SADIQ MAHMUD KHURRAM, J.---The appellant namely Qamar Sultan son of Aurang Zeb was tried by the learned Sessions Judge, Rawalpindi in case FIR No. 38 of 2008 dated 13.03.2008 registered at Police Station Chauntra, District Rawalpindi in respect of an offence under sections 302, P.P.C. for committing the Qatl-i-Amd of Javed Iqbal son of Ali Asghar (deceased). The learned trial court vide judgment dated 30.11.2017 convicted Qamar Sultan son of Aurang Zeb (convict) and sentenced him as infra: Qamar Sultan son of Aurang Zeb: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Javed Iqbal son of Ali Asghar (deceased) and directed to pay Rs.200,000/- 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.
2. Feeling aggrieved, Qamar Sultan son of Aurang Zeb (convict) lodged Criminal Appeal No.1098 of 2017 against his conviction and sentence. The learne d trial court submitted Murder Reference No.102 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Qamar Sultan son of Aurang Zeb. We intend to dispose of the Criminal Appeal No.1098 of 2017 and Murder Reference No.102 of 2017 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as divulged in the statement of Muhammad Akbar Siddiqui (PW -1) are as under:- "1. On 13.03.2008, I along with my brother Javed deceased left my house so as to go to my shop of mobiles situated at ChakBeli Khan. At about 09.30 am when we reached near Chakki stop, I received a telephone call on my cell. I got stopped motorbike and came down. to attend the telephone call. My brother Javed however , remained seated on motorbike. In the meantime Qamar Sultan accused present in Court came out from his house being armed with pistol 30-bore. He made indiscriminate firing those hit on the body of my brother Javed who being injured fell down on the ground. Mudassar and Imran (Pws) also arrived there and witnessed this occurrence besides me. Thereafter accused escaped from scene of crime.
2. Motive behind occurrence was a quarrel between deceased and accused. Because of that quarrel accused had made firing at our house resulting into injuries to my sister and in this regard FIR was also got registered.
3. I with the help of others brought my brother Javed in injured condition to DHQ Hospital Rawalpindi however on the way he had died.
4. Police arrived at DHQ Hospital, Rawalpindi where I made my statement Ex. PA: It was read over to me and I signed it in token of its correctness."
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 Qamar Sultan son of Aurang Zeb was sent to face trial. The learned trial court framed the charge against the accused on 12.10.2017, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as fifteen witnesses examined. Muhammad Akbar Siddiquie (PW-1) and Muhammad Mudassar (PW-2) gave evidence regarding the ocular account. Muhammad Afzal (PW-3) stated that on 13.03.2008, the Investigating Officer took into possession empties and blood stained earth from the place of occurrence in his presence. Matloob Hussain (PW-4) identified the dead body of the deceased. Yasir Ali 7000/C (PW-5) state d that he escorted the dead body of the deceased for its post mortem examination by the Doctor and also received the last worn clothes of the deceased which he handed over to the Investigating Officer. Khurram Shahzad (PW-6) draftsman prepared the scaled site plan of the place of occurrence (Exh.PE). Muhammad Shafqat 3817/C (PW-7) stated that on 19.03.2008 Ijaz Hussain, AS1 (PW-15) handed over to him two sealed parcels said to contain empties and blood stained earth which he deposited in the office of Forensic Science Laboratory (as it was then). Muhammad Aslam,. Constable (PW-9) stated that on 05.09.2008 Muhammad Akram, SI (since dead) handed over to him non-bailable warrants of arrest (Exh.PG) for execution, however , the same could not be executed and on 11.09.2008 he was handed over a proclamation under section 87 of the Cr.P.C. (Exh.PH) on which he proce eded. Muhammad Ramzan 2896/HC (PW-10) stated that on 04.05.2017 Sikandar Khan SI (PW-12) handed over to him one sealed parcel said to contain a pistol which on 10.05.2017 he handed over to Sikandar Khan, SI (PW-12) for its onward transmission to Punjab Forensic Science Agency , Lahore. Muhammad Shafique 4814/C (PW-13) stated that on 01.05.2017 the appe llant was arrested and a mobile phone (P-6) a watch (P-7) and Rs.700/- (P-8) were taken into the possession by the Investigating Officer after the search of the appellant and on 04.05.2017 the appellant led to the recovery of the pistol (P-9) and two bullets (P- 10/1-2). Muhammad Iqbal, SI (PW-14) stated that he record the formal FIR of the case (Exh.PA/1). Muhammad Shabbir SI (PW-11) investigated the case from 13.03.2008 till 08.05.2008 and detailed the facts of the investigation in his statement before the learned trial court. Sikandar Khan SI (PW-12) investigated the case from 01.05.2017 till 04.05.2017, arrested the accused on 01.05.2017 and detailed the facts of the investigation in his statement before the learned trial court.
6. The prosecution got examined Dr. Amjad Ali Shah (PW-8), who on 13.03.2008 was posted as CMO at the DHQ Hospital Rawalpindi and on the same day conducted the postmortem examination of the dead body of Javed Iqbal son of Ali Asghar (deceased). Dr . Amjad Ali Shah (PW -8) observed as under:- "I had noted following injuries on the person of deceased.
1. A circular wound on back above right buttock 1 cm x 1 cm Edges were inverted. It was a wound of entry .
2. A swelling on front of middle left thigh. A foreign body metallic was recovered by incision. (Exit wound).
3. A circular wound on upper part of right chest 1 cm x 1 cm, 3 cm above clavicle. Edges were inverted. It was a wound of entry .
4. A circular wound on upper part of front of left thigh. 1 cm x 1 cm. Edges everted. It was exit wound.
5. A circular wound on lateral aspect of upper part of right arm lcm x 1 cm. Edges were inverted. It was a wound of entry .
6. A circular wound on upper part of right chest 1 cm x 1 cm near sternum 3 cm below clavicle. Edges were everted. It was exit wound.
7. A circular mound on front of left chest below clavicle 1 cm x 1 cm. Edges were everted. It was exit wound. ..........................................................................................
In my opinion all injuries were ante-mortem in nature which damaged his chest organs both lungs and heart and abdominal cavities as small and large intestines and liver causing severe internal bleeding, hypovolemic shock and death. Injuries were sufficient to cause death in the ordinary course of nature.
Time between injury and death was immediate and between death and post mortem was 6-8 hours."
7. On 12.10.2017, the learned DDPP gave up PW's Muhammad Imran, Muhammad Younis and Tanvir Hussain as being unnecessary . On 08.11.2017, the learned DDPP gave up PW's Zafar Iqbal (being unnecessary) and Muhammad Akram, SI (dead) and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore (Exh.PO) and the report of Chemical Examiner for the Punjab Lahore (Exh.PN).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Qamar Sultan son of Aurangzeb under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant namely Qamar Sultan son of Aurang Zeb opted not to get himself examined under section 340(2) of the Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Sessions Judge, Rawalpindi convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant, further contended that the story of the prosecution mentioned in the FIR, on the face of it is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses not worthy of reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. He further contended that the medical evidence also corroborated the statements of Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2). He further argued that the recovery of the pistol (P-9) from Qamar Sultan son of Aurang Zeb (appellant) also corroborated the ocular account. He contended that there was no occasion for the prosecution witness, who was related to the deceased, to substitute the real offender with the innocent in this case. Lastly , he prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully .
13. The whole prosecution case revolves around the statements of Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2). The relationship of the said witnesses with the deceased is on record. Javed Iqbal, deceased, was the brother of Muhammad Akbar Siddiqui (PW-1) and maternal cousin of Muhammad Mudassar (PW-2). Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) were admittedly not the residents of the place of occurrence. The place of occurrence as mentioned by Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) was Chakki Chowk, whereas according to. Muhammad Akbar Siddiqui (PW1) he and his brother namely Javed Iqbal had left their house to go to their shop at Chak Beli Khan and when they stopped at Chakki Chowk the occurrence took place, meaning thereby that his house was at some distance from the place of occurrence. Similarly , Muhammad Mudassar (PW-2) stated that he had left his house at about 8.45 p.m. for going to Rawalpindi and arrived at Chakki Chowk at about 9.00 a.m. and was standing outside the house of one Haq Nawaz when he witnessed the occurrence. This narration of Muhammad Mudassar (PW-2) also establishes that he was not the resident of the place of occurrence. Furthermore, the person namely Haq Nawaz, in front of whose house this witness namely Muhammad Mudassar (PW-2) was standing, neither joined the investigation of the case nor appeared as a witness before the learned trial court to support the contention of the said witness. It is an admitted fact that none of the prosecution witnesses namely Muhammad Akbar Siddiqui (PW- 1) and Muhammad Mudassar (PW-2) had their residences or their houses at the place of occurrence. They were all "chance witness". We have also perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Khurram Shahzad, draftsman (PW-6) and the rough site plan (Exh.PK) as prepared by Muhammad Shabbir , SI (PW-11) and find that neither any house nor, any shop belonging to Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) is marked in the same. Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) both asserted that Muhammad Akbar Siddiqui (PW-1) and the deceased had stopped at the place of occurrence when Muhammad Akbar Siddiqui (PW-1) received a sudden phone call. It is obvious that had Muhammad Akbar Siddiqui (PW-1) not received the said call then they would not have stopped at the place of occurrence. The prosecution failed to produce any documentary evidence in the shape of Call Data Record of the phone number under the use of Muhammad Akbar , Siddiqui (PW-1) on the day of occurrence so as to establish that Muhammad Akbar Siddiqui (PW-1) had indeed received a phone call at the relevant time. Moreover , Muhammad Akbar Siddiqui (PW-1) even did not produce his mobile phone to establish the receiving of the said phone call. To obscure the matter further , the Investigating Officer of the case did not take into possession the motorcycle upon which the deceased and Muhammad Akbar Saddiqui (PW-1) had arrived at the spot. The said motorcycle was not even produced by the witnesses during the investigation of the case so as to establish the fact asserted by them that the deceased and Muhammad Akbar Saddiqui (PW-1) had indeed arrived at the place of occurrence on a motorcycle. The failure of the prosecution to produce the motorcycle under the use of the deceased and Muhammad Akbar Saddiqui (PW-1) reflects poorly on the prosecutio n case. Furthermore, there is no explanation as to how the accused came to know about the travelling plans of the deceased and his sudden stay at the place of occurrence which had been brought upon by a phone call received by Muhammad Akbar Ali Siddiqui (PW-1). In this manner , the prosecution witnesses have failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. We have also noticed that the alleged eye-witnesses namely Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) were not mentioned either in column No.4 or page 4 of the inquest report (Exh. PJ) as being the ones who were present at the time of preparation of the said inquest report (Exh. PJ) by the investigating Officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem report. All these omis sions 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 occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant (PW3), Ghulam Farid (PW6) and Manzoor Ahme d (PW7) 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 ) wherein the august Supreme Court of Pakistan observed as under:-- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
We have also marked with concern that in the Post Mortem Report (Exh.PF), the mouth of the deceased has been stated to be open, which clearly shows that the dead body was not attended to by his brother and cousin as claimed. Dr. Amjad Ali Shah (PW-8), who on 13.03.2008 was posted as CMO at the DHQ Hospital Rawalpindi and on the same day conducted the postmortem examination of the dead body of Javed Iqbal son of Ali Asghar (deceased) observed that the mouth of the deceased was open at the time of the examination. However , -the stance set up by the prosecution in the present case is that Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) were present at the time of his death and had remained with the dead body . The mouth of the deceased was found open at the time of postmortem examination, thus, if the witnesses were present then, at least after the death, as is a consistent practise of such close relatives, they would have closed mouth of the deceased on his expiry . Thus, the open mouth of the deceased forces a hostile interpretation against the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. This fact by itself indicates that none was present with the deceased till his death. The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeqa v . The State" ( 2019 SCMR 1068 ) has held as under: "What has further irked this Court is that in column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW -10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However , the stance set up by the prosecution in the present case is that Arshad Ali - the brother , and Nazir Ahmad - the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter . Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence."
14. We have also observed that the witness namely Muhammad Akbar Siddiquie (PW-1), during the cross- examination admitted the existence of enmity between him on one part and the accused of the case on the other part. During the cross-examination Muhammad Akbar Siddiqui (PW -1) stated as under:- "Prior to this occurrence there was also a quarrel of mine and deceased with accused however the matter was not reported to the police."
We find that the claim of Muhammad Akbar Siddiqui (PW-1) was that he was present near the assailant at the time of firing. Muhammad Akbar Siddiqui (PW-1) was also a prime target. Muhammad Akbar Siddiqui (PW-1) by his own admission was in clear view, at a meagre distance, from the assailant and un-armed. Muhammad Akbar Siddiqui (PW-1) stated that the accused was armed with a pistol and neither there was any dearth of ammunition nor that of intent and opportunity . In this scenario, it is hard to believe that Muhammad Akbar Siddiqui (PW-1) would have been shown the courtesy of being not fired at effectively . Muhammad Akbar Siddiqui (PW-1) did not even receive a single scratch on his person. If the witness namely Muhammad Akbar Siddiqui (PW-1) had been present, then he would not have been spared as the numb er of injuries on the person of the deceased showed the degree of venom and design the killer had for the decea sed. Blessing Munammad Akbar Siddiqui (PW-1) with such incredible consideration and showing him such favour is implausible and opposed to the natural behaviour of the 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 assailant did not cause any injury to him. 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. We thus deduce the existence of this fact, by virtue of the Article 29 of the Qanun-e-Shahad at Order , 1984, that the conduct of the assailant as deposed to by witness es namely Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) was opposed to the common course of natural events and human conduct. Hence we are holding that Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW-2) were not present at the time of occurrence at the place of 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. Reliance is placed on the cases of Tariq Mehmood v. The State and others (2019 SCMR 1170); Rohtas Khan v. The State (2010 SCMR 566), Muhammad Farooq and another v. The State (2006 SCMR 1707 ) and Mst. Rukhsana Begum and others v . Sajjad and others (2017 SCMR 596 ).
15. We have also observed that according to Muhammad Akbar Siddiqui (PW-1) and Muhammad Mudassar (PW- 2) the incident of firing at the deceased Javed Iqbal happened in an area surrounded by various shops.
Muhammad Mudassar (PW -2) during cross-examination admitted as under:- "There were more than four shops near to the place of occurrence and those were open at that time."
Admittedly none of the shop keepers who were present at the place of occurrence at the time of occurrence as mentioned by the eye-witnesses themselves were examined during the investigation of the case or appeared as prosecution witnesses before the learned trial court during the trial to support the prosecution case. It is further an admitted aspect of the case that no one, other than the related witnesses, was exam ined during the investigation or the trial of the case as witness. We have also perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Khurram Shahzad, draftsman (PW-6) and the rough site plan (Exh.PK) as prepared by Muhammad Shabbir , SI (PW-1) and find that as many as nine shops have been identified at the place of occurrence besides the houses of Haq Nawaz and Abdul Aziz. As mentioned above, none of those who had their residence or shops at the place of occurrence appeared either during the investigation of the case or before the learned trial court in support of the prosecution case. The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case. The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality . The prosec ution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949) wherein it has been observed as under:-- ...further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. it is difficult to say that prosecution has proved its case beyond shadow of doubt."
16. Another aspect of the case attracting our attention is the fact that the oral statem ent (Exh.P A) of Muhammad Ali Siddiqui (PW-1) was recorded by Muhamm ad Shabbir , SI (P W-11), the Investigating Officer of the case, after more than 3-1/2 hours of the occurrence. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. The police station was at a distance of only twenty three kilometres still no effort was made to report the matter to the police. It is the prosecution ease itself that immediately after the occurrence Javed Iqbal son of Ali Asghar , the then injured later deceased, was being taken to the Civil Hospital, Rawalpindi within no time and Javed Iqbal son of Ali Asghar (deceased ) died on his way to the hospital. Despite the claim that Javed Iqbal (deceased) had died prior to reaching the hospital still the oral statement (Exh.P A) of Muhammad Ali Siddiqui (PW-1) was recorded at the hospital whereas there was apparently no reason for the witnesses to be present at the hospital as already the deceased had died on his way. Even after the death of Javed Iqbal (deceased), Muhammad Ali Siddiqui (PW-1) or any other witness did not make any effort to report the matter . However , the Investigating Officer of the case namely Muhammad Shabbir SI (PW-11) on his own reached at the DHQ hospital Rawalpindi after receiving the information of the occurrence and recorded the oral statement (Exh.P A) of Muhammad Akbar Siddiqui (PW-1) at the hospital at 1.00 p.m. and subsequently the formal FIR (Exh.P A/1) was registered at the police station at 2.15 p.m. Muhammad Akbar Siddiqui (PW-1), the complainant, waited for the arrival of the police at the DHQ Hospital, Rawalpindi and did not take a single step to report the matter to the police for so many hours even when according to the prosecution case itself the deceased had already died on his way to the hospital. There must be some plausible reason for this failure of Muhammad Akbar Siddiqui (PW-1), the complainant, of not reporting the matter to the police even after the death of the deceased however none is available and doubts have arisen and inference against the prosecution has to be drawn in this regard. Guidance is sought from the principle enunciated by the augu st Supreme Court of Pakistan in the case of Muhammad Ashraf Javeed and another v. Muhammad Umar and others (2017 SCMR 199) and the case of Zafar v. The State and others (2018 SCMR 326). It can be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the oral statement (Exh.P A) of the complainant, namely Muhammad Akbar Siddiqui (PW-1), was prepared and the same was neither prompt nor spontaneous. No corroboration of the prosecution evidence can be had from the said oral statement (Exh.P A).
17. We have also noted that despite the fact that the occurrence had taken place at about 9.30 a.m. and the matter was reported to the police at 1.00 p.m., when the oral statement (Exh.P A) of Muhammad Akbar Siddiqui (PW-1) was recorded by Muhammad Shabbir , SI (PW-11) , the Investigating Officer of the case at the Civil Hospital Rawalpindi itself, however , the postmortem examination on the person of the deceased was conducted at 3.00 p.m.
This clearly establishes that the oral statement (Exh.P A), which was presented at 1.00 p.m. and the formal FIR (Exh.P A/1), which was registered at 2.15 p.m., were prepared after consultation and concert. Dr. Amjad Ali Shah (PW-8) who on 13.03.2008 was posted as CMO at the DHQ Hospital Rawalpindi and on the same day conducted the postmortem examination of the dead body of Javed lqbal son of Ali Asghar (deceased ) opined about the probable duration of time between death and post mortem as 6-8 hours. It has been repeatedly held by the august Supreme Court of Pakistan that such delay is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. Reliance is placed on the cases of "Khalid alias Khalidi and 2 others v. The State "(2012 SCMR 327),"Mian Sohail Ahmed and others v. The State and others" (2019 SCMR 956) and "Muhammad Rafique alias Feeqa v . The State" (2019 SCMR 1068 ).
18. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, given in the oral statement (Exh.P A), was that the appellant nursed a grudge against the deceased regarding the lodging of an FIR against the appellant and the arrest of the appellant during the investigation of the said FIR. Muhammad Akbar Siddiqui (PW-1), however , while appearing as a witness before the learned trial court, did not reproduce any details of the said motive which were mentioned in the written application (Exh.P A) and made a very non-descript statement in this regard. Even the number of the FIR, which was allegedly got lodged against the appellant, was not mentioned by the prosecution witnesses and also the date of the said alleged episode of motive was not mention ed. Muhammad Akbar Siddiqui, (PW-1) during cross-examination admitted as under:- "In earlier FIR complainant was my father . 1 do not remember whether said case has been decided or not? I do not remember if in that case accused was released on bail on the basis of compromise or otherwise?"
None of the other witnesses produced before the learned trial court by the prosecution gave any evidence regarding the motive of the occurrence. Furthermore, Mst. Salma Bibi, sister of Muhammad Akbar Saddiqui (PW- 1), who had allegedly been injured by the appellant prior to the occurrence, did not appear either before the Investigating Officer during the investigation of the case or before the learned trial court, so as to support the motive of the occurrence asserted by Muhammad Akbar Saddiqui (PW-1). We have observed that there is a haunting silence with regard to the minutiae of motive alleged by the prosecution. The lack of evidence in this regard establishes that there was no dispute simmering which could have triggered the happening of this incident at the time of its occurring. Moreover , during the investigation of the case or the trial, no documentary evidence was produced to support the motive of the occurrence. Failure of the prosecution to produce any documentary evidence in support of the motive institutes that the appellant had no motive to commit the occurrence. We have thus reached a conclusion that the prosecution remained unable to establish any motive. 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."
19. Learned Deputy Prosecutor General has also relied upon the recovery of the pistol (P-9) made from the appellant. With respect to recovery of weapon from the appellant it has been observed that report of Punjab Forensic Science Agency , Lahore (Exh.PO) reveals that the pistol (P-9) recove red from the possession of the appellant was compared with as many as five empties recovered from the place of occurrence, however none were found who have been fired in the pistol (P-9). In this manner , the report of Punjab Forensic Science Agency , Lahore (Exh.PO) supports 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 .
20. Learned Deputy Prosecutor General has also laid much premium on the abscondence of the appellant as proof of his guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. The august. Supreme Court of Pakistan has held in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373 ) that abscondence is only a suspicious circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632 ) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State (1999 SCMR 1220 ) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999 SCMR 304) it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali (1992 SCMR 814), Pir Badshah v. State (1985 SCMR 2070 ) and Amir Gul v. State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone.
Reliance is also placed on the cases of "Muhammad Farooq and another v. The State" (2006 SCMR 1707 ) and "Nizam Khan and 2 others v . The State" (1984 SCMR 1092 ) and Rohtas Khan v . The State (2010 SCMR 566 ).
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 medical evidence by its nature and character , cannot recognize a culprit in case of an 'unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellant's conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another v. 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 Qamar Sultan son of Aurangzeb (appellan t) in the present case. It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a pruden t person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha v . The State" (2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345 ), Ghulam 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 v. The State" (2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
23. For what has been discussed above, Criminal Appeal No.1098 of 2017 lodged by Qamar Sultan son of Aurang Zeb (appellant) is accepted and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 30-11-2017 are hereby set-aside. Qam ar Sultan son of Aurang Zeb (appellant) is ordered to be acquitted. Qamar Sultan son of Aurang Zeb (appellant) is directed to be released forthwith if not required in any other case.
24. Murder Reference is answered in Negative and the death sentence of Qamar Sulta n son of. Aurang Zeb is Not Confirmed .