2026 PLP 824 (MLD)

Salah-ud-Din, J.

Appellant (State) has filed instant criminal appeal under section 417 (2-A) of Criminal Procedure Code, 1898 ("Cr.P.C"), against judgment of acquittal dated 29.01.2019, handed down by learned Additional Sessions Judge-II/I.Z.Q., Buner, whereby he has acquitted accused/respondent namely Gul Zarin from the charges levelled against him, rendered in case FIR No. 32 dated 08.01.2017, registered under sections 302,201,202, P.P.C, read with section 15-AA at P.S Gagra, District Buner.

2. Arguments of learned Astt: A.G for State and learned counsel for acquitted respondent were heard and requisitioned record gone through with their able assistance.

3. As per prosecution story, initially complainant namely Suleman reported the matter to local police on the strength of Naqal Mad No. 7 dated 08.01.2017 in respect of missing of his sister Mst. Mohsin Zahida. As per his assertions, his sister was a married woman having five sons and a daughter, out of the wedlock of spouses. Initially, she was settled in a separate house with her husband, whereas her sons were living in another house. About 17/18 years back, her husband Gul Zarin (respondent herein) had contracted a second marriage with Mst. Bakhti Taj and his sister was also living with them in the same house. About 1-1/2 years back his sister had developed bitterness in her heart and she was living in the house of her sons. On the fateful day i.e. on 27.12.2018 his sister came to Manipur Bazar Deeena Baba for shopping, from where she was taken by her husband to his house, however, since then she is missing. She was searched in the nearby vicinities, however, of no avail. An inquiry was conducted in view of report of complainant/brother and during the course of said inquiry dead body of deceased lady was recovered, hence, 'Murasila' (Ex. PA) was drafted which culminated into ibid FIR (Ex. PW-8/1) registered against present respondent/husband at P.S qua murder of his own wife.

4. It is an admitted fact on both ends that the instant occurrence of murder of deceased lady is an unseen and unwitnessed event and till so far nobody has come forward as an eye-witness of the occurrence. The only piece of evidence against accused/respondent is that on his alleged pointation the police recovered dead body of the deceased, which was allegedly buried in the ditch under mud/dust. I.O. also recovered blood-stained earth and a single crime empty of .30-bore from the spot. Likewise, blood-stained garments of the deceased were also taken into possession having corresponding bullet cut marks. On pointation of the accused, police have also recovered weapon of offence i.e. a .30-bore pistol from residential room of the accused, on his pointation by dint of recovery memo., Ex. PW-4/1. FSL report in respect of recovered crime empty and that of weapon of offence was received in positive.

5. On eve of such overwhelming evidence, can present respondent be connected with the alleged murder of his old aged partner who had remained in his wedlock for long 35 years. Marginal witness of the recovery memo., Ex. PW-1/1, via which, allegedly dead body of deceased was recovered on pointation of accused was examined in Court as PW-1, who deposed in his cross-examination that they had proceeded to the spot of recovery in the company of lady doctor and police officials together, meaning thereby, police have already been in knowledge of the alleged place of recovery. PW-2 namely Muhammad Ali, Inspector, deposed in his cross-examination that the second marriage of accused was solemnized about 17/18 years back and the deceased was also living with them in the same house. Lady doctor Jawaria Bashir was examined in Court as PW-3, who deposed in her cross-examination that she has conducted exhumation process in presence of D.P.O, A.C and S.P Buner, so, it prima facie means that the place of recovery of dead body of deceased was already known to police party, therefore, in addition to local police, they have also invited the officer of local administration as well as high-ups of their department i.e. D.P.O and S.P Buner. At the same breath, she also deposed that when they went to the spot the dead body was lying there. Complainant was examined in Court as PW-5. He deposed in his examination-in-chief that he lodged his report on 08.01.2017 to SHO, Muhammad Ali in Deewana Baba Bazar. In his cross-examination, he stated that it is correct that from 27th December up to 7th January, 2017 complainant-party had remained mum about missing of deceased lady. He also admitted as correct that prior to subject occurrence no quarrel had taken place between his sister and the accused. Izaz Ullah, A.C Buner was examined in Court as PW-7, who deposed in his cross-examination that when they reached to the spot of recovery of dead body of the deceased, the police officials have already been present there. PW-9 namely Balizar Khan, Inspector, deposed in his cross-examination that it is correct that the alleged recovery of dead body of deceased has been shown from a thickly populated and surrounding houses. He also admitted that no private or independent person from the locality has been associated with the recovery proceedings.

6. In view of the above glimpses of evidence of prosecution's witnesses, it is crystal clear that prosecution has not been able to prove nexus or connection of the accused with the alleged murder of his wife, especially, when as per record the accused had contracted a second marriage way back some 17/18 years back and thereafter for sufficient time she was living in the house of her husband even in presence of his second wife, therefore, for the sake of arguments, if the accused was having any intention to kill the deceased, he could have done it in her bloom days instead of waiting for long 18 years.

7. No doubt, Hon'ble apex Court has held in its judgment rendered in case titled "Saeed Ahmad v. State" reported as 2015 SCMR 710 that with regard to vulnerable members of society, such as children, women and infirm, who were living with accused or were last seen in his company, accused ought to offer some explanation of what happened to them. If instead he remains silent or offers a false explanation he casts a shadow upon himself. But it has also been noted therein that it did not mean that burden of proof was shifted on to the accused as it is for prosecution to prove its case, however, in respect of helpless or weak that require protection or care it would not be sufficient for accused to stay silent in circumstances which tend to incriminate him. Ratio of the judgment of Saeed Ahmad Supra cannot however be applied to the case in hand for reason that prosecution has not been able to discharge its onus as explained above. Initial burden of proof always lies on the prosecution, which though may get shifted to accused under Article 122 of the Qanun-e-Shahadat Order, 1984, under circumstances justifying such shifting of burden, but in the case in hand, it is noticeable that prosecution has not been able, even to discharge its initial burden of proof. Hon'ble Supreme Court of Pakistan, rendered in case titled "Nasrullah alias Nasro v. State" reported as 2017 SCMR 724 had observed, in this respect; - 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 theaccused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder. A somewhat similar findings have also been recorded by Hon'ble apex Court in its judgment in the case of "Nazeer Ahmad v. The State" reported as 2016 SCMR 1628, which are reproduced hereunder for ready reference; "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)." Likewise, in the case of "Muhammad Jamsheed and another v. The State and others" reported as 2016 SCMR 1019, Hon'ble Apex Court had observed that suspicion howsoever grave or strong could never be a proper substitute for proof, beyond reasonable doubt, required in a criminal case.

8. Prosecution has not been able to discharge its initial burden in the instant case. learned trial Court has therefore rightly extended benefit of doubt to accused/respondent through impugned judgment dated 29.01.2019, in shape of his acquittal.

9. It is also settled law that for giving benefit to an accused, it is not essential that there should be many grounds for the same, even a single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of "Tariq Pervaiz v. The State" reported as 1995 SCMR 1345, the Hon'ble Apex Court has held in this respect as under; The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will beentitled to the benefit not as a matter of grace and concession but as a matter of right.

10. Appeal against acquittal, principles guide lines presumption of double innocence could easily be inferred: - It is a well celebrated principle of criminal administration of justice that acquittal carried with it double presumption of innocence; it can be reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice and that acquittal could not be set aside merely on the possibility of a contrary view. Reliance is placed on judgment of apex Court, rendered in case titled "Muhammad Shafi alias Kudoo v. The State and others" reported as 2019 SCMR 1045, whereby it was held that: - "It is by now well settled that acquittal carries with it double presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view. The High Court has derogated from settled principles of law and thus departure does not commend itself with approval. Resultantly, Criminal appeal is allowed, impugned judgment dated 15.2.2016 is set aside. The appellant is acquitted from the charge and shall be set at liberty forthwith, if not required in any other case."

11. In view of what has been discussed above, instant criminal appeal being bereft of any merits stands dismissed. JK/22/P Appeal dismissed.