SADIQ MAHMUD KHURRAM, J. The appellant namely Muhammad Perva iz son of Muhammad Younis was tried by the learned Sessions Judge, Attock in case FIR No. 153 of 2010 dated 26.03.2 010 registered at Police Station Hazro, District Attock in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Zahid Nawaz son of Noshehry Khan (deceased). The learned trial court vide judgme nt dated 29.06.2013 convicted Muhammad Pervaiz son of Muhammad Younis (convict) and sentenced him as infra: Muhammad Pervaiz son of Muhammad Younis: Imprisonment for Life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Zahid Nawaz son of Noshehry Khan (deceased) and directed to pay Rs.10,00,000/- 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.
2. Feeling aggrieved, Muhammad Pervaiz son of Muhammad Younis (convict) lodged the Criminal Appeal No.306 of 2013 assailing his conviction and sentence. Mst Ghazala Khan, the widow of the deceased of the case namely Zahid Nawaz son of Noshehry Khan, filed Criminal Revision 155 of 2013 seeking the enhancement of the sentence of the convict namely Muhammad Pervaiz son of Muhammad Younis. This Court intends to dispose of the Criminal Appeal 306 of 2013 and Criminal Revision No. 155 of 2013 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by the prosecution witnesses in their statements before the learned trial court are that on 26.03.2010 at about 3.30 p.m., the deceased namely Zahid Nawaz and the witnesses namely Mehtab Shah (PW-10), Muhammad Tufail (given up), Arshad Khan (PW-11) and some other persons were present at the place of occurrence for the purpose of measuring the 3 Marlas of the land purchased by Muhammad Tufail (given up) from Mehtab Shah (PW-10) when Muhammad Pervez son of Muhammad Younis (appellant) came at the place of occurrence and directed Zahid Nawaz (deceased) to stop the measurement upon which Zahid Nawaz (deceased) directed him to approach Meht ab Shah (PW-10) with regard to any of his grievance, however , the appellant namely Muhammad Pervez took out his pistol and fired at the person of Zahid Nawaz (deceased), hitting him on the left side of the chest and subsequen tly Zahid Nawaz died as a result of the said injury .
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 Muhammad Pervez son of Muhammad Younis was sent to face trial. The learne d trial court framed the charge against the accused on 08.06.2010, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as twelve witnesses examined. Mehtab Shah (PW-10) and Arshad Khan (PW-11) gave evidence regarding the ocular account. Abdul Khaliq, A.S.I. (PW-1) stated that on 26.03.2010 he recorded the formal FIR (Exh. PA/1). Fakhar-uz-Zaman 1203/C (PW-2) stated that on 31.03.2010 Muhammad Tayyab 800/1 1C (PW-7) handed over to him two sealed parcels said to contain blood stained earth and empties for their onward transmission to the office of the Chemical Examiner to the Government of Punjab, Lahore and the Punjab Forensic Science Agency , Lahore, respectively however the parcel containing the empties was returned and he took the same to the Punjab Forensic Science Agency , Lahore again on 05.04.2010. Riasat Ali, Patwari (PW-3) prepared the scaled site plan of the place of occurrence (Exh. PB). Naveed Ahmad 2006/C (PW-4) stated that on 19.04.2010 Muhammad Tayyab 800/1 1C (PW-7) handed over to him one sealed parcel said to contain a pistol for its onward transmission to the office of Punjab Forensic Science Agency , Lahore. Muhammad Basharat 2295/C (PW-5) stated that on 26.03.2010 he got Zahid Nawaz (the injured later deceased) examined by the Medical Officer and also received the last worn clothes of the deceased. Bashir Ahmad (PW-6) stated that on 26.03.2010 the Investigating Officer of the case took into possession the blood-stained earth and empties from the place of occurrence in his presence and on 27.03.2010 he identified the dead body of the deceased. Abdul Ghaf far (PW-8) stated that on 11.04.2010 the appellant namely Muhammad Pervez led to the recovery of the pistol (P-3).
Abdul Khaliq, SI (PW-12) investigated the case from 26.03.2010 till 23.04.2 010, arrested the accused on 01.04.2010 and narrated the facts of the investigation conducted in his statement before the learned trial court.
6. The prosecution also got Dr. Kashif Azad (PW-09) examined, who on 26.03.2010 was posted as Medical Officer at THQ Hospital Hazro and on the same day at about 4.25 p.m examined Zahid Nawaz (then injured later deceased and observed as under:- "Stated that on 26.03.2010, I was posted as Medical Officer, at THQ Hospital, Hazro. On the same day, at about 4:25 pm, Zahid Nawaz son of Noshehry Khan aged about 35-years, Caste Pathan, resident of Adal Zai, was produced before me in injured condition by the police for medical examination and from external examination, he was middle aged man in a drowsy state, responding to voice, clothes were socked (sic) with blood, having corresponding mark of injury , present on Qameez and Bunyan. I observed following injury on his body:- i A firearm injury about 1.5cm x 1cm about 2.5cm below nipple on left side of the chest, margins were inverted and there was also blackening of the margins. X-ray of chest was advised.
The patient was referred to DHQ Hospital, Rawalpindi to surgeon for management and opinion. Injury was kept under observation. Probable duration between injury and examination was about half an hour and it was caused with firearm weapon. Ex. PG is the correct carbon copy of the MLR whereas Ex.PG/1 is the injury statement prepared by the police and endorsed by me. Ex.P.G/2 is the application moved by the I.O whether the injured was in a position to make the statement or not, at which I opined that the injured was able to make statement.
After the medical examination, I handed over shirt and Bunyan to Mohammad Basharat constable."
Dr. Kashif Azad (PW-09), on 27.3.2010 at about 6.30 p.m conducted the post mortem examination of the dead body of Zahid Nawaz (deceased) and stated as under:- "On 27.03.2010, at about 06:30 pm, I conducted post-mortem examination of the dead body of Zahid Nawaz Khan son of Nosheri Khan, Caste Pathan, aged 40- years, resident of Adal Zai. The dead body was brought by police and was identified by Noroz Khan and Mohammad Bashir Pw. On external examination, it was the dead body of adult man of good built. Eyes and mout h were closed. Rigor mortis started to appear . Patches of post-mortem staining on the back of body was noted. Wearing blue colour Shalwar and Qameez. I found following injury on the body:-
(i) A firearm entry wound 1.5 cm x 1 cm, with irregular edges, left anterior chest below the nipple.
(ii) A firearm exit wound 7 mm with irregular everted edges on right lower chest, posteriorly . A chest drainage tube wound about 2 cm was present at 6 cm lateral to injury No.1.
CRANIUM AND SPINOL (sic) CORD.
All the organs of cranium and spinal cord were found normal and healthy .
THORAX.
Chest walls and pleura was found punctured corresponding to injury No.1 and chest intubation on left side of chest.
Left lung was punctured and bruised. Rent in left ventricle near apex. All other organs of thorax were found normal and healthy .
ABDOMEN.
Walls of the abdomen, midline laparotom y wound stitched was present. Rent on left side of diaphragm. Rent in stomach in lesser curvature and was empty . Laceration was observed on right and left lobe of liver. All other organs of abdomen were found normal and healthy .
MUSCLES, BONES & JOINTS.
No abnormality was found in muscles, bones and joints.
OPINION.
In my opinion cause of death was due to shock, loss of blood in thoraco abdominal cavity and externally due to rupture of heart & liver, caused by firearm injury No.1. Injury was ante-mortem and was sufficient to cause death in the ordinary course of nature.
The probable time that elapsed between injury and death was about 27-hours, whereas between death and post- mortem was about four hours."
7. On 12.06.2012, the learned DDPP gave up prosecution witness namely Muham mad Islam, Constable as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Chemical Examiner to the Government of Punjab, Lahore (Exh. PL) regarding the blood-stained earth, the report of the Serologist (Exh.
PM) regarding the blood-stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh. PN) regarding the comparison of pistol and empties.
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Pervez son of Muhammad Younis under section 342 Cr.P.C. and in answer to the 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 Muhammad Pervez son of Muhammad Younis opted not to get himself examined under section 340(2) of the Cr. P.C, however , produced the copy of a suit along with order sheet (Exh.DC/1-2) as evidence in his defence.
9. On the conclusion of the trial, the learned Sessions Judge, Attock 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 F.I.R., on the face of it is highly improbable. Learned counsel for the appellant further contended that the statements of the witnesses were not worthy of any 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 a doubt.
11. On the other hand, the learned Deputy District Public Prosecutor along with the learned counsel for the widow of the deceased contended that the prosecution has proved its case beyond a shadow of a doubt by producing independent witnesses. They further argued that the deceased died as a result of an injury suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Mehtab Shah (PW-10), Arshad Khan (PW-11) and the dying declaration of Zahid Nawaz (deceased). They further argued that the recovery of the pistol (P-3) from the appellant namely Muhammad Pervez son of Muhammad Younis 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 the appeal.
12. I have heard the learned counsel for the appellant, the learned counsel for the widow of the deceased, the learned Deputy District Public Prosecutor and with their assistance, carefully perused the record and evidence recorded during the trial.
13. According to the prosecution story , the occurrence took place on 26.03.2010 at about 3.30 p.m within the area of Mouza Adalzai which was at a distanc e of 4 kilometers from the police station. The formal FIR (Exh.P A/1) was registered on the statement (Exh.P A) made by Zahid Nawaz (then injured later deceased). The said statement (Exh.P A) made by Zahid Nawaz (then injured later deceased) was recorded by Abdul Khaliq, S.I. (PW-12) who stated in his statement (examination-in-chief) that on 26.03.2010, after getting information of the occurrence, he reached the THQ Hospital Hazro where Zahid Nawaz (then injured later deceased) was present in the emergency room of the said hospital and he record ed his statement (Exh.P A) which was reduced into writing and sent for registration of the formal FIR. Before giving a conclusive finding regarding the legal worth of such statement of the deceased, I deem it appropriate to have a look at the law relevant on the subject. Such a statement is relevant under the provision of Article 46 of Qanun-e-Shahadat Order , 1984. The term dying declaration, generally , stands for the statement of a person who is in expectation of his death and relates to the causes of his death. Such a statement is admissible in evidence though its maker does not appear in the witness box so as to provide an opportunity of cross-examination to an accused facing the charge of his murder . The admissibility of the dying declaration is an exception to the general rule which makes inadmissible any hearsay evidence. Dying declaration can be made the basis for awarding conv iction provided it is free from the menace of prompting and tutoring and is proved to have been made by none other than the deceased himself. The paramount reason for attaching importance and credibility to such a statement is the presumption that a dying person seldom lies. For the recording of dying declaration no hard and fast rules are laid down, however , a glean through the provisions of the Police Rules, 1934 reveals that a procedure and brief guidelines are provided in chapter-25, Rule 21 which are being reproduced below for advantage sake:- "25.21. Dying declarations.-(1) A dying declaration shall, whenever possible, be recorded by a Magistrate.
(2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.
(3) If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declaration made to a police officer should, under section 162, Code of Criminal Procedure, be signed by the person making it."
From above, it can be gathered that prefe rably such a statement is to be recorded either by a Magistrate or in the presence of a gazetted Police Officer and in the absence thereof in front of two or more unconcerned reliable witnesses. However , if neither of the above-mentioned persons is available, only then such a statement can be recorded in the presence of two or more police officers. The perusal of the record reveals that the Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the concerned hospital. In the instant case, according to the Medico Legal Examination Certificate (Exh. PG), Zahid Nawaz (deceased) was brought to the hospital in an injured condition on 26.03.2010 at about 4.25 p.m by the police and later Zahid Nawaz (deceased) succumbed to his injuries on 27.03.2010 at about 2.30 p.m. During this period, Zahid Nawaz (deceased) was provided with extensive medical treatment. It has not been mentioned in the statement of Zahid Nawaz (Exh. PA) that how and by whom he was brought to the hospital in the injured condition and reached the said hospital after about an hour of the occurrence. According to the Medico Legal Examination Certificate (Exh. PG), it was Muhammad Basharat 2295/C (PW-5) who had brought Zahid Nawaz (deceased) to the hospital, however , Muhammad Basharat 2295/C (PW-5) during cross-examination stated that when they reached the hospital Zahid Nawaz (deceased) was already present there in an injured condition and was being examined by the Medical Officers. Mehtab Shah (PW-10) during his statement before the learned trial court did not state as to who had taken Zahid Nawaz (deceased) from the place of occurrence to the hospital but only stated that he remained outside the hospital in which Zahid Nawaz (deceased) was taken to. Mehtab Shah (PW-10) during cross- examination also stated that one Tufail (not produced) had said that Zahid Nawaz (deceased) should be shifted to the hospital without a cot. However , a perusal of the statement of Mehtab Shah (PW-10) reveals that he never mentioned anything with regard to the shifting of Zahid Nawaz (deceased) to the hospital from the place of occurrence by him. Arshad Khan (PW-11) during cross-examination, however , claimed that Zahid Nawaz (deceased) was accompanied by him, Mehtab Shah (PW-10), Muhammad Tufail, Noroz Khan, Tahir and Bashir (all not produced) from the place of occurrence to the hospital. This claim of Arshad Khan (PW-11) is contradicted by the Medico Legal Examination Certificate (Exh. G) available on record wherein it has been clearly mentioned that Zahid Nawaz (deceased) was brought to the hospital by police and in the relevant column of the said Medico Legal Examination Certificate (Exh. PG) the name of any relative accompanying the then injured Zahid Nawaz (deceased) has not been recorded. The statements of the prosecution witnesses are contradictory to each other as well as the documentary evidence available on record putting a cloud of uncertainty over the circumstances regarding the recording of the statement (Exh. PA). Zahid Nawaz, deceased remained alive and admitted in the hospital for a considerable time, however , his purported statement (Exh. PA) was not attested by any official working at the hospital. Furthermore, according to the police proceedings as mentioned in the statement (Exh. PA), Abdul Khaliq, S.I. (PW-12), after getting information of the occurrence reached the THQ Hospital Hazro along with Mohsin Ali 1131/C, Muhammad Basharat 2295/C (PW-5) and Ansar Ali 2096/C, where Zahid Nawaz (then injured later deceased) was present in the emergency room of the said hospital and Abdul Khaliq, S.I. (PW-12) recorded his statement (Exh. PA). The prosecution during the trial of the case got Muhammad Basharat 2295/C (PW-5) examined, however a perusal of the statement of the said Muhammad Basharat 2295/C (PW-5) reveals that he stated nothing regarding the assertion of the prosecution witnesses that the state ment (Exh.P A) of Zahid Nawaz (then injured later deceased) was recorded in his presence by Abdul Khaliq, S.I. (PW-12), the Investigating Officer of the case. Muhammad Basharat 2295/ C (PW-5) further stated during cross-ex amination that the Investigating Officer of the case left the police station at about 3.30/3.45 p.m and they reached the hospital within five minutes and found that Zahid Nawaz (deceased) was present in the emergency ward of the said hospital in an injured condition. Muhammad Basharat 2295/C (PW-5) further stated during cross-examination that the Investigating Officer of the case, remained present at the hospital for about 20-25 minutes, whereas he himself remained present at the hospital as many as 30-35 minutes and left the hospital at 4.45 p.m, however , still did not state anything regarding the recording of the statement (Exh. PA) of Zahid Nawaz (deceased). According to the Medico Legal Examination Certificate (Exh. PG), it was Muhammad Basharat 2295/C (PW-5) who had brought Zahid Nawaz (deceased) to the hospital. The statement of Muhammad Basharat 2295/C (PW-5) was not even challenged by the prosecution. This utter failure of Muhammad Basharat 2295/C (PW-5) to mention the recording of the statement (Exh. PA) of Zahid Nawaz (deceased) in his presence conclusively proves that none was recorded and the document (Exh. PA) is a fake and manipulated piece of paper having no evidentiary value. The other two witnesses namely Mohsin Ali 1131/C, and Ansar Ali 2096/C who had accompanied Abdul Khaliq, S.I. (PW-12) to the hospital were not even produced by the prosecution to support the fact that any statement of Zahid Nawaz (deceased) was recorded by Abdul Khaliq, S.I. (PW-12) after he arrived at the hospital. Mehtab Shah (PW-10) also did not state that the oral statement (Exh. PA) was recorded in his presence and during cross-examination stated that one Tufail had told him that Zahid Nawaz (deceased) had made a statement before the police. As mentioned earlier , the said Tufail was never produced before the learned trial court nor joined the investigation of the case.
Abdul Khaliq, S.I. (PW-12) during cross- examination stated that he never record ed the statement of said Tufail during the investigation of the case. Besides the above-mentioned fact, it is established on record that Mehtab Shah (PW-10) did not make any statement to support the fact that the statement (Exh. PA) of Zahid Nawaz (deceased) was ever recorded or that he had witnessed the recording of the same. Arshad Khan (PW-11), while appearing before the learned trial court, made an improvement in his statement earlier recorded by the Investigating Officer of the case, and stated that the statement of Zahid Nawaz (deceased) was recorded by the police in an injured condition. Arshad Khan (PW-11), during cross-examination, was duly confronted with his earlier statement (Exh. DB) and it was brought on record that the said fact had not been recorded in his earlier statement (Exh. DB). Arshad Khan (PW -11) was cross-examined and the learned trial court observed as under:- "I had stated before the police that Zahid Nawaz was shifted to the Hospital, where he made statement to the police in injured condition. (confronted with Ex.DB, not so recorded.)."
The said improvement made by Arshad Khan (PW-11) was substantial and was made with regard to crucial aspect of the prosecution evidence. Arshad Khan (PW-11) introduced improvement in his statement with regard to the recording of the statement (Exh PA). The credit of the witness namely Arshad Khan (PW-11) stands impeached.
Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: - "151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party , or, with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;"
As Arshad Khan (PW-11) introduced dishonest, blatant and substantial improvement to his previous statement (Exh.DB) and was duly confronted with his former statement, hence his credit stands impeached and Arshad Khan (PW-11) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf Vs. State" (2012 SCMR 419) took serious notice of the improvements introduced by witnesses and rejected their evidence . The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle: "Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence".
The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
Additionally , the deceased remained alive and under treatment for a considerabl e time, during which there was sufficient time for the investigating officer to record the dying declaration through a Magistrate which exercise was not done. Furthermore, Abdul Khaliq, S.I. (PW-12), the Investigating Officer of the case, during cross-examination stated that at the time of recording the statement (Exh. PA) of Zahid Nawaz (decea sed), the Medical Officer namely Dr Kashif Azad (PW-9) was also present, however , the said Dr. Kashif Azad (PW-9) never attested the document (Exh. PA). Additionally , while appearing as a prosecution witness Dr. Kashif Azad (PW-9) never stated that the statement of Zahid Nawaz (deceased) was recorded in his presence. Likewise, this Court not been able to trace any explanation from the perusal of the record that as to why the statement of the deceased (Exh. PA) was not recorded in the presence of the doctor as it does not bear his signatures. It needs no mention that for a dying person, a doctor is like nothing less than an angel and the last ray of hope for him in his capacity as a saviour of his life. In this backdrop, a doctor can be the best person to endorse the dying declaration as it is expected from a dying person to tell the whole truth to the Doctor . Abdul Khaliq, S.I. (PW-12) during cross-examination admitted as under:- "I did not secure signatures of the said Doctor on Ex.P A nor I recorded his statement in this regard."
In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan expressed in the case of Mst. Zahida Bibi v . The State (PLD 2006 Supreme Court 255) to the following ef fect:- "The rule of criminal administration of justice is that the dying declaration like an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie. This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts."
This aspect of the matter is like the final nail in the coffin of the prosecution so far as it covers the dying declaration.
These aspects of the prosecution evidence are sufficient on their own to reject the evidence with regard to the dying declaration (Exh. P A) of Zahid Nawaz (deceased).
14. Another aspect of the case is that whether Zahid Nawaz (deceased) was in full control of all his faculties while his statement (Exh.P A) was being allegedly recorded, the lack of which capacity would necessarily give rise to the conclusion that the said statement (Exh. PA) was not genuine. Abdul Khaliq, S.I. (PW-12), the Investigating Officer of the case who recorded the statement (Exh. PA) claimed that he had obtained the opinion (Exh. PG/2) of the Medical Officer with regard to the capacity of Zahid Nawaz (then injured later deceased) of making a statement.
This Court has perused the said certificate (Exh.PG/2) and finds that it does not mention any time or date when the same was signed by Dr. Kashif Azad (PW-9). Furthermore, Abdul Khaliq, S.I. (PW-12) admitted during cross- examination as under:- "There is no date mentioned under the signatures of the Doctor on Ex.PG/2. In Ex.PG/2, I have not mentioned the time, when the same was produced before the Doctor ."
Furthermore, Dr . Kashif Azad (PW -9) admitted during cross-examination as under:- "I have not mentioned in the application Ex.PG/2 the time when I had opined that the patient was fit to make statement. It is correct that underneath my signature on Ex.PG/2 there is no date is mentioned by me. I had not mentioned the detail about the stage of mind of the patient at that time nor I have mentioned the physical condition of the patient prevailing at that time."
In absence of the above-mentioned details and particulars in the said certificate (Exh.PG/2), no reliance can be placed upon the same. Furthermore, Dr. Kashif Azad (PW-9) who on 26.03.2010 was posted at THQ Hospital Hazro and on the same day at about 4.25 p.m had examined Zahid Nawaz (then injured later deceased) had observed as under:- "Stated that on 26.03.2010, I was posted as Medical Officer at THQ Hospital, Hazro. On the same day, at about 4:25 pm Zahid Nawaz son of Noshehry Khan aged about 35-years, caste Pathan, resident of Adal Zai was produced before me in injured condition by the police for medical examination and from external examination he was middle aged man in a drowsy state, respondent to voice, clothes were socked(sic) with blood, having corresponding mark of injury , present on Qameez and Bunyan."
While conducting the post mortem examin ation of the dead body of the deceased, Kashif Azad (PW-9) observed as under:- "Chest walls and pleura was found punctured corresponding to injury No.1 and chest intubation on left side of chest. Left lung was punctured and bruised.
Opinion.
In my opinion cause of death was due to shock, loss of blood in thoraco abdominal cavity and externally due to rupture of heart & liver , caused by firearm injury No.1"
The condition in which the organs of Zahid Nawaz (deceased) were found by Dr. Kashif Azad (PW-9) in itself sufficiently proves that Zahid Nawaz (deceased) was in no condition to make a lucid statement. Furthermore, Dr. Kashif Azad (PW -9) during cross-examination explained as under:- "During the post-mortem examination of the dead body , I had observed that liver, heart and left lung of the deceased had been damaged. It is correct that the process of chest intubation is carried out when the lung is punctured and blood is collected in pleural cavity . The heart was fund to have rent (small hole) in the left ventricle near apex. Laceration was observed in both right and left lobe of the liver. Circula tion of blood had been affected, due to the said small hole (rent) in the left ventricle. Due to the injury in the left lungs, the respiratory system was also adversely affected. Normally , a person having his lungs, liver and hear affected seriously , may become unconscious immediately . Injury No.1 was on the left anterior chest below nipple. This was the only injury observed on the person of deceased. Due to the said injury , the heart, lungs and liver of the deceased were affected. Due to the above injury , the continues loss of blood took place.
I have not mentioned the pulse rate and blood pressure of the patient in my MLR Ex.PG. By drowsy-ness mentioned in the MLR Ex.PG, I mean semi un-consciousness. By the words "responding to voice" I mean that he was responding if he was asked something"
It is correct that when the patient was brought to me, my first impression was that he was unconscious."
The above-referred portion of the cross-examination of Dr. Kashif Azad (PW-9) clearly establishes the fact that Zahid Nawaz (deceased) was in no condition to make the statement (Exh. PA). According to Abdul Khaliq, S.I.
(PW-12), the Investigating Officer of the case who recorded the statement (Exh. PA), the same was narrated to him by Zahid Nawaz (deceased) himself and Abdul Khaliq, S.I. (PW-12) had added nothing to the said statement.
However , contrary to the said claim of Abdul Khaliq, S.I. (PW-12) that Zahid Nawaz (deceased) had himself narrated the occurrence to him, Dr. Kashif Azad (PW-9) clearly stated that at the said moment of time Zahid Nawaz (deceased) was in "a drowsy state" . Dr. Kashif Azad (PW-9) explained further that Zahid Nawaz (deceased) at the time of his first examination was semi -unconscious and was only responding to questions and not able to make a statement himself. This explanation of Dr. Kashif Azad (PW-9) regarding the condition of Zahid Nawaz (deceased) establishes that Zahid Nawaz (deceased) could not have got recorded the statement (Exh. PA) as he was not in a position to make such a statement. Moreover ,it had been an hour since Zahid Nawaz (deceased) had received the injury when his purported statement was recorded and necess arily his condition would have deteriorated further . Considering the opinion of Dr. Kashif Azad, (PW-9), this Court is of the firm view that Zahid Nawaz (deceased) was neither able to make any statement nor had indeed made the statement (Exh. PA) before Abdul Khaliq, S.I. (PW-12). According to well-settled principles laid down for the appraisal of dying declaration, such a statement is to be appraised like the testimony of any other witness. The document (Exh. PA), the purported dying declaration of Zahid Nawaz (deceased) is proved to be a fabricated and manufactured document.
15. The prosecution has also relied on the statements of Mehtab Shah (PW-10) and Arshad Khan (PW-11) to prove the ocular account of the incident. Both the said witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW- 11) had previous enmity with the appellant namely Muhammad Pervez. Mehta b Shah (PW-10) during cross- examination admitted that the appellant namely Muhammad Pervez and his fathe r had filed a suit for partition of land in which Mehtab Shah (PW-10) and Zahid Nawaz (deceased) were defendants and he also admitted that he appeared as a witness in the said suit. Mehtab Shah (PW -10) during cross-examination admitted as under:- "The name of father of Pervez accused is Mohammad Younis. The accused and his father had filed a suit for partition of land forming part of Khasra No. 1407, in which I was defendant No.9 Zahid Nawaz deceased and Tufail Khan were also defendant in the said suit.
I was a Pw in the said suit."
In a similar manner , Arshad Khan (PW-11) also admitted his previous enmity with the appellant and during cross- examination stated as under:- "I had filed a suit for recovery of Rs.24,000/- against the accused. Prior to that the accused had filed a suit against me. On dismissal of the said suit, I had filed the suit against him as aforesaid. A similar suit was filed by one Khyber through myself against the accused being special attorney of the plaintif f."
In view of the admitted enmity of the witnesses namely Mehtab Shah (PW 10) and Arshad Khan (PW-11) with the appellant, both the said witnesses were under a duty to establish that they had given evidence unbiased and unpolluted by the said enmity with the appellant and dispassionately , however , this Court has reached a conclusion that they failed to do so. This Court has perused the scaled site plan of the place of occurrence (Exh. PB) as prepared by Riasat Ali, Patwari (PW-3) and the rough site plan of the place of occurrence (Exh. PJ) as prepared by Abdul Khaliq, S.I. (PW-12) and finds that neither the house of Mehtab Shah (PW-10) nor the house of Arshad Khan (PW-11) has been marked in the said site plans. In this manner , it is proved that both the witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW 11) 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 Mehtab Shah (PW-10) and Arshad Khan (PW-11) claimed that they had gone to the place of occurrence in order to measure the three Marlas of land allegedly sold by Mehtab Shah (PW-10) to one Muhammad Tufail (not produced). Both the witnesses admitted that the said land had been sold as many as eight/nine months prior to the occurrence, however , failed to provide any reason for measuring the same on the very day when the occurrence took place. Furthermore, both the witnesses remained at variance with regard to the details of the proceedings which were being conducted at the place of occurrence by them. Mehtab Shah (PW-10) during cross-examination stated that at the time of occurrence he was holding the measuring tape wherea s Arshad Khan (PW-11) during cross-examination stated that it was Bashir (not produced) who was holding the measuring tape. Abdul Khaliq, S.I.
(PW-12), the Investigating Officer of the case, during cross-examination stated that he did not collect any evidence during the investigation of the case to prove that the witnesses were present at the place of occurrence for the purpose of measuring the land bought by one Muhammad Tufail (not produced). Abdul Khaliq, S.I. (PW-12) during cross-examination admitted as under:- "I did not take into possession the scale which was allegedly being used by the parties for the measurement of the said land. No such scale was produced before me during investigation of this case. I did not probe into the fact as from where the alleged measurement was started and where it came to an end."
Abdul Khaliq, (PW-12) the Investigating Officer of the case, also admitted during cross-examination that he had not marked the three Marlas of land which were being allegedly measured by the witnesses at the time of occurrence in the site plan (Exh. PJ) as prepared by him. Moreover , one Muhammad Tufail, the paternal cousin of Rab Nawaz (deceased), who had allegedly purchased the three Marlas of land from Mehtab Shah (PW-10) never got recorded his statement before the Investigating Officer of the case. The said Muhammad Tufail was also not produced before the learned trial court. Abdul Khaliq, S.I. (PW-12), the Investigating Officer of the case, admitted during cross- examination that the said Muhammad Tufail though joined the investigation of the case, however , his statement was never recorded. Abdul Khaliq, S.I. (PW-12), the Investigating Officer of the case during cross-examination stated as under:- "The person Tufail, whose name find a mention in the complaint Ex.PA is neither a Pw in this case nor had I recorded his statement under section 161 Cr.PC. The said Tufail remained pursuin g this case during the course of investigation. M/S Tufail, Tahir and Noroz are neither Pws in this case nor I have recorded their statements under section 161, Cr .P.C."
Considering the statements of the prosecution witnesses, some portion of which has been reproduced, this Court has reached an irresistible conclusion that both the witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11) 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 this Court that both Mehtab Shah (PW-10) and Arshad Khan (PW-11) were worthy of no reliance. It is a proven fact that none of the prosecution witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11) 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. In this manner , the prosecution witnesses have failed miserably to establish their presence at the place of occurrence at the time of occurrence. This Court has also noted that the alleged eye witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11) admitted during cross-examination that they did not provide any first aid to Zahid Nawaz (deceased) after he had received the injury at the place of occurrence which also supports the circumstance that both the witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11) were not present at the place of occurrence. 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 kilometre 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 the house wherein the occurrence had taken place and the 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 ).
16. Yet another aspect of the case provin g the absence of both the witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11) is the fact that according to both the witnesses the measurem ent of the land was being done of the land which was bought by one Muhammad Tufail (not produced) and sold by Mehtab Shah (PW-10). Mehtab Shah (PW -10) during cross-examination stated as under:- "I was holding the scale (Pheeta) by measuring the land. We conduced measurement for about 15/16 minutes, when the occurrence took place. At the time of occurrence, we were determining the location of path at the spot. By that time, we had carried out measurement of three Marlas of land belonging to Tufail."
Similarly , Arshad Khan (PW -11) during cross-examination stated as under:- "We had reached the place of occurrence at about 03.00 pm. Bashir Pw, was holding the measurement scale (Pheeta). The measurement was started from the boundary of Mauzza Aba Bakar and Adal Zai. First of all, the measurement of land belonging to Pervez accused was carried out, which was found correct. Thereafter , we started the measurement of land which was to be given to Tufail.
According to the statements of both the witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11), the witness namely Mehtab Shah (PW-10), who had sold the land and was conducting the measurement and Muhammad Tufail, in whose favour the measurement was being made, should have been the prime targets of the assailant. Furthermore, the witness namely Mehtab Shah (PW-10) and Muhamma d Tufail (not produced) were in clear view, at a meagre distance, from the assailant and unarmed whereas the appellant was armed with a pistol.
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 Mehtab Shah (PW-10) and Muhammad Tufail (not produced), his main adversaries.
In this scenario, it is hard to believe that the witness namely Mehtab Shah (PW-10) and Muhammad Tufail (not produced) would have been shown the courtesy of being not fired at all when they should have been the prime targets of the assailant according to both the prosecution witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11). The witness namely Mehtab Shah (PW-10) and Muhammad Tufail (not produced) did not receive even a single scratch on their persons during the whole occurrence. If the witness namely Mehtab Shah (PW-10) and Muhammad Tufail (not produced) had been present in the view of the assailant, then they would not have been spared. Mehtab Shah (PW-10) and Muhammad Tufail (not produced) were miraculously saved in the midst of the firing. Blessing them with such incredible consideration and showing them such favour is implausible and opposed to the natural behaviour 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 behaviour , on part of the accused, runs counter to natural human conduct and behaviour . 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. This Court thus trusts 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 Mehtab Shah (PW-10) and Arshad Khan (PW-11), was opposed to the common course of natural events and human conduct. Hence, this Court is holding that both Mehtab Shah (PW-10) and Arshad Khan (PW-11) were not present at the place of occurrence, at the time of occurrence and did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses were not present at the place of occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellan t did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P .Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707 ) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
I am also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst.
Rukhsana Begum & others v . Sajjad & others ( 2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accuse d encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assai lants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
17. Another aspect of the case piquing the concern of this Court is the fact that according to the prosecution witnesses, at the time of occurrence, persons namely Muhammad Tufail, Muhammad Bashir , Muhammad Tahir and Noroz Khan were also present, however , none of the said persons joined the investigation of the case and got recorded their statements under section 161 Code of Criminal Procedure, 1898 nor appeared before the learned trial court. One of the said person namely Muhammad Tufail was the one who had allegedly purchased the land from Mehtab Shah (PW-10), which land was being measured on the day of occurrence, however , the said Muhammad Tufail never got recorded his statement under section 161 Code of Criminal Procedure, 1898 during the investigation of the said case. Both the witnesses namely Mehtab Shah (PW-10) and Arshad Khan (PW-11) stated that the said persons namely Muhammad Tufail, Muhammad Bashir , Muhammad Tahir and Noroz Khan were present with them at the time of occurrence and even subsequently , however also admitted that their statements were never recorded. Abdul Khaliq, S.I. (PW-12) the Investigating Officer of the case, admitted during cross-examination that the statements of the said persons were never recorded. Abdul Khaliq, S.I. (PW-12) during cross-examination stated as under:- "The person Tufail, whose name find a mention in the complaint Ex.PA is neither a Pw in this case nor had I recorded his statement under section 161, Cr.P.C. The said Tufail remained pursing this case during the course of investigation. M/s. Tufail, Tahir and Noroz are neither PWs n this case nor I have recorded their statements under section 161 Cr.P.C. Similarly , Bashir son of Umar Khan is also not a Pw in this case nor his presence has been shown in the rough site plan and scaled site plans. I have not cited the said Tufail as a Pw in this case because he has told me that he will proceed in Hong Kong and would not be available to appear before the Court as a Pw .
One Tahir son of said Tufail was also present at the time of alleged occurrence. I did not record his statement under section 161 Cr .P.C. nor cite him as PW ."
There is no explanation, much less plausible, for not recording the statements of the persons who according to the prosecution witnesses themselves were present at the place of occurrence and had allegedly also witnessed the same. 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."
This Court thus believes the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that had the said persos namely Muhammad Tufail, Muhammad Bashir , Muhammad Tahir and Noroz Khan (eye witness not produced) appeared before the learned trial court, they would have not supported the prosecution case. Reliance is placed on the case of "Riaz Ahmad Vs. The State" (PLJ 2010 SC 877) wherein the august Supreme Court of Pakistan has held as under:- "One of the eye-witnesses Manzoor Hussain was available in the Court on 29.07.2002 but the prosecution did not examine him, declaring him as unnecessa ry witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order , 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution."
18. The learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the widow of the deceased have contended that the evidence of motive corroborated the ocular account. The motive of the occurrence was a dispute of property . The prosecution got Mehtab Shah (PW-10) and Arshad Khan (PW-11) examined to establish the motive of the occurrence. According to the prosecution witness, one Muhammad Tufail (not produced) had purchased three Marlas of land from Mehtab Shah (PW-10) and on the day of occurrence, the said land was being measured to which the appellant took exception and the occurrence happened. There is no explanation in the prosecution case as in what manner the appellant was aggrieved by the measurement of land being conducted. Furthermore, Muhammad Tufail who allegedly purchased the said land never appeared before the learned trial court nor got recorded his statement under section 161 of the Code of Criminal Procedure, 1898 during the investigation of the case. Furthermore, it was Muhammad Tufail (not produced) who was forcing Mehtab Shah (PW-10) to measure the land sold to him and the appellant did not have any objection in this regard. In any way the deceased namely Zahid Nawaz was in no manner related with the motive of the occurrence. Mehtab Shah (PW-10) admitted during cross-examination as under:- "One or two months prior to the occurren ce, the said Tufail Khan had requested me to separate his portion of land which he had purchased from me. He was even requesting so, prior to the said time."
Arshad Khan (PW -11) during cross-examination stated as under:- "Tufail was asking Mehtab Shah Pw, time and again to carry out the measu rement of the land. Tufail had purchased land from Mehtab Shah about 7/8 months, Tufail had been asking Mehtab Shah to carry out the measurement, as he was to proceed to Hong Kong."
The above-referred portion of cross-examination clearly establishes that no motive existed with regard to the appellant and the deceased. The prosecution did not produce any evidence, oral or documentary , so as to establish any reason existed with the appellant to murder the deceased. The dispute of the property , if any, was existing between Mehtab Shah (PW-10) and one Muhammad Tufail (not produced). No independent witness was produced by the prosecution to prove the motive as alleged. This Court has thus reached a conclusion that the prosecution remained unable to establish any motive of the occurrence. The prosecution witne sses failed to provide evidence enabling this Court to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. It is trite that a tainted piece of evidence cannot corrob orate 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 acco unt is found to be unreliable then the evidence of motive and recovery have no value and lost their significance.
19. The learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the widow of the deceased have also relied upon the recovery of the pistol (P-3) made from the appellant. With regard to the recovery of the pistol (P-3) from the appellant namely Muhammad Pervez son of Muhammad Younis, it is observed that the said recovery has no evidentiary value in the eyes of law as the same was made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The said recovery of the pistol (P-3) from the appellant namely Muhammad Pervez son of Muhammad Younis cannot be used as incriminating evidence against the appellant, being evidence, which was attained through illegal means and hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the pistol (P-3) from the appellant namely Muhammad Pervez son of Muhammad Younis, to witness the same. The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others Vs. The State"
(2017 SCMR 898 ) at page 901 has held as under: - "For the above-mentioned recovery of weapons the prosecution had failed to assoc iate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
With regard to the report of Punjab Forens ic Science Agency , Lahore (Exh. PN) which states that the crime empties sent for analysis were fired in the pistol (P-3) recovered from the possession of the appellant namely Muhammad Pervez son of Muhammad Younis, this Court has noted that the empties were received at the office of Punjab Forensic Science Agency , Lahore on 05.04.2010, whereas the appellant namely Muhammad Pervez son of Muhammad Younis was arrested by Abdul Khaliq, S.I. (PW-12) on 01.04.2010. In this scenario possibility of fabrication on part of the Investigating Officer in order to obtain a favourable report of the Punjab Forensic Science Agency , Lahore cannot be ruled out. Reliance is placed on the case of "Muhammad Amin Vs. The State and another" ( 2019 SCMR 2057 ) wherein the august Supreme Court of Pakistan has held as under:- "Interestingly , two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circu mstances, the positive report of FSL is of no avail to the prosecution and is inconsequential."
Therefore, the recovery of the pistol (P-3) from the appellant does not further the case of the prosecution in any manner . In view of the above-mentioned facts, the alleged recovery of the pistol (P-3) is not proved and the same cannot be used as a circumstance against the appellant.
20. The learned Deputy District Public Prosecutor and the learned counsel appearing on behalf of the widow of the deceased have also laid much stress upon the stance taken by the learned counsel representing the appellant namely Muhammad Pervez son of Muhammad Younis at the time of cross-examination of the prosecution witnesses. It was suggested by the learned counsel representing the appellant namely Muhammad Pervez son of Muhammad Younis that one Muhammad Tufail had murdered the deceased. Suffice is to observe that the onus to prove the facts in issue never shifts and always lies on the prosecution. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case. The law on the burden of proof, as provided in Article 117 of the Qanun e-Shahadat, 1984, mandates the prosecution to prove, and that too, beyond any doubt, the guilt of the accu sed of the commission of the crime for which he is charged. The said provision provides: "117. Burden of proof:- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
On a conceptual plain, Article 117 of the Qanun e-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly , the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. That the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the decea sed. So far as the defence plea taken by the appellant namely Muhamma d Pervez son of Muhammad Younis is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same, which otherwise is exculpatory in nature. The suggestions as put by the learned counsel representing the accused, hardly provide any substantiation to the prosecution case. Reliance is placed on the case of "Azhar Iqbal Vs. The State" (2013 SCMR 383) wherein the august Supreme Court of Pakistan has held as under:- "It had not been appreciated by the learne d courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand."
Reliance is placed on the case of MUHAMMAD SHAH versus State (2010 SCMR 1009 ) wherein the august Supreme Court of Pakistan has held as under:- "It is important to note that cross-examination is conducted to test the credibility and veracity of the witnesses and several suggestions are given to the witnesses to create a doubt in their evidence. Thus any stand taken by the accused in the cross-examination is mere ly in the form of suggestion. This Court in several authorities has held hat an accused can take several defence but that will not improve the prosecution case as the prosecution case stands on its own evidence.
Even if, we take into consideration the stand taken by the appellant in the cross-examination, it does not show that the accused had caused injuries to the deceased. Therefore, from the said stand also no offence appears to have been made out.
Consequently , the prosecution has failed to prove the case against the appellant."
Reliance is placed on the case of ASHIQ HUSSAIN alias MUHAMMAD ASHRAF versus State (PLD 1994 Supreme Court 879) wherein the august Supreme Court of Pakistan has held as under:- "Onus lies on the prosecution to prove its case through reliable evidence, direct or circumstantial, and that too, beyond reasonable doubt. In the instant case, the High Court has discussed the defence plea/case/evidence first and after rejecting it, has considered and believed the prosecution case/evidence. We cannot help remarking that the High Court has approached the case in an entirely illegal and improper manner in so far as it has discussed the defence case first and then the prosecution case. After rejecting the defence case, the High Court has accepted the prosecution case. This is, to say the least, a topsy-turvy way of dealing with a criminal case and cannot be approved by this Court. For the guidance of all the Courts in the country we propose to lay down rules/principles for the appreciation of evidence in criminal cases of one version or of two versions. The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the .prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C:, statement under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny . If the statement under section 342, Cr.P.C. is exculpatory , then he must be acquitted. If the statement under section 342, Cr.P.C. believed as a whole, constitutes some offence E punishable under the Code/law , then the accused should be convicted for that offence only ."
21. Considering all the above circumst ances, this Court entertains serious doubt in its mind regarding the involvement of the appellant namely Muhammad Pervez son of Muhammad Younis, in the present case. It is settled principle of law that for giving benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha Vs. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221 ), Muhammad Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan "Muhammad Akram Vs. the State" ( 2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
22. For what has been discussed above, the Criminal Appeal No. 306 of 2013, lodged by Muhammad Pervez son of Muhammad Younis (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 29.06.2013 are hereby set-aside . The appellant namely Muhammad Pervez son of Muhammad Younis is ordered to be acquitted by extending him the benefit of doubt.
Muhammad Pervez son of Muhammad Younis (appellant) is directed to be release d forthwith if not required in any other case.
23. Pursuant to the discussion made and conclusions arrived at above, the Criminal Revision No. 155 of 2013, seeking the enhancement of the sentence of the accused namely Muhammad Pervez son of Muhammad Younis, is hereby dismissed .