Murder acquittal | The case's credibility is undermined by delays in forensic analysis, inconsistent witness statements, discrepancies between witness accounts and the autopsy report, and questionable witness proximity to the crime scene.
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| Murder | The case's credibility is undermined by delays in forensic analysis, inconsistent witness statements, discrepancies between witness accounts and the autopsy report, and questionable witness proximity to the crime scene. |
[Lahore]
Before Malik Shahzad Ahmad Khan, J
Imran Ali---Appellant
Versus
The State and others---Respondents
Criminal Appeal No. 68692-J of 2020, heard on 12th July, 2023.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Delay of about ten hours and fifty minutes in lodging the FIR not plausibly explained---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat---Occurrence in the case took place on 16.02.2019 at 08.15 a.m., but the FIR was lodged on 16.02.2019 at 07:05 p.m., i.e., with the delay of 10 hours and 50 minutes from the occurrence---Distance between the place of occurrence and the police station was only 1/2 kilometer---Such gross delay in lodging the F.I.R had created doubt regarding the truthfulness of the prosecution story---Appeal against conviction was accordingly allowed.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Delay of about 29 hours and 15 minutes in conducting postmortem on the dead body of the deceased---Consequential---
'Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Zafar v. The State and others 2018 SCMR 326 and Muhammad Ashraf v. The State 2012 SCMR 419 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Ocular account not proved---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat---Ocular account of the prosecution was furnished by three eye-witnesses including the complainant---Complainant did not state in the FIR that he had witnessed the occurrence---Names of other eye-witnesses were not mentioned in the FIR and their names were introduced by the complainant for the first time through his supplementary statement, which was recorded on 18.02.2019 i.e., after two days from the occurrence---Both the eye-witnesses stated before the trial Court during their cross-examination that they accompanied complainant to the police station for registration of F.I.R but surprisingly their names were not mentioned in the F.I.R and their statements under S. 161 of Cr.P.C were not recorded on the day of occurrence rather the same were recorded after two days from the occurrence i.e., on 18.02.2019---One of the eyewitnesses stated during his cross-examination that at evening time, he accompanied his father-in-law, complainant, to the police station, where the complainant recorded his statement and after two days from the occurrence he along with other eye-witness got recorded their statements---Likewise, other eye-witness also stated before the trial Court that she accompanied complainant to the police station for registration of the FIR but neither her name was mentioned as an eye-witness in the FIR, nor she made any statement to the police on the day of occurrence i.e., on 16.02.2019, rather she made statement before the police on 18.02.2019---Eye-witnesses remained mum for two days after the occurrence without any valid reason, which showed that their introduction in the case as eye-witnesses after two days of the occurrence was result of an afterthought of the prosecution, hence their evidence was not worthy of reliance---Appeal against conviction was accordingly allowed.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Chance witnesses---Presence of eye-witnesses at the time and place of occurrence not proved---Accused was charged for committing the murder of his wife/daughter of complainant by cutting her throat---Record showed that one of the eye-witnesses and a complainant were not residents of the place, where the occurrence took place---Place of occurrence in the case was 'MM' whereas both the said witnesses were residents of 'HK' located in another District---Eye-witness stated before the trial Court that on the day of occurrence he was asked by his father-in-law, complainant and other in-laws that there was a quarrel between deceased and her husband whereupon he accompanied the complainant to 'MM' and witnessed the occurrence but no such story was mentioned in the F.I.R which showed that the said story was later on concocted by the prosecution to justify the presence of eye-witnesses in the village of occurrence at the relevant time---Thus, the eye-witnesses could not justify their presence at the spot at the relevant time through any valid reason, therefore, they were chance witnesses and as such their evidence was not free from doubt---Though female eye-witness was resident of the area where the occurrence took place but she recorded her statement before police for the first time on 18.02.2019 i.e., after two days of the occurrence---Said witness remained mum for two days after the occurrence and as such her evidence was also doubtful---Appeal against conviction was accordingly allowed.
Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Unnatural conduct of witnesses---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat---Record showed that the complainant party comprised of at least 3/4 male adult members and they were also accompanied by other female members and people of the area at the time of occurrence but they did not try to save the deceased at the time of occurrence or apprehend the accused after the occurrence---Said witnesses allowed the accused to commit the murder of deceased, by inflicting, as many as, 11-injuries on her body---Deceased was real daughter of the complainant and sister-in-law of eye-witness---Accused was not armed with any formidable firearm weapon and he was only armed with a Churri---Evidently eye-witnesses stood like silent spectators at the time of occurrence---Had the eye-witnesses been present at the spot at the time of occurrence as claimed by them then they could have saved deceased or at least apprehended the accused after the occurrence---Conduct of eyewitnesses was unnatural thus their evidence was not worthy of reliance---Appeal against conviction was accordingly allowed.
Pathan v. The State 2015 SCMR 315 and Zafar v. The State and others 2018 SCMR 326 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Ocular account and medical evidence---Conflict between---Accused was charged for committing the murder of his wife/daughter of complainant by cutting her throat by churri---All the eye-witnesses stated in their statements before the Trial Court regarding only one injury inflicted by the accused on the body of the deceased---According to the statement of Medical Officer as well as postmortem report, there were eleven injuries on the body of deceased but all the eye-witnesses did not utter a single word regarding the fact that deceased received eleven injuries on her body, which created conflict between the ocular account and medical evidence of the prosecution---Had the eye-witnesses been present at the spot, at the time of occurrence, they would have also explained the remaining injuries sustained by the deceased---Appeal against conviction was accordingly allowed.
(g) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat by churri---As per prosecution case, the motive behind the occurrence was that accused was having suspicion regarding illicit relationship of his wife with someone else---None of the prosecution witnesses uttered a single word regarding motive part of the prosecution case during their evidence recorded by the Trial Court and they remained mum in that respect---Under the circumstances, the motive as alleged by the prosecution had not been proved in the case and the same was rightly disbelieved by the trial Court---Appeal against conviction was accordingly allowed.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Inconsequential---
Basharat and another v. The State 1995 SCMR 1735 rel.
(i) Penal Code (XLV of 1860)---
----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Delay in sending the crime weapon for analysis---Consequential---
Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.
(j) Criminal trial---
----Benefit of doubt---Principle---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.
Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.
Mian Muhammad Ramzan for the Appellant.
Ms. Asiya Yasin, Deputy District Public Prosecutor for the State.
Ch. Umar Hayat Sandhu for Complainant.
Date of hearing: 12th July, 2023.
Judgment
Malik Shahzad Ahmad Khan, J.---This judgment shall dispose of Criminal Appeal No.68692-J of 2020, filed by Imran Ali (appellant), against his conviction and sentence in case F.I.R. No.134/2019 dated 16.02.2019, registered at Police Station Manga Mandi, Lahore, in respect of offences under sections 302/311, P.P.C.
2. After conclusion of the trial, the learned trial Court (Additional Sessions Judge, Lahore) vide its judgment dated 21.11.2020, has convicted and sentenced Imran Ali (appellant) as under:-
Under section 302(6) P.P.C. to 'imprisonment for life as tazir' for committing Qatl-i-Amd of Mst. Naila (deceased). He was also ordered to pay Rs.5,00,000/- (rupees five hundred thousand only) as compensation as required under section 544-A of Cr.P.C to the legal heirs of the deceased which shall be recoverable as arrears of land revenue and in default thereof to further undergo six months simple imprisonment.
Benefit of section 382-B, Cr.P.C, was also extended to the appellant.
3. Brief facts of the case as given by the complainant Muhammad Mushtaq (PW-3), in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PA/1), was chalked out, are that the complainant was a labourer by profession. The daughter of the complainant namely Mst. Naila (deceased) was married to Imran Ali (appellant) about ten years earlier and the couple had four children, who were living in a rented house, at Mohallah Ahmad-Abad, Manga Mandi. Prior to the occurrence, the relationship between the daughter of the complainant namely Mst. Naila (deceased) and his son-in-law namely Imran Ali (appellant), became strained as the appellant used to level the allegation of having illicit relationship, against the deceased. On 16.02.2019, at about 08.15 a.m, Imran Ali (appellant) cut the throat of daughter of the complainant. On hue and cry of Mst. Naila deceased, Imran Ali (appellant) decamped from the spot. The Mohalladars of the locality called emergency service 1122, as well as, the police on emergency number 15. Mst. Naila (deceased), was shifted to the Jinnah Hospital (Lahore) through emergency Ambulance service 1122 but she succumbed to the injuries on the way to the hospital.
Later on, Muhammad Mushtaq complainant got recorded his supplementary statement (Ex.PD) on 18.02.2019, wherein he alleged that as he was worried on the day of occurrence, therefore, he could not mention certain facts of this case. He alleged in his supplementary statement that at the night time Imran Ali (appellant), while talking on telephone was threatening about dire consequences and bloodshed, whereupon he (complainant), along with Muhammad Iqbal (PW since given-up), Muhammad Shafique (PW-2) and Mst. Zubaida Bibi (PW1), reached at the house of Imran Ali (appellant). The door of the house was closed, which was opened after pushing it and at that time, Imran Ali (appellant), was cutting the throat of Mst. Naila (deceased). As soon as Imran Ali (appellant), saw the complainant party, he also threatened them to cut their throats as well, whereupon the complainant party stepped back. Imran Ali (appellant), removed gold ornaments of his wife namely Mst. Naila (deceased) and thereafter on hue and cry of the complainant party the people of the locality also joined the complainant party, whereupon, he (appellant), decamped from the spot.
4. The appellant was arrested in this case by the police on 01.03.2019 and after completion of investigation the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge under sections 302/311, P.P.C., against the appellant on 10.12.2019, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced ten witnesses. Prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PR. The statement of the appellant under section 342, Cr.P.C, was recorded, wherein he refuted the allegations levelled against him and professed his innocence, however, no defence evidence was produced by the appellant.
5. The learned trial Court vide its impugned judgment dated 21.11.2020, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
6. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that there is a delay of ten hours and fifty minutes in lodging the FIR, which shows that the same has been lodged after consultation and deliberations; that there is delay of twenty nine hours and fifteen minutes in conducting postmortem examination on the dead-body of the deceased, which has further created doubt regarding truthfulness of the prosecution story; that names of both the eye-witnesses of the prosecution namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), are not mentioned in the contents of the FIR and their names were introduced by the complainant for the first time on 18.02.2019 i.e., after two days of the occurrence while recording his supplementary statement (Ex.PD) whereas, the third eye-witness, namely Muhammad Mushtaq, complainant (PW-3) has not claimed or mentioned in the FIR (Ex.PA/1) that he had witnessed the occurrence; that as per postmortem report, there were eleven injuries on the body of Mst. Naila (deceased) but the prosecution eye-witnesses namely Muhammad Mushtaq complainant (PW-3), Muhammad Shafique (PW2) and Mst. Zubaida Bibi (PW-1), only stated about one injury on the throat of Mst. Naila (deceased) and they did not mention regarding remaining injuries, which shows that the prosecution eye-witnesses were not present at the spot at the relevant time; that Muhammad Shafique (PW-2) is resident of Haji Kot Kala Khatai Road, Shandra, Lahore and Muhammad Mushtaq, complainant (PW-3) is resident of village Barath District Sheikhupura whereras the occurrence took place in Mohalla Ahmad Abad, Manga Mandi, Lahore but the abovementioned eye- witnesses have not given any valid reason for their presence at the spot at the time of occurrence, therefore, they are chance witness; that although Mst. Zubaida Bibi (PW-1), is resident of the same area, where the occurrence took place but she remained mum till 18.02.2019, when she got recorded her statement under section 161 of Cr.P.C; that the conduct of the prosecution eye - witnesses is highly un-natural because the appellant was not armed with any formidable weapon like firearm but the prosecution eye-witnesses did not try to save the life of Mst. Naila (deceased) or apprehend the appellant at the time of occurrence; that although the complainant alleged in the FIR (Ex.PA/1), that the appellant was having suspicion regarding illicit relationship of his wife with somebody but the complainant while appearing before the learned trial Court as PW-3 or other prosecution witnesses, did not utter a single word about the motive part of the prosecution case; that the recovery of Churri P-5 has been planted against the appellant and positive report of Punjab Forensic Science Agency, Lahore (Ex.PR), in respect of the presence of blood on the said Churri is highly doubtful because the occurrence in this case took place on 16.02.2019, whereas Churri (P-5) was deposited in the office of PFSA, Lahore on 29.03.2019 i.e., after one month and thirteen days from the occurrence whereas, the blood disintegrates within a period of 3 to 4 weeks; that the impugned judgment is result of misreading and non-reading of evidence available on the record; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, the appeal filed by the appellant may be accepted and the appellant may be acquitted from the charge.
7. On the other hand, learned Deputy District Public Prosecutor for the State, assisted by learned counsel for the complainant has argued that it is a case of single accused and the prosecution has proved its case against the appellant through reliable and confidence inspiring evidence; that the complainant Muhammad Mushtaq (PW-3) is real father of Mst. Naila (deceased), whereas Muhammad Shafique (PW-2) is brother-in-law of the deceased and as the abovementioned eye-witnesses are closely related to the deceased, therefore, substitution in such like cases is a rare phenomena; that the appellant was named in the FIR with the specific role and the role attributed to the appellant was fully supported by the medical evidence, furnished by Dr. Faiza Muneer Qazi (PW-9), who noted ten incised wounds and one abrasion total eleven wounds on the body of the deceased; that the prosecution eye-witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case against the appellant is further corroborated by the recovery of Churri P-5, on the pointation of the appellant and the positive report of Punjab Forensic Science Agency, Lahore (Ex.PR); that the prosecution story qua the motive is also proved in this case; that the appellant has committed a brutal and reckless murder of his wife by inflicting as many as 11 injuries on her body, therefore, he does not deserve any leniency, in this case; that there is no substance in the appeal filed by the appellant, therefore, the same may be dismissed and conviction and sentence of the appellant, as awarded by the learned trial Court may be upheld and maintained.
8. Arguments heard. Record perused.
9. The detail of the prosecution case as set forth in the complaint (Ex.PA) on the basis of which the formal FIR (Ex.PA/1), was chalked out, as well as, in the supplementary statement of the complainant (Ex.PD), has already been given in Para No.3 of this judgment, therefore, there is no need to repeat the same.
10. I have noted that the occurrence in this case took place on 16.02.2019 at 08.15 a.m., but the FIR was lodged on 16.02.2019 at 07:05 p.m., i.e., with the delay of 10 hours and 50 minutes from the occurrence. The distance between the place of occurrence and the police station was only 1/2 kilometer. The abovementioned gross delay in lodging the FIR has created doubt regarding the truthfulness of the prosecution story. I have also noted that postmortem examination on the dead body of Mst. Naila deceased was conducted on 17.02.2019 at 01:30 p.m., which means that there was delay of 29 hours and 15 minutes in conducting the postmortem examination on the dead body of Mst. Naila deceased. The abovementioned delay in lodging the FIR and conducting the postmortem examinations on the dead body of the deceased is suggestive of the fact that the occurrence was unseen and the said delay were consumed in procuring the attendance of fake eye-witnesses. In the case of 'Muhammad Ilyas v. Muhammad Abid alias Billa and others' (2017 SCMR 54), the Apex Court of the country was pleased to observe that delay of 09 hours in conducting the postmortem examination suggests that prosecution eye-witnesses were not present at the spot at the time of occurrence and the said delay was used in procuring the attendance of fake eye-witnesses. Relevant part of the said judgment at page No. 55 reads as under:-
"2. ......................Post-
Similarly, in the case of "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327), the Hon'ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time.
Similar view was taken by the Apex Court of the country in the cases reported as "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192),"Zafar v. The State and others" (2018 SCMR 326) and "Muhammad Ashraf v. The State" (2012 SCMR 419).
11. The ocular account of the prosecution was furnished by Mst. Zubaida Bibi (PW-1), Muhammad Shafique (PW-2) and Muhammad Mushtaq complainant (PW-3). Muhammad Mushtaq complainant (PW-3), did not state in the FIR that he had witnessed the occurrence. The names of other eye-witnesses namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), were not mentioned in the FIR and their names were introduced by the complainant for the first time through his supplementary statement (Ex.PD), which was recorded on 18.02.2019 i.e., after two days from the occurrence. It is further noteworthy that both the abovementioned eye-witnesses namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), stated before the learned trial Court during their cross-examination that they accompanied Muhammad Mushtaq complainant to the police station for registration of FIR but surprisingly their names were not mentioned in the FIR and their statements under section 161 of Cr.P.C, were not recorded on the day of occurrence rather the same were recorded after two days from the occurrence i.e., on 18.02.2019. Muhammad Shafique (PW-2) stated during his cross-examination that at evening time, he accompanied his father-in-law namely Muhammad Mushtaq complainant (PW-1), to the police station, where the complainant got recorded his statement and after two days from the occurrence he along with other got recorded their statements. Relevant part of his statement made during cross-examination reads as under:-
"................At evening time, we went to police station Manga Mandi, Lahore, where my father-in-law gave his statement to the police. After two days, we went to P.S Raiwind, Lahore where we got recorded our statements......"
Likewise, Mst. Zubaida Bibi (PW-1), also stated before the learned trial Court that she accompanied Mushtaq Ahmad complainant (PW-3), to the police station for registration of the FIR but as mentioned earlier, neither her name was mentioned as an eye-witness in the FIR (Ex.PA/1), nor she made any statement to the police on the day of occurrence i.e., on 16.02.2019 rather she made statement before the police on 18.02.2019. The relevant part of her statement in this respect is reproduced hereunder:-
".............................
It is, therefore, evident form the perusal of the statements of Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2) that they both accompanied Muhammad Mushtaq (PW-3) on the day of occurrence, to the police station for registration of FIR (Ex.PA/1) but neither their names have been mentioned in the FIR as prosecution witnesses nor they made any statement to the police on the said day, rather they both made their statements before the police for the first time after two days of the occurrence i.e. on 18.02.2019. They remained mum for two days after the occurrence without any valid reason, which shows that their introduction in this case as eye-witnesses after 2-days of the occurrence is result of an afterthought of the prospection, hence their evidence is not worthy of reliance.
It is further noteworthy that Muhammad Shafique (PW-2) and Muhammad Mushtaq complainant (PW-3) are not residents of the place, where the occurrence took place. The place of occurrence in this case is Mohallah Ahmad-abad Manga Mandi, whereas both the abovementioned prosecution eye-witnesses are residents of Haji Kot Kala Khatani Road, Shandra, Lahore and village Barath Tehsil Ferozwala, District Sheikhupura, respectively. Muhammad Shafique (PW-2) stated before the learned trial Court that on the day of occurrence he was asked by his father-in-law Muhammad Mushtaq, complainant (PW-3) and other in-laws that there was a quarrel between Mst. Naila Bibi (deceased) and her husband Imran Ali (appellant) whereupon he accompanied the complainant to Manga Mandi, Lahore and witnessed the occurrence but no such story was mentioned in the FIR (Ex.PA/1) which shows that the above referred story was later on concocted by the prosecution to justify the presence of the said prosecution eye-witnesses in the village of occurrence at the relevant time. I am, therefore, of the view that the prosecution eye-witnesses could not justify their presence at the spot at the relevant time through any valid reason, therefore, they are chance witnesses and as such their evidence is not free from doubt. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) at Para No.14, observed regarding the chance witnesses as under:-
"14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
Similar view was taken in the case of "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142). Relevant part of the said judgment at Para No.2 reads as under:-
".................Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence ... ..."
As the above-mentioned prosecution eye-witnesses are chance witnesses and they could not prove the reason of their presence at the spot at the time of occurrence, therefore, their very presence at the spot at the relevant time becomes doubtful. Insofar the evidence of prosecution eye-witness namely Mst. Zubaida Bibi (PW-1), is concerned, though she was resident of the area where the occurrence took place but as mentioned earlier, she got recorded her statement before police for the first time on 18.02.2019 i.e., after two days from the occurrence. She remained mum for two days after the occurrence and as such her evidence is also doubtful.
12. It is also noteworthy that the conduct of the prosecution eye-witnesses at the time of occurrence is highly un-natural. According to the prosecution's own case, the appellant committed murder of Mst. Naila (deceased), while cutting her throat with Churri. Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), stated that at the time of occurrence, the complainant party was comprising of father and mother of the deceased, Muhamamd Shafique (PW-2), Iqbal (PW since given-up), a milkman, as well as, other people of the area also attracted to the spot. Relevant part of their statements made in this respect read as under:-
Mst. Zubaida Bibi (PW-1)
"............When I reached at the door, father and mother of the deceased, Muhammad Shafique and Iqbal, this milkman along with few other women were pushing the door to get into the house....."
Muhammad Shafique (PW-2)
"......................We heard hue and cry from inside the house. In the meanwhile of knocking the door, people of the locality also gathered there........."
The complainant party was comprising of at least 3/4 male adult members. They were also accompanied by other female members and people of the area at the time of occurrence but they did not try to save Mst. Naila (deceased) at the time of occurrence or to apprehend the appellant after the occurrence. They allowed the appellant to commit the murder of Mst. Naila (deceased), by inflicting, as many as, 11- injuries on her body. Mst. Naila Bibi (deceased) was real daughter of the complainant and sister-in-law of Muhammad Shafique (PW-2). The appellant was not armed with any formidable firearm weapon and he was only armed with a Churri. It is evident from the perusal of the evidence of the prosecution eye-witnesses that they stood like silent spectators at the time of occurrence. Had the abovementioned eye-witnesses been present at the spot at the time of occurrence as claimed by them then they could have saved Mst. Naila (deceased) or at least apprehended the appellant after the occurrence. Their conduct is unnatural thus their evidence is not worthy of reliance. I may refer here the case of "Pathan v. The State" (2015 SCMR 315), wherein at Para No.5, of the judgment, the august Supreme Court of Pakistan was pleased to observe as under:-
"The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic/ narration of the occurrence but did nothing nor took a single step to rescue the deceased The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue....."
Similar view was reiterated by the august Supreme Court of Pakistan in the cases of "Zafar v. The State and others" (2018 SCMR 326) and "Liaquat Ali v. The State" (2008 SCMR 95). Under the circumstances, it cannot be safely held that the abovementioned eye-witnesses were present at the spot at the relevant time and they had witnessed the occurrence because their conduct is highly unnatural.
13. It is further noteworthy that the eye-witnesses namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), stated during their examination-in-chiefs that before shifting Mst. Naila (deceased) to the hospital, she made statement before the police that she was killed by her husband namely Imran Ali (appellant) but not a single police officer who has been examined in this case as a prosecution witness has stated that Mst. Naila (deceased), made any dying declaration in his/her presence.
14. I have also noted that all the prosecution eye-witnesses namely Mst. Zubaida Bibi (PW-1), Muhammad Shafique (PW-2) and Muhammad Mushtaq (PW-3), stated in their statements before the learned trial Court regarding only one injury inflicted by the appellant on the body of the deceased that Imran Ali (appellant) cut throat of Mst. Naila (deceased). According to the statement of Dr. Faiza Muneer Qazi (PW-9), as well as, postmortem report (Ex.PL), there were eleven injuries on the body of Mst. Naila deceased but all the abovementioned prosecution eye-witnesses did not utter a single word regarding the fact that Mst. Naila (deceased ) received eleven injuries on her body, which creates conflict between the ocular account and medical evidence of the prosecution. Had the abovementioned eye-witnesses been present at the spot, at the time of occurrence, they would have also explained the remaining injuries sustained by the deceased.
15. As per prosecution case, the motive behind the occurrence was that Imran Ali (appellant) was having suspicion regarding illicit relationship of his wife with someone else. I have noted that none of the prosecution witnesses utter a single word regarding motive part of the prosecution case during their evidence recorded by the learned trial Court and they remained mum in this respect. Under the circumstances, the motive as alleged by the prosecution has not been proved in this case and the same was rightly disbelieved by the learned trial Court in paragraph No.21, of the impugned judgment.
16. Insofar as the recovery of blood stained 'Churri' (P-5) on the pointation of Imran Ali appellant is concerned, it is noteworthy that the occurrence in this case took place on 16.02.2019, whereas, 'Churri' (P5) was recovered on the pointation of the appellant from his house on 08.03.2013 i.e., after twenty two days from the occurrence and during the abovementioned period, Imran Ali appellant had ample opportunity to wash way the blood on 'Churri' (P.5). In the light of above, recovery of blood stained 'Churri' (P-5) on the pointation of Imran Ali appellant is not free from doubt. The Hon'ble Supreme Court of Pakistan in the case of 'Basharat and another v. The State' (1995 SCMR 1735) disbelieved the evidence of blood-stained dagger which was allegedly recovered from the accused from his house after ten days from the occurrence. Relevant part of the said judgment at page No. 1739 is reproduced hereunder for ready reference:-
"11. The occurrence took place on 20.04.1988. Basharat appellant was arrested on 28.04.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.04.1988. It is not believable that he would have kept blood stained chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it"
It is also noteworthy that the blood stained ' Churni' (P-5) was sent to the office of Punjab Forensic Science Agency, Lahore on 29.03.2019 i.e., after one month and thirteen days from the occurrence, therefore, it was unlikely that the blood on 'Churri' (P-5) would not disintegrate during the above mentioned period. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120) has observed that recovery of blood stained hatchet was affected after about one month from the occurrence, therefore, it was not likely that the blood would not disintegrate in the meanwhile, thus, the alleged recovery of hatchet from the accused was disbelieved. We are, therefore, of the view that the evidence of alleged recovery of 'Churri' (P-5) from Imran Ali (appellant) and positive report of Punjab Forensic Science Agency, Lahore (Ex.PR) are of no avail to the prosecution.
17. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt. It is by now well settled 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 doubts about the prosecution story. In 'Tariq Pervez v. The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-
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