ARSHAD KHAN vs The STATE

' ASIF SAEED KHAN KHOSA, J.---Arshad Khan appellant had allegedly murdered his wife namely Mst.

Naheed Akhtar at 05.00 a.m. On 24.03.2007 inside their matrimonial home in village Sarwana in the area of Police Station Hazro, District Attock and for the said offence he was booked and tried in case FIR No, 75 registered at the said Police Station on the same day. After a regular trial the trial court convicted the appellant for an offence under section 302(b), P.P.C. And sentenced him to death and .To pay compensation which conviction and sentence had subsequently been upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 15.03.2011.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. 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. We have noticed that the FIR in this case had not been lodged at the local Police Station but the same had been lodged when the complainant had per chance met a police officer when he was proceeding to the Police Station. Both the eye-witnesses produced in this case, i,e, Zahid Khan complainant (PW8) and Muhammad Sadiq (PW9) were very closely related to Mst.

Naheed Akhtar deceased and they were admittedly chance witnesses. The said witnesses had maintained before the trial court that at the relevant time they were proceeding towards a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of occurrence shows that the houses of the said eye-witnesses were not situated close to the house of occurrence and they were situated so far away that they could not find any mention in the site-plan of the place of occurrence at all. No mosque near the house of occurrence had been shown in the said site-plan and, thus, the stated reason for presence (B of the said eye-witnesses near the place of occurrence never stood established on the record through any evidence whatsoever. The High Court had itself concluded that the prosecution had not been able to establish the motive asserted by it. According to the prosecution the appellant and his wife used to quarrel on regular basis despite having been married for about four years and having given birth to a child and the reason for such quarrels was stated to be a suspicion entertained by the appellant regarding the deceased's character. Nothing had been brought on the record of this case by the prosecution to substantiate any of the said allegations. It had been alleged by the prosecution that a blood- stained chhurri had been recovered at the instance of the appellant but we note that the chhurri statedly recovered had been recovered from an open and accessible place and, thus, it could not be said that the recovery had been effected from an exclusive possession of the appellant. Apart from that the provisions of section 103, Cr.P.C. Had flagrantly been violated in respect of the alleged recovery. Instead of providing support to the ocular account the medical evidence had gone a long way in creating doubts about the same and in that context we have noticed that post- mortem examination of the dead body had been conducted with a long delay for which no explanation had been brought on the record. According to the prosecution the occurrence had taken place at 05.00 a.m. And the police had been informed about the incident at 06.30 a.m. But surprisingly in column No, 3 of the Inquest Report the time of death of the deceased becoming known was recorded as 05.15 a.m. Post-mortem examination of the dead body had been conducted at 11.00 a.m. During the same day but in the relevant column of the Post-mortem Examination Report the time of death of the deceased had not been recorded which indicated that even till 11.00 A.M. On the fateful day the prosecution was not sure as to when the deceased had died. For all these reasons we have entertained no manner of doubt that the prosecution had failed to prove its case against the appellant beyond reasonable doubt.

4. It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCM R 1524) and Saeed Ahmed v. The State (2015 SCM R 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 SCM R 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.

5. The discussion made above leads us to an inescapable conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.