2023 P Cr. L J 964
[Balochistan]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
SARDAR MUHAMMAD---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 174 and Murder Reference No. 2 of 2022, decided on 19th September,
2022.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Contradictions
and dishonest improvements made by witnesses ---Effect ---Accused was charged for
committing murder of his wife, who was daughter of the complainant ---Ocular account of the
incident had been furnished by the complainant, father of deceased and mother and sister of deceased ---Admittedly, all the witnesses were related with each other ---Nothing had been
mentioned by the complainant in his fard -e-bayan that at the relevant time sister of deceased
was present in the house of deceased ---First Information Report was registered on 18th June
2020, while the accused was arrested on 28th June 2020 and after completion of investigation
he was remanded to judicial custody on 13 July 2020, but the fard- e-bayan of complainant,
his Court statement as well as the statement of sister of deceased were silent with regard to presence of sister of deceased in the house of accused or witnessing the crime---Occurrence was dated 18th June 2020, while this witness was introduced in the trial Court on 22nd October 2021 i.e. after delay of more than 16- months, when till that time not only the trial
had commenced, but it was at the verge of conclusion as out of nine witnesses, the Trial Court had already examined eight witnesses and only the statement of Investigating Officer was remaining ---Undoubtedly, the introduction of new witness could not be denied strict
sensu, but certainly the scheme of law was bypassed by introducing and recording statement of a witness, who otherwise was not earlier in picture by the prosecution---Father, mother as well as sister of the deceased were well aware about the murder of their blood relation, but despite this fact none of the witnesses during investigation approached the Investigating Officer to record the statement of sister of deceased ---Even otherwise, the 161, Cr.P.C.
statement of sister of deceased as well as her examination in chief were silent with regard to her presence at the relevant time in the house of her sister ---Apparently, the prosecution
made an unsuccessful attempt to fill in the lacunas at belated stage and that too after lapse of 16-months, which otherwise had diminished the evidentiary value of the statement of sister
of the deceased ---Circumstances established that the prosecution had failed to prove the
charge against the accused beyond any shadow of doubt ---Appeal against conviction was
allowed, in circumstances.
Shah Jahan and another v. Raheem Shah 2022 SCMR 352 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-i-amd--- Appreciation of evidence ---Benefit of doubt ---Presence of
witnesses at the spot doubtful ---Scope ---Accused was charged for committing murder of his
wife, who was daughter of the complainant ---Admittedly, the statement of complainant and
sister of deceased were not helpful to the case of prosecution as none of the witnesses were
present at the relevant time at the place of occurrence and apparently they did not see the accused committing the murder of deceased ---Mere past strained relation of spouses was no
ground to hold accused responsible for future mis -happening, while the statement of sister of
deceased, who claimed to be the eye- witness of the occurrence also had no evidentiary value,
who otherwise kept mum for complete 16- months and during intervening period she was not
produced before the Investigating Officer ---Such silence of the said witness had cast serious
doubt about the involvement of the accused---Circumstances established that the prosecution had failed to prove the charge against the accused beyond any shadow of doubt ---Appeal
against conviction was allowed, in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 164---Qatl -i-amd---Appreciation of
evidence--- Delay in recording confessional statement of accused by the Court ---Effect ---
Accused was charged for committing murder of his wife, who was daughter of the complainant ---Record showed that the confessional statement of accused was recorded under
S. 164, Cr.P.C. by the Judicial Magistrate, wherein the accused allegedly confessed his guilt
of committing the murder of his deceased wife on the allegations of Siya Kari that his deceased wife had kept illicit relations with his step brother and earlier accused had warned his wife and also apprised the situation to his parents, but despite such fact the deceased did not mend her way and continued illicit relations with her paramour and according to the contents of confessional statement allegedly the deceased had admitted that she had committed Zina with her paramour twelve times ---Irrespective of the contents of
confessional statement, the admitted feature of the case was that the accused was arrested on 28th June 2020 and his confessional statement was recorded on 13th July 2020 i.e. on the sixteenth day of his arrest ---No explanation on the part of prosecution had been furnished
that as to why the accused remained under custody for more than the provided period of remand ---Even otherwise, according to that witness the custody of accused after recording
his statement under S. 164, Cr.P.C., was handed over to the Investigating Officer for judicial lock-up---According to settled norms of justice, voluntariness of confession was doubtful
when recorded after unauthorized confinement of accused--- Admittedly, confession was
obtained after keeping the accused in illegal police custody, thus serious doubts were created with regard to its voluntariness and the element of blackmailing and torturing could not be ruled out of consideration--- Circumstances established that the prosecution had failed to
prove the charge against the accused beyond any shadow of doubt ---Appeal against
conviction was allowed, in circumstances.
Hamzo v. The State PLD 1960 Kar. 817 and State v. Asfandyar Wali and 2 others
1982 SCMR 321 rel.
(d) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt --- Extra -judicial
confession --- Accused was charged for committing murder of his wife, who was daughter of
the complainant ---In the present case, the extra judicial confession of accused recorded in
police custody appeared to be untrustworthy--- Extra judicial confession of the accused was
recorded on 10th July 2020, while on the fourth day of such disclosures his confessional
statement was recorded on 13th July 2020---Now question arose that if the accused recorded his disclosures on 10th July 2020 then as to why he was not produced on the said date before the concerned Judicial Magistrate for recording his confessional statement ---In order to
eliminate any sort of doubt the Investigating Officer ought to have got recorded such confessional statement on the said date, but it was not done so--- Even otherwise, both the
disclosure and confessional statement did not corroborate any other piece of evidence ---
Hence, the element of accused being tortured during investigation could not be ruled out of consideration ---Thus, both the confessional and the extra judicial confessional statements of
the accused were also not helpful to the case of prosecution, because the same were not corroborating any other piece of evidence ---Circumstances established that the prosecution
had failed to prove the charge against the accused beyond any shadow of doubt ---Appeal
against conviction was allowed, in circumstances.
Muhammad Yousaf v. The State 1995 SCMR 351 and Umar Hayat v. The State 2020
YLR 1398 rel.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---Accused can not be deprived of benefit of doubt, merely
because there is only one circumstance, which created doubts in the prosecution story.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Kamran Murtaza, Adnan Ejaz and Wali Muhammad Barech for Appellant.
Ameer Hamza Mengal, Additional P.G. for the State.
Date of hearing: 7th September, 2022.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.174/2022 and Murder Reference No.02/2022.
The criminal appeal has been filed by the appellant Sardar Muhammad son of Amir
Muhammad, against the judgment dated 6th April 2022 ("the impugned judgment") passed by learned Sessions Judge Pishin ("the trial Court"), whereby the appellant was convicted
under section 302(b), P.P.C. and sentenced to death as Tazir and he is also required to make
payment of compensation amounting to Rs.600,000/ - (Rupees Six Lac) to the legal heirs of
deceased as per provisions contained under section 544- A, Cr.P.C. or in default thereof to
further suffer six months' R.I.
While the Murder Reference has been made by the learned trial Court for
confirmation of death sentence awarded to the appellant or otherwise as envisaged under section 374, P.P.C.
2. Facts of the case are that on 18th June 2020, the complainant Abdul Razzaq son of
Lal Gul, lodged FIR No.05 of 2020 at Levies Station Dobandi, under section 302, P.P.C., with the averments that about 9- years ago, his daughter namely Bibi Arifa was married with
appellant Sardar Muhammad. On 18th June 2020 at about 06.00 a.m. Atta Muhammad being the brother of appellant through phone informed him that his daughter has committed suicide and her dead body has been brought to Huramzai. On such information, the complainant reached Huramzai, where the dead body of his daughter was lying in the vehicle. The complainant took the dead body of his daughter to Levies Station Huramzai, where on examination he found torture marks on all parts of the dead body of his daughter, who was murdered by the appellant being her husband.
3. Pursuant to above FIR, the appellant was arrested on 28th June 2020, whereafter
initial investigation in the matter was conducted by the Levies Authorities Dobandi, but subsequently on 7th July 2020 the investigation was transferred to Crimes Branch Quetta. Anyhow, during investigation, the statements under section 161, Cr.P.C. were recorded, the appellant got recorded his extra -judicial confession, followed by the pointation of place of
occurrence and subsequently he also recorded his confessional statement under section 164, Cr.P.C. On completion of investigation, the appellant was remanded to judicial custody.
4. At the trial, the prosecution produced nine (09) witnesses, while on the application of
State under section 540, Cr.P.C. the sister of deceased was examination as CW- 1. Thereafter,
the appellant was examined under section 342, Cr.P.C. However, neither he recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellant for capital punishment of death, whereafter the appellant has filed the instant criminal appeal, while the Murder Reference has been forwarded by the trial Court for confirmation or otherwise of death sentence.
5. Learned counsel for appellant contended that the case of prosecution is ambiguous on
all counts; that the medical evidence is in conflict with the ocular testimony; that the appellant has been involved in the case on the basis of mere assumptions and presumptions solely on the ground that the dead body of the deceased was recovered from his house, which fact alone is not sufficient to hold responsible the appellant with the commission of crime; that the alleged disclosure and confessional statement of appellant are contradictory with the ocular testimony and even the confessional statement was recorded beyond the prescribed period of remand of appellant, which is not admissible under the law; that the trial Court without appreciating the fact that the prosecution in order to fill -up the lacunas has
introduced CW -1 Bibi Nazia for 16 -months of occurrence, whose statement is not worth
credence; that CW- 1 has failed to justify her presence at the relevant time at the place of
occurrence; that the impugned judgment is result of misreading, non- reading and mis -
appreciation of material available on record.
6. On the other hand, the learned Additional P.G. while supporting the impugned
judgment contended that the prosecution has proved the case against the appellant beyond the
shadow of reasonable doubt; that the case of prosecution is supported by medical evidence along with ocular testimony and the recovery of crime weapon from his pointation as well as the extra judicial confessional and confessional statement of appellant; that the recovery of dead body of deceased from the house of the appellant itself is enough to establish his guilt, who otherwise had not participated in the rites of her deceased wife; that the impugned judgment has been delivered after proper appraisal of material available on record and the same is not open for any interference by this Court.
7. Heard the learned counsel and perused the available record. Perusal of record reflects
that in order to establish the charge, the prosecution has produced direct, circumstantial and medical evidence, but comparison of the same divulges that not only the ocular evidence produced by the prosecution is contradictory and doubtful with each other, but also the same has not been supported by the medical evidence. Before dilating upon the ocular testimony, it is necessary to first evaluate the medical evidence to establish the unnatural death of deceased. PW- 6 Dr. Ayesha Faiz, Police Surgeon conducted the post -mortem of the deceased
and accordingly issued post -mortem report Ex.P/6- A, perusal of which reflects that the
deceased had received multiple injuries on her person caused with sharp and blunt weapon. Besides, the Investigating Officer also prepared the inquest report and found multiple injuries
on the person of deceased. PW -2 Saifullah produced 25 photographs of deceased, which
shows the signs of multiple injuries on the different parts of body of deceased. Thus, the prosecution has successfully established the unnatural death of deceased. The defence has also not disputed the unnatural death of deceased, but however, pleaded his false implication.
8. Now adverting to the ocular testimony, PW -1 Abdul Razzaq is the complainant of the
case as well as the father of deceased Bibi Arifa. Likewise, PW- 3 Bibi Haleema is the mother
of deceased, whereas CW- 1 Bibi Nazia is the sister of deceased and claims that the incident
took place in her presence. Admittedly, all the witnesses are related with each other.
9. According to the case of prosecution, the FIR was lodged on the complaint of PW -1,
who reiterated the contents of his fard -e-bayan Ex.P/1- A, but however, he made certain
contradictions and dishonest improvements from his earlier deposition as contained in his fard-e-bayan. PW -1 in his fard- e-bayan has mentioned that on the day of occurrence he was
phoned by the brother of appellant that the deceased had committed suicide and her dead body has been brought to Huramzai, thus pursuant to such information he reached Huramzai,
brought the dead body to Levies Station, wherein he observed injuries on the dead body of his daughter. However, he made dishonest improvement in his Court statement and stated that on getting information he along with his son Kaleemullah at the first instance went to Levies Thana Huramzai, informed the Levies Authorities and along with Levies went to Killi Huramzai Road and brought the dead body to Levies Thana Huramzai. In his fard- e-bayan,
the PW -1 simply stated that he observed multiple injuries of torture on the person of
deceased, but whilst making dishonest improvement from his earlier deposition, the PW -1 in
his Court statement stated that he found the marks of wounds on the person of deceased,
besides observed rivet hammering marks on her hands and also observed eleven wounds on the dead body caused with knife. In his cross -examination, PW -1 has brought on record that
when his fard -e-bayan was being written, he disclosed the writer that rivet hammering
wounds on the hands and eleven knife blows were apparent on the body of deceased, but on comparison the fard- e-bayan is silent in this behalf. PW -1 in his cross -examination admitted
that first time in hospital it was informed to him by the doctors that the deceased had not committed suicide rather she was murdered by means of torture. He also admitted that he had not witnessed of the occurrence. Since, the PW -1 has not directly witnessed the crime and his
statement is based upon presumption, thus not helpful to the case of prosecution.
10. The second witness of the occurrence is PW- 3 Bibi Haleema, who is the mother of
deceased Bibi Arif. The statement of this witness only relates to worst behavior of the appellant with her deceased daughter. She brought on record that on visiting the house of her deceased daughter, her daughter disclosed that her husband used to torture her with stick and rubber pipes. However, PW -3 stated that due to fear he could not inform her husband. Be that
as it may, if the statement of this witness is true, even then her statement is not helpful to the case of prosecution for the sole reason that this witness had not witnessed the crime directly rather she uttered the past worst behavior of the appellant with her deceased daughter. In order to establish the charge of murder, the statement of a witness should be straight forward and merely the past worst behavior of an accused is no ground to hold him responsible for the future happenings. Even otherwise, the statement of PW -3 under section 161, Cr.P.C. was
recorded on 9th July 2020 i.e. after delay of 21 -days of occurrence, which otherwise creates
doubt in the case of prosecution.
11. Now adverting to the statement of CW- 1 Bibi Nazia, suffice to observe here that this
witness was first introduced by the prosecution through application under section 540, Cr.P.C. on the ground that this witness had witnessed the crime and at the relevant time she was present at the place of occurrence. Before dilating upon the evidentiary value of this witness, it would be more fruitful to first discuss the assertion of CW -1. CW -1 Bibi Nazia in
her statement before the Court stated that on the day of occurrence the appellant being her brother in law being equipped with knife and stick came in the room, while the deceased enquired from him about his intention, to which allegedly the appellant replied that she used to give birth daughters, whereafter the appellant thrown her (CW -1) outside and locked the
room from inside and started beating to her deceased sister, thereafter the mother and father in law of her sister entered in the room and found the deceased dead.
12. It has been observed that nothing has been mentioned by the PW -1 in his fard- e-bayan
that at the relevant time CW- 1 was present in the house of deceased. It has been observed
that the FIR was registered on 18th June 2020, while the accused was arrested on 28th June 2020 and after completion of investigation he was remanded to judicial custody on 13th July 2020, but the fard- e-bayan of complainant, his Court statement as well as the statement of
PW-3 are silent with regard to presence of CW -1 in the house of appellant or witnessing the
crime. As mentioned earlier the occurrence is dated 18th June 2020, while this witness was
introduced in the trial Court on 22nd October 2021 i.e. after delay of more than 16- months,
when till that time not only the trial was commenced, but it was at the verge of conclusion as
out of nine witnesses, the trial Court had already examined eight witnesses and only the statement of Investigating Officer was remaining. Undoubtedly, the introduction of new witness cannot be denied stricto sensu, but certainly the scheme of law was bypassed by
introducing and recording statement of a witness, who otherwise was not earlier picture by
the prosecution. Since, the father, mother as well as CW- 1 were well aware about the murder
of their blood relation, but despite the fact none of the witnesses during investigation
approached the Investigating Officer to record the statement of Bibi Nazia. Even otherwise, the 161, Cr.P.C. statement of PW -3 as well as her examination in chief are silent with regard
to presence of this witness at the relevant time in the house of her sister. Apparently, the prosecution made an unsuccessful attempt to fill in the lacunas at belated stage and that too after lapse of 16 -months, which otherwise has diminished the evidentiary value of the
statement of CW -1. Admittedly, each criminal case has its own facts and it is indeed true that
where some evidence is necessary for the court to reach to a just decision of the case, it is incumbent upon the Court to allow its production and examination as provided under section 540, Cr.P.C., but simultaneously the Court cannot allow one of the parties to fill up lacunas in their evidence or extend a second chance to a party to improve their case or the quality of evidence tendered by them, because, any such step would amount to tarnish the objectivity and impartiality of the court which is its hallmark. The Hon'ble Supreme Court in the case of Shah Jahan and another v. Raheem Shah, 2022 SCMR 352, has held as under:
"There is no second cavil to this proposition that the aforesaid crime report was
registered at the instance of one Zewar Khan who narrated the definite story relating to the prosecution case which is spelt out from the record from the bare reading of the same. Undeniably, Sadiq Khan is one of the eye -witnesses, whereas Raheem Shah,
father of the deceased stands nowhere in the crime report as a witness. The filing of the application after the lapse of about 14 months wherein a new witness has been introduced to substantiate the accusations leveled in the crime report does not make sense as considerable time has already elapsed and it will certainly imprint that the said application has been filed after due deliberation and consultation. No doubt the introduction of new witness cannot be denied stricto sensu but certainly the scheme of law would be bypassed if at this stage the statement of Raheem Shah, father of the deceased is permitted to be recorded during the proceedings before the Trial Court although it was well within the knowledge of the said Raheem Shah about the murder of his son and he never opted to appear as a witness and in this regard the statement under section 161, Cr.P.C. was not recorded by the Investigating Officer. It is nowhere mentioned that Raheem Shah ever appeared before the Investigation Officer to substantiate the accusation leveled against the accused persons. ... No one can be permitted to fill in the lacunas at the belated stage according to his own whims."
13. Admittedly, the statement of PW -1 and PW -3 are not helpful to the case of
prosecution as none of the witnesses were present at the relevant time at the place of occurrence and apparently they did not see the appellant committing the murder of deceased. Mere past worst relation of spouses is no ground to hold responsible the appellant for future mis-happening, while the statement of CW -1, who claims to be the eye -witness of the
occurrence has also no evidentiary value, who otherwise kept mum for complete 16-months
and during intervening period she was not produced before the Investigating Officer. Such
silence of the said witness had cast serious doubt about the involvement of the appellant.
14. Adverting to the confessional statement of appellant recorded under section 164,
Cr.P.C. by the PW -7 Jahanzaib Khan, Judicial Magistrate recorded on 13th July 2020,
wherein the appellant allegedly confessed his guilt of committing the murder of his deceased wife on the allegations of Siya Kari that his deceased wife had kept illicit relations with his step brother Hafiz Naimat and earlier he (appellant) had warned his wife and also apprised the situation to his parents, but despite such fact the deceased did not mend her way and continued illicit relations with her paramour Hafiz Naimat and according to the contents of confessional statement allegedly the deceased had admitted that she had committed Zina with her paramour for twelve times. Irrespective of the contents of confessional statement, the admitted feature of the case is that the appellant was arrested on 28th June 2020 and his confessional statement was recorded on 13th July 2020 i.e. on the sixteenth day of his arrest. There is no explanation on the part of prosecution that as to why the appellant was remained under custody for more than the provided period of remand. Even otherwise, according to this witness the custody of appellant after recording his statement under section 164, Cr.P.C. was handed over to the I.O. for judicial lock -up. According to settled norms of justice,
voluntariness of confession is doubted when recorded after unauthorized confinement of accused. Admittedly, confession having been obtained after keeping the appellant in illegal Police custody, thus serious doubts are being created with regard to its voluntariness and the element of blackmailing and torturing cannot be ruled out of consideration. The Hon'ble Karachi High Court in a similar case of one Hamzo v. The State, reported in PLD 1960 Karachi 817 observed that, "Where a person, before his confession was recorded, had been detained by the police for 2 days without having obtained a remand and no attempt was made
by the prosecution to explain the illegal detention by the police, it was held that the confession had the appearance of having been improperly obtained." Admittedly, the appellant was detained by the police for 2 days without any legal justification and as such, the confessional statement so recorded has diminished its evidentiary value. The Hon'ble Supreme Court in the case of State v. Asfandyar Wali and 2 others, 1982 SCMR 321, has held that:
"On the other hand, the manner in which Asfandyar had been detained was shocking to any one's sense of justice. As the confession on which the learned Advocate -
General relied had been obtained after six weeks, we invited the, learned Advocate -
General to produce the remand order for Asfandyar detention. The learned Advocate -
General stated that there was no remand order, and that a remand order was unnecessary because after the expiry of two weeks from his arrest Asfandyar was under detention order, but, the learned Advocate -General was not able to produce that
detention order, nor was he able to tell us what happened to the charge for which Asfandyar had been detained."
15. The extra judicial confession of appellant whilst recorded in police custody is
concerned, the same appear to be untrustworthy. The extra judicial confession of the appellant was recorded on 10th July 2020, while on the fourth day of such disclosures his confessional statement was recorded on 13th July 2020. Now question arises that if the appellant recorded his disclosures on 10th July 2020 then as to why he was not produced on
the said date before the concerned Judicial Magistrate for recording his confessional
statement. In order to eliminate any sort of doubt the Investigating Officer ought to have got recorded such confessional statement on the said date, but it was not done so. Even otherwise, both the disclosure and confessional statement are not corroborating any other piece of evidence. Hence, the element of torture to the appellant during investigation cannot
be ruled out of consideration. Thus, both the confessional and the extra judicial confessional
statement of the appellant are also not helpful to the case of prosecution, because the same
are not corroborating any other piece of evidence. We are conscious of the fact that a retracted confession is sufficient to make the basis of recording a conviction, but Court as a rule of procedure seeks corroboration of the same on all material particulars. Reliance in this regard is placed on the case of Muhammad Yousaf v. The State, 1995 SCMR 351, wherein it was held as under:
"13. …It need not be pointed out that prosecution has to prove that the confessional statement is voluntary in order to be used as evidence which it failed to proved beyond any reasonable doubt.
For the reasons stated above we are inclined to hold that the occurrence is unwitnessed and the appellant was apprehended on suspicion like others and made to confess which has been retracted. The confessional statement is neither voluntary nor supported by any reliable corroborative piece of evidence. Resultantly this appeal is accepted."
Similar view has been taken on the case of Umar Hayat v. The State 2020 YLR 1398
(Peshawar) 14, wherein it was held as under:
"The evidentiary value of this confession can be viewed yet from other angle. Since the said confession was retracted, therefore, the same would require further corroboration from the record qualifying to be a valid ground for conviction. In this regard, reliance is placed on the judgment of the Hon'ble Apex Court titled "Nadir Hussain v. The Crown" (1969 SCMR 442), wherein it was held that: -
"Retracted confession should not be acted upon unless corroborated in material particulars."
16. So far as the contention of learned counsel for State is concerned 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 onus lies on him to establish the circumstances in which such unnatural death had occurred. The contention so raised is devoid of force for the reason that such question was considered by a three Judges Bench of the Hon'ble Supreme Court of Pakistan in the case of Nasrullah alias Nasro v. The State, reported in 2017 SCMR 724, wherein it was held that:
"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 on 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."
Similar view has also been taken by the Hon'ble Supreme Court of Pakistan in the
case of Abdul Majeed v. The State, 2011 SCMR 941, wherein it has been held as under:
"… 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."
17. The reappraisal of the evidence reveals of infirmities and discrepancies in the case of
prosecution, but the perusal of impugned judgment reflects that such infirmities and
discrepancies were escaped from the view of the learned trial Court. The facts and
circumstances of the case have created doubts in the case of the prosecution. The prosecution
has miserably failed to prove the charge against the appellant beyond any shadow of doubt. The perusal of impugned judgment reveals that the same is suffering from mis -appreciation
of material available on record. The above defects in the prosecution case was not considered by trial Court and wrongly the benefit of such doubts was not extended in favour of the appellant. Needless to emphasize that accused was entitled to be extended benefits of doubt
as a matter of right. Even an accused cannot be deprived of benefit of doubt, merely because
there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts. Reliance in this regard is placed on the case of Tariq
Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as
under:
"The concept of benefit of doubt to an accused is deep- rooted in our country. For
giving him benefit of doubt 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 accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons, the appeal is accepted. The impugned judgment dated 6th
April 2022 passed by learned Sessions Judge Pishin is set aside and the appellant Sardar Muhammad Son of Amir Muhammad, is acquitted of the charge. The appellant being in custody, is ordered to be released forthwith, if not required in any other case.
Consequent to the above, the Murder Reference No.02/2022 is answered in negative.
JK/179/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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