SADIQ MAHMUD KHURRAM, J.---The appellant namely Bilal Khan alias Misal Khan son of Sher Bahadur Khan was tried by the learned Additional Sessions Judge, Taxila in case FIR No. 190 of 2013 dated 21.04.2013 "registered at Police Station Taxila, District Rawalpindi in respect of an offence under section 302, P.P.C. for committing the Qatl-i-Amd of Muhammad Adeel son of Pervaiz Iqbal (deceased). The learned trial court vide judgment dated 31.05.2017 convicted Bilal Khan alias Misal Khan son of Sher Bahadur Khan (convict) and sentenced him as infra: Bilal Khan alias Misal Khan son of Sher Bahadur Khan: Death under section 302(b), P.P.C. as Tazir for committing Qatl-I-Amd of Muhammad Adeel son of Pervaiz Iqbal (deceased) and directed to pay Rs.500,000/- As compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased . The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Bilal Khan alias Misal Khan son of Sher Bahadur Khan (convict) lodged Criminal Appeal No.506 of 2017 against his conviction and sentence. The learned trial court submitted Murder Reference No.77 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Bilal Khan alias Misal Khan son of Sher Bahadur Khan. We intend to dispose of the Criminal Appeal No.506 of 2017 and Murder Reference No.77 of 2019 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as divulged in the statement of Pervez Iqbal (PW-7) are as under:-- "Stated that on 21.04.2013 at 1:30 am I was at home. My son Muhammad Adeel aged 15 years who used to run auto workshop at Taxila did not come back in home. I along with my nephew Zaheer went to Taxila chowk, Peshawar bus stand to inquire about the Adeel where my son Adeel was sitting on his motorcycle and Bilal accused (present in court) was wrangling with him. The accused Bilal now present in the court after seeing me, Zaheer Ahmad and Muhammad Arslan took his pistol out from his dub ( ) and made three/four repeated fires with his pistol on my son Adeel. Adeel sustained injuries and fell on the ground. After this accused while holding pistol in his hand fled towards Jamilabad, GT Road. We rushed Adeel to hospital in Rickshaw to THQ, Hospital, Taxila who succumbed to the same injuries after reaching the hospital. Motive behind the occurrence is that there was a minor scuffle between Adeel and accused present in the court. Thereafter hearing the occurrence police reached there and Muhammad Akram, SI recorded my statement Ex.P-K and obtained my signatures which is signed by me as Ex. P-K/A. After post mortem the dead body was received by Faheem Shahzad. "
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Bilal Khan alias Misal Khan son of Sher Bahadur Khan was sent to face trial. The learned trial court framed the charge against the accused on 08.03.2014, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as thirteen witnesses examined. Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) gave evidence regarding the ocular account. Ghulam Mujtab a 6671/C (PW-1) stated that on 21.04.2013 he got conducted the post mortem examination of the dead body of the deceased and also received the last worn cloth of the deceased from the Medical Officer. Mushtaq Ahmad, Moharrar (PW-2) stated that on 21.04.2013 Muhammad Akram, S.I. (PW-10) the Investigating Officer of the case, handed over to him two sealed parcels said to contain blood stained cotton and empties which on 25.04.2013 he handed over to Muhammad Amin, 4991/C (PW-12) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore.
Khurram Shahzad draftsman (PW-3) prepared the scaled site plan of the place of occurrence (Exh. PB). Zahid Mehmood 6368/C (PW-5) stated that on 06.05.2013 he was handed over non bailable warrants of arrest (Exh. PG) of the appellant for execution and on 22.05.2013 he was handed over a proclamation (Exh. PH). Ghulam Muhammad S.I. (PW-6,) stated that on 21.04.2013 he recorded the formal FIR (Exh. PG). Khawar Hayat 8230/C (PW-9) stated that Ghulam Muhammad, Moharrar (since retired) handed over to him a sealed parcel said to contain a pistol for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Sheikh Sajid Mehmood (PW-11) identified the dead body of' the deceased. Naveed ur Rehman 7572/HC (PW-13) stated that he identified the handwriting of Ghulam Muhammad , Moharrar (since retired) and according to record the said Ghulam Muhammad , Moharrar (since retired) had on 23.08.2013 received one sealed parcel said to contain pistol from Muhammad Akram S.I. (PW-10) and on 26.08.2013 handed over the same to Khawar Hayat (PW-9) for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Akram, S.I. (PW-10) investigated the case from 21.04.2013 till 27.08.2013, arrested the appellant on 21.08.2013 in this case and detailed the facts of the investigation in his statement before the learned trial court.
6. The prosecution got Dr. Abu Hanifa (PW-4) examined, who on 21.04.2013 was posted as Medical Officer at the THQ Hospital Taxila and on the same day conducted the postmortem examination of the dead body of Muhammad Adeel son of Pervaiz Iqbal (deceased ). Dr . Abu Hanifa (PW -4) observed as under:- "1. A gun shot entry wound .5x.5 cm on right side of lower aspect of chest 13 cm away from right nipple. Edges inverted going inside and forward.
2. A gunshot exit wound 1.5 x1.5 cm on left side of back of lower aspect of chest 7 cm away from mid line. Edges everted.
3. A gun shot entry wound 1.5 cm x 1.5 cm on antereo medial aspect of left thigh 13 cm away from left hip joint.
Edges inverted going inside and forward.
4. A gunshot exit wound 1.5x1.5 cm on posterial aspect of left thigh 10 cm away from left knee joint. Edges everted.
5. A gunshot entry wound [x] cm on right side of front of neck 7 cm away from right shoulder joint. Edges inverted going inside and forward. There is no exit wound of injury No.5, bullet recovered from body and handed over to police.
6. A lacerated wound 2x1 cm on right eye brow . Bone exposed.
7.A lacerated wound 1x1 cm below right eye skin deep.
OPINION In my opinion the probable cause of death was shock and heamorrhage due to injury to vital organ like right lung, liver, which was sufficient to cause the death in ordinary course of nature."
7. On 26.05.2017, the learned DDPP gave up PW's Muhammad Saleem, Faheem Shahzad and Arslan as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding the blood stained cotton (Exh.PU), the report of Punjab Forensic Science Agency , Lahore (Exh.PT) regarding the analysis of the gun recovered from the appellant and the empties, copy of FIR No. 107/2012 (Exh. PV), copy of FIR No. 121/2013 (Exh. PW) and copy of FIR No. 76/2013 (Exh. PX) .
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Bilal Khan alias Misal Khan son of Sher Bahadur Khan under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant namely Bilal Khan alias Misal Khan son of Sher Bahadur Khan opted not to get himself examined under section 340(2) of the Cr .P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Taxila convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant 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 appellant, further contended that the story of the prosecution mentioned in the FIR, on the face of it is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of reliance. The learned counsel for the appellant 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 appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against. the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General and the learned counsel for the complainant contended that the prosecution has proved its , case beyond shadow of doubt by producing independent witnesses. Learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8). They further argued that the recovery of the pistol (P-5) from Bilal Khan alias Misal Khan son of Sher Bahadur Khan (appellant) 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 , they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Pervez Iqbal (PW-7) and Zaheer Ahmad (PW- 8). The relationship of the said witnesses with the deceased is on record. Muhammad Adeel, deceased, was the son of Pervez Iqbal (PW-7) and maternal cousin of Zaheer Ahmad (PW-8) . Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) were admittedly not the residents of the place of occurrence. Pervez Iqbal (PW-7), during cross- examination, stated that the place of occurrence was at a distance of about hundred meters from his house.
Furthermore, according to Pervez Iqbal (PW-7), the house of Zaheer Ahmad (PW-8) was situated three houses away from the house of Pervez Iqbal (PW-7). It is an admitted fact that none of the prosecution witnesses namely Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) had their residences or their businesses at the place of occurrence. They were both "chance witnesses". We have perused the scaled site plan of the place of occurrence (Exh.PB) as prepared by Khurram Shehzad, draftsman (PW-3) and the rough site plan (Exh.PP) as prepared by Muhammad Akram, SI (PW-10) and find that neither any house nor any shop belonging to Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) is marked in the same. Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) stated that they had proceeded to the place of occurrence to inquire about the deceased as he had not come back to his house.
However , Pervez Iqbal (PW-7) admitted during cross-examination that his son had no fixed working hours and he used to return to his house sometimes early and sometimes late in night. Furth ermore, Pervez Iqbal (PW-7), if indeed needed to inquire after his son, had no reason to first contact Zaheer Ahmad (PW-8) at his house and then proceed to the shop of the deceased. Furthermore, Pervez Iqbal (PW-7) had stated during cross-examination the name of the workshop being run by his deceased son was Malik Autos. We have perused the scaled site plan of the place of occurrence (Exh.PB) as prepared by Khurram Shehzad , draftsman (PW-3) and the rough site plan (Exh.PP) as prepared by Muhammad Akram, SI (PW-10) and find that no such workshop had been mentioned in the scaled site plan (Exh.PB) as prepared by Khurram Shahzad draftsman (PW-3) or the rough site plan (Exh.PP) as prepared by Muhammad Akram (PW-10). There is no explanation in the statements of the prosecution witnesses that why the workshop of the deceased, having the name of Malik Autos, to which they were proceeding, was not mentioned in both the site plan (Exh.PP) and (Exh.PB). This omission is conspicuous by its absence and has a huge impact of causing an irreparable impairment to the prosecution case. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the witnesses namely Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) were proceeding to the shop owned by the deceased within the area of Taxila stand as suggested by them and their failure to do so had vitiated our trust in them. -Muhammad Akram, S.I. (PW- 10) during cross-examination stated that he did not collect any evidence during the investigation of the case that (deceased) Muhammad Adeel was running a workshop and stated as under:- "As per my investigation Adeel deceased was running a workshop but I didn't bring this fact on file in the black and white."
Moreover , Pervez Iqbal (PW-7) also admitted during cross-examination that he did not produce any documentary evidence to prove the running of a workshop by the deceased. Pervez Iqbal (PW-7) during cross-examination stated as under:- "1 didn't produce any proof regarding the business of workshop of deceased to the 1.O."
This portion of cross-examination of Muhammad Akram S I . (PW-10), the Investigating Officer of the case, and Pervez Iqbal (PW-7) conclusively proves that prosecution was not equipped with any evidence that (deceased)
Muhammad Adeel was running a worksho p at Taxila stand and the occurrence took place when the witnesses were proceeding towards the same. 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 with grave concern that according to Zaheer Ahmad (PW-8) the place of occurrence was situated in front of workshop of the deceased . Zaheer Ahmad (PW -8) during cross-examination stated as under:- "The place of occurrence is situated in front of workshop of the deceased across the road in the western side."
This portion of cross-examination further establishes that the prosecution witnesses even failed to prove the place of occurrence. As mentioned above, Muhammad Akram S.I. (PW-10), the Investigating Officer of the case, did not observe and also did not mentioned any such workshop of the deceased at the place of occurrence in the rough site plan (Exh.PP) prepared by him. In the same manner , Khurram Shahzad draftsman (PW-3) also did not mark any such workshop of the deceased in the scaled site plan (Exh.PB) prepared by him. We have also noted that the alleged eye-witnesses namely Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) 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 report (Exh. PF) by the investigating of ficer.
These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. We have also noted that Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) claimed that after the occurrence they put the then injured Muhammad Adeel (deceased) in a Rickshaw and proceeded to the hospital. In such a scenario the clothes of both Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) should have been smeared with blood however Muhammad Akram S.I. (PW-10), the Investigating Officer of the case, did not take any such blood stained clothes of the witnesses in possession. Muhammad Akram S.I. (PW-10), the Investigating Officer of the case, who otherwise showed extraord inary interest in the case, did not take the clothes of the eye-witnesses, which should have been 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 corro boration to the testimony of the two eye-witnesses namely Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8). 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 Beguin and another v. Qaiser Pervez and others (2015 SCMR 1142) 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 provide d 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 v. 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 v. 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."
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 complainant (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 both the witnesses namely Pervez Iqbal (PW-7) and Zahid Ahmad (PW-8) the occurrence took place only when they had arrived at the place of occurrence. This narrative of the witnesses that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the same is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to commission of the offence. It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and them deposing against the accused even then the assailant kept waiting for their arrival. Such behavior , on part of the accused, runs counter to natural human conduct and behavior . Hence we are holding that both Pervez Iqbal (PW-7) and Zahid Ahmad (PW-8) were not present at the time of occurrence at the place of occurre nce and had not witnessed the occurrence. In this regard reliance is placed on the case of State through Advocate-General, Khyber Pakhtunkhwa. Peshawar v.Hassan Jalil and others (2019 SCMR 1154) wherein the august Supreme Court of Pakistan held as under:-- "Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case."
Reliance is also placed on the case of Muhammad Imran v. The State (2020 SCMR 857) wherein the august Supreme Court of Pakistan held as under:- "These contradictions, viewed in the retrospect of arrival of the witnesses exac tly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself "
15. We have also noted that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailant, was taken into possession by the Investigating Officer namely Muhammad Akram S.I. (PW-10), despite the fact that as per prosecution's own claim the occurrence had taken place at About 1.30 a.m. (night) on 21.04.2013. Furtherm ore, Pervez Iqbal (PW-7) and Zaheer Ahmad (PW-8) did not in their statements before the learned trial court or during the investigation of the case mentioned the presence of any light source in which they were able to identify the assailant at the time of F occurrence. Furthermore, Muhammad Akram, S.I. (PW-10), the Investigating Officer of the case, during his investigation, did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make such a positive identity of the assailant nor the witnesses produced any such source of light during the investigation of the case or during the trial. Muhammad Akram, S.I. (PW -10) during cross-examination stated as under:- "The complainant and the eye-witnesses did not mentioned (sic) in their statements before me that at the time of occurrence lights were on at the time of occurrence. ..............................................................................................
I didn't take into possession any bulb or street light from the scene of occurrence."
The prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in murk. Reliance is placed on the case of "Hameed Gul v. Tahir and 2 others" (2006 SCMR 1628 ) wherein the August Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurren ce. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along."
Reliance is also placed on the case of "Basal v. Zulfiqar Ali and others" (2010 SCMR 1972 ) wherein the august Supreme court of Pakistan observed as under:- "7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P. Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt."
Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:- "It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."
Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "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 witnesse d 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 ."
16. We have also observed that according to the Pervez Iqbal (PW-7) and Zahid Ahmad (PW-8) the incident of firing at the deceased Muhammad Adeel happened in an area surrounded by various shops. Both Pervez Iqbal (PW-7) and Zahid Ahmad (PW-8) stated that five six shops were present at the place of occurrence which were open and 10-15 persons were also present there. Pervez Iqbal (PW -7) during cross-examination stated as under:- "The shops were open when we reached the place of occurrence. Five/six shops are situated at the place of occurrence. All these were open at that time 10/15 people were present at the place of occurrence, when we reached there."
Zaheer Ahmad (PW -8) during cross-examination stated as under:- "10/12 shops are situated around the place of occurrence including a hotel which remains open for 24 hours.
People were present at the place of occur rence when occurrence took place. Three or four Rickshaws were parked and waiting for passengers at the place of occurrence at the time of occurrence."
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, 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 the statements under section 161 of the Code of Crimina l Procedure, 1898 of no one else, other than the related witnesses, were recorded by the Investigating Officer during the investigation of the case. We have also perused the scaled site plan of the place of occurrence (Exh.PB) as prepared by Khurram Shahzad, draftsman (PW-3) the rough site plan (Exh.PP) as prepared by Muhammad Akram S.I..(PW -10) and find that number of shops have been identified at the place of occurrence besides two differen t bus stands and a restaurant. As mentioned above, none of those who had their shops at the place of occurren ce, appeared before the learned trial court in support of the prosecution case. The prosecution was under a bounden duty to produce the witnesses who were the residents of the place of occurrence. More importantly , as mentioned above, the shop of the deceased was not proved to be present at or near the place of occurrence. The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality . The prosecution case suffers from inherent defects which are irreconcilable as it is.
The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher v . 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 'xtended 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."
17. We have also noted that both Pervez Iqbal (PW-7) and Zahid Ahmad (PW-8) stated that the deceased was fired at from close proximity . Zahid Ahmad (PW -8) during cross-examination stated as under:- "Accused made fire at the deceased from the distance of 1-1/2 paces from the left side of the deceased."
Contrary to this, when Dr. Abu Hanifa (PW-4), conducted the post mortem examination of the dead body of the deceased Muhammad Adeel he did not observe any blackening present on any of the wounds observed by him.
Had the firing at the deceased been made from such a short distance as suggested by the prosecution witnesses then blackening on the wounds must have been observed by Dr. Abu Hanifa (PW-4) who conducted the post mortem examination of the dead body of the deceased Muhammad Adeel. Dr. Abu Hanifa (PW-4) during cross- examination stated as under:- "It is correct that in injury No.1, 1 have not mentioned the presence of blackening and charring were it. It is correct that 1 have not mentioned the presence of blackening and charring on injury No.3 . It is correct that in injury No.5 I have also not mentioned the presence of blackening and charring on it. I would have definitely mentioned the blackening and charring in injuries Nos. 1, 3 and 5 in my report Ex. PC, have 1 found the same daring the post- mortem examination."
This circumstance also proves the absence of Pervez Iqbal (PW-7) and Zahid Ahmad (PW-8) at the crime scene at the time of occurrence. In such a case the ocular account is to be rejected as being contrary M to the medical evidence. Reliance is placed on Barkat Ali v. Muhamad Asif and others (2007 SCMR 1812 ) wherein it has been observed as infra:- "It is a settled law that blackening appears on the dead body in case the decea sed has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292 , Sain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644."
Reliance is placed on Mian Sohail Ahmed and others v. The State and others (2019 SCMR 956) wherein it has been observed as infra:-- "3. Site-plan (Ex-PL) shows one of the appellants to be standing next to the driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely to cause blackening but the medical evidence (Post-mortem examination reports Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again raising a suspicion that the events may have unfolded differently than as reported"
18. Another aspect of the case attracting our attention and grave concern is the fact that the oral statement (Exh.PK) of Pervez Iqbal (PW-7) was recorded by Muhammad Akram, S.I. (PW-10), the Investigating Officer of the case, on 21.04.2013 at 3.30 a.m. (night) and the formal FIR (Exh. PG) was recorded by Ghulam Muhammad S.I.
(PW-6) at 3.50 a.m., however , the post mortem examination of the deceased had already been conducted prior to the registration of the FIR at 2.50 a.m. on 21.04.2013. A perusal of the post mortem examination (Exh. PC) reveals that the time of conducting the same has been mentioned at 2.50 a.m. and Dr. Abu Hanif (PW-4) in his statement before the learned trial court also stated that the post mortem examination was conducted at 2.50 a.m. Pervez lqbal (PW-7) also stated that the post mortem examination or the deceased was started at 2.50 a.m. whereas Zaheer Ahmad (PW-8) stated that post mortem examination of the dead body of the deceased was started at 2.30 a.m. All the witnesses are in unison that the post mortem examination of the deceased was conducted prior to the registration of the FIR and even prior to the recording of the oral statement (Exh. PK) of the complainant Pervez Iqbal (PW-7). It can be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the oral statement (Exh.PK) of the complainant, namely Pervez Iqbal (PW-7), was prepared and the same was neither prompt nor spontaneous. No corroboration of the prosecution evidence can be had from the said oral statement (Exh.PK) .
19. Learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, as stated by Pervez Iqbal (PW-7), was that the appellant nursed a grudge against the deceased regarding an altercation which had taken place between them. No further details of the said motive were given by Pervez Iqbal (PW-7) in his statement before the learned trial court. Furthermore, it is not discernible from the perusal of the statement of Pervez Iqbal (PW-7) that whether he was in knowledge of the reason for the said scuffle. The bereft nature of the details of the motive of the occurrence has constrained us to hold that the prosecut ion failed to establish the motive of the occurrence. There is a haunting silence with regard to the particulars of motive alleged. Consequently , it is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Muhammad Adeel, deceased. Failure of the prosecution to produce any relevant evidence in support of the motive institutes that the appellant had no motive to commit the occurrence. We have thus reached a conclusion that the prosecution remained unable to establish any motive/ 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."
20. Learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol (P-5) made from the appellant. With respect to recovery of weapon from the appellant it has been observed that the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Pistol (Exh.P 5) from the appellant which was in clear violation of section 103, Cr.P.C. and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. Muhammad Akram, S.I. (PW-10) the Investigating Officer of the case, admitted that he did not join any person of locality in the investigation of the case so as to witness the recovery . The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others v.
The State" (2017 SCMR 898 ) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr. P. C. had flagrantly been violated in that regard."
Furthermore, Muhammad Akram S.I. (PW-10), the Investigating Officer of the case also admitted during cross- examination as under:- "Accused was residing in joint family at place of recovery . Place of recovery was not in the exclusive possession of the accused". Hence, the prosecution failed to prove the exclusive possession of the appellant over the place of recovery of the Pistol (Exh.P-5) as the same was made from a place which was accessible to others and also used by them.
Therefore, the recovery of pistol (P-5) from the appellant does not further the case of prosecution in any manner .
21. Learned Deputy Prosecutor General has also laid much premium on the abscondence of the appellant as proof of his 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 Muhamma d (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 v. The State" (2006 SCMR 1707 ) and "Nizam Khan and 2 others v . The State " (1984 SCMR 1092 ) and Rohtas Khan v . The State (2010 SCMR 566 ).
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Bilal Khan alias Misal Khan son of Sher Bahadur Khan (appellant) in the present case. It is settled principle of law that for giving benefit of 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 v . 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 Qadirand 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 v. 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."
23. For what has been discussed above, Criminal Appeal No.506 of 2017 lodged by Bilal Khan alias Misal Khan son of Sher Bahadur Khan (appellant) is accepted and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 31.05.2017 are hereby set-aside. Bilal Khan alias Misal Khan son of Sher Bahadur Khan (appellant) is ordered to be acquitted. Bilal Khan alias Misal Khan son of Sher Bahadur Khan (appellant) is directed to be released forthwith if not required in any other case.
24. Murder Reference is answered in Negative and the death sentence of Bilal Khan alias Misal Khan son of Sher Bahadur Khan is Not Confirmed.