PLJ 2022 Cr.C. 381 (DB)
[Lahore High Court, Lahore]
Present:
Malik Shahzad Ahmad Khan and Muhammad
Tariq Nadeem, JJ.
MUHAMMAD
IJAZ etc.--Appellants
versus
STATE
and others--Respondents
Crl. A.
No. 115978-J, Crl. Rev. 111926 & M.R. No. 636 of 2017,
decided on 11.10.2021.
Pakistan Penal Code,
1860 (XLV of 1860)--
----Ss. 302(b)--Conviction
and sentence--Challenge to--Benefit of doubt--Appellant did not like his
wife upon which they had dispute and appellant wanted to contract a second
marriage with some one else and due to this grudge, appellant committed the
murder--Medical evidence furnished by the prosecution in this case through Lady
Dr. (PW-10) has not supported the prosecution case in any manner--Occurrence in
this case took place whereas, the FIR was lodged on the same day with the delay
of 7½/6½ hours from the time of occurrence--Post-mortem examination was
conducted on the dead body of the deceased--There is delay of 12 hours in
conducting the post-mortem examination on the dead body of the
deceased--Medical Officer has not mentioned the probable time that elapsed
between the injuries and death and the time that elapsed between the death and
post-mortem examination of the deceased--Occurrence in this case took place in
the house of the appellant--Both the eye-witnesses were not residents of the
village where the occurrence took place-- Conduct of the abovementioned
eye-witnesses/ complainant party is highly unnatural in this case--Real sister
of the deceased, being inmate of the house of occurrence was natural
eye-witnesses of the occurrence. She was admittedly present in the house of
occurrence at the time of occurrence but she has not been produced in the
witness box by the prosecution--No proof of criminal or civil litigation has
been produced in evidence by the prosecution to establish that there was any
dispute between the appellant and the deceased--A piece of cloth has also been
recovered on the pointation of the appellant but none of the prosecution’s
eye-witnesses has stated that the appellant committed the murder of his wife
with the help of a cloth or by strangulating her neck--Prosecution has failed
to prove its case against the appellant beyond the shadow of doubt, accept the
Criminal Appeal.
[Pp. 384, 387, 388, 389, 391,
392, 393, 394 & 395] A, B, C,
D,
E, F, G, I, J, K, L & M
Chance
Witness--
----If a chance witness is unable to
establish the reason of his presence at the spot at the time of occurrence then
his evidence is not worthy of reliance. [Pp.
389 & 390] H
Ms. Saiqa Javed, Advocate for
Appellants.
Mr. Munir Ahmad Sial, Deputy
Prosecutor General for State.
M/s. Farrukh Gulzar Awan &
Wasif Javed Sipra, Advocates for Complainant.
Date of hearing: 11.10.2021.
Judgment
Malik Shahzad Ahmad Khan, J.--This judgment shall
dispose of Criminal Appeal No. 115978-J of 2017 filed by Muhammad Ijaz
(appellant) against his conviction and sentence, Crl. Revision No. 111926 of
2017 filed by Mst. Kalsoom Bibi complainant for enhancement of the
amount of compensation awarded against the appellant by the learned trial Court
and Murder Reference No. 636 of 2017 sent by the learned trial Court for
confirmation or otherwise of the sentence of Death awarded to Muhammad Ijaz
(appellant) by the learned trial Court. We propose to dispose of all these
matters by this single judgment as these have arisen out of the same judgment
dated 31.10.2017 passed by the learned Additional Sessions Judge, Sargodha.
2. Muhammad Ijaz (appellant) was tried
in case FIR. No. 97 dated 18.03.2014, registered at Police Station Jhal
Chakian, District Sargodha in respect of offence under Section 302, PPC. After
conclusion of the trial, the learned trial Court vide its judgment dated
31.10.2017, has convicted and sentenced the appellant as under:-
Under Section
302(b), PPC to ‘Death as tazir’ for committing Qatl-i-Amd of
Mst. Shabana Kausar (deceased). He was also ordered to pay Rs.
5,00,000/-(Rupees five hundred thousand only) to the legal heirs of the
deceased as compensation under Section 544-A of Cr.P.C. and in default thereof
to undergo simple imprisonment for six months.
3. Brief facts of the case as given by the complainant Mst.
Kalsoom Bibi (PW-4) in the FIR (Exh.PC) are that she (complainant) was resident
of Skindarabad Colony Dakhli Chak No. 18 North (District Sargodha). Her
daughter, namely, Mst. Shabana Kausar (deceased) was married to Muhammad
Ijaz (appellant) three years earlier and from the said wedlock, there was a
son, namely, Hashir Ali aged 1/2 year who was alive. On 18.03.2014 at
05:00/06:00 a.m., the complainant along with Nasir Mehmood (given up PW) and
Ahmad Yar (PW-5) went to see Mst. Shabana Kausar deceased at her house
situated at Chak No. 60 North (District Sargodha). Door of the room of Mst.
Shabana Kausar (deceased) was closed and Muhammad Ijaz (appellant) and Mst.
Shabana Kausar (deceased) were present inside the room of their house. On
seeing the complainant party, Muhammad Ijaz (appellant) started to raise hue
and cry that Mst. Shabana had died. The complainant party, when saw Mst.
Shabana Kausar, they noticed that there were marks of injuries on her both arms
and body. The complainant party expressed that the appellant had murdered Mst.
Shabana Kausar. The complainant party had suspicion that Mst. Kausar
Bibi was murdered by the appellant with the help of electric shock. In the
meanwhile, Muhammad Ijaz (appellant) fled away from the spot.
Motive
behind the occurrence was that Muhammad Ijaz (appellant) did not like Mst.
Shabana Kausar upon which they had dispute and Muhammad Ijaz (appellant) wanted
to contract a second marriage with some one else and due to this grudge,
Muhammad Ijaz (appellant) committed the murder of Mst. Shabana Kausar.
4. The appellant Muhammad Ijaz was formally arrested in this
case on 18.04.2014 by Rab Nawaz, Sub-Inspector (PW-8). On 26.04.2014, Muhammad
Ijaz appellant led to the recovery of electric wire (P-1) and a dupatta (P-2),
which were taken into possession vide recovery memo. (Exh.PB). After
completion of investigation, the challan was prepared and submitted before the
learned trial Court. The learned trial Court, after observing legal
formalities, as provided under the Code of Criminal Procedure, 1898 framed
charge against the appellant on 18.07.2014, to which he pleaded not guilty and
claimed trial.
5. In order to prove its case, the prosecution produced ten
witnesses during the trial. Mst. Kalsoom Bibi complainant (PW-4) and
Ahmad Yar (PW-5) are the witnesses of ocular account.
The medical evidence was furnished by Lady Dr. Qurat-ul-Ain
(PW-10).
Rab Nawaz S.I (PW-8) and Muhammad Sadiq S.I (Rtd) (PW-9) are
the Investigating Officers of this case. Nasir Hayat 293/C (PW-3) is the
witness of recovery of electric wire (P-1) and dupatta (P-2), which were
recovered on the pointation of the appellant vide memo. (Exh.PB).
Maqbool Ahmad 1415/MHC (PW-1), Muhammad Saleem Draftsman
(PW-2), Akbar Mehmood 690/C (PW-6) & Zafar Iqbal (PW-7) are formal
witnesses.
The prosecution also produced documentary evidence in the shape
of site plan Exh.PA, memo. of possession of electric wire (P-1) and dupatta
(P-2) on the pointation of the appellant (Exh.PB), FIR (Exh.PC), memo of
possession of blood stained cotton (Exh. PD), injury statement (Exh.PE), rough
site plan of the place of occurrence (Exh.PF), memo. of possession of seven
sealed boxes & two envelops (Exh.PG), memo. of possession of last worn
clothes of the deceased (Exh.PH), post-mortem report and pictorial diagrams of Mst.
Shabana Kausar (deceased) (Exh.PJ, Exh.PJ/1 & Exh.PJ/2), inquest report
(Exh.PK), reports of PFSA, Lahore regarding visras of the deceased (Exh.PL)
& (Exh.PM) and closed its evidence.
6. The statement of the appellant under Section 342 of Cr.P.C.
was recorded. He refuted the allegations levelled against him and professed his
innocence. While answering to a question that ‘Why this case against you and
why the PWs have deposed against you” the appellant Muhammad Ijaz replied as
under:-
“This false case
has been registered against me due to suspicion and PWs have falsely deposed
against me due to the relationship with deceased”
The appellant Muhammad Ijaz did not opt to make his statement
on oath as envisaged under Section 340(2), Cr.P.C. However he produced
statement of Ahmad Yar PW, recorded under Section 161 of Cr.P.C. as (Exh.DA)in
his defence evidence.
The learned trial Court vide its judgment dated
31.10.2017, found the appellant guilty, convicted and sentenced him as
mentioned and detailed above.
7. It is contended by learned counsel for the appellant that
the appellant is innocent and he has falsely been implicated in this case by
the complainant party merely on the basis of suspicion; that the prosecution’s
eye-witnesses were not residents of the village where the occurrence took place
and as such, they are chance witnesses but they could not establish any reason
of their presence at the spot at the relevant time and as such, their evidence
is not trustworthy; that there is delay of 6½ hours in lodging the FIR,
whereas, there is delay of more than 12 hours in conducting the post-mortem
examination on the dead body of Mst. Shabana Kausar deceased which
further shows that the prosecution witnesses were not present at the spot at
the time of occurrence; that the medical evidence does not support the ocular
account of the prosecution and there are material conflicts between these two
pieces of the prosecution evidence; that conduct of the prosecution witnesses
is highly unnatural because according to the prosecution story, the appellant
was empty handed, whereas, the complainant party was comprising of three
members including two adult male members but they did not try to apprehend the
appellant at the time of occurrence; that sister of the deceased, namely, Mst.
Farzana Kausar was admittedly married with the brother of the appellant,
namely, Muhammad Mumtaz and the complainant, namely, Mst. Kalsoom Bibi
(PW-4) has admitted during her cross-examination that she was present at the
spot at the time of occurrence but she has not been cited as a prosecution
witness in this case and as such, the best evidence has been withheld by the
prosecution therefore, an adverse inference may be drawn against the
prosecution; that the prosecution has not produced any convincing evidence to
prove the alleged motive; that the alleged recovery of wire and a piece of
cloth from the possession of the appellant has been planted against the
appellant and even otherwise, the Medical Officer has not stated that death of Mst.
Shabana Kausar occurred due to the electric shock therefore, the said
recoveries are inconsequential; that the prosecution has miserably failed to
prove its case against the appellant beyond the shadow of doubt therefore, the
appeal filed by the appellant may be accepted and he may be acquitted from the
charge.
8. On the other hand, it is contended by learned Deputy
Prosecutor General for the State assisted by learned counsel for the
complainant that the prosecution has proved its case against the appellant
beyond the shadow of any doubt therefore, he was rightly convicted &
sentenced by the learned trial Court; that presence of the prosecution’s
eye-witnesses who are real mother and brother of the deceased, at the spot at the
relevant time is neither unnatural nor improbable while keeping in view their
relationship with the deceased; that the place of occurrence is situated at a
distance of 16-kilometers from the police station and as such, there was no
conscious or deliberate delay in reporting the matter to the police; that the
prosecution’s eye-witnesses stood the test of lengthy cross-examination but
their evidence could not be shaken; that the prosecution case is further
corroborated by the recovery of wire and a piece of cloth from the appellant
through which the appellant committed the murder of Mst. Shabana Kausar
deceased; that the motive was also proved in this case against the appellant
through reliable and convincing evidence of the prosecution witnesses; that
place of occurrence is the house of the appellant therefore, it was duty of the
appellant to explain that as to how his wife Mst. Shabana Kausar died
unnatural death but he absconded at the time of occurrence and his conduct
shows that he was guilty of the offence; that there is no substance in the
appeal filed by the appellant therefore, the same may be dismissed and murder
reference be answered in the affirmative. It is further prayed by learned
counsel for the complainant, while arguing Crl. Revision No. 111926 of 2017
that the amount of compensation awarded against the appellant by the learned
trial Court is very meager and the same may reasonably be enhanced.
9. Arguments heard. Record perused.
10. Prosecution case as set forth in the FIR (Exh.PC) has
already been reproduced in paragraph No. 3 of this judgment therefore, there is
no need to repeat the same.
11. We have noted that according to the prosecution’s case and
as per contents of the FIR, the occurrence in this case took place on
18.03.2014 at 05:00/06:00 a.m. The occurrence took place in a room situated
inside the house of the appellant. The ocular account of the prosecution was
furnished by Mst. Kalsoom Bibi complainant (PW-4) and Ahmad Yar (PW-5).
As per contents of the FIR when both the abovementioned eye-witnessed reached
at the spot, they noticed that Muhammad Ijaz appellant and Mst. Shabana
Kausar, who were husband and wife, were present in a room of their house and on
the arrival of the complainant party, the appellant started to raise noise that
Mst. Shabana Kausar had died, whereupon, the complainant party replied
that the appellant had committed the murder of his wife Mst. Shabana
Kausar with the help of electric shock as they noted injuries on her both arms
and body. We have noted that the medical evidence furnished by the prosecution
in this case through Lady Dr. Qurat-ul-Ain (PW-10) has not supported the
prosecution case in any manner. As mentioned earlier, it was claim of the
prosecution’s eye-witnesses that they reached in the house of the appellant on
18.03.2014 at 05:00/06:00 a.m., and thereafter, the appellant raised noise that
his wife Mst. Shabana Kausar had died, whereas, according to the
post-mortem report (Exh.PJ), as well as, according to the statement of Lady Dr.
Qurat-ul-Ain (PW-10), made during her cross-examination, the dead body was
received in the Dead House of the hospital on18.03.2014 at 05:00/06:00 a.m.
Relevant part of the statement of Lady Dr. Qurat-ul-Ain (PW-10) in this respect
reads as under:
“The
dead body was received in the dead house of the hospital at 05/06:00 a.m. on
18.03.2014 whereas the police papers were produced before me at 02:15 p.m. and
thereafter I started the post-mortem examination at 04:45 p.m.”
It
is not understandable that if the abovementioned prosecution’s eye-witnesses
reached in the house of the appellant on 18.03.2014
at 05:00/06:00 a.m., and saw that the appellant and Mst. Shabana Kausar
deceased were present in their house at that time and thereafter, the appellant
raised noise that Mst. Shabana Kausar had died then as to how the dead
body was received in the hospital at the same date and time i.e. on
18.03.2014 at 05:00/06:00 a.m. We have further noted that according to the
prosecution’s case, the occurrence in this case took place on 18.03.2014 at
05:00/06:00 a.m., whereas, the FIR (Exh.PC) was lodged on the same day at 12:30
noon, i.e. with the delay of 7½/6½ hours from the time of occurrence.
The distance between the place of occurrence and the police station was
16-kilometers. It is also noteworthy from the evidence of Lady Dr. Qurat-ul-Ain
(PW-10) that although the dead body was received in the dead house of the
hospital at 05:00/06:00 a.m. on 18.03.2014 but the police papers were produced
before the said Medical Officer at 02:15 p.m., and thereafter, post-mortem
examination was conducted on the dead body of the deceased at 04:45 p.m., and
as such, there is delay of 12 hours in conducting the post-mortem examination
on the dead body of the deceased. The abovementioned delay in conducting the
post-mortem examination on the dead body of Mst. Shabana Kausar deceased
is suggestive of the fact that eye-witnesses of the prosecution were not
present at the spot at the relevant time and the said delay was consumed in
procuring the attendance of fake eye-witnesses. We may refer here the case of ‘Irshad
Ahmad versus The State’ (2011 SCMR 1190) wherein it was observed that the
post-mortem examination of the dead body had been conducted with a noticeable
delay and such delay is generally suggestive of a real possibility that time
had been consumed by the police in procuring and planting eye-witnesses and in
cooking up a story for the prosecution before preparing police papers necessary
for getting a post-mortem examination of the dead body conducted. Similarly, in
the case of ‘Khalid alias Khalidi and two others vs. The State’ (2012
SCMR 327)¸ the Hon’ble Supreme Court of Pakistan considered the delay of 10/11
hours from the occurrence in conducting the post-mortem examination on the dead
body of deceased, to be an adverse effect against the prosecution case and it
was held that it shows that the FIR was not lodged at the given time.
Similar
view was taken by the Apex Court of the country in the cases reported as ‘Muhammad
Ashraf vs. The State’ (2012 SCMR 419), ‘Muhammad Ilyas vs. Muhammad Abid
alias Billa and others’ (2017 SCMR 54) & ‘Zafar vs. The State and
others’ (2018 SCMR 326).
We have further noted that according to the ocular account of
the prosecution, the appellant committed the murder of his wife, namely, Mst.
Shabana Kausar with the help of electric shock but according to the final
opinion of Lady Dr. Qurat-ul-Ain (PW-10), the cause of death of Mst.
Shabana Kausar was due to asphyxia. It is noteworthy that initially the cause
of death was not mentioned by the Medical Officer in the post-mortem report of
the deceased and visras of the deceased were sent to the Punjab Forensic
Science Agency and after receiving the reports of Punjab Forensic Science
Agency (Exh.PL) & (Exh.PM), the Medical Officer opined as under:
“Now, in light of
the reports Exh.PL and Exh.PM I am of the opinion that death in this case was
due to asphyxia.”
It is not the case of any of the
prosecution’s eye-witnesses that the appellant committed the murder of his wife
by strangulating her neck rather it is the case of the prosecution that Mst.
Shabana Kausar was murdered by the appellant after giving her electric shocks,
whereas, the Medical Officer has mentioned that the cause of death of the
deceased was asphyxia. We have further noted that the Medical Officer during
her cross-examination has conceded that no mark of violence or abnormality was
detected on the neck of the deceased. We have also noted that the Medical
Officer has not mentioned the probable time that elapsed between the injuries
and death and the time that
elapsed between the death and post-mortem examination of the deceased. Relevant
columns in this respect of the post-mortem report (Exh.PJ) were left blank by
the Medical Officer. Relevant part of her statement, made during
cross-examination in this respect, reads as under:
“I
could not find the apparent cause of death at the time of post-mortem
examination and for this reason I had sent the internal organs to the relevant
offices. No abnormality was detected on the neck of the deceased. I had not
mentioned the probable time that elapsed between injury death and that between
death and post-mortem in the post-mortem report.”
Under the circumstances, even there is no medical evidence to
support the prosecution case that the time of commission of murder of Mst.
Shabana Kausar was 05:00/06:00 a.m., on 18.03.2014, as mentioned in the
contents of the FIR (Exh.PC). Keeping in view all the aforementioned facts, we
have come to this irresistible conclusion that the medical evidence has not
supported the ocular account of the prosecution rather the same has
contradicted the evidence of the prosecution’s eye-witnesses.
12.
As mentioned earlier, the ocular account of the prosecution was furnished by Mst.
Kalsoom Bibi complainant (PW-4) and Ahmad Yar (PW-5). Both the abovementioned
eye-witnesses are real mother and real brother of Mst. Shabana Kausar
deceased, respectively. The occurrence in this case took place in the house of
the appellant situated in Chak No. 60 (North) Jhal Chakian District Sargodha,
whereas, Mst. Kalsoom Bibi complainant (PW-4) was resident of Chak No.
18/N.B Tehsil Bhalwal District Sargodha and Ahmad Yar (PW-5) was resident of
Chak No. 22/S.B Tehsil & District Sargodha. Both the abovementioned
eye-witnesses were not residents of the village where the occurrence took place
i.e. Chak No. 60 (North). Mst. Kalsoom Bibi complainant (PW-4)
stated during her cross-examination that her village was situated at a distance
of 10-kilometers from the place of occurrence, whereas, village of Ahmad Yar
(PW-5) was situated at a distance of 50-kilometers from the place of occurrence
and as such, both the abovementioned eye-witnesses are chance witnesses. The
said witnesses have not given any valid reason for their presence in the house
of occurrence at odd hours of the morning i.e. 05:00/06:00 a.m. It is by
now well settled that if a chance witness is unable to establish the reason of
his presence at the spot at the time of occurrence then his evidence is not
worthy of reliance. The Hon’ble Supreme Court of Pakistan in the case of “Mst.
Sughra Begum and another vs. Qaiser Pervez and others” (2015 SCMR 1142) at
Para No. 14, observed regarding the chance witnesses as under:
“14.
A chance witness, in legal parlance is the one who claims that he was present
on the crime spot at the fateful time, albeit, his presence there was a sheer
chance as in the ordinary course of business, place of residence and normal
course of events, he was not supposed to be present on the spot but at a place
where he resides, carries on business or runs day to day life affairs. It is in
this context that the testimony of chance witness, ordinarily, is not accepted
unless justifiable reasons are shown to establish his presence at the crime
scene at the relevant time. In normal course, the presumption under the law
would operate about his absence from the crime spot. True that in rare cases,
the testimony of chance witness may be relied upon, provided some convincing
explanations appealing to prudent mind for his presence on the crime spot are
put forth, when the occurrence took place otherwise, his testimony would fall
within the category of suspect evidence and cannot be accepted without a pinch
of salt.”
Likewise, in the case of “Sufyan
Nawaz and another vs. The State and others” (2020 SCMR 192) at Para No. 5,
the Apex Court of the country was pleased to observe as under:
“…………….
He admitted that in his statement before police, he had not assigned any reason
for coming to village on the day of occurrence. In these circumstances,
complainant Muhammad Arshad (PW.7) is, by all means, a chance witness and his
presence at the spot at the relevant time is not free from doubt.”
Similar view was taken
in the case of “Muhammad Irshad vs. Allah Ditta and others” (2017 SCMR
142). Relevant part of the said judgment at Para No. 2 reads as under:
“………………
Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and
the stated reason for their presence with the deceased at the relevant time had
never been established before the trial Court through any independent evidence
…………”
As the above mentioned prosecution
eye-witnesses are chance witnesses and they could not prove any valid reason of
their presence at the spot at the time of occurrence, therefore, their very
presence in the house of occurrence at the relevant time becomes doubtful.
13.
It is further noteworthy that conduct of the abovementioned
eye-witnesses/complainant party is highly unnatural in this case. According to
the prosecution’s own case, the appellant was empty handed at the time of
occurrence and he was not carrying any lethal weapon with him to intimidate the
prosecution’s eye-witnesses. The appellant was alone at the time of occurrence,
whereas, the complainant party was comprising of three members, namely, Mst.
Kalsoom Bibi complainant (PW-4), Ahmad Yar (PW-5) and Nasir Mehmood (given up
PW) and as such, the complainant party was comprising of two adult male members
and a female member. Mst. Kalsoom Bibi complainant (PW-4) was the mother,
whereas, Ahmad Yar (PW-5) and Nasir Mehmood (given up PW) were real brothers of
Mst. Shabana Kausar deceased but none of the aforementioned prosecution
witnesses tried to apprehend the appellant at the time of occurrence. We may
refer here the case of “Liaquat Ali vs. The State” (2008 SMCR 95),
wherein at Para No. 5-A of the judgment, the Hon’ble Supreme Court of Pakistan
was pleased to observe as under:
“Having heard
learned counsel for the parties and having gone through the evidence on record,
we note that although P.W.7 who is first cousin and brother-in-law of Fazil
deceased claims to have seen the occurrence from a distance of 30 ft. (as given
in cross-examination) and two other witnesses namely Musa and Ranjha were also
attracted to the spot but none rescued Fazil deceased and appellant had a free
hand to inflict as many as 9 injuries on his person. The explanation given by
these witnesses that since Liaquat Ali had threatened them therefore, they
could not go near Fazil deceased to rescue him is repellant to common sense as
Liaquat Ali was not armed with a fire-arm which could have scared the witnesses
away. He was a single alleged assailant and if the witnesses were there at the
spot they could have easily overpowered him. This makes their presence at the
spot doubtful.”
Similar view was reiterated by the
august Supreme Court of Pakistan in the cases of “Pathan vs. The State”
(2015 SCMR 315) and “Zafar vs. The State and others” (2018 SCMR 326).
Under the circumstances, it cannot be safely held that the above mentioned
eye-witnesses were present at the spot at the relevant time and they had
witnessed the occurrence because their conduct is highly unnatural.
14. It is further noteworthy that real sister of the deceased,
namely, Mst. Farzana Kausar was married with the brother of the
appellant, namely, Muhammad Mumtaz. Mst. Kalsoom Bibi complainant (PW-4)
has admitted during her cross-examination that said Mst. Farzana Kausar
was present in the house of occurrence at the relevant time but she has not
been cited by the prosecution as an eye-witness in this case without assigning
any valid reason. Relevant part of statement, made by Mst. Kalsoom Bibi
complainant (PW-4) during her cross-examination in this respect, reads as
under:
“My other daughter
namelyFarzana Kousar is married with Muhammad Mumtaz brother of Ijaz accused.
She is living happily in the house of her husband till today. She also resided
in the same house. She was present in the house in which the occurrence took
place at the time of occurrence but she is not a PW in this case.”
It
is therefore, evident that real sister of the deceased, namely, Mst.
Farzana Kausar being inmate of the house of occurrence was natural
eye-witnesses of the occurrence. She was admittedly present in the house of
occurrence at the time of occurrence but she has not been produced in the
witness box by the prosecution and as such, the best evidence has been withheld
by the prosecution therefore, an adverse inference under Article 129(g) of the
Qanun-e-Shahadat Order, 1984 can validly be drawn against the prosecution that
had the abovementioned Mst. Farzana Kausar been produced in the witness
box then she would not have favoured the prosecution case. Reliance in this
respect may be placed on the case reported as “Lal Khan vs. The State”
(2006 SCMR 1846). Relevant para No. 7 of the said judgment is reproduced
hereunder for ready reference:
Para No. 7
“There is no
plausible explanation on the record that for what reason Mst. Noor Bibi did not
disclose the story of murder of deceased till the registration of case after
five days of the occurrence and why no other inmate of the house was examined
in confirmation of her statement. The prosecution is certainly not required to
produce a number of witnesses as the quality and not the quantity of the
evidence is the rule but non-production of most natural and material
witnesses of occurrence, would strongly lead to an inference of prosecutional
misconduct which would not only be considered a source of undue advantage for
prosecution but also an act of suppression of material facts causing prejudice
to the accused. The act of withholding of most natural and a material witness
of the occurrence would create an impression that the witness if would have
been brought into witness-box, he might not have supported the prosecution and
in such eventuality the prosecution must not be in a position to avoid the
consequence.”
(Bold and underlining is supplied for emphasis)
Similar view was taken by the Hon’ble
Supreme Court of Pakistan in the judgments reported as “Muhammad Rafique and
others vs. The State and others” (2010 SCMR 385) and “Riaz Ahmed vs. The
State” (2010 SMCR 846).
15.
Insofar as the motive part of the prosecution case is concerned, we have noted
that according to Mst. Kalsoom Bibi complainant (PW-4), motive behind
the occurrence was that the appellant wanted to contract second marriage and
due to this reason, he committed the murder of Mst. Shabana Kausar
deceased. We have noted that Mst. Shabana Kausar deceased was living with
the appellant till the time of her death. No proof of criminal or civil
litigation has been produced in evidence by the prosecution to establish that
there was any dispute between the appellant and the deceased. Admittedly, a
son, namely, Hashir Ali was born from the wedlock of the appellant and Mst.
Shabana Kausar deceased who was about 1/2 year of age at the time of
occurrence. Mst. Kalsoom Bibi complainant (PW-4) admitted during her
cross-examination that she did not know that as to where Ijaz appellant
intended to contract second marriage. Relevant part of her statement in this
respect is reproduced hereunder for ready reference:
“I do not know
where Ijaz accused had wanted to contract second marriage. It is incorrect to
suggest that I have attributed a false motive to Muhammad Ijaz accused.”
We are therefore, of the view that a
vague and general allegation has been leveled against the appellant in respect
of the motive and no convincing evidence has been produced to prove the same
hence, we hold that the prosecution has failed to prove the motive part of its
case.
16. It is true that the occurrence
in this case took place in the house of the appellant but mere this fact by
itself is not sufficient to hold the appellant is guilty of the offence. Apart
from the appellant, his two brothers, namely, Rab Nawaz and Mumtaz along with
their families were also residing in the house where the occurrence took place
and this fact has duly been brought on the record during the cross-examination
of Mst. Kalsoom Bibi complainant (PW-4) therefore, mere this fact that
the appellant was also residing in the house where the occurrence took place by
itself is not sufficient to hold that it was the appellant who had committed
the murder of Mst. Shabana Kausar deceased. It was duty of the
prosecution to prove its case against the appellant beyond the shadow of any
doubt. Reliance in this respect may be placed on the cases of ‘Asad Khan vs.
The State’ (PLD 2017 Supreme Court 681), ‘Nazir Ahmad vs. The State’
(2018 SCMR 787), ‘Muhammad Jamshaid and another vs. The State and others’
(2016 SCMR 1019) & ‘Nasrullah alias Nasro vs. The State’ (2017 SCMR
724).
17.
Insofar as the recovery of wire and a piece of cloth on the pointation of the
appellant is concerned, we have already observed in the earlier paragraphs of
this judgment that according to the evidence of the Medical Officer, namely,
Lady Dr. Qurat-ul-Ain (PW-10), the cause of the death of Mst. Shabana
Kausar deceased was asphyxia therefore, recovery of electric wire to corroborate
the allegation that the appellant committed the murder of his wife with the
help of electric shock is inconsequential. It is true that a piece of cloth has
also been recovered on the pointation of the appellant but none of the
prosecution’s eye-witnesses has stated that the appellant committed the murder
of his wife with the help of a cloth or by strangulating her neck. Moreover,
Lady Dr. Qurat-ul-Ain (PW-10) during her cross-examination stated that she did
not notice any injury on the neck of the deceased. We are therefore, of the
view that even the recovery of a piece of cloth on the pointation of the
appellant is of no avail to the prosecution.
18. We have
considered all the aspects of this case and have come to this irresistible
conclusion that the prosecution could not prove its case against the appellant
beyond the shadow of doubt. It is by now well settled law that if there is a
single circumstance which creates doubt regarding the prosecution case, the
same is sufficient to give benefit of doubt to the accused, whereas, the
instant case is replete with number of circumstances which have created serious
doubt about the prosecution story. In the case of ‘Tariq Pervez versus The
State’ (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan, at page
1347, was pleased to observe as under:
‘5.
….. The concept of benefit of doubt to an accused person is deep-rooted in our
country. For giving him benefit of doubt, it is not necessary that there should
be many circumstances creating doubts. If there is a circumstance which creates
reasonable doubt in a prudent mind about the guilt of the accused, then the
accused will be entitled to the benefit not as a matter of grace and concession
but as a matter of right.’
The Hon’ble Supreme Court of Pakistan
while reiterating the same principle in the case of ‘Muhammad Akram versus
The State’ (2009 SCMR 230), at page 236, observed as under:
‘13. …….. It is an
axiomatic principle of law that in case of doubt, the benefit thereof must
accrue in favour of the accused
