IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT:  
Mr. Justice Manzoor Ahmad Malik 
Mr. Justice Syed Mansoor Ali Shah 
Mr. Justice Qazi Muhammad Amin Ahmed 
 
Criminal Appeal No.37-L of 2016 
(On appeal from the judgment dated 
07.10.2013 passed by the Lahore High 
Court, Lahore in Criminal Appeal No.1511 
of 2009). 
 
Muhammad Pervaiz 
…Appellant(s) 
VERSUS 
The State, etc. 
…Respondent(s) 
 
 
For the Appellant(s) 
: Mr. Nawab Ali Mayo, ASC 
 
 
 
For the Respondent  
: Mr. Mehmud ul Islam, AoR 
(with caveat) 
 
For the Complainant 
: Nemo 
 
 
 
For the State 
: Mr. Mazhar Sher Awan, 
Additional Prosecutor General 
 
 
 
Date of Hearing 
: 06.05.2019 
 
JUDGMENT 
 
 
Qazi Muhammad Amin Ahmed, J.-  Muhammad 
Pervaiz, appellant is in receipt of a guilty verdict; he was indicted 
for committing qatl-e-amd of Kausar Bibi, no other than his better 
half; it is affirmed by the learned High Court vide impugned 
judgment dated 7.10.2013 vires whereof are being challenged 
through leave of the Court. 
2. 
 
 Prosecution case is structured on the statement of 
deceased’s brother, Muhammad Arshad, PW; according to him, the 
marriage was on the rocks as the bride failed to bring dowry to the 
expectation of her in laws. Upon a message by the deceased, 
Muhammad Arshad, PW along with Mehmood, PW visited the 
former to take her back, however, upon threats by the appellant 
they preferred to stay overnight when in midst thereof they were 
attracted by the hue and cry to see the deceased being 
strangulated by the appellant with the assistance of Khalid co-
Criminal Appeal No.37-L of 2016.  
 
 
 
 
 
2 
 
accused; they attempted to rescue the deceased without success. 
Upon indictment, the accused claimed trial to confront prosecution  
evidence; they blamed dacoits to have murdered the deceased 
during the fateful night. While acquitting the co-accused, the 
learned trial Judge convicted the appellant under clause (b) of 
Section 302 of Pakistan Penal Code, 1860 and sentenced him to 
death with a direction to pay Rs.100,000/- as compensation or to 
undergo six month S.I. in the event of default, a view affirmed by 
the learned High Court albeit with alteration of death penalty into 
imprisonment for life with benefit of Section 382-B of the Code of 
Criminal Procedure. 
3. 
 
 Learned counsel for the appellant contends that the 
appellant could not have been convicted merely upon his failure to 
satisfactorily explain as to what befell upon his life during the 
fateful night. He adds that presence of witnesses is extremely 
doubtful and even otherwise cannot sustain the charge after they 
had been disbelieved qua identically placed co-accused; the bottom 
line is that it would be unsafe to maintain conviction. Contrarily, 
the learned Law Officer vehemently defends appellant’s conviction 
on the ground that plea advanced by him being preposterous was 
rightly rejected which in retrospect established his presence at the 
spot, thus there was no space to entertain any hypothesis of his 
innocence.  
4. 
 
Homicidal death is not in dispute; appellant’s plea that 
dacoits intruded the household and strangulate the deceased has 
not found favour with the Courts below. The appellant has also not 
denied his presence, however these factors by themselves cannot 
hypothesize presumption of appellant’s guilt in the absence of 
positive proof. Silence or implausible explanation cannot equate 
with failure within the contemplation of Article 121 of Qanoon-e-
Shahadat Order, 1984, thus does not absolve the prosecution to 
drive home the charge by itself on the strength of positive proof. It 
would be grievously unsafe to convict suspects on presumptions or 
upon failure to establish their innocence. Possibilities are infinite 
and do not necessarily include the guilt alone.  
Criminal Appeal No.37-L of 2016.  
 
 
 
 
 
3 
 
  
A criminal case is to be essentially decided on the basis of 
evidence adduced by the prosecution.  Once the witnesses had 
visited the deceased to take her back, apparently there was no 
occasion for them to hold in abeyance the purpose of their detour 
and in case they were present and in the next room, there was no 
compulsion for the appellant to do away with the deceased at the 
risk of retaliation or a certain prosecution. The script is far from 
being plausible and it is so viewed by the learned High Court itself 
in the following words “Presence of PWs may be suspicious at the 
time of occurrence . . . . ”. It is astonishing that despite above 
observation, the High Court preferred to maintain the conviction. 
Suspicions are after all suspicions and cannot substitute the legal 
proof nor a suspect can be condemned on the basis of moral 
satisfaction in the absence of evidentiary certainty. Yet another 
circumstance to cast away the conviction is rejection of 
prosecution evidence qua Khalid co-accused. Role assigned to the 
acquitted co-accused is inexorably intertwined with appellant’s 
alleged participation in the crime and thus even strongest 
corroboration, otherwise hopelessly lacking cannot rescue the 
charge. It would be unsafe to maintain the conviction, therefore by 
extending the benefit of doubt, Criminal Appeal No.37-L/2016 is 
allowed, impugned judgment is set aside. The appellant shall be 
released forthwith, if not required in any other case. 
  
     
 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
Lahore, the 
06th of May, 2019 
Ghulam Raza/* 
JUDGE 
 
 
 
 
 
