Saqib Ali etc. Vs The State

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

Criminal Appeal No. 42220 of 2023 (Saqib Ali and another Vs. The State and another.)

JUDGMENT

Date of hearing: 10.09.2026.

Appellants by: Mr. Muhammad Nadeem Siddiqui, Advocate State by: Mr. Muhammad Mustafa, Deputy Prosecutor General. Complainant by:- Syed Abdul Rehman Naqvi, Advocate.

SADIQ MAHMUD KHURRAM, J. – The appellants namely

Saqib Ali son of Safdar Ali and Amina Bibi widow of Muhammad Usman were tried by the learned Additional Sessions Judge, Wazirabad, in the case F.I.R. No.

455 of 2021 dated 13.08.2021 registered at Police Station Ghakhar Mandi District Wazirabad in respect of offences under sections 302,374 and 34 for committing the Qatl-i-Amd of Muhammad Usman son of Ghulam Mustafa (deceased). The learned trial court vide judgment dated 29.04.2023, convicted the appellants namely Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman and sentenced them as infra:

Saqib Ali son of Safdar Ali:-

i)Imprisonment for life under section 302(b) P.P.C. read with section 34 P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Usman (deceased) and directed to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict

was directed to further undergo six months of simple imprisonment.

Amina widow of Muhammad Usman

i)Imprisonment for life under section 302(b) P.P.C.

read with section 34 P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Usman son of Ghulam Mustafa (deceased) and directed to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

The appellants namely Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman were however extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.

2.Feeling aggrieved, the appellants namely Saqib Ali son of Safdar Ali and Amina Bibi widow of Muhammad Usman lodged the instant Criminal Appeal No.42220 of 2023, assailing their convictions and sentences.

3.Precisely, the necessary facts of the prosecution case, as narrated by Ghulam Mustafa (PW-1), the complainant of the case are as under:- Stated that marriage of my son namely Muhammad Usman was solemnized with lady accused Amina Arshad about three years ago. Lady accused Amina had developed illicit relations with her co-accused Saqib Ali 1- 1/2 years ago. When we used to forbid lady accused Amina, she used to quarrel with us. Our neighbors also knew about this illicit relation. On 13.08.2021 at 02:00-am, I along with my sons Muhammad Abu Bakar and Muhammad Umar was present on the roof of my house. We heard noise of quarrel,. We all three witnesses in the light of bulb that both accused persons Amina and Saqib were lying on the same cot (charpoу). Му son Usman was admonishing them. Both accused persons put the dopatta around the neck of my son Usman and

strangulated him. We all three also witnessed the said occurrence in the light of bulb. Accused Saqib was armed with pistol. He warned us not to come close , otherwise he would fire on us. After murdering my son Usman, both accused persons escaped from the place of occurrence. In order to save our respect, we did not disclose this occurrence to anyone. When we gave last bath to dead body, the matter revealed to our neighbors. Both accused persons had jointly murdered my son Usman in order to continue their illicit relations. Thereafter, I moved written application (Ex.PA) to police station Ghakhar Mandi which bears my signature and thumb impressions (Ex.ΡΑ/1).

4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 09.12.2021, to which the accused pleaded not guilty and claimed trial, where after the learned trial court proceeded to summoned the prosecution witnesses..

5.The prosecution in order to prove its case got statements of as many as fifteen witnesses recorded. The ocular account of the case was furnished by Ghulam Mustafa (PW-1) and Muhammad Abu Bakar (PW-2). Muhammad Zubair (PW-3) stated that on 13.08.2021, he had identified the dead body of the deceased at the time of the postmortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police in his presence.

Asghar Ali (PW-4) stated that on 28.08.2021, the appellant namely Saqib Ali got recovered the Dupatta (P-2) and wire (P-3) which were taken into possession through recovery memo (Exh.PF) by the Investigating Officer of the case.

Muhammad Awais 4769/C (PW-5) stated that on 13.08.2021, he escorted the dead body of the deceased to the hospital and received the shroud (Kafan) from

the Medical Officer after the post mortem examination and handed them over to the Investigating Officer of the case. Ayesha Mustafa 1912/LC (PW-6) stated that she escorted the appellant namely Amina to the hospital where the said appellant Amina was examined by the Medical Officer. Muhammad Rizwan 2169/LHC (PW-7) stated that he prepared the scaled site plan of the place of occurrence (Exh.PH). Raheel Sattar, ASI (PW-8) stated that on 13.08.2021 he got recorded the formal FIR (Exh.PL) Muhammad Afzal 1173/C (PW-9) stated that on 23.08.2021, the appellant namely Saqib Ali son of Safdar Ali was arrested by the Investigating Officer of the case and the pistol (P-4) was recovered from his possession which was taken into custody through the recovery memo (Exh.PJ). Muhammad Rizwan 2868/DC (PW-12) stated that on 13.08.2021, he visited the place of the incident, received three sealed parcels from the team of Punjab Forensic Science Agency at the place of the incident.

Hafiz Sheraz Ali, Junior Forensic Scientist (JFS) (PW-13) on 13.08.2021, visited the place of the incident and prepared the Exhibit sheet (Exh.PR) . Muhammad Ashraf 2809/HC (PW-14) stated that on 13.08.2021, he received the sealed parcel from Javed Chaudhry, SI (PW-10) , the Investigating Officer of the case and on 14.08.2021, he received three sealed parcels and envelopes from Javed Chaudhry, SI (PW-10) and on 17.08.2021, he handed over the sealed parcels to Javed Chaudhry, SI (PW-10) for their onward transmission to the office of Punjab Forensic Science Agency and on 23.08.2021, he received a sealed parcel said to contain the pistol recovered from the appellant namely Saqib Ali from the Investigating Officer of the case and on 27.08.2021, he handed over the said parcel ot Javed Chaudhry, SI (PW-10) for its onward transmission to the office

of Punjab Forensic Science Agency and on 28.08.2021, he received sealed parcel said to contain a Dupatta and wire from Javed Chaudhry, SI (PW-10) and on 30.08.2021, he handed over the said sealed parcels to Javed Chaudhry, SI (PW-10) for its onward transmission to the office of Punjab Forensic Science Agency. Javed Chaudhry SI (PW-10) investigated the case from 13.10.2021 till 31.08.2021, arrested the appellant namely Amina widow of Muhammad Usman on 14.08.2021 and arrested the appellant namely Saqib Ali on 23.08.2021 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. Rafique Shah (PW-15) examined, who on 13.08.2021, was posted as Medical Officer at THQ hospital Wzirabad and on 14.08.2021 conducted the post mortem examination of the dead body of Muhammad Usman son of Ghulam Mustafa (deceased) On conducting the post mortem examination of the dead body of Muhammad Usman (deceased) the Dr.

Rafique Shah (PW-15) observed as under:-

“DETAIL OF INJURIES

1.Black strangulated scar mark of 6x2-cm, 4-cm supraclavicular region with 1x1-cm vertical bruise at center of neck.

2.Fracture of left sided hyoid bone on neck dissection autopsy.

OPINION

In my opinion, injuries stated above were ante-mortem and caused by blunt means. Cause of death in this case was due to injuries No.1 and 2 causing interference with respiration at the level of neck leading to as asphyxia and death.

Probable duration between injuries and death was 3 to 5 minutes whereas the duration between death and post mortem was 20 to 24 hours.”

The prosecution also got Dr. Hafiza Asima Mushtaq , (Pw-11) Woman Medical Officer, examined who stated that she had examined the appellant namely Amina widow of Muhammad Usman on 14.08.2021 and had issued the medico legal examination certificate (Exh.PQ)

7.On 30.08.2022, the learned Deputy District Public Prosecutor gave up two prosecution witness namely Muhammad Umar as being unnecessary. On 27.07.2022, the learned Deputy District Public Prosecutor gave up prosecution witnesses namely Jamshed Ali and Asad Mahmood as being unnecessary. On 29.11.2022, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Nabeel Ahmad 4868/C and Sarfraz Ahmad 165/C as being unnecessary. On 10.03.2023 the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency (Exh.PT) and (Exh.PU).

8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Saqib Ali son of Safdar Ali and Amina Bibi widow of Muhammad Usman under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Saqib Ali son of Safdar Ali and Amina Bibi widow of Muhammad

Usman opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.

9.At the conclusion of the trial, the learned Additional Sessions Judge, Wazirabad, convicted and sentenced the appellants as referred to above.

10.The contention of the learned counsel for the appellants precisely was that the whole case was 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 appellants 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 appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.

11.On the other hand, the learned Deputy Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General and learned counsel for the complainant further argued that the deceased died as a result of strangulation at the hands of the appellants. The learned Deputy Prosecutor General and learned counsel for the

complainant further contended that the medical evidence also corroborated the statements of the eye witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the recoveries from the appellants also corroborated the ocular account. The learned Deputy Prosecutor General and the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal.

12.We have heard the learned counsel for the appellants,the learned counsel for the complainant as well as the learned Deputy Prosecutor General and perused the record with their able assistance.

13.The gravest and most foundational flaw in the prosecution case is the delay with which the matter was reported to the police by Ghulam Mustafa (PW-1), the father of the deceased as well as the complainant of the case. It was admitted by Ghulam Mustafa (PW-1) that despite the occurrence having been witnessed by him and the prosecution witness namely Muhammad Abu Bakar (PW-2) on 13.08.2021 at 02.00 a.m (at night) still he gave the written application (Exh.PA) for the registration of the FIR at the Police Station on 13.08.2021 at 07.30 p.m , when the distance between the place of occurrence and the police station was only six kilometers. In this manner, by admission of Ghulam Mustafa (PW-1) , the written application (Exh.PA) for the registration of the FIR was submitted at the Police Station after a delay of as many as more than fifteen hours after the

incident, for which no explanation has been given. The matter was not even being reported to the extent that already the burial of Muhammad Usman (deceased) had been arranged prior to the reporting of the case to the police and it was for this reason that when Dr. Rafique Shah (PW-15) conducted the post mortem examination of the dead body of the deceased, the said dead body had been covered in a shroud (Kafan) and not the last worn clothes as worn by the deceased at the time of his death. It is also a fact admitted by Ghulam Mustafa (PW-1) that it was he, who handed over the last worn clothes of the deceased to Javed Chaudhry, SI (PW-10) at the time of his arrival at the place of occurrence.

No explanation has been offered as to why such a huge delay was made in reporting the matter to the police. The delay in itself rocks the whole foundation of the prosecution case, making it so brittle and so weak that the edifice constructed upon the same cannot bare the weight of it. This inordinate delay in reporting the matter conclusively proves that the written application (Exh. PA) of Ghulam Mustafa (PW-1) and the formal F.I.R (Exh. PI) were prepared after a probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Abu Bakar (PW-2) had not witnessed the occurrence, the delay was used for developing a false narrative of the written application (Exh. PA). As many as fifteen hours were taken to invent a false and dishonest account of the written application (Exh. PA) of Ghulam Mustafa (PW-1). The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PA) of Ghulam Mustafa (PW-1) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts

have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences that they had not seen the occurrence. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:-

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

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

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

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

“It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay in lodging the FIR or for that matter the belated postmortem of the deceased.”

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

14.Another aspect of the case which denudes the absence of the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) at the place of occurrence are their admissions that their house was separate from the house of the deceased, in the courtyard of which house, the incident had taken place. While appearing before the learned trial court both the prosecution

witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) had claimed that they were sleeping on the roof of their own house and had witnessed the occurrence from the said roof ,which occurrence had taken place in the courtyard of the house of Muhammad Usman (deceased) , however, during cross examination both prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) candidly admitted that their house was separate from the house of the deceased and furthermore that there was a distance of as much as 20 feet between the entry doors of both the houses. During cross examination Ghulam Mustafa (PW-1) admitted as under:- “My son Usman was living in a separate house with his wife which was adjacent to my house and both were connected through a door My house and house of deceased Usman had their independent entry doors.

There is distance of 20-feet between both entry doors.” (emphasis supplied)

During cross examination Muhammad Abu Bakar (PW-2) admitted as under:- “My house is adjacent to the house of Usman and Amina. Our house is on northern side whereas the house of Usman was on the southern side. On the eventful night, I was sleeping along with my father and my brother Muhammad Umar in our house. My father was sleeping on my left side on his separate charpoy whereas my brother Muhammad Umar was lying on my right side on his separate cot.”(emphasis supplied) In this manner, during cross examination, Ghulam Mustafa (PW-1) and Muhammad Abu Bakar (PW-2) candidly admitted that their house and their

place of residence was entirely different from the house of Muhammad Usman (deceased) and therefore, the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) were under a duty to prove that in those circumstances they could have seen the incident as it was taking place, however, both the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) ,after admitting that their residence was entirely different and separate from the house of Muhammad Usman (deceased) , did not explain as to in what manner and how they were able to witness the incident which was taking place in the house of the deceased and that too at night time. Muhammad Usman (deceased) was son of Ghulam Mustafa (PW-1) and the brother of Muhammad Abu Bakar (PW-2) and when both these prosecution witnesses themselves went on to claim that their house was separate from the house of Muhammad Usman (deceased) then the validity of the scaled site plan of the place of occurrence (Exh.PH) and the unscaled site plan of the place of occurrence as prepared by Javed Chaudhry, SI (PW-10) (Exh.PJ/2) is rendered next to nothing .

Furthermore, Muhammad Rizwan 2169/LHC (PW-7) who had prepared the scaled site plan of the place of occurrence (Exh.PH) and Javed Chaudhry, SI (PW-10) the Investigating Officer of the case admitted that who had prepared the unscaled site plan of the place of occurrence (Exh.PJ/2), admitted during cross examination that in the said site plan (Exh.PH and Exh.PJ/2), the cots of the prosecution witnesses had not been marked neither had the cots of the accused, on which the allegedly they were lying with each other prior to the incident, had been marked. During the cross examination , , Muhammad Rizwan 2169/LHC (PW-7) stated as under:-

“It is correct that charpoys have not been specifically shown in Ex.PH. I have also not shown any charpoys of witnesses in points D and E. ” During cross examination Javed Chaudhry, SI (PW-10) stated as under:- “It is correct that I have not mentioned in Ex.PJ/2 the point where both accused persons were seen lying together and involved in immoral act on the same cot.”

It is also an admitted fact of the prosecution case that though the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) claimed that they were sleeping on the cots when the incident had taken place, however, no such cots were either observed by Javed Chaudhry, SI (PW-10) at the time of his visit to the place of occurrence nor any such cots were taken into possession by him During cross examination Javed Chaudhry, SI (PW-10) admitted as under:-

“It is correct that I have also not mentioned in Ex.PJ/2 the point where complainant and eye-witnesses were sleeping on their cots. It is correct that I have not taken any charpoy in custody.”

All these facts of the prosecution case and the contradictions brought on record only prove that the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) could not prove beyond shadow of doubt that they were indeed present at the place from where they could have witnessed the occurrence.

15.This Court has also noticed that both the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) claimed to have witnessed

the occurrence in the light of an electric bulb , however, Javed Chaudhry, SI (PW-10) during the course of investigation of the case did not take any such electric bulb which was lit at the place of occurrence and in the light of which the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) had witnessed the occurrence despite his presence at the place of incident for a considerable time. Javed Chaudhry, SI (PW-10) admitted during cross examination as under:-

“It is correct that I have not taken any bulb or other source of light in custody.”

In view of the failure of the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) as well as Javed Chaudhry, SI (PW-10) to prove the presence of the light source lit at the place of the incident. in the light of which prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) had witnessed the occurrence, this Court cannot presume that fact on its own. It was admitted by the witnesses themselves that it was a dark night and as the prosecution witnesses failed to prove the availability of any 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's 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.”

16.This Court has also noted that the absence of both prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) at the place of occurrence is also revealed from the fact that their names were neither mentioned in column No.4 of the inquest report (Exh.PM) or even at page 4 of the inquest report (Exh.PM) as being the witnesses who were present at the place where the dead body was available at the time of preparation of the said inquest report. Had the witnesses namely prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) been present at the place of incident then their presence must have been marked and mentioned in the inquest report (Exh.PM) which inquest report was being prepared after as many as more than fifteen hours of the incident. The absence of the prosecution witnesses Ghulam Mustafa (PW-

1)and Muhammad Abubakr (PW-2) is further proved by the fact that according to the statement of Hafiz Sheraz Ali, (PW-13) Junior Forensic Scientist (JFS) he had visited the place of the incident on 13.08.2021 at 04.45 P.M and had prepared the Exhibit sheet (Exh.PR) at the said date and time. In the statement before the learned trial court Hafiz Sheraz Ali, (PW-13) Junior Forensic Scientist (JFS) stated as under:-

“ Stated that on 13.08.2021, I was posted at Crime Scene Investigation Unit Gujranwala as JFS. On receiving the information regarding the alleged occurrence, I along with my team reached at crime scene i.e. village Chaura. I inspected the place of incident and examined the dead body of Hafiz Muhammad Usman lying there. I obtained two swabs each from both hand nails of deceased. I also secured two swabs from buccal cavity of deceased. I prepared three separate parcels and sealed the same on the spot. I also prepared the exhibit sheet (Ex.PR). I handed over afore-referred three sealed parcels and carbon copy of Ex. PR to Rizwan constable and received his receiving on said document.

Investigating officer recorded my statement on the spot.”

This very fact that Hafiz Sheraz Ali, (PW-13) Junior Forensic Scientist (JFS) when he had visited the place of the incident on 13.08.2021 at about 04.45 p.m i.e nearly three hours prior to the registration of the FIR and after more than fourteen hours of the incident , that the dead body of the deceased was still present at the same house only proves on record that the deceased had died alone and therefore no one even discovered his death till such delayed time and date.

17.This Court has also noticed that according to the statement of Dr. Rafique Shah (PW-15), who had conducted the post mortem examination of the dead body of the deceased, he had conducted the said post mortem examination on 14.08.2021 at 12.10 a.m and according to the opinion of Dr. Rafique Shah (PW- 15), the time which shall lapsed between the death and post mortem examination of the dead body of the deceased was as much as 22 to 24 hours. In his statement recorded by the learned trial court , Dr. Rafique Shah (PW-15) got recorded as under:-

“Probable duration between injuries and death was 3 to 5 minutes whereas the duration between death and post mortem was 20 to 24 hours. ”

This delay in the conducting of the post mortem examination of the dead body of the deceased only proves that the said delay was used to not only invent a false narrative but to also procure the attendance of the witnesses.No explanation was offered to justify the said delay in receiving the complete documents from the police and the delay in conducting the post-mortem examination. These facts clearly establish that the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post-mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post-mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

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

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

“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the

mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post- mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal F.I.R. was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution”

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

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

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

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

18.With regard to the recovery of Dupatta (P-2) and the wire (P-3) from the possession of the appellant namely Saqib Ali, this Court has observed that according to the report of Punjab Forensic Science Agency (Exh.PT), the said Dupatta and wire (P2 and P3) were sent for analysis to the Punjab Forensic Science Agency and the same were analyzed, however, neither any DNA Profile of the appellant namely Saqib Ali nor any DNA Profile of the appellant namely

Amina was generated from the said articles and the only DNA Profile which was obtained from the said article was that of the deceased himself. Had the appellants namely Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman had handled the Dupatta (P-2) and wire (P-3) in any manner then the epithelial cells would have been transferred to the said articles and the same would have been detected during analysis and the analysis of the said Dupatta (P-2) and wire (P-3) by the Punjab Forensic Science Agency would have generated the DNA Profiles of the appellants, however, according to the report of Punjab Forensic Science Agency (Exh.PT) no DNA Profiles of the appellants were generated from the analysis of Dupata (P-2) and wire (P-3) which also further supports the innocence of both the appellants namely Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman.

19.With regard to the recovery of the pistol (P-4) from the possession of the appellant namely Saqib Ali, the said has no relevancy as the said pistol (P-4) was not even used during the incident, therefore, the recovery of the pistol (P-4) does not progress the case of the prosecution in any manner.

20.Learned counsel for the complainant has vehemently argued that according to the report of Punjab Forensic Science Agency (Exh.PT), the DNA Profile of the appellant Saqib Ali was generated from the DNA analysis of the shalwar and qameez of the appellant namely Amina widow of Muhammad Usman and therefore it was proved on record that they were together when the incident had taken . In this regard it is observed that the prosecution failed to prove that any such Shalwar and Qameez of Amina were even seized by the Investigating Officer of the case and then transmitted to the Punjab Forensic

Science Agency. In this regard, according to the statement of Dr. Hafiza Asima Mushtaq (PW-11) ,she had only handed over Shalwar of the appellant Amina to the lady constable Ayesha Mustafa 1912/LC (PW-6) . Dr. Hafiza Asima Mushtaq (Pw-11) got recorded her statement as under:-

“I obtained samples from the breast as well as high and lower vaginal swabs and handed over the same to lady constable after signing and stamping the same. Shalwar was found to be stained with semen which was also handed over to lady constable.”(emphasis supplied)

The above referred statement of Dr. Hafiza Asima Mushtaq (Pw-11 ) abundantly establishes the fact that no Qameez was even handed over to Ayesha Mustafa 1912/LC (PW-6) by Dr. Hafiza Asima Mushtaq (Pw-11) but still the said Qameez of the appellant namely Amina got submitted in the Punjab Forensic Science Agency. Moreover, according to the statement of Ayesha Mustafa 1912/LC (PW-6), she after receiving the clothes of the appellant namely Amina from the Medical Officer handed them over to Javed Chaudhry, SI (PW-10) and even according to the statement of Javed Chaudhry, SI (PW-10) , he did receive the said clothes of the appellant and handed them over to Muhammad Ashraf 2809/HC (PW-14) for keeping the same in safe custody but Muhammad Ashraf 2809/HC (PW-14) never stated that he received any shalwar or qameez from Javed Chaudhry, SI (PW-10). In this regard Muhammad Ashraf 2809/HC (PW-

14)made the following statement.

“On 14.08.2021, Javed Chaudhary SI handed over three sealed parcels, stated to contain two pieces of "kafan", vaginal swabs and a printed sheet stamped as JC, to me at police station. I kept all parcels in malkhana of police station for safe custody in-tact. I made relevant entry in register No.19. Investigating officer recorded my statement u/s 161 Cr.P.C. in this regard.”

In this manner, the prosecution failed to prove the safe transmission of the shalwar of the appellant namely Amina from the Medical Officer to the Police Station and from the Police Station to the Punjab Forensic Science Agency and therefore no reliance can be placed upon the report of Punjab Forensic Science Agency (Exh.PD).

21.With regard to the motive of the incident, the learned counsel for the complainant has vehemently argued that the same was proved beyond any shadow of doubt and it also supported the case against the appellant. With regard to the motive of the incident, the prosecution witnesses Ghulam Mustafa (PW-

1)and Muhammad Abubakr (PW-2) had stated that as the appellants had developed an illicit relationship with each other and that the said illicit relationship was discovered by the deceased; therefore, they had committed the incident. The perusal of the record reveals that the prosecution witnesses Ghulam Mustafa (PW-1) and Muhammad Abubakr (PW-2) failed miserably to prove the motive as suggested by them and during cross examination Ghulam Mustafa (PW-1) admitted that he never reported the matter of illicit relations of the appellants with each other to the police and that the deceased had not moved any application in this regard. During cross examination Ghulam Mustafa (PW-

1)admitted as under:-

“My deceased son had never moved any application or complaint against accused Saqib for developing illicit relations with his wife ” Similarly, during cross examination Muhammad Abu Bakar (PW-2) also admitted that the matter of illicit relations between the appellants though was in

the knowledge of the said witness but was not reported to the police ever. During cross examination Muhammad Abu Bakar (PW-2) admitted as under:- “ I have not reported the said matter to police at that time” Even Javed Chaudhry, SI (PW-10), the Investigating Officer of the case admitted during cross examination that he did not receive any evidence regarding the allegation that appellants had illicit relations with each other. During cross examination Javed Chaudhry, SI (PW-10) admitted as under:- “I have not recorded any statement u/s 161 Cr.P.C. of any inhabitant of the locality regarding the illicit relations of accused persons.”

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 appellants 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.”

In this manner, the prosecution failed to prove that the appellant had any motive to commit the Qatl-i-Amd of Muhammad Usman (deceased) .

22.The learned counsel for the complainant has also vehemently argued that for the fact that the appellant namely Amina was the resident of the house where the incident had taken place, therefore, she was under duty to explain the circumstances of the death of the deceased in the said house and in absence of any explanation by the appellant, presumption was drawn against her as per Article 122 of the Qanun-e-Shahadat Order,1984. 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 Ghulam Mustafa (PW-1) and Muhammad Abubakr (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 appellants namely Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman could not have been

convicted for the alleged murder merely because it was claimed that the appellant namely Amina widow of Muhammad Usman was 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 died. The august Supreme Court of Pakistan has held in the case of “MUHAMMAD JAMSHAID and another vs. The State and others” (2016 SCMR 1019 ) as under:

“only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the courts below to be nothing but speculative”.

The august Supreme Court of Pakistan has held in the case of “Arshad Khan vs.

The State” (2017 SCMR 564 ) as under:

“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.”

23.The only other piece of evidence left to be considered by this Court is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Rafique Shah (PW-15) but the same is of no assistance in this

case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by this Court, therefore, the appellant’s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”

The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court 600) has enunciated the following principle of law:

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

24.Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of the appellants namely Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman 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 held 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 Ayyoub 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.”

25.For what has been discussed above, the instant Criminal Appeal No.42220-J of 2023, lodged by the appellants namely Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman is allowed and the conviction and sentence of the appellants awarded by the learned Additional Sessions Judge, Wazirabad vide judgment dated 29.04.2023 are hereby set-aside. The appellants Saqib Ali son of Safdar Ali and Amina widow of Muhammad Usman are ordered to be acquitted by extending them the benefit of the doubt. The sentence of the appellant Amina widow of Muhammad Usman was suspended by this Court vide order dated 17.04.2024 and the appellant is present before the Court on bail. The surety of the appellant namely Amina shall stand discharged from her liability and the bail bonds submitted by the appellant are hereby cancelled. The appellant Saqib Ali son of Safdar Ali is in custody. He be released forthwith , if he is not required in any other case.

(SADIQ MAHMUD KHURRAM)

JUDGE

Approved for reporting

Judge

RAHEEL