The State vs Abdul Rahman

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.10 of 2019 (The State Vs. Abdul Rehman)

Criminal Appeal No. 353-J of 2019 (Abdul Rehman Vs. The State.)

JUDGMENT

Date of hearing: 16.11.2021.

Appellant by: Ms. Tania Bazai, Advocate (learned defence counsel appointed on State expense).

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

SADIQ MAHMUD KHURRAM, J.– Abdul Rehman son of

Ahmad Din (convict) was tried by the learned Additional Sessions Judge, Rahim Yar Khan in the case FIR No. 344 of 2018 dated 17.11.2018 registered at Police Station Saddar Rahim Yar Khan , District Rahim Yar Khan in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Mst Naseem Bibi daughter of Qadir Bakhsh (deceased).

The learned trial court vide judgment dated 27.05.2019, convicted Abdul Rehman son of Ahmad Din (convict) and sentenced him as infra:

Abdul Rehman son of Ahmad Din:

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst Naseem Bibi daughter of Qadir Bakhsh (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the 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, Abdul Rehman son of Ahmad Din (convict) lodged Criminal Appeal No.353-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.10 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Abdul Rehman son of Ahmad Din. We intend to dispose of the Criminal Appeal No. 353-J of 2019 and Murder Reference No.10 of 2019 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Abdul Majeed (PW-8), the complainant of the case are as under:- “Stated that my sister Mst. Naseem Bibi deceased aged about 40/41 years was married with Abdul Rahman accused present in the court. Out of the wedlock five daughters and two sons born. Abdul Rahman accused oftenly used to quarrel with my sister Mst. Naseem Bibi. On 16.11.2018 at evening time, Abdul Rahman accused also abused my sister, due to that, after Isha prayer time, after taking meal, I alongwith Mukhtiar Ahmad my brother and Hameed Ashraf nephew PWs went to the house of Abdul Rahman. We asked the Abdul Rahman accused present in the court not to torture our sister Mst. Naseem Bibi and till night we remained busy in talking with each other. Thereafter, I alongwith Mukhtiar Ahmad and Hameed Ashraf slept in the house of Abdul Rahman in "Chapra" like room. Abdul Rahman also slept in the room with wife and children. At about 12:30 (mid night), my sister Naseem Bibi raised hue and cry, whereupon, I alongwith 'Mukhtiar Ahmad and Hameed Ashraf PWs

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attracted to the spot/room and saw Abdul Rahman accused was inflicting repeatedly hatchet blows on the body of my sister Naseem Bibi. We tried to rescue my sister whereas Abdul Rahman extended threats to us for dire consequences and succeeded to flee away from spot alongwith hatchet. I alongwith witnesses attended Naseem Bibi, who succumbed to the injuries at the spot. Accused Abdul Rahman by inflicting right and blunt side of hatchet blows committed the murder of my sister Mst. Naseem Bibi. After receiving the information, police reached there, I got recorded my statement Ex-P-D, which bears my thumb impression.”

4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Abdul Rehman son of Ahmad Din was sent to face trial. The learned trial court framed the charge against the accused on 19.03.2019, 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 ten witnesses recorded. The ocular account of the case was furnished by Abdul Majeed (PW-8) and Hameed Ashraf (PW-9). Ijaz Ahmad 193/C (PW-1) stated that on 21.11.2018 Ghulam Awais 1228/C handed over to him five photographs (P-1 to P-5) of the dead body of the deceased.

Ghulam Muhammad 124/C (PW-2) stated that on 17.11.2018 he 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. Shaukat Ali, ASI (PW-3) stated that on 17.11.2018 he went to the place of occurrence and recorded the oral statement (Exh.PD) of Abdul Majeed (PW-8). Faryad Ali Patwari (PW-4) stated that

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he prepared the scaled site plan of the place of occurrence (Exh.PE).

Muhammad Umar (PW-5) stated that on 21.11.2018 he developed the photographs (P-1 to P-5) . Zeeshan Akram 1863/HC (PW-6) stated that on 17.11.2018 Ghulam Abbas, SI (PW-10) handed over to him the articles taken by him into possession from the place of occurrence and on 30.11.2018, Ghulam Abbas, SI (PW-10) handed over to him a sealed parcel said to contain a hatchet and on 13.12.2018, he handed over the sealed parcels said to contain the blood stained earth , vaginal swabs of the deceased and the hatchet to Ghulam Abbas, SI (PW-10) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Ghulam Abbas, SI (PW-10) investigated the case from 17.11.2018 till 21.03.2019, arrested the appellant on 27.11.2018, 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. Maryam Mumtaz (PW-7) examined, who on 17.11.2018 was posted as Woman Medical Officer at Sheikh Zayed Hospital, Rahim Yar Khan and on the same day conducted the postmortem examination of the dead body of Mst Naseem Bibi daughter of Qadir Bakhsh (deceased). Dr. Maryam Mumtaz (PW-7),on examining the dead body of Mst Naseem Bibi daughter of Qadir Bakhsh (deceased) observed as under:-

“Description of injuries:

Injury No. 1. A lacerated wound measuring 2.5 X 1.5 cm approaching to the skull bone situated on the right lateral side of forehead 2cm above the lateral side of right eyebrow. Injury No.2. There is blackish coloured bruise in right orbit extending 3 cm below to right cheek.

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Injury No.3. An incised wound of 4X0.3cm situated on the interior surface of chin more toward left side, horizontally lying, 3cm below left angle of mouth.

Injury No.4. A lacerated wound measuring 3.5X1.5cm situated on right temporal part of head, 6cm above the pinna of right ear. On deep dissection, Skull bone was fractured and haematoma of 3X4cm intracranial cavity.

Injury No.5. A lacerated wound of 6X3cm situated in the middle of occipital part of skull extending to right occipital region, 7 cm below and posterior to injury No.4.

On deep dissection. Skull bone is fractured and a massive heamatoma is present in intracranial cavity.

Injury No.6 Spindle shape lacerated wound of 7X3cm situated on posterior surface of head in occipital region slightly towards left side, 10cm posterior to pinna of left ear. On deep dissection. Skull bone is fractured and a massive heamatoma is present in intracranial cavity.

Injury No.7. A lacerated wound measuring 3X1cm situated on top of head, slightly towards posterior region, 2cm above injury No.6..

Opinion.

After conducting thorough autopsy, I was of the opinion that in this case, cause of death is injury No.4,5 and 6 which fractured the skull bone, damaged brain matter, are sufficient cause of death in normal course of life, Injuries were caused by blunt weapon except Injury No:3 which is caused by sharp edge weapon. I issued the Postmortem examination report Ex P-F. which is in my hand and bears my signatures and seals. Diagram is Ex P-F/1. 1 also endorsed the inquest report Ex.P- C/1 and injury statement Ex P-C. Probable time that lapsed between injury and death within half an hour. Between death and postmortem less than 10 hours.”

7.On 16.4.2018 the learned Assistant District Public Prosecutor gave up the prosecution witness namely Ghous Bakhsh 1849-C as being unnecessary. On 11.05.2018 the learned Assistant District Public Prosecutor gave up the prosecution witness namely Mukhtiar Ahmed as being unnecessary. On 14.05.2018, the learned Deputy District Public

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Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh.PK and Exh.PM).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Abdul Rehman son of Ahmad Din under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Abdul Rehman son of Ahmad Din 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, Rahim Yar Khan convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable.

Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the hatchet (P-11) was full of procedural defects, of no legal worth and value, and result of fake proceedings. The learned counsel for the appellant also

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argued that the appellant had been involved in the occurrence due to enmity. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.

11.On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Abdul Majeed (PW-8) and Hameed Ashraf (PW-9). The learned Deputy Prosecutor General further argued that the recovery of the hatchet (P-11) from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case.

Lastly, they prayed for the rejection of the appeal.

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

13.The whole prosecution case revolves around the statements of Abdul Majeed (PW-8) and Hameed Ashraf (PW-9), the eye witnesses of the occurrence. The relationship of both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) with the deceased is

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on record. Mst Naseem Bibi (deceased) was the real sister of Abdul Majeed (PW-8) and the real maternal aunt of Hameed Ashraf (PW-9).

Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were admittedly not the residents of the place of occurrence. According to both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) they had their own separate houses in the same village. Abdul Majeed (PW-8) during cross-examination stated as under:-

“Distance between my house and house of Abdul Rehman is six acres.

The houses of Hameed Ashraf and Mukhtar PWs are situated adjacent to my house. ”

It is an admitted fact that both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were not the residents of anywhere near the place of occurrence rather they were residing in their own houses which were at a distance of about six acres from the place of occurrence. We have also perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Faryad Ali Patwari (PW-4) and the rough site plan of the place of occurrence (Exh.PJ) as prepared by Ghulam Abbas, SI (PW-10) , the Investigating Officer of the case , and find that neither the houses nor any place of work nor any land of the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) have been shown in the said site plans (Exh.PE and Exh.PJ). In this manner, both the prosecution witnesses namely Abdul Majeed (PW-

8)and Hameed Ashraf (PW-9) can be validly termed as “chance

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witnesses” and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence , at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. In order to prove their presence at the place of occurrence, at the time of occurrence, the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) claimed that the appellant had abused Mst. Naseem Bibi (deceased) and therefore the witnesses had proceeded to the house of the appellant to resolve the dispute between the spouses. What we have noticed and what has raised our concern is the fact that both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) made contradictory statements as to the reason for them to proceed to the place of occurrence. According to Abdul Majeed (PW-8) , Mst. Naseem Bibi (deceased) had told him that the appellant had a fight with her sometime in the morning and thereafter Abdul Majeed (PW-8) continued performing his work, however, later in the evening told the other witnesses of the said fact whereas according to the statement of Hameed Ashraf (PW-9) , the altercation between the appellant and Mst.

Naseem Bibi (deceased) had taken place in the evening. Abdul Majeed (PW-8) during cross-examination stated as under:- “I am street vendor and was present in the Basti near to the house of my sister on 16.11.2018 by that time and she told me about the quarrel and I asked her to go to home as I would come there in evening. On 16.11.2018 I remained busy in selling the grocery items at day time. I have separate house living alongwith my wife. The houses of Hameed Ashraf and Mukhtiar PWs are situated adjacent to my house. On their

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arrival at their houses, I told them about the quarrel of my sister and Abdul Rahman and thereafter, we after taking meal at Isha prayer time, went to the house of Abdul Rahman accused.” (emphasis supplied) The above referred portion of the cross-examination of Abdul Majeed (PW-8) clearly reflects that Mst. Naseem Bibi (deceased) had a meeting with Abdul Majeed (PW-8) in the morning and Abdul Majeed (PW-8) told her that he would come to her house in the evening. Contrary to this statement of Abdul Majeed (PW-8) , the other prosecution witness namely Hameed Ashraf (PW-9) stated in his statement before the learned trial court that Mst. Naseem Bibi (deceased) had an altercation with the appellant in the evening on 16.11.2018. Hameed Ashraf (PW-9) in his statement before the learned trial court stated as under:- “Stated that on 16.11.2018 at evening time, Abdul Rahman accused abused Mst. Naseem Bibi, due to that, after Isha prayer time, after taking meal, I alongwith Mukhtiar Ahmad and Abdul Majeed went to the house of Abdul Rahman. ” (emphasis supplied)

We have also noticed that not only both the prosecution witnesses remained inconsistent as to the time when Mst. Naseem Bibi (deceased) was abused by the appellant but also remained inconsistent as to the source through which they came to know about the said altercation between Mst. Naseem Bibi (deceased) and the appellant. According to Abdul Majeed (PW-8) he was told of the altercation by Mst. Naseem Bibi (deceased) in the morning whereas the other prosecution witness namely Hameed Ashraf (PW-9) did not mention anything regarding his source of the knowledge of the altercation between Mst. Naseem Bibi (deceased)

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and the appellant. Both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) remained unable to give consistent evidence for the reason which necessitated their proceeding to the place of occurrence and remained a purpose unproved, entailing failure of the prosecution witnesses to prove their reasons for their departure to the place of occurrence. We have also noted that despite the fact that both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were married and had their own houses, situated just at a distance of about nine acres from the place of occurrence, but still, instead of returning to their own houses, preferred to sleep at the place of occurrence, without there being any reason for them to do so. Abdul Majeed (PW-8) during cross-examination stated as under:- “I have separate house living along with my wife

Hameed and Mukhtiar PWs are married person”

Not only both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) failed to explain their reasons for sleeping at the place of occurrence but also admitted that it was not a usual practice of theirs. More importantly both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) admitted that prior to the occurrence they had never ever slept in the house of the appellant ever before. Abdul Majeed (PW-8) during cross-examination stated as under:- “I never went to sleep in the house of Abdul Rahman accused prior to

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Similarly, Hameed Ashraf (PW-9) also admitted during cross-examination as under:-

“I never used to sleep in the house of my aunt prior to the occurrence. ” We have also noted with concern that both the prosecution witnesses admitted that at the time of their arrival at the house of the appellant , there was no altercation between Mst. Naseem Bibi (deceased) and the appellant and both the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) also admitted that the dispute between the spouses had been resolved prior to the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) proceeding to sleep at the place of occurrence. When the dispute between the spouses had been resolved and when both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were married men with their own families residing with them in their houses situated near to the place of occurrence and when both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) had never ever slept inside the matrimonial house of Mst. Naseem Bibi (deceased) ever before,then their claim that on 16.11.2018 they found it necessary to sleep at the place of occurrence cannot be believed. Furthermore, according to the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) they had slept at the place of occurrence , however the Investigating Officer of the case did not observe or took into possession any beddings or any cots from the place of occurrence which were used by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) to sleep on.

Ghulam Abbas, SI (PW-10), the Investigating Officer of the case, visited

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the place of occurrence , after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Ghulam Abbas, SI (PW-10) , the Investigating Officer of the case, did not take into possession the beddings or any cots from the place of occurrence which were used by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) alongwith the other recoveries though there was no occasion for the said beddings or the cots, which were allegedly used by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) to sleep at the place of occurrence , not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer or not being observed as present during his visit at the place of occurrence, if the same were available. The non-availability of any beddings or cots at the place of occurrence used by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) and the failure of the complainant of the case as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such beddings or cots were available at the place of occurrence which could have been used by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) for sleeping on. We have also perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Faryad Ali Patwari (PW-4) and the rough site plan of the place of occurrence (Exh.PJ) as prepared by Ghulam Abbas, SI (PW-10), the Investigating Officer of the case , and find that no cots used by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) to sleep at the place of occurrence have been shown in the

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said site plans (Exh.PE and Exh.PJ). Furthermore, during cross- examination Faryad Ali, Patwari (PW-4) admitted that even the names of the prosecution witnesses were not mentioned in the scaled site plan of the place of occurrence (Exh.PE). In this manner, both the eye witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) failed miserably to establish the reason for their presence and their presence at the place of occurrence, at the time of occurrence .The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) had proceeded to , arrived and were sleeping at the place of the occurrence and the failure to prove the said facts has vitiated our trust in Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) .

In this respect, reliance is placed on the case of “Muhammad Rafiq v.

State” (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the 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 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 witnesses in the said case who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, chance witnesses and declared not worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017

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SCMR 724) .All these omissions as detailed above 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 believed.

14.We have also observed that according to the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9), the occurrence took place only when they had arrived at the place of occurrence and were sleeping there. This narrative of the witnesses that the accused , despite observant of the fact that the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) , for the first time in their lives, were sleeping inside the house where the occurrence took place, still committed the same, is atypical and cannot be believed. It is opposed to human conduct that an assailant would , despite having the knowledge of the presence of the witnesses , proceed with the commission of the offence. It is all the more illogical that being perceptive of the chance and rare presence of the witnesses , the accused ran the risk of committing the offence in their presence. Such behavior, on part of the accused, as deposed by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) runs counter to natural human conduct and behavior. Hence, being perceptive of this strain of human conduct, we are holding that Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence.

15.Another aspect of the case noted by us with some gravity is the fact that both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) admitted that the occurrence had taken place

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inside a room at around 12.30 a.m, still none of the witnesses stated in their statements before the learned trial court that any source of light was present and lit at the place of occurrence, at the time of occurrence, which allowed the witnesses to observe the occurrence. Both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) made no effort to state that they had any source of light with them or that any source of light was available at the place of occurrence in the light of which they had seen the occurrence. The learned Deputy Prosecutor General has rightly pointed out that Ghulam Abbas, SI (PW-10), the Investigating Officer of the case, did take an electric bulb (P-10) into the possession from the place of occurrence, however, as mentioned above, both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) did not state in their statements before the learned trial court that any electric bulb was available at the place of occurrence or that the said electric bulb was lit at the time of occurrence or that they had seen the occurrence in the light of the said electric bulb. We have also noted that in the scaled site plan of the place of occurrence (Exh.PE) as prepared by Faryad Ali Patwari (PW-4), the availability of any electric bulb inside the room where the occurrence took place has not been mentioned by Faryad Ali, Patwari (PW-4) himself. In absence of any claim by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) that an electric bulb was lit at the place of occurrence, we cannot presume the same. As the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) failed to give any evidence that any electric bulb was lit at the place of occurrence and as both the prosecution witnesses namely Abdul Majeed (PW-8) and

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Hameed Ashraf (PW-9) did not claim to have possessed any ability to see in the dark, therefore their statements carry no worth.

16.We have noted with grave concern that the ocular account of the occurrence as furnished by the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) is flawed beyond mending and has disfigured the complexion of the whole prosecution case beyond repair and recognition. The statements of both the eye witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) are in direct contrast and contradictory to the observations and the opinion of Dr. Maryam Mumtaz (PW-7) , who conducted the post mortem examination of the dead body of the deceased namely Mst. Naseem Bibi. According to both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9), the appellant had used a hatchet to inflict the injuries on the person of Mst. Naseem Bibi (deceased). A hatchet obviously is a sharp edged weapon, however also has a blunt side. Both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were questioned as to whether the appellant had used the sharp side of the hatchet to cause the injuries or its blunt side and both the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) replied that the appellant had used both the sides of the hatchet to cause the injuries. Abdul Majeed (PW-8) during cross-examination stated as under:-

“After hearing hue and cry we attracted to the spot and saw the accused Abdul Rehman inflicting hatchet blows with right and blunt side on the body of Mst. Naseem Bibi.”(emphasis supplied)

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Similarly, Hameed Ashraf (PW-9) during cross-examination stated as under:-

“The accused Abdul Rahman inflicted hatchet blows with right side as well as blunt side.”

Contrary to the above referred statements of the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9), Dr. Maryam Mumtaz (PW-

7)observed only a single sharp edged weapon injury out of the seven injuries observed by her on the dead body of Mst. Naseem Bibi (deceased). Dr. Maryam Mumtaz (PW-7) in her statement stated as under:-

“Injuries were caused by blunt weapon except Injury No.3 which is caused by sharp edge weapon.

I observed only one cut mark on the chin of the deceased and there was no cut or wound on the neck and throat.”

The prosecution witnesses very well knew that the observations and opinion of Dr. Maryam Mumtaz (PW-7) 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.

Maryam Mumtaz (PW-7) 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,an irreconcilable and harrowing

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contradiction has cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) and the medical evidence as furnished by Dr.

Maryam Mumtaz (PW-7). The contradiction in the ocular account of the occurrence, as narrated by Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) and the medical evidence as furnished by Dr. Maryam Mumtaz (PW-7), clearly establishes that the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) miserably failed to prove their presence at the place of occurrence ,at the time of occurrence . The contradiction in the ocular account of the occurrence, as narrated by Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) and the medical evidence as furnished by Dr. Maryam Mumtaz (PW-7), sounded the death knell for the prosecution case and proved to be the cause of its sad demise. Had the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) seen the occurrence then there did not exist any possibility that they would fallen into error.

17.We have also spotted that the alleged eye witnesses namely Abdul Majeed (PW-8), Hameed Ashraf (PW-9) and Mukhtiar Ahmad (given up PW) , made no effort either to save the deceased or to apprehend the appellant when they were three in number and could have easily restrained the accused, who at the time of occurrence was alone and not even using the sharp side of the hatchet allegedly carried by him. It is unnatural and unbelievable that the alleged eye witnesses namely Abdul Majeed (PW-8), Hameed Ashraf (PW-9) and Mukhtiar Ahmad (given up PW) did not even move a limb to protect their near and dear one. We have

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perused the postmortem examination report of the deceased and the unfortunate deceased had received as many as seven injuries on her body.

During the receiving of the said injuries, nobody helped her. We have observed that despite the claimed presence of Abdul Majeed (PW-8), Hameed Ashraf (PW-9) and Mukhtiar Ahmad (given up PW), no effort was made to save the life of the deceased namely Mst. Naseem Bibi. It is all the more bizarre that none of the above mentioned prosecution witnesses actually interfered in order to save the life of the victim when according to them they had arrived at the place of occurrence, prior to the occurrence. As per the statement of Dr. Maryam Mumtaz (PW-7), the deceased had received seven injuries and that during this episode of causing the said injuries some time must have been consumed however, Abdul Majeed (PW-8) , Hameed Ashraf (PW-9) and Mukhtiar Ahmad (given up PW), remained silent spectators and did not react at all or showed any response when the incident was taking place. Abdul Majeed (PW-8) during cross-examination stated as under:-

“We had not hurled brick or any other thing towards accused Abdul Rahman, in order to save Mst. Naseem Bibi from him.”

No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailant. It is strange that when the witnesses had the desire to apprehend the accused after the occurrence and were not fearful of the assailant at that time, then why they could not stop him from committing the occurrence. The allowance

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of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Abdul Majeed (PW-8), Hameed Ashraf (PW-9) and Mukhtiar Ahmad (given up PW) had been present at the place of occurrence, 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 behavior, on part of the witnesses, runs counter to natural human conduct and behavior. Article 129 of the Qanun-e-Shahadat, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the witnesses, as deposed by them, was opposed to common course of natural events, human conduct and that the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were not present at the time of occurrence at the crime scene. We hence are holding that these witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were not present at the place of occurrence, at the time of occurrence and their presence was procured subsequently. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances.

Reliance is placed on the case of “Zulifqar Ali v. The State” (2021 S C M R 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

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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 page176 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:

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“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.”

18.Another aspect of the case raising our doubt over the presence of the prosecution witness namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) 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 and a half hours and made no effort to take the deceased to any hospital during the said time period. According to the prosecution case, Shaukat Ali, ASI (PW-3), got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Abdul Majeed (PW-8), Hameed Ashraf (PW-9) and Mukhtiar Ahmad (given up PW) had told him about the occurrence. Abdul Majeed (PW-8) during cross-examination admitted as under:- “We had not informed police at rescue service 15, witness volunteered that at 02:15 am Lumberdar of the area came there, we informed him about the occurrence and he Lumberdar informed the police.

Police reached the spot at 3.00 A.M” (emphasis supplied) .

Hameed Ashraf (PW-9) during cross-examination stated as under:- “We had not informed the police at 15 about the occurrence, witness volunteered that Lumberdar of the area informed the police about the occurrence at about 02:30 AM . It is correct that aforesaid Lumberdar of the area has not been cited as witnesses of this case.”

Moreover, the oral statement (Exh.PD) of Abdul Majeed (PW-8) was recorded by Shaukat Ali, ASI (PW-3) at the place of occurrence after his

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arrival there at 03.00 a.m. 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 12.30 a.m, however the oral statement (Exh.PD) of Abdul Majeed (PW-8) was recorded by Shaukat Ali, ASI (PW-3) at 3.00 a.m and the formal FIR (Exh.PD/1) was not registered till 3.30 a.m. 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 and a half hours. This inordinate delay in reporting the matter conclusively proves that the oral statement (Exh.PD) of Abdul Majeed (PW-8) and the formal F.I.R (Exh.PD/1) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival. As many as two and half hours were taken to invent a false and dishonest narrative of the oral statement (Exh.PD) of Abdul Majeed (PW-8). The scrutiny of the statements of the prosecution witnesses reveals that the oral statement

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(Exh.PD) of Abdul Majeed (PW-8) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences their absence at the time of occurrence , at the place of occurrence. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:- “As per contents of 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:

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“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 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 1045).

19.It is also an admitted fact of the prosecution case that the place of occurrence was occupied by the other family members of the Mst.

Naseem Bibi (deceased) . Abdul Majeed (PW-8) in his statement before

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the learned trial court stated that Mst. Naseem Bibi (deceased) was blessed with the birth of children and the said children had gone to sleep in the same room where the occurrence took place. In his statement before the learned trial court Abdul Majeed (PW-8) stated as under:- “Abdul Rahman also slept in the room with wife and children.

The age of elder daughter of Abdul Rahman accused is 17 years and is married. She was not living in the house of Abdul Rahman on the day of occurrence, however, the daughter aged about 12-years was living in the house and was present on the day of occurrence at the spot.

The age of one son is 6/7 years and second one is aged about one year.

It is correct that no person from the locality, or the daughter of Naseem Bibi or her son had been cited as witness of this case.

The daughter of accused Abdul Rahman aged about 12-years also raised hue and cry and called us as 'mamo' 'mamo ut the time of occurrence.”(emphasis supplied)

Similarly, Hameed Ashraf (PW-9) in his statement before the learned trial court stated as under:-

“Abdul Rahman also slept in the room with wife and children.

Abdul Rahman has five daughters and two sons. Three daughters are married and others children were living with Abdul Rahman. The

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one daughter of Abdul Rahman is married in the Basti where Abdul Rahman accused reside” (emphasis supplied)

Neither during the course of investigation nor before the learned trial court, the statements of the said children of Mst. Naseem Bibi (deceased), who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence, were recorded. This failure of Ghulam Abbas, SI (PW-10), the Investigating Officer of the case , to include in investigation the inhabitants of the house where the occurrence had taken place and the failure of the prosecution to produce the said inhabitants of the place of occurrence , reflects poorly upon the veracity of the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration

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

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

The failure of the prosecution to produce the residents of the place of occurrence and the most natural witnesses ,before the learned trial court , has convinced us that had they been produced before the learned trial court they would not have supported the prosecution case. Reliance in this matter is placed on the case of SHAMSHAD versus THE STATE (1998 SCMR 854 also cited as 1999 SCMR 2844) wherein the august Supreme Court of Pakistan held as under:-

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“10. The prosecution has also failed to offer a plausible explanation as to why the children of the appellant, who were, admittedly, present in the house at the time of the incident, were not produced as witnesses in the case. In fact, the children of the appellant were the most natural witnesses of the occurrence, However, the Investigating Officer thought it fit not to examine them as witnesses. When confronted with this situation at the time of his cross-examination he explained that two daughters and the son of the appellant were less than? years of age. However, in the same breath it was admitted by him that Ruhi Bano was about 8 or 9 years of age. The other children were a few years younger. However, at least the older children under normal circumstances could have given evidence in the Court. The explanation given by the Investigating Officer, therefore, was not tenable.

13.Learned State Counsel has however, argued that in case the prosecution had failed to examine any of the appellant's children as a witness, they should have been examined as defence witnesses. It has been further argued that if there are two versions, one given by the prosecution and the other by the defence, then if the latter is not believed, the prosecution version must be believed as true. In our view, both the contentions are untenable. Burden to prove its case beyond a reasonable doubt squarely rests on the prosecution. Such burden cannot be discharged by weaknesses found in the case of the defence. The mere fact that the defence version is not believed by the Court cannot lend credence to the prosecution case if, otherwise, the prosecution has failed to discharge its burden. For the reason enumerated above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the appellant.”(emphasis supplied)

Reliance is also placed on the case of Lal Khan versus THE STATE (1996 SCMR1846) wherein the august Supreme Court of Pakistan held as under:- “The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non- production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such

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eventuality the prosecution must not be in a position to avoid the consequence.”

Reliance is also placed on the case of USMAN alias KALOO versus THE STATE (2017 SCMR 622) wherein the august Supreme Court of Pakistan held as under:-

“A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother, wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the investigating officer nor were they produced before the trial court”.

Reliance is also placed on the cases of Muhammad Irshad Vs. Allah Ditta and others (2017 SCMR 142) and G. M. NIAZ Vs. The State” (2018 SCMR 506). In this manner, the prosecution case suffers from inherent defects which are irreconcilable as it is.

20.We have also noted with disquiet that despite the fact that the occurrence took place at 12.30 a.m on 17.11.2018, the postmortem examination on the person of the deceased was conducted after much delay. According to Dr. Maryam Mumtaz (PW-7), she conducted the post mortem examination of the dead body of the deceased namely Mst.

Naseem Bibi (deceased) at 08.30 a.m on 17.11.2018 i.e. after 08 hours of the occurrence and after 05 hours of the registration of the formal F.I.R (Exh.PD/1). Dr. Maryam Mumtaz (PW-7), who conducted the post mortem examination of the dead body of Mst Naseem Bibi daughter of Qadir Bakhsh (deceased) and prepared the post mortem examination report (Exh. PF), gave the time between death and post mortem

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examination as being ten hours. According to Dr. Maryam Mumtaz (PW-

7)she received the police documents at 07.00 a.m. Abdul Majeed (PW-8) during cross-examination stated that the police had reached at the place of occurrence at 03.00 a.m. Abdul Majeed (PW-8) during cross-examination stated as under:-

“ Police reached the spot at 03.00 a.m

The dead body of Naseem Bibi was escorted to the hospital for autopsy at about 03:30 AM.”

In this manner, 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 or having seen the appellant escaping from the place of occurrence while armed were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

“The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time”.

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

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

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

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

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

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

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21.It has been argued by the learned Deputy Prosecutor General that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts the presence of some eye-witnesses and such claim of the prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a person had taken place in his house, therefore, it must be he and none else who would have committed that murder. The learned Deputy Prosecutor General submits that it was in the knowledge of the appellant how the deceased died so it was the appellant who was responsible, in absence of any explanation.

The law on the burden of proof, as provided in Article 117 of the Qanun-e-Shahadat, 1984, mandates the prosecution to prove, and that too, beyond any doubt, the guilt of the accused for the commission of the crime for which he is charged. The said provision provides:

“117. Burden of proof:- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

On a conceptual plain, Article 117 of the Qanun-e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise.

Accordingly, the burden is placed on the prosecution to prove beyond

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doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanun-e-Shahadat, 1984, to produce evidence of facts, which are especially in his exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction.

Article 122 reads as under:

“122. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him.”

It has to be kept in mind that Article 122 of the Qanun-e-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun-e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of “Rehmat alias Rahman alias Waryam alias Badshah v. The State” (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanun-e-Shahadat, 1984, it held as under:

“Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the

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guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."

The ratio decidendi of the above decision was further developed by in the case of “NASRULLAH alias NASRO Versus The STATE (2017 S C M R

724), wherein, it held as under:

“It has been argued by the learned counsel for the complainant that in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the circumstances of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye- witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder.

In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased.”

In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanun-e-Shahadat, 1984 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional

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cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are " especially " within the knowledge of the accused and which he could prove without difficulty or inconvenience. If the article was to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. The article 122 of the Qanun-e-Shahadat, 1984 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts. Throughout the web of the Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the accused's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the accused is the law and no attempt to whittle it down can be entertained. As discussed above, the witnesses namely Abdul Majeed (PW-8) and Hameed Ashraf (PW-9) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be the one of the residents of the place of occurrence. An accused person cannot be convicted merely because he did not explain the circumstances in which the deceased had lost his life. The august Supreme Court of Pakistan has held in the case of “MUHAMMAD JAMSHAID and another vs. The State and others” (2016 SCMR 1019 ) as under:

“only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the

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appellant and, hence, it was concluded by the courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the courts below to be nothing but speculative”.

The august Supreme Court of Pakistan has held in the case of “Arshad Khan vs. The State” (2017 SCMR 564 ) as under:

“It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all.”

The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628 ) as under:

“It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710).”

The august Supreme Court of Pakistan has held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681 ) as under:

“It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however, been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or

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some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement.”

The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941 ) as under:

“The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed.”

22.Regarding the recovery of the hatchet (P-11) from the appellant namely Abdul Rehman son of Ahmad Din, 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 said Hatchet (P-11) from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore 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.”

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We have also noticed that the Hatchet (P-11) was shown to have been recovered from the land of one Mian Muhammad Iqbal, however, Ghulam Abbas, SI (PW-10),the Investigating Officer of the case , during the investigation of the case did not join into investigation the said person from whose land the Hatchet (P-11) was recovered. Hameed Ashraf (PW-

9)during cross-examination stated as under:-

“The accused led to the recovery of hatchet on 30.11.2018 from the vacant plot of one Mian Muhammad Iqbal Veha. Mian Muhammad Iqbal aforesaid was not summoned by the Investigator at the time of recovery proceedings.”

Ghulam Abbas, SI (PW-10),the Investigating Officer of the case ,during cross-examination admitted as under:-

“I had not recorded the statement of Mian Muhammad Iqbal Veha from whose vacant plot, accused got recovered the hatchet.

On the alleged day of recovery proceeding, i.e. hatchet, owner of Ahata, Mian Muhammad Iqbal was not summoned.”

We have also noticed that according to Ghulam Abbas, SI (PW-10), the Investigating Officer of the case , he arrested the appellant on 27.11.2018 and thereafter the appellant led to the recovery of the Hatchet (P-11) on 30.11.2018, however according to Hameed Ashraf (PW-9) , also a witness of the recovery of the Hatchet (P-11), the appellant was arrested by the police on the night of occurrence , prior to its arrival at the place of occurrence. Hameed Ashraf (PW-9) during cross-examination stated as under:-

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“ It is correct that Abdur Rahman was apprehended same night (night of occurrence) by the police on the way to the spot. The accused Abdul Rahman was not brought at the spot, rather he was taken away to the police station.” (emphasis supplied).

In this manner, it is proved that the appellant was kept in illegal custody by the police and his arrest was shown subsequently. Another aspect regarding the recovery of the Hatchet (P-11) from the appellant is that the occurrence took place on 17.11.2018, whereas the Hatchet (P-11) was sent to the office of Punjab Forensic Science Agency, Lahore, on 14.12.2018 and was analyzed on 31.12.2018. During such a long period the blood available on the Hatchet (P-11), if any, would have disintegrated. It is not possible to believe that the blood available on the Hatchet (P-11) 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.”

Therefore, the recovery of the Hatchet (P-11) from the appellant does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the Hatchet (P-11) is not proved and the same cannot be used as a circumstance against the appellant. Even

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otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery of the Hatchet (P-11) would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.

23.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 Abdul Majeed (PW-8) was that the appellant had abused Mst. Naseem Bibi (deceased) and was refusing to give her maintenance allowance. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. Abdul Majeed (PW-8) admitted during cross-examination that Mst. Naseem Bibi (deceased) had been married with the appellant for so many years and she also had not filed any suit against the appellant seeking maintenance allowance. Abdul Majeed (PW-8) also admitted that the appellant had got married his daughter and has also paid for the expenses. Abdul Majeed (PW-8) also admitted that there was no evidence that any quarrel had taken place on the day of occurrence between the spouses. Abdul Majeed (PW-8) during cross-examination admitted as under:-

“My sister Naseem Bibi was married with accused for about 40/41 years prior to present occurrence. The dispute between the spouses was not giving the maintenance allowance by the accused to Mst.

Naseem Bibi, my sister. My sister Naseem Bibi had not filed the suit for recovery of maintenance allowance before any learned Family

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Court. On 16.11.2018 only Abdul Rahman quarreled with my sister Mst. Naseem Bibi. There is no witness of quarrel allegedly took place between Mst. Nascem Bibi deceased and Abdul Rahman accused on 16.11.2018.” (emphasis supplied).

Similarly, Hameed Ashraf (PW-9) during cross-examination admitted as under:-

“When we reached in the house of Abdul Rahman there was no quarrel between Abdul Rahman and his wife Mst. Naseem Bibi deceased.

Abdul Rahman accused himself had incurred the expenses on the marriages of his three daughters and was also bearing house expenditures.”

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 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:

“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.”

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It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.

24.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Abdul Rehman son of Ahmad Din, 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 Muhammad Akram 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

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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.”

25.For what has been discussed above Criminal Appeal No.353-J of 2019 lodged by Abdul Rehman son of Ahmad Din (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 27.05.2019 are hereby set-aside. Abdul Rehman son of Ahmad Din (appellant) is ordered to be acquitted by extending him the benefit of doubt. Abdul Rehman son of Ahmad Din (appellant) is in custody and is directed to be released forthwith if not required in any other case.

26.Murder Reference No.10 of 2019 is answered in Negative and the death sentence awarded to Abdul Rehman son of Ahmad Din is Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

JUDGE JUDGE