Habib Ullah vs The State

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Criminal Appeal No. 746-J of 2019 (Habib Ullah Vs. The State.)

JUDGMENT

Date of hearing: 05.04.2022.

Appellant by: Syed Aasim Ali Bukhari, Advocate.

State by: Jam Muhammad Tariq, Deputy Prosecutor General. Complainant by: Ch. Muhammad Azhar, Advocate.

SADIQ MAHMUD KHURRAM, J.– Habib Ullah son of Ali

Ahmad (convict) was tried along with Sana Ullah and Inayat Ullah, the co- accused of the convict, both since acquitted, by the learned Additional Sessions Judge, Hasilpur in the case FIR No.212 of 2017 dated 13.06.2017 registered in respect of offences under sections 302 and 34 PPC at the Police Station Saddar Hasilpur, District Bahawalpur for committing the Qatl-i-Amd of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased). The learned trial court vide judgment dated 27.11.2019, convicted Habib Ullah son of Ali Ahmad (convict) and sentenced him as infra:

Habib Ullah son of Ali Ahmad:

Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and in case of default thereof, the convict was further directed to undergo six months simple imprisonment.

The learned trial court, however, did not extend the benefit available under section 382-B of the Code of Criminal Procedure, 1898 to the convict.

Sana Ullah and Inayat Ullah, the co-accused of the convict, were both acquitted by the learned trial court.

2.Feeling aggrieved, Habib Ullah son of Ali Ahmad (convict) lodged the instant Criminal Appeal No.746-J of 2019 through jail, assailing his conviction and sentence.

3.Precisely, the necessary facts of the prosecution case, as narrated by Pervaiz Akhtar (PW-1), the complainant of the case are as under:- “Stated that marriage of my sister was solemnized with Habib-u-llah accused present in the court before 14/15 years. She was residing with him. Two days before the occurrence, my sister called me through cell phone and told me that Habib Ullah tortured at her and threatened her of dire-consequences. She asked me to come in her house. On 12.6.2017, I went at the house of my sister situated at Chak No.181/M. When we reached there, Habib Ullah was not present in the house. I alongwith pws Muhammad Ijaz S/O Ghulam Rasool, Babar Hussain S/O Muhammad Safdar stayed in the house of my sister situated in Chak No.181/M. We slept in front of Bathik. At about 1:00 A.M, at night we heard hue and cry from inside the house. I alongwith Pws Ijaz and Babar went inside the house. The light of bulb was on. In the light of bulb we saw that Habib Ullah armed with hatchet and Sana-u-llah armed with hatchet were standing there. On our seeing, accused Habib-u-llah inflicted hatchet blow, which landed at the head of my sister Parveen Bibi. My sister raised her hand to rescue herself, accused Sana-u-llah made hatchet blow, which landed at wrist of her left arm. Accused Habib-u-llah made another hatchet blow, which landed at left eye of my sister Parveen Bibi. I alongwith pws came forward to

rescue my sister, Habib-u-llah and Sana-u-llah threatened us not to come near, otherwise, they will also be killed. Accused persons while waiving their hatchets fled away from the place of occurrence. Blood was oozing from the head of my sister. I alongwith pws took my sister to Hospital. In hospital, police came there. Lady doctor referred my sister to BVH Bahawalpur in the accompany of police constable. My sister was admitted in BHV in Neurosurgical ward. Doctors started her treatment. On 13.06.2017, Haji Muhammad ASI reached at BVH Bahawalpur. I gave written, complaint Ex.P.A to Haji Muhammad ASI, which bears my signature in Urdu Ex.P.A/1.

On 17.6.2017, Haji Muhammad ASI again came at BVH Bahawalpur to record statement of my sister. She was in Comma; she was not in condition to give statement. Constable handed over the clothes of my sister to Haji Muhammad ASI, Shalwar P.1, Qameez blood stained P.2 alongwith MLC. Haji Muhammad took into possession the above said articles vide recovery memo Ex-P.B, which was signed by me and I.O recorded my statement in this regard.

On 18.6.2017, my sister died due to the injuries caused by Habib-u-1lah and Sana-u-11ah. I informed police of police station. Haji Muhammad reached at BVH Bahawalpur, he received dead body of my sister and came back alongwith him to THQ Hospital Hasilpur. Shamas-u-Din Sl alongwith other police officials were also present in the Hospital. Fozia Noreen lady constable was also present there. Shamas-ul-Din prepared injury statement. Dr. Fiaza conducted post mortem of my sister. After post mortem Shamas-ul-Din handed over the dead body to me through receipt Ex.P.C. After this, police alongwith dead body went with us. We left the dead body at our house and then moved forward at the place of occurrence alongwith police. On our pointation, Shamas ul-Din prepared site plan and recorded our statements. Police came back to police station and we went back to our home for arranging funeral ceremony.

On 6.7.2017, accused Habib-u-llah was arrested. On 12.07.2017, 1 alongwith pws. namely Babar and Ijaż came to police station to join investigation. 1.0 was inquiring from Habib-u-llah about the hatchet. Accused Habib-u-llah told that hatchet was present in his house and he can get recovered the same. Police

sat me alongwith Muhammad Ijaz and accused Habib-u llah in police Dallah and took us at the house of Habib-u llah situated in Chak No.181/M. Accused Habib-u-llah while moving forward got recovered blood stained hatchet P.3 lying towards eastern wall of eastern room lying behind trunk present on Patti.

Habib-u-llah handed over blood stained hatchet to police. 1.0 took into possession hatchet the above said recovered blood stained hatchet P.3 vide recovery memo Ex.P.D and recorded our statements in this regard. The motive behind the occurrence was that there was a dispute of land between Habib-u- llah and Sana-u-llah with Shoukat Pannu. Accused Anait-u-llah advised them to prepare occurrence of murder and involve Shoukat Pannu in murder case of my sister. Accused present in the court be penalized.”

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 accused were sent to face trial. The learned trial court framed the charge against the accused on 08.11.2017, 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 eleven witnesses recorded. The ocular account of the case was furnished by Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2). Muhammad Fayyaz, ASI (PW-3) stated that on 13.06.2017 he recorded the formal F.I.R (Exh.PA/2). Manzoor ul Haq 24/HC (PW-4) stated that on 18.06.2017 the Woman Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case, after the post mortem examination of the dead body and on 22.06.2017, Shahid Bashir, SI handed over ten photographs (P-11/1-10) of the dead body of the deceased to Shamas-ul- Din, SI (PW-10) who took the same into possession through recovery memo (Exh. PH).

Muhammad Sadiq 1987/HC (PW-6) stated that on 12.07.2017, Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, handed over to him one sealed parcel said to contain a hatchet which on 18.07.2017 he handed over the said sealed parcel to Amjad Iqbal, ASI (PW-5) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Shahid Imran, Draftsman (PW-7) prepared the scaled site plan of the place of occurrence (Exh. PJ). Haji Muhammad, ASI (PW-9) investigated the case on 13.06.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, investigated the case from 18.06.2017 till 16.08.2017, arrested the appellant on 06.07.2017, 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. Faiza Saeed (PW-8) examined who on 13.06.2017, was posted as Woman Medical Officer at the THQ hospital, Hasilpur and on the same day had medically examined Mst. Parveen Bibi daughter of Muhammad Safdar (then injured later deceased). On examining Mst. Parveen Bibi daughter of Muhammad Safdar (then injured later deceased), Dr. Faiza Saeed (PW-8) had observed as under:- “Description of Injuries:

1.A lacerated wound of size about 5 x 4 cm x bone exposed situated on left frontal region of skull, swelling present on it KUO

2.A lacerated wound of size about 1 x I cm x skin deep present on the posterior lateral aspect of right forearm KUO.

3.A lacerated wound of size about 2 x 1 cm x skin deep present on the end of left eye brow black eye bruise present around the left eye along with swelling KUO

Then I referred the patient to BV. Hospital, Bahawalpur for further management and treatment. MLC NO.FS 62/2017 EXh.P.L. is the correct computerized copy of the MLC of the patient and signed and stamped by me.”

Mst. Parveen Bibi daughter of Muhammad Safdar died on 18.06.2017 and on the same day Dr. Faiza Saeed (PW-8) conducted the post mortem examination of the dead body of the deceased namely Mst. Parveen Bibi daughter of Muhammad Safdar and noted the same injuries on her dead body as she had observed when she had medically examined her. Dr. Faiza Saeed (PW-8) further opined with regard to her opinion as to the cause of death of Mst.

Parveen Bibi daughter of Muhammad Safdar (deceased) as under:- “ After thorough external and internal examination of the dead body. I am of the opinion that above described injuries are ante-mortem in nature and caused by some blunt weapon Injury NO.1 is main cause of death which caused fracture to left temporo parietal region of skull which is confirmed by report received from BVH. Bahawalpur detail is given on page No.1.

which caused injury to vital organ (brain) leading to coma and death. Such types of injury are usually sufficient to cause death in ordinary course of nature.”

The prosecution also got Dr. Amin Ullah Khan (PW-11) examined who on 13.06.2017 was posted as Medical Officer at BV hospital Bahawalpur and had examined Mst. Parveen Bibi daughter of Muhammad Safdar (then injured later deceased). On examining Mst. Parveen Bibi daughter of Muhammad Safdar (then injured later deceased), Dr. Amin Ullah Khan (PW-11) had observed as under:-

“On C.T scan brain there is multiple fracture of left temporo parietal bone of skull and brain contusion. At time of receiving pupils were dilated and non-responding to light, operation was done, operative findings are skull fractures and multiple dural tear and brain contusion evacuated and dural repair done with graft.

After that patient was shifted to Neuro ICU for post op-care, where she could not improve and expired on 18.06.2017 due to above said injuries.

Copy of Surgical/treatment notes (MLC) Ex P.R bearing my signatures in English is prepared and signed by me.”

7.On 24.09.2020, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Fouzia Noreen 15/LC as being unnecessary. On 11.02.2019, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the blood stained earth (Exh.PS) and the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the blood stained hatchet (Exh.PT).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Habib Ullah son of Ali Ahmad 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 Habib Ullah son of Ali Ahmad opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.

9.At the conclusion of the trial, the learned Additional Sessions Judge, Hasilpur 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, was 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-3) was full of procedural defects, of no legal worth and value, and result of fake proceedings. The learned counsel for the appellant also 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 appellant beyond the shadow of a doubt.

11.On the other hand, the learned Deputy Prosecutor General alongwith the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General alongwith the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General alongwith the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the hatchet (P-3) from the appellant also corroborated the ocular account. The learned

Deputy Prosecutor General along with the learned counsel for the complainant 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.I 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 Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2), the eye witnesses of the occurrence. The relationship of the said witnesses with the deceased is on record. Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) was the real sister of Pervaiz Akhtar (PW-1). It was also admitted by the prosecution witness namely Pervaiz Akhtar (PW-1) that the prosecution witness namely Muhammad Ejaz (PW-2) was closely related to him and admitted during cross-examination as under:-

“This Court has relationship witness with pw Ijaz and his family since our forefathers. My grand-father had relationship with grandfather of Ijaz PW.”

The prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) were also admittedly not the residents of the place of occurrence.

According to the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2), both of them were residents of Chak No.163-M, whereas the occurrence had taken place at Chak No.181-M, which was admittedly at a distance from the place of residences of Pervaiz Akhtar (PW-

1)and Muhammad Ejaz (PW-2). The prosecution witness namely Pervaiz Akhtar (PW-1) during cross-examination stated as under:-

“ The distance between Chak No. 163/M and Chak No. 181/M is 2/3 kilometers.” (emphasis supplied)

The prosecution witness namely Muhammad Ejaz (PW-2) during cross- examination stated as under:-

“The distance between Chak No. 163/M to Chak No. 181/M is 2/ 2 1⁄2 kilometers.” (emphasis supplied)

The above referred portion of the cross-examination of Pervaiz Akhtar (PW-

1)and Muhammad Ejaz (PW-2) reveals that it was an admitted fact that both the prosecution witness namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) did not have their residences or their places of employment near or around the place of occurrence. In this manner, both the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) 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 producing some physical proof of the same. This Court has noted with grave concern that the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence, when the same was taking place. In order to prove their presence at the place of occurrence at the time of occurrence, Pervaiz Akhtar (PW-1) stated that the deceased namely Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) called him about two days before the occurrence and asked him to come to her house and after receiving the said call of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased), Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) travelled to the place of occurrence, reaching there on 12.06.2017. Pervaiz Akhtar (PW-1) failed to prove that he had gone to the place of occurrence after receiving the call of

Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and admitted during cross-examination that he did not proceed to the house of the deceased after receiving her call but only went to her house on 12.06.2017 i.e., after two days. The prosecution witness, namely Pervaiz Akhtar (PW-1), also admitted that he even did not send his brother, namely Babar Hussain to the house of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) on the day when he had received her call. Prosecution witness namely Pervaiz Akhtar (PW-1) admitted during cross-examination as under:-

“When my sister telephonically called me, at that day, I did not go into the house of my sister. It is correct that next date of receiving telephonic call; I did not go in the house of my sister.

When I received telephonic all of my sister regarding altercation at that day, Babar Hussain PW was present in the house. When I received telephonic all (sic) of my sister regarding altercation, I did not ask Babar Hussain PW to go in the house of our sister Parveen Bibi. My brother Babar also did not go in the house of our sister on the day of receiving of call and next day of receiving of call.” (emphasis supplied) Moreover, this Court has noted that the prosecution witness namely Pervaiz Akhtar (PW-1) made a failed attempt to provide a reason for his not going to the matrimonial house of the Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) after receiving her call and stated that as he was in the city of Lahore when he had received the call, therefore, he could not proceed immediately to the house of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased). The prosecution witness namely Pervaiz Akhtar (PW-1) admitted during cross-examination as under:-

“Volunteered, I was in Lahore. When I received telephonic call regarding altercation of my sister, I was in Lahore.”

The above referred stance of the prosecution witness namely Pervaiz Akhtar (PW-1) that he did not go to the house of Mst. Parveen Bibi daughter of

Muhammad Safdar (deceased) after receiving her call because he was at Lahore, was also proved to be a false statement as during the cross- examination, Haji Muhammad, ASI (PW-9), the Investigating Officer of the case, stated that the prosecution witness namely Pervaiz Akhtar (PW-1) never told him that when he received the call of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased), he was at Lahore. Haji Muhammad ASI (PW- 9), the Investigating Officer of the case during cross-examination, stated as under:-

“No witness recorded in his statement u/s 161 Cr PC that complainant was at Lahore when he received a cell phone call of his sister prior to the occurrence.”

Pervaiz Akhtar (PW-1) during the investigation of the case and even before the learned trial court also did not produce any evidence in the shape of Call Data Record (CDR) of the mobile phone number under his use or under the use of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) to establish that he had indeed received the call of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) two days before the occurrence and after receiving the said call, he and Muhammad Ejaz (PW-2) had proceeded to the place of occurrence. Furthermore, Shamas-ul-Din, SI (PW-10), the Investigating Officer of the case, as well as Haji Muhammad, ASI (PW-9), the first Investigating Officer of the case, also did not collect any evidence during the investigation of the case so as to prove that Pervaiz Akhtar (PW-1) had received a phone call of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased), two days before the occurrence asking him to come to her house.

The mobile phone device through which the deceased had called Pervaiz Akhtar (PW-1) was also not found present at the place of occurrence nor was produced by any witness during the investigation of the case. The Woman

Medical Officer, who medically examined Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) on 13.06.2017 and who conducted the post mortem examination of the dead body of the deceased, did not find any such mobile phone device. The Investigating Officers of the case, also did not find any such mobile phone device through which Mst. Parveen Bibi daughter of Muhammad Safdar (deceased), had called the prosecution witness namely Pervaiz Akhtar (PW-1), two days before the occurrence, at the place of occurrence, despite the fact that both Shamas-ul-Din, SI (PW-10), the Investigating Officer of the case, and Haji Muhammad, ASI (PW-9) remained present at the place of occurrence for a continued period and there was no possibility that the said mobile phone device could have been removed from the place of occurrence. The failure of the prosecution to produce the mobile phone device under the use of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) has repercussions resulting in the conclusion that the very inception of the prosecution case is put in doubt due to the said failure of the prosecution. In this manner, both the eye witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence.

14.Another fact, which denudes the falsity of the claim of the prosecution witness namely Pervaiz Akhtar (PW-1) that Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) had called him two days before the occurrence, is that Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) had contracted marriage without the consent of her parents and her relatives including Pervaiz Akhtar (PW-1) and, therefore, there were no visiting terms between Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and the prosecution witness namely Pervaiz Akhtar (PW-1). Shamas-ul- Din, SI (PW-

10), the Investigating Officer of the case, during cross-examination admitted that it was Pervaiz Akhtar (PW-1) himself who told him that he had never visited the place of occurrence prior to the day of occurrence. Shamas-ul-Din, SI (PW-10), the Investigating Officer of the case, during cross-examination stated as under:-

“ The pws got recorded before me that marriage of Habibullah and Parveen Bibi was result of love affair. In my investigation complainant never disclosed before me that he ever visited the house of Habibullah at any occasion. In my investigation, there is nothing on record about the fact that the complainant has visiting terms with his sister Parveen Bibi deceased or not.”

More importantly, Pervaiz Akhtar (PW-1) himself admitted that he did not have any usual visiting terms with Mst. Parveen Bibi daughter of Muhammad Safdar (deceased). Pervaiz Akhtar (PW-1) during cross-examination stated as under:-

“ Nikah of my sister with accused Habibullah remained intact for 14/15 years. At the time of murder, age of my sister was about 40 years. At the time of marriage with Habib, my sister was divorced lady. We have limited visiting terms with our sister..” (emphasis supplied) In this scenario, when according to Pervaiz Akhtar (PW-1) himself, he had limited visiting terms with the Mst. Parveen Bibi daughter of Muhammad Safdar (deceased), then there did not exist any possibility that Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) would have called Pervaiz Akhtar (PW-1), who, in the fifteen years of marriage, had never ever earlier called and complained about the appellant to Pervaiz Akhtar (PW-1). Pervaiz Akhtar (PW-1) during cross-examination admitted as under:- “ It is correct that before the above mentioned quarrel, my sister never complained us against Habib-u-llah.”

15.Additionally, it was claimed by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) that they had gone to

the place of occurrence on one motorcycle, however, during the course of the investigation as well as before the learned trial court, the said motorcycle allegedly used by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) to arrive at the place of occurrence was not produced. Pervaiz Akhtar (PW-1) during cross-examination stated as under:- “We went at the house of my sister on motor-cycle of my younger brother.”

As mentioned above, Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, and Haji Muhammad, ASI (PW-9) , the first Investigating Officer of the case, visited the place of occurrence, after the occurrence and remained there for a considerable time. During the course of their stay at the place of occurrence, Shamas-ul- Din, SI (PW-10) and Haji Muhammad, ASI (PW-9), the Investigating Officers of the case, did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) to arrive at the place of occurrence alongwith the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officers during their visits to the place of the occurrence, if the same was available. The said motorcycle, which was used by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2), was not even produced during the entire period of investigation nor was produced before the learned trial court. The non- production of the motorcycle used by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) to arrive at the place of occurrence and the failure of Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) as well as the Investigating Officers of the case to produce the same before the learned trial court, leads to only one conclusion and that being that

no such motorcycle was available. Had a motorcycle been used by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2), to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Shamas-ul- Din, SI (PW-10) and Haji Muhammad , ASI (PW-9), the Investigating Officers of the case, and the same would necessarily would have been taken into possession by Shamas-ul- Din, SI (PW-10) and Haji Muhammad , ASI (PW- 9), the Investigating Officers of the case, but it was not and it proves that a false claim was made by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) that they had arrived at the place of occurrence on a motorcycle. The very mode which enabled the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) to arrive at the place of occurrence , therefore, is put in doubt. Reliance in this regard is placed on the case of “Muhammad Ali Vs. The State” (2015 SCMR

137)wherein the august Supreme Court of Pakistan has held as under:- “The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material.”

16.Furthermore, despite the claim of both the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) that they had been staying at the house of the deceased prior to the occurrence, Shamas- ul- Din, SI (PW-10) and Haji Muhammad , ASI (PW-9) , the Investigating Officers of the case, during the investigation, neither shown any physical proof of the stay of the prosecution witnesses namely Pervaiz Akhtar (PW-

1)and Muhammad Ejaz (PW-2) at the house of the deceased nor the

prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) themselves produced any such physical proof that they had indeed been staying at the house of the deceased prior to the occurrence. During the course of investigation , Shamas-ul- Din, SI (PW-10) and Haji Muhammad, ASI (PW-9), the Investigating Officers of the case, did not observe any cots or beddings or anything else, inside or outside the house of the deceased which could prove that the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) were indeed present and sleeping outside the house of the deceased, when they subsequently witnessed the occurrence, along with the other recoveries, though there was no occasion for the said articles not to have been present in the house of the deceased or not being taken into possession by Shamas-ul- Din, SI (PW-10) and Haji Muhammad , ASI (PW-9), the Investigating Officers of the case, during their visits and stay at the place of the occurrence, if the same were available.

Pervaiz Akhtar (PW-1), during cross-examination, admitted as under:- “ In my application for registration of BIR, I did not mention the fact of sleeping in front of Bathik outside the house at the night of occurrence.

Police did not take into custody the cots, on which we were sleeping at that night.” (emphasis supplied)

It only proves that there did not exist any physical evidence proving the presence of the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) outside the house of the deceased prior to the occurrence. This Court has also perused the scaled site plan of the place of occurrence (Exh. PJ) prepared by Muhammad Shahid Imran, Draftsman (PW-

7)and the rough site plan of the place of occurrence (Exh. PQ), prepared by Haji Muhammad , ASI (PW-9), the Investigating Officer of the case, and no

place where the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) had been sleeping prior to the occurrence or where the cots , on which the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) were sleeping , has been marked in the said site plans (Exh. PJ and Exh. PQ). This Court has also noted that the alleged eye witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) and Babar Hussain (not produced) 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. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) had been called by Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) to her house as suggested by Pervaiz Akhtar (PW-1) and was bound to prove the mode through which Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) arrived at the place of occurrence and the fact that Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) were sleeping on cots outside the house where the occurrence took place but it failed miserably to prove all these facts, which has vitiated the trust of this Court in Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) as being truthfulness witness. 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, Ghulam Farid and Manzoor Ahmed 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 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:-

“In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence.”

17.As mentioned above, both the witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) claimed that they had witnessed the occurrence in the light of the bulb lit at the place of occurrence. During the course of the investigation and even before the learned trial court, the said bulb lit at the place of occurrence, was never produced. The failure of the prosecution to produce the bulb, lit at the place of occurrence, before the learned trial court leads to only one conclusion, and that being that no such source of light was available at the place of occurrence, which could have enabled the eye witnesses to have identified the assailant and also spectate the details of the occurrence. According to the prosecution evidence, Shamas-ul- Din, SI (PW-10) and Haji Muhammad , ASI (PW-9), the Investigating Officers of the case, visited the place of occurrence after the occurrence but the bulb in the light of which Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) had witnessed the occurrence, at the time of occurrence, was not taken into possession at the spot by the Investigating Officers alongwith other recoveries, though there was no occasion for the said bulb not to have been

present at the place of occurrence or it not being produced by the witnesses before the Investigating Officer or it being not taken into possession by Shamas-ul- Din, SI (PW-10) and Haji Muhammad, ASI (PW-9), the Investigating Officers of the case. The failure of Pervaiz Akhtar (PW-1), the complainant of the case and Muhammad Ejaz (PW-2) to produce the bulb lit at the place of occurrence, in the light of which Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) witnessed the occurrence, proves that none was available and only an invented and false claim of such bulb being lit at the place of occurrence was made by the said witnesses. This Court has also perused the scaled site plan of the place of occurrence (Exh. PJ) prepared by Muhammad Shahid Imran, Draftsman (PW-7) and the rough site plan of the place of occurrence (Exh. PQ), prepared by Haji Muhammad, ASI (PW-9), the Investigating Officer of the case, and no place where any bulb was present and lit, has been marked in the said site plans (Exh. PJ and Exh. PQ). The prosecution witnesses failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in murk. It was admitted by the witnesses themselves that it was a dark night and they had used the light of the bulb, never produced, to identify the assailant during the occurrence and as the prosecution witnesses failed to prove the availability of such light source, their statements with regard to them identifying the assailant cannot be relied upon. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence, has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of “Gulfam

and another v. The State” (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised”

Reliance is also placed on the case of “Hameed Gul v. Tahir and two others” (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:-

“Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along.”

Reliance is also placed on the case of “Basar Vs. Zulfiqar Ali and others” (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:-

“7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.

8.Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.”

Reliance is also placed on the case of “Azhar Mehmood and others v. The State” (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:-

“It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been

secured by the investigating officer during the investigation of this case.”

Reliance is also placed on the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer.”

18.This Court has also observed that the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) claimed that they had arrived at the house where the occurrence took place prior to the occurrence and the occurrence took place only when they were present inside the said house. 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, in their presence and in their view, in the dead of the night, is unnatural and cannot be believed. It is opposed to human conduct that an assailant would proceed with the commission of the crime despite 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 the accused ran the risk of the witnesses deposing against the accused, even then the assailant committed the occurrence in their presence when he already knew that the witnesses were present at the place of occurrence. Such behaviour, on the part of the accused, as deposed by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2), runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human conduct, this Court is holding that Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) were not present at the time of occurrence, at the place of

occurrence and had not witnessed the occurrence. Reliance in this regard is placed on the cases of “Muhammad Farooq & another v. The State” (2006 SCMR 1707) , “STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others” ( 2019 S C M R 1154) ,”Muhammad Imran Vs. The State” ( 2020 S C M R 857) and “Mst. Rukhsana Begum & others v. Sajjad & others” (2017 SCMR 596).

19.It is also an admitted fact of the prosecution case that the place of occurrence was occupied by Azhar, the son of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and the step children of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and the mother of the said children.

Both the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2), in their statements before the learned trial court, stated that Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) was blessed with the birth of a child named Azhar and Azhar was present in the same house where the occurrence took place. In his statement before the learned trial court, Pervaiz Akhtar (PW-1) stated as under:- “It is correct that my sister Parveen was second of accused Habibullah. It is correct that first wife her children also reside in the same house.”

Muhammad Ejaz (PW-2) in his statement before the learned trial court stated as under:-

“I have seen the minor son of Habibullah accused and Parveen Bibi (deceased) namely Azhar who is aged about 9/10 years.”(emphasis supplied)

Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, also admitted during cross-examination as under:-

“The first wife of Habibullah alongwith her children Naveed Habib and Qamar Habib, who are majors was (sic) also residing in the same house. His first wife and his said children did not join investigation.”(emphasis supplied).

Neither during the course of investigation nor before the learned trial court, the statements of Azhar, the son of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased), the step children of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and the mother of the said children, who were admittedly the residents of the place of occurrence and were also present there at the time of occurrence, were recorded. Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, failed to include in the investigation the inhabitants of the house where the occurrence had taken place and this failure of Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, to produce the said inhabitants of the place of occurrence before the learned trial court and to join them in the investigation and record their statements, 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 Azhar, the ten years old son of the deceased, the step children of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and the mother of the said children, who were admittedly the residents of the place of occurrence and the most natural witnesses, before the learned trial court, has convinced this Court that had they been produced before the learned trial court they would not have supported the prosecution case. Reliance in this matter is placed on the case of SHAMSHAD versus THE

STATE (1998 SCMR 854 also cited as 1999 SCMR 2844) wherein the august Supreme Court of Pakistan held as under:-

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

13.Learned State Counsel has however, argued that in case the prosecution had failed to examine any of the appellant's children as a witness, they should have been examined as defence witnesses. It has been further argued that if there are two versions, one given by the prosecution and the other by the defence, then if the latter is not believed, the prosecution version must be believed as true. In our view, both the contentions are untenable. Burden to prove its case beyond a reasonable doubt squarely rests on the prosecution. Such burden cannot be discharged by weaknesses found in the case of the defence. The mere fact that the defence version is not believed by the Court cannot lend credence to the prosecution case if, otherwise, the prosecution has failed to discharge its burden. For the reason enumerated above, This Court has 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 506).

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

20.This Court has also noted with grave concern that the formal F.I.R (Exh.PA/2) was recorded after preliminary investigation and probe. The prosecution witnesses admitted that even at the time of the preparation of the rough site plan (Exh.PQ) and the taking of the blood stained earth through recovery memo (Exh.PE), the F.I.R (Exh.PA/2) had not been registered. Haji Muhammad, ASI (PW-9) admitted during cross-examination as under:- “I reached police station from THQ Hospital Hasilpur and then I visited the place of occurrence at about 6:00/7:00 A.M. I inspected the place of occurrence. It is correct that till that time FIR yet to be lodged. It is correct that an I. O cannot investigate any matter prior to lodging of FIR or registration of any case.” (emphasis supplied)

Moreover, according to the statement of Pervaiz Akhtar (PW-1), he presented the written application (Exh.PA) for the registration of the case to Haji Muhammad, ASI (PW-9) at BV Hospital Bahawalpur, despite the fact that Haji Muhammad, ASI (PW-9) had already met Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) at the THQ hospital, Hasilpur prior to visiting BV

hospital Bahawalpur. Pervaiz Akhtar (PW-1) in his statement before the learned trial court stated as under:-

“On 13.06.2017, Haji Muhammad AS1 reached at BVH Bahawalpur. I gave written complaint Ex.P.A to Haji Muhammad AS1, which bears my signature in Urdu Ex.P.A/1.

I.0 Shamas-ul-Din recorded the statements of Babar and Ijaz pws u/s 161 Cr.P.C on 18.6.2017 In Hospital THỌ Hasilpur.

I called from my cell phone number, 0302-6523145 at about 3:00 A.M. Haji Muhammad ASI alongwith other police officials came at Hospital. I told Haji Muhammad ASI about the occurrence. I do not remember whether he prepared any writing regarding occurrence. When Haji Muhammad ASI came there, he asked us to take patient to BVH as the patient was in serious condition. He also asked that he will get application from us at BVH Bahawalpur.” (emphasis supplied)

Muhammad Ejaz (PW-2) during cross-examination admitted as under:- “When Haji Muhammad I.0 came, I and complainant told the occurrence at THQ Hospital Hasilpur. Haji Muhammad ASI did not make any writing in my presence. In my presence Haji Muhammad ASI did not prepare any document.”(emphasis supplied)

The above referred statements of the prosecution witnesses prove that the written application (Exh.PA) of Pervaiz Akhtar (PW-1) was prepared after much consultation and brooding over the matter. The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PA) of Pervaiz Akhtar (PW-1) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document.

21.The Court has also noted with grave concern that obvious and blatant forgery was committed so as to justify the presence of Pervaiz Akhtar (PW-

1)and Muhammad Ejaz (PW-2) at the place of occurrence, at the time of occurrence. According to the prosecution case, after the occurrence Mst.

Parveen Bibi daughter of Muhammad Safdar (deceased) in an injured condition was immediately taken to the THQ hospital Hasilpur where she was examined by Dr. Faiza Saeed (PW-8) and after her examination Dr. Faiza Saeed (PW-8) issued the Medico Legal Examination Certificate (Exh.PL).

This Court itself, while examining the record, noted that there was obvious manipulation of the Medico Legal Examination Certificate (Exh. PL) in the column related to the entry regarding the brief history of the occurrence. For reference the relevant portion of the Medico Legal Examination Certificate (Exh.PL) is being reproduced under:-

The perusal of above Medico Legal Examination Certificate (Exh.PL) reveals that some of the entries made in the column relating to the brief history of the incident had been erased. The said fact was also confronted to Dr. Faiza Saeed (PW-8) who admitted the said manipulation in the Medico Legal Examination Certificate (Exh.PL) and stated that what had been rubbed was the fact that the history of the incident had been told to Dr. Faiza Saeed (PW-8) by husband of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) i.e. the appellant. The prosecution knew that the fact that it had been narrated in the Medico Legal Examination Certificate (Exh.PL) itself that the history of incident was given by the appellant himself was the most damning fact of the case having the potential of destroying the whole prosecution case, therefore,

they proceeded to commit forgery and erased the entry made in the Medico Legal Examination Certificate (Exh.PL) in this regard. However, the forgery committed by the prosecution witnesses was duly brought on record. During the course of cross-examination of Dr. Faiza Saeed (PW-8), another copy of the Medico Legal Examination Certificate (Exh.DF) was brought on record and Dr. Faiza Saeed (PW-8) admitted that the said copy of the Medico Legal Examination Certificate (Exh.DF) was the correct copy of the Medico Legal Examination Certificate prepared by her. For reference the relevant portion of the Medico Legal Examination Certificate (Exh.DF) is being reproduced under:-

The statement of Dr. Faiza Saeed (PW-8) that it was the appellant who himself had brought Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) to the hospital in an injured condition and had also got the brief history of the incident, not only proves the innocence of the appellant but also proves the absence of the Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-

2)and the forgery committed by them. During cross-examination, Dr. Faiza Saeed (PW-8) stated as under:-

“It is correct that in Ex.P.L, in brief history according to his husband's statement" is rubbed whereas, in my original record according to his husband's statement" is written. Computerized copy of MLC of injured Parveen Bibi Ex.P.F bears my signatures and stamps. It is correct that in Ex.D.F bears rubbed narration "according to his husband's statement" while "according to his husband statement is not available in Ex.P.L computerized copy of MLC of deceased Parveen Bibi. The name of husband is mentioned

as Habibullah in Ex.D.F, Ex.P.L and original record. It is correct that brief history was narrated before me by Habibullah. The date of receiving of MLC by Muhammad Tariq 292/C is 15.7.2017 narrated in Ex.D.F, whereas the date of issue in Ex.P.L is 17.06.2017, which is over-written by ball- point.” (emphasis supplied)

Haji Muhammad, ASI (PW-9), the Investigating Officer of the case also admitted the forgery made in the Medico Legal Examination Certificate. Haji Muhammad, ASI (PW-9) admitted during cross-examination as under:- “Constable handed over to me MLC of injured or 17.06.2017. Vide Ex.D.F brief history in the relevant column of MLC has been narrated to WMO by injured's husband according to her husband's statement. Date of receiving of MLC by constable has been mentioned by Muhammad Tariq constable as 15.07.2017. Ex.P.L MLC which has been exhibited in the court during the evidence, nothing has been written down in the relevant column of brief history that who narrated the said history of injured to WMO. I do not state that the same writing has beer rubbed down from Ex.P.L. Date of receiving of MLC by constable has been mentioned first as 15.07.2017 and then the same was written down as 17.06.2017. I do not state that this is result of over writing,”

It is indeed unfortunate and illegal that the prosecution witnesses manipulated the entries made in the Medico Legal Examination Certificate of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) as prepared by Dr. Faiza Saeed (PW-8) for the purpose of not only proving their presence but also for getting the appellant involved in the present occurrence without any evidence.

22.The prosecution witness namely Pervaiz Akhtar (PW-1) also claimed that he had taken Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) in an injured condition from THQ hospital Hasilpur to BV hospital Bahawalpur, however even this claim of Pervaiz Akhtar (PW-1) was found to

be false. Pervaiz Akhtar (PW-1) in his statement before the learned trial court stated as under:-

“We we (sic) went BVH on ambulance. We left THO Hasilpur for BVH Bahawalpur at about 3:30/3:45 A.M.

We reached at BVH Bahawalpur before 8:00 A.M. When we reached at BVH Bahawalpur, first of all we went at emergency ward of hospital. When we reached at BVH Bahawalpur, constable, who accompanied us got admitted my sister in emergency ward, as I was illiterate person. Although, I am four pass but even then, I am illiterate. I did not got (sic) noted my particulars at the time of admission in emergency. Volunteered I signed when operation was conducted. Operation of my sister was conducted next day of admission. 1 marked my signature in Urdu. I do not remember whether I affixed my thumb impression or not. I do not know whether constable got noted my connect number/phone number.”

Contrary to the statement of the prosecution witness namely Pervaiz Akhtar (PW-1) that it was him who had Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) in an injured condition from THQ hospital Hasilpur to BV hospital Bahawalpur, Dr. Amin Ullah Khan (PW-11) stated that he had examined Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) in an injured condition on 13.06.2017 at 06.00 a.m. in the BV hospital Bahawalpur and according to the record available with him she had been brought to the hospital by her husband, the appellant. During cross-examination , Dr.

Amin Ullah Khan (PW-11), stated as under:-

“Ex.D.A does not bear the name of father of the patient. It is correct that on Ex.D.A bears the same registration number as mentioned vide Ex.P.R. Ex.DA reveals the name of husband of injured Parveen Bibi. Habibullah husband) of Parveen Bibi has been mentioned Deval by caste. The contact number of the person who brought the patient/injured to Hospital has been mentioned as 0302-5669881.The person/relative who brought the patient/injured to Hospital has been mentioned as Habib by name.

Ex.D.C bears the name of husband of injured/deceased has been mentioned as Habib, Deval by caste having contact No.0302-5669881. In

accordance with Ex.D.C, it reveals from record that one Habib got admitted injured/patient.”(emphasis supplied)

Furthermore Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, also admitted during cross-examination that no prosecution witness told him that he had accompanied Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) to the BV hospital. Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, during cross-examination stated as under:- “No pw in my investigation disclosed before me that he went to BVH Bahawalpur accompanied by injured for treatment. No pw in my investigation disclosed before me that who shifted injured to THQ Hospital from place of occurrence.”

This Court has also noted that though prosecution witness namely Pervaiz Akhtar (PW-1) claimed that they had taken Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) in an injured condition to the hospital on a car driven by Muhammad Munir Thilo, however admitted that the said son did not join the investigation of the case. Pervaiz Akhtar (PW-1) during cross- examination stated as under:-

“Car was owned by Muhammad Munir Thillo of Chak No.163/M. Ijaz and Babar pws brought the car from Chak No.163/M. Munir Thillo was driving the car. Ijaz and Babar pws went to bring car after 5/10 minutes of occurrence and came back after 25/30 minutes. Statement of Munir Thillo regarding above said facts was not recorded by any I.0. Munir Thillo did not join investigation.”(emphasis supplied)

The above referred portion of the cross-examination of the prosecution witnesses clearly reflects that the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) made a false claim of being present at the place of occurrence, at the time of occurrence and taking Mst.

Parveen Bibi daughter of Muhammad Safdar (deceased), in an injured

condition, firstly to the THQ hospital Hasilpur and then to BV hospital Bahawalpur. It also stands proved that it was the appellant himself who had taken Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) in an injured condition to the hospital which not only establishes the innocence of the appellant but also the treachery and forgery committed by the prosecution witnesses to get the appellant wrongly involved in the occurrence.

23.The ocular account of the occurrence as given by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) was also contradicted by the medical evidence brought on record. Both the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) stated that the appellant had used a hatchet to cause injuries to Mst.

Parveen Bibi daughter of Muhammad Safdar (deceased), however, according to the statement of Dr. Faiza Saeed (PW-8), she did not observe any injury present on the dead body of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) which had been caused by the use of a sharp-edged weapon. Dr.

Faiza Saeed (PW-8) during cross-examination explained as under:- “The weapon of offence in Ex.P.L is mentioned by me as blunt weapon, which is also mentioned in Ex.D.F. In lacerated wound, the edges of the injury occurs irregular. It is not necessary that the muscles must cut down in lacerated wound. In incised wound/sharp edges are firm, regular, cut visible and straight. The injuries No.1 to 3 mentioned in Ex.P.L are lacerated wounds are the same are caused by blunt weapon. ” (emphasis supplied) Both the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) did not state in their statements that the appellant had used the blunt side of the hatchet to cause the injuries to Mst. Parveen Bibi daughter of Muhammad Safdar (deceased). In absence of their stating so,

the same cannot be presumed. Muhammad Ejaz (PW-2) during cross- examination admitted as under:-

“I did not record in my statement u/s 161 Cr.P.C that injury was caused by wrong side of hatchet P.3 i.e weapon of offence. ”

The prosecution witnesses very well knew that the observations and opinion of Dr. Faiza Saeed (PW-8) 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. Faiza Saeed (PW-8) or if the same could not be challenged, then to explain the same. Despite repeated queries, the learned Deputy Prosecutor General and the learned counsel for the complainant have failed to explain the said discrepancy in the prosecution evidence. In this manner, irreconcilable and harrowing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) and the medical evidence as furnished by Dr. Faiza Saeed (PW-8).

The contradictions in the ocular account of the occurrence, as narrated by Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) and the medical evidence as furnished by Dr. Faiza Saeed (PW-8), sounded the death knell for the prosecution case and proved to be the cause of its sad demise. Had the witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) seen the occurrence then there did not exist any possibility that they would have fallen into error of not stating that the appellant had caused injuries to Mst.

Parveen Bibi daughter of Muhammad Safdar (deceased) by use of the blunt side of the hatchet.

24.This Court has already mentioned that along with the appellant his co- accused namely Sana Ullah and Inayat Ullah (both since acquitted) were also tried. The learned trial court acquitted the above mentioned Sana Ullah and Inayat Ullah, the co-accused of the appellant. This Court has 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 Sana Ullah and Inayat Ullah (both since acquitted) had attained finality as the acquittal of Sana Ullah and Inayat Ullah (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. This Court has noted that the view should be that "the testimony of one detected in a 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 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, This Court has examined the prosecution evidence. This Court has scrutinized the statements of Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2), the eyewitnesses of the occurrence. Pervaiz Akhtar (PW-1), in his statement recorded by the learned trial court, stated as under:- “My sister raised her hand to rescue herself, c herself, accused Sana-u- llah made hatchet blow, which landed at wrist of her left arm.”

Similarly, Muhammad Ejaz (PW-2), in his examination-in-chief stated as under:-

“On this Parveen Bibi resisted and Sanaullah accused inflicted hatchet blow on the wrist of left arm of Parveen Bibi.”(emphasis supplied).

Both the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) attributed causing of injuries to the deceased by Sana Ullah (since acquitted), however, both the witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) were found to have made false statements with regard to Sana Ullah (since acquitted), the co-accused of the appellant. This Court is unable to find any independent corroboration of the prosecution case against the appellant and is unable to distinguish the case of the appellant from the case of the acquitted co-accused namely Sana Ullah as the prosecution evidence with regard to the appellant and with regard to his co-accused, namely Sana Ullah (since acquitted) is similar. This Court finds no reason to believe the statements of the witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) with regard to the appellant in absence of any reason to do so. This lying on the part of the witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) with regard to Sana Ullah (since

acquitted), the co-accused of the appellant, has vitiated the trust of this Court in them. This Court is thus satisfied that the evidence of Pervaiz Akhtar (PW-

1)and Muhammad Ejaz (PW-2) 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: -

“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.”

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.”

25.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 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 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."

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 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 Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) 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 her 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. This Court has 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 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.”

26.The learned Deputy Prosecutor General along with the learned counsel for the complainant, has submitted that the recovery of the Hatchet (P-3) and the report of Punjab Forensic Science Agency, Lahore (Exh.PT) offered sufficient corroboration of the statements of the eye-witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) . Regarding the recovery of the Hatchet (P-3) from the appellant namely Habib Ullah, 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-3) from the appellant which was in clear violation of 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 officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.”

Therefore, the evidence of the recovery of the hatchet (P-3) from the appellant cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:-

“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

I have also noticed that the Hatchet (P-3) was shown to have been recovered on 06.07.2017 from the same house where the occurrence had taken place on the intervening night of 12/13.06.2017. Pervaiz Akhtar (PW-1) stated during his statement before the learned trial court as under:- “Accused Habib- u -llah told that hatchet was present in his house and he can get recovered the same. Police sat me alongwith Muhammad Ijaz and accused Habib-u llah in police Dallah and took us at the house of Habib- u-llah situated in Chak No.181/M. Accused Habib-u-llah while moving forward got recovered blood stained hatchet P.3” (emphasis supplied) The padding of the prosecution case by showing a false recovery of the Hatchet (P-3) on 12.07.2017 from the same house where the occurrence took place on the intervening night of 12/13.06.2017is obvious. Haji Muhammad, ASI (PW-9) and Shamas-ul- Din, SI (PW-10), the Investigating Officers of the case, spent substantial time at the place of occurrence on 13.06.2017 and also made certain recoveries of articles present there and in that manner had the Hatchet (P-3) been present at the same house where the occurrence took place, then the same would have definitely been observed by Haji Muhammad, ASI (PW-9) and Shamas-ul- Din, SI (PW-10), the Investigating Officers of the case, however, it was not. It has also been noticed by this Court that the occurrence took place on the intervening night of 12/13.06.2017, whereas the Hatchet (P-3) was sent to the office of Punjab Forensic Science Agency, Lahore on 19.07.2017 and was analyzed on 03.08.2017. During such a long period, the blood available on the Hatchet (P- 3), if any, would have disintegrated. It is not possible to believe that the blood available on the Hatchet (P-3) 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-3) from the appellant does not further the case of the prosecution in any manner. In view of the above- mentioned facts, the alleged recovery of the Hatchet (P-3) is not proved and the same cannot be used as a circumstance against the appellant. Even otherwise, as this Court has disbelieved the ocular account in this case, hence, the evidence of recovery of the Hatchet (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.

27.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Pervaiz Akhtar (PW-1) in the written application (Exh. PA) was that the appellant had a dispute with one Shaukat Ali Pannu regarding landed property and in order to falsely implicate the said Shaukat Ali Pannu in the murder of Mst. Parveen Bibi daughter of Muhammad Safdar (deceased), the appellant committed the occurrence. This Court has perused the statements of the prosecution witnesses namely Pervaiz Akhtar (PW-1) and Muhammad Ejaz (PW-2) and finds that they failed to prove the motive of the occurrence as stated by them. The fact which is conspicuous by its absence is that neither

during the investigation of the case nor before the learned trial court, any statement of Shaukat Ali Pannu, the person with whom the appellant had dispute over landed property and the person the appellant wanted to implicate in the murder of the deceased ,was recorded nor Shaukat Ali Pannu joined the investigation of the case. Pervaiz Akhtar (PW-1) admitted during cross- examination that during the course of investigation Shaukat Ali Pannu did not join the investigation of the case and stated as under:- “Shoukat Pannu neither joined investigation nor got recorded his statement u/s 161 Cr.PC. ”

Similarly, Muhammad Ejaz (PW-2) during cross-examination admitted as under:-

“It is not in my knowledge that whether Shoukat Pannu filed any civil suit or lodged any FIR against Habibullah accused. In my presence, Shoukat Pannu did not join the investigation of this case. ”(emphasis supplied) Haji Muhammad, ASI (PW-9), the Investigating Officer of the case also admitted that Shaukat Pannu did not join the investigation of the case and the prosecution witnesses did not provide any evidence in support of the alleged motive of the occurrence. Haji Muhammad, ASI (PW-9) during cross- examination stated as under:-

“ Shoukat Pannu did not join investigation before me with respect to motive part of the occurrence and I did not record his statement. I did not record the statement of any person in the investigation with respect to motive part of the occurrence. I did not collect any evidence with respect to motive part of the occurrence. Complainant did not produce any evidence with respect to motive part of the occurrence.”

The above referred portion of cross-examination of Haji Muhammad, ASI (PW-9) is in itself sufficient to prove that the prosecution failed miserably to

prove the motive of the occurrence. Moreover, the prosecution witness namely Pervaiz Akhtar (PW-1) also admitted that he had not mentioned in his written application (Exh.PA) that any altercation between Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) and the appellant had taken place over the dispute with Shaukat Ali Pannu. Pervaiz Akhtar (PW-1) admitted during cross-examination admitted as under:-

“It is correct that in my application Ex.P.A, I did not mention the fact of quarrel of Habib-u-llah and my sister regarding the land of Shaukat”(emphasis supplied)

It was also admitted that the deceased had contracted marriage with the appellant of her own free will about 14 to 15 years prior to the occurrence and was also living with the appellant at the time of occurrence. Shamas-ul- Din, SI (PW-10), the Investigating Officer of the case, during cross-examination stated as under:-

“ The pws got recorded before me that marriage of Habibullah and Parveen Bibi was result of love affair.”

Pervaiz Akhtar (PW-1) during cross-examination explained as under:- “Nikah of my sister with accused Habibullah remained intact for 14/15 years. At the time murder, age of my sister was about 40 years. At the time of marriage with Habib, my sister was divorced lady. We have limited visiting terms with our sister.”

There is no evidence on record that Mst. Parveen Bibi daughter of Muhammad Safdar (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. This Court has also noted that the appellant and Mst. Parveen Bibi daughter of Muhammad Safdar (deceased) were blessed with birth of Azhar. 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 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.”

28.Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of Habib Ullah son of Ali Ahmad, the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt, it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available, then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather

than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 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, 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.”

29.For what has been discussed above, Criminal Appeal No.746-J of 2019 lodged by Habib Ullah son of Ali Ahmad (appellant), is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 27.11.2019 are hereby set-aside. The appellant namely Habib Ullah son of Ali Ahmad is ordered to be acquitted by extending him the benefit of the doubt. The appellant namely Habib Ullah son

of Ali Ahmad is in custody and is directed to be released forthwith if not required in any other case.

(SADIQ MAHMUD KHURRAM)

JUDGE

Raheel

Approved for Reporting

JUDGE