Sadiq Mahmud Khurram, J.--Khalid Mehmood son of Muhammad Ali (convict) was tried by the learned Additional Sessions Judge, Pind Dadan Khan, District Jhelum along with his co-accused namely Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted) in the case instituted upon the private complaint titled "Rafaqat Abbas versus Resham Khan and seven others" (relating to FIR No. 31 of 2015 dated 14.04.2015 registered at Police Station Lilla, District Jhelum) in respect of offences under Sections 302, 148, 149 and 109, PPC for committing the Qatl-i-Amd of Muhammad Sher son of Muhammad Sarwar (deceased). The learned trial Court vide judgment dated 28.02.2018 convicted Khalid Mehmood son of Muhammad Ali (convict) and sentenced him as infra: Khalid Mehmood son of Muhammad Ali: Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Muham mad Sher son of Muhammad Sarwar (deceased) and directed to pay Rs.500,000/- 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 simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead.
Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted), the co-accused of the convict, were however acquitted by the learned trial Court.
2. Feeling aggrieved, Khalid Mehmood son of Muhammad Ali (convict) lodged Criminal Appeal No. 576-J of 2018 assailing his conviction and sentence through jail. The learned trial Court submitted Murder Reference No. 19 of 2018 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Khalid Mehmood son of Muhammad Ali. The complainant of the case filed Petition for Special Leave to Appeal No. 17 of 2018 seeking permission to file an appeal against the acquittal of Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan, the co-accused of the appellant, all since acquitted. We intend to dispose of the Criminal Appeal No. 576-J of 2018, Petition for Special Leave to Appeal No. 17 of 2018 and Murder Reference No. 19 of 2018 through this single judgment.
3. Precisely , the facts of the prosecution case as bought on record through the statement of Rafaqat Abbas (PW-2), the complainant of the case, are as under: "Stated that the deceased namely Muham mad Sher was my cousin (Phuphi Zad). On 14.04.2015 at about 06.00 p.m., I along with Azhar Abbas, Muhammad Riaz and Muhammad Sher deceased was present in the Courtyard of Chobara of Muhammad Sher deceased. The house of Talab Hussain is adjacent to the house of deceased. The accused namely Resham Khan armed with .8 MM rifle, Ansar Mahmood armed with .303 rifle present in the Court were sitting in the stairs of house of Talib Hussain. The house of Khalid Mahmood accused is also adjacent to the house of deceased and on the roof of accused Khalid Mahmood, Khalid Mahmood armed with .223 bore, Khawar Mahrnood armed with .12-bore along with two unknown persons armed with .44 bore rifles were present. Resham Khan accused present in the Court raised Lalkara that today we will take the revenge of our disgrace and will not spare him. We on listening the Lalkara stood up. The deceased namely Sher Khan attracted towards Resham Khan accused.
Khalid Mahmood made fire through his .223 bore rifle which hit Sher Muhammad on his neck which went through and through, Sher Khan fell down and succumbed to the injury at the spot. Resham Khan, Khawar Mahmood, Ansar Mahmood and two unknown persons made indiscriminate firing upon us. We saved our lives by lying on the roof top. The accused Khalid Mahmood etc flee away from the place of occurrence while resorting indiscriminate firing and raising Lalkara.
The motive behind the occurrence is that a civil suit between my uncles namely Muhammad Zaman and Muhammad Ramzan and the accused party is pending at civil Court Jhelum. The deceased Sher Muhammad is real nephew (Bhanj a) of Muhammad Ramzan and Muhammad Zaman. Prior to this occurrence, accused Khalid Mahmood etc injured the Zafar Iqbal through fire-a rm injury , due to the reason that my uncles Muhammad Zaman and Muhammad Ramzan asked Zafar Iqbal to plough their land in dispute with Khalid Mahmood etc. Muhammad Sher deceased of this case and Azhar Abbas gave beatings to Khalid Mahmood and Resham Khan accused prior to the occurrence. The accused Khalid Mahmood etc committed the murder of Muhammad Sher with the conspiracy and abetment of Bhai Khan and Muhammad Ehsaan accused.
After the arrival of police at the spot, I made statement Exh.PB before the police for registration of FIR which bears my signatures Exh.PB/1. After getting conducted the post-mortem examination of the deceased Muhammad Sher, 1.0 got my signatures on the receipt Exh.PC regarding receiving of dead body of Muhammad Sher . My signatures on the said receipt are Exh.PC/1.
During the investigation of this case, LO conducted investigation of this case partially and dishonestly and did not get recover the weapon of offence from the accused Resham Khan/1.O further did not arrest the accused Khalid Mahmood and also did not investigate the matter properly to the extent of accused Bhai Khan and Ehsaan accused present in the Court. Both the accused Bhai Khan and Ehsaan were not arrested by the 1.O in this case and malafidely and being in league with the accused persons, both the said accused persons were found not involved in the said occurrence though, both the above said accused persons could not produce any solid defense to the I.O. Feeling aggrieved with the conduct of the 1.0 and the partial and dishonest investigation conducted by the 1.O, I filed private complaint Exh. PD before the competent Court which bears my signatures Exh. PD/1.."
4. The appellant namely Khalid Mehmood son of Muhammad Ali and his co-accused namely Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted) were summoned to face trial in the case instituted upon the private complaint titled "Rafaqat Abbas versus Resham Khan and seven others " (relating to FIR No. 31 of 2015 dated 14.04.2015 registered at Police Station Lilla, District Jhelum) in respect of offences under Sections 302, 148, 149 and 109, PPC for committing the Qatl-i-Amd of Muhammad Sher son of Muhammad Sarwar (deceased). The learned trial Court framed the charge against the accused on 23.09.2016, 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 eight witnesses recorded. Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) gave evidence regarding the ocular account of the occurrence. Muhammad Saleem 893/C (PW-1) stated that on 14.04.2015 he escorted the dead body of the deceased for post mortem examinatio n and after the same received the last worn clothes of the deceased from the Medical Officer. Muhammad Saleem 893/C (PW-1) further stated that on 10.06.2015 he took a sealed parcel said to contain a gun to the office of Punjab Forensic Science Agency , Lahore and on 05.06.2015 he took a sealed parcel said to contain a rifle to the office of Punjab Forensic Science Agency , Lahore. Shaukat Hussain (PW-4) stated that on 15.04.2015, the Investigating Officer of the case, collected blood stained earth from the place of occurrence and took the same into possession through recovery memo. (Exh. PE) and on the same day the Investigating Officer of the case also took into possession ten empties of .223 bore (P-3/1-10), two empties of .303 bore (P-4/1-2 ) and two empties of .8 MM bore (P-5/1-2). Shauka t Hussain (PW-4) further stated that on 16.04.2015 he got recorded the statement regarding the planning of the appellant and his co-accused namely Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted) to commit the occurrence. Javed Iqbal (PW-5) stated that on 14.04.2015 he identified the dead body of the deceased at the time of its post mortem examination and on 20.05.2015 Khawar Mehmood (since acquitted) led to the recovery of a gun (P-6) in his presence and on 21.05.2015 Ansar Mehmood (since acquitted) led to the recovery of rifle (P-7). Muhammad Shafi (PW-7) stated that on 05.05.2016 the appellant namely Khalid Mehmood led to the recovery of rifle .223 (P-8) in his presence. Babar Aziz 904/C (PW-8) stated that on 22.04.2015 Atif Sharif 995/HC (CW-4) handed over to him one sealed parcel said to contain blood stained earth and three sealed parcels said to contain empties for their onward transmission to the of fice of Punjab Forensic Science Agency , Lahore.
6. The learned trial Court also examined as many as nine witnesses as Court witnesses. Naeem -ur-Rehman 928/C (CW-1) stated on 03.05.2016 a bullet charger (P-8/1-34) of rife .223 bore was recovered from the house of the appellant namely Khalid Mehmood, albeit in his absence. Asif Akhtar Naqash draftsman (CW-2) prepared the scaled site plan of the place of occurrence (Exh. CW-B). Saeed Rasool 210/C (CW-3) stated that on 29.04.2015 non- bailable warrants of arrest (Exh.CW -C) of the appellant namely Khalid Mehmood were handed over to him for execution which remained unexecuted due to the avoidance of the appellant and on 25.07.2015 he was handed over the proclamation (Exh.CW -D) of the appellant, which proclamation he pasted as required by law. Mazhar Hussain S.I. (CW-5) stated that on 24.05.2016 Atif Sharif 995/HC (CW-4) handed over to him one sealed parcel said to contain a rifle .223 bore for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Shahbaz Ahmad (CW-8) stated that on 10.04.2016 Atif Sharif 995/HC (CW-4) handed over to him a sealed parcel said to contain empties for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Imtiaz Ahmad (CW-9) stated that he investigated the case from 10.06.2015 till 12.06.2015 and concluded that Muhammad Ehsan and Bhai Khan (both since acquitted) had been wrongly involved in this case. Gull Zaman S.I. (CW-6) investigated the case from 14.04.2015 till 27.12.2015 and detailed the facts of the investigation as conducted by him in his statement befor e the learned trial Court. Nisar Ahmad S.I. (CW-7) investigated the case from 21.04.2016 till 25.05.2016, arrested the appellant on 21.04.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court.
7. The complainant also got Dr. Khalid Mehmood Farooqi (PW-6) examined, who on 14.04.2015 was posted as Senior Medical Officer at THQ hospital, Pind Dadan Khan and on the same day condu cted the postmortem examination of the dead body of Muhammad Sher son of Muhammad Sarwar (deceased). Dr. Khalid Mehmood Farooqi (PW -6), on examining the dead body of Muhammad Sher son of Muhammad Sarwar (deceased) observed as under: "Description of injuries
1. It was a circular shaped fire-arm wound of entry size of 1 cm diameter which was present on lateral aspect of right side of neck about 7cm below right ear lobule. Margin of wound were inverted and no burning and blackening were present around the wound margin. On probing Injury No. 1 probe was going deep and toward left side.
2. A fire-arm wound of exit, measuring size of 11/2 cm x 1 cm was present at the lateral aspect of left side of neck about 4 cm below and behind the angle of left mandible. Margin of the wound were averted (sic). DISSECTION All three body cavities were opened. All organs in cranial and thoracic cavity were found healthy . In abdominal cavity all organ were found healthy . Stomach was found healthy and was containing small amount of digested food material. Small intestine was found healthy and was containing liquid food contents.
Large intestine was containing gasses and faecal matter . Urinary bladder was found healthy and empty .
DISSECTION OF NECK On dissection of neck, right sided neck muscles, right carotid artery , right jugular vein, left carotid artery and left jugular vein were found damaged. Bullet hitted neck from right side and entered neck though Injury No. 1.
It damaged right sided neck muscle. Right carotid artery , right jugular vein and then travelled to the left side while passing in front of fourth cervical vertebra.
Finally , it damaged left carotid artery , left jugular vein and came out through Injury No. 2. These injuries caused massive haemorrhage and shock. After conducting post-mortem examination, I handed over well stitched dead body , carbo n copy of post-mortem report, signed police papers and last worn clothes of the deceased to constable Muhammad Saleem 893/C PS:Lilla.
Time elapsed between the injury and death was within a few minutes and between death and post-mortem examination was of within six. hours.
OPINION.
In my opinion, all injuries were ante mortem and were caused by fire-arm weapon. These injuries damaged major blood vessels of neck and caused massive haemorrhage and shock which was sufficient to death in order to course of life. I issued post-mortem report No. 07/2015 Exh.PJ which is in my handwriting and the same also bears my 'signature. Pictorial diagrams are Exh. PJ/1 and Exh. PJ/2 which also bears my signature. I also signed application for post- mortem Exh. PK and inquest report Exh.PL."
8. On 19.07.2017 the learned Assistant District Public Prosecutor gave up the witness namely Muhammad Afzal, Nasar Hayat and Muhammad Ramzan as being unnecessary and on 29.01.2018 the learned Assistant District Public Prosecutor closed the evidence of the complainant after tendering in evidence the reports of Punjab Forensic Science Agency , Lahore (Exh. PN, Exh.PQ, Exh.PR, Exh.PS and Exh.PT).
9. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Khalid Mehmood son of Muhammad Ali 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 had been involved in the case due to enmity with the prosecution witnesses and was innocent. The appellant namely Khalid Mehmood son of Muhammad Ali opted not to get himself examined under Section 340(2), Cr .P.C. and did not adduce any evidence in his defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge, Pind Dadan Khan District Jhelum convicted and sentenced the appellant as referred to above.
11. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. The learned counsel for the appellant submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.
12. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased was murdered by the appellant. They further argued that the recoveries from the appellant also corroborated the statements of the witnesses. 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 , the learned Deputy Prosecutor General and learned counsel for the complainant prayed for the rejection of appeal.
13. We have heard the learned counsel for the appellant, the learned counsel for the complainant /respondent No. 2, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.
14. The whole prosecution case revolve s around the statements of Rafaqat Abbas (PW-2) arid Muhammad Riaz (PW-3). The relationship of the said witnesses with the deceased is on record. Muhammad Sher (deceased) was the cousin (Phuphi Zad) of Rafaqat Abbas (PW-2) and maternal cousin (Khala Zad) Muhammad Riaz (PW-3) and Muha mmad Riaz (PW-3) was also married to the sister of Muhammad Sher (deceased). According to the prosecution case, the deceased namely Muhammad Sher received injuries while he was present in the Courtyard of the Chowbara of his own house. Both Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) were admittedly not the residents of the place of occurrence. Rafaqat Abbas (PW-2) during cross-examination stated that he could not tell the exact distance between his residence and that of the deceased namely Muhammad Sher, however stated that it took 3-4 minutes to reach the place of occurrence from his house. Muhammad Riaz (PW-3) also stated that he could not give the exact distance between the house of the deceased namely Muhammad Sher and Rafaqat Abbas (PW-2), however stated that that it took 4-5 minutes to reach the place of occurrence from the house of Rafaqat Abbas (PW-2). Rafaqa t Abbas (PW-2) further stated during cross-examination that Muhammad Riaz (PW-3) had come to the place of occurrence from his Dera which was at a distance of 7-8 kilometers from the hous e of Muhammad Sher deceased. Rafaqat Abbas (PW-2) replied in cross- examination as under: " On the day of occurrence, I along with Azhar Abbas PW had gone to the house of Sher deceased at our own at 05:30 p.m. Riaz also came there from his Dera which is at 7/8 kilometers from the house of Sher deceased.
Muhammad Riaz (PW-3) also stated during cross-examination that his Dera was situated at a distance of about 6/7 kilometers from his residence and he used to reside at his Dera with his family and was also cultivating his land there. We have also perused the scaled site plan of the place of occurrence (Exh.CW -B) as prepared by Asif Akhtar Naqash draftsman (CW-2) and the rough site plan of the place of occurrence (Exh.CW -G) as prepared by Gull Zaman S.I. (CW-6) and find that neither the house of Rafaqat Abbas (PW-2) nor the house of Muhammad Riaz (PW-3) have been marked in the said site plans.
Rafaqat Abbas (PW-2) during cross-examination also admitted that the house of Muhammad Riaz (PW-3) was not mentioned in the scale site place as prepared by the Investigating Officer of the case. Gull Zaman S.I. (CW-6),the Investigating Officer of the case, admitted during cross-examination that he did not know where both Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) were residing and showed his inability to provide any information in this regard.
In this manner , it is proved that both the witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) were not the residents of the place of occurrence and were therefore under a duty to provide and prove a reason for their presence at the place of occurrence at the time of occurrence. Both Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) candidly admitted that they had no perceptible reason to have gone to the place of occurrence prior to the occurrence. Rafaqat Abbas (PW -2) during cross- examination stated that as under: "I and Azhar had just gone there as per routine and there was no special purpose of our visit to the house of Sher deceased. It is not in my knowledge as to why Riaz PW had come to the -house of Sher deceased."
Muhammad Riaz (PW-3) even did not mention any reason for his visit to the place of occurrence, prior to the occurrence. Gull Zaman, S.I. (CW-6) the Investigating Of ficer of the case, admitted during cross-examination as under:- "I have not investigated that why on the day of occurrence, the above said two witnesses were present in the house of deceased."
Considering the statements of the prosecution witnesses, some portion of which has been reproduced, we have reached an irresistible conclusion that both the witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) failed to prove that there existed any reason for their presence at the place of occurrence at the time of occurrence. This utter failure of the prosecution witnesses to establish the reason for their presence at the place of occurrence at the time of occurrence has convinced us that both Muhammad Riaz (PW-3) and Rafaqat Abbas (PW-2) were worthy of no reliance. It is a proven fact that none of the prosecution witnesses name ly Rafaqat Abbas (PW-2) and Muhamm ad Riaz (PW-3) had their residences or their houses or any temporary residence near the place of occurrence. They were both "chance witnesses" who failed to prove the reason for their presence at the place of occurrence.
Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) did not state that it was usual for them and part of their routine to be present at the house of the deceased which was situated at a distance 7/8 kilometers from the Dera of Muhammad Riaz (PW-3) and at a distance of 4-5 minutes travel from the house of Rafaqat Abbas (PW-2). In this manner , the prosecution witnesses have failed miserably to establish their presence at the place of occurrence at the time of occurrence. We have also noted that the alleged eye-witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) were not mentioned in Column No. 4 or page 4 of the inquest report (Exh. PL) as being the ones who were present at the time of preparation of the said inquest report (Exh. P ) by the Investigating Officer, though the said inquest report was prepared at the place of occurrence. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem examination. 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 place of the occurrence, but on the day of occurrence stated to be present near the spot as they were 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, Ghulam Farid and Manzoor Ahmed, who were all residents of some other houses and they were not inmates of that house wherein the occurrence had taken place and the said eye-witnesses were, thus, chance witnesses and not worthy of reliance. Relia nce is also placed on the case of "Nasrullah alias Nasro v. The State"
(2017 SCMR 724 ).
15. Another aspect of the prosecution case which we have noted with grave concern is that according to the prosecution witnesses at the time of occurrence the appellant namely Khalid Mehmood was present on the roof of his own house which was at a distance of as many as 92 feet and there were constructed three houses of Muhammad Ilyas, Ghous Muhammad (both not produced) between the house of the appellant and that of the deceased and in that scenario the prosecution witnesses claimed that they identified the appellant firing at the deceased in the manner and method as deposed by them. Rafaqat Abbas (PW-2) during cross-examination admitted the presence of the said houses betwee n the house of the appellant and the place of occurrence. Rafaqat Abbas (PW-2) during cross-examination admitted as under: "It is correct that on the southern side of the house of 'Sher deceased, there is a street and adjacent to the street the house of Muhammad Illyas son of Anwar is situated which has also a Chowbara and adjacent to the house of Illyas on the southern side, the house of Ghos Muhammad son of Atta Muhammad is situated and again on the southern side of the house of Ghos Muhammad, the other house of Muhammad Illyas is situated and then the house of Khalid accused is situated."
Rafaqat Abbas (PW-2) also stated that around the Chowbara at the place of occurrence there was a Parda Wall constructed. Similarly , Muhammad Riaz (PW-3) also admitted the presence of the said houses between the place of occurrence and the place of presence of the appellant. Muhammad Riaz (PW-3) during cross-examination stated as under: "A Chowbara is also situated over the house of Muhammad Illyas son of Muhammad Anwar , the house of Muhammad Illyas is situated in between the house of Khalid and Muhammad Sher deceased. .....................................................................................................................
I have not deposed in my examination in chief that the house of accused Khalid is adjacent to the house of Muhammad Sher deceased. Two houses of Muhammad Illyas are situated in between the house of Muhammad Sher decease d and the house of Khalid accused. A street is available on the southern side of the house of Muhammad Sher deceased. The houses of Illyas and Ghos are situated in same premises."
Gull Zaman S.I. (CW-6), the Investigatin g Officer of the case, also made a similar statement and admitted the presence of as many as three houses in between the place of occurrence and the place of presence of the appellant. Gull Zaman S.I. (CW-6), the Investigating Officer of the case also gave the distance between the place of death of the deceased and the alleged presence of the appellant as being 33 Karams. Being aware of this description of the crime scene we have proceeded to scrutinize the statements of both the eye-witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) and find that they failed to prove that they could have witnessed the occurrence in the circumstances existing at the time of occurrence. Both the eye-witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) failed to prove that they could have witnessed the appellant firing at the deceased. According to both the eye-witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3), they were present in the Courtyard of the Chowbara of the deceased when Resham Khan and Ansar Mehmoo d, the co-accused of the appellant (both since acquitted), who were sitting on the stairs of the house of one Talib Hussain, Resham Khan (since acquitted) raised a lalkara and the deceased and the witnesses were attracted towards him. The house of the said Talib Hussain, on the stairs of whose house Resham Khan and Ansar Mehmood, the co-accused of the appellant (both since acquitted), were allegedly present and had raised a lalkara, was situated on the eastern side of the place of occurrence whereas the house of the appellant was situated on the southern side of the place of occurrence. In this manner , if the witnesses were looking towards the western side of the place of occurrence, where allegedly Resham Khan and Ansar Mehmood, the co-accused of the appellant (both since acquitted), were present, then possibility does not exist that they could have also witnessed the appellant firing being present at a distance of about 92 feet from the place of occurrence towards the southern side of the same. Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) have not provided any evidence that either of them was equipped with such a faculty . Another important factor proving the narrative of the eye witnesses to be false is that Rafaqat Abbas (PW-2) during cross-examination admitted that the police visited the house of the appellant on the night of occurrence, however no empties were found present there or recovered from the house of the appellant. Rafaqat Abbas (PW-2) during cross-examination stated as under: "The police visited the house of Talib as well as khalid accused at about 9:00 p.m. The police did not collect the empties from the above said both houses."
Gull Zaman S.I. (CW-6) also admitted during cross-examination that he did not collect any article from the house of the appellant on the night of occurrence during his visit to the same. The absence of any empties at the alleged place of presence of the appellant at the time of occurrence is also a circumstance which proves that the occurrence had not happened in the manner as deposed by the witnesses proving that the said witnesses were not present at the place of occurrence at the time of occurre nce and therefore the said irreconcilable errors have crept up into the prosecution case. Furthermore, during the course of investigation, Talib Hussain, the person who was the owner of the house where according to the prosecution witnesses Resham Khan and Ansar Mehmood (both since acquitted) were present, joined the investigation of the case as conducted by Gull Zaman (CW-6) and stated that neither the accused were present on the stairs of his house nor anyone had fired from the said place on the day of occurrence. In this manner we are convinced that both Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) were not present at the place of occurrence, at the time of occurrence. Yet another aspect of the case proving the absence of the witnesses is that according to Rafaqat Abbas (PW-2) prior to the occurrence, the witness namely Azhar Abbas (given up by the complainant) had given beating to the appellant Khalid Mehmood and to avenge the said beating, the appellant namely Khalid Mehmood acted in the manner as he did and committed the occurrence. Both the witness namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) also stated that the said witness namely Azhar Abbas (given up by the complainant) was also present with them at the time of occurrence. According to the statements of both the witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3), the witness namely Azhar Abbas (given up by the complainant) should have been the prime target of the assailants. Furthermore, the witness namely Azhar Abbas (given up by the complainant) was in clear view, at a meagre distance, from the assailants and un-armed whereas the appellant was armed with a rifle and so were his co- accused. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellant for not doing away with the witness namely Azhar Abbas (given up by the complainant), his main adversary . In this scenario it is hard to believe that the witness namely Azhar Abbas (given up by the complainant) would have been shown the Courtesy of being not fired at all when he should have been the prime target of the assailants accordin g to both the prosecution witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3). The witness namely Azhar Abbas (given up by the complainant) did not receive even a single scratch on his person during the whole occurrence. If the witness namely Azhar Abbas (given up by the complainant) had been present in the view of the assailants, then he would not have been spared. Azhar Abbas (given up by the complainant) was miraculously save d in the midst of the firing which continued for as long as ten minutes.
Blessing him with such incredible conside ration 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 appellant 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 assailant as deposed to by the witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) was opposed to common course of natural events and human conduct. Hence, we are holding that both Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) 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 1 170) 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 appellant 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 and 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 and 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 accu sed 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 assailants 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."
16. We have also noted that according to the statements of Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) the incident of firing at the deceased happened at the house of the deceased when the deceased was present in the Courtyard of the Chowbara of his own house. The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality . Rafaqat Abbas (PW-2) admitted during cross-examination that Muhammad Sher (deceased) had three sons, a daughter , a wife living with him in the same house where the occurrence took place, however none of them joined the investigation of the case nor they appeared before the learned trial Court to depose. Rafaqat, Abbas (PW-2) during cross-examination admitted as under: "Muhammad Sher has three sons. His son Naveed passed matriculation examination last year. He is about 18 years of age now. Allah Ditta son of Muhammad Sher is aged about 15 years. His daughter Nafeesan also passed matriculation examination in the last year. Alam Bibi is widow of Muhammad Sher. All the above said persons are resid ing in the house of Muhammad Sher. No one from the above said persons is complainant or witness of the present case. They never appeared in investigation at any forum."
Similarly , Muhammad Riaz (PW-3) also admitted that the children as well as the wife of the deceased and his parents were the residents of the place of occurrence, however admitted that none of them joined the investigation of the case. Gull Zaman S.I. (CW-6), the Investigating Officer of the case, also admitted this fact and further elaborated that the brother of the deceased namely Muhammad Anwar was also resident of the place of occurrence. Gull Zaman, S.I. (CW -6), the Investigating Of ficer of the case, during cross- examination stated as under: "It came into my knowledge that father and mother of the deceased were alive and living in the same house i.e. place of occurrence. Muhammad Sher deceased was married one and had three sons, one daughter and a wife, living in the same house. His brother namely Muhammad Anwar was also married one and was residing in the same house with his family . It is correct that none of the persons mentioned above either became the complainant or PWs of the case. Except Muhammad Anwar the broth er of deceased, no one joined investigation in this case. Muhammad Anwar joined investigation only once on the day of occurrence. It is correct that the said Muhammad Anwar did not depose himself to be eye witness of the occurrence."
The other Investigating Officers of the case namely Imtiaz Ahmad (CW-9) and Nisar Ahmad S.I. (CW-7) also admitted that the children, parents and the brother of the deceased, who were admittedly the residents of the place of occurrence, did not appear during the investigation of the case and did not depose anything regarding the occurrence. It is not the case of the prosecution that the said parents, children, wife and the brother of the deceased with his family , were not present in the house of the deceased at the time of the occurrence . This failure of the prosecution to produce the said parents, children, wife and the brother of the deceased with his family as witnesses has repercussions, which entail the failure of the prosecution case against the appellant. 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 failure of the prosecution to produce the said parents, children, wife and the brother of the deceased, with his family , the residents of the place of occurrence and the most natural witnesses, before the learned trial Court, 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 also cited as 1999 SCMR 2844 ) 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 witness es. 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 reasonable 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 prosecution has failed to discharge its burden. For the reason enumerated above, 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 case of Lal Khan versus The State (1996 SCMR 1846) wherein the august Supreme Court of Pakistan held as under: "The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
Reliance is also placed on the case of Usman alias Kaloo versus The State (2017 SCMR 622) wherein the august Supreme Court of Pakistan held as under: "A peculiar feature of this case is that the inmates of the house of occurrence, i.e. the mother , wife and children of Noor Muhammad deceased had never been associated with the investigation of this case and no statement of the said natural witnesses had been recorded by the Investigating Officer nor were they produced before the trial Court".
Reliance is also placed on the cases of Muhammad Irshad vs. Allah Ditta and others (2017 SCMR 142) and G.M. Niaz vs. The State" (2018 SCMR 506).
In this manner , the prosecution case suf fers from inherent defects which are irreconcilable as it is.
17. The Learned Deputy Prosecutor Gene ral and the learned counsel for the complainant have laid much stress on the promptitude in reporting the matter to the police. According to the prosecution case Gull Zaman, S.I. (CW-6) got the information about the occurrence and reached the place of occurrence of his own volition without the matter being reported to him by any of the witnesses. No one out of the eye witnesses had told him about the occurrence. We have also observed that none of the witnesses including Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Gull Zaman, S.I. (CW-6) at the place of occurrence. Rafaqat Abbas (PW-2) during cross-examination stated that the police reached at the place of occurrence at about 7.15 p.m. Rafaqat Abbas (PW -2) during cross-examination stated as under: "The police reached at the place of occurrence at about 7.15 p.m. My statement was recorded at the place of occurrence."
A perusal of the record reveals that the statement of Rafaqat Abbas (PW-2) (Exh. PB) was reduced into writing by Gull Zaman, S.I. (CW-6) at the place of occurrence and the time mentioned on the said document(Exh. PB) of recording of the same is 8.30 p.m. It is manifest that despite the arrival of the police at 7.15 p.m, the statement of the complainant namely Rafaqat Abbas (PW-2) was not recorded till 8.30 p.m. This conclusively proves that the said time was consumed to procure the attendance of the witnesses and invent and formulate a false narrative after consultation and planning. This has left no doubt in our minds that the witnesses were not present at the place of occurrence at the time of occurrence and Gull Zaman S.I. (CW-6), the Investigating Officer of the case, kept waiting for the arrival of the witnesses at the place of occurrence before recording the oral statement (Exh. PB). Even the statements of the parents, brother , family of the brother , wife and the children of the deceased were not recorded by Gull Zaman, S.I. (CW-6) after his arrival at the place of occurrence despite the fact that all the said persons were the residents of the place of occurrence and present there. In this manner it is proved on record that the oral statement (Exh. PB), upon the basis of which the formal FIR was recorded, is just a compromised and fake document. The august Supreme Court of Pakistan in the case of Abdul Jabbar alias Jabbari v . The State ( 2017 SCMR 1 155) has observed as under: "An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
18. With respect to recovery of weapon from the appellant it has been observed that reports of the Punjab Forensic Science Agency , Lahore (Exh.PQ and Exh.PT) reveal that the rifle (P-8) recovered from the possession of the appellant was compared with as many as ten empties (P-3/1-10) recovered from the place of occurrence, however none was found to have been fired in the rifle (P-8). In this manner , the reports of Punjab Forensic Science Agency , Lahore (Exh.PQ and Exh.PT) support the plea of the appellant that he had been falsely involved in the occurrence and does not further the case of the prosecution in any manner .
19. The 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 prosecution did not produce any witness of the motive except Rafaqat Abbas (PW-2). Muhammad Riaz (PW-3) did not utter a single word in his statement before the learned trial Court regarding the motive of the occurrence. The motive of the occurrence as mentioned by Rafaqat Abbas (PW-2) in his statement before the learned trial Court was that his uncles namely Muhammad Zaman and Muhammad Ramzan had filed a civil suit against the accused which was pending. The witness namely Muhammad Ramzan was given up as being unnecessary whereas the other person namely Muhammad Zaman was not even cited as a witness in the complaint filed by the complainant. As is obvious, no copy of the said pending suit was produced either during the investigation or before the learned trial Court to prove the said fact. Even otherwise Rafaqat Abbas (PW-2) admitted that the said litigation had been pending for the last 2 1/2 years and no untoward incident had happened in the integrum. Moreover , the appellant namely Khalid Mehmood was not even a party to the said suit. Rafaqat Abbas (PW -2) during cross-examination admitted as under: "It is correct that there was no civil or criminal litigation pending between Sarwar Khan i.e father of Sher deceased and the accused persons." ......................................................................................................
"It is correct that no civil or criminal litigation was ever took place between Sarwar Khan and the accused persons."
The other motive of the occurrence as mentioned by Rafaqat Abbas (PW-2) was that one Zafar Iqbal, a driver of his uncles had been injured by the appellant. Again the said Zafar Iqbal neither joined investigation of the case nor was produced before the learned trial Court as a witness to prove the said motive. The third motive as mentioned by Rafaqat Abbas (PW-2) was that the deceased and Azhar Abbas (given up prosecution witness) had given beating to the appellant. The said witness namely Azhar Abbas never appeared before the learned trial Court to prove the said motive. Furthermore, Rafaqat Abbas (PW-2) admitted that the matter of beating had not been reported nor any details regarding the same has been mentioned. Rafaqat Abbas (PW-2) stated as under: "It is correct that in my examination in chief, I have not mentioned any date and time of the beatings by Muhammad Sher and Azhar Abbas to Khalid Mahmood and Resham Khan. It is correct that no case was registered in the police station regarding the said beating."
We have also noted that the prosecution also got Shaukat Hussain (PW-4) examined who stated that it were Bhai Khan and Muhammad Ehsan (both since acquitted) who instigated the appellant to commit the murder meaning thereby that Bhai Khan and Muhammad Ehsan (both since acquitted) had the grudge against the deceased and not the appellant. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the different motives alleged, and the fact that the said motives were so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of various motiv es alleged. No independent witness was produced by the prosecution to prove the several motives 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."
Even otherwise 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 the evidence of motive and recovery have no value and lost their significance.
20. The learned Deputy Prosecutor Gene ral and the learned counsel for the complainant have also laid much premium on the abscondence of the appellant namely Khalid Mehmood, who was arrest ed during the investigation of the case on 21.04.2016, whereas the occurrence had taken place on 14.04.2015, 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 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 u.
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 ).
21. 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 Q medical evidence by its nature and character , cannot recognize a culprit in case of an unobserv ed 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 confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Khalid Mehmood son of Muhammad Ali (appellant) 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". Relia nce in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qad it and 2 others v . The State ( 2008 SCMR 1221 ), Muqarab Khan 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 Muqarab Khan 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."
23. For what has been discussed above, Criminal Appeal No. 576-J of 2018 lodged by Khalid Mehmood son of Muhammad Ali (appellant) is allowed and the conviction and sentence of Khalid Mehmood son of Muhammad Ali (appellant) awarded by the learned trial Court through the impugned judgment dated 28.02.2018 are hereby set-aside. Khalid Mehmood son of Muhammad Ali (appellant) is ordered to be acquitted by extending him the benefit of doubt. Khalid Mehmood son of Muhammad Ali (appellant) is directed to be released forthwith if not required in any other case.
24. The complainant of the case filed Petition for Special Leave to Appeal No. 17 of 2018 seeking permission to file an appeal against the acquittal of Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted), the co-accused of the appellant. We have observed that the learned trial Court has rightly acquitted the said accused. The witnesses namely Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) did not assign any role to Resham Khan, Ansar Mehmood, Khawar Mehmood (all since acquitted), of causing any injury on the person of the deceased namely Muhammad Sher. The prosecution could not prove any motive of committing the occurrence as against Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted) during the course of trial. During the course of trial, the complainant got Shaukat Hussain (PW-4) examined so as to prove the planning and instigation regarding the occurrence. Shaukat Hussain (PW-4) stated that he had heard the accused planning the occurrence on 14.04.2015 at 4.30 p.m, however never made a statement in this regard to the Investigating Officer on the day when the FIR had been registered. Shaukat Hussain (PW-4) further admitted that he even did not tell Rafaqat Abbas (PW-2) and Muhammad Riaz (PW-3) that he had heard the accused planning the occurrence on 14.04.2015. Shaukat Hussain (PW -4) during cross-examination stated as under:- "I reached at the house of Muhammad Sher at about 07:00 p.m. on 14.04.2015. PW Riaz, Azhar PW and complainant were present there at that time. I did not tell them regarding the planning of the accused at that time. The police came there within 15 minutes from my arrival. Police officials remained there for about 1 hour. Police visited the place of occurrence and interrogated Riaz PW and Rafaqat complainant. I did not inform the police regarding the planning of the accused at that time."
Similarly , Gull Zaman S.I. (CW-6) the Investigating Officer of the case, also stated that on 15.04.2015 Shoukat Hussain (PW-4) did not make any statement to him regarding the fact that he had witnessed the accused planning the occurre nce. In this manner , the prosecution failed to prove the case against the Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted). It is important to note that according to established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the Courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as Muhammad Inayat versus The State (1998 SCMR 1854 ) wherein it has been held as under: "The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however , the conclusion reached by that Court was such that no reasonable person would conceivably reach the same, and was impossible then this Court would interfere in exceptional cases on overwhelming proof, resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
The august Supreme Court of Pakistan in the case of "Mst. Sughran Begum and another vs. Qaiser Pervaiz and others" (2015 SCMR 1142) has held as under: "On acquittal, an accused person earns twofold innocence particularly , in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction . Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course."
Pursuant to the discussion made and conclusions arrived at above, the Petition for Special Leave to Appeal No. 17 of 2018 as filed by the complainant seeking permission to file an appeal against the acquittal of Resham Khan, Ansar Mehmood, Khawar Mehmood, Bhai Khan and Muhammad Ehsaan (all since acquitted), is hereby dismissed.
25. Murder Reference is answered in Negative and the death sentence of Khalid Mehmood son of Muhammad Ali is Not Confirmed .