SADIQ MAHMUD KHURRAM, J. Muhammad Hanif son of Noor Muhammad (convict) was tried by the learned Additional Sessions Judge, Burewala along with his co-accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta (all since acquitted) in the case FIR No. 13 of 2012 dated 10.01.2012 registered at Police Station Saddar Burewala, District Vehari in respect of offences under sections 302, 148, 149 PPC for committing the Qatl-i-Amd of Bashir Ahmad son of Allah Daad and Bashiran Bibi wife of Zafar (deceased) .
The learned trial court vide judgment dated 30.09.2015 convicted Muhammad Hanif son of Noor Muhammad (convict) and sentenced him as infra: Muhammad Hanif son of Noor Muhammad: Death under section 302 (b) PPC as Tazir for committing Qatl-i-Amd of Bashir Ahmad son of Allah Daad (deceased) and directed to pay Rs.2,00,000/- as compensation under the 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.
Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta, the co-accused of the convict were, however acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Hanif son of Noor Muhammad (convict) lodged the Criminal Appeal No.280-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.82 of 2015 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Hanif son of Noor Muhammad. The complainant of the case filed Criminal Appeal No.703 of 2015 against the acquittal of the accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta, and Muhammad Hanif son of Noor Muhammad (convict) with regard to the Qatl-i-Amd of Bashiran Bibi wife of Zafar (deceased). We intend to dispose of the Criminal Appeal No.280-J of 2019, Criminal Appeal No.703 of 2015 and the Murder Reference No.82 of 2015 through this single judgment.
3. Precisely , the facts of the prosecution case, as brought on record through the statement of Muhammad Hanif son of Allah Daad (PW -4) ,the complainant of the case, are as under: - "On 10-1-2012 I alongwith Bashir and Nazir and Bashir Ahmad son of Lal Din came to Burewala City for an urgent piece of work. When we reached Burewala by bus from Khatchi Pakki Bashir Ahmad received a telephonic call from Muhammad Hanif son of Noor Muhammad. Hanif asked Bashir Ahmad that I have discussed some thing urgent who may come immediately at my home situated in Chak No.505/E.B Basti Reema. Bashir told us about the above said telephonic call and he proposed that we all four should go to Basti Reema. We reached near petrol pump at Chak No.505/E.B road. We were settling the amount with rickshaw driver . We alighted at Rajbah situated at some distance ahead Chak No.505/E.B. It was 01:00 p.m when we alighted from rickshaw . Bashir asked us to stay over there and he will be back soon after hearing Hanif. He had hardly covered a few paces then Bashiran Bibi met him there. He began to talk each other . Alongwith Rajbah there was sugar cane crop cultivated in 5/10 Marlas.
Hanif armed with Carbine, Ijaz armed with carbine. Allah Ditta armed with dagger , Manzoor armed with hatchet, Munaf armed with hatchet and Azam armed with sickle. Hanif fired with his weapon which landed on the right flank of deceased Bashir . Ijaz fired with his carbine which landed on the right leg of Bashir deceased. Muhammad Hanif fired repeatedly which landed on the back side of Bashir deceased below right shoulder . Bashir while he was turning back Azam accused caught hold of him and he (deceased) fell down. Allah Ditta accused caused dagger blow on the head of Bashir deceased. Manzoor accused caused injury on the head of Bashir deceased with hatchet. Munaf accused caused two injuries on the head of deceased Bashir with hatchet. Hanif and Ijaz accused persons fired with their respective weapons which hit on different parts of Bashiran Bibi deceased. Allah Ditta accused threw Bashiran Bibi down on the ground and Azam accused inflicted a sickle blow which landed on the belly of Bashiran Bibi deceased. After the occurrence accused persons fled away from the place of occurrence with their respective weapons.
The motive behind the occurrence is that accused persons suspected that Bashir Ahmad deceased had illicit liaison with Mst. Bashiran Bibi. Due to this reason they committed brutal murder of Bashir Ahmad and Mst.
Bashiran Bibi deceased. After the occurrence we checked the bodies of Bashir and Mst. Bashiran Bibi they were no more, on the way to hospital police office r met me I narrated him whole occurrenc e. He wrote down my statement which is ExP-D and my signature at the bottom of statement is ExP-D/1. After words I made a written application to the SHO for nomination of unknown accused persons which is ExP-E and at the bottom of application my thumb impressions as well as signatures are ExP-E/1."
4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court, wherein the appellant namely Muhammad Hanif son of Noor Muhammad and his co-accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta (all since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 12.04.2012, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got as many as ten witnesses examined. Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) gave evidence regarding the ocular account. Maqsood Ahmad, Patwari (PW-1) prepared the scaled site plan of the place of occurrence. Muhammad Shafique 512/C (PW- 2) stated that on 12.02.2012 he was handed over two sealed parcels said to contain blood stained earth and one sealed parcel said to contain empties of 12-bore for their onward transmission to the relevant laboratories for analysis and he delivered the same at the said laboratories intact. Muhammad Hussain 454/C (PW-3) stated that on 10.01.2012 he escorted the dead bodies of the deceased Bashir Ahmad son of Allah Daad and Bashiran Bibi wife of Zafar to the hospital for their postmortem examinations and also received the last worn clothes of the deceased from the medical officers. Muhammad Aslam 347/HC (PW-6) stated on 10.01.2012 he recorded the formal FIR (Exh.PP) and on the same day the investigating officer of the case handed over to him three sealed parcels said to contain blood stained earth and empties which on 12.02.2012 he handed over to Muhammad Shafique 512/C (PW-2) for their onward transmission to the relevant laboratories for analysis. Zafar Iqbal, S.I. (PW- 9) investigated the case from 10.01.2012 till 16.02.2012, arrested the appellant and narrated the facts of the investigation conducted in his statement before the learned trial court.
6. The prosecution also got Dr. Muhammad Yaqoob Kamal (PW-8) examined, who on 10.01.2012 was posted as Medical Officer at THQ Hospital Burewala and on the same day at about 1.30 p.m examined Bashir Ahmad son of Allah Daad (then injured later deceased) and observed as under:- "Injury No.1 A fire arm lacerated wound 3 x 1.5 cm into going deep accompanied by multiple small 'fire arm lacerated wounds each measuring .5 x .5 cm into deep going around the wound on lower and front of right thigh, margins inverted, blackening present. It is entry wound, corresponding holes present in the clothes.
Injury No.2 A multiple fire arm lacerated wound each measuring .7 x .7 cm into going deep in an area of 5 x 5 cm. on the right of the abdomen margins inverted, blacke ning present. All entry wounds. Correspo nding holes present on Sweter and Qameez.
Injury No.3.
A fire arm lacerated wound 6 x 6 cm into going deep on the back and middle of right chest 8 cm away from the midline. Margins everted, no blackening. It is exit of injury No.2. corresponding holes present.
Injury No.4 An incised wound 4 x .5 cm into scalp deep on the back of head.
Injury No.5.
An incised wound 3 x .5 cm into scalp deep on the top and right of head.
Injury No.6.
An incised wound 2x.5 cm into scalp deep on the top and right of head.
Injury No.7.
An incised wound 2 x 5 cm into scalp deep on the top and left side of head."
Dr. Muhammad Yaqoob Kamal (PW-8) also conducted the post mortem examination of the dead body of the deceased Bashir Ahmad son of Allah Daad on 11.01.2012 and observed the same injuries as mentioned by him in the Medico Legal Examination Certificate (Exh. PS) and further opined as under:- "After performing postmortem of dead body I am of the opinion that death occurred due to hemorrhagic shock caused by injury No.5,6 and 7. Injury No.5,6 & 7 are sufficient to cause death in an ordinary course of nature. All injuries were ante mortem in nature. Probable time between injury and death was 30 to 60 minutes. And probable time between death and postmortem was within 20 to 22 hours."
The prosecution also got Dr. Sadia Aslam (PW-10) examined who on 11.01.2012 was posted as WMO at THQ, Hospital Burewala where Dr.Tayyaba (since untraceable) was also posted. Dr. Sadia Aslam (PW-10) stated that she was acquainted with the handwriting of Dr.Tayyaba (since untraceable) and the postmortem examination report (Exh.PT) had been prepared by Dr.Tayya ba (since untraceable). According to the postmortem examination report (Exh.PT), Dr.Tayyaba (since untraceable ) conducted the postmortem examination of Bashiran Bibi wife of Zafar (deceased) and observed as under:- "INJUR Y NO.1-A.
An incised wound 8 cm x 4 cm into going deep on left side of abdomen 2 cm on left and above umbilicus.
INJUR Y NO.2.
A firearm lacerated wound 1.5 cm x 1.5 cm into going deep belong right nipple. (entry wound). margins were inverted and blackening was present.
Few pellets .3cm x .3 cm x going deep around the injury . INJUR Y NO.3.
A firearm lacerated wound 3 cm x 4 cm x going deep with everted margins 3 cm on left side of right nipple. (Exit wound).
Multiple pellets (12) .3x .3cm X skin deep in an area of 12 cm x 10 cm around right breast. Pellets removed and handed over to the police. Corresponding holes were present on the clothes.
REMARKS.
After performing postmortem of dead body she was of the opinion that death occurred due to hemorrhagic shock as a result of injury No.1 by harp edged weapon, which was sufficient to cause death in an ordinary course of nature. All injuries were ante mortem in nature. Probable time elapsed between injury and death was 10 minutes.
And probable time between death and postmortem was within 24 hours."
7. On 30.10.2014, the learned ADPP gave up prosecution witness namely Nazir Ahmad as being unnecessary and on 13.01.2015 the learned ADPP gave up prosecution witness namely Ghulam Dastgir Shah as being unnecessary . On 11.09.2015, the learned ADPP closed the prosecution evidence after tendering in evidence the report of the Chemical Examiner for the Punjab Lahore (Exh. PU) regarding the blood-stained earth, the report of the Chemical Examiner for the Punjab Lahore (Exh. PV) regarding the blood-stained earth, the report of Serologist (Exh.PW) and the report of Punjab Forensic Science Agency , Lahore (Exh. PX) regarding the comparison of the Carbine and the empties.
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Hanif son of Noor Muhammad 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 Hanif son of Noor Muhammad opted not to get himself examined under section 340(2) of the Cr.P.C, however got Zafar Iqbal (DW-1) and Muhammad Nawaz (DW-2) examined in his defence.
9. On the conclusion of the trial, the learned Additional Sessions, Burewala 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. The learned counsel for the appellant submitt ed that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant finally submitte d that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.
11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that as a result of the aggression of the appellant the deceased lost their lives. The learned Deputy Prosecutor General further argued that the motive of the occurrence as proved also corroborated the statements of the eyewitnesses. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased namely Bashir Ahmad son of Allah Daad, to substitute the real offender with the innocent in this case. Lastly , the learned Deputy Prosecutor General prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5). The relationship of the said witnesses with the deceased namely Bashir Ahmad son of Allah Daad is on record. Bashir Ahmad son of Allah Daad, deceased , was the brother of Muhammad Hanif son of Allah Daad (PW-4) and a very close relative of Bashir Ahmad son of Lal Din (PW-5). Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) were admittedly not the residents of the place of occurrence. According to Zafar Iqbal, SI ( PW-9), the Investigating Officer of the case, the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) had their residences at the distance of about 35/40 kilometres from the place of occurrence. Zafar Iqbal, SI (PW-9), the Investigating Officer of the case, during cross-examination stated as under:- "The distance between place of occurrence and residents of the complainant and the PWs is 35/40 K.M."
We have also perused the scaled site plan of the place of occurrence (Exh.P A) as prepared by Maqsood Ahmad, Patwari (PW-1) and the rough site plan of the place of occurrence (Exh.PT) as prepared by Zafar Iqbal, SI (PW-9) and find that neither any house nor any shop nor any temporary place of residence belonging to Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) is marked in the same. It is an admitted fact that none of the prosecution witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) had their residences or their houses or any temporary residence near the place of occurrence. In this manner , both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) can be termed as "chance witnesses" . Both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5), being not the residents of the place of occurrence, were under a bounden duty to prove, through evidence , the reason for their chance presence at the place of occurrence, at the time of occurrence. Both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) failed to prove the reason for them to be present at the place of occurrence, a place which was at a distance of as much as about 40 kilometres from their residences. Both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) stated that they had gone to the city of Burewala and from their they accompani ed the deceased to the place of occurrence. We have also noticed that according to Muhammad Hanif son of Allah Daad (PW-4) he was the resident of Mauza Raheem Shah and according to Bashir Ahmad son of Lal Din (PW-5), he was the resident of Mauza Saldera. According to these witnesses the distance between the said two places (Mauza Raheem Shah and Mauza Saldera) was about 5 kilometers. It is not mentioned as to why the witnesses accompanied each other for proceeding to the city of Burewala when they were not even neighbours and also had no previous knowledge of the plans of each other regarding proceeding to the city of Burewala. To put the matter in furtherdoubt, Bashir Ahmad son of Lal Din (PW- 5), claimed that he reached at the house of Muhammad Hanif son of Allah Daad (PW-4) on the day of occurrence only as a chance. Muhammad Hanif son of Allah Daad (PW-4) claimed that they had gone to the city of Burewala for an urgent piece of work, however did not explain the nature of said work or the fact whether the said work was ever done. Zafar Iqbal, SI (PW-9), the Investigating Officer of the case, during the investigation of the case never visited the city of Burewala so as to verify the claim of the prosecution witnesses that prior to the occurrence they had gone to the city of Burewala for the purpose of some work of urgent nature. According to both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) they were present in the city of Burewala when Bashir Ahmad son of Allah Daad (deceased) received a call on his mobile phone device allegedly made by the appellant asking him to come to his house situated in Chak No. 505/EB, Basti Reema.
According to both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) they proceeded from the city of Burewala to the place of occurrence on a Rickshaw , however during the course of investigation, the driver of said Rickshaw was not produced before the Investigating Officer to prove this stance of the witnesses. Muhammad Hanif son of Allah Daad (PW-4) stated that he had never earlier visited the place of occurrence and it was only on the day of occurrence that he went there alongwith his deceased brother after his brother had received a phone call. During the investigation of the case, the mobile phone device under the use of Bashir Ahmad son of Allah Daad (deceased) and on which he had allegedly received the call from the appellant was not taken into possession by the Investigating Officer of the case nor produced by the witnesses.
Even before the learned trial court no such mobile phone device on which Bashir Ahmad son of Allah Daad (deceased) had received the call was produced. Similarly , the medical officer who examined Bashir Ahmad son of Allah Daad (deceased) when he was injured and who also conducted the post mortem examination of the dead body of the deceased when he had died , did not find any such mobile device. The Investigating Officer of the case, also did not find any such mobile device at the place of occurrence. Even the Call Data Record (CDR) of the said mobile phone device under the use of Bashir Ahmad son of Allah Daad (deceased) was not collected and neither the same was produced before the learned trial court. Bashir Ahmad son of Lal Din (PW-5) during cross- examination admitted as under:- "Police did not taken (sic) into possession the cell phone of Bashir Ahmad deceased."
The failure of the prosecution to produce the mobile phone device under the use of Bashir Ahmad son of Allah Daad (deceased) has repercussions resulting in the failure of the prosecution case. The very inception of the prosecution case is put in doubt. We have also noted that the claim of the prosecution witnesses that Bashir Ahmed son of Allah Dad (deceased) asked them to stay whereas he alone proceeded towards the house of the appellant after their arrival at Chak No.505/EB is also not believable. Furthermore, the claim of the prosecution witnesses that instead of proceeding to the house of the appellant, Bashir Ahmed son of Allah Dad (deceased) started talking with Bashiran Bibi (deceased) till the time the occurrence took place also falls within the realm of unbelievable and absurd. In this manner , the prosecution witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) failed miserably to establish the reason for their presence at the place of occurrence at the time of occurrence. This Court has also noted that both the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) claimed that after the occurrence, Muhammad Hanif son of Allah Daad (PW-4) held his brother Bashir Ahmad (deceased) in his lap and admitted that his clothes were stained with blood. Muhammad Hanif son of Allah Daad (PW-4) during cross- examination stated as under:- "It is correct that when I hold the body of deceased my clothes smeared with blood , however I did not produce my said clothes to the I.O during investigation."
Zafar Iqbal, SI (PW-9), the Investigating Officer of the case, did not take any such blood-stained clothes of Muhammad Hanif son of Allah Daad (PW-4) in possession during the investigation of the case. Zafar Iqbal, SI (PW- 09), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Muhammad Hanif son of Allah Daad (PW-4) which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency , Lahore for examination and grouping with that of the blood- stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5).
This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence, at the time of occurrence. Both these witnesses were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptabl e. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others ( 2015 SCMR 1 142) wherein it has been held as under:- "20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer , otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses."
The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 SCMR 319 ) has held as under:- "Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced".
The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 SCMR 153 ) has held as under:- "For the following reasons the prosecution case against the appellant is doubtful in nature:-
(a) .......
(b) Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injure d condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross- examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police."
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 occurrence, but on the day of occurrence stated to be present near the spot 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 ) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. We have also noted with grave conc ern that according to Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5), the dead bodies of the deceased namely Bashir Ahmad son of Allah Daad and Bashiran Bibi wife of Zafar were lying at the place of occurrence, whereas according to the statement of Dr. Muhammad Yaqoob Kamal (PW-8), on 10.01.2012 at about 1.30 p.m he had medically examined Bashir Ahmad son of Allah Daad (deceased) who had been brought to the hospital in an injured condition by Muhammad Hussain 454/C (PW -3). Muhammad Hanif son of Allah Daad (PW -4) during his examination in chief stated as under:- "After the occurrence we checked the bodies of Bashir and Mst. Bashiran Bibi they were no more."
Muhammad Hanif son of Allah Daad (PW -4) during cross-examination stated as under:- "Both the dead bodies were lying at a distance of 8/10 feet frm each other . Dead body of deceased Bashiran Bibi was lying on the bank of RAJBAH whereas the dead body of Bashir deceased was lying in the RAJBAH"
Muhammad Hussain 454/C (PW -3) during cross-examination stated as under:- "I escorted the both the dead bodies at the same time from the place of occurrenc e to THQ Hospital Burewala on official vehicle. I escorted both the dead bodies at THQ Hospital Burewala at about 03:00 p.m."
Contrary to the above mentioned portion s of cross-examination of the witnesses, Dr. Muhammad Yaqoob Kamal (PW-8), in his examination in chief stated as under:- "Prior to that Bashir Ahmed son of Allah Dad were (sic) brought in injured condition by Muhammad Hussain on 10.01.2012 at 01:30 PM. On his medical examination following injuries were found on his body ." (emphasis supplied)
Zafar Iqbal, SI (PW -9), the Investigating Of ficer of the case, also stated during examination in-chief as under:- On 10.1.2012 I prepared the injury statement of injured Bashir Ahmad which is Ex.PS/1 and sent him alongwith Muhammad Hussain 454/C for medical examination."
The presence of Bashir Ahmad son of Allah Daad (deceased) on 10.01.2012 at about 1.30 p.m at the THQ, Hospital Burewala in an injured condition totally shatters the claim of the prosecution witnesses to have been present at the place of occurrence, at the time of occurrence. Had Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) been present at the place of occurrence, at the time of occurrence then they would have known that Bashir Ahmad son of Allah Daad (deceased) was taken to the hospital in an injured condition and died there at about 1.45 p.m. on the same day .
15. We have also noted with equal conce rn the inconsistencies with regard to the recording of the oral statement (Exh.PD) of Muhammad Hanif son of Allah Daad (PW-4) , upon the basis of which the formal FIR (Exh.PP) was recorded. According to Zafar Iqbal, SI (PW-9) he recorded the oral statement (Exh.PD) of Muhammad Hanif son of Allah Daad (PW-4) while being present on the road at 505/EB and not at the police station whereas according to Muhammad Hanif son of Allah Daad (PW-4), the oral statement (Exh.PD) was recorded at the police station.
Muhammad Hanif son of Allah Daad (PW -4), during cross-examination stated as under:- "I recorded my statement before Thanidar for registration of case regarding the alleged occurrence while sitting in P.S. Saddar Burewala."
Furthermore, a perusal of the oral statement (Exh.PD) of Muhammad Hanif son of Allah Daad (PW-4) reveals that it was recorded on 10.01.2012 at about 2.25 p.m. Contrary to the said mentioned time on the oral statement (Exh.PD), the maker of the same namely Muhammad Hanif son of Allah Daad (PW-4) stated that he had got recorded the said statement at 6/7.00 p.m. Muhammad Hanif son of Allah Daad (PW-4) during cross-examination stated as under:- "I.O recorded my statement for registration of case regarding the alleged occurrence at about 6/7 p.m." (emphasis supplied)
This admission of Muhammad Hanif son of Allah Daad (PW-4) alone is sufficient to prove that the oral statement (Exh.PD) was an invented and false document. It also proves that the oral stateme nt (Exh.PD) was recorded after probe, consultation, planning, investigation and discussion making it of no value.
16. Another aspect of the case piquing our concern is the admission of Muhammad Hanif son of Allah Daad (PW- 4), the complainant of the case that prior to the occurrence, he was not acquainted with the accused.
Muhammad Hanif son of Allah Daad (PW -4), during cross-examination stated as under:- "I am not acquainted with the accused present in court prior to the alleged occurrence."
If Muhammad Hanif son of Allah Daad (PW-4) was not acquainted with any of the accused prior to the occurrence, then how and upon the basis of what knowledge, he named the appellant as an accused in his oral statement (Exh.PD) and this circumstance is sufficient on its own to raise enough doubt regarding the involvement of the appellant in the occurrence.
17. We have also observed that according to the oral statement (Exh.PD), the number of the accused which were present at the place of occurrence, at the time of occurrence was five out of which three, including the appellant were named whereas two accused were stated to be unknown, however subseque ntly on 20.01.2012, Muhammad Hanif son of Allah Daad (PW-4) submitted the application (Exh.PE) wherein the number of accused was increased from five to six. Bashir Ahmad son of Lal Din (PW-5) also admitted during cross-examination that he had mentioned five accused as being present at the place of occurrence. Bashir Ahmad son of Lal Din (PW-5) during cross-examination stated as under:- "It is correct that I nominated in my statement U/S 161 Cr.PC three person by name and two unknown accused persons"
This addition in the number of accused present at the spot and the roles played by them in the occurrence clearly establishes that the witnesses namely Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) had not witnessed the occurrence , otherwise they would not have fallen into error with regard to the number of accused present at the place of occurrence or their roles in the occurrence.
18. We have also noted with concern that Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5), the eye witnesses of the occurrence made dishonest improvemen ts to their previous statements.
Furthermore, while submitting the application (Exh.PE), Muhammad Hanif son of Allah Daad (PW-4) also mentioned that Muhammad Azam (since acquitted) was armed with a sickle and gave the blow of the same hitting on the abdomen of Bashiran Bibi (deceased), whereas Manzoor Ahmad (since acquitted), while armed with a hatchet, gave a blow of the same hitting on the head of Bashir Ahmad son of Allah Daad (deceased) and Abdul Manaf (since acquitted) ,while armed with a hatchet, gave two blows of the same hitting on the head of Bashir Ahmad son of Allah Daad (deceased). While appearing before the learned trial court, Muhammad Hanif son of Allah Daad (PW-4) repeated the allegati ons levelled by him in his application (Exh.PE) as against Muhammad Azam, Manzoor Ahmad and Abdul Manaf , the co-accused of the appellant (all since acquitted). Muhammad Hanif son of Allah Daad (PW -4) during cross-examination admitted as under:- "It is correct that in ExP-D I did not specif y the injuries to any of the accused. PW volunteered stated that however in my supplementary statement I specify the injuries to accused persons to the extent of unknown persons."
Bashir Ahmad son of Lal Din (PW -5), admitted during cross-examination as under:- "It is correct that I got recorded in my statement on 10.1.2012 that Azam accused caught hold the deceased and fell on the earth, Allah Ditta accused committed the injury with dagger on head, Accused Manzoor hit the hatchet blow on the head of the deceased, Abdul Manuf accused person also hit the hatchet blow on the head of the deceased while the accused person namely Azam hit the sickle blow in the belly of Bashiran Bibi deceased.
Confronted with ExD-A where it is not so recorded."
Similarly , Zafar Iqbal, SI, (PW -9), the Investigating Of ficer of the case, stated as under:- "It is correct that in Ex.PD two unknown persons had been mentioned while other accused persons have been named. It is correct that 2/2.5 p.m. there was no information regarding this occurrence. It is correct in Ex.PD no role has been ascribed to unknown persons. It is correct that in Ex.PD 05 persons were named."
The said improvements made by Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statements, Muhammad Hanif son of Allah Daad (PW-4) and Bash ir Ahmad son of Lal Din (PW-5) impeached their own credit. 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 Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) 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 a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence Muhammad Hanif son of Allah Daad (PW-4) and Bashir Ahmad son of Lal Din (PW-5) has no intrinsic worth and is to be rejected out rightly . The august Suprem e 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."
19. We have also noted with disquiet that despite the fact that the occurrence took place at about 1:00 p.m on 10.01.2012, the postmortem examination s of the dead bodies of the deceased were conducted after substantial delay . According to the statement of Dr. Muhammad Yaqoob Kamal (PW-8), the deceased namely Bashir Ahmad son of Allah Daad died at 1.45 p.m on 10.01.2012 , however the postmortem examination of his dead body was conducted on 11.01.2012 at 10.00 a.m. Similarly , according to the post mortem examination report (Exh.PT), the deceased namely Bashiran Bibi wife of Zafar met her death on 10.01.2012 at about 1.00 p.m., however the post mortem examination of her dead body was conducted on 11.01.2012 at 11.00 a.m. Muhammad Hanif son of Allah Daad (PW-4) admitted during cross-examination that the post mortem examinations of the dead bodies was conducted after 24 hours. Zafar Iqbal, SI (PW-9), the Investigating Officer of the case, also stated that the post mortem examinations of the dead bodies of the deceased were delayed and the time and date of receiving the complete documents from the police as mentioned in the post mortem examination report (Exh.PQ) was 11.01.2012 at 01.30 a.m. Dr. Muhammad Yaqoob Kamal (PW-8), who conducted the post mortem examination of the dead body of the deceased namely Bashir Ahmad son of Allah Ditta gave the time between death and post mortem examination as being 20 to 22 hours. Dr. Muhammad Yaqoob Kamal (PW-8) during cross-examination stated as under:- "It is correct that according to PMR the time of death of deceased is mentioned as 01:45 PM.
It is correct that I conducted the autopsy at 10:00 AM on 11.01.2012. It is correct that dead body remained in the dead house almost 20-hours.
It is correct that according to PMR the time elapsed between death and postmortem is 20 to 22 hours."
A perusal of the post mortem examination report (Exh.PT) relating to Bashiran Bibi wife of Zafar (deceased) reveals that the time between death and post mortem examination has been mentioned as within 24 hours. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence while armed were not present at the time of occurrence and the delay in the post mortem examinations was caused in order to procure their attendance and formulate a false account of the incident after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination 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. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" (2012 SCMR 327) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others vs. The State and others" ( 2019 SCMR 956 ) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State"
(2019 SCMR 1068 ) has held as under: "More importantly , the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer , and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer , all reports prepared by the investigating office r are also to be handed over in order to assist in the examination of the dead body .
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly , there is a complete chain of police custody of the dead body , right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly , post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly , post mortem of a deceased person can only be carried out by a notified governme nt Medical Officer; and finally , at the time of handing over the dead body by the police to the Medical Officer , all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body .
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body , that result in the consequential delay of the post mortem examination of the dead person . To repel any adverse inference for such a delay , the prosecution has to provide justifiable reasons therefor , which in the present case is strikingly wanting."
20. The learned Deputy Prosecutor General has contended that the evidence of motive corroborated the ocular account. The motive of the occurrence as stated by the witnesses was that the accused suspected that Bashir Ahmad son of Allah Daad (deceased) and Bashiran Bibi wife of Zafar (deceased) had developed intimacy with each other . No further details of the said motive were mentioned. The husband of Bashiran Bibi namely Zafar Iqbal (DW-1) appeared before the learned trial court and was cross-examined by the learned counsel for the complainant, however not even a bare suggestion was put to the said witness that there was some suspicion with regard to his deceased wife having developed an intimacy with the other deceased namely Bashir Ahmad. Zafar Iqbal, SI (PW-9), the Investigating Officer of the case did not record statement of any witness in support of the alleged motive. The medical officer who conducted the postmortem examination of the deceased namely Bashiran Bibi had taken external and internal vaginal swabs and send the same to the Chemical Examiner and Punjab Forensic Science Agency , Lahore for analysis, however the reports of the said Chemical Examiner and the Punjab Forensic Science Agency , Lahore were never produced before the learned trial court. The prosecution did not produce any evidence, oral or documentary , so as to establish any reason existed with the appellant to murder the deceased. 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 witnesses 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 corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v.
The State ( 2016 SCMR 2021 ) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular acco unt is found to be unreliable then the evidence of motive and recovery have no value and lost their significance.
21. The learned Deputy Prosecutor General has also relied upon the recovery of the Carbine (P-11) made from the appellant. With regard to the recovery of the Carbine (P-11) from the appellant namely Muhammad Hanif son of Noor Muhammad 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 Carbine (P-11) from the appellant namely Muham mad Hanif son of Noor Muhammad 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 Carbine (P-11) from the appellant namely Muhammad Hanif son of Noor Muhammad, 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. PX) which states that the crime empties sent for analysis were fired in the Carbine (P-11) recovered from the possession of the appellant namely Muhammad Hanif son of Noor Muhammad, this Court has noted that the empties were received at the office of Punjab Forensic Science Agency , Lahore on 15.02.2012 , whereas the appellant namely Muhamm ad Hanif son of Noor Muhammad was arrested by Zafar Iqbal, SI (PW-9) on 06.02.2012 . 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 Carbine (P-11) from the appellant does not further the case of the prosecution in any manner and the same cannot be used as a circumstance against the appellant.
22. The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character , cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellant' s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another Vs. The State" ( 2017 SCMR 986 ) has enunciated the following principle of law: "The medical evidence is only confirmator y or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
23. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Hanif son of Noor Muhammad (appellant) in the present case. It is settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State ( 2018 SCMR 772 ) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". 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 ), Muqarab Khanv .The State ( 2009 SCMR 230 ) and Muhammad Zamanv .The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muqarab Khan Vs. the State (2009 SCMR 230 ) in which it has been observed in paragraph No.13 of page 236 as infra: "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
24. For what has been discussed above, Criminal Appeal No.280-J of 2019 lodged by Muhammad Hanif son of Noor Muhammad (appellant) is allowed and the conviction and sentence of Muhammad Hanif son of Noor Muhammad (appellant) awarded by the learned trial court through the impugned judgment dated 30.09.2015 are hereby set-aside. Muhammad Hanif son of Noor Muhammad (appellant) is ordere d to be acquitted by extending him the benefit of doubt. Muhammad Hanif son of Noor Muhammad (appellant) is directed to be released forthwith if not required in any other case.
25. Pursuant to the discussion made and conclusions arrived at above, the Criminal Appeal No.703 of 2015 lodged by Muhammad Hanif son of Allah Daad, the complainant of the case, against the acquittal of the accused namely Manzoor Ahmad, Abdul Manaf, Muhammad Azam, Ijaz and Allah Ditta, and Muhammad Hanif son of Noor Muhammad (convict) with regard to the Qatl-i-Amd of Bashiran Bibi wife of Zafar , is hereby dismissed.
26. Consequently , the Murder Reference No. 82 of 2015 is answered in Negative and the sentence of death awarded to Muhammad Hanif son of Noor Muhammad is Not Confirmed .