2017 S C M R 564
[Supreme Court of Pakistan]
Present: Asif Saeed Khan Khosa, Dost Muhammad Khan and Sardar Tariq
Masood, JJ
ARSHAD KHAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 75 of 2011, decided on 14th November, 2016.
(Against the judgment dated 29.10.2010 passed by the Lahore High Court, Rawalpindi
Bench, Rawalpindi in Criminal Appeal No.250 of 2008, Criminal Revision No.115 of
2008 and Murder Reference No.27 of 2006)
(a) Penal Code (XLV of 1860)---
----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence---Benefit of doubt---Accused
was sentenced to death for murdering his wife---According to the FIR the occurrence
in issue had been witnessed by the eye-witness in the light of an electric bulb but
during the investigation no such 'electric bulb' had been secured by the investigating
officer---FIR had not been lodged at the local police station but the same had been
lodged when the complainant had per chance met a police officer when he was
proceeding to the police station---Both the eye-witnesses were very closely related to
the deceased and they were admittedly chance witnesses---Stated reason for presence
of the said eye-witnesses near the place of occurrence never stood established on the
record through any evidence whatsoever---According to the prosecution the accused
and his wife quarrelled on regular basis because the accused was suspicious of his
wife's character, however nothing had been brought on the record by the prosecution to
substantiate such allegations---Blood-stained churri allegedly recovered at the instance
of the accused was recovered from an open and accessible place and, thus, it could not
be said that the recovery was effected from the exclusive possession of the accused---
Besides no independent witness was associated during recovery proceedings---Post-
mortem examination of the dead body of deceased had been conducted with a long
delay for which no explanation had been brought on the record---Record showed that
the prosecution was not sure about the exact time of deceased's death---Prosecution
had failed to prove its case against the accused beyond reasonable doubt---Conviction
and sentence of death recorded against the accused was set aside in circumstances---
Appeal was allowed accordingly.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Husband accused of murdering
his wife inside matrimonial home---Burden of proof---Scope--- Part of the onus laid on
the accused husband to explain as to how and in what circumstances his wife had died
an unnatural death inside the confines of the matrimonial home, but at the same time
where the prosecution completely failed to discharge its initial onus then no part of the
onus shifted to the accused person at all.
Arshad Mehmood v. The State 2005 SCMR 1524; Saeed Ahmed v. The State 2015
SCMR 710 and Abdul Majeed v. The State 2011 SCMR 941 ref.
Mir Muhammad Ghufran Khurshid Imtiazi, Advocate Supreme Court for
Appellant.
Ch. Muhammad Waheed, Additional Prosecutor-General, Punjab for the State.
Date of hearing: 14th November, 2016.
JUDGMENT
ASIF SAEED KHAN KHOSA, J.---Arshad Khan appellant had allegedly murdered
his wife namely Mst. Naheed Akhtar at 05.00 a.m. on 24.03.2007 inside their
matrimonial home in village Sarwana in the area of Police Station Hazro, District
Attock and for the said offence he was booked and tried in case FIR No. 75 registered
at the said Police Station on the same day. After a regular trial the trial court convicted
the appellant for an offence under section 302(b), P.P.C. and sentenced him to death
and to pay compensation which conviction and sentence had subsequently been upheld
and confirmed by the High Court. Hence, the present appeal by leave of this Court
granted on 15.03.2011.
2. Leave to appeal had been granted in this case in order to reappraise the evidence and
with the assistance of the learned counsel for the parties we have undertaken that
exercise.
3. The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m.
and according to the FIR the occurrence in issue had been witnessed by the eye-
witness in the light of an electric bulb but during the investigation no such electric bulb
had been secured by the investigating officer. We have noticed that the FIR in this case
had not been lodged at the local Police Station but the same had been lodged when the
complainant had per chance met a police officer when he was proceeding to the Police
Station. Both the eye-witnesses produced in this case, i.e. Zahid Khan complainant
(PW8) and Muhammad Sadiq (PW9) were very closely related to Mst. Naheed Akhtar
deceased and they were admittedly chance witnesses. The said witnesses had
maintained before the trial court that at the relevant time they were proceeding towards
a mosque in order to offer Fajar prayers but a bare look at the site-plan of the place of
occurrence shows that the houses of the said eye-witnesses were not situated close to
the house of occurrence and they were situated so far away that they could not find any
mention in the site-plan of the place of occurrence at all. No mosque near the house of
occurrence had been shown in the said site-plan and, thus, the stated reason for
presence of the said eye-witnesses near the place of occurrence never stood established
on the record through any evidence whatsoever. The High Court had itself concluded
that the prosecution had not been able to establish the motive asserted by it. According
to the prosecution the appellant and his wife used to quarrel on regular basis despite
having been married for about four years and having given birth to a child and the
reason for such quarrels was stated to be a suspicion entertained by the appellant
regarding the deceased's character. Nothing had been brought on the record of this case
by the prosecution to substantiate any of the said allegations. It had been alleged by the
prosecution that a blood-stained chhurri had been recovered at the instance of the
appellant but we note that the chhurri statedly recovered had been recovered from an
open and accessible place and, thus, it could not be said that the recovery had been
effected from an exclusive possession of the appellant. Apart from that the provisions
of section 103, Cr.P.C. had flagrantly been violated in respect of the alleged recovery.
Instead of providing support to the ocular account the medical evidence had gone a
long way in creating doubts about the same and in that context we have noticed that
post-mortem examination of the deadbody had been conducted with a long delay for
which no explanation had been brought on the record. According to the prosecution the
occurrence had taken place at 05.00 a.m. and the police had been informed about the
incident at 06.30 a.m. but surprisingly in column No. 3 of the Inquest Report the time
of death of the deceased becoming known was recorded as 05.15 a.m. Post-mortem
examination of the deadbody had been conducted at 11.00 a.m. during the same day
but in the relevant column of the Post-mortem Examination Report the time of death of
the deceased had not been recorded which indicated that even till 11.00 A.M. on the
fateful day the prosecution was not sure as to when the deceased had died. For all these
reasons we have entertained no manner of doubt that the prosecution had failed to
prove its case against the appellant beyond reasonable doubt.
4. It may be true that it has been held by this Court in the cases of Arshad Mehmood v.
The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in
such cases some part of the onus lies on the accused person to explain as to how and in
which circumstances the accused person's wife had died an unnatural death inside the
confines of the matrimonial home but at the same time it has also been clarified by this
Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the
prosecution completely fails to discharge its initial onus there no part of the onus shifts
to the accused person at all.
5. The discussion made above leads us to an inescapable conclusion that the
prosecution had failed to prove its case against the appellant beyond reasonable doubt.
This appeal is, therefore, allowed, the conviction and sentence of the appellant
recorded and upheld by the courts below are set aside and he is acquitted of the charge
by extending the benefit of doubt to him. He shall be released from the jail forthwith if
not required to be detained in connection with any other case.
MWA/A-14/SC Appeal allowed.
;
