Tanveer . Vs The State etc.

Stereo. HCJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Criminal Appeal No.7335/2022 Tanveer Vs. The State and another

Criminal Revision No.26176/2022 Mian Khan Vs. The State and another

JUDGMENT

Date of hearing 19.01.2026

For the Appellant: Ms. Bushra Qamar, Advocate.

Rana Tasawar Ali Khan, Additional Prosecutor For the State:

General.

For the Complainant: Mr. Khawar Nawaz Bharwana, Advocate. Mr. Muhammad Abid, Research Officer, Research assistance:

LHCRC.

Tariq Saleem Sheikh, J. – Through this consolidated judgment, I propose to decide Criminal Appeal No. 7335/2022 and Crl. Revision No.26176/2022, which arise from the judgment dated 17.01.2022 delivered by the Additional Sessions Judge, Chiniot.

2.On 18.05.2020, Mian Khan (PW-1) submitted a written application (Exh. PA) to Zafar Iqbal/Inspector (CW-7), for the registration of an FIR while he was at the place of occurrence. He stated that about four years earlier, his sister, Nasreen Bibi, had married Tanveer, and a daughter, Zahra Fatima, aged about 21⁄2 years, was born from the wedlock. Nasreen was residing in her matrimonial home along with her minor daughter. Tanveer had previously been employed at a petrol pump, but he had developed a habit of gambling and frequently sold household items. When Nasreen objected, he beat her. A few days before the incident, Tanveer sold Nasreen’s gold earrings, which led to a quarrel between them. PW Mian Khan further stated that on 17.05.2020, at the time of Iftar, he went to Nasreen’s house to resolve

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the matter, but remained worried about her. The following morning, i.e., on 18.05.2020, at the time of Sehri, his brother Muhammad Azam (PW-2) and Falak Sher (not produced) came to his house to discuss the latest quarrel between Nasreen and Tanveer. During the meeting, they decided to go to Nasreen’s house immediately. When they reached the entrance, they heard her cries from inside. They knocked at the door but received no response, so they climbed over it and entered the house. Inside the room, they allegedly saw Ali Hassan holding Nasreen by her legs and Ahmad Yar by her arms, while Tanveer was strangulating her by tying a Dupatta around her neck. When Mian Khan and his companions attempted to intervene and rescue Nasreen, Ali Hassan took out a pistol, aimed it at them, and extended threats to their lives. Thereafter, the accused fled the scene. Mian Khan and the witnesses attended to Nasreen, but she was dead.

3.After recording the police karwi on the application (Exh. PA), Zafar Iqbal/Inspector (CW-7) sent it to the City Chiniot police station through Haq Nawaz 143/C. Based on this application, Munawar Hussain 272/HC (CW-5) registered FIR No.396/2020 (Exh. CW-5/PA-1) under sections 302 and 34 PPC.

4.During the investigation, the police found that Ali Hassan and Ahmad Yar were not involved in the occurrence. Dissatisfied with this finding, Mian Khan (PW-1) filed a private complaint Exh. PB (titled: “Mian Khan v. Tanveer etc.”). The Additional Sessions Judge recorded cursory evidence and summoned Tanveer, Ali Hassan, and Ahmad Yar for trial. On 06.10.2020, he indicted them. They pleaded not guilty and claimed a trial.

5.To prove the charge, the prosecution produced three witnesses. Mian Khan (PW-1) and Muhammad Azam (PW-2) furnished the ocular account. Khalid Hussain (PW-3) identified Nasreen’s dead body. PW Falak Sher was given up as unnecessary. Besides, the Additional Sessions Judge examined seven persons as Court Witnesses. Riaz Ahmad/Draftsman (CW-1) prepared the scaled site plan (Exh. CW-1/A and Exh. CW-1/B). Abida Bibi 1182/LC (CW-2) escorted Nasreen’s body to the mortuary for autopsy. She was also a

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marginal witness of the Recovery Memo Exh. CW-2/A. Nasir Ali, Computer Operator (CW-3), received an email containing the call detail records (CDRs) of SIM Nos. 0349-5972113, 0342-0322613, and 0303-2461739. After obtaining printouts thereof, he handed them over to the Investigating Officer, who took the same into his possession through Recovery Memo Exh. CW-3/A. Muhammad Younas 475/C (CW-4) testified about the recovery of Dupatta (P-7) on the pointing out of Tanveer. Munawar Hussain 272/HC (CW-5) registered FIR No.396/2020 (Exh. CW-5/PA-1). He also testified about receiving a sealed parcel containing the last-worn clothes of the deceased, six sealed jars, and three sealed envelopes, and subsequently giving them to the Investigating Officer for delivery at the office of Punjab Forensic Science Agency (PFSA). Dr. Amna Qureshi (CW-6) furnished medical evidence. Zafar Iqbal/Inspector (CW-7) provided the details of his investigation. The public prosecutor gave up PWs Waheed Abbas 513/C and Allah Ditta as unnecessary and closed the prosecution evidence after tendering the forensic reports, Exh. PD and Exh. PE.

6.After the prosecution completed its evidence, the trial court recorded the statements of Tanveer, Ali Hassan, and Ahmad Yar under section 342 Cr.P.C. and confronted them with the incriminating material brought against them during the trial. They denied the allegations and professed innocence. They did not opt to make a statement on oath under section 340(2) Cr.P.C. or to produce any defence evidence.

7.When questioned about his implication in this case and why the prosecution witnesses deposed against him, Tanveer stated that they were closely related inter se and bore personal enmity towards him. He maintained that he had a cordial relationship with his wife, Nasreen, and that they were living together happily. On the night of the incident, he claimed that he was on duty at the Sarhad Meran Shah Petrol Pump on Jhang Road, located about 7 to 8 kilometres from his residence. Upon receiving information about the incident while at work, he returned home, where he learned of his wife’s death. He further stated that Nasreen had been alone in the house at the

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relevant time and had been murdered by unknown persons. His father, Ahmad Yar, informed Mian Khan about the incident, who then proceeded directly to the hospital. Tanveer denied the allegation that he had a gambling habit or that any FIR had ever been registered against him in that regard. He contended that he had intended to have a case registered against unknown persons for Nasreen’s murder, but was falsely implicated in this case due to collusion between the police and the complainant party.

8.On the conclusion of the trial, vide judgment dated 17.01.2022, the Additional Sessions Judge acquitted Ali Hassan and Ahmad Yar, extending them the benefit of doubt. However, he convicted Tanveer under section 302(b) PPC and sentenced him to imprisonment for life with a direction to pay Rs. 400,000/- to Nasreen’s legal heirs as compensation in terms of section 544-A Cr.P.C. and, in default thereof, to undergo simple imprisonment for a further one year. The benefit of section 382-B Cr.P.C. was extended to him.

9.Tanveer (hereinafter referred to as the “Appellant”) has challenged his conviction and sentence before this Court through Criminal Appeal No.7335/2022, while Mian Khan (PW-1) has filed Criminal Revision No.26176/2022 seeking enhancement of his sentence.

10.In support of Crl. Appeal No.7335/2022, Ms. Bushra Qamar, Advocate, contended that the Appellant was innocent and had been falsely implicated. She argued that the prosecution evidence was riddled with material contradictions which the trial court failed to properly evaluate. Although the occurrence allegedly took place at about 3:45 a.m. on 18.05.2020, the matter was reported to the police only at 9:15 a.m. This unexplained delay of nearly six hours, according to her, provided sufficient opportunity for consultation and fabrication. She further submitted that PWs Mian Khan and Muhammad Azam had not witnessed the occurrence and had not offered any plausible explanation for their presence at such an unusual hour. The prosecution had introduced them to strengthen an otherwise weak case. Counsel contended that the medical evidence was inconsistent with the Injury

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Statement (Exh. CW-6/C) and the Inquest Report (Exh. CW-6/D) prepared by the Investigating Officer (CW-7) and, in any event, was deficient because the Medical Officer (CW-6) did not document the classical signs ordinarily associated with death by strangulation. Lastly, she argued that the Appellant had been convicted on the same evidence on which the co-accused were acquitted, without any independent corroboration. She maintained that there were no circumstances justifying the conviction and prayed that the appeal be accepted and the Appellant be acquitted.

11.Rana Tasawar Ali Khan, Additional Prosecutor General (APG), opposed the appeal and supported the impugned judgment. He contended that the prosecution had proved its case against the Appellant through reliable evidence. According to him, the ocular account furnished by PWs Mian Khan and Muhammad Azam was trustworthy and remained unshaken during cross-examination. He maintained that the medical evidence corroborated the prosecution version and supported the cause of death as strangulation. The APG further relied upon the Appellant’s post-occurrence conduct, namely that he did not inform the police and did not take the deceased to the hospital. He submitted that the Appellant, under Article 122 of the QSO, was obligated to explain the circumstances in which his wife died an unnatural death within the matrimonial home and had failed to discharge that obligation. His defence plea, the APG argued, was vague and unsubstantiated. In support of these submissions, he relied upon Arshad Mehmood v. The State (2005 SCMR 1524), Saeed Ahmed v. The State (2015 SCMR 710), and Muhammad Ijaz alias Jajj v. The State (2025 SCMR 1591). He prayed that the appeal be dismissed and the conviction upheld.

12.In support of Crl. Revision No. 26176/2022, Mr. Khawar Nawaz Bharwana, Advocate, contended that the prosecution had successfully proved the Appellant’s guilt, but the punishment handed down by the trial court was not commensurate with the gravity of his offence. He, therefore, prayed that the Appellant’s sentence be enhanced.

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13.In rebuttal, Ms. Bushra Qamar contended that the precedents cited by the APG were inapplicable to the present facts. She argued that the principle that an accused must explain the circumstances in which his wife dies an unnatural death in the matrimonial home becomes relevant only where the prosecution has first discharged its primary burden by producing reliable and cogent evidence. In the absence of such foundational proof, no part of the burden shifts to the accused. She submitted that in the present case, the prosecution had failed to establish a credible ocular account, the medical evidence was inconclusive, and the motive remained unproven. Therefore, the Appellant’s conviction was unsustainable. In support of her submissions, she relied upon Abdul Majeed v. The State (2011 SCMR 941), Muhammad Jamshaid and another v. The State and others (2016 SCMR 1019), Nasrullah alias Nasro v. The State (2017 SCMR 724), Arshad Khan v. The State (2017 SCMR 564), Asad Khan v. The State (PLD 2017 SC 681), and Nazir Ahmad v. The State (2018 SCMR 787).

14.Arguments heard. Record perused.

15.An examination of the application (Exh. PA), FIR No. 396/2020 (Exh. CW-5/PA-1), and the private complaint (Exh. PB) shows that Mian Khan (PW-1) did not specify the exact time of occurrence in any of these documents. He alleged that on 18.05.2020, at Sehri time, the Appellant, along with his acquitted co-accused, Ali Hassan and Ahmad Yar, in furtherance of their common intention, murdered Nasreen by strangulation. It was only during his examination-in-chief that PW Mian Khan disclosed for the first time that the occurrence had taken place at about 3:45 a.m. Be that as it may, it is an admitted position that the written application was submitted to Zafar Iqbal/Inspector (CW-7) at about 9:15 a.m., on the basis of which FIR No. 396/2020 was registered at 9:40 a.m., i.e., after a lapse of nearly six hours. Although PW Mian Khan claimed that he had informed the police at about 4:30 a.m. through the cellphone of his relative Khalid Hussain, the latter was neither associated with the investigation nor produced at trial to corroborate this assertion. On the

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contrary, the Investigating Officer, Zafar Iqbal/Inspector (CW-7), categorically denied having received any such information and stated that he first came to know of the occurrence at about 8:45 a.m. through wireless communication. He further admitted that no inquiry was conducted to ascertain why PW Mian Khan or the alleged eyewitnesses did not approach the police earlier. The police station was approximately five kilometres from the place of occurrence and accessible through metalled roads. In these circumstances, the delay in lodging the FIR remains unexplained, which casts a serious doubt on the spontaneity and authenticity of the prosecution’s version.1

16.The postmortem report (Exh. CW-6/A) reflects that the police papers were received by the Medical Officer at 10:20 a.m., the body reached the mortuary at 10:30 a.m., and the autopsy commenced at 10:40 a.m. Although the postmortem was conducted promptly upon receipt of the requisite papers, given that the occurrence allegedly took place at about 3:45 a.m., the unexplained interval between the alleged time of occurrence and the initiation of formal proceedings cannot be overlooked. It raises a legitimate concern that the intervening time may have been used for consultation or to procure false eyewitnesses.2

17.There are several other inconsistencies in the prosecution evidence that make the presence of Mian Khan (PW-1) and Muhammad Azam (PW-2) at the place of occurrence at the relevant time doubtful. Mian Khan (PW-1) claimed that when the police arrived at the place of occurrence, he was already present there along with Muhammad Azam (PW-2) and Falak Sher (not produced). However, their names do not find mention in Column No. 4 of the Inquest Report (Exh. CW-6/D), which is prepared at the earliest stage and ordinarily records the names of persons found present with the deceased. There is also a material inconsistency concerning the condition of the dead body. The Inquest Report (Exh. CW-6/D) records that the deceased’s Iftikhar Hussain and others v. The State (2004 SCMR 1185), Noor Muhammad v. The State and another (2010 SCMR 97), Muhammad Fiaz Khan v. Ajmer Khan and another (2010 SCMR 105), Zeeshan @ Shani v. The State (2012 SCMR 428), Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068), and Mst. Asia Bibi v. The State and others (PLD 2019 SC 64).

Irshad Ahmed v. The State (2011 SCMR 1190), Muhammad Ashraf v. The State (2012 SCMR 419), Zafar v. The State and others (2018 SCMR 326), and Sufyan Nawaz and another v. The State and others (2020 SCMR 192).

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mouth was closed, whereas Dr. Amna Qureshi (CW-6) stated in her examination-in-chief that at the time of postmortem examination, the mouth was found open. Upon a specific suggestion, the Medical Officer clarified that she had not opened it herself. In the absence of any satisfactory explanation for this inconsistency, it assumes significance and affects the credibility of the prosecution’s version.

18.The prosecution’s version regarding the manner in which the alleged eyewitnesses gained access to the Appellant’s house and witnessed the occurrence also raises certain doubts. PWs Mian Khan and Muhammad Azam stated that upon reaching the house, they heard Nasreen’s cries, knocked at the door and, on receiving no response, entered by scaling the gate. According to PW Mian Khan, the outer gate was approximately five feet high, while the outer wall was about one to one-and-a-half feet lower. In contrast, Riaz Ahmad/Draftsman (CW-1) reported the height of the outer gate to be seven feet and that of the outer wall to be six feet. Although this discrepancy in measurements is not sufficient to draw an adverse inference against the prosecution, the Investigating Officer did not notice any marks, footprints, or other signs suggestive of scaling. The house was situated in a thickly populated locality, and the occurrence is alleged to have taken place at Sehri time during the last Ashra of Ramadan, when movement in the area would ordinarily be greater than usual. Yet no independent resident came forward to report hearing cries or witnessing any unusual activity, nor did the investigation disclose any neighbour, mosque attendee, or passer-by who observed the complainant party at the scene at the relevant time.

19.PWs Mian Khan and Muhammad Azam asserted that they saw the Appellant tying a Dupatta around Nasreen’s neck. Simultaneously, they maintained that Ali Hassan had pointed a pistol at them and prevented their entry into the room, and that they did not enter until after the accused had fled and Nasreen was already dead. If, as claimed, they were restrained at the threshold and prevented from entering the room, it is not explained how they were able to witness the act of strangulation with such certainty. This inconsistency affects the

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reliability of the ocular account. Moreover, no firearm was recovered during the investigation. While non-recovery of a weapon is not by itself decisive, this aspect contributes to the overall doubt surrounding the prosecution’s ocular account.

20.During cross-examination, PW Mian Khan stated that Nasreen’s body was lying on a cot when they entered the room. This fact is not mentioned in the application (Exh. PA) or the private complaint (Exh. PB). Riaz Ahmad/Draftsman (CW-1) admitted that neither PW Mian Khan nor the other witnesses informed him whether the body was lying on a cot or on the ground, nor whether the deceased had been strangulated in a standing or lying position. The Investigating Officer initially stated that he did not make any inquiry in this regard, but later contradicted himself by asserting that the witnesses had told him that the deceased was murdered on the cot, a fact not recorded in their statements under section 161 Cr.P.C. In the absence of clear and consistent evidence regarding the deceased’s posture or position, the prosecution’s version remains uncertain.

21.In this backdrop, the medical evidence assumes particular importance. Cox summarizes the ordinarily recognized medico-legal features associated with death by strangulation as follows:

“Strangulation is again a term which is not exact in itself, as there are several types of strangulation, mainly manual strangulation (sometimes called “throttling”) and strangulation by a ligature (sometimes called “garroting”). Apart from the mark due to the ligature and any possible ‘asphyxial’ changes, such as congestion, oedema, cyanosis, petechiae, and nose bleeding, certain other marks may be discovered on the skin in cases of ligature strangulation. The most frequent ones are those inflicted by the victim in an attempt to tear away the ligature and are usually seen as scratches on the skin of the neck near the position of the ligature. Most of the foregoing description applies equally to manual strangulation as to strangulation by a ligature, but there are certain important variations. The external appearances are vital. In place of the ligature mark described earlier, the neck will almost invariably show abrasions and bruises caused by the fingers of the assailant and again sometimes of the victim, where attempts at removing the compression have been made.”3

22.Dr. Amna Qureshi (CW-6), who conducted the postmortem examination, opined that the deceased died due to H W V Cox, Medical Jurisprudence and Toxicology (6th edn, Law Book Company) cited in Saeed Ahmed v The State (2015 SCMR 710).

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cardiopulmonary arrest as a result of strangulation. She noted multiple bruises around the neck, compression of the larynx and trachea. However, the hyoid bone was found intact. During cross-examination, Dr. Amna Qureshi candidly admitted that she had not recorded several commonly recognized features frequently associated with death by strangulation, including protrusion of the tongue, swelling or congestion of the face, petechial haemorrhages, cyanosis of the lips, ears or fingernails, prominence of the neck veins, congestion of the right side of the heart, or clenched hands. She further acknowledged that she had not mentioned any oozing of blood from the mouth or nose, nor had she recorded congestion of the eyeballs. Although she volunteered that bluish discoloration was observed around the eyes and that bruises around the neck made demarcation difficult, these explanations were not mentioned in the postmortem report and surfaced for the first time during her oral testimony.

23.Death by strangulation may manifest with varying internal and external features depending upon the manner, force and duration of compression. The absence of one or more commonly recognized signs does not negate the possibility of strangulation. Similarly, the fact that the hyoid bone was found intact does not conclusively exclude such cause of death, though it is a factor to be considered while assessing the overall medical picture. Therefore, the medical evidence, when examined in the context of the ocular account, does not furnish the degree of corroboration necessary to sustain the prosecution’s version and instead introduces further uncertainty.

24.Another aspect of the medical evidence merits consideration. The Investigating Officer, Zafar Iqbal/Inspector (CW-7), deposed that while preparing the Inquest Report (Exh. CW-6/D), he observed four injuries on different parts of the deceased’s body, namely the left eye, lumbar region, back, and neck. However, Dr. Amna Qureshi (CW-6) categorically stated that, upon postmortem examination, she did not observe any injury on the body of the deceased except the neck. In an attempt to reconcile this discrepancy, the Medical Officer offered explanations by stating that the alleged

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additional injuries were “secondary” to strangulation and that the bluish discoloration observed could be attributed to postmortem coagulation of blood. Since these explanations were not mentioned in the postmortem report (Exh. CW-6/A), they affect the weight of the medical evidence and cannot cure the deficiencies apparent on its face.

25.The prosecution alleged that the Appellant strangulated Nasreen with a Dupatta. However, when the Investigating Officer examined the body, no Dupatta was found around her neck. Even PWs Mian Khan and Muhammad Azam admitted that it was not present when they reached the deceased and that they themselves placed it on her face out of respect. During cross-examination, PW Mian Khan asserted for the first time that the Dupatta used for strangulation had been taken away by the Appellant while fleeing, a fact not mentioned in the application (Exh. PA) or the private complaint (Exh. PB). In any event, once the ocular account is found to be unreliable, recovery evidence cannot independently establish the prosecution’s case.4 The Dupatta (P-7), allegedly recovered on the Appellant’s pointing out, was a common household article bearing no distinctive marks and was not sent to the PFSA for examination to detect any biological or trace evidence. In these circumstances, the alleged recovery does not connect the Appellant with the offence.

26.As regards the motive, there is no evidence regarding it except bald statements of PWs Mian Khan and Muhammad Azam, which are insufficient to establish it. Importantly, the Investigating Officer, Zafar Iqbal/Inspector (CW-7), also failed to collect any material to support the alleged motive. It is well settled that the prosecution is not obliged to prove motive in every criminal case, but where it specifically alleges one, failure to establish it may weaken the prosecution’s case.5

27.The prosecution produced call detail records through Nasir Ali (CW-3). The CDR reflects that incoming calls were received on the Abdul Mateen v. Sahib Khan and others (PLD 2006 SC 538), and Noor Muhammad v. The State and another (2010 SCMR 97).

Tajamal Hussain Shah v. The State and another (2022 SCMR 1567).

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Appellant’s mobile phone at 3:36 a.m. and 3:39 a.m. on 18.05.2020. However, the exhibit does not identify any specific house or building. It merely contains technical cell identification codes corresponding to a general geographical area served by the mobile network. This evidence indicates only tower coverage and does not establish the precise physical location of the handset or demonstrate the Appellant’s presence inside the room where the occurrence allegedly took place. The CDR, therefore, does not furnish an independent connecting link between the Appellant and the homicidal act.

28.The infirmities discussed above cumulatively create reasonable doubt regarding the prosecution’s version. In criminal jurisprudence, such doubt must necessarily enure to the benefit of the accused. It is well settled that acquittal of a co-accused does not, as a matter of law, automatically entitle the remaining accused to acquittal. The court may, in an appropriate case, convict a particular accused even on the basis of the same evidence if it is independently corroborated.6 In the present case, the trial court has acquitted Ali Hassan and Ahmad Yar on the same evidence. Since there is no independent corroboration against the Appellant, his conviction cannot safely be sustained.

29.The APG has, however, contended that since Nasreen met an unnatural death within the confines of her matrimonial home, the Appellant was required, within the contemplation of Article 122 of the QSO, to explain the circumstances in which she died. It is, therefore, necessary to examine the scope and ambit of that provision. For ease of reference, it is reproduced below:

122.Burden of proving fact especially within knowledge. – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustration:

(a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b)A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Maqsood Alam and another v. The State and others (2024 SCMR 156).

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30.Courts have considered the above provision in various cases. Interpreting section 106 of the Indian Evidence Act, 1872, which is in pari materia with Article 122 of the QSO, the Supreme Court of India (SCI) in State of Madhya Pradesh v. Balveer Singh, [2025] 2 S.C.R. 836 : 2025 INSC 261, held that the word “especially” refers to facts that are pre-eminently or peculiarly within the knowledge of the accused. The provision does not dilute the fundamental rule embodied in section 101 of the Evidence Act7 that the burden of proving guilt in a criminal trial rests throughout upon the prosecution. Rather, it is a limited exception in cases where it would be disproportionately difficult for the prosecution to prove facts that lie within the exclusive knowledge of the accused. The SCI further stated that section 106 comes into play only after the prosecution has first established foundational facts giving rise to a reasonable inference of guilt. In such a situation, the accused may be called upon to explain facts peculiarly within his knowledge which may render the prosecution’s case doubtful. If the explanation offered is reasonably probable, he is entitled to the benefit of doubt even if he is unable to prove it beyond reasonable doubt. Conversely, the absence of any explanation, or the furnishing of a false or unacceptable one, may constitute an additional incriminating circumstance. The SCI clarified the distinction between the burden of proof and the burden of going forward with evidence, holding that while the legal burden never shifts from the prosecution, the evidential burden or burden of explanation may shift depending on the testimony, without in any manner displacing the prosecution’s obligation to prove the charge beyond a reasonable doubt.8

31.Earlier, in Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681], the SCI observed that where an offence is committed in secrecy within a house, the prosecution may face inherent difficulties in leading direct evidence, and insistence upon an unrealistically strict standard of proof may, in some cases, enable the guilty to escape. It was held that although the nature and quantum of Section 101 of the Indian Evidence Act 1872 is analogous to Article 117 of the QSO.

See also Sadashiv Dhondiram Patil v. State of Maharashtra [2025] 1 S.C.R. 592 : 2025 INSC 93, which reiterates this principle.

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evidence required in such cases may be of a comparatively lighter character, the initial burden to establish the prosecution case nonetheless remains upon the prosecution. Only after it succeeds in placing credible material showing that the offence occurred within the dwelling house where the accused ordinarily resided does a corresponding obligation arise upon the inmate to offer a cogent explanation as to how the crime was committed. Failure to furnish such an explanation, or offering a false one, may then assume relevance as a corroborative circumstance, but cannot, by itself, substitute proof or cure inherent weaknesses in the prosecution’s case.

32.In Pakistan, the Supreme Court has examined the application of Article 122 of the QSO in a series of reported judgments, some of which were cited at the bar. In Abdul Majeed v. The State (2011 SCMR 941), the Supreme Court of Pakistan held that, in the absence of positive prosecution evidence, an accused cannot be convicted merely on the presumption that, because the murder of his wife occurred in his house, it must have been committed by him and no one else. A conviction based solely on that circumstance was held to be legally unsustainable. Similarly, in Muhammad Jamshaid and another v. The State and others (2016 SCMR 1019), the only circumstance relied upon by the prosecution was that the deceased’s dead body had been found inside the appellant’s house. The courts below concluded that it must have been the appellant who caused the death. The Supreme Court characterized this reasoning as speculative and reiterated that suspicion, however strong, can never substitute proof beyond a reasonable doubt in a criminal case. In Arshad Khan v. The State (2017 SCMR 564), the Court observed that where a wife dies an unnatural death within the matrimonial home, some part of the onus may lie upon the accused to explain the circumstances of her death. However, if the prosecution fails to discharge its initial burden, no onus shifts to the accused. In Nasrullah alias Nasro v. The State (2017 SCMR 724), the Supreme Court reiterated that the prosecution must prove its case beyond a reasonable doubt at every stage of the trial. Where the prosecution asserts the presence of eyewitnesses but

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fails to substantiate that claim, the accused cannot be convicted merely on the presumption that, because the murder occurred in his house, he must have committed it. These principles were subsequently reaffirmed in Asad Khan v. The State (PLD 2017 SC 681) and Nazir Ahmad v. The State (2018 SCMR 787).

33.In contrast, in Arshad Mehmood v. The State (2005 SCMR 1524), it was held that where a wife dies an unnatural death within the matrimonial home, and the prosecution succeeds in establishing credible evidence connecting the accused with the occurrence, some part of the onus may shift to the husband to explain the circumstances in which the death occurred. This enabling approach was further elaborated in Saeed Ahmed v. The State (2015 SCMR 710), wherein the Supreme Court observed that with regard to vulnerable members of society, such as women, children, and the infirm, who were living with the accused or were last in his company, the accused ought to offer some explanation as to what befell them. The Court clarified that if he remains silent or offers a false explanation, he casts a shadow upon himself, though it does not amount to a shifting of the burden of proof, which remains on the prosecution at all times.

34.A similar principle was applied in Dilawar Ali v. The State and others (2022 SCMR 1066), where the Supreme Court held that in cases involving spouses sharing a joint abode, the fact that the deceased had spent the preceding night with the accused under the same roof may, in appropriate circumstances, attract the application of Article 122, thereby requiring the accused to explain what had occurred, particularly where the prosecution evidence also suggested acrimony between the spouses. In Muhammad Ijaz alias Jajj v. The State (2025 SCMR 1591), the Supreme Court reiterated that an accused is not required to take a special plea; however, where the only alternative hypothesis to guilt is a remote possibility which, if true, lies especially within the accused’s knowledge, the absence of any explanation is a relevant consideration in determining whether such possibility ought to be accepted or discarded.

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35.Recently, in Waris Masih v. The State (Jail Petition No. 787/2018, decided on 21.01.2026), the Supreme Court outlined the following principles of criminal jurisprudence that apply to cases involving the homicidal death of a wife within the matrimonial home:

(i)The Supreme Court reaffirmed that the foundational burden of proof in criminal cases always rests upon the prosecution under Article 117 of the QSO. The prosecution must prove beyond reasonable doubt not only that the death was homicidal but also that it was caused by the accused. Where the prosecution fails to discharge this burden, the benefit of such doubt must, as a matter of right, be extended to the accused. The Court distinguished “burden of proof” and “onus of proof”, holding that the burden of proof refers to the obligation to establish the entire case and the guilt of the accused beyond reasonable doubt, a burden which, in criminal proceedings, always rests upon the prosecution and never shifts. The onus of proof, on the other hand, pertains to the responsibility of proving a particular fact or issue, which may, depending upon the circumstances of the case, shift during the course of trial.

(ii)The Supreme Court further endorsed the principle that crimes committed within the secrecy of the matrimonial home are often crimes of “difficult proof,” requiring careful application of evidentiary principles relating to facts within special knowledge, without diluting the prosecution’s primary burden. The rationale for treating the husband as a primary suspect in such cases stems not from a presumption of guilt, but from the social and legal responsibilities traditionally associated with his position within the family unit, which has long been regarded as the basic unit of society.

(iii)In cases where a wife is found dead inside the matrimonial home, the first inquiry must be whether the death was natural or unnatural. If unnatural, the next question is whether it was suicidal or homicidal. Once homicide is established, the investigation should focus on the surrounding circumstances, particularly the place of occurrence and the accused’s proximity and conduct before, during, and after the incident, which is relevant under Article 22 of the QSO. Failure to report the occurrence, non-participation in burial rites, and abscondence may be reckoned as corroborative circumstances reinforcing guilt.

(iv)In the event of the homicidal death of a wife in the matrimonial home, Article 122 of the QSO becomes relevant, which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The husband is responsible for providing a satisfactory explanation of the circumstances that led to the incident. Article 129 of the QSO authorizes the court to draw adverse inferences from the failure of a party to submit evidence that it is capable of submitting. The court may assume

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that evidence that could be produced but is not would be unfavourable to the individual who withholds it if it were produced.

(v)A mere denial in the statement under section 342 Cr.P.C., without substantiation, is insufficient. While Article 122 does not relieve the prosecution of its primary burden, the absence or falsity of an explanation may constitute only as an additional incriminating circumstance once the prosecution has otherwise established a chain of circumstances pointing to guilt. Thus, where the prosecution proves that the accused and the deceased were living together, were last seen together shortly before the occurrence, or that the offence took place within the residence, and the husband fails to explain the injuries sustained by the deceased or offers a false explanation, such omission may constitute an additional link in the chain of circumstantial evidence against him.

36.In Waris Masih, the Supreme Court observed that precedents such as Nasrullah9 and Nazir Ahmad10 are frequently relied upon to contend that a husband cannot be convicted merely because his wife is found dead inside the matrimonial home. The Court clarified that the acquittals in those cases turned upon the particular evidentiary deficiencies therein and do not lay down a rule of universal application. Where there is no ocular account, no credible evidence of third-party intervention, and the death occurs within the exclusive domain of the matrimonial household, the prosecution may rely on strong and consistent circumstantial evidence – such as the place of occurrence, last-seen evidence, the accused’s conduct, and failure to explain facts within his special knowledge. If these circumstances form a complete and unbroken chain excluding every reasonable hypothesis of innocence, conviction on circumstantial evidence is legally sustainable.

37.The principles emerging from the foregoing authorities are that in cases involving the homicidal death of a wife within the matrimonial home, the prosecution must first link the accused with the occurrence through reliable direct or circumstantial evidence. Only thereafter may the husband be called upon, within the contemplation of Article 122, to offer a plausible explanation of the circumstances leading to her death. In the absence of such an explanation, the court may, under Article 129, Illustration (g), draw an adverse inference Nasrullah alias Nasro v. The State (2017 SCMR 724).

Nazir Ahmad v. The State (2018 SCMR 787).

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against him. The applicability of Article 122 is thus contingent, not automatic. Saeed Ahmed, Muhammad Ijaz alias Jajj, and Waris Masih do not depart from these principles; they reaffirm them.

38.Applying the above principles to the present case, the threshold question is whether the prosecution has established reliable connecting circumstances sufficient to attract Article 122 of the QSO. The inquiry is not whether the Appellant furnished an explanation for Nasreen’s death, but whether the prosecution case, assessed independently and on its own strength, justifies calling upon him to do so.

39.As discussed earlier, the ocular account has been found unreliable. The medical evidence does not provide the required degree of corroboration. The CDRs and the alleged recovery of the Dupatta (P-7) do not connect the Appellant with the occurrence. The prosecution has also failed to establish that the Appellant was last seen with the deceased immediately before her death or that the offence occurred in circumstances exclusively attributable to him. The only remaining factor relied upon is that he did not inform the police and did not take his wife to the hospital. Such post-occurrence conduct may constitute a corroborative circumstance but, in the absence of credible connecting evidence, it cannot be reckoned as a foundational fact so as to attract Article 122. Therefore, the mere fact that Nasreen died an unnatural death inside the matrimonial home does not, by itself, connect the Appellant with the occurrence. To invoke Article 122 on that basis would amount to impermissibly shifting the evidential burden. Silence or non-explanation becomes relevant only after the prosecution has discharged its primary obligation. Suspicion, howsoever grave or strong, cannot substitute proof beyond a reasonable doubt,11 nor can an accused “be condemned on the basis of moral satisfaction in the absence of evidentiary certainty.”12 Muhammad Jamshaid and another v. The State and other (2016 SCMR 1019).

Muhammad Pervaiz v. The State and others (PLD 2019 SC 592).

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40.The authorities relied upon by the APG are distinguishable. In Arshad Mehmood13 and Saeed Ahmed,14 the prosecution had produced reliable eyewitness testimony duly corroborated by medical evidence, and it was only thereafter that the accused’s failure to explain assumed relevance. In Muhammad Ijaz alias Jajj,15 credible evidence connected the accused with the occurrence, and factors such as abscondence and non-reporting were considered in that context. Likewise, in Waris Masih, referred to above, the prosecution had produced direct evidence from an injured eyewitness, namely the daughter of the accused and the deceased, along with strong corroborative circumstances, including post-occurrence conduct. The present case lacks such reliable foundational evidence.

41.The Appellant’s defence recorded under section 342 Cr.P.C., including his plea of being on duty at a petrol pump, need not be examined in detail, in view of the prosecution’s failure to establish the foundational facts necessary to sustain the charge.

42.In view of the foregoing, I accept Crl. Appeal No.7335/2022 and acquit the Appellant.

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43.Since I have acquitted the Appellant by disbelieving the prosecution’s evidence presented in this case, Crl. Revision No.26176/2022 has become infructuous. Resultantly, it is dismissed.

(Tariq Saleem Sheikh) Judge Naeem

Approved for reporting

Judge

Arshad Mehmood v. The State (2005 SCMR 1524).

Saeed Ahmed v. The State (2015 SCMR 710).

Muhammad Ijaz alias Jajj v. The State (2025 SCMR 1591).