2025 PLP 1934 (YLR)

Muhammad Tariq Nadeem, J.

Through this single judgment, we intend to decide Criminal Appeal No.1266-LD of 2022, filed by Aurengzeb against his conviction and sentence along with Crl. Appeal No. 251-LD of 2023 filed by Muhammad Kashif complainant against the acquittal of Mst. Nusrat Bibi, respondent No.2 and Murder Reference No.117-LD of 2022, transmitted by the trial court for confirmation or otherwise of death sentence of Aurengzeb, appellant being originated from judgment dated 17-12-2022, passed by learned Additional Sessions Judge, Dunyapur, District Lodhran in case FIR No.157 dated 01-05-2020, under Sections 302, 324, 337-F(iii), 337-L(i), 34 P.P.C, registered at Police Station Saddar Dunyapur, whereby the trial court while acquitting rest of the accused namely Mst. Nusrat Bibi, convicted and sentenced Aurengzeb, appellant for committing murder of his own better half namely Mst. Sana Bibi and causing injuries to Mst. Zainab Bibi with the intention to murder, as under:- Under Section 302 (b) P.P.C. Death for committing Qatl-i-Amd of Mst. Sana Bibi, deceased with the direction to pay compensation under Section 544-A Cr.P.C. to the tune of Rs.2,00,000/- to the legal heirs of deceased, and in default thereof to further undergo S.I. for six months. Under Section 324 P.P.C. 10 years R.I. with fine of Rs.50,000/-; in default thereof to further undergo S.I. for three months for attempting to commit murder of Mst. Zainab Bibi. Under Section 337-F(iii) P.P.C. 03 years R.I. with payment of daman Rs.20,000/- to injured/PW Mst. Zainab Bibi. Under Section 337-L(1) P.P.C. 05 years R.I. with payment of daman Rs.20,000/- to injured/PW Mst. Zainab Bibi. All sentences shall run concurrently. Benefit of section 382-B Cr.P.C. was extended to the convict.

2. The prosecution story as given in the judgment of the trial court reads as under: "...Briefly, prosecution case as narrated by complainant Muhammad Kashif (PW-1) through his promptly filed written application (Exh.PC) before the SHO P.S Saddar Dunyapur on 01.05.2020 and was later on culminated into registration of FIR (Exh.PC/2) is that he is resident of City Dunyapur. On 01.05.2020, at 11:00 2m/12:00 noon, niece of complainant Mst. Sana Bibi made a phone call to sister of complainant Zainab Bibi who told her that her husband Aurangzeb is beating her and she be saved. Mst. Zainab Bibi sister of complainant told whole story to him. He along with his sister Zainab Bibi and driver Afzal son of Farzand Ali caste Arain and Muhammad Safdar son of Muhammad Ramzan caste Arain went to the house of his niece Mst. Sana Bibi situated in Chak No.17/M Dunyapur on Mehran car and saw that her husband Aurangzeb son of Muhammad Arshad caste Arain and his mother Nusrat Bibi (accused persons) were beating to complainant's niece Mst. Sana Bibi (deceased). Accused Nusrat Bibi took pistol from the room and handed over to accused Aurangzeb and asked him to kill all of them. Accused Aurangzeb made a fire with pistol on Sana Bibi (deceased) which landed on her right cheek who fell on the ground. Accused Aurangzeb made second fire on Zainab Bibi which hit on her neck and she became injured. Accused Aurangzeb made straight fire on them which hit on gate. Occurrence was seen by complainant and PWs. Mst. Sana Bibi succumbed to the injuries at the spot. Injured Zainab Bibi was referred to hospital. Motive behind the occurrence was altercation between accused Aurangzeb and Sana Bibi (deceased) on family issue. Accused Aurangzeb committed murder of Sana Bibi (deceased) and caused injury to Zainab Bibi injured...."

3. After completion of investigation, a report under section 173 Cr.P.C. was prepared and submitted before the learned trial court. Learned trial court, after observing all the pre-trial codal formalities, framed charge against the appellants along with his acquitted co-accused, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 10 PWs. The ocular account of the incident in issue had been provided by Muhammad Kashif, complainant (PW.1), Mst. Zainab Bibi, injured (PW.2) and Muhammad Afzal (PW.3). Ghulam Abbas, draftsman appeared as PW.6, who prepared scaled site plan of the place of occurrence Exh.PJ and Exh.PJ/1. Mushtaq Ahmad, Inspector (PW.7) was the investigating officer of the case who stated about the various steps taken by him during investigation of this case. The medical evidence was furnished by Doctor Faiza Iram, Woman Medical Officer (PW.4) and Doctor Nimra Sattar, Woman Medical Officer (PW.5). The remaining evidence produced by the prosecution was formal in nature. The prosecution gave up PWs namely Muhammad Safdar, Ashraf, being unnecessary and after tendering reports of the Forensic Science Agency, Lahore (Exh.PM to Exh.PP) closed its evidence.

4. Thereafter the statements of the appellant and his co-accused under section 342 Cr.P.C. were recorded wherein they refuted the allegations levelled against them and professed their innocence. The appellant did not opt to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation levelled against him, however, he produced copy of FIR No. 716 dated 30-08-2020, under sections 302, 324,34, 337-A(vi), 201 P.P.C., Police Station Saddar Dunyapur as Mark-C and copy of order of Regional Police Officer Multan dated 22-02-2021 as Mark-D in his defence evidence.

5. The trial court, vide judgment dated 17-12-2022, found Aurengzeb, appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co-accused namely Mst. Nusrat Bibi, of the charge through the same judgment by giving her the benefit of doubt, hence, the Appeals and connected Murder Reference before us.

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

7. After scanning the crime report (Exh.PC/2), it manifests that no time of occurtence has been described therein. If Muhammad Kashif, complainant (PW.1) and PWs were present at the time and place of occurrence then the time of occurrence must have been mentioned in the F.I.R. This fact constrained us to hold that the PWs were not present at the time of incident for the reason they were not sure about the time of occurrence, otherwise there was no justification for non-describing the same in the FIR.

8. We have further noted that in the column No.3 of the inquest report (Exh.PB/1) of Mst. Sana Bibi (deceased), time of death has been mentioned as 02:00 p.m. on 01-05-2020 and according to the postmortem report (Exh.PB), the autopsy on the dead body of Mst. Sana Bibi (deceased) was conducted on the following day at 03:00 a.m. i.e. with the delay of 11 hours 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)

9. In an attempt to make it a case of direct evidence against the appellant, the prosecution has heavily relied upon the statements of Muhammad Kashif, complainant (PW.1), Ms. Zainab Bibi, injured (PW.2) and Muhammad Afzal (PW.3). Muhammad Kashif, complainant (PW.1) was the maternal uncle whereas Zainab Bibi, injured (PW.2) was the mother of Mst. Sana Bibi (deceased). Muhammad Afzal (PW.3) was an independent witness. Although, Mst.Zainab Bibi, injured (PW.2) is an injured witness but we have to see whether she (PW.2) received injuries during the occurrence or otherwise and whatever she has stated was a gospel truth? We have to analyze her evidence in the light of settled principles of law in this respect. According to the prosecution story when the abovesaid eye-witnesses reached at the house of occurrence, Aurengzeb, appellant firstly made fire shot with his 30 bore pistol upon Mst. Sana Bibi (deceased) and thereafter made fire shot upon the neck of Mst.Zainab Bibi, injured (PW.2). If the appellant had intention to murder Mst. Sana Bibi (deceased) then there was no reasoning to wait for the arrival of eye-witnesses. Moreover, Muhammad Kashif, complainant (PW.1) during his cross-examination stated that as per application for registration of FIR (Exh.DA) occurrence took place in the courtyard of house of Sana Bibi (deceased) but in his supplementary statement, he (PW.1) stated that occurrence took place in the room of Mst. Sana Bibi (deceased). We have further noted that as per statements of Muhammad Kashif, complainant (PW.1) and Mst. Zainab Bibi, injured (PW.2), they reached at Chak No. 17/M at 01:35 p.m. whereas according to the inquest report (Exh.PB/1) Mst. Sana Bibi died on 01-05-2020 at 02:00 p.m. and contrary to above as per evidence of Muhammad Afzal (PW.3), the occurrence took place on 01-05-2020 at 03:45 p.m. Relevant lines of his cross-examination read as under:- "...I am car driver. On 01.05.2020, I was at my house and did not go on taxi stand. Kashif, Safdar and Zainab Bibi came to my house at 12:00/12:30 day time. I stated the time "3:45" in my statement recorded under section 161 Cr.P.C. Voluntarily stated that I stated that time of the occurrence..." In this way, there is a material contradiction about the time of occurrence. Moreover, the prosecution has not produced any cell phone or cell phone data of Mst.Zainab Bibi, injured (PW.2) upon which she received phone call of her daughter. According to the statement of Mst. Zainab Bibi, injured (PW.2), she did not remember the cell number through which deceased Sana Bibi made a phone call to her, however, that cell number was of mother-in-law of Sana Bibi. This fact does not appeal to a prudent mind that if Mst. Nusrat Bibi (acquitted co-accused) had any intention to get Mst. Sana Bibi murdered at the hands of appellant, why she gave her cell phone to deceased to inform her mother that her husband is quarrelling with her and intend to murder her. So far as the testimony of Mst. Zainab Bibi, injured (PW.2) is concerned, we have noted that she was medically examined on 13-05-2020 by Doctor Faiza Iram, Woman Medical Officer (PW.4), who described the brief history of the said injured as under:- "BRIEF HISTORY Examinee brought by Police in the emergency room with the history of firearm injury on 01-05-2020. She was referred case from THQ, hospital Dunyapur and was again referred to BVH Bahawalpur from DHQ hospital Lodhran for further management...." But Doctor Faiza Iram, Woman Medical Officer (PW.4) during her cross-examination stated as infra:- "...It is correct that column of "date and time of admission and discharge" is blank in Exh.PA. On 01.05.2020, I did not do any proceedings regarding medical examination. At the time of her examination injured Zainab Bibi had already changed her clothes. Voluntarily stated that she had produced those clothes before me. It is correct that it is not mentioned in "examination of clothes" that these clothes were same which injured had worn at the time of her examination. It is correct that injured did not appear before me before 13.05.2020. Injured remained admitted in BVH Bahawalpur from 01.05.2020 to 08.05.2020 as per report of BVH, Bahawalpur. Injured was produced before me on 13.05.2020. I do not know where the injured remained from 08.05.2020 to 13.05.2020..." According to the testimony of Doctor Faiza Iram (PW.1), Mst. Zainab Bibi, injured (PW.2) remained admitted in BVH, Bahawalpur from 01.05.2020 to 08.05.2020 but no such document to that effect was produced during the course of evidence. Moreso, Muhammad Kashif, complainant (PW.1) during his cross-examination stated that medical examination of Mst. Zainab Bibi, injured (PW.2) was conducted on 13.05.2020. Contrary to above, Mst. Zainab Bibi, injured (PW.2) during her cross-examination stated that her medical examination was conducted after 04 days of the occurrence. Although, according to the record, Mushtaq Ahmad, SI/I.O (PW.7) submitted an application (Exh.PL) on 04-05-2020 to Woman Medical Officer, BVH for permission to record statement of Mst.Zainab Bibi, injured (PW.2), which was allowed by the concerned doctor with the observation that she is fit for recording her statement, thereafter her statement under section 161 Cr.P.C. was recorded on 04-05-2020 with the delay of three days of the occurrence but there is no evidence that she (PW.2) was not in a position to get record her statement from 01-05-2020 to 03-05-2020. She (PW.2) has stated in her cross-examination as under:- "...I regained consciousness after sometime but I do not remember the time.." It is settled by now that the recording the statement of a witness under section 161 Cr.P.C. at a belated stage casts serious doubts on the version of the prosecution. Reference may be made to the case of "Khial Muhammad v. The State" (2024 SCMR 1490) wherein it has been held as under:- "...10. It is interesting to note that both the eye-witnesses Zahoor Ahmed (PW-2) and Shahenshah (PW-7) were present at the time of incident but their names were not mentioned in the FIR. Moreover, despite their presence at the place of incident their statements under section 161 Cr.P.C were recorded by the police with a delay of 16 hours. The occurrence as per FIR took place on 27.03.2016 at 06:20 p.m. however statements of both aforementioned eye-witnesses under section 161, Cr.P.C were recorded on 28.03.2016 at 10:30 p.m. This court has time and again ruled that recording the statement of witnesses under section 161 Cr.P.C at a belated stage casts serious doubts on the version of prosecution. Reference may be made to the case of Muhammad Khan v. Maula Baksh and another [1998 SCMR 570] wherein it has been held that:- "It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation." In the case at hand, no plausible explanation was rendered by the prosecution as to why statements of star witnesses were recorded after such a delay and why their names were not mentioned in the FIR. This delay, by itself, casts substantial doubt on the reliability of the prosecution's case....." In the eventuality of supra mentioned facts, we are of the considered view that Muhammad Kashif, complainant (PW.1), Mst.Zainab Bibi, injured (PW.2) and Muhammad Afzal (PW.3) have failed to establish their presence at the spot at the relevant time because their evidence is not truthful and confidence inspiring and the same cannot be taken more than a pinch of salt. 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).

10. Apart from the above, the presence of so-called eye-witnesses at the spot is further falsified as according to the scaled site plan (Exh.PJ), which was prepared by Ghulam Abbas, draftsman (PW.6), the distance between the Point No.1 (from where Mst. Sana Bibi (deceased) received injury) and point No.2 (where the appellant made fire shot on the body of Mst. Sana Bibi, deceased) was eight feet but Doctor Nimra Sattar (PW.2), who conducted postmortem on the body of Mst. Sana Bibi observed burning on the injury No.1, which is for convenience reproduced as under:- "..Injury No.1 Elliptical wound located on right cheek 02 cm lateral to nose measuring 0.5 cm x 01 cm having regular inverted margins. Burns of 0.5 cm are around the wound margins...." Thus, the medical evidence being in direct conflict with the ocular evidence, in our view, is also not safe to rely on the statements of the eye-witnesses, in the peculiar circumstances of the instant case. We fortify our view from the dictum laid down in case titled as "Barkat Ali v. Muhammad Asif and others" (2007 SCMR 1812) wherein, the Supreme Court of Pakistan has held as under- "...It is a settled law that blackening appears on the dead body in case the deceased received injuries at a distance of 4 feet according to medical jurisprudende by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292. Dain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644..." Similar view has been reiterated by the apex Court of the Country in the case titled as "Tajamal Hussain Shah v. The State and another" (2022 SCMR 1567) wherein in similar facts and circumstances has granted benefit of doubt in the following manner:- "...Blackening around the wound showed the fire would have been made from a close range but according to the site plan, the accused was shown standing at a distance of 18 steps away from the deceased

such major discrepancy raised serious doubts on the credibility of the ocular account...." Further reference may be made to the case of "Riasat Ali and Fakhar Zaman v. The State and another" (2024 SCMR 1224), wherein it has been held as under:-

14. The postmortem report of deceased Asadullah Khan mentions about blackened and burnt area of his entrance wound near lower end of his scapula. The distance from which the deceased Asadullah Khan was fired upon was 5.5 feet. According to Modi's Medical Jurisprudence and Toxicology blackening is found, if a firearm like shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet. Reference in this regard is also made to the cases of 'Mir Muhammad v. The State', 'Amin Ali v. The State', and 'Muhammad Zaman v. The State'.

11. So far as recovery of pistol 30 bore (P.3) at the instance of the appellant from the house of occurrence lying in kitchen-like room, vide recovery memo (Exh.PF) on 17-05-2020 and positive report of the Punjab Forensic Science Agency, Lahore (Exh.PO) are concerned, the same are also not helpful to the prosecution for the reasons that it would not appeal to any prudent mind that once the appellant decided to conceal the same as is the case of the prosecution then there was no occasion that he would keep the same in such safe custody so as to get recovered the same at a subsequent point of time and hand over to the police as a souvenir, therefore, the alleged recovery of weapon of offence at the instance of the appellant is not proved by the prosecution. Reliance is placed upon the case law titled as "Basharat and another v. The State" (1995 SCMR 1735). As we have already disbelieved the ocular account in supra mentioned paragraphs of this judgment, therefore, recovery of 30 bore pistol (P.3) 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).

12. As the learned trial court has already disbelieved the motive part of the occurrence with cogent reasons in paragraph No.18 of the impugned judgment, therefore, there is no need to discuss the same. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the case titled as "Maqsood Alam and another v. The State and others" (2024 SCMR 156).

13. 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-i-Shahadat, Order 1984, some part of the orfus 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.

14. 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) "Muhammad Nawaz and another v. The State and others" (2024 SCMR 1731) and "Rehmat Ullah and 2 others v. The State and others" (2024 SCMR 1782).

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

16. Murder Reference is answered in negative and death sentence passed by learned trial court against Aurengzeb, appellant is not confirmed.

17. As a natural corollary. Criminal Appeal No. 251-LD of 2023 filed by Muhammad Kashif, complainant (PW.1) against acquittal of Mst. Nusrat Bibi, respondent is hereby dismissed. JK/I-4/L Order accordingly.