MUHAMMAD KASHIF IQBAL Versus State
SADIQ MAHMUD KHURRAM, J .---Muhammad Kashif Iqbal son of Muhammad Iqbal (convict) was tried by the learned Additional Sessions Judge, Rawalpindi in the case FIR No. 317 of 2017 dated 16.09.2017 registered at Police Station Race Course, District Rawalpindi in respect of an offence under section 302, P.P.C. for committing the Qatl-i-Amd of Asma Parveen daughter of Sheikh Akram Ullah (deceased). The learned trial court vide judgment dated 01.02.2018, convicted Muhammad Kashif Iqbal son of Muhammad Iqbal (convict) and sentenced him as infra:
Muhammad Kashif Iqbal son of Muhammad Iqbal:
Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Asma Parveen daughter of Sheikh Akram Ullah (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Asma Parveen daughter of Sheikh Akram Ullah (deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
8. Feeling aggrieved, Muhammad Kashif Iqbal son of Muhammad Iqbal (convict) lodged Criminal Appeal No.22 of 2018 against his conviction and sentence. The learned trial court submitted Murder Reference No.209 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Kashif Iqbal son of Muhammad Iqbal. We intend to dispose of the Criminal Appeal No. 22 of 2018 and Murder Reference No.209 of 2018 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Qaiser Iqbal (PW-7), the complainant of the case are as under:--
"Stated that on 17 years prior my sister was married with Kashif Iqbal. They relationship was not cordial. Prior to this eid my sister was rehabilitated on the intervention of respectables of Bradran and she went in to the house of Kashif Iqbal. On 16.09.2017 my sister Asma Parveen made a phone call to me that Kashif Iqbal is quarrelling with her and asked me to come there. I went there in the house of my sister for the purpose of conciliation between them. I reached there at about 02:45/03:00 PM. After seeing me Kashif Iqbal started abusing me and my sister Asma Parveen whereupon I asked him to calm down and matter is to be resolved through negotiation. He went away in the other room while abusing me and my sister. He took a pistol from the said room and made a fire shot upon my sister which landed at the right eye of my sister Asma Parveen. She fell down at the spot and succumbed to the injury. Her head was on the bed whereas remaining body was lying on the ground, in a pool of blood. The accused Kashif Iqbal fled away from the house while making firing. After 3/4 minutes I came out of the room and went upon the terrace and raised hue and cry. In the meanwhile my cousin Nadeem Sheikh and Muhammad Younas Sheikh reached there. I told them that my sister was murdered by Kashif Iqbal in my presence. We all cousins gathered there and after 30/45 minutes police arrived at the spot who took the dead body in to its custody. I made my statement Ex.PL to the police who reduced it into writing and read it over to me, I made my signature Ex.PL/1 on the same in English. Motive behind the occurrence was quarrel between my sister Asma Parveen and her husband Kashif Iqbal accused.
During spot inspection on the same day the I.O. secured blood through cotton into a phial after making into a sealed parcel took into possession through recovery Ex.PE which was attested by me and Nadeem Sheikh and I.O. recorded my statement in this regard.
On the same day at the same time, during spot inspection I.O. took into possession one empty P4 of pistol 30-bore which was sealed into parcel and secured it vide memo Ex.PF which was attested by me and Nadeem Sheikh. The I.O. recorded my statement in this regard.
The I.O. summoned lady police who escorted dead body to the DHQ Hospital, Rawalpindi at about 09:00 PM. After postmortem I received dead body of my sister Asma Parven in lieu of Ex.PJ on 16.09.2017.
On 24.09.2017 I along with Nadeem Sheikh joined investigation in Police Station Cantt before HIU. Where on second floor of the Police Station the I.O. of the case Iftikhar Ahmad S.I interrogated accused Kashif Iqbal in our presence. The accused made confession of his guilt in our presence, (under objection, which is sustained). In our presence accused made a disclosure that he can get recover the weapon of offence. Pursuant to his disclosure we, while boarded on official vehicle, went to the house of Kashif Iqbal along with I.O. and police officials. We reached there at 11:25 AM on 24.09.2017. The door was opened by maternal uncle of Kashif namely Tariq Mehmood. In our presence accused Kashif Iqbal took out a pistol 30-bore P- 5 underneath the metros of the bed from his room and handed over to the I.O. which on unloading 2 live bullets P-6/1-2 were recovered. The pistol was made into sealed parcel and took into possession by the I.O. vide recovery memo Ex.PK which was attested by me and Nadeem Sheikh. The I.O. recorded our statements in this regard."
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 wherein the appellant namely Muhammad Kashif Iqbal son of Muhammad Iqbal was sent to face trial. The learned trial court framed the charge against the accused on 14.11.2017, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as eleven witnesses recorded. The ocular account of the case was furnished by Qaiser Iqbal (PW-7). Nadeem Sheikh (PW-8) and Muhammad Younas (PW-9) stated that they saw the appellant running away from the place of occurrence while armed with a pistol. Iftikhar Hussain 3589/HC (PW-1) stated that on 21.09.2017 the appellant was arrested by Iftikhar Hussain S.I. (PW-3) and his personal search was conducted by the Investigating Officer. Khurram Shahzad draftsman (PW-2) stated that he prepared the scaled site plan of the place of occurrence (Exh. PB). Khizra 3770/LC (PW-4) stated that on 16.09.2017 she escorted the dead body of the deceased to DHQ hospital Rawalpindi for its post mortem examination. Shakeel Ahmad 493/HC (PW-5) stated that on 16.09.2017, Iftikhar Hussain S.I. PW-3) handed over to him two sealed parcels said to contain blood stained cotton and an empty and on 20.09.2017 he handed over the same to Iftikhar Hussain S.I. (PW-3) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and on 24.09.2017 Iftikhar Hussain S.I. (PW-3) handed over to him a sealed parcel said to contain a pistol which on 26.09.2017, he handed over the same to Iftikhar Hussain S.I. (PW-3) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Ch. Anwar ul Haq (PW-6) stated that on 16.09.2017 he identified the dead body of the deceased. Muhammad Ilyas S.I. (PW-10) recorded the formal FIR (Exh. PM) on 16.09.2017. Iftikhar Hussain S.I. (PW-3) investigated the case from 16.09.2017 till 28.09.2017, arrested the appellant on 21.09.2017, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution got Farbar Hussain, Record keeper (P W-11) examined who stated that on 16.09.2017 Dr.Fouzia Mehmood conducted the post mortem examination of the dead body of Asma Parveen daughter of Sheikh Akram Ullah (deceased) and prepared the post mortem examination report (Exh. PN). According to the order dated 02.01.2018 passed by the learned trial court, Dr.Fouzia Mehmood was untraceable and her presence could not be obtained without an amount of delay or expense which, under the circumstances of the case, the learned trial court considered unreasonable, therefore Farbar Huusain Record keeper was summoned. According to the post mortem examination report (Exh. PN), Dr. Fouzia Mehmood, on examining the dead body of Asma Parveen daughter of Sheikh Akram Ullah (deceased) observed as under:
"It is a dead body of middle aged lady of about 36/37 years lying on mortuary table wearing grey dupatta plain with white and black lining shirt blood stained and black trousers. PM is present. Rigor mortis fully developed. Eyes closed mouth semi open.
Following injuries noted.
1) Entry wound 1 x 1 cm, inner aspect of right eye, blackening and tattooing present. 1 cm above the eye.
2) Exit wound 3x3 cm full of blood, 6 cm behind left ear.
..
After complete autopsy, I am of the opinion that the deceased died due to above mentioned firearm injuries Nos. 1 and 2 which damaged the brain and skull and excessive bleeding.
Probable time elapsed:
Between injury and death: -.
Between death and postmortem: 7-8 hours."
7. On 02.01.2018, the learned ADPP gave up prosecution witnesses namely Sheikh Abdul Haye and Babar Hameed as being unnecessary. On 29.01.2018, the learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the pistol with the empty (Exh.PP) and the report of Punjab Forensic Science Agency, Lahore regarding the examination of the piece of blood-stained cotton and vaginal swabs (Exh.PQ).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Kashif Iqbal son of Muhammad Iqbal under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Kashif Iqbal son of Muhammad Iqbal opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is 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 appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the pistol (P-5) was full of procedural defects, of no legal worth and value, and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity. The learned counsel for the appellant finally submitted that the prosecution has 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 along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statement of Qaiser Iqbal (PW-7). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statement of Qaiser Iqbal (PW-7), the sole eye-witness of the occurrence. The relationship of the said witness with the deceased is on record. Asma Parveen daughter of Sheikh Akram Ullah (deceased) was the real sister of Qaiser Iqbal (PW-7). Qaiser Iqbal (PW-7) was admittedly not the resident of the place of occurrence. According to Qaiser Iqbal (PW-7) he was the resident of Dhok Choudhrian whereas the occurrence had taken place within the area of Afshan Colony. Furthermore, according to Qaiser Iqbal (PW-7), he was a sales man working at Charlie Shoe Shop in Raja Bazar, however he stated that on the day of occurrence he was at his home as he had not gone to the shop on the said day. Nadeem Sheikh (PW-8), during cross-examination, had stated that Raja Bazar was situated at a distance of 5-6 kilometers from the place of occurrence. Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, admitted during cross-examination that Qaisar Iqbal (PW-7) was not the resident of the same locality where the occurrence had taken place rather stated that Qaisar Iqbal (PW-7) was living somewhere else. It is an admitted fact that the prosecution witness namely Qaiser Iqbal (PW-7) did not have his residence or his place of employment near or around the place of occurrence. Qaiser Iqbal (PW-7) was a "chance witnesses". In order to prove his presence at the place of occurrence at the time of occurrence, Qaisar Iqbal (PW-7) stated that his sister namely Asma Parveen (deceased) called him and asked him to come to her house as the appellant was quarreling with her and after receiving the said call of Asma Perveen (deceased), Qaisar Iqbal (PW-7) reached at the place of occurrence. Qaisar Iqbal (PW-7) failed to prove the said reason for his presence at the place of occurrence at the time of occurrence and also failed to provide any evidence to prove that he had gone to the place of occurrence after receiving the call of Asma Perveen (deceased). Qaisar Iqbal (PW-7) during cross-examination stated as under:-
"My sister called me at 2.30 pan on the day of occurrence. I do not remember phone number of my sister from which she called me."
Qaisar Iqbal (PW-7) also did not produce any evidence in the shape of Call Data Record of the mobile phone number under his use or under the use of Asma Perveen (deceased) to establish that he had indeed received the call of Asma Perveen (deceased) on the day of occurrence and after receiving the said call he had proceeded to the place of occurrence. Furthermore, Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, also did not collect any evidence during the investigation of the case so as to prove that Qaisar Iqbal (PW-7) had received a phone call of Asma Perveen (deceased) on the day of occurrence asking him to come to her house. The phone through which the deceased had called Qaiser Iqbal (PW-7) was also not found present at the place of occurrence nor was produced by any witness during the investigation of the case. Iftikhar Hussain S.I. (PW-3) was so lax during the investigation of the case that he even did not visit the house of the complainant Qaisar Iqbal (PW-7). In this manner, Qaisar Iqbal (PW-7) failed miserably to establish the reason for his presence at the place of occurrence at the time of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the witness namely Qaiser Iqbal (PW-7) had been called by Asma Perveen (deceased) to her house as suggested by him and the failure to prove the fact of calling by Asma Perveen (deceased) has vitiated our trust in Qaisar Iqbal (PW-7). In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Unman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant Ghulam Farid and Manzoor Ahmed witnesses in the said case who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:-
"In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. We have also observed that according to the witness namely Qaiser Iqbal (PW-7) the occurrence took place only when he had arrived at the place of occurrence. This narrative of the witness that the accused kept waiting for his arrival at the place of occurrence and thereafter committed the same is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witness prior to commission of the offence. It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and them deposing against the accused, even then the assailant kept waiting for their arrival. In this particular case Qaisar Iqbal (PW-7) had claimed that prior to the occurrence Asma Perveen (deceased) had telephoned him and called him to come to her house but despite the said knowledge that Qaisar Iqbal (PW-7) was to arrive at the place of occurrence soon, the accused kept waiting for his arrival and thereafter committed the occurrence. Such behavior, on part of the accused, runs counter to natural human conduct and behavior. Hence, being perceptive of this strain of human conduct, we are holding that Qaiser Iqbal (PW-7) was not present at the time of occurrence at the place of occurrence and had not witnessed the occurrence. In this regard reliance is placed on the case of "State through Advocate-General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others" (2019 SCMR 1154) wherein the august Supreme Court of Pakistan held as under:-
"Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case."
Reliance is also placed on the case of Muhammad Imran v. The State 2020 SCMR 857) wherein the august Supreme Court of Pakistan held as under:-
"These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself"
15. It was also an admitted fact of the prosecution case that the place of occurrence was a double storey-house and the lower portion of the same was occupied by tenants whereas the appellant and the deceased were residing in the upper portion of the said house. Qaisar Iqbal (PW-7) admitted during cross-examination that the house of the appellant was a double storey house. Similarly, Muhammad Younis (PW-9) also stated that the house of the appellant was a double storey house. Khurram Shahzad draftsman (PW-2) during cross-examination stated that Qaisar Iqbal (PW-7) told him that the lower portion of the house where the occurrence had taken place was occupied by one Shoaib Jadoon. We have also perused the scaled site plan of the place of occurrence (Exh. PB) as prepared by Khurram Shahzad draftsman (PW-2) and the rough site plan of the place of occurrence (Exh. PG) as prepared by Iftikhar Hussain S.I. (PW-3) and have observed that the lower portion of the house where the occurrence had taken place was occupied by one Shoaib Jadoon. Despite this fact, the said Shoaib Jadoon was not joined into the investigation of the case by Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case and the said Shoaib Jadoon or any of his family members did not appear before the learned trial court to vouch for the claim of Qaisar Iqbal (PW-7) that prior to the occurrence he had arrived at the upper portion of the house where the occurrence had taken place. The failure of the prosecution to produce Shoaib Jadoon or any of his family members before the learned trial court reflects poorly upon the veracity of the prosecution case. Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, candidly admitted that except for the related witnesses he did not collect the evidence of any other witness including the tenants who were occupying the lower portion of the house where the occurrence had taken place.
16. The prosecution also got Nadeem Sheikh (PW-8) and Muhammad Younas (PW-9) examined who stated that they saw the appellant running away from the place of occurrence while armed with a pistol. Both the said witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younas (PW-9) admitted during the cross-examination that they had not seen the occurrence themselves. Nadeem Sheikh (PW-8) during cross-examination stated as under:-
"It is correct I have not seen the occurrence."
Similarly, Muhammad Younis (PW-9) also admitted during cross-examination as under:-
"I am not eye-witness of the occurrence because the fire shot was not made in my presence."
Despite the above mentioned admission of both the witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younas (PW-9) that they had not seen the occurrence, they claimed that they had seen the accused running away from the place of occurrence while armed with a pistol. Both the said witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younas (PW-9) failed miserably to establish the above mentioned fact. Both the witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younas (PW-9) were related to the deceased as well as Qaisar Iqbal (PW-7). Qaisar Iqbal (PW-7) admitted during cross-examination that both the witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younas (PW-9) were related to him and were his cousins. Nadeem Sheikh (PW-8) was admittedly not the resident of the place of occurrence. Qaisar Iqbal (PW-7) during cross-examination stated as under:-
"Nadeem Sheikh is resident of Garoti Stop near Kamalabad. It is correct that Kamalabad Garoti stop is situated at a distance of 7/8 kilometers from the place of occurrence."
Admittedly as Nadeem Sheikh (PW-8) was not a resident of the place of occurrence and he had himself had also admitted that he was residing at a distance 5 kilometers from the place of occurrence and his shop was situated in Raja Bazar which was also at a distance of 5/6 kilometers away from the place of occurrence, therefore Nadeem Sheikh (PW-8) was under a duty to explain as to how and why he was present within the vicinity of place of occurrence. In order to overcome this hurdle, Nadeem Sheikh (PW-8) claimed that on the day of occurrence he was present with Sheikh Younis (PW-9), in the house of the said Muhammad Younis (PW-9) when he had heard the noise of a fire shot and was attracted towards the place of occurrence. We have noted that Nadeem Sheikh (PW-8) failed to prove his presence at the house of Muhammad Younis (PW-9) prior to the Occurrence. Nadeem Sheikh (PW-8) during cross-examination stated that he had arrived at the house of Muhammad Younis (PW-9) to discuss about the marble mine business and they had been discussing the same for about ten minutes when they heard the fire shot. However, Muhammad Younis (PW-9), contrary to the statement of Nadeem Sheikh (PW-8), stated that they were not discussing the marble mine business of Muhammad Younis (PW-9) rather he stated that they were discussing general matters. Moreover, Nadeem Sheikh (PW-8) during cross-examination admitted that he even did not know the house number of his cousin Muhammad Younis (PW-9), in whose house he was allegedly present when he had heard the sound of firing. We have also noted that Muhammad Younis (PW-9) stated that the number of his house was 999 whereas the house number of the place of occurrence was 626. Muhammad Younis (PW-9) also gave the description of the houses which were surrounding the house where the occurrence had taken place and stated that his house was not situated adjacent to the house where the occurrence had taken place rather the same was situated at Serial No.3 in street No.9. Iftikhar Hussain S.I. (PW-3) the Investigating Officer of the case, admitted during cross-examination that he had not shown street No.9 in the site plan (Exh. PG) as prepared by him. Iftikhar Hussain S.I. (PW-3) stated as under:-
"It is correct that according to site plan (Exh. PG) prepared by me street No.9 is nowhere present near the house of the alleged occurrence."
Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, also admitted during cross-examination that he did not visit the houses of either Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9) during the investigation of the case. Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, further stated that he could not tell the location of the houses of either Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9). In this manner, the prosecution failed to establish that the place of the presence of both the witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9) prior to the occurrence was so near to the place of occurrence that it would have enabled them to arrive there and witness the appellant escaping from the same. We have also noted that despite the fact that the appellant could not move freely due to disability in walking still the witnesses did not make any effort to apprehend him. We have also noted that despite the admission of Iftikhar Hussain S.I. (PW-3) as well as of Qaisar Iqbal (PW-7), Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9) that the place of occurrence was a thickly populated area, however, he did not record the statement of a single witness who had his house near the place of occurrence. We have also noted that the alleged eye-witness namely Qaiser Iqbal (PW-7) and the other two witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9), who claimed to have arrived at the place of occurrence after the same, were not mentioned in column No.4 or page 4 of the inquest report (Exh. PD) as being the ones who were present at the time of preparation of the said inquest report (Exh. PD) by the investigating officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be believed.
17. We have also noted that Iftikhar Hussain S.I. (PW-3) got information about the occurrence and reached the place of occurrence of his own. No one out of the witnesses namely Qaisar Iqbal (PW-7), Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9) had told him about the occurrence. We have also observed that none of the witnesses including Qaisar Iqbal (PW-7), Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Iftikhar Hussain S.I. (PW-3) at the place of occurrence of his own. Qaisar Iqbal (PW-7) stated during cross-examination that he did not know as to who informed the police regarding the occurrence. Similarly, Muhammad Younis (PW-9) also stated that he did not know who had informed the police. According to Iftikhar Hussain S.I. (PW-3), the police station was situated at a distance of only three kilometers from the place of occurrence, however, still no one proceeded to report the matter. We have also noted that it is recorded in the formal FIR (Exh.PM) that the place of occurrence was at a distance of only three kilometers from the police station, however, despite the fact that the occurrence had allegedly taken place at 3.00 p.m., the formal FIR (Exh.PM) was not registered till 5.05 p.m. The oral statement (Exh.PL) of Qaiser Iqbal (PW-7) was reduced into writing by Iftikhar Hussain, S.I. (PW-3) at the place of occurrence at 4.30 p.m. Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, was confronted with the omissions present in the oral statement (Exh. PL). Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case admitted that it was not mentioned on the oral statement (Exh. PL) as to the time when the same was received at the police station. He also admitted that there were no signatures on the oral statement (Exh. PL) of any official of the police station who had received the same. He also admitted that on the oral statement (Exh. PL) there was no endorsement of any police official that upon the basis of the same the formal FIR had been recorded. During cross-examination Iftikhar Hussain S.I. (PW-3), the scribe of the oral statement (Exh. PL), stated as under:-
"It is correct that no endorsement of the Moharrar police station is present on the complaint Exh. PV (sic). It is correct that it is also not mentioned on the complaint Exh.PV (sic) that at what time it was received in the police station. It is also correct that it is not mentioned on the complaint that who received it in the police station. It is correct that no signature or stamp of any police official of Police Station Race Course is present on the complaint."
The above mentioned portion of cross-examination of Iftikhar Hussain S.I. (PW-3) has left no doubt in our minds that the said oral statement reduced into writing as Exh.PL is just a compromised and fake document and that the witnesses were not present at the place of occurrence at the time of occurrence. The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) has observed as under:
"An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
We have also noted that the statements of the witnesses were also recorded with inordinate delay. Nadeem Sheikh (PW-8) stated during cross-examination that the dead body of the deceased was sent to the hospital for post mortem examination at about 8/9.00 p.m. and the police recorded his statement under section 161 Code of Criminal Procedure, 1898 approximately 30/35 minutes prior to the departure of the witnesses to the hospital along with the dead body. In a similar manner, Qaisar Iqbal (PW-7) stated that it took 5/6 hours after the arrival of police to record the statements of the witnesses and sent the dead body of the deceased to the hospital for post mortem examination. This also establishes that the said delay in recording the statements of the witnesses was used to procure their presence and formulate a false narrative regarding the occurrence.
18. We have also noted with disquiet that despite the fact that the occurrence took place at 3.00 p.m. on 16.09.2017, the postmortem examination on the person of the deceased was conducted after a delay. The post mortem examination of the dead body of the deceased namely Asma Perveen (deceased) was conducted at 10.00 p.m. on 16.09.2017. Dr.Fouzia Mehboob, who conducted the post mortem examination of the dead body of Asma Parveen daughter of Sheikh Akram Ullah (deceased) and prepared the post mortem examination report (Exh. PN), gave the time between death and post mortem examination as being 7 to 8 hours. Khizra 3770/LC (PW-4) stated that she reached the place of occurrence at about 8.00 pm and thereafter escorted the dead body of the deceased to the hospital and reached there at 9.30 p.m. Ch. Anwar Ul Haq (PW-6) stated that the post mortem examination of the deceased was conducted at about 10/10.30 p.m. Qaisar Iqbal (PW-7) stated that they reached at the hospital at 9.00 p.m. Nadeem Sheikh (PW-8) stated that the post mortem examination of the dead body was conducted at 10.30 p.m. In this manner, all the witnesses stated that the post mortem examination of the dead body of the deceased was conducted after about seven hours of the occurrence and no explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence while armed 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 false narrative after consultation and concert. 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 2 others v. The State" (2012 SCMR 327) has held as under:
"The incident in the instant case took place at 2.00 a.m., FIR 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 FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian Sohail Ahmed and others v. 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 FIR 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 v. 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."
19. It has been argued by the learned Deputy Prosecutor General as well as by the learned counsel for the complainant that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts the 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 a person had taken place in his house, therefore, it must be he and none else who would have committed that murder. The learned Deputy Prosecutor General submits that it was in the knowledge of the appellant how the deceased died so it was the appellant who was responsible, in absence of any explanation. The law on the burden of proof, as provided in Article 117 of the Qanun-e-Shahadat, 1984, mandates the prosecution to prove, and that too, beyond any doubt, the guilt of the accused for the commission of the crime for which he is charged. The said provision provides:
"117. Burden of proof---(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
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 emphasise 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 v. The State" (2017 SCMR 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 SC MR 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. The 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 case, 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 prisoner's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the prisoner is the law and no attempt to whittle it down can be entertained. As discussed above, the witness namely Qaisar Iqbal (PW-7) failed miserably to prove his presence at the place of occurrence at the time of occurrence and the witnesses namely Nadeem Sheikh (PW-8) and Muhammad Younis (PW-9) failed to prove their presence at the place of occurrence after the occurrence when they had allegedly seen the appellant escaping from the place of occurrence. The prosecution also failed to establish that the appellant was present inside his house when the occurrence took place. The prosecution witnesses also admitted during cross-examination that the place of occurrence was a house wherein besides the appellant, Shoaib Jadoon was also residing with his family. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be the 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 had lost his life. The august Supreme Court of Pakistan has held in the case of "Muhammad Jamshaid and another v. 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 v. 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 v. 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 v. 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 v. 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."
20. Learned Deputy Prosecutor General has also relied upon the recovery made from the appellant. The recovery of the pistol (P-5) cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said pistol (P-5) from the appellant which was in clear violation of section 103, Cr.P.C. and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, admitted during cross-examination that many independent witnesses were residents of the area around the place of recovery, however, none was asked to join the said recovery proceedings. Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, stated as under:--
"I did not ask any neigbor to become witness in the alleged recovery proceedings. In the same way, I also did not ask the tenant who is living downstairs in the same house to become witness of alleged recovery."
The august Supreme Court of Pakistan in the case of Muhammad Ismail and others v. The State (2017 SCMR 898) at page 901 has held as under:-
"For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard"
Furthermore, according to the prosecution witnesses, the pistol (P-5) was recovered from the same house which was the place of occurrence. It was stated by the witnesses that after the occurrence the accused fled away from the spot while carrying the weapon with him, hence the recovery of the same from the same house cannot be believed. Furthermore, Qaisar Iqbal (PW-7) admitted during cross-examination that he went to the place of recovery of the pistol (P-5) three times between 16.09.2017 to 24.09.2017 along with Nadeem Sheikh (PW-8) and Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, prior to the recovery of the same. Iftikhar Hussain S.I. (PW-3), the Investigating Officer of the case, also admitted during cross-examination that he had visited the place of recovery of the pistol (P-5) on two occasions before the said recovery and the witnesses of the recovery had also accompanied him at that time. Despite their visits to the place of recovery, the said the pistol (P-5) was not observed by them to be lying there. In this manner, prosecution failed to prove that the pistol (P-5) was got recovered by the appellant.
21. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Qaiser Iqbal (PW-7) was that the appellant and the deceased had a quarrel. No further details of said motive were mentioned by the witnesses in their statements. 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 appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. 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."
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
22. The only other piece of evidence left to be considered by us is the medical evidence 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 us, 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 v. 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."
23. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Kashif Iqbal son of Muhammad Iqbal, the appellant, 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 v. 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 Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram v. The State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:
"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
24. For what has been discussed above Criminal Appeal No.209 of 2018 lodged by Muhammad Kashif Iqbal son of Muhammad Iqbal (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 01.02.2018 are hereby set-aside. Muhammad Kashif Iqbal son of Muhammad Iqbal (appellant) is ordered to be acquitted. Muhammad Kashif Iqbal son of Muhammad Iqbal (appellant) is directed to be released forthwith if not required in any other case.
25. Murder Reference is answered in Negative and the death sentence of Muhammad Kashif Iqbal son of Muhammad Iqbal is Not Confirmed.
JK/M-173/L Appeal allowed.