2026 PLP 102 (YLR)

Amjad Ali Bohio, J.

This appeal impugns judgment passed by Additional Sessions Judge-I/MCTC, Mirpurkhas in case bearing Crime No. 51/2021, registered at Police Station Naukot, involving charges under Sections 302, 201 and 34 of the Pakistan Penal Code (P.P.C.) against the appellants, Ali Haider and Mst. Mumtaz alias Gudi. Through the impugned judgment dated 06.03.2023, appellants were convicted And sentenced as follows: "Both the accused namely Ali Haider son of Abdul Rasheed Rajput and Mst. Mumtaz alias Gudi wife of Abdul Rasheed Rajput in terms of section 265-H(2) Cr.P.C., for offence defined under section 315 P.P.C., and punishable under section 316 read with section 34 P.P.C., and therefore they both stand sentenced to pay Diyat of Rs.43,18,524/- as per Notification No. F.8(3)IF.III/91-419 Islamabad, the August 26, 2022 by Government of Pakistan (Finance Division) Islamabad for the financial year 2022-2023 and to undergo R.I for Twenty Five (25) years as well as to compensate LRs of the deceased lady to the tune of Rs. 4,00,000/- (Rs. 2,00,000/- each) in terms of section 544-A Cr.P.C. In case of failure convict at fault shall also undergo simple imprisonment for six months and compensation amount will also be recovered as per law."

2. The brief facts of the prosecution's case are that complainant Muhammad Tanveer lodged FIR. on 18.05.2021 at 1830 hours, stating that he has five daughters and three sons. His daughter, Muskan, was married to Ali Bahadur, while his other daughter, Shaheen, was married to Jameel, the elder brother of Ali Bahadur. Besides this, his son, Danish, was married to Mst. Nazia, the sister of Ali Bahadur and Jameel. Muskan frequently informed her family through phone that her brother-in-law, Ali Haider, and mother-in-law, Mst. Mumtaz, used to mistreat her, and she feared for her life. On 17.05.2021, at 1230 hours, Ali Haider informed the complainant via cellphone that Muskan had passed away. Upon receiving this information, the complainant, along with his wife, Mst. Zarina, and Abdul Sattar, the son of his brother-in-law, arrived at Muskan's house at approximately midnight. Upon arrival, they observed injury marks on Muskan's neck and other parts of her body. Based on these observations, they became certain that Ali Haider and Mst. Mumtaz had murdered Muskan. The complainant and his family then transported the deceased's body to the Government Hospital, Naukot. However, due to the unavailability of a female doctor, the post-mortem examination was delayed and conducted next morning. Additionally, as the hospital lacked an X-ray machine, the X-ray of the deceased was conducted at Digri. Subsequently, the complainant proceeded to the police station and lodged the instant FIR.

3. During the course of the investigation, the Investigating Officer (I.O.) inspected the deceased's body on 18.05.2021 at RHC Naukot, prepared a memo, and handed over the dead body to the Woman Medical Officer (WMO) along with a letter requesting a post-mortem examination. He also registered the FIR lodged by the complainant on 18.05.2021 at 1830 hours. Subsequently, the I.O. inspected the crime scene and prepared a memo in the presence of mashirs. Following the post-mortem examination, he seized the deceased's clothing, which was handed over by PW Jameel Ahmed, and documented the seizure through a memo. On 23.05.2021, the I.O. arrested appellant Ali Haider along with a lathi under a memo of arrest, whereas co-accused Mst. Mumtaz alias Gudi obtained pre-arrest bail. The deceased's clothing was then dispatched for forensic analysis. Upon the completion of the investigation, the I.O. submitted a report under Section 173 of the Criminal Procedure Code against the appellants. The trial commenced with the framing of charges against the appellants on 10.11.2021, to which they pleaded not guilty and opted for trial.

4. In order to prove its case, the prosecution examined W.M.O Dr. Zaib-un-Nisa (P.W-01), Tapedar Sawai Singh (PW-02), complainant Muhammad Tanveer (PW-03), Mst. Zarina (P.W-4), Mst. Khalida (PW-5) and Investigation Officer/ASI (Retired) Muhammad Afzal (P.W-6). They produced relevant documents, recovered articles, which were exhibited during their testimony before the trial Court. Thereafter, the prosecution closed their side of evidence on 06.03.2023 vide Ex.09.

5. The appellants, in their statements recorded under Section 342 of the Criminal Procedure Code, professed their innocence and claimed false implication in the case. They did not volunteer to testify on oath under Section 340(2) Cr.P.C. in their defense, nor did they opt to produce any evidence.

6. Upon the conclusion of the trial and after hearing arguments from both parties, the trial Court convicted and sentenced the appellants as stated in Paragraph [No.] of this judgment. Consequently, the appellants have filed the instant appeal challenging their conviction.

7. The comprehensive details of the case, along with the evidence presented before the trial Court, have been thoroughly outlined in the judgment dated 06.03.2023. Therefore, to avoid repetition, reproduction whereof is unnecessary.

8. I have heard the learned counsel for the appellants, who argued that the appellants are innocent and have been falsely implicated by the complainant. He emphasized that there was an unexplained delay of approximately thirty hours in lodging the FIR, suggesting possible collusion between the complainant and the police to fabricate a false case against the appellants.

9. The defense counsel contended that conviction cannot be based solely on hearsay evidence and requires corroborative proof, which is lacking in this case. He argued that the prosecution failed to establish an unbroken chain of evidence linking the accused to the commission of the offense. Furthermore, he pointed out significant contradictions in the testimony of the prosecution witnesses, rendering their statements unreliable. He asserted that the witnesses displayed apparent bias against the appellants. It was further argued that there was no eye-witness to the occurrence, and the appellants, were implicated merely on the presumption that they used to maltreat the deceased, Mst. Muskan. Despite claims that Muskan had informed the complainant multiple times during her lifetime about the alleged maltreatment, no formal complaint was ever made before any forum. The defense counsel maintained that the prosecution concocted a false story to maliciously implicate the appellants. Additionally, the prosecution withheld the testimony of two material witnesses, Mst. Maryam and Mst. Shaheen, who were present at the scene and whose statements under Section 161 Cr.P.C. were recorded by the Investigating Officer. Under Article 129(g) of the Qanun-e-Shahadat Order, 1984, an adverse inference may be drawn in favor of the appellants due to the prosecution's failure to produce these witnesses. Furthermore, the prosecution did not present another key witness, PW Ali Bahadur, the husband of the deceased, who was the person who informed the complainant of Muskan's death. The defense counsel also argued that the prosecution failed to establish the alleged motive behind the offense. In support of his arguments, he relied upon the case laws reported as Bakhtzada v. The State (2013 YLR 230), Siraj v. The State and another (2013 YLR 684), Mahammad Riaz and others v. The State (2024 SCMR 1839), Muhammad Khan and another v. The State (1999 SCMR 1220), Muhammad Mansha v. The State (2018 SCMR 772), and Wajahat v. Gul Daraz and another (2019 SCMR 1451).

10. Conversely, the learned Additional Prosecutor General, assisted by the learned counsel for the complainant, has supported the impugned judgment. They argued that the delay of thirty hours in lodging the FIR has been satisfactorily explained. It was further contended that the medical evidence corroborates the prosecution's version of events. The prosecution maintained that it had established its case beyond any reasonable doubt and, therefore, the appeal is liable to be dismissed.

11. I have carefully considered the arguments advanced by both sides and have conducted a thorough review of the evidence and the contents of the impugned judgment. Furthermore, I have examined the relevant legal principles and the precedents cited during the proceedings.

12. According to the prosecution, the occurrence in this case took place on 17.05.2021 at 1830 hours. The distance between the police station and the place of occurrence is approximately 8 to 9 kilometers. However, there was an unexplained delay of more than thirty hours in reporting the crime to the police. Notably, there were material inconsistencies and contradictions in the statements of both the complainant, Muhammad Tanveer (PW-03), and Mst. Zarina (PW-04). While testifying before the trial Court, neither of these ocular witnesses provided any explanation regarding the delay. On the contrary, the complainant, Muhammad Tanveer, stated that they remained at RHC Naukot throughout the night until the following day when the Woman Medical Officer arrived at 11:00 A.M. Despite this prolonged period, the complainant did not make any effort to lodge the FIR. In view of the above, I find that this inordinate delay in setting the machinery of law into motion raises serious doubts regarding the veracity of the prosecution's version. Reliance is placed on case law titled as Altaf Hussain v. The State (2019 SCMR 274). In case of Mehmood Ahmed and others v. The State and another (1995 SCMR 127), it was observed by the Hon'ble Court that; "Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate".

13. The instant case is based entirely on circumstantial evidence; therefore, the utmost care and caution are required to reach a just conclusion. As discussed earlier, there are material contradictions between the testimonies of the complainant, Muhammad Tanveer, and his wife, Mst. Zarina. The incident allegedly occurred on 17.05.2021 when Ali Bahadur, the complainant's son-in-law, informed him via phone that Muskan had passed away. Notably, PW Ali Bahadur, the deceased's husband, did not allege that his wife had been murdered, despite claims that she had previously complained of maltreatment and threats from the appellants. Ordinarily, if a married woman faces mistreatment from her in-laws, she would confide in her husband. Had Ali Bahadur been aware of such behavior from his mother (appellant Mst. Mumtaz) and brother (appellant Ali Haider), he would have at least expressed suspicion about Muskan's death when informing the complainant. The prosecution failed to produce Ali Bahadur as a witness, despite his statement under Section 161 Cr.P.C. being recorded on 19.05.2021, after the registration of the FIR. In that statement, the complainant accused the appellants of murdering Muskan due to family conflicts. However, it is significant that PW Ali Bahadur, in his 161 Cr.P.C. statement recorded the day after the FIR was registered, did not claim that his wife had been murdered or that the appellants were responsible for her death. The record also contains the statements under Section 161 Cr.P. C. of Mst. Maryam (wife of Ali Haider) and Mst. Shaheen (wife of PW Muhammad Jameel), who stated that they had informed Ali Bahadur about Muskan's death. Strangely, the prosecution failed to present these two female witnesses, despite their presence at the house where the incident took place. Their absence creates a missing link in the chain of circumstances necessary to connect the appellants to the alleged offense.

14. According to the FIR, the complainant, Muhammad Tanveer, was in Karachi when he was informed of the incident. He then travelled with his wife, Mst. Zarina, and picked up his son-in-law, Abdul Sattar, from Jhudo before arriving at the appellants' house around midnight. However, PW Mst. Zarina contradicted this by claiming that she received the phone call from Ali Bahadur. Significantly, when Ali Bahadur informed the complainant and Mst. Zarina about Muskan's death, he did not allege that she had been murdered. Similarly, Mst. Maryam and Mst. Shaheen, who informed Ali Bahadur of Muskan's death, did not claim that it was a homicide. In fact, their statements under Section 161 Cr.P.C. indicate that appellant Ali Haider took Muskan to the hospital for treatment. Furthermore, while the complainant and Mst. Zarina claimed that they observed marks of violence on Muskan's body and thus became certain that she had been murdered, no other evidence on record supports this assertion. The prosecution advanced the motive that the deceased had informed her parents via phone that the appellants mistreated her and that she feared they would kill her. To corroborate this, the complainant stated that his sister-in-law, PW Khalida, had submitted an application alleging Muskan's maltreatment at the hands of the appellants. However, he failed to produce this application and also did not produce copy during investigation to the police. Additionally, PW Khalida, during her testimony, did not corroborate the claim that she had filed such application. Neither the complainant produced independent evidence in this regard, nor did the investigating officer make any effort to collect oral or documentary evidence supporting the alleged motive. While the absence of motive alone is not the sole determining factor in assessing the veracity of the prosecution's case, it becomes crucial when the entire case is built upon the existence of such a motive. In the present case, since the prosecution failed to establish the alleged motive, it must bear the consequences of this failure. Reliance is placed on Nawab Khan v. The State and 2 others (2024 YLR 457). Given the attending circumstances of the case, which fail to convince the judicial mind regarding the manner in which the incident occurred, this Court cannot be oblivion to hold that the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the prosecution has not succeeded in establishing the charge framed the appellants. In case titled Rafaat Shah v. The State (2022 PCr.LJ Note 39 Balochistan) it was held that: "The mode in manner of the occurrence itself by the prosecution is not appealable to a prudent mind, therefore, it was highly unsafe to rely on the statements of both these witnesses to maintain conviction and sentence of the accused on a capital charge."

15. Since the alleged cause of death was maltreatment at the hands of the appellants, the prosecution was required to establish, beyond reasonable doubt, that the deceased, Mst. Muskan, in fact, died as a result of such maltreatment and that she had complained about it during her lifetime. In this regard, her husband, PW Ali Bahadur, would have been the most relevant witness to corroborate this claim. However, the prosecution failed to produce him as a witness to record his evidence. The Honorable Apex Court, in its judgment reported as "Muhammad Ali v. The State" (2017 SCMR 1468) has held that: The motive set up by the prosecution was the only factor which could have propelled the appellant into aggression against the deceased and with failure of the prosecution to prove the alleged motive there was no earthly reason left with the appellant to do away with the deceased who was a lady. Similarly, in the case of Muhammad Ilyas v. Ishfaq alias Munshi and others (2022 YLR 1620), it was held that: "It is well settled that once a motive is set up it is imperative for the prosecution to prove the same. On failure whereof adverse inference can be dawn against the prosecution. Reference is made to the cases of Muhammad Khan v. Zakir Hussain PLD 1995 SC 590 and Hakim Ali v. The State 1971 5CMR 432."

16. The dead body was shifted to RHC Naukot on the same night. According to the complainant's testimony, the lady doctor was unavailable, and they waited until 11:00 A.M on 18.05.2021 for the post-mortem examination at Government Hospital Naukot PW Mst. Zarina stated that they arrived at the deceased's house around midnight and, within 15-20 minutes, transported the body in a Datsun to RHC Naukot, accompanied by Ghulam Mustafa and Abdul Sattar. They reached the hospital within another 15-20 minutes and remained there the entire night due to the absence of a lady doctor. However, the testimony of Investigating Officer (I.O.) ASI Muhammad Afzal contradicts this version. He stated that upon receiving information from complainant Muhammad Tanveer regarding Muskan's alleged murder, he departed from P.S. Naukot at 01:00 AM (as per entry No. 18) and arrived at RHC Naukot within five minutes. According to the I.O., WMO Dr. Zaib-un-Nisa was already present at the hospital. He further deposed that his entire investigation at RHC Naukot took approximately 15-20 minutes and that the deceased's clothes were handed over to him by her husband, Ali Bahadur. The I.O's statement directly contradicts the complainant's assertion that the WMO was unavailable throughout the night. Furthermore, despite the body being brought to RHC Naukot at 11:00 A.M on 18.05.2021, there was still an unexplained delay of over 22 hours before conducting the post-mortem. The provisional post-mortem report lists complainant Muhammad Tanveer as the person who identified the body but omits PW Mst. Zarina, who, according to the complainant, was also present. These inconsistencies raise serious doubts about the prosecution's timeline regarding the arrival of the body at RHC Naukot and the availability of WMO Dr. Zaib-un-Nisa, who recorded the date and time of death as 17.05.2021 at 12:00 PM. In support of this observation, reliance is placed on the case of Muhammad Rafique v. The State (2014 SCMR 1698) as under: "It is an admitted position that no blood stained earth had been collected from the stated place of occurrence and also that the FIR, had been lodged with a noticeable delay and post mortem examination of the dead body had also been conducted with significant delay in the following afternoon. All these factors had been pointed towards a real possibility that the murder in issue had remained un-witnesses and time had been consumed by the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution."

17. According to the testimony of Dr. Zaib-un-Nisa, the dead body of Mst. Muskan was brought to RHC Naukot by the police on 18.05.2021 at 11:00 AM. This evidence directly contradicts the statements of the complainant and PW Mst. Zarina, who claimed they transported the body at midnight. The provisional post-mortem report mentions only the complainant, Muhammad Tanveer, as having identified the body, omitting the name of Mst. Zarina, despite her alleged presence, as per the complainant's testimony. These discrepancies cast doubt on the prosecution's account regarding the time of arrival of the body at RHC Naukot and the availability of WMO Dr. Zaib-un-Nisa, who recorded the date and time of death as 17.05.2021 at 12:00 PM. Furthermore, both the complainant and PW Mst. Zarina failed to mention the presence of any individual at the appellants' house when they discovered the deceased's body. However, during her testimony, Mst. Zarina stated that their daughter, Mst. Shaheen, resided in the same house but was not seen at the scene upon their arrival at midnight. This assertion does not align with common sense, particularly given that Mst. Shaheen never reported any alleged maltreatment of Mst. Muskan. Additionally, the prosecution's case lacks independent corroboration, as the related and chance witnesses failed to receive any external support. The complainant, Muhammad Tanveer, and his wife, PW Mst. Zarina, appear to be interested witnesses, as they concealed the presence of Mst. Maryam (wife of Ali Haider) and Mst. Shaheen (wife of PW Jameel). A review of police records indicates that their statements under Section 161 Cr.P.C., recorded on 13.10.2021, confirm their presence at the house during the incident. They stated that they heard commotion, found Muskan lying beside a cot, and witnessed Ali Haider taking her for treatment, but she had already passed away. These witnesses also informed Ali Bahadur of Muskan's death via phone. To establish an unbroken chain of events, the prosecution was obligated to examine Mst. Maryam and Mst. Shaheen, who had firsthand knowledge of the circumstances surrounding Muskan's death. The Deputy Public Prosecutor's opinion dated 15.10.2021, referenced in the police file, also noted that these two witnesses had initially withheld crucial information and attempted to shield the offenders. He recommended placing their names in Column No. 02 of the charge sheet. However, the record reveals that this recommendation was not implemented, nor were they produced before the trial court to testify. Such an omission warrants an adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984. Moreover, PW Mst. Zarina, during her testimony, denied seeing her daughter, Mst. Shaheen, at the scene, whereas PW Mst. Khalida (Ex.07) testified that Mst. Shaheen was indeed present. This contradiction further reinforces the prosecution's failure to produce the best available evidence. Under Article 129(g) of the Qanun-e Shahadat Order, 1984, when a party withholds crucial evidence, it is presumed that such evidence would have been unfavorable to its case. This principle is supported by the precedents set in Riaz Ahmed v. The State (2010 SCMR 846) and Khalid alias Khalidi and 2 others v. The State (2012 SCMR 327), wherein the Honorable Supreme Court of Pakistan took similar view.

18. Additionally, although the prosecution recorded Ali Bahadur statement under Section 161 Cr.P.C. on 19.05.2021, he was not produced before the trial court for testimony. This deliberate withholding of evidence further strengthens the presumption that the prosecution intentionally avoided presenting witnesses whose statements could undermine its case. It is a well-settled principle of law that when the best available evidence is withheld by a party, it raises a presumption of a sinister motive under Article 129(g) of the Qanun-e-Shahadat Order, 1984 which reveals as under: "

129. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events human conduct and public and private business in their relation to the facts of the particular case, The Court may presume (a) . (b) . (c) . (d) . (e) . (f) . (g) that evidence which could be and is not produced would, it produced be unfavourable to the person who withholds it."

19. During cross-examination, I.O, ASI Muhammad Afzal admitted that he did not record the statement of Mst. Shaheen (sister of the deceased) and voluntarily stated that she initially supported the complainant's version but later changed her stance due to pressure. However, this assertion by the I.O. is not corroborated by his own investigation, as the police records do not include the police diary entry dated 13.10.2021, which purportedly contains the 161 Cr.P.C statements of Mst. Maryam and Mst. Shaheen. The absence of this critical record casts serious doubt on the credibility of the investigation and effectively discredits the I.O's testimony. Had these female witnesses, along with Ali Bahadur, been produced by the prosecution, their testimonies would likely have contradicted the prosecution's version of events. This principle has been upheld in judicial precedents, including, where the failure to present material witnesses was deemed fatal to the prosecution's case. It is held in case of Sajid v. The State and another (2023 PCr.LJ 19) as under: "It is well-settled principle of law that if a best piece of evidence is available with the party and the same is not produced in Court then it can be presumed that the party has some ulterior and sinister motive behind it, therefore, presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 can fairly be drawn that had the said evidence been produced, it would have been unfavorable to the said party. In the present case the prosecution, without assigning any convincing reasons, withheld the best piece of evidence of P.W Shafi Muhammad; as such, a presumption can fairly be raised that had P.W. Shafi Muhammad been produced in Court he would have not supported the prosecution case."

20. The prosecution's case suffers a significant setback due to its failure to produce key eye-witnesses before the Court. Neither the eye-witnesses nor, the deceased's husband were examined during the trial. In such circumstances, this Court is left with no option but to infer that these witnesses were unwilling to testify against the appellants. The absence of Mst. Maryam and Mst. Shaheen from the prosecution's evidence suggests that they were reluctant to support the prosecution's version of events. It is a well-established principle of law that when the best available evidence is withheld, the prosecution alone bears the consequences. In the present case, there remains no doubt that the presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 is fully applicable. Support for this legal position can be drawn from the judgment of the Honorable Supreme Court in the case titled "Lal Khan v. The State" (2006 SCMR 1846) wherein it was held that: "The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence.

21. The cumulative effect of the foregoing discussion leaves this Court with no option but to conclude that the trial Judge failed to properly assess the prosecution's case and appreciate the available evidence.

22. In view of these circumstances, the appellants have successfully made out a case for indulgence. Accordingly, the instant criminal appeal is allowed, the impugned judgment is set aside, and the appellants are acquitted of the charges. They shall be released forthwith if not confined in any other custody case. JK/A-71/Sindh Appeal allowed.