The State vs Noman Liaqat

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.24 of 2019 (The State Vs. Noman Liaqat)

Criminal Appeal No. 463-J of 2019 (Noman Liaqat Vs. The State.)

JUDGMENT

Date of hearing: 07.02.2022.

Appellant by: Syed Zeeshan Haider, Advocate.

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Mian Muhammad Qasim, Advocate.

SADIQ MAHMUD KHURRAM, J.–Noman Liaqat son of

Liaqat Ali (convict) was tried alongwith Mst.Kaneez Akhtar and Abdul Rehman, the co-accused of the convict, both since acquitted, by the learned Additional Sessions Judge/Model Criminal Trial Court, Khanpur in the case FIR No. 163 of 2019 dated 13.02.2019 registered at Police Station City Khanpur, District Rahim Yar Khan in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Shahida Parveen alias Shama daughter of Muhammad Shoukat (deceased). The learned trial court vide judgment dated 30.08.2019, convicted Noman Liaqat son of Liaqat Ali (convict) and sentenced him as infra:

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Noman Liaqat son of Liaqat Ali:

Death under section 302(b) PPC as Tazir for committing Qatl-i- Amd of Shahida Parveen alias Shama daughter of Muhammad Shoukat (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.

Mst.Kaneez Akhtar and Abdul Rehman, the co-accused of the convict, were however both acquitted by the learned trial court.

2.Feeling aggrieved, Noman Liaqat son of Liaqat Ali (convict) lodged Criminal Appeal No.463-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.24 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Noman Liaqat son of Liaqat Ali. We intend to dispose of the Criminal Appeal No.463-J of 2019 and Murder Reference No.24 of 2019 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Mst. Sughran Bibi (PW-7), the complainant of the case, are as under:- “States that I am resident of District Sheikhupura and household lady. My real daughter Mst. Shahida Parveen contracted marriage with accused Noman Liaqat about 12/13-years before and out of this wedlock two sons namely Shahzeb aged 11 years and Abdul Ahad aged 09-years were born who are alive. On 12.02.2019 at about 07:00 PM, I came to the house of my daughter three days before, on the day of occurrence, I went to Bazar for shopping. At about 07:00 PM of the said day when I came back to home, my sons Shafqat and Shakil were present in the street. After hearing hue

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and cry of my daughter Shahida Parveen, I alongwith my sons Shafqat and Shakil rushed towards the house (Chobara) of my daughter through stairs, where we saw that accused persons namely Noman Liaqat armed with pricker, accused Abdul Rehman armed with Churri and they were inflicting stabbing injuries blow after blow with their respective weapons. Accused Mst. Kaneez Bibi was instigating the above named accused persons to kill Shahida Parveen. We tried to rescue my daughter. Meanwhile, my daughter became unconscious. We took my daughter at THQ hospital, Kanpur where my daughter Shahida Parveen succumbed to the injuries. Motive behind this was due to domestic dispute with in-laws of my daughter and they committed murder of my daughter Mst. Shahida Parveen on the instigation of Mst. Kaneez Bibi. Before two months of this occurrence, my daughter was made a butt of violence and thereafter she came to me at Sheikhupura and she disclosed me that they wanted to kill her. Thereafter, I submitted written application Ex.PK to police station City, Khanpur in THQ hospital Khanpur for lodging of formal FIR. I also recorded my statement on 13.02.2019 regarding the weapon of offence of accused Noman Liaqat that at the time of occurrence accused Noman Liaqat was armed pricker. After recording my statement, I.O obtained my thumb impression on my statement Ex. PM. accused persons presnt (sic) in the court are my real culprit and they committed murder of my daughter Shahida Parveen alias Shama. After the conducting of post mortem, I received the dead body of my daughter Shahida Parveen alias Shama.”

4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 10.06.2019, 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 eight witnesses recorded. The ocular account of the case was furnished by Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8). Muhammad Hassan 1776/C (PW-2) stated that on 14.02.2019, the appellant led to the recovery

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of blood stained pricker (Suwa) (P-1), Shalwar (P-2) and Qameez (P-3).

Saba Shaour 2451/LC (PW-3) stated that on 13.02.2019 she escorted the dead body of the deceased to the hospital for post mortem examination and also received the last worn clothes of the deceased from the Woman Medical Officer. Ahmad Raza, SI (PW-6) stated that on 13.02.2019 he recorded the formal F.I.R (Exh.PJ). Ghulam Shabbir, SI (PW-5) investigated the case on 13.02.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Amjad Hussain, SI (PW-4) investigated the case from 13.02.2019 till 05.03.2019, arrested the appellant on 14.02.2019, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Aneela Fazal (PW-1) examined, who on 13.02.2019 was posted as Woman Medical Officer at THQ hospital Khanpur and on the same day conducted the postmortem examination of the dead body of Shahida Parveen alias Shamma Parveen daughter of Muhammad Shoukat (deceased). Dr. Aneela Fazal (PW-1), on examining the dead body of Shahida Parveen alias Shamma Parveen daughter of Muhammad Shoukat (deceased) observed as under:-

“DESCRIPTION OF INJURY:

1.A lacerated wound of 0.2 x 0.2cm x bone expense on front of forehead right side.

2.A lacerated wound of 1cm x 0.3cm muscle deep in the right temple.

3.A lacerated wound of 2cm x 1cm x 2.5cm (deep) on the right side of neck. 04cm above clavicle (right coratid cut).

4.A lacerated wound of 1cm x 0.3cm on left side of abdomen lumber.

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5.A lacerated wound of 0.5cm x 0.2cm right side of abdomen.

6.Three lacerated wounds on back two on right side 1.5cm x 0.5cm, 0.5cm x 0.3cm and one in center of back 0.5cm x 0.5cm.

OPINION

After receiving report from PFSA, Lahore i.e, Histopathological examination Ex.PA, no ante mortem injury was seen, the lung section reveals vascular congestion and presence of oedematous fluid inside alveoli, the myocardial sections were unremarkable. The adjacent tissue with hyoid bone reveals blood haemorrhages suggesting ante mortem nature of injury at the level of neck. Forensic Toxicology Analysis Report Ex. PB, drugs/poison was not detected in liver and stomach contents in item No.1. Keeping in view the above said reports of PFSA, I was the opinion that deceased Shahida Parveen alias Shamma Parveen was died due to cardiopulmonary arrest which was due to injury No.3 carotid artery cut which caused the massive blood loss. All the injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature. Expected duration between death and post mortem (about 24-hours) and duration between injury and death (01-hour) probable time that elapsed one hour. I issued PMR No.5AF/2019 as Ex. PC with pictorial diagram prepared and signed by me. I also endorsed inquest report Ex. PC/1 and injury statement Ex. PC/2.”

7.On 03.07.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Shoukat Ali 1213/C as being unnecessary. On 05.07.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Arif and Muhammad Khalil as being unnecessary. On 29.08.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Shakeel Shoukat as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PN).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Noman Liaqat son of Liaqat Ali under section 342 Cr.P.C. and in answer to the question why this case against you

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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 Noman Liaqat son of Liaqat Ali opted not to get himself examined under section 340(2) Cr.P.C. however produced the Call Data Record of the mobile phone devices under the use of Mst. Sughran Bibi (PW-7), Shafqat Ali (PW-8) and Shakeel Shoukat (Mark-A, Mark -B and Mark-C) and admission slip (Mark-D) as evidence in his defence.

9.At the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court, Khanpur 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 Suwa (P-1) was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.

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11.On the other hand, the learned Deputy District Public Prosecutor along with the learned counsel appearing on behalf of the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8). They further argued that the recovery of the Suwa (P-1) from the appellant namely Noman Liaqat son of Liaqat Ali also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellant namely Noman Liaqat son of Liaqat Ali.

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

13.The most vital aspect of the case is the fact that despite the assertion of the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) that they had witnessed the occurrence on 12.02.2019 at 7.00 p.m., the matter was reported to the police on 13.02.2019 at 7.35 a.m., when the prosecution witness Mst. Sughran Bibi (PW-7) submitted her written application (Exh.PK) for the registration of the F.I.R at the THQ

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hospital Khanpur to Ghulam Shabbir, SI (PW-5). In this manner, the delay in reporting the matter to the police was of more than 12 hours, for which delay no reason, much less plausible, was offered. The prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) candidly admitted that Mst. Sughran Bibi (PW-7) submitted the written application (Exh.PK) for the registration of the F.I.R only on 13.02.2019 and that too in the morning. Mst. Sughran Bibi (PW-7) during cross- examination stated as under:-

“ On next morning, I submitted complaint Ex.PK at about 6.00 AM at THQ hospital Khanpur to police.”

Similarly, the prosecution witness namely Shafqat Ali (PW-8) during cross- examination also admitted as under:-

“ My mother submitted complaint Ex.PK to police on 13.02.2019 at about 06:00 AM at THQ, hospital Khanpur. On 13.02.2019 police official reached at THQ Hospital, Khanpur at about 6.00 P.M. Inter-se distance between Rehman Colony and P.S City is about 1-KM” The above referred portions of the cross-examination of the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) puts the case of the prosecution in further doubt as not only both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) admitted that Mst. Sughran Bibi (PW-7) submitted the written application (Exh.PK) to the police on 13.02.2019 in the morning but also admitted that the distance between the place of occurrence and the Police Station was only 1 kilometre and still took the prosecution witnesses namely Mst.

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Sughran Bibi (PW-7) and Shafqat Ali (PW-8) 12 hours to report the matter to the police. No justification, much less credible, has been given by the prosecution at any stage for such deferral in submitting the written application (Exh. PK) of Mst. Sughran Bibi (PW-7) to the police.The reason for this inordinate delay in reporting the matter to the police by the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) is obvious, being that both the prosecution witnesses namely Mst.

Sughran Bibi (PW-7) and Shafqat Ali (PW-8) were not present at the place of occurrence, at the time of occurrence and the delay was used to procure their attendance. Both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) were closely related to the deceased namely Shahida Parveen alias Shamma Parveen. The deceased namely Shahida Parveen alias Shamma Parveen was the real daughter of Mst.

Sughran Bibi (PW-7) and the real sister of Shafqat Ali (PW-8). It was also admitted by both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) that they were residents of the city of Sheikhupura, which city was at a distance of about 600-800 kilometres from the place of occurrence. The prosecution witness namely Mst.

Sughran Bibi (PW-7) during cross-examination admitted as under:- “ Inter-se distance between Khanpur and Sheikhupura is about 800 KM.

Inter-se distance between Rehman Colony and Police Station City is about 1-KM. My sons namely Shafqat and Shakeel are residing with me at Sheikhupura.”

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Similarly, Shafqat Ali (PW-8) during cross-examination admitted as under:-

“I alongwith my wife, my brother Shakeel and my mother are living in same house situated at Sheikhupura. Oftenly, I, my brother went outside alongwith our mother. Sheikhupura District is away about 600-KM from Tehsil Khanpur. It is correct that it took about 11/12 hours to reach at Khanpur from Sheikhupura. ” (emphasis supplied) .

The above reply of the prosecution witness namely Shafqat Ali (PW-8) that it took them 11 to 12 hours to reach the place of occurrence from the residence of the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) is of utmost importance for the reason that it was also the time that lapsed between the occurrence taking place on 12.02.2019 at 7.00 p.m. and submitting of the written application (Exh.PK) of Mst.

Sughran Bibi (PW-7) to Ghulam Shabbir, SI (PW-5) on 13.02.2019 at 7.35 p.m. This fact itself proves that both the prosecution witnesses namely Mst.

Sughran Bibi (PW-7) and Shafqat Ali (PW-8) made a false claim that they were present at the place of occurrence, at the time of occurrence. In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because, the witnesses never reported the matter to the police for as many as twelve hours. This inordinate delay in reporting the matter conclusively proves that the written application (Exh.PK) of Mst. Sughran Bibi (PW-7) and the formal F.I.R (Exh.PJ) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) were not present

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at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival. As many as twelve hours were taken to invent a false and dishonest narrative of the written application (Exh.PK) of Mst.

Sughran Bibi (PW-7). The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PK) of Mst. Sughran Bibi (PW-7) 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.”

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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 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

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Muhammad Shafi alias Kuddoo Vs. The State and others (2019 S C M R

14.We have also noted that it was also the claim of the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) that immediately after the occurrence they had taken the deceased to the hospital. Mst. Sughran Bibi (PW-7) during cross-examination stated as under:-

“ My sons at once took the dead body to the hospital” Similarly, Shafqat Ali (PW-8) during cross-examination claimed as under:- “ On the day of occurrence, we took our sister to THQ Hospital, Khanpur at about 7:07 PM. At that time, I alongwith my brother, my mother and other people of vicinity were accompanied us.”(emphasis supplied) .

The claim of both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) that they had taken the deceased to the hospital immediately after the occurrence on 12.02.2019 at about 7.00 p.m.

was contradicted by all the other prosecution witnesses. Dr. Aneela Fazal (PW-1) stated that the dead body of the deceased was brought to the THQ hospital Khanpur on 13.02.2019 at 9.00 a.m.. Dr. Aneela during cross- examination stated as under:-

“According dead body of the deceased received to me at mortuary on 13.02.2019 at 9:00 AM i.e after 13 hours of death of the deceased. ”

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Similarly, Saba Shaour 2451/LC (PW-3) also stated that she was handed over the dead body of the deceased by the Investigating Officer of the case on 13.02.2019 at 7.30 a.m. Ghulam Shabbir, SI (PW-5), the first police officer who arrived at the THQ hospital Khanpur after receiving the information of the occurrence, also stated that he prepared the injury statement (Exh.PC/2) and the inquest report (Exh.PC/1) on 13.02.2019 after he had arrived at the THQ hospital. This fact also proves that both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) were not present at the time of occurrence, at the place of occurrence and made a false claim in this respect. We have been vexed by the statement of Dr. Aneela Fazal (PW-1),who stated that the deceased remained alive for about an hour after receiving the injuries still both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8), both closely related to the deceased ,did not take her to any hospital. Dr. Aneela Fazal (PW-1) during cross-examination stated as under:-

“ According to my record, deceased Shahida Parveen alias Shama remained alive for one hour.”

It has been proved on record that the prosecution witnesses namely Mst.

Sughran Bibi (PW-7) and Shafqat Ali (PW-8) made no effort to take the deceased to the hospital and it convincingly establishes that the said witnesses were not present. The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:

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“The Medico-legal Certificate issued in respect of Manzoor Ahmed deceased when he was alive shows that the injured victim was brought to the hospital not by the above mentioned eye-witnesses but by a police official which showed that in all likelihood the said eye-witnesses had been procured and planted in this case at some subsequent stage.”

The august Supreme Court of Pakistan in the case of “Zaheer Sadiq v.

Muhammad Ijaz and others” (2017 SCMR 2007) has observed as under:

“The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police.”

Reliance is also placed on the case of Muhammad Sharifan Bibi vs.

Muhammad Yasin and others ( 2012 SCMR 82) wherein the august Supreme Court of Pakistan held as under:-

“Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for postmortem examination.”

15.We have also marked with concern that despite the fact that the F.I.R was registered with such delay still in the inquest report (Exh.PC/1) in column No.8 it had been noted that both the mouth and the eyes of the deceased were open at the time of preparation of the same, which clearly shows that the dead body was not attended to by the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) , as claimed.

Dr. Aneela Fazal (PW-1), who had conducted the post mortem examination of the dead body of the deceased on 13.02.2019 at 2.00 p.m. also observed

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that the eyes and mouth of the dead body were open. Dr. Aneela Fazal (PW- 1), in her statement before the learned trial court, stated as under:- “After receiving dead body at 09:00 AM, I conducted postmortem at 2.00 PM on 13.02.2019, on receiving police documents at 01:45 PM on the same day (13.02.2019). My observations were as under:

EXTERNAL EXAMINATION:

A dead body of female lying supine on mortuary table wearing last worn clothes as mentioned in police papers. Eyes opened, mouth opened, According to my record, the eyes and mouth of deceased were opened (sic)”(emphasis supplied)

Similarly, Ghulam Shabbir, SI (PW-5) admitted during cross-examination as under:-

“It is correct that according to my inquest report , in column No.8, the eyes and mouth of deceased Shahida Parveen alias Shama was opened.(sic)”

The stance set up by the prosecution in the present case is that Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) 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.PC/1), 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

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eyes and mouth of the deceased force a hostile interpretation against the prosecution's version regarding the presence of the witnesses namely Mst.

Sughran Bibi (PW-7) and Shafqat Ali (PW-8) 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.”

We have also noted that both the prosecution witnesses namely Shafqat Ali (PW-8) and Mst. Sughran Bibi (PW-7) were neither mentioned in column No.4 nor at page 4 of the inquest report (Exh.PC/1) as being the witnesses who were present near the dead body at the time of preparation of the inquest report (Exh.PC/1). This fact also evidences the absence of the prosecution witnesses namely Shafqat Ali (PW-8) and Mst. Sughran Bibi (PW-7) at the place of occurrence, at the time of occurrence.

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16.We have noted with concern that it was not mentioned in the written application (Exh.PK) of Mst. Sughran Bibi (PW-7) that Shafqat Ali (PW-

8)had accompanied her to the house of the deceased from the city of Sherkhupura, when Mst. Sughran Bibi (PW-7) had arrived there three days before the occurrence . Furthermore,Mst. Sughran Bibi (PW-7) also made a dishonest improvement in her previous statement with regard to Shafqat Ali (PW-8) and went on to claim that when she went inside the house where the occurrence took place, she was accompanied by Shafqat Ali (PW-8), though it was not so mentioned in the written application (Exh.PK) of Mst.

Sughran Bibi (PW-7). Mst. Sughran Bibi (PW-7) was duly confronted and the learned trial court observed as under:-

“In my examination in chief I got recorded that on hearing the hue and cry of my daughter I and my two sons Shafqat and Shakeel together went to the place of occurrence and the same is recorded in my statement Ex.PK. Confronted with Ex.PK wherein it is not so recorded that I alongwith PWs Shafqat and Shakeel went to Chubara to the house of my daughter after hearing hue and cry.”

As Mst. Sughran Bibi (PW-7) introduced dishonest, blatant and substantial improvements to her previous statements and was duly confronted with her former statement, hence her credit stands impeached and Mst. Sughran Bibi (PW-7) 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 cases of “Muhammad Ashraf Vs. State” (2012 SCMR 419) Muhammad Mansha Vs. The State” (2018 SCMR 772) “ Muhammad Arif Vs. The State” (2019 SCMR 631) and “Amin Ali and another Vs. The

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State” (2011 SCMR 323) took serious notice of the improvements introduced by witnesses and rejected their evidence. Furthermore, as mentioned above, according to the prosecution witnesses namely Mst.

Sughran Bibi (PW-7) and Shafqat Ali (PW-8) they had arrived at the house of the deceased three days prior to the occurrence, however, the Investigating Officer of the case did not observe or took into possession any cot or chairs or any other articles which were used by the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) during their stay at the house where the occurrence took place. Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, visited 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, Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, did not take into possession the cots or any other articles which were used by the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) during their stay at the house where the occurrence took place alongwith the other recoveries. Amjad Hussain, SI (PW-4) did not even show the room in the rough site plan of the place of occurrence (Exh.PF) prepared by him where the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) had been staying for three days prior to the occurrence. Both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8), can be validly termed as “chance 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

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producing some physical proof of the same however their utter failure to prove the said facts has vitiated our trust in Shafqat Ali (PW-8) and Mst.

Sughran Bibi (PW-7) . In this respect, reliance is placed on the cases of “Muhammad Rafiq v. State” (2014 SCMR 1698) ,“Usman alias Kaloo v.

State” (2017 SCMR 622) and “Nasrullah alias Nasro v. The State” (2017

SCMR 724) .

17.We have also observed that the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) claimed that they had arrived at the house where the occurrence took place three days prior to the occurrence and the occurrence took place only when they were present.

This narrative of the prosecution witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence and thereafter committed the same is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence. It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and them deposing against the accused, even then the assailant kept waiting for their arrival. Such behaviour, on part of the accused, as deposed by the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human conduct, we are holding that Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence. In this regard

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reliance is placed on the case of “STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others” ( 2019 S C M R 1154) wherein the august Supreme Court of Pakistan held as under:-

“Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case.”

Reliance is also placed on the case of Muhammad Imran Vs. The State ( 2020 S C M R 857) wherein the august Supreme Court of Pakistan held as under:-

“These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself.”

18.We have also noted with disquiet that despite the fact that the occurrence took place at about 07.00 p.m. on 12.02.2018, the postmortem examination of the dead body of the deceased was conducted after much delay. According to Dr. Aneela Fazal (PW-1), she conducted the post mortem examination of the dead body of the deceased on 13.02.2019 at 2.00 p.m. i.e after as many as nineteen hours after the death of Shahida Parveen alias Shamma Parveen . Dr. Aneela Fazal (PW-1), in her statement before the learned trial court stated as under:-

“After receiving dead body at 09:00 AM, I conducted postmortem at 2.00 PM on 13.02.2019, on receiving police documents at 01:45 PM on the same day (13.02.2019)”.

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Dr. Aneela Fazal (PW-1), who conducted the post mortem examination of the dead body of Shahida Parveen alias Shamma Parveen daughter of Muhammad Shoukat (deceased) and prepared the post mortem examination report (Exh. PC), gave the time between death and post mortem examination as being within 24 hours. Additionally, as mentioned above, Dr. Aneela Fazal (PW-1) stated that she started the post mortem examination at 2.00 p.m. only after she had received the police documents at 1.45 p.m. The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Shahida Parveen alias Shamma Parveen is that by that time the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion a false narrative of the occurrence. 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 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 dishonest account, after consultation and planing. 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:

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

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

“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution” The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs. The State” (2019 SCMR 1068) has held as under:

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

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

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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.”

19.It is also an admitted fact of the prosecution case that the place of occurrence was occupied by the other family members of Shahida Parveen alias Shamma Parveen (deceased). Both the prosecution witnesses namely Shafqat Ali (PW-8) and Mst. Sughran Bibi (PW-7) in their statements before the learned trial court stated that Shahida Parveen alias Shamma Parveen (deceased) was blessed with the birth of children and the said children were present in the same house where the occurrence took place.

Furthermore, both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) also claimed that the occurrence had been witnessed by many other people. In her statement before the learned trial court, Mst. Sughran Bibi (PW-7) stated as under:-

“My real daughter Mst. Shahida Parveen contracted marriage with accused Noman Liaqat about 12/13-years before and out of this wedlock two sons namely Shahzeb aged 11 years and Abdul Ahad aged 09-years were born who are alive..

The other people i.e 5/6 persons of vicinity also seen the occurrence.” (emphasis supplied)

Shafqat Ali (PW-8) in his statement before the learned trial court stated as under:-

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“My real sister Mst. Shahida Parveen contracted marriage with accused Noman Liaqat about 12/13-years before and out of this wedlock two sons namely Shahzeb aged 11 years and Abdul Ahad aged 09-years were born who are alive .

Except (sic) us many other people of vicinity witnessed the occurrence.”(emphasis supplied)

Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, also admitted during cross-examination as under:-

“It is correct that two sons of deceased namely Muhammad Shahzaib Hassan aged 12 years and Abdul Ahad aged 9 years used to reside in the house of deceased joined the investigation i.e place of occurrence.

Neither I joined the said sons of the deceased in my investigation nor recorded their any statement.”

Neither during the course of investigation nor before the learned trial court, the statements of the children of Shahida Parveen alias Shamma Parveen (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 Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, to include in the investigation the inhabitants of the house where the occurrence had taken place and the failure of the prosecution to produce the said inhabitants of the place of occurrence before the learned trial court, reflects poorly upon the veracity of the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the

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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:-

“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

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reasonable doubt squarely rests on the prosecution. Such burden cannot be discharged by weaknesses found in the case of the defence. The mere fact that the defence version is not believed by the Court cannot lend credence to the prosecution case if, otherwise, the prosecution has failed to discharge its burden. For the reason enumerated above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the appellant.”(emphasis supplied) Reliance is also placed on the case of Lal Khan versus THE STATE (1996 SCMR1846) wherein the august Supreme Court of Pakistan held as under:- “The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non- production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness- box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence.”

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

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

Reliance is also placed on the cases of Muhammad Irshad Vs. Allah Ditta and others (2017 SCMR 142) and G. M. NIAZ Vs. The State” (2018 SCMR

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506). In this manner, the prosecution case suffers from inherent defects which are irreconcilable as it is.

20.We have already mentioned that along with the appellant his co- accused namely Mst.Kaneez Akhtar and Abdul Rehman (both since acquitted) were also tried. The learned trial court acquitted the above mentioned Mst.Kaneez Akhtar and Abdul Rehman, the co-accused of the appellant. We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co-accused of the appellant, who have stated that the acquittal of Mst.Kaneez Akhtar and Abdul Rehman (both since acquitted) had attained finality as the acquittal of Mst. Kaneez Akhtar and Abdul Rehman (both since acquitted) by the learned trial court was not assailed either by the State by any aggrieved person. The question for determination before this Court now is whether the evidence of the prosecution witnesses which has been disbelieved qua the acquitted co- accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of the same offence, is now a settled proposition. The august Supreme Court of Pakistan has held that partial truth cannot be allowed and perjury is a serious crime.

This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a

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lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No.

238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: -

“The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.

Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids.

21.We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of

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justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury.”

Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8), the eyewitnesses of the occurrence. Mst. Sughran Bibi (PW-7) in her statement recorded by the learned trial court stated as under:- “we saw that accused persons namely Noman Liaqat armed with pricker, accused Abdul Rehman armed with Churri and they were inflicting stabbing injuries blow after blow with their respective weapons.” (emphasis supplied) .

Similarly, Shafqat Ali (PW-8) in his examination in-chief stated as under:- “we saw that accused persons namely Noman Liaqat armed with pricker, accused Abdul Rehman armed with Churri and they were inflicting stabbing injuries blow after blow with their respective weapons. (emphasis supplied) .

Both the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) attributed causing of injuries to the deceased by Abdul Rehman (since acquitted), however, both the witnesses namely Mst.

Sughran Bibi (PW-7) and Shafqat Ali (PW-8) were found to have made

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false statements with regard to Abdul Rehman (since acquitted), the co- accused of the appellant. We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appellant from the case of the acquitted co-accused namely Abdul Rehman as the prosecution evidence with regard to the appellant and with regard to his co-accused, namely Abdul Rehman (since acquitted) is similar. We find no reason to believe the statements of the witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) with regard to the appellant in absence of any reason for us to do so. This lying on part of the witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) with regard to Abdul Rehman (since acquitted), the co-accused of the appellant, has vitiated our trust in them. We are thus satisfied that the evidence of Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) has no worth and deserves outright rejection. Reliance in this regard is placed on the case of “Tariq Vs. The State” (2017 S C M R 1672) wherein the august Supreme Court of Pakistan has held as under:- “So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant.”

Reliance in this regard is also placed on the case of MUNIR AHMED and others Vs. the State and others (2019 S C M R 2006) wherein the august Supreme Court of Pakistan has held as under: -

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“Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity, it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the deceased and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitioners and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case.”

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Reliance is also placed on the case of SAFDAR ABBAS and others Versus The STATE and others (2020 S C M R 219) wherein the august Supreme Court of Pakistan has held as under: -

“Petitioners' father, namely, Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-accused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co- accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case.”

21.It has been argued by the learned Deputy Prosecutor General and the learned counsel for the complainant that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred.

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

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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 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

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impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under:

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

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

“Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."

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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 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

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accused to prove that he did not commit the murder because who could know better than he whether he did or did not. Article 122 of the Qanun-e- Shahadat, 1984 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts. Throughout the web of the Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the accused's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the accused is the law and no attempt to whittle it down can be entertained. As discussed above, the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) 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 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 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:

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

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

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

SCMR 710).”

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

“It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however, been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement.”

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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.The learned Deputy Prosecutor General and the learned counsel for the complainant, have also relied upon the recoveries of the Suwa (P-1) , Shalwar (P2) and Qameez (P-3) made from the appellant and have submitted that they offered sufficient corroboration of the ocular account of the occurrence as funished by Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) . The recoveries of the Suwa (P-1), Shalwar (P2) and Qameez (P-

3)from the appellant namely Noman Liaqat cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recoveries of the Suwa (P-1), Shalwar (P2) and Qameez (P-3) from the appellant namely Muhammad Naeem which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. The provisions of this section, unfortunately are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:-

"103.--(1) Before making a search. under this chapter, the

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officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

Therefore the evidence of the recoveries of the Suwa (P-1), Shalwar (P2) and Qameez (P-3) 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, according to Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, the Suwa (P-1), Shalwar (P2) and Qameez (P-3) were got recovered by the appellant from the same house where the occurrence had taken place. It is admitted part of the prosecution case that after the occurrence, on 13.02.2019 Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, visited the place of occurrence and remained there for a substantial period of time and in that scenario, had the Suwa (P-1), Shalwar (P2) and Qameez (P-3) been present at the place of occurrence, then their presence must have been noted by Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, however it was not. It cannot be believed that the Suwa (P-1), Shalwar (P2) and Qameez (P-3) were got recovered on 14.02.2019 from the same place which Amjad Hussain, SI

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(PW-4) , the Investigating Officer of the case, had visited on 13.02.2019 and had also conducted an extensive investigation at the said place. Another aspect of the case is that according to the written application (Exh.PK) of Mst. Sughran Bibi (PW-7) , the appellant namely Noman Liaqat was allegedly armed with a Churri, however, it was Abdul Rehman (since acquitted) , the co-accused of the appellant, who was alleged to had been armed with a Suwa and for using the same to cause the injuries to Shahida Parveen alias Shamma Parveen (deceased) during the occurrence. Amjad Hussain, SI (PW-4) , the Investigating Officer of the case, during cross- examination admitted as under:-

“ It is correct according to FIR, accused Noman Liaquat has that been shown while armed with Churri whereas accused Abdul Rehman has been shown while armed with Pricker.” (emphasis supplied) .

We have also noted that the recovered Suwa (P-1), Shalwar (P2) and Qameez (P-3) were sent to the Punjab Forensic Science Agency, Lahore for DNA analysis and according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PN) the DNA profiles obtained from the Suwa (P-1), Shalwar (P2) and Qameez (P-3) did not match the DNA profile of Noman Liaqat. The report of the Punjab Forensic Science Agency, Lahore (Exh.PN) supports the claim of the appellant that he was innocent for the reason that had the appellant handled or worn any of the recovered Suwa (P-1), Shalwar (P2) and Qameez (P-3) then his DNA profile must had been obtained from the items. The absence of any DNA profile of the appellant on any of the items sent to the Punjab Forensic Science Agency, Lahore for DNA analysis creates further doubt in the prosecution case. Therefore, the

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recoveries of the Suwa (P-1), Shalwar (P2) and Qameez (P-3) from the appellant namely Noman Liaqat are not proved,do not further the case of the prosecution in any manner and the same cannot be considered as a circumstance against the appellant. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of the recoveries of the Suwa (P-1), Shalwar (P2) and Qameez (P-3) 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.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 Mst. Sughran Bibi (PW-7) in the written application (Exh. PK) was that the relationship of the appellant and the deceased had remained strained through their marital life and the appellant used to beat the deceased. We have perused the statements of the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) and find that they failed to prove the motive of the occurrence as stated by them. Though it was claimed by the prosecution witnesses namely Mst. Sughran Bibi (PW-7) and Shafqat Ali (PW-8) that the appellant used to beat Shahida Parveen alias Shamma Parveen (deceased), however, it was admitted that the said matter was never reported to the police or anyone else ever. Shafqat Ali (PW-8) during cross-examination admitted as under:-

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“ Inlaws (sic) of my deceased sister torturing her for about 12/13 years but we did not get her medically examined from any hospital regarding said torture.”

Moreover, it had been stated by the prosecution witnesses namely Mst.

Sughran Bibi (PW-7) and Shafqat Ali (PW-8) that Shahida Parveen alias Shamma Parveen (deceased) was tortured by her in-laws, however, Mst.

Kaneez Akhtar, the mother-in-law of Shahida Parveen alias Shamma Parveen (deceased) and Abdul Rehman, the brother-in-law of Shahida Parveen alias Shamma Parveen (deceased) were both acquitted by the learned trial court and their acquittal was not assailed. When the prosecution failed to prove the motive as against Mst. Kaneez Akhtar and Abdul Rehman, both since acquitted , then the same cannot be believed against the appellant in isolation. It was also admitted that the deceased had contracted marriage with the appellant about 12 to 13 years prior to the occurrence and was also living with the appellant at the time of occurrence.

There is no evidence on record that Shahida Parveen alias Shamma Parveen (deceased) was facing any threat to her life at the hands of the appellant prior to the occurrence rather to the contrary she was living with the appellant till her tragic death. We have also noted that the appellant and Shahida Parveen alias Shamma Parveen (deceased) were blessed with birth of two children. This also proves that the appellant and the deceased were having a happy and a healthy marital life and hence there did not exist any reason for the appellant to murder his loving wife. 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

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compelling that it could have led the appellant to have committed the Qatl- i-Amd of the deceased. There is a poignant hush with regard to the particulars of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

“The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.”

24.The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Aneela Fazal (PW-1) 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.”

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The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court

600)has enunciated the following principle of law:

“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. 32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”

25.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Noman Liaqat son of Liaqat Ali, 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

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Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been observed in paragraph No.13 of page 236 as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution,

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such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

26.For what has been discussed above Criminal Appeal No.463-J of 2019 lodged by Noman Liaqat son of Liaqat Ali (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 30.08.2019 are hereby set- aside. Noman Liaqat son of Liaqat Ali (appellant) is ordered to be acquitted by extending him the benefit of the doubt. Noman Liaqat son of Liaqat Ali (appellant) is in custody and is directed to be released forthwith if not required in any other case.

27.Murder Reference No.24 of 2019 is answered in Negative and the sentence of death awarded to Noman Liaqat son of Liaqat Ali is Not Confirmed.

(ALI ZIA BAJWA) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

JUDGE JUDGE