The State vs Muhammad Shahsawar

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.20 of 2018 (The State Vs. Muhammad Shah Sawar )

Criminal Appeal No. 357 of 2018 (Muhammad Shah Sawar Vs. The State and another)

JUDGMENT.

Date of hearing: 09.11.2021.

Appellant by: Mr. Muhammad Umair Mohsin, Advocate.

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

Complainant by: Mr. Rehan Zafar, Advocate.

SADIQ MAHMUD KHURRAM, J.- Muhammad Shah Sawar son of Sabir Ali (convict) was tried by the learned Additional Sessions Judge, Chishtian in case FIR No. 400 of 2017 dated 27.11.2017 registered at Police Station Dahranwala District Bahawalnagar in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Mst. Maryam Bibi daughter of Asmat Ullah (deceased). The learned trial court vide judgment dated 28.04.2018, convicted Muhammad Shah Sawar son of Sabir Ali (convict) and sentenced him as infra:

Muhammad Shah Sawar son of Sabir Ali:

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Maryam Bibi daughter of Asmat Ullah (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Mst. Maryam Bibi daughter of Asmat Ullah (deceased) and in case of

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default thereof, the convict was directed to further undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

2.Feeling aggrieved, Muhammad Shah Sawar son of Sabir Ali lodged Criminal Appeal No.357 of 2018 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.20 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Shah Sawar son of Sabir Ali.

We intend to dispose of the Criminal Appeal No. 357 of 2018 and Murder Reference No.20 of 2018 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as stated by Asmat Ullah (PW-5), the complainant of the case, are as under:- “Stated that on 27.11.2017, I alongwith Aish Behadur and Sana Ullah PW were present in the field of Ijaz Ahmad which was cultivated by one Ghulam Qadir. It was about 11:30 A.M, when my daughter Mst. Maryam Bibi deceased and other women were picking cotton crop there. At that time, Shah Sawaar accused present in the court while armed with pistol 30 bore, came there and called my daughter Maryam Bibi in a side and in our view Shah Sawaar made pistol fire shots upon my daughter which hit on her chest. My daughter fell down on the ground and accused fled away while brandishing pistol from the place of occurrence. occurrence was witnessed by me and other PWs mentioned above. We attended my daughter who succumbed to the injuries at the spot. Motive behind the occurrence is that my daughter Maryam Bibi had filed a suit for dissolution of marriage and recovery of dowry articles against accused Shah Sawaar who was my son-in-law (damaad). Police reached at the spot and I made statement before police which was read over to me and I affixed my thumb impressions on the same as token of its correctness which is Exh.PC and my thumb impression is Exh. PC/1. I also identified the dead body of Maryam Bibi at the time of post-mortem examination.”

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 appellant was sent to face trial. The learned

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trial court framed the charge against the appellant on 27.01.2018, to which the appellant pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case, got statements of as many as nine witnesses recorded. The ocular account of the incident was furnished by Asmat Ullah (PW-5) and Aish Behadur (PW-6). Muhammad Akram 148/C (PW-1) stated that on 27.11.2017 he escorted the dead body of the deceased to the hospital for the purpose of post-mortem examination and received the last worn clothes of the deceased from the Medical Officer. Muhammad Shafique, ASI (PW-2) stated that on 27.11.2017 he got recorded the formal F.I.R(Exh.PB). Muhammad Shabbir, ASI (PW-3) stated that on 27.11.2017 he reached at the place of occurrence and recorded the statement (Exh.PC) of Asmat Ullah (PW-5). Muhammad Akram Balouch, Patwari (PW-4) prepared the scaled site plan of the place of occurrence (Exh.PD). Muhammad Arshad 850/HC (PW-9) stated that on 27.11.2017 the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained earth and empties taken from the place of occurrence and on 13.12.2017 the Investigating Officer of the case handed over to him one sealed parcel said to contain the recovered pistol which on 21.12.2017 he handed over all the three parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Khalid Rauf, SI (PW-8) investigated the case from 27.11.2017 till 14.03.2018, arrested the appellant on 11.12.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

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6.The prosecution also got Dr. Sidra Rasool (PW-7) examined, who on 27.11.2017 was posted as Woman Medical Officer at the THQ Hospital Chishtian and on the same day conducted the postmortem examination of the dead body of Mst. Maryam Bibi daughter of Asmat Ullah (deceased). Dr.

Sidra Rasool (PW-7), on examining the dead body of the deceased namely Mst. Maryam Bibi daughter of Asmat Ullah, observed as under:-

“DESCRIPTION OF INJURIES.

1.Lacerated wound on left side of chest 5 cm lateral to left breast at fourth inter costal space measuring 0.5 cm x 1 cm going deep into thoracic cavity through skin and soft tissue. Margins inverted with burning and blackening (entry wound).

2.Lacerated wound on left side of chest 5 cm below and lateral to left breast at sixth inter costal space 0.5 cm x 1cm going deep into thoracic cavity. Margins inverted with burning and blackening of margins (entry wound).

3.Lacerated wound at center of chest 5 cm below the sterna angle 0.5 cm x 1 cm going deep into thoracic cavity inverted margins with burning and blackening of edges (entry wound).

4.Lacerated wound at right breast 1 cm lateral to nipple at the level of fourth rib 0.5 cm x 1 cm going deep into thoracic cavity. Margins inverted with burning and blackening of edges (entry wound).

5.Lacerated wound at right side of breast 5 cm lateral to nipple at the level of fourth Intercostal space 0.5 cm x 1 cm going deep into thoracic cavity. Margins inverted with burning and blackening of edges (entry wound).

6.Lacerated wound at center of back 2 cm lateral to 10th thoracic vertebra on right side 1.5 cm x 1.5 cm. Everted margins going deep into skin & soft tissue (exit wound). No burning or blackening.

7.Lacerated wound at right side of back 1 cm above the iliac tubercle measuring 1.5 cm x 1.5 cm. Everted margins. No burning or blackening (exit wound).

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8: Lacerated wound at tip of right scapula 5 cm lateral to thoracic seven spine, measuring 1.5 cm x 1.5 cm.

Everted margins (exit wound).

9.Lacerated wound at right side of back 5 cm above the illac tubercle measuring 1.5 cm x 1.5 cm. Everted margins. No burning or blackening. (exit wound).

10.Lacerated wound at lower part of back 5 cm above and lateral to sacro-iliac joint 1.5 cm x 1.5 cm. Everted margins. Burning & blackening absent. (exit wound).

OPINION

After thorough external and internal examination of dead body, I am of the opinion that injury No. 1, 2, 3, 4 and 5 are the cause of death, leading to excessive hemorrhage and shock and resulting in cardio pulmonary arrest. The duration between injuries and death was within 1 to 2 hours and between death and post mortem examination was within 6 to 12 hours.”

7.On 23.04.2018, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Sana Ullah as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PR) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh.PS) regarding the comparison of the empties (P-5/16) recovered from the place of occurrence and the pistol (P-6) recovered from the possession of the appellant namely Muhammad Shah Sawar.

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Shah Sawar son of Sabir Ali, under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had

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been involved in the case falsely and was innocent. The appellant namely Muhammad Shah Sawar son of Sabir Ali 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, Chishtian, convicted and sentenced the appellant as referred to above.

10.The primary contention of the learned counsel for the appellant is that the whole case is 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 Asmat Ullah (PW-5) and Aish Behadur (PW-6) 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 result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant

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further contended that the medical evidence also corroborated the statements of Asmat Ullah (PW-5) and Aish Behadur (PW-6). The learned Deputy Prosecutor General alongwith the learned counsel for the complainant further argued that the recovery of the pistol form the appellant namely Muhammad Shah Sawar son of Sabir Ali, also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of appeal as lodged by the appellant namely Muhammad Shah Sawar son of Sabir Ali.

12.We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their assistance have perused the record and evidence recorded during the trial.

13.The whole prosecution case revolves around the statements of Asmat Ullah (PW-5) and Aish Behadur (PW-6). Both the witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) admittedly were not the residents of the place of occurrence. According to the statement of Asmat Ullah (PW-5) his house was at a distance of three squares from the place of occurrence and similar was the distance of the house of Aish Behadur (PW-

6)from the place of occurrence. Asmat Ullah (PW-5) during cross- examination admitted as under:-

“ Aesh Bahadur has a chicken shop at Adda Pul Murad which is at a distance of about three squares towards southern, however his son runs the said chicken shop: Aesh Bahadur PW has no business to do. .

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House of Aesh Bahadur is situated at a distance of three squares from the place of occurrence towards east while my house is situated at the same distance towards north. I am beopari of cattle by profession..”

Similarly, Aish Behadur (PW-6) also stated that his house was at a distance of three squares from the place of occurrence . Aish Behadur (PW-6) during cross-examination stated as under:-

“My house is situated at the distance of three squares towards south from place of occurrence” (emphasis supplied)

We have also perused the scaled site plan of the place of occurrence (Exh.PD) as prepared by Muhammad Akram, Patwari (PW-4) and the rough site plan of the place of occurrence (Exh.PN) as prepared by Khalid Rauf, SI (PW-8) and find that neither any place of residence of the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) nor any land owned or cultivated by the prosecution witnesses namely Aish Behadur (PW-6) and Asmat Ullah (PW-5) nor any shop of the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) has been shown in the said site plans (Exh.PD and Exh.PN) .In view of the above mentioned facts, it can be validly held that both the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) were “chance witnesses” and therefore were under a duty to explain and prove their presence at the place of occurrence, at the time of occurrence. Contrary to making an effort to provide the reason for their presence at the place of occurrence , at the time of occurrence , which place was at a distance of as many as three squares from their houses, the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6), in their statements recorded

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by the learned trial court,did not give any reason so as to why they were present there. It is strange to note that in the oral statement (Exh.PC) of Asmat Ullah (PW-5) it was recorded that the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) had come to visit Ghulam Qadir, the cultivator of the crop grown at the place of occurrence , however, during the course of trial, both the witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) did not give this reason for them being present at the place of occurrence and made no statement in this regard before the learned trial court. This denudes the fact that there was no reason for both the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) to have been present at the place of occurrence, at the time of occurrence and therefore, their statements had no evidentiary value. During the course of cross-examination Aish Behadur (PW-6) stated a different reason for him being present at the place of occurrence and got recorded that he had gone to pick the broken stalks of the cotton crops which was being picked up by the women present there. Aish Behadur (PW-6), however admitted during cross-examination that the tool which he had taken with him for cutting the cotton plants stalks was not produced by him before the Investigating Officer of the case. Aish Behadur (PW-6) during cross- examination stated as under:-

“ I went there on foot having toki for cutting cotton sticks. I did not produce said toki to police.”

Both the Investigating Officers of the case namely Muhammad Shabbir, ASI (PW-3) and Khalid Rauf, SI (PW-8) did not take into possession any such Toki which , according to Aish Behadur (PW-6) , was being used by him for

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cutting the cotton crop and neither Aish Behadur (PW-6) produced the same before the Investigating Officers of the case. Both the Investigating Officers of the case namely Muhammad Shabbir, ASI (PW-3) and Khalid Rauf, SI (PW-8) visited the place of occurrence, on the day of occurrence and had Aish Behadur (PW-6) been equipped with any such Toki then the same must have been produced before the Investigating Officers of the case by him or the same would have been taken into possession by the Investigating Officers of the case as a proof of the presence of Aish Behadur (PW-6). More worrying is the fact that according to Asmat Ullah (PW-5), at the time of occurrence, the cotton crop was not even being picked. Asmat Ullah (PW-5) during cross- examination stated as under:-

“ The said cotton crop was not being picked up at the time of occurrence.”

The whole edifice of the prosecution case is brought down by the above statement of Asmat Ullah (PW-5), the complainant of the case, for the reason that it was claimed by Asmat Ullah (PW-5) and Aish Behadur (PW-6) that the deceased had gone to the place of occurrence to pick cotton crop and was picking the cotton crop at the place of occurrence , when the occurrence took place but during cross-examination Asmat Ullah (PW-5) stated that the cotton crop was not even being picked. This statement of Asmat Ullah (PW-5) also lays bare the false claim of Aish Behadur (PW-6) that he had gone to the place of occurrence to cut the cotton crop which had been picked but according to Asmat Ullah (PW-5), it was not even picked at the time of occurrence and therefore Aish Behadur (PW-6) could not be believed to have been cutting the cotton crop which had not even been picked. Furthermore, Ghulam Qadir, the cultivator of the cotton crop grow at the place of the occurrence and the

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person according to the oral statement (Exh.PC) of Asmat Ullah (PW-5) he had gone to meet , did not join the investigation of the case and also did not appear before the learned trial court in support of the prosecution case. Asmat Ullah (PW-5) admitted during cross-examination as under:- “It is correct that either Ghulam Qadir nor Ejaz Ahmed cultivator and owner of the place of occurrence joined investigation nor he made any statement to 10 in support of my version”.

Khalid Rauf, SI (PW-8), the Investigating Officer of the case,during cross- examination stated as under:-

“The statements of said Ejaz and Ghulam Qadir were neither incorporated in case diaries not the same were recorded u/s 161 Cr.P.C. As per version of complainant, Ejaz is owner of place and Ghulam Qadir is land where occurrence took place tenant/cultivator of said land. It is correct that as per Exh-PC on the day of occurrence”

We have also noted that both the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) were not mentioned in column No.4 of the inquest report (Exh.PK) as being the those who had identified the dead body of the deceased at the time of preparation of the inquest report (Exh.PK). All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of “Muhammad Rafiq v. State”(2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any

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detail of the projects they were working on. Reliance is also placed on the case of “Usman alias Kaloo v. State” (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant , Ghulam Farid , and Manzoor Ahmed , who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and he said eye- witnesses were, thus, chance witnesses and not worthy of reliance .Reliance is also placed on the case of “Nasrullah alias Nasro v. The State”(2017 SCMR

724)wherein the august Supreme Court of Pakistan observed as under:- “In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence.”

We have also marked with concern that in the inquest report (Exh.PK) in column No.8 it had been noted that the mouth and eyes of the deceased were semi open, which clearly shows that the dead body was not attended to by the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) , as claimed. The stance set up by the prosecution in the present case is that Asmat Ullah (PW-5) and Aish Behadur (PW-6) were present at the time of the death of the deceased and had remained with the dead body.

The mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PK) , thus, if the witnesses were present then, at least after the death, as is a consistent practice of such close relatives, they would have closed the eyes and mouth of the deceased on her expiry. Thus, the open eyes and mouth of the deceased forces a hostile interpretation against the prosecution's version regarding the presence of the

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witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) at the place of occurrence, at the time of occurrence. This fact by itself indicates that none was present with the deceased till her death. The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs.

The State”(2019 SCMR 1068) has held as under:

“What has further irked this Court is that in column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW-10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However, the stance set up by the prosecution in the present case is that Arshad Ali - the brother, and Nazir Ahmad - the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter. Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence.”

14.Another grave fact of the prosecution case is that both the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) claimed that at the time of occurrence other women were also picking the cotton crop grown at the place of occurrence, however, none of the said women appeared before the learned trial court in support of the prosecution case.

Asmat Ullah (PW-5) during cross-examination stated as under:- “No women appeared before police and joined investigation in order to support our version.

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5/7 women of chak No.117/M including my daughter were also present in killa No.21 and were picking cotton crop at that time, and the said women also did not join Investigation of instant case”

Similarly, Aish Behadur (PW-6) during cross-examination stated as under:- “10/15 cotton picker-women-including deceased Maryam Bibi were picking cotton while standing In said portion of northern side at the time of occurrence.

Women did not get recorded their statements before police. ” As mentioned above, none of those who had seen the occurrence according to the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6), appeared either during the investigation of the case or before the learned trial court in support of the prosecution case. The failure of the prosecution to produce the said women who were present at the place of the occurrence according to Asmat Ullah (PW-5) and Aish Behadur (PW-6), has convinced us that had they been produced before the learned trial court, they would not have supported the prosecution case. Article 129 of the Qanun-e- Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same.

Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:-

“(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

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The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case.

The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State (2010 SCMR 949) wherein it has been observed as under:-

“....further that no independent witness of the locality where the incident took place, a ‘Bazar’ joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt.”

Additionally ,as mentioned above, according to Asmat Ullah (PW-5), the cotton crop was not even being picked at the time of occurrence and this admission alone is sufficient to reject the whole prosecution case which has been built on the claim that the deceased and the women were present in the cotton field and picking cotton when the occurrence took place. Furthermore, we have noticed that the prosecution witnesses remained at variance as to the place where the dead body of the deceased was laying when the Investigating Officers of the case visited the place of occurrence, after the occurrence.

According to Asmat Ullah (PW-5), the witnesses had put the dead body of the deceased on a cot which was available near the place of occurrence. Asmat Ullah (PW-5) during cross-examination stated as under:- “We put the dead body on said cot and the cot was lying at kacha path near the place of occurrence.”

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Muhammad Shabbir, ASI (PW-3), the Investigating Officer of the case, who first reached at the place of occurrence and recorded the oral statement (Exh.PC) of Asmat Ullah (PW-5), stated as under:-

“When I reached at the place of occurrence dead body was lying on the cot, at a distance of about 2 feet from the place where deceased received injuries in field/ place of occurrence.”

Contrary to the above mentioned statements of Asmat Ullah (PW-5) and Muhammad Shabbir, ASI (PW-3) , the Investigating Officer of the case, who first reached at the place of occurrence, Khalid Rauf, SI (PW-8) ,the Investigating Officer of the case who subsequently reached at the place of occurrence and conducted the investigation of the case stated that at the time of occurrence the body of the deceased was laying on the ground. Khalid Rauf, SI (PW-8),the Investigating Officer of the case during cross- examination stated as under:-

“When I visited the place of occurrence dead body was lying on ground in cotton crop. I placed the dead body on cot.” (emphasis supplied) .

In this manner, it is proved that Asmat Ullah (PW-5), the complainant of the case even did not know the place of presence of the dead body of the deceased for the reason that he was not present at the time when the police arrived at the place of occurrence. The prosecution witnesses could not make consistent statements in this respect proving the fact that both the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-

6)had not been present at the place of occurrence, at the time of occurrence.

Furthermore, had the dead body of the deceased been shifted by the

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prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-

6)then their clothes must have been stained with the blood of the deceased, however Khalid Rauf, SI (PW-8) , the Investigating Officer of the case , did not take any such blood-stained clothes of Asmat Ullah (PW-5) and Aish Behadur (PW-6) in possession during the investigation of the case nor the said witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) admittedly produced their clothes either before the Investigating Officer of the case or before the learned trial court . Khalid Rauf, SI (PW-8) , the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Asmat Ullah (PW-5) and Aish Behadur (PW-6) which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the eye witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) . This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of Asmat Ullah (PW-5) and Aish Behadur (PW-6) to have been present at the place of occurrence ,at the time of occurrence. Asmat Ullah (PW-5) and Aish Behadur (PW-6) were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 S C M R 1142) ,the case of Mst. MIR

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ZALAI versus GHAZI KHAN and others (2020 S C M R 319) and the case of NADEEM alias KALA versus The State and others (2018 S C M R 153) .

15.Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-

6)at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police for as many as more than two hours and fifteen minutes. According to the prosecution case, Muhammad Shabbir, ASI (PW-3), the Investigating Officer of the case, got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) had told him about the occurrence. During cross-examination Muhammad Shabbir, ASI (PW-3), the Investigating Officer of the case stated as under:- “No private person including complainant and PWs informed me about the occurrence, however, I received information through Moharrar PS Dahranwala. It consumed about 20 minutes in reaching at the place of occurrence ”

We have also observed with grave concern that none of the witnesses including Asmat Ullah (PW-5) and Aish Behadur (PW-6) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Muhammad Shabbir, ASI (PW-3) , at the place of occurrence on his own.

Asmat Ullah (PW-5) during cross-examination admitted that he made no effort to report the matter to the police and admitted as under:- “My cell number is 0304-8111017. 1 did not made phone call from my cell number to police regarding the occurrence. My said cell number was also not used by any other person to inform police regarding the

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occurrence. I don't know who and when informed the police about the occurrence.

Police reached at place of occurrence at about 1-1/2 hour occurrence.

During this period no one including me took my daughter to hospital.”

(emphasis supplied) .

The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:

“An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot.”

We have also noted that despite the fact that the occurrence had allegedly taken place at about 11.30 a.m, however the oral statement (Exh.PC) of Asmat Ullah (PW-5) was recorded by Muhammad Shabbir, ASI (PW-3), at 1.45 p.m and the formal FIR (Exh.PB) was not registered till 3.00 p.m.

According to the statement of Aish Behadur (PW-6), the police had arrived at the place of occurrence within 30/45 minutes of the occurrence, however it was at 1.45 pm that the oral statement (Exh.PC) of Asmat Ullah (PW-5) was recorded. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one, because, the witnesses never reported the matter to the police for as many as two hours and fifteen minutes .This inordinate delay in reporting the matter conclusively proves that the oral statement (Exh.PC) of Asmat

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Ullah (PW-5) and the formal F.I.R (Exh.PB) were prepared after probe, consultation, planning, investigation and discussion. As many as two hours were taken to invent a false and dishonest narrative of the oral statement (Exh.PC) of Asmat Ullah (PW-5). The scrutiny of the statements of the prosecution witnesses reveals that the oral statement (Exh.PC) of Asmat Ullah (PW-5) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Furthermore, during the cross-examination of Khalid Rauf, SI (PW-8), another fact was brought on record that Asmat Ullah (PW-5) had given the information of the incident to the Police Station Dahranwala only at 2.46 p.m and there is no explanation as to how the oral statement (Exh.PC) was recorded at 1.45 pm.

Khalid Rauf, SI (PW-8) during the cross-examination stated as under:- “As per online complaint Exh-DE complainant Muhammad Asmat Ullah made complaint of occurrence through his cell number 0304- 8111017 on 27-11-2017 at 02:46PM the same was received by Muhammad Arshad Sajid Inspector having cell number 0300-8677622”.

(emphasis supplied).

The above referred portion of the cross-examination and the document (Exh.DE) conclusively prove that the oral statement (Exh.PC) of Asmat Ullah (PW-5) was a fake document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences there absence at the time of occurrence , at the place of occurrence. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021

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SCMR 23) wherein the august Supreme Court of Pakistan observed as under:-

“As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrence at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out.”

Reliance is also placed on the case of MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others (2017 SCMR 199) wherein the august Supreme Court of Pakistan was pleased to hold as under:

“The hospital is closely situated to the Police Station but neither the complainant nor PWs took a little pain to report the matter, nor the staff of the hospital including the treating doctor took initiative.”

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Zafar vs. The State and others (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:-

“It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been

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given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay in lodging the FIR or for that matter the belated postmortem of the deceased.”

Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of “G. M. NIAZ Vs. The State” (2018 SCMR 506), Abdul Jabbar and another Vs. The State (2019 S C M R 129) and Muhammad Shafi alias Kuddoo Vs. The State and others (2019 S C M R

16.We have also noted with anxiety that both the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6), made dishonest improvements to their previous statements recorded by the police during the investigation of the case. A scrutiny of the statements of Asmat Ullah (PW-

5)and Aish Behadur (PW-6) recorded by the learned trial court reveals that Asmat Ullah (PW-5) and Aish Behadur (PW-6) made substantial improvements to their previous statements so as to justify their presence and arrival at the place of occurrence. Asmat Ullah (PW-5) during cross- examination admitted as under:-

“ I got recorded in Exh-PC that "on 27-11-2017 I alongwith Aesh Bahadur and Sana Ullah were present in the field of Ajaz Ahmed which was cultivated by one Ghulam Qadir". Confronted with Exh-PC where the sentence field of Ajaz Ahmed which was cultivated by Ghulam Qadir is not so recorded. I got recorded in Exh-PC that when my daughter Mst. Maryam deceased and other women were picking cotton crop there. Confronted with Exh-PC where the words "other women" are not recorded. I got recorded in Exh-PC that accused Shahsawar came there while armed with pistol 30-bore. Confronted with Exh-PC where the

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word "30-bore is not recorded. I got recorded in Exh-PC that occurrence was witnessed by me and other PWs mentioned above.

Confronted with Exh-PC where it is not so recorded.

I stated before police at the time of recording of my statement Exh-PC that we went there in order to cut sticks and to graze our cattle and after two minutes we were in gossips. Confronted with Exh PC where it is not so recorded. However I stated this fact to police but I don't know whether the same was recorded or not. It is incorrect to suggest that I never give above said statement to police. I did not get recorded above said fact of going to the place of occurrence for grazing, our cattle and cutting sticks and after two minutes the fact about gossiping at the time of my examination in chief.”(emphasis supplied)

Similarly, Aish Behadur (PW-6) during cross-examination confronted as under:-

“I gave same statement to IO which is given by me in this court. I have got recorded in my statement u/s 161 Cr.P.C. that on 27-11 2017 I alongwith Sana Ullah and Asmat Ullah were present in the field of Ejaz Ahmed which was cultivated by one Ghulam Qadir. Confronted with Exh-DB where the sentence "in the field of Ejaz Ahmed which was cultivated by Ghulam Qadir" is not recorded. I had got recorded in Exh-DB that at that time accused Shahsawar while armed with pistol 30-bore came there.

Confronted with Exh-D.B where word "30-bore" is not recorded. I got recorded in Exh-DB that occurrence was witnessed by me and other PWs mentioned above" confronted with Exh-DB where it is not so recorded. I did not get record in Exh-DB that my son in law Shahsawar

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came there. Confronted with Exh-DB where it is so recorded.” (emphasis supplied) .

The above referred portions of cross-examination substantially proves that Asmat Ullah (PW-5) and Aish Behadur (PW-6) made a failing effort to prove that they had arrived at the place of occurrence and witnessed the same. The said improvements made by Asmat Ullah (PW-5) and Aish Behadur (PW-6) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving his previous statement, Asmat Ullah (PW-5) and Aish Behadur (PW-6) impeached their own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: - “151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:

(1)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;

(2)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ;

(3)by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;”

As Asmat Ullah (PW-5) and Aish Behadur (PW-6) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Asmat Ullah (PW-5) and Aish Behadur (PW-6) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of

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“Muhammad Ashraf Vs. State” (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence Asmat Ullah (PW-5) and Aish Behadur (PW-6) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence”.

The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle:

“It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.”

17.We have also noted with disquiet that the postmortem examination of the dead body of the deceased was conducted with much delay.

According to the Post Mortem Examination Report (Exh.PH) , Dr. Sidra Rasool (PW-7) , conducted the post mortem examination of the dead body of the deceased namely Mst. Maryam Bibi at 6.00 p.m. on 27.11.2017.

Furthermore, according to the Post Mortem Examination Report (Exh.PH),

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Dr. Sidra Rasool (PW-7), received the police papers at 5.00 p.m on 27.11.2017 and thereafter conducted the post mortem examination of the dead body of the deceased. Dr. Sidra Rasool (PW-7) gave the time between death and post mortem examination as being within 6 to 12 hours. Dr.

Sidra Rasool (PW-7), also observed the fully developed rigor mortis at the time of conducting the post mortem examination. Before proceeding any further, it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly, the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from “The Principles And Practice Of Medical Jurisprudence” by Alfred Swaine Taylor,MD , is being referred hereunder:-

"In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."

Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology”, observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 ‘POST-MORTEM CHANGES AND TIME SINCE DEATH”, from page 351 to page 352 of

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Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) ,it has been discoursed as under:-:

"Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.

Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.

Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post- mortem delivery may occur owing to contraction of the uterine muscular fibres.

In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However, according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor.

Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.

Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours

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in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination.”

The perusal of the Post Mortem Examination Report (Exh.PH) clearly establishes the fact the post mortem examination of the dead body of the deceased was delayed and the delay was due to the late arrival of the dead body at the hospital and the late submission of police papers. No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

“The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the

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post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time”.

The august Supreme Court of Pakistan in the case of “Mian SOHAIL AHMED and others vs. The State and others” (2019 SCMR 956) has held as under:

“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution”

The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs. The State” (2019 SCMR 1068) has held as under:

“More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.

10.Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.

11.It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has

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to provide justifiable reasons therefor, which in the present case is strikingly wanting.”

18.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol 30-bore (P-

6)made from the appellant and the report of the Punjab Forensic Science Agency, Lahore (Exh.PS). The recovery of the pistol 30-bore (P-6) from the appellant namely Muhammad Shah Sawar cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol 30-bore (P-6) from the appellant namely Muhammad Shah Sawar which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. Therefore the evidence of the recovery of the pistol 30-bore (P-6) from the appellant cannot be used as incriminating evidence against the appellant, being evidence which 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, on the perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PS) regarding the analysis of the Pistol (P-6) recovered from the appellant and the empties collected from the place of occurrence, we have noticed that both the empties (P-5/1-6) recovered from

Crl. Appeal No. 357 of 2018 31

the place of occurrence and the pistol (P-6) were received by Punjab Forensic Science Agency, Lahore on the same day i.e. 22.12.2017.

Muhammad Arshad 850/HC (PW-9) stated that on 27.11.2017 the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained earth and empties taken from the place of occurrence and on 13.12.2017 the Investigating Officer of the case handed over to him one sealed parcel said to contain the recovered pistol which on 21.12.2017 he handed over all the three parcels to the Investigating Officer of the case for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PS) has no evidentiary value as the possibility of fabricating matching empties is apparent. The august Supreme Court of Pakistan has held in the case of Nasrullah alias Nasro v. The State (2017 SCMR 724) as under :-

“The alleged recovery of a pistol from the appellant's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day.”

The august Supreme Court of Pakistan has held in the case of Nasrullah alias Ali Sher v. The State (2008 SCMR 707) as under :-

“The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony.”

Moreover, the appellant namely Muhammad Shah Sawar was arrested on 11.12.2017, the pistol 30-bore (P-6) was recovered from the appellant

Crl. Appeal No. 357 of 2018 32

namely Muhammad Shah Sawar on 13.12.2017 , however the empties taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency, Lahore on 21.12.2017 and there was no reason for keeping the empties which were taken into possession of 27.11.2017 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till 21.12.2017, till after the arrest of the appellant and the recovery of the pistol 30-bore (P-6). In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PS) has no evidentiary value as possibility of fabrication is apparent. Reliance is placed on the case of Muhammad Amin Vs. The State and another (2019 S C M R 2057) wherein the august Supreme Court of Pakistan has held as under:- “Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential.”

Therefore, the recovery of the pistol 30-bore (P-6) from the appellant namely Muhammad Shah Sawar does not further the case of prosecution in any manner. In view of the above mentioned facts, the recovery of the pistol 30-bore (P-6) from the appellant namely Muhammad Shah Sawar is not proved and the same cannot be used as a circumstance against the appellant.

19.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Asmat Ullah (PW-5) and Aish Behadur (PW-6) was that the deceased had filed suits seeking dissolution

Crl. Appeal No. 357 of 2018 33

of marriage from the appellant and recovery of dowry articles. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. We have noticed that no documentary evidence was brought on record by the prosecution to prove that Mst. Maryam Bibi (deceased) had also filed suits seeking dissolution of marriage from the appellant and recovery of dowry articles. It has not been brought on record that as to when the said suits had been filed by Sajida Bibi (deceased) and as to whether they were pending at the time of occurrence or had been dismissed. Asmat Ullah (PW-5) during cross-examination admitted as under:-

“We did not produce copy of suit for dissolution of marriage and dowry articles etc. to IO during whole investigation.”

Furthermore, during the course of investigation the Investigating Officer of the case did not collect any evidence so as to establish that there was any grievance developing in the heart of the appellant as against the deceased which motivated him to act in the manner in which he did . 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 namely Mst. Maryam Bibi. There is a haunting silence with regard to the minutiae of 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:

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“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.”

Moreover, it is an admitted rule of appreciation of evidence that motive is only corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction.

20.The only other piece of evidence left to be considered by us is the medical evidence with regard to the number of injuries observed by Dr.Sidra Rasool (PW-7) and the weapon used to cause them 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.”

21.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Shah Sawar son of Sabir Ali (appellant) in the present case. It is 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

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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), Muqarab Khanv.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 Muqarab Khan Vs. the State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:

“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

22.For what has been discussed above, the Criminal Appeal No. 357 of 2018 lodged by the appellant namely Muhammad Shah Sawar son of Sabir Ali is allowed. The conviction and sentence of Muhammad Shah Sawar son of Sabir Ali (appellant) awarded by the learned trial court through the impugned judgment dated 28.04.2018 are hereby set-aside. Muhammad Shah Sawar son of Sabir Ali (appellant) is ordered to be acquitted by extending him the benefit of doubt. Muhammad Shah Sawar son of Sabir Ali

Crl. Appeal No. 357 of 2018 36

(appellant) is in custody and he is directed to be released forthwith if not required in any other case.

23.Consequently, the Murder Reference No. 20 of 2018 is answered in Negative and the sentence of death awarded to Muhammad Shah Sawar son of Sabir Ali is Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

JUDGE JUDGE