2025 PLP 1104 (YLR)

MUHAMMAD TARIQ NADEEM, J.

Through this single judgment, we intend to dispose of Criminal Appeal No.606-J of 2022, filed by Muhammad Ramzan, appellant against his conviction and sentence along with Murder Reference No.32 of 2022, transmitted by learned trial court for confirmation or otherwise of death sentence of the appellant being originated from the same judgment dated 25-10-2022 passed by learned Additional Sessions Judge, Chishtian, District Bahawalnagar in case FIR No.385 dated 14-10-2020 under Section 302 PPC registered at Police Station Shehar Farid, Chishtian, whereby the appellant was convicted and sentenced for committing the murder of his better half namely Mst. Razia Bibi as under:- Under section 302(b), P.P.C. Sentenced to death with the direction to pay a sum of Rs.1,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased, or in default thereof to further undergo six months S.I.

2. The prosecution story as given in the judgment of the trial court reads as under: "...2. Brief facts, gathered from the depositions of PWs are that sister of the complainant namely Razia Bibi got wedded with present accused Muhammad Ramzan. On 13.10.2020 deceased Razia Bibi conveyed a message to complainant that the accused quarreled with her and she asked her brother/ complainant to take her with him. On 14.10.2020 at 06:30 a.m. when the complainant along with PWs Muhammad Saleem and Muhammad Pervaiz reached at house of the accused, they saw in the light of electricity bulb that the accused was cutting the neck of sister of the complainant with Churri; complainant and PWs tried to apprehend the accused but he fled away; PWs witnessed the whole episode; the complainant got recorded his statement Exh.P.A on the basis of which formal FIR Exh.P.F/1 was chalked out against the accused...."

3. After completion of investi-gation, a report under section 173 Cr.P.C. was prepared and submitted before the learned trial court. The learned trial court after observing codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 04-01-2021 to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 12 witnesses during the trial; Muhammad Nazir, complainant (PW.1) and Muhammad Saleem (PW.2) have furnished the ocular account. Muhammad Javed 172/C (PW.5) was the witness of recovery of Churri (P.6) taken into possession at the disclosure of the appellant from his residential house vide recovery memo (Exh.PG). Bilal Abdullah, SI (PW.8) being Investigating Officer stated about the various steps taken by him during investigation of the case. The medical evidence was furnished by Doctor Sumbla Javeria, Woman Medical Officer (PW.9), who conducted postmortem of Mst.Razia Bibi (deceased) and prepared her autopsy report (Exh.PK/1-6).

4. Rest of the prosecution witnesses are almost formal in nature.The prosecution gave up Muhammad Pervaiz and Muhammad Javed, PWs being unnecessary and after tendering reports of Punjab Forensic Science Agency, Lahore (Exh.PO, Exh.PP and Exh.PQ), closed its evidence.

5. Thereafter, the statement under section 342 Cr. P.C. of the appellant was recorded wherein he denied the allegations levelled against him and claimed his innocence. He neither opted to appear as his own witness within the scope of section 340(2) Cr.P.C. nor produced defence evidence.

6. Upon conclusion of the evidence from both sides, the learned trial Court vide impugned judgment dated 25-10-2022 convicted and sentenced the appellant as referred above.

7. We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant assiduously and also scanned the record minutely with their able assistance.

8. The incident in the present case, according to the prosecution, was alleged to have taken place on 14-10-2020 at about 06:30 a.m.. within the area of Mouza Hassam, about 13 kilometers away from Shehar Farid, Chishtian and the same was reported by Muhammad Nazir, complainant (PW.1) through his statement (Exh.PA) on the basis of which formal FIR (Ex.PF/1) was chalked out on 14-10-2020 at 10:15 a.m. There is a delay of 03 hours and 45 minutes in reporting the matter to the police. No plausible explanation for the above-mentioned delay in lodging the FIR has been brought on the record. Therefore, we hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version. Reliance is placed on case laws titled as "Amir Muhammad Khan v. The State" (3023 SCMR 566) and "Muhammad Jahangir and another v. The State and others" (2024 SCMR 1741).

9. We have further noted that the postmortem on the dead body of Mst. Razia Bibi (deceased) was conducted on 14-10-2020 at 03:00 p.m., thus, the postmortem on the dead body of Mst. Razia Bibi (deceased) was conducted with the delay of 8 hours and 30 minutes after the occurrence. Keeping in view, the above mentioned gross delay in the post mortem examination, an adverse inference can be drawn that the prosecution witnesses were not present at the time of occurrence and the intervening period had been consumed in fabricating a story after preliminary investigation, otherwise there was no justification of delay for conducting post-mortem examination on the dead body of the deceased. Reliance in this regard is placed upon the cases titled as "Sufyan Nawaz and another v. The State and others (2020 SCMR 192) and "Muhammad Adnan and another v. The State and others" (2021 SCMR 16).

10. In an attempt to make it a case of direct evidence against the-appellant, the prosecution has heavily relied upon the statements of Muhammad Nazir, complainant (PW.1) and Muhammad Saleem (PW.2), who happened to be the real brother and maternal nephew of Mst. Razia Bibi (deceased) respectively. The alleged occurrence took place taken place on 14-10-2020 at about 06:30 a.m.. within the area of Mouza Hassam, about 13 kilometers away from Shehar Farid, Chishtian. It was, therefore, mandatory for the above mentioned eye-witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason but they have failed to established their presence at the relevant time and place of occurrence because they are not residents of the vicinity. As per prosecution story, one day before Mst. Razia Bibi (deceased) conveyed a message to Muhammad Nazir, complainant (PW.1) that her husband (appellant) had quarreled with her, who is also infuriated and he (PW.1) should come to take her with him. No reasoning has been given by the eye-witnesses for not going to the house of Mst. Razia Bibi (deceased) on the same day of information, even otherwise, the arrival of above-mentioned PWs exactly at a point of time when the appellant to do away with the deceased was also a circumstance, which casted doubt on their veracity because if the appellant had any intention to commit the murder of Mst. Razia Bibi then there was no need to wait for the arrival of the witnesses. In the eventuality of supra mentioned facts, we are of the considered view that Muhammad Nazir, complainant (PW.1) and Muhammad Saleem (PW.2) have failed to establish their presence at the spot at the relevant time rather they are interested and chance witnesses and as such their evidence is not reliable. Reliance is placed upon the case-laws titled as "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319), "Muhammad Imran v. The State" (2020 SCMR 857), "Ibrar Hussain and another v. The State" (2020 SCMR 1850), Liaqat Ali and another v. The State and others" (2021 SCMR 780), "Sarfraz and another v. The State" (2023 SCMR 670) and "Muhammad Hassan and another v. The State and another" (2024 SCMR 1427).

11. Another important aspect of the case, which cannot lost sight of is that the witnesses of ocular account, Muhammad Nazir, complainant (PW.1) and Muhammad Saleem (PW.2) are not witnesses of inquest report (Exh.PM) and postmortem report (Exh.PK/1-6) pertaining to Mst. Razia Bibi (deceased). If they were present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report. Similarly, they should have escorted the dead body to the hospital being the close relatives and their names should have been incorporated in the post mortem report in the column of identification of the dead body. This fact has constrained us to hold that supra mentioned PWs were not present at the time and place of occurrence. Reliance is placed upon the following case laws titled as "Abdul Jabbar alias Jabri v. The State" (2017 SCMR 1155) and "Nadeem alias Kala v. The State and others" (2018 SCMR 153).

12. It is further noted that according the testimony of Muhammad Nazir, complainant (PW.1) one Allah Rakha resident of Bilal Kot, who happened to be his cousin gave message of Mst. Razia Bibi (deceased) prior to the occurrence to him. It is admitted by Muhammad Nazir, complainant (PW.1) that Allah Rakha did not join the investigation. Mroever, above-said Allah Rakha gave him message on 13-10-2020 at about 06:00 p.m.; at that time he (PW.1) was present at his house. Said message was also conveyed to PWs at the same time. He (PW.1) further admitted in his cross-examination that he did not immediately proceed to the house of Mst. Razia Bibi (deceased) but the prosecution has failed to examine said Allah Rakha during the course of trial. In the given scenario, abandoning of the abovesaid witness obviously leads to an adverse inference in terms of Article 129 (g) of the Qanun-e-Shahadat Order, 1984 that had he been produced in the witnesses box, he might have not supported the prosecution case. We may observe here that if any party withholds-the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Reliance in this respect is placed on the case of "Pervaiz Khan and another v. The State" (2022 SCMR 393).

13. We have noted with grave concern that the witnesses namely Muhammad Nazir, complainant (PW.1) and Muhammad Saleem (PW.2) have made blatant and dishonest improvements to their earlier statements. Muhammad Nazir, complainant (PW.1) was duly confronted with improvements and the relevant portion of his cross-examination highlighting those improvements is as under: - ....I got recorded in Exh.P.A that I identified the accused Muhammad Ramzan in the light of bulb while cutting neck of my sister with Churri ( ) Confronted with Exh.PA where it is not so recorded. I got recorded in Exh.PA that we tried to apprehend the accused present in the court confronted with Exh.P.A where it is not so recorded. I got recorded in Exh.PA that the accused fled away from the place of occurrence being equipped with Churi confronted with Exh.P.A where it is not so recorded...." Similarly, Muhammad Saleem (PW.2) also introduced dishonest improvements in his statement before the Court, same are also reproduced: ".... I got recorded in my statement under section 161, Cr.P.C. that I identified the accused Muhammad Ramzan in light of bulb while cutting neck of sister with Churi. Confronted with my statement under section 161 Cr.P.C. Exh.D.A where it is not so recorded. I got recorded in Exh.D.A that we tried to apprehend the accused present in the court confronted with Exh.D.A where it is not so recorded. I got recorded in Exh.D.A that the accused fled away from the place of occurrence being equipped with Churi confronted with Exh.D.A where it is not so recorded as such recorded......" There is no cavil to the proposition that when the witnesses improve their statements to strengthen the prosecution case and the moment it is concluded that improvements were made deliberately and with mala fide intention, the testimonies of such witnesses become unreliable. The Supreme Court of Pakistan has observed in a plethora of judgments that the witnesses who made dishonest improvements in their statement on material aspects of the case in order to fill the lacunas of the prosecution case or to bring their statements in line with other prosecution evidence are not worthy of reliance. Reliance is placed upon the case laws titled as "Naveed Asghar and two others v. The State" (PLD 2021 SC 600), "Khalid Mehmood and another v. The State" (2021 SCMR 810) and "Rafaqat Ali v. The State" (2022 SCMR 1107).

14. Insofar as the medical evidence of the prosecution is concerned, it is by now well settled that medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it would not identify the assailant. Reference in this context may be made to the cases of "Muhammad Mansha v. The State" (2018 SCMR 772) and "Muhammad Hassan and another v. The State and another" (2024 SCMR 1427).

15. So far as recovery of Churi (P.6) at the instance of the appellant from his residential house, vide recovery memo (Exh.PG) and the positive report of Punjab Forensic Science Agency, Lahore (Exh.PO) are concerned, the same are not helpful to the prosecution, as we have also noted that the occurrence in this case allegedly took place on 14-10-2020 whereas recovery of Churri (P.6) was made on 10-11-2020 i.e. after 27 days of the occurrence and according to the report of Punjab Forensic Science Agency, Lahore (Exh.PO), the Churri (P6) was sent to the said office on 17-11-2020 i.e. after the delay of morethan 01 month, 03 days of the occurrence and the said Agency examined the churri (P.6) on 08-01-2021. It was also not likely that the blood would not disintegrate meanwhile. We fortify our view from the case law titled as "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120). As we have already disbelieved the ocular account in supra mentioned paragraphs of this judgment, therefore, recovery of Churi (P.6) at the pointation of appellant is of no avail to the prosecution because the recovery of weapon of offence is only a corroborative piece of evidence, and it is settled proposition of law that unless direct or substantive evidence is brought on record, a conviction cannot be recorded on the basis of such evidence, howsoever convincing it may be. Reliance is placed upon the cases titled as "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142) and "Muhammad Mansha v. The State" (2018 SCMR 772).

16. The motive alleged by the prosecution was of quarrel between the spouses but we have noted that there is a haunting silence regarding the minutiae of motive alleged by prosecution. Although the prosecution is not under an obligation to establish a motive in every murder case, but it is also a well settled principle of criminal jurisprudence that if the prosecution sets up a motive and fails to prove it, then it is the prosecution who has to suffer and not the accused. We very respectfully rely on the case of "Tajamal Hussain Shah v. The State and another" (2022 SCMR 1567).

17. As far as the argument advanced by learned counsel for the complainant that the deceased in this case was a vulnerable dependent of the appellant and, thus, by virtue of Article 122 of the Qanun-e-Shahadat, Order 1984, some part of the onus had shifted to the appellant to explain the circumstances in which his wife had died an unnatural death in his house which part of the onus had not been discharged by the appellant. In this regard, we may observe here that the Supreme Court of Pakistan, in a judgment reported in case of "Nazir Ahmad v. The State" (2018 SCMR 787) has been pleased to hold that when every other piece of evidence relied upon by the prosecution has been found to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition. Further guidance can be sought from the cases of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) and "Asad Khan v. The State" (PLD 2017 SC 681). It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused cannot be convicted merely on the basis of lack of discharge of some part of the onus on him.

18. We have considered all the pros and cons of this case and have come to an irresistible conclusion that the prosecution could not prove its case against the appellant beyond shadow of doubt. It is, by now well-established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs, but in this case the prosecution remained failed to discharge its responsibility. It is also well-established principle of law that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. Reliance is placed upon the following case laws titled as "Muhammad Riaz v. Khurram Shahzad and another" (2024 SCMR 51) and "Maqsood Alam and another v. The State and others" (2024 $CMR 156).

19. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. So by extending the benefit of doubt to Muhammad Ramzan, appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.

20. Murder Reference is answered in negative and death sentence passed by learned trial court against Muhammad Ramzan, appellant is not confirmed. JK/M-34/L Appeal allowed.