2023 S C M R 670

2023 S C M R 670

[Supreme Court of Pakistan]

Present: Ijaz Ul Ahsan, Sayyed Mazahar Ali Akbar Naqvi and Athar Minallah, JJ

SARFRAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 560 of 2020, decided on 2nd January, 2023.

(Against the judgment dated 24.01.2017 passed by the Lahore High Court, Lahore in
Criminal Appeal No. 288-J of 2013 and Murder Reference No. 304 of 2013)

(a) Penal Code (XLV of 1860)---

----S. 302(b)--- Qatl-i-amd--- Reappraisal of evidence--- During the course of proceedings

before the Trial Court, the complainant stated before the Court that he moved an application
for registration of case, which bears his signature, without disclosing time and the name of
the subscriber of the application---Further it was not mentioned anywhere that where and
when such application was drafted when it was an admitted fact that the "Police Karvai" was
conducted in Police Station---Complainant was a distant relative of deceased residing at a
distance of 6 kilometers while real son of deceased who was inmate of the same house was
absent in every material aspect of the case, which was a serious lapse---Son of the deceased
who was stated to have witnessed the occurrence, was given up at the time of trial---
Occurrence had taken place in the odd hours of the night, however, no source of light had
been mentioned by the Investigating Officer either in the FIR, rough site plan, scaled site
plan or even during the course of proceedings before the Trial Court---Both the alleged
witnesses of the ocular account were not residents of the locality and were residing at a
distance of 5/6 kilometers away from the place of occurrence---Not a single person from the
inmates of the house where occurrence took place or from surrounding inhabitants appeared
in support of the prosecution version and the whole prosecution case was silent about this
aspect of the matter---Record clearly reflected that the prosecution witnesses were not
present at the place of occurrence, rather they managed to appear as witnesses after due
consultation and deliberation---Record further showed that the complainant was inimical
towards the deceased---In such circumstances, it seemed impossible that deceased would
have invited an inimical person for his help before his death---Prosecution had failed to
prove its case beyond any reasonable shadow of doubt---Appeal was allowed and accused
persons were acquitted of the charge.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Motive---Burden of proof---if a specific motive has been alleged

by the prosecution then it is duty of the prosecution to establish the said motive through
cogent and confidence inspiring evidence---Otherwise, the same would go in favour of the
accused.

(c) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd --- Crime empty sent to the Forensic Science Laboratory after the
arrest of the accused or together with the crime weapon---In such circumstances the positive
report of the Laboratory looses its evidentiary value---Sending the crime empties together
with the weapon of offence is not a safe way to sustain conviction of the accused and it
smacks of foul play on the part of the Investigating Officer simply for the reason that till
recovery of weapon, he keeps the empties with him for no justifiable reason.

(d) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Heinousness of offence---Mere heinousness of the offence if not
proved to the hilt is not a ground to punish an accused.

(e) Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Scope---For the accused to be afforded the

right of the benefit of the doubt, it is not necessary that there should be many circumstances
creating uncertainty and if there is only one doubt, the benefit of the same must go to the
accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64; Tariq Pervaiz v. The State 1995 SCMR 1345;
Ayub Masih v. The State PLD 2002 SC 1048 and Abdul Jabbar v. State 2019 SCMR 129 ref.

Sagheer Ahmed Qadri, Advocate Supreme Court for Appellants.

Mirza Muhammad Usman, D.P.G. for the State.

Nemo for the Complainant.

Date of hearing: 2nd January, 2023.

JUDGMENT

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Appellants were tried by the learned
Additional Sessions Judge, Pindi Bhattian, pursuant to a case registered vide FIR No. 170
dated 13.06.2011 under sections 302/34, P.P.C. at Police Station Sukheke, Hafizabad for
committing murder of Haq Nawaz and his wife Mst. Tharri Bibi, cousin and sister-in-law of
the complainant. The deceased were also parents of appellant Sarfraz. The learned Trial
Court vide its judgment dated 11.09.2013 convicted the appellants under section 302(b),
P.P.C. and sentenced them to death on two counts. They were also directed to pay
compensation amounting to Rs.300,000/- to the legal heirs of each deceased or in default
whereof to further undergo SI for six months on each count. In appeal the learned High
Court maintained the conviction and sentence of death awarded to the appellants by the
learned Trial Court. The amount of compensation and the sentence in default whereof was
also maintained. Being aggrieved by the impugned judgment, the appellants filed Jail
Petition No. 81/2017 before this Court wherein leave was granted by this Court vide order
dated 09.09.2020 and the present appeal has arisen thereafter.

2. The prosecution story as given in the impugned judgment reads as under:-

"2. Brief facts of the case as narrated in the FIR recorded on the written application (Ex PA)
filed by Muhammad Bashir son of Rasheed Ahmad are that I am resident of Nawan Maneka
and is agriculturist by profession. On 13.6.2011, my cousin Haq Nawaz son of Muhammad
Hussain, caste Maneka Bhatti, resident of Deh informed me through telephone that his son
Sarfraz is giving threats to him that he would kill him if land is not given to him. On which, I
along with Muhammad Khan son of Saif Ali, caste Bhatti, resident of Deh came at Dera of
Haq Nawaz (deceased), where he was present on roof. We sat at roof along with Haq Nawaz
and his wife Tharri Bibi, when we were discussing the matter at about 12.30 night, Sarfraz
Ahmad son of Haq Nawaz Bhatti, Allah Ditta alias Mangu son of Allah Yar, Muslim Sheikh
and one unknown person came at roof of the Dera. Sarfraz demanded land from Haq Nawaz
who refused and replied that you had already taken your share of land and sold the same and
now you had no share in the land. On this, Sarfraz brought out pistol from his Shalwar and
fired a burst hitting on head of Haq Nawaz who succumbed to injuries at the spot. Then
Allah Ditta inflicted a hatchet blow on face of my Bhabi Tharri Bibi wife of Haq Nawaz,
which cut left side of her mouth. Tharri Bibi also succumbed to injuries at the spot. Sarfraz
committed murder of my cousin and Bhabi on abetment of his brothers-in-law Altaf
Hussain, Ikram Hussain sons of Munawar and Munawar son of unknown, caste Maneka
Bhatti, resident of Chak Qadir, Tehsil and District Hafizabad who told the accused that if he
would murder his parents he could get the whole land. This occurrence was witnessed by me,
Muhammad Khan and Arslan son of Haq Nawaz, when we tried to rescue the deceased,
accused also gave threats to us and fled away from the spot; hence, this FIR."

3. After completion of the investigation, report under section 173, Cr.P.C. was submitted
before the Trial Court. The prosecution in order to prove its case produced eleven witnesses.
In their statements recorded under section 342, Cr.P.C, the appellants pleaded their
innocence and refuted all the allegations levelled against them. However, they did not opt to
appear as their own witness on oath as provided under section 340(2), Cr.P.C in disproof of
the allegations leveled against them. They also did not produce any documentary evidence.

4. At the very outset, learned counsel for the appellants argued that it was an unseen
occurrence and the prosecution witnesses of the ocular account were not present at the spot.
Contends that there are glaring contradictions and dishonest improvements in the
statements of the eye-witnesses, which escaped the notice of the learned courts below.
Contends that the prosecution witnesses were not residents of the place where the
occurrence had taken place and they have not given any plausible explanation for their
presence at the spot at the relevant time. Contends that the prosecution witnesses are
interested, therefore, their evidence has lost its sanctity and the conviction cannot be based
upon it. While reiterating the arguments at the time of grant of leave, he submitted that
Arslan, son of the deceased, who was inmate of the house was given up and thus the
prosecution withheld best evidence by not producing him. Contends that the prosecution has
not been able to prove motive as alleged, which causes serious dent in the prosecution case.
Contends that the occurrence took place in the dark hours of the night but no source of light
has been mentioned by the prosecution. Contends that the recoveries of weapon of offence
from the appellants are inconsequential and cannot be made basis to sustain conviction of
the appellants. Lastly contends that the reasons given by the learned High Court to sustain
conviction of the appellants are speculative and artificial in nature, therefore, the impugned
judgment may be set at naught.

5. On the other hand, learned Law Officer vehemently opposed this appeal on the ground
that the eye-witnesses had no enmity with the appellants to falsely implicate them in this
case. It has been contended that the eye-witnesses have reasonably explained their presence
at the spot at the relevant time, which is quite natural and probable and the medical evidence
is also in line with the ocular account, therefore, the appellants do not deserve any leniency
from this Court.

6. We have heard learned counsel for the parties at some length and have perused the
evidence available on the record with their able assistance.

7. It is cardinal principle of criminal jurisprudence that each criminal case has its own facts,
which has to be dealt with according to its peculiar facts and circumstances. The present case
is the glaring example of the same wherein the complainant of this case, who was not the
inmate of the house rather was cousin of the deceased Haq Nawaz, had to lodge the crime
report when admittedly he was residing six kilometers away from the place of occurrence.
Prior to taking into consideration the contents of the crime report, few aspects of the case
qua, (i) motive, (ii) time of occurrence, (iii) manner of occurrence, and (iv) subsequent
events, are essential for their determination to arrive at a just conclusion in the interest of
safe administration of criminal justice. Besides, as per contents of the crime report, the
occurrence had taken place at 12:30 a.m. on 13.06.2011 whereas the FIR was lodged at 01:30
a.m., which clearly reflects that the same was registered without any inordinate delay.
Perusal of the crime report reflects that the aforesaid crime report was incorporated in
response to Rapat No. 32 dated 13.06.2011, which was lodged in response to an application
received by Arif Ishaq, ASI/Duty Officer of Police Station Sukheki on 13.06.2011. During the
course of proceedings before the Trial Court, the complainant Muhammad Bashir (PW-1)
stated before the Court that he moved an application (Ex.PA) for registration of case, which
bears his signature, without disclosing time and the name of the subscriber of the
application. He further stated before the Court that he proceeded towards Police Station on a
motorbike along with Muhammad Khan (PW 2) and reached there within 15 minutes after
the occurrence i.e. approximately at 01:30 a.m. It is not mentioned anywhere that where and
when this application was drafted when it is an admitted fact that the "Police Karvai" was
conducted in Police Station. The whole proceedings narrated by Muhammad Bashir (PW-1)
are squarely contradicted by Muhammad Khan (PW-2) as according to him Police arrived at
the place of occurrence and completed every aspect of investigation i.e. (i) collection of crime
empties, (ii) blood stained earth from both places where deceased were done to death, (iii)
recorded statements of PWs including Muhammad Khan (PW-2) at the spot by the
Investigating Officer. Muhammad Sahara, Investigating Officer while appearing as PW-11
stated in the court that he visited the place of occurrence and performed "Police Karvai" as
per rules. He also assigned Sikandar Hayat, Constable, to escort the dead bodies to mortuary
for conducting post-mortem examination. All these statements are contradictory to each
other on salient features, which creates dent in the genuineness of prosecution version,
especially when it is an admitted fact that complainant is a distant relative residing at a
distance of 6 kilometers while real son of deceased namely Arsalan who was inmate of the
same house is absent in every material aspect of the case, which is a serious lapse. All this
makes it clear that the complainant was not present at the place of occurrence at the relevant
time. This Court being the Court to do complete justice under Article 187 of the Constitution
of Islamic Republic of Pakistan, 1973, is under bounden duty to scrutinize each and every bit
of "crime report". At the same time, it is the duty of this Court to scrutinize other aspects
surfaced during the course of proceedings before the Trial Court to decide the lis to avoid any
injustice to either of the party. There is no denial to this fact that the occurrence had taken
place in the odd hours of the night. However, no source of light has been mentioned by the
Investigating Officer either in the FIR, rough site plan, scaled site plan or even during the
course of proceedings before the Trial Court.

8. As far as ocular account furnished by Muhammad Bashir, complainant (PW-1) and

Muhammad Khan (PW-2) is concerned, admittedly, both these witnesses were not residents
of the locality and were residing at a distance of 5/6 kilometers away from the place of
occurrence. It is an apathy to point out that not a single person from the inmates of the
house or from surrounding inhabitants appeared in support of the prosecution version and
the whole prosecution case is silent about this aspect of the matter. It is claim of Muhammad
Bashir, complainant, that he had received telephonic call from the deceased at 05:00 p.m.
that his son i.e. appellant Sarfraz is demanding his share of land from inheritance in the
lifetime of his father. He also threatened him that if he did not do so he would kill him.
Thereafter, the complainant informed Muhammad Khan (PW-2) at about 06:00/06:15 p.m.
and reached the dera/house of said Muhammad Khan at about 06:30 p.m. As Muhammad
Khan was taking meal, the complainant remained present at his house for about half an hour
and then both of them went to the residence of deceased Haq Nawaz on a motorbike and
reached there at 8/8:30 p.m. We have noticed that the time consumed by them in
approaching the place of occurrence could be hardly half an hour. However, according to
complainant's own showing, he reached the residence of the deceased after one and half
hour. The whole record is silent as to what the PWs remained doing in the residence of the
deceased during the interregnum period, which clearly reflects that they were not present at
the place of occurrence, rather they managed to appear as witnesses after due consultation
and deliberation. No record of either the deceased making the call or the complainant
receiving the call was produced on record. During cross-examination, the complainant
admitted that his sister was married with one Nasar and a dispute took place between the
said Nasar and Haq Nawaz deceased over the property. The said Nasar had also caused
firearm injury to the deceased and pertaining to said occurrence, FIR was also registered. He
also admitted that in the said case, he had supported said Nasar and the occurrence had
taken place due to his cause. The admission of the complainant clearly makes it essential that
he was inimical towards the deceased Haq Nawaz. In such circumstances, it seems
impossible that deceased would have invited an inimical person for his help.

9. Another very material aspect, which requires its interpretation because it can hit the root
of prosecution case is that Arsalan, who was son of the deceased and was stated to have
witnessed the occurrence, was given up at the time of trial. In view of the above, the claim of
the defence that it was an unseen occurrence and the appellants have been made scapegoat
with mala fide intention to grab the whole ancestral property belonging to the deceased
carries much weight. Article 129 of the Qanun-e-Shahadat Order, 1984, empowers the court
to presume the existence of any fact, which it thinks likely to have happened with regard to
common course of natural events, human conduct and public and private business, in their
relation to the facts of the particular case. In Mst. Zarsheda v. Nobat Khan (PLD 2022 SC
21), it was held that "adverse inference for non-production of evidence is one of the strongest
presumptions known to law and the law allows it against the party who withholds the
evidence". In Muhammad Naeem Khan v. Muqadas Khan (PLD 2022 SC 99), this Court
while relying on Article 129 of the Qanun-e- Shahadat Order candidly held that "where a
party keeps hold of the witnesses, the presumption would be that if such witnesses were
produced, their testimony must be against him, therefore, adverse inference of withholding
evidence goes against the party who failed to call the concerned person engaged in the
transaction, who was in a better position to give firsthand and straight narrative of the
matter in controversy". In Mst. Shahnaz Akhtar v. Syed Ehsan ur Rehman (2022 SCMR
1398) this Court observed that "presumption is a rule of law that ascribes a straightforward
probative denomination to accurate statistics and fosters a high degree of probability unless
upset and annulled by evocative proof to the satisfaction of the Court and in the event of two
equal presumptions, the Court may prefer that which best accords to the facts and
circumstances of the case". Reliance is also placed on Muhammad Jabran v. The State (2020
SCMR 1493) and Muhammad Sarwar v. Mumtaz Bibi (2020 SCMR 276).

10. As far as motive part of the prosecution story is concerned, appellant Sarfraz had been
given his share of the land from inheritance by his father i.e. the deceased Haq Nawaz, which
was allegedly sold out by him but still he was claiming his share. Perusal of the record clearly
reveals that no details of the property, which was inherited by the deceased father and the
share of the land which was earlier given to the appellant, has been given. It is now well
established that if a specific motive has been alleged by the prosecution then it is duty of the
prosecution to establish the said motive through cogent and confidence inspiring evidence.
Otherwise, the same would go in favour of the accused. Admittedly, the Investigating Officer
had collected one crime empty from the place of occurrence on 13.06.2011. The weapon of
offence i.e. .30 bore pistol was allegedly recovered on the pointation of the appellant Safraz
on 28.06.2011. Thereafter, both the crime empty and the weapon of offence were sent to
Punjab Forensic Science Agency together. This Court in a number of cases has held that if
the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or
together with the crime weapon, the positive report of the said Laboratory looses its
evidentiary value. Sending the crime empties together with the weapon of offence is not a
safe way to sustain conviction of the accused and it smacks of foul play on the part of the
Investigating Officer simply for the reason that till recovery of weapon, he kept the empties
with him for no justifiable reason. Blood stained hatchet was also allegedly recovered on the
pointation of appellant Allah Ditta from his house after 15 days of the occurrence. Such
recovery is not worth believing as it was not expected from the accused to keep blood stained
weapon at his house as there was ample time to destroy or washout the said weapon. Even
otherwise, admittedly the said house was a joint house wherein the other members of the
appellant's family were also residing. In these circumstances, the recoveries are
inconsequential.

11. Mere heinousness of the offence if not proved to the hilt is not a ground to punish an
accused. It is an established principle of law and equity that it is better that 100 guilty
persons should let off but one innocent person should not suffer. The peculiar facts and
circumstances of the present case are sufficient to cast a shadow of doubt on the prosecution
case, which entitles the appellants to the right of benefit of the doubt. It is a well settled
principle of law that for the accused to be afforded this right of the benefit of the doubt, it is
not necessary that there should be many circumstances creating uncertainty and if there is
only one doubt, the benefit of the same must go to the accused. This Court in the case of Mst.
Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court
has categorically held that "if a single circumstance creates reasonable doubt in a prudent
mind about the apprehension of guilt of an accused, then he/she shall be entitled to such
benefit not as a matter of grace and concession, but as of right. Reference in this regard may
be made to the cases of Tariq Pervaiz v. The State (1995 SCMR 1345) and Ayub Masih v. The
State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2019
SCMR 129) when this Court observed that once a single loophole is observed in a case
presented by the prosecution, such as conflict in the ocular account and medical evidence or
presence of eye witnesses being doubtful, the benefit of such loophole/lacuna in the
prosecution's case automatically goes in favour of an accused. The conviction must be based
on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case
is to be resolved in favour of the accused. However, as discussed above, in the present case
the prosecution has failed to prove its case beyond any reasonable shadow of doubt.

12. For what has been discussed above, this appeal is allowed and the impugned judgment is
set aside. The appellants are acquitted of the charge. They shall be released from jail unless
detained/required in any other case. The above are the detailed reasons of our short order of
even date.

MWA/S-7/SC Appeal allowed.