Usama, who too had allegedly confronted the assailant.
Nida Bibi (PW-11) during cross-examination, stated as under:- "During the occurrence, Usama did not receive any injury. Usama has not been produced in the court for evidence"
Such behaviour, on the part of the accused as deposed by the prosecution witnesses namely Muhammad Refan (PW-10) and Nida Bibi (PW-11) 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 Refan (PW-10) and Nida Bibi (PW-11) was opposed to the common course of natural events and human conduct. Hence, we are holding that the prosecution witnesses namely Muhammad Refan (PW-10) and Nida Bibi (PW-11) did not witness the occurrence or the presence of the appellant on the night of occurrence at the place of occurrence.
19. We have noted with grave concern and disquiet that the alleged prosecution witnesses, namely Muhammad Refan (PW-10), Nida Bibi (PW-11) and Usama, 21 years old son of the deceased made no effort either to save the deceased or to apprehend the accused when they were three in number. All, namely Muhammad Refan (PW-10), Nida Bibi (PW-11) and Usama, 21 years old son of the deceased, were closely related to the deceased. It is unnatural and unbelievable that Muhammad Refan (PW-10), Nida Bibi (PW-11) and Usama, 21 years old son of the deceased, did not even move a limb to protect their near and dear one. It is strange and rather unbelievable that the accused still succeeded to inflict so many injuries to the deceased in the presence of Nida Bibi (PW-11) and Usama, 21 years old son of the deceased. Nida Bibi (PW-11) and Usama, 21 years old son of the deceased did not act in any manner to save the life of Sajida Bibi (deceased). It is vexing to imagine that in what circumstances the accused succeeded in killing the deceased in the presence of Nida Bibi (PW-11) and Usama, 21 years old son of the deceased, without facing any resistance from Nida Bibi (PW-11) and Usama, 21 years old son of the deceased. During the whole episode wherein the deceased was done to death, Nida Bibi (PW-11) and Usama, 21 years old son of the deceased, kept watching the accused and did not interfere at all. No person with ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or apprehend the assailant. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Nida Bibi (PW-11) and Usama, 21 years old son of the deceased had been present, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save her. Such behaviour, on the part of the witnesses, runs counter to natural human conduct and behaviour. We thus, trusts the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by them, was opposed to the common course of natural events, human conduct and that the prosecution witnesses namely Muhammad Refan (PW-10), Nida Bibi (PW-11) and Usama, 21 years old son of the deceased, had not witnessed the occurrence.
The august Supreme Court of Pakistan has enunciated binding principles for the appreciation of evidence in such circumstances. Reliance is placed on the case of "Zulifqar Ali v. The State" (2021 SCMR 1373) wherein the august Supreme Court of Pakistan observed as under:- "Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene"
Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- "The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causing the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot."
Further reliance is placed on the case of "Shahzad Tanveer v. The State" (2012 SCMR 172) at page- 176 wherein the august Supreme Court of Pakistan observed as infra:- "It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot."
Reliance is also placed on the case of "Liaquat Ali v. The State" (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under: "He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
20. The learned Deputy Prosecutor General submitted that the recovery of the Churri (P-9) from the appellant namely Waqar Ali son of Waris Khan offered sufficient corroboration of the statements of the prosecution witnesses .Regarding the recovery of the Churri (P-9) from the appellant namely Waqar Ali son of Waris Khan, 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 Churri (P-9) from the appellant namely Waqar Ali son of Waris Khan which was in clear violation of section 103 Code of Criminal Procedure, 1898. Waqar Ali (PW-12), the witness of the recovery of the Churri (P-9) admitted during cross-examination, as under:- "It is correct that my village is Kot Fateh Khan, Tehsil Fatehjang and this address is written on my CNIC. My father is also residing in Fatehjang. Distance between place of occurrence and my village is about 85 kilometers."
Anjum Sohail, SI (PW-13) , the Investigating Officer of the case, stated as under:- "We had not summon any Lambardar, Councilor or respectable of locality to witness the recovery.
We stayed at place of recovery for about 2 to 2 1/2 hours."
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 recovery of the Churri (P-9) from the appellant namely Waqar Ali son of Waris Khan 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."
Furthermore, it is admitted part of the prosecution case that the Churri (P-9) was shown to be recovered from an open place and the exclusive possession of the appellant of the Churri (P-9) was never proved. Waqar Ali (PW-12), admitted during cross-examination, as under:- "When we reached at place of recovery, house of accused Waqar was opened."
Anjum Sohail, SI (PW-13), the Investigating Officer of the case, stated as under:- "At the place of recovery, door was opened and firstly accused Waqar entered in the house. A police official also called for entrance in the house."
It has also been noticed by this Court that the occurrence took place on 23.06.2019, whereas the Churri (P-9) was sent to the office of Punjab Forensic Science Agency, Lahore on 15.07.2019 and was analyzed on 05.08.2019. During such a long period the blood available on the Churri (P-9), if any, would have disintegrated. It is not possible to believe that the blood available on the Churri (P-9) had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of "Faisal Mehmood Vs. The State" (2016 SCMR 2138) has held as under:- "The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks."
All these facts denude the effort made by the Investigating Officer of the case to prop up the failing prosecution case by showing a sham recovery of the Churri (P-9)
21. 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 Nida Bibi (PW-11) was that on the night of occurrence, the appellant wanted to outrage the modesty of Nida Bibi (PW-11), however, when she raised hue and cry , the deceased intervened and then the appellant committed the Qatl-i-Amd of the deceased. We have perused the statements of the prosecution witnesses and find that they failed to prove the motive of the occurrence as stated by them. As discussed above, why would the appellant have trespassed into the house where the occurrence took place when he knew that the said house comprised only one room and in the said room not only Nida Bibi (PW-11) with her children, the deceased but also Usama, the 21 years old son of the deceased, were sleeping. 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."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Waqar Ali son of Waris Khan, 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."
23. For what has been discussed above Criminal Appeal No.587-J of 2021 lodged by Waqar Ali son of Waris Khan (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 06.01.2021 are hereby set-aside.
Waqar Ali son of Waris Khan (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Waqar Ali son of Waris Khan (appellant) is in custody and is directed to be released forthwith if not required in any other case.
24. Murder Reference No. 10 of 2021 is answered in Negative and the sentence of death awarded to Waqar Ali son of Waris Khan, is Not Confirmed.