SADIQ MAHMUD KHURRAM, J. Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (convicts) were tried by the learned Additional Sessions Judge, Gujar Khan along with their co-accused namely Asad Jabbar son of Muhammad Jabbar (since acquitted) in the case instituted upon the private complaint titled "Muhammad Hussain Vs. Muhammad Abbas and three others" (relating to FIR No. 603 of 2014 dated 01.08.2014 registered at Police Station Gujar Khan, District Rawalpindi) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased). The learned trial court vide judgment dated 25.01.2018, convicted Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (convicts) and sentenced them as infra: Muhammad Abbas son of Muhammad Akram: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
Faisal Jabbar son of Muhammad Jabbar: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
Muhammad Yasir son of Muhammad Jabbar: Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Saqlain Mehmood Kiani son of Muhammad Hussain Kiani (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict namely Muhammad Yasir was, however , extended benefit available under Section 382-B of Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr .P.C.)".
The co-accused namely Asad Jabbar son of Muhammad Jabbar was acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (convicts) lodged Criminal appea l No.116 of 2018 against their convictions and sentences. The learned trial court submitted Murder Reference No.09 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Muhammad Abbas son of Muhammad Akram and Faisal Jabbar son of Muhammad Jabba r. We intend to dispose of the Criminal Appeal No. 1 16 of 2018 and Murder Reference No.09 of 2018 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Muhammad Hussain Kiani (PW -4) as under:- "Sated that on 1st August, Friday in year 2014, I alongwith Saqlain Mehmood, Arbab Arab Younis son of Muhammad Younis and Muhammad Liaqat son of Muhammad Riasat was sitting on Qaisar Hotel at Jabbar Thathi Adda, at about 9:30 am Muhammad Abbas son of Muhammad Akram, Faisal Jabbar , Yasir Jabbar all armed with 30 bore pistols, Asad Jabbar armed with 44 bore rifle sons of Muhammad Jabbar residents of the village Phaleena came there. Asad Jabbar accused raised lalkara that today we will not let Saqlain Mehmood alive and started aerial firing. Accused Yasir Jabbar , with intentio n to commit qatl-e-amd, made straight fire with 30 bore pistol which hit Saqlain Mehmood on the left side of joint of left thigh. Saqlain Mehmood moved a little back when Muhammad Abbas son of Muhammad Akram, with intention to commit qatl-e-amd made straight fire with 30 bore pistol which hit Saqlain Mehmood on right side of his head. Accused Faisal Jabbar , within intention to commit qatl-e-amd made straight fire from 30 bore pistol which hit Saqlain Mehmood on left side of his chest. Saqlain Mehmood fell down in the hotel in severe injured condition. Hue and cry raised by us attracted many people at the place of occurrence.
Accused persons decamped the place of occurrence while making firing. I alongwith other PWs taking Saqlain Mehmood to T.H.Q, Hospital, Gujar Khan but he succumbed to the injuries on the way to the hospital. We reached at T.H.Q, Hospital, Gujar Khan. Muhammad Arshad SI recorded my statement Ex.PF which bears my signature Ex.PF/1. Thereafter , I alongwith Arbab Younis and Muhammad Arshad SI went the Qaisar Hotel, Jabbar place of occurrence. Muhammad Arshad SI collected five empties of 44 bore rifle P3/1-5, three empties of 30 bore pistols P4/1-3, from inside the hotel. (At this state, learned counsel for the complainant has requested that the original recovery memos be transferred from the police file to the file of complainant and be exhibited to which learned counsel for the accused has raised objection that complainant was required to attach attested copies of the recovery memos and other documents which complainant want to produce and the proceedings of complaint case are being conducted independently hence, the original recovery memos etc. cannot be transferred from the challan case to the file of private complaint. I have considered the arguments of learned counsel for the complainant and learned counsel for the accused. As the private complaint pertains to same incident and complainant has filed this private complaint aggrieved of the result of the investigation so in my view documents available in a challan case may be transferred in the private complaint) and took into possession vide recovery memo Ex.PG, attested by me and Arbab Younis PW. Said SI also collected blood stained earth through cotton and made sealed parcel with stamp M.A and took into possession vide recovery memo Ex.PH, attested by me and Arbab Younis. From 01.8.2014 to 23.9.2014, Muhammad Arshad SI conducted investigation of the case. On 16.9.2014, accused Muhammad Abbas and Yasir Jabbar were arrested. On 22.9.2014, accused Faisal Jabbar and Asad Jabbar were arrested. On 24.9.2014, investigation of the case was entrusted to Muhammad Arif SI. On 25.9.2014, I produced eye witnesses and large number of other persons who supported my version. A few persons appeared before the Investigating Officer from the side of accused and got recorded their names and addresses. They did not make any statement to Investigating Officer in our presence. Muhammad Arif SI assured me that all the accused nominated in the FIR are guilty and they have confessed their guilt before him and have made disclosure regarding the weapons of offence. Subsequently it transpired that accused Muhammad Abbas, Faisal Jabbar , Asad Jabbar have been declared innocent and placed in column No.2 of the challan by Muhammad Arif SI. Muhammad Arif SI, by joining hands with the accused persons, recorde d fictitious statements of the defense witnesses and due to this reason I have filed the instant private complaint Ex.PJ which bears my signature Ex.PJ/1."
4. The accused i.e. the appellants namely Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar and their co-accused namely Asad Jabbar (since acquitted), were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Hussain Vs. Muhammad Abbas and three others" (relating to FIR No. 603 of 2014 dated 01.08.2014 registered at Police Station Gujar Khan, District Rawalpindi) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Saqlain Mehmood Kiani son of Muha mmad Hussain Kiani (deceased). The learned trial court framed the charge against the accused on 16.06.2015, to which the accused pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got statements of as many as five witnesses recorded. The ocular account of the case was furnished by Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). Muhammad Yousaf (PW-1) stated that on 01.08.2014, he identified the dead body of the dece ased at the time of post mortem examination and on 22.09.2014 Yasir Mehmood (appellant) led to the recover y of pistol (Exh.P-1). Khurram Shahzad draftsman (PW -2) prepared the scaled site plan of the place of occurrence.
6. The learned trial court also examined as many as eight witnesses as court witnesses. Muhammad Azam 3336/C (CW-1) stated that on 01.08.2014, he escorted the dead body of the deceased to the hospital for its post mortem examination and received the last worn clothes of the deceased from the Medical Officer. Muhammad Mashkoor 5773/C (CW-2) stated that on 09.09.20 14 he was entrusted non-bailable warra nts of arrest of the appellants namely Muhammad Abbas, Yasir Jabbar , Faisal Jabbar for their execution and on 12.09.2014 he returned the same un-served with his report on back side of the same and on 15.09.2014 he was entrusted the proclamation of the appellant Faisal Jabbar (Exh.CF), Muhammad Abbas (Exh.CG), Yasir Jabbar (Exh.CH) declaring the appellants to be a proclaimed offender . Ghazanfar Mehmood 833/HC (CW-3) stated that on 01.08.2014 Muhammad Arshad S.I. (CW-6) handed over to him a sealed parcel said to contain blood stained cotton which on 19.08.2014 he handed over to Tayyab Jehangir 5652/C (CW-5) for its onward transmission to the office of Punjab Forensic Agency , Lahore and on 22.09.2014, Muhammad Arshad SI (CW-6) handed over to him one sealed parcel said to contain pistol 30 bore alongwith three live bullets which he kept in malkhana and on 03.10.2014 he handed over the said sealed parcel to Muhammad Arshad (CW-3) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Qaisar Rasheed SI (CW-4) stated that on 01.08.2014, he recorded the formal FIR (Exh.CK). Muhammad Arshad SI (CW-7) investigated the case from 01.08.2014 till 04.10.2014, arrested Yasir Jabbar and Muhammad Abbas(appellants) on 16.09.2014,arrested Faisal Jabbar(appellant) on 22.09.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
Muhammad Arif SI (CW-8) stated that he investigated the case from 24.09.2014 till 04.10.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
7. The learned trial court also examined Dr. Shahid Mehmood (PW 3), who on 01.08.2014 was posted with Dr. Muhammad Jamshaid Ashraf (who has since gone abroad and his attendance could not be procured due to the said reason ) at THQ hospital Gujar Khan and was familiar with his writing. Dr. Shahid Mehmood (PW-3) stated that Dr. Muhammad Jamshaid Ashraf on 01.08.2014 conducted the postmortem examination of the dead body of Saqlain Mehmood Kiani (deceased). According to the post-mortem examination report (Exh.PD), Dr. Muhammad Jamshaid Ashraf, on examining the dead body of Saqlain Mehmood Kiani (deceased) observed as under: "1. Entry wound located on right side of skull 8cm above lateral angle of right eye, measuring .5x.5cm. margins of wound inverted.
2. Exit wound on posterior part of skull, middle of occipit measuring 1x1.5cm. Margins everted.
3. Entry wound on chest 4 cm medially to mid line from left nipple size of wound .5x.5cm. Margins were inverted.
Burning present on margins.
4. Exit wound on the back of chest, left side of the level of second thoracic vertebra 10cm from medial line. Margins were everted, size 1x1cm.
5. Entry wound on left leg, medial to anterior superior iliac spine. Burning and black ening present, margins inverted, size 0.5x0.5cm.
6. Exit wound on left hip measuring .5x.5 located at centre of left buttock. Margins everted. ..................................
Opinion.
In my opinion, death was caused by cardiopulmonary shock resulted from injuries No.1,2,3 &4 which were sufficient to cause death in normal course of nature.
Probable time between injury and death: 10 to 15 minutes Probable time between death and postmortem: 3 hours."
7. On 06.05.2017 the complainant gave up witnesses namely Muhammad Shafique and Saftain Mehmood as being unnecessary and closed his evidence on 12.12.2017. On 04.01.2018 the learn ed counsel for the complainant closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the examination of the piece of cotton (Exh.PK) and the report of Punjab Forensic Science Agency , Lahore regarding the comparison of the pistol with the empties (Exh. PL).
8. After the closure of prosecution evidence, the learned trial court examined the appellants Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Gujar Khan convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly impro bable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence due to enmity . The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General alongwith the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). They further argued that the recovery of the pistol (P-1) from the appellant namely Muhammad Yasir also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , he prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). The relationship of the said witnesses with the deceased is on record. Saqlain Mehmood Kiani, deceased, was the son of Muhammad Hussain Kiani (PW-4) and paternal cousin of Arbab Younis (PW-5).
Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) were admittedly not the residents of the place of occurrence. Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) were the residents of village Phaleena whereas the occurrence took place at Jabbar Thathi Adda . Muhammad Arif, S.I. (CW-8), the Investigating Officer of the case, during cross-examination conducted upon him by the learned counsel for the complainant stated that the distance between village Phaleena and the place of occurrence was 5/6 kilometers . Both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) did not provide any reason for them to be present at a restaurant situated at Jabbar Thathi Adda , a place which was at a distance of as much as 5/6 kilometers from their residence and that too at 9:30 a.m. in the morning. Both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) even failed to mention any reason for their presence at the place of occurrence at the time of occurrence .While appearing before the learned trial court both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) did not utter a single word as to why they were present at the restaurant at the time of occurrence and for what purpose. It is an admitted fact that none of the prosecution witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5)had their residences or their houses or any temporary residence at the place of occurrence. They were all "chance witnesses" . We have also perused the scaled site plan of the place of occurrence (Exh.PC) as prepared by Khurram Shahzad, Draftsman (PW-2) and and the rough site plan (Exh.CL) as prepared by Muhammad Arshad S.I. (CW-7) and find that neither any house nor any shop nor any temporary place of residence belonging to Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) is marked in the same. Furthermore, there is no explanation as to how the accused came to know about the travelling plans of the deceased and his presence at the place of occurrence when according to Muhammad Arif S.I. (CW-8), the house of the appellants was at a distance of 5/6 kilometers from the place of occurrence. Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) did not state that it was usual for them and part of their routine to be present at the restaurant which was situated at a distance 5/6 kilometers from their residence. In this manner , the prosecution witnesses have failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. We have also noted that the alleged eye witnesses namely Muhammad Hussain Kiani (PW- 4) and Arbab Younis (PW-5) were not mentioned in column No.4 or page 4 of the inquest report (Exh. PF) as being the ones who were present at the time of preparation of the said inquest repor t (Exh. PF) by the investigating officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State"
(2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad compla inant (PW3), Ghulam Farid (PW6) and Manzoor Ahmed (PW7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and he said eye-witnesses were, thus, chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. We have also observed that according to the statements of Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) the incident of firing at the deceased Saqlain Mehmood Kiani happened in an area surrounded by various shops. Both Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) stated that the occurrence took place while they were sitting at a restau rant named as Qaisar Hotel situated at Jabbar Thathi Adda . Both the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) stated that the said Qaisar Hotel was surrounded by many shops and that the place of occurrence was frequented by many people. Muhammad Hussain Kiani (PW -4) during cross-examination stated as under: "It is correct that the passenger , cleaners, drivers of the said vehicles remained available Thathi Adda Jabbar . ..............................
There are shops on the said Adda on other side of the road. The door of the hotel where we were sitting opens towards the main road. Hotel is adjacent to main road."
Similarly , Arbab Younis (PW -5), during cross-examination stated as under: "It is correct that door of hotel opens at the main road. On the norther side of the hotel, there is a bakery , on its southern side there is Adda. The shops are on the other side of hotel."
Admittedly none of the shop keepers, who were present at the place of occurrence at the time of occurrence, as mentioned by the eye witnesses themselves. were examined during the investigation of the case or appeared as prosecution witnesses before the learned trial court during the trial to support the prosecution case. It is further an admitted aspect of the case that no one, other than the related witnesses, was examined during the trial of the case as witness. We have also perused the scaled site plan of the place of occurrence (Exh.PC) as prepared by Khurram Shahzad, Draftsman (PW-2) and the rough site plan (Exh.CL) as prepa red by Muhammad Arshad, S.I.
(CW-7) and find that numerous shops have been identified at the place of occurrence. Muhammad Hussain Kiani (PW-4) during his cross-examination admitted as under: "The persons who collected at the place of occurrence on our hue and cry, had come from the shops on both sides and some of them were passerby . It is correct that no one from the above stated persons appeared during the investigation in support of our version. .............................................................
It is correct that no one from the shop keeper of the shops or passerby appeared to support our version."
In a similar manner , Arbab Younis (PW -5) also admitted during cross-examination as under:- "Many persons from the shops collected at the place of occurrence on our hue and cry. I cannot tell the exact number of the persons attracted there. All the said persons were known to me as we are from the same bazaar . It is correct that none from the said persons is witness of the case."
As mentioned above, none of those who had their shops at the place of occurrenc e, appeared before the learned trial court in support of the prosecution case. The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality . Furthermore, the employees of the Qaisar hotel , the place of occurrence, also were not examined during the investigation of the case or appeared during the trial before the learned trial court. They were the most natural witnesses of the occurrence as their presence at the place of occurrence, being employees of the said Qaisar Hotel , could not be disputed. Arbab Younis (PW-5) during cross- examination admitted as under: "Investigating Officer did not record the statement of shop keeper or workers of hotel.
Muhammad Arshad, S.I. (CW -7), the Investigating Of ficer of the case, during cross-examination stated as under: "It is correct that I did not interrogate any employee of the hotel throughout my investigation. It is correct that I did not record the statement of any shopkeeper of the nearby shops."
The failure of the prosecution to produce the said employees of the Qaisar hotel, the place of occurrence, has forced us to reject the prosecution evidence. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order , 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The inability of the prosecution to produce the employees of the Qaisar hotel, the place of occurrence, has convinced us that had they been produced before the learned trial court they would not have supported the prosecution case. Reliance in this matter is placed on the case of SHAMSHAD versus THE STATE (1998 SCMR 854) wherein the august Supreme Court of Pakistan held as under:- "10. The prosecution has also failed to offer a plausible explanation as to why the children of the appellant, who were, admittedly , present in the house at the time of the incident, were not produced as witnesses in the case. In fact, the children of the appellant were the most natural witnesses of the occurrence, However , the Investigating Officer thought it fit not to examine them as witnesses. When confronted with this situation at the time of his cross- - examination he explained that two daughters and the son of the appellant were less than years of age. However , in the same breath it was admitted by him that Ruhi Bano was about 8 or 9 years of age. The other children were a few years younger . However , at least the older children under normal circumstances could have given evidence in the Court. The explanation given by the Investigating Officer , therefore, was not tenable. .........................
13. Learned State Counsel has however , argued that in case the prosecution had failed to examine any of the appellant's children as a witness, they should have been examined as defence witnesses. It has been further argued that if there are two versions, one given by the prosecution and the other by the defence, then if the latter is not believed, the prosecution version must be believed as true. In our view, both the contentions are untenable.
Burden to prove its case beyond a reaso nable doubt squarely rests on the prosecution. Such burden cannot be discharged by weaknesses found in the case of the defence. The mere fact that the defence version is not believed by the Court cannot lend credence to the prosecution case if, otherwise, the prose cution has failed to discharge its burden. For the reason enumerated abov e, we have no hesitation in coming to the conclusion that the prosecution has failed to establish its case against the appellant."
Reliance is also placed on the cases of Muhammad Irshad Vs. Allah Ditta and others (2017 SCMR 142), Usman alias Kalu Vs. The State (2017 SCMR 622),) and G. M. NIAZ Vs. The State" (2018 SCMR 506). The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decision of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State ( 2010 SCMR 949 ) wherein it has been observed as under:- "....further that no independent witness of the locality where the incident took place, a 'Bazar ' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."
15. We have also noted with grave concern that Muhammad Liaqat son of Raja Muhammad, a witness who was mentioned as being present at the place of occurrence at the time of occurrence in the oral statement (Exh.PE) of Muhammad Hussain Kiani (PW-4) as recorded by Muhammad Arshad S.I. (CW-7) was not mentioned as a witness in the calendar of witnesses when the private complaint (Exh.PJ) was filed by Muhammad Hussain Kiani (PW-4).
Muhammad Liaqat son of Raja Muhamm ad was mentioned as a witness in the private complaint (Exh.PJ) itself in Paragraph No.1 of the same. No reason has been mentioned as to why Muhammad Liaqat son of Raja Muhammad was not cited as a witness by the complainant and why his evidence was withheld. The said Muhammad Liaqat son of Raja Muhamm ad did join the investigation of the case and his statement was recorded by Muhammad Arif, S.I. (CW-8), the Investigating Officer of the case and Muhammad Arif S.I (CW-8) stated in his statement before the learned trial court that the said Muhammad Liaqat son of Raja Muhammad stated that Muhammad Hussain Kiani (PW-4) and Arbab Younis, (PW-5), were not present at the place of occurrence , at the of occurrence and the number of the assailants was also one. Furthermore, we have noted that Muhammad Arif, S.I. (CW-8), the Investigating Officer of the case stated during cross-examination that he recorded the statements of Muhammad Ibrar, Muhammad Riaz, Muhammad Waqas, Jamil, Hassan Iftikhar , Rizwan Anjum, Khawar Saleem, Tariq Saleem, Umar Javed, Muhammad Mehrban, Amjad Mehmood and Mudassar Saleem, who all claimed to have witnessed the occurrence and stated that Muhammad Hussain Kiani (PW-4) and Arbab Younis, (PW-5), were not present there and the number of the assailants was also one. In view of these statements the appellants namely Muhammad Abbas and Faisal Jabbar , were declared innocent during the investigation of the case.
Muhammad Hussain Kiani (PW-4) and Arbab Younis, (PW-5), both admitted this fact. We are convinced in our minds that the best evidence available has been withheld from the Court and on that score, no reliance can be placed on the statements of Muhammad Hussain Kiani (PW -4) and Arbab Younis, (PW -5).
16. We have also noted that according to Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5), the motive of the occurrence was previous litigation . Muhammad Hussain Kiani (PW-4), during cross-examination admitted that Saqlain Mehmood Kiani (deceased) had not lodged any criminal case or filed any civil suit against the appellants and the appellants had also not filed any criminal case against the deceased or filed any suit against the deceased. Muhammad Hussain Kiani (PW-4) claimed that it was him who had lodged various cases against the appellants. Muhammad Hussain Kiani (PW -4) during cross-examination stated as under:- "Volunteer that Saqlain (deceased) was my son and has no ownership of property that's why he did not file any civil case against the accused, but I have do the same (sic)."
Similarly , Arbab Younis (PW -5) during cross-examination stated as under:- "It is correct that no criminal or civil case was pending between accused persons and Saqlain (deceased).
Volunteer that accused got registered a criminal case against the complainant, father of the deceased."
The statements of both Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) clearly establish that Muhammad Hussain Kiani (PW-4) should have been the prime and the only target of the assailants. According to the statements of both Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5), the appellants had no grudge against Saqlain Mehmood Kiani (deceased) and if there was any dispute it was between the appellants and Muhammad Hussain Kiani (PW-4). Furthermore, Muhammad Hussain Kiani (PW-4) had also admitted that he, by his own admission, was in clear view, at a meagre distance, from the assailants and un-armed whereas the appellants were armed with pistols. Muhammad Hussain Kiani (PW-4) stated that he was sitting in front of all the others when the accused entered Qaisar Hotel and was the first person in the sight of the accused. Muhammad Hussain Kiani (PW -4) during cross-examination further stated as under: "It is correct that there was no hurdle in the way of accused to kill me."
Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellants for not doing away with Muhammad Hussain Kiani (PW-4), their main and indeed the only adversary . In this scenario it is hard to believe that the Muhammad Hussain Kiani (PW-4) would have been shown the courtesy of being not fired at all when he should have been the prime and the only target of the assailants according both the prosecution witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). Muhammad Hussain Kiani (PW-4). did not receive even a single scratch on his person during the whole occurrence . If the witness namely Muhammad Hussain Kiani (PW-4) had been present in the view of the assailants, then he would not have been spared. Muhammad Hussain Kiani (PW-4) was miraculously saved in the midst of the firing by as many as four assailants. Blessing him with such incredi ble consideration and showing him such favor is implausible and opposed to natural behavior of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive they would depose against the accused, even then the appellants did not cause any injury to them.
Such behavior , on part of the accused, runs counter to natural human conduct and behavior . Article 129 of the Qanun-e-Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus believe the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that the conduct of the assa ilants as deposed to by the witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) was opposed to common course of natural events and human conduct. Hence, we are holding that both Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) were not present at the place of occurrence, at the time of occurrence and did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses were not present at the place of occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellan t did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P .Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707 ) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst.
Rukhsana Begum & others v . Sajjad & others ( 2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accuse d encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assai lants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
17. We have also noted that Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) claimed that after the occurrence they took the then injured Saqlain Mehmood Kiani (deceased) to THQ Hospital, Gujar Khan, however , he died on his way to the hospital. In such a scenario the clothes of both Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) should have been smeared with blood however , Muhammad Arshad S.I. (CW-7) the Investigating Officer of the case, did not take any such blood stained clothes of the witnesses in possession.
Muhammad Arshad, S.I. (CW-7), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of the eye witnesses, which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency , Lahore for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence. Both these witnesses were under a duty to provide convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others ( 2015 SCMR 1 142) wherein it has been held as under:- "20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer , otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses."
The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 SCMR 319 ) has held as under:- "Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced".
The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 SCMR 153 ) has held as under:- "For the following reasons the prosecution case against the appellant is doubtful in nature:-
(a) ........
(b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injure d condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross- examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police."
18. We have already mentioned that along with the appellants, their co-accused namely Asad Jabbar (since acquitted) was also tried by the learned trial court. The learned trial court acquitted Asad Jabbar the co-accused of the appellants. The acquittal of Asad Jabbar the co-accused of the appellants, has attained finality as no appeal against his acquittal is pending. The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants , can be believed against the appellants. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view shou ld be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:- "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony .
The very fact that there is a whole chapter , numbered XI, dedicated to such offenc es amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XW titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments. ................................................
Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country . A court of law cannot permit something which the law expressly forbids. .............................................. ..............................................
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society . Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury ."
Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) claimed in their statements before the learned trial court that Asad Jabbar (since acquitted), came to the place of occurrence armed with a rifle 44 bore, exhorted a command to his co-accused to kill Saqlain Mehmood Kiani (deceased) and started firing at the place of occurrence, the restaurant where the deceased and the eye witnesses were present. Both Khurram Shahzad, Draftsman (PW-2) and Muhammad Arshad S.I. (CW-7), the Investigating Officer of the case, did not observe any marks of bullets on any wall or any other piece of furniture at the restaurant where the occurrence took place. Both Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) were adjudged to have deposed falsely against Asad Jabbar (since acquitted). We find no reason to believe their statements with regard to the appellants in absence of any reason to do so. This lying on part of the witnesses with regard to Asad Jabbar (since acquitted) has vitiated our trust in them. We are thus satisfied that the evidence of Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) has no worth and is to be rejected outright.
19. With respect to the recovery of the pistol (P-1) from the appellant namely Muhammad Yasir it has been observed that report of Punjab Forensic Science Agency , Lahore (Exh.PL) reveals that the pistol (P-1) recovered from the possession of the appellant namely Muhammad Yasir was compared with as many as eight empties (P- 3/1-3 and P-4/1-5) recovered from the place of occurrence, however none was found to have been fired in the pistol (P-1). In this manner , the report of Punjab Forensic Science Agency , Lahore (Exh.PL) supports the plea of the appellants that they had been falsely involved in the occurrence and does not further the case of the prosecution in any manner .
20. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as mentioned by Muhammad Hussain Kiani (PW-4) and Arbab Younis (PW-5) was previous litigation. Muhammad Hussain Kiani (PW-4), either during the investigation of the case or before the learned trial court did not produce any documentary evide nce to prove that there was any previous litigation pending between the parties. As mentioned above, there was no litigation existing between the appellants and Saqlain Mehmood Kiani (deceased). Furthermore, Muhammad Arshad S.I. (CW-7), the Investigating Officer of the case, admitted during cross-examination, conducted by the learned counsel for the complainant, as under: "No proof regarding motive of the occurrence was produced before me during investigation."
The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellants to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. It is trite that a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v . The State ( 2016 SCMR 2021 ) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
21. Learned Deputy Prosecutor General has also laid much premium on the abscondence of the appellants as proof of their guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373 ) that abscondence is only a suspicious circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632 ) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State (1999 SCMR 1220 ) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999 SCMR 304) it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali (1992 SCMR 814), Pir Badshah v. State (1985 SCMR 2070 ) and Amir Gul v. State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone. Reliance is also placed on the cases of "Muhammad Farooq and another Vs. The State"
(2006 SCMR 1707 ) and "Nizam Khan and 2 others Vs. the State" (1984 SCMR 1092 ) and Rohtas Khan vs. The State ( 2010 SCMR 566 ).
22. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character , cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellant' s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another Vs. The State" ( 2017 SCMR 986 ) has enunciated the following principle of law: "The medical evidence is only confirmator y or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
23. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (appellants) and real brothers inter se, in the present case. It is settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State ( 2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
24. For what has been discussed above, Criminal Appeal No.116 of 2018 lodged by Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (appellants) is allowed and the convictions and sentences of Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabb ar (appellants) awarded by the learned trial court through the impugned judgment dated 25.01.2018 are hereby set-aside. Muhammad Abbas son of Muhammad Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (appellants) are ordered to be acquitted . Muhammad Abbas son of Muhamma d Akram, Faisal Jabbar son of Muhammad Jabbar and Muhammad Yasir son of Muhammad Jabbar (appellants) are directed to be released forthwith if not required in any other case.
25. Murder Reference is answered in Negative and the death sentences of Muhammad Abbas son of Muhammad Akram and Faisal Jabbar son of Muhammad Jabbar are Not Confirmed.