2011 SCMR 941 (PLP)

NASIR-UL-MULK, J.

The appellant, Abdul Majeed, was convicted by the trial Court for the murder of his wife, Mst. Zebu Mai, by strangulation, and was sentenced to death. His co-accused, Muhammad Ismail and Pir Bakhsh, were acquitted. The High Court maintained the appellant's conviction but reduced his sentence to imprisonment for life. The appellant was granted leave to appeal to reappraise the evidence as the trial Court as well as the High Court had disbelieved the same evidence on which the co-accused of the appellant were acquitted.

2. Saeed Ahmed (P.W.2), complainant in the case, is the brother of the deceased, Mst. Zebu Mai. According to him, he along with two others, Muhammad Afzal (P.W.3) and Muhammad Arif (not produced) visited the house of the appellant at about 5-00 a.m. on 31-7-2001 for the return of Rs.11,000 which he had advanced to the appellant. That his two companions remained outside the house and when he went in, he heard screams of his sister, Mst. Zebu Mai from her bedroom. This prompted him to open the door of the room. That he-saw the appellant and his co-accused, Pir Bakhsh, strangulating his sister by a rope put around her neck and at the same time, Muhammad Ismail, accused was beating her with a pointed sharp weapon. The complainant explained that because of threat by the accused, he did not intervene. That upon his raising alarm his two companions also came in to the house and witnessed the incident.

3. The trial Court as well as the High Court did not believe the ocular testimony, and for the good reasons. The courts found that the presence of the complainant and the other eye-witnesses at the time of incident has not been convincingly explained. The reason given by the complainant for his visit to his brother-in-law's house for return of his loan is contradicted by Muhammad Afzal (P.W.3) who disclosed that the two were not on speaking terms as the complainant was unhappy with the marriage of her sister to the appellant. That 5-00 O'clock in the morning was odd hour for the complainant to visit the house of his brother-in-law simply for the return of money and that too in the company- of two others. The courts also found unbelievable that the complainant would enter the room of the appellant right at the crucial moment when the appellant was strangulating his wife. We may add another aspect that the appellant did not intervene to save his sister when according to him the accused was still in the process of strangulation, and none of the accused is alleged to have been armed with the firearms. For the above said reasons, we also find ourselves in agreement with the conclusions of the two courts that the eye-witnesses have not been able to establish their presence at the scene and that the crime was un-witnessed.

4. The trial Court as well as the High Court found the appellant guilty on the sole ground that his wife was found murdered by strangulation in his house from where her dead body was recovered. That in the absence of any explanation furnished by him regarding his wife's murder inference was to be drawn against him that he was responsible for the murder.

5. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court appearing for the appellant submitted that in the absence of any direct or substantial circumstantial evidence, the appellant's conviction cannot be sustained merely on account of his failure to explain the murder of his wife in his house. To support his submission, the learned counsel relied upon "The State v Muhammad Hanif (1992 SCMR 2047), Bashir Ahmed v. The State (PLJ 1974 Cr.C. (Lahore) 460) and Wazir and others v. The State (PLD 1960 (W.P.) Karachi 674)".

6. Ch. Zubair Ahmed Farooq, learned Additional Prosecutor-General, Punjab, made no attempt to persuade us to believe the ocular testimony. He, however, supported the conviction-and sentence of the appellant for the reasons that prevailed with the two Courts and referred to the case of "Afzal Hussain Shah v. The State (1991 PCr.LJ 113)" contending that in the circumstances like the present one, the accused conviction can be maintained when his wife is found murdered in his house and he does not satisfactorily explain away the circumstances of the death.

7. 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.

8. In the absence of any positive prosecution evidence, the appellant cannot be convicted on presumption that since the murder of his wife took place in his house it can only be him and no other who had murdered the deceased. The conviction and sentence of the appellant on this single circumstance cannot be sustained in law. The appeal is, therefore, allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge against him. He shall be set at liberty if not required in any other case. N.H.Q./A-2/SC Appeal accepted.