JUDGMENT .
SADIQ MAHMUD KHURRAM, J.- Zahid Murad son of Ali Murad (convict) was tried along with his co-accused namely Ali Murad and Shahid Murad ( both since acquitted) by the learned Additional Sessions Judge, Rahim Yar Khan in the case FIR No. 380 of 2015 dated 21.11.2015 registered at Police Station Kot Samaba, District Rahim Yar Khan in respect of offences under sections 302, 148 and 149 PPC for committing the Qatl-i-Amd of Khalil Ahmad son of Haji Khan Muhammad and Qadeer Ahmad son of Rasheed Ahmad (deceased). The learned trial court vide judgment dated 29.01.2018, convicted Zahid Murad son of Ali Murad (convict) and sentenced him as under: Zahid Murad son of Ali Murad: Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Khalil Ahmad son of Haji Khan Muhammad (deceased) and Qadeer Ahmad son of Rasheed Ahmad (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Khalil Ahmad son of Haji Khan Muhammad and Qadeer Ahmad son of Rasheed Ahmad (deceased) and in case of default thereof, the convict was further directed to undergo six mont hs of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
Ali Murad and Shahid Murad, the co-accused of the appellant, were however acquitted by the learned trial court.
Mujahid Murad and Mushahid Murad, other co-accused of the convict were tried separately under the Juvenile Justice System Ordinance, 2000 , being under the age of eighteen years at the time of occurrence and hence "child" within the definition of Juvenile Justice System Ordinance, 2000 . Mujahid Murad was convicted and sentenced to imprisonment for life on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Khalil Ahmad son of Haji Khan Muhammad and Qadeer Ahmad son of Rasheed Ahmad (deceased) and directed to pay Rs.2,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Khalil Ahmad son of Haji Khan Muhammad (deceased) and Qadeer Ahmad son of Rasheed Ahmad (deceased) and in case of default thereof, the he was further directed to undergo six months of simple imprisonment. Mushahid Murad, however was acquitted by the learned trial court .
2. Feeling aggrieved, Zahid Murad son of Ali Murad (convict) lodged Criminal Appeal No.76 of 2018 assailing his conviction and sentences. The learned trial court submitted Murder Reference No.02 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellant namely Zahid Murad son of Ali Murad. We intend to dispose of the Criminal Appeal No. 76 of 2018 and Murder Reference No.02 of 2018 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by Haji Khan Muhammad (PW-1), the complainant of the case, are as under:- "Stated that on 21.11.2015 at 5.00 PM, I was present in my land whereas Khalil and Qadeer deceased were settling the edge of my land when in the meantime Ali Murad while armed with pistol, Zahid Murad armed repeator , Shahid Murad armed with pistol as well as Mujahid and Mushahid while armed pistols came there. They exerted a lalkara that we would not be left alive that day. In the meantime, I made hue and cry upon which Faiz Rasool and Shabbir PWs reached there. Accused Zahid made a fire shot upon my son Khalil deceased on his left arm while Ali Murad made a fire shot which hit Khalil Ahmad on left side of buttock. Accused Shahid made a fire which hit Qadeer on his left side of head. Mujahid made fire which hit on left side of forehead of Qadeer . Then accused Mujahid, Mushahid and Shahid forcibly took my son Khalil Ahmad to their nearby house. Ali Murad and Zahid Murad tried to carry do so as his body was weighty . In the meantime, people of the area started gathering there.
When I, Shabbir and Faiz Rasool tried to rescue the Khalil and Qadeer , accused persons extended threats that we would met the same consequences if we tried to interfere. After gathering of people of locality the accused persons first went to their home and then fled away with their respective weapons. When we took care of Khalil he had succumbed to the injuries whereas Qadeer was lying injured in live condition. In the meantime, police came there on receiving information by someone telephonically . I got recorded my statement Ex.PA to the police which was read over to me and I thumb marked the same 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 Zahid Mura d son of Ali Murad and the co- accused of the appellant namely Ali Murad and Shahid Murad ( both since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 06.05.2016, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as fourteen witnesses recorded. The ocular account of the case was furnished by Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2). Wazeer Ahmad (PW-3) stated that on 22.11.2015 he identified the dead body of the deceased namely Qadeer Ahmad at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police. Lal Bakhsh, (PW-4) stated that on 21.11.2015 he identified the dead body of the deceased namely Khalil Ahmad at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police. Muhammad Ajmal 2016/C (PW-5) stated that on 22.11.2015 the Medical Officer conducted the post mortem examination of the dead body of Qadeer Ahmad (deceased) and handed over the last worn clothes . Muhammad Aslam 1993/C (PW-7) stated that on 21.11.2015 the Medical Officer conducted the post mortem examination of the dead body of Khalil Ahmad (deceased) and handed over the last worn clothes.
Muhammad Anwar Khan, SI (PW-8) stated that on 21.11.2015 he recorded the oral statement (Exh.P A) of Haji Khan Muhammad (PW-1) and also prepared the injury statement of Qadeer Ahma d ( then injured later deceased ) and the inquest report (Exh.PN/1) of the deceased Khalil Ahmad. Muhammad Imran Bashir 6/HC (PW-10) stated that on 21.11.2015 he recorded the formal F.I.R (Exh.P A/1) and on the same day Abbas Akhtar , Inspector (PW-9) , the Investigating Officer of the case, handed over to him two sealed parcels said to contain blood stained earth and two sealed parcels said to contain empties and on 17.12.2015 he handed over the said sealed parcel to Fida Hussain, ASI (PW-14) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore .
Muhammad Imran Bashir 6/HC (PW-10) further stated that on 21.12.2015, Abbas Akhtar , Inspector (PW-9) , the Investigating Officer of the case, handed over to him two sealed parcels said to contain the recovered weapons and on 13.01.2016 he handed over the said parcel to Ghulam Abbas, SI (PW-11) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore . Abdul Sattar Patwari (PW-12) stated that he prepared the scaled site plan of the place of occurrence (Exh.PH/3 and Exh.PH/4). Abbas Akhtar , Inspector (PW-9), the Investigating Officer of the case, investigated the case from 21.11.2015 till 09.07. 2016, arrested the appellant on 09.12.2015, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Haji Ahmad Durrani (PW-6) examined, who on 21.11.2015 was posted as Medical Officer at RHC, Kot Samaba and on the same day conducted the postmortem examination of the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased). Dr. Haji Ahmad Durrani (PW-6) ,on examining the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased) observed as under:- Description of injuries
1. Lacerated wound on middle portion of left fore-arm laterally with inverted margins 7.5 x 4 cm. Slight burning seen around wound. Cartridge was present inside. Left radius wound was fractured at site of injury .No.1 (entry wound).
2. Lacerated wound on middle portion of left forearm medically with everted margins 8 x 5 cm (exit wound).
3. Seven circular penetrating wounds with inverted burned margins close to each other in 6 x 6 cm diameter area on left pelvic area laterally measuring 1 x 1 cm each. Blood oozing out from these wounds ........................................
Opinion: After conducting external and internal post-mortem. examination, I am of the opinion that injuries No.1, 2 & 3 leading to excessive hemorrhage, hemorrhagic shock and caused death in ordinary course of manner . All injuries were caused by fire arm and were ante-mortem in nature."
On the same day Dr. Haji Ahmad Durrani (PW-6) also medically examined Qadeer Ahmad son of Rasheed Ahmad (then injured later deceased) and opined as under:- "Description of Injuries.
1. Circular wound with everted margins right tempral are of head 3 cm from right ear measuring 1.5 x 1.5 cm (exit wound).
2. Circular penetrating wound with inverted margins on left frontal area of head 3 cm from mid line, 8 cm above from left eye brow measuring 1 x 1 cm (entry wound)."
Dr. Haji Ahmad Durrani (PW-6) on 22.11.2015 conducted the postmortem examination of the dead body of Qadeer Ahmad son of Rasheed Ahmad (deceased). Dr. Haji Ahmad Durrani (PW-6) ,on examining the dead body of Qadeer Ahmad son of Rasheed Ahmad (deceased) observed the same injuries as mentioned by him in the Medico Legal Examination Certificate (Exh.PM/1) and opined with regard to the cause of death of Qadeer Ahmad son of Rasheed Ahmad (deceased) as under:- "Opinion: After conducting external and internal post-mortem examination, I am of the opinion that injuries No.1 & 2 leading to head injury and damaged to brain matter caused death. Both injuries No.1 and 2 were caused by fire arm and were ante mortem in nature."
7. On 25.06.2016 the learned ADPP gave up the prosecution witnesses namely Shabbir Ahmed, Ghulam Rasool and Azeem Bakhsh as being unnecessary . On 31.08.2016, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore (Exh.PQ/1) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh.PQ) regarding the analysis of the crime empties and the recovered weapons.
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Zahid Murad son of Ali Murad 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, the appellant namely Zahid Murad son of Ali Murad replied that he had been involved in the case falsely and was innocent. The appellant namely Zahid Murad son of Ali Murad opted not to get himself examined under section 340(2) Cr.P.C. however , got Abdul Hameed 13149/HC (DW-1) examined as a witness in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Rahim Yar Khan, convicted and sentenced the appellant namely Zahid Murad son of Ali Murad as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the 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 statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. 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 Prosecutor General along with the learn ed counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2). They further argued that the recovery of the Repeater gun (P-3) from the appellant namely Zahid Murad son of Ali Murad also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of appeal as lodged by the appellant namely Zahid Murad son of Ali Murad.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial.
13. We have noted with grave anxiety that the ocular account of the occurrence as furnished by the witnesses namely Haji Khan Muhammad (PW-1),father of Khaleel Ahmed (deceased) and Faiz Rasool (PW-2) , maternal nephew and son in law of Haji Khan Muhammad (PW-1), is flawed beyond reparation and has disfigured the appearance of the whole prosecution case beyond restoration and recognition ,burying it deep under the heavy rubble of obscurity . The statements of both the eye witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) are in direct contrast and inconsistent with the observations and the opinion of Dr. Haji Ahmad Durrani (PW-6), who conducted the post mortem examination of the dead bodies of both the deceased namely Qadeer Ahmad son of Rasheed Ahmad and Khaleel Ahmad son of Haji Khan Muhammad. According to the statements of both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) ,they had seen the accused namely Ali Murad (since acquitted) armed with a pistol and firing the same, hitting Khaleel Ahmad (deceased) on the left side of the his buttock, whereas they had seen the accused namely Shahid Murad (since acquitted), armed with a pistol, firing with the same, hitting Qadeer Ahmad (deceased) on the left side of his head and they had seen the accused namely Mujahid Murad (tried separately as a child under the Juvenile Justice System Ordinance 2000 and convicted), armed with a pistol firing at Qadeer Ahmad (deceased) , hitting him on the left side of his forehead . Haji Khan Muhammad (PW -1) in his examination in-chief stated as under:- "Accused Zahid made a fire shot upon my son Khalil deceased on his left arm while Ali Murad made a fire shot which hit Khalil Ahmad on left side of buttock. Accused Shahid made a fire which hit Qadeer on his left side of head . Mujahid made fire which hit on left side of forehead of Qadeer .." (emphasis supplied).
Similarly , Faiz Rasool (PW -2) in his examination in-chief stated as under:- "Zahid Murad made fire shot which hit on the left arm of Khalil Ahmad. Ali Murad made fire shot which hit left side of buttock of Khalil Ahmad. Shahid Murad made a fire shot which hit on the left side of Qadeer Ahmad .
Then Mujahid Murad made a fire which hit left side of fore head of Qadeer Ahmad. (emphasis supplied).
Both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) remained adamant regarding that they had seen the accused namely Ali Murad (since acquitted) armed with a pistol and firing the same, hitting Khaleel Ahmad (deceased) on the left side of the his buttock, whereas they had seen the accused namely Shahid Murad (since acquitted), armed with a pistol, firing with the same, hitting Qadeer Ahmad (deceased) on the left side of his head and they had seen the accused namely Mujahid Murad (tried separately as a child under the Juvenile Justice System Ordinance 2000 and convicted), armed with a pistol firing at Qadeer Ahmad (deceased) , hitting him on the left side of his forehead. Contrary to the said repeated claim of both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2), Dr. Haji Ahmad Durrani (PW-6), who on 21.11.2015 had conducted the postmortem examination of the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased) and on 22.11.2015 had conducted the postmortem examination of the dead body of Qadeer Ahmad (deceased) , stated that he had observed only one entry wound on the dead body of the deceased Qadeer Ahmad, whereas the other wound observed by him on the right temporal region of the dead body of the deceased Qadeer Ahmad was an exit wound. Dr. Haji Ahmad Durrani (PW-6) further stated that he had observed two entry wounds on the dead body of Khalil Ahmad deceased, one of which was present on the left arm, whereas the other was present on the pelvic area. The prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) did not explain as to how the deceased namely Khalil Ahmed received an entry wound on his pelvic area.
Dr. Haji Ahmad Durrani (PW-6) did not observe any entry wound on the left side of the buttock of the dead body of the deceased Khalil Ahmad. Dr. Haji Ahmad Durrani (PW-6) ,on examining the dead body of Khalil Ahmad son of Haji Khan Muhammad (deceased) observed as under:- "Description of injuries
1. Lacerated wound on middle portion of left fore-arm laterally with inverted margins 7.5 x 4 cm. Slight burning seen around wound. Cartridge was present inside. Left radius wound was fractured at site of injury .No.1 (entry wound).
2. Lacerated wound on middle portion of left forearm medically with everted margins 8 x 5 cm (exit wound).
3. Seven circular penetrating wounds with inverted burned margins close to each other in 6 x 6 cm diameter area on left pelvic area laterally measuring 1 x 1 cm each . Blood oozing out from these wounds Dr. Haji Ahmad Durrani (PW-6) while examining Qadeer Ahmad son of Rasheed Ahmad (then injured later deceased) had observed as under:- " Description of Injuries.
1. Circular wound with everted margin s right temporal are of head 3 cm from right ear measuring 1.5 x 1.5 cm (exit wound).
2. Circular penetrating wound with inverted margins on left frontal area of head 3 cm from mid line, 8 cm above from left eye brow measuring 1 x 1 cm (entry wound)." (emphasis supplied) Dr. Haji Ahmad Durrani (PW-6), during cross-examination, further explained as under:- "I did not observe any injury on buttocks of deceased Khalil Ahmad. .......................................................
There was only one entry wound on the body of deceased Qadeer Ahmad at left frontal area of head. The injury No.1 is the exit wound of Injury No.2." (emphasis supplied) .
The said opinion of Dr. Haji Ahmad Durrani (PW-6) that he had observed only one entry wound on the dead body of the deceased Qadeer Ahmad, whereas the other wound observed by him on the right temporal region of the dead body of the deceased Qadeer Ahmad was an exit wound and that he did not observe any entry wound on the left side of the buttock of the dead body of the deceased Khalil Ahmad rather had observed an entry wound on the pelvic region of the dead body of Khalil Ahmad (deceased) , was never challenged by the prosecution either during the investigation of the case or during the course of trial, though the same was in direct disparity with what was stated by the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) . The prosecution very well knew that the observations and opinion of Dr. Haji Ahmad Durrani (PW-6) were in themselves sufficient to bring down the whole edifice of the prosecution case as narrated by the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2), however , even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. Haji Ahmad Durrani (PW-6) or if the same could not be challenged, then to explain the same.
We have noted that during the course of trial the prosecution witnesses failed to explain as to why was there such a huge, gaping and all consuming, inexplicable and baffling error in the statements of the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) who proceeded to attribute causing of injuries by the accused which injuries did not exist and failed to explain an injury which did exist. Despite our repeated queries, both the learned Deputy Prosecu tor General and the learned counsel for the complainant/respondent No.2 have failed to explain the said discrepancies in the prosecution evidence. In this manner , irreconcilable and distressing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) and the medical evidence as furnished by Dr. Haji Ahmad Durrani (PW-6). These contradictions in the ocular account of the occurrence, as narrated by Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) and the medical evidence as furnished by Dr. Haji Ahmad Durrani (PW-6), clearly establish that the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) miserably failed to prove their presence at the place of occurrence , at the time of occurrence. Had the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) seen the occurrence then there did not exist any possibility that they would have fallen into error, stating the detail of the occurrence in a manner which proved to be in direct contrast to the medical evidence brought on record. In this regard guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Amin Ali and another Vs. The State" (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- "11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recover ed from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body . The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries entry is or exit wound.
Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.1S had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound . With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance.
From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner , as alleged by the prosecution. .....................................
13. From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence."
Reliance is also placed on the case of "Mansab Ali Vs. The State" ( 2019 SCMR 1306 ) where the august Supreme Court of Pakistan was pleased to hold as under:-- "2. Prosecution case is structured upon ocular account. According to Muhammad Bilal, PW-6, the appellant made two successive shots on the deceased, first landing on the right arm, while second hitting the back; Muhammad Mansha, PW-7 took the same position. Both of them are in a diametrical conflict with the position taken in the crime report wherein the appellant is assigne d solitary shot landing on the deceased's chest. Confusion is further compounded by the statement of Dr. Javid Ahmed, PW-3, who noted an entry wound on the posterior aspect of left shoulder; the bullet exited from the chest valve; the second fire shot was on the right upper arm with its corresponding exit. This is not in line with the prosecution case that the appellant targeted the chest as the wound noted by the Medical Officer is an exit wound . Both the witnesses have been duly confronted with their deviation from previous statements. From amongst the acquitted accused, Muhammad Yousaf was assigned a club blow to Muhammad Munawar , PW-8, noted by the Medical Officer as a painful swelling; his acquittal went without challenge. The learned Law Officer has not been able either to justify witnesses' departure from previous statements or to explain conflict between ocular account and medical evidence. Though with roles somewhat trivial nonetheless, en bloc acquittal of co-accused on the same evidence is yet another predicament facing the State.
The prosecution case is fraught with doubts, thus it would be unsafe to maintain the conviction. Resultantly , the appeal is allowed, the impugned judgmen t is set aside. The appellant shall be set at liberty forthwith, if not required in any other case." ( emphasis supplied).
14. Another aspect of the case proving the absence of the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) is the fact that according to these witnesses the deceased namely Khaleel Ahmad was dragged to the house of Ali Murad (since acquitted), the co-accused of the appellant, by the accused, whereas a failed attempt was also made to carry Qadeer Ahmad (deceased) to the said house. According to the prosecution witness namely Haji Khan Muhammad (PW-1) his son was dragged up to an area of hundred feet and during the said process the clothes of his son were also torn. Haji Khan Muhammad (PW-1) during cross-examination stated as under:- "My son Khalil Ahmad deceased was dragged from the north side of the Khal towards the south where the house of the accused is situated. The accused persons had taken Khalil Ahmad deceased by lifting him and his one leg was touching the land being dragged . I cannot tell the exact width of khal, however , it may be 2 to 3 feet. I do not remember if the khal was running with water or not at that time. The accused dragged my son up to the 100 feet. During said dragging the body of my son became dirty. I do not know whether the deceased sustained scratches on his body or not? I do not exactly remember if there was a trail of blood or not? During dragging process the clothes of Khalil Ahmad were torn ." (emphasis supplied).
Contrary to this claim of Haji Khan Muhammad (PW-1) , as brought up on record during his cross-examination , Dr. Haji Ahmad Durrani, (PW-6) stated that neither he observed any marks of dragging on the dead body of Khaleel Ahmad (deceased) nor the clothes of the deceased were found to be torn by him at the time of post mortem examination . Dr .Haji Ahmad Durrani, (PW -6) during cross-examination stated as under:- "It is correct that last worn clothes of deceased Khalil Ahmad were not torn. I did not observe any sign of dragging of body of the deceased Khalil Ahmad. Likewise, I did not observe any scratches on his dead body"
Similarly , Muhammad Anwar Khan, SI (PW-8) who recorded the oral statement (Exh.P A) of Haji Khan Muhammad (PW-1) and also prepared the injury statement of Qadeer Ahmad (then injured later deceased) and the inquest report (Exh.PN/1) of the deceased Khalil Ahmad, also stated that he did not observe any marks of dragging on the body of the deceased namely Khaleel Ahmed. Muhammad Anwar Khan, SI (PW-8), during cross-examination, stated as under:- "I did not observe any scratches on the body of the deceased and signs of dragging."
Likewise, Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, also admitted that at the time of his visit to the place of occurrence, he did not observe any trail of blood leading from the place where Khaleel Ahmad (deceased) had received the injuries to the place where the dead body of the (deceased) was found laying by him.
Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, did not collect any blood stained earth from the place where the dead body of Khalee l Ahmad (deceased) was found which fact also denudes the falsity of the claim of the prosecution witnesses that Khaleel Ahmad (deceased) was dragged to the house of Ali Murad (since acquitted) by the accused after he had been fired upon. Being conscious of this flaw in the prosecution evidence, Faiz Rasool (PW-2) tried to explain that it actually Khaleel Ahmad (deceased) was not dragged rather lifted from the place of receiving the fire to the place where his dead body was found, however was exposed to have made an improvement to his previous statement in order to bring the same in line with the other pieces of evidence available on record. Faiz Rasool (PW-2) during cross-examination was confronted with the improvement he had made in his statement and was confronted as under:- "It is correct that I have got recorded to the police that the accused lifted the deceased Khalil Ahmad (confronted with Ex.DA where it is not so recorded))"
Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, was also found guilty of trying to bring in line the narrative of the prosecution case with the other pieces of evidence available on record, however he too was confronted and his failing effort to prop up the prosecution case was brought on record. Abbas Akhtar Inspector (PW-9), the Investigating Of ficer of the case, during cross-examination admitted as under:- "I did not observe any signs of dragg ing or trail of blood , volunteered, the accused persons took the dead body of deceased Khalil while up lifting him to their house from the place of occurrence. PWs Shabbir Ahmad and Faiz Rasool got recorded in their statement on 21.11.2015 to me that the accused persons took the body of deceased Khalil while dragging him, volunteered, it is clerical mistake. I have not corrected this clerical mistake till today . No PW has told me that the dead body of deceased Khalil Ahmad was taken by the accused persons while up lifting him from the place of occurrence. " (emphasis supplied)
As mentioned above, it was claimed by the prosecution witnesses that the deceased namely Khaleel Ahmad was dragged to the house of Ali Murad (since acquitted), the co-accused of the appellant, by the accused. We have already stated that neither Muhammad Anwar Khan, SI (PW-8) who had recorded the oral statement (Exh.P A) of Haji Khan Muhammad (PW-1) and also prepared the inquest report (Exh.PN/1) of the deceased Khalil Ahmad nor Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, collected any blood stained earth from the place where the dead body of the dece ased namely Khaleel Ahmed was allegedly taken by the accused nor observed the presence of any blood in the intervening area from where Khalil Ahmad (deceased) had received the injuries to the place where his dead body was found present, though the same should have been present and observed, if the narrative of the prosecution witnesses was true with regard to taking of Khalil Ahmad (deceased) from one place to another .. Furthermore, according to Muhammad Anwar Khan, SI (PW-8), at the time of preparation of the inquest report (Exh.PN/ 1), the dead body was found laying in an open place and not in the house of Ali Murad (since acquitted). Muhammad Anwar Khan, SI (PW -8) during cross-examination stated as under:- "I took into possession the dead body of Khalil Ahmad deceased from the place of occurrence which was open place."
Abdul Sattar Patwari (PW-12) also admitted during cross-examination that in the scaled site plan of the place of occurrence (Exh.PH/3) he had not marked the house of the accused. Abdul Sattar (PW-12) during cross- examination admitted as under:- "I did not mention house of the accused persons in Ex.PH/3. I cannot tell the dista nce between house of accused and place of occurrence, volunteered, I had prepared the scaled site plan of the place of occurrence having no concern with other areas, therefore, I have not mentioned house of accused in the scaled site plan. Point No.10 has been shown a place out of a house where the dead body of deceased was shifted by dragging it. I have not mentioned the said house in the scaled site plan."
We have also noted that Haji Khan Muhammad (PW-1) claimed that at the time when Qadeer Ahmad (deceased) was being dragged, though he could not be, the said act was witnessed by as many as 60/70 people, however Faiz Rasool (PW-2) during cross-examination denied the arrival of the said number of people at the place of occurrence at the time when Qadeer Ahmad (deceased) was being dragged. Furthermore, none of these persons joined the investigation of the case and Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case did not record any statement of any such witness during the investigation of the case.
15. We have also been quite distressed by the fact that though it was claimed by the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) that they were present at the place of occurrence and had witnessed the same, however none of them attempted to take Qadeer Ahmad (deceased), who then was in an injured condition, to the hospital. According to prosecution witnesses the occurrence took place at about 5.00 p.m, whereas the police arrived at the place of occurrence at 7.00 p.m, however in the intervening two hours no effort was made to take Qadeer Ahmad (deceased) to the hospital and he remained bleeding at the place of occurrence as many as two hours . According to the proceedings recorded on the oral statement (Exh.P A) of Haji Khan Muhammad (PW-1), the same was recorded by Muhammad Anwar Khan, SI (PW-8) at the place of occurrence at 7.00 p.m and thereafter he prepared the injury statement (Exh.PM) of Qadeer Ahmad (deceased). This failure of the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) to take Qadeer Ahmad (deceased) to the hospital for as many as two hours clearly establishes the fact that they were not present there, otherwise Qadeer Ahmad (deceased) would not have been left bleeding at the place of occurrence. Haji Khan Muhammad (PW -1) during cross-examination stated as under:- " Qadeer was shifted to the hospital after the arrival of the police at the spot . Police prepared injury statement of Qadeer deceased at the spot. Police shifted Qadeer to hospital on wagon . I do not know whether deceased was referred to Sh. Zayed hospital Rahimyarkhan or RHC Kot Samaba. Qadeer was shifted to hospital on official vehicle of police. Qadeer was lying on northern side of said watercourse in injured condition ." (emphasis supplied)
This conduct of the witnesses wherein they made no effort to take the then injured Qadeer Ahmad (deceased) to the hospital also convincingly establishes that the said witnesses were not present. The august Supreme Court of Pakistan in the case of " Abdul Jabbar alias Jabbari v . The State" ( 2017 SCMR 1 155) has observed as under: "The Medico-legal Certificate issued in respect of Manzoor Ahmed deceased when he was alive shows that the injured victim was brought to the hospital not by the above mentioned eye-witnesses but by a police official which showed that in all likelihood the said eye-witnesses had been procured and planted in this case at some subsequent stage."
The august Supreme Court of Pakistan in the case of "Zaheer Sadiq v. Muhammad Ijaz and others" (2017 SCMR 2007 ) has observed as under: "The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police."
Reliance is also placed on the case of Muhammad Sharifan Bibi vs. Muhammad Yasin and others ( 2012 SCMR 82 ) wherein the august Supreme Court of Pakistan held as under:- "Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for postmortem examination."
16. Another aspect of the case piquing our concern is the narrative of the witnesse s namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) that the occurrence took place at a distance of two acres from their houses at a time when both the deceased namely Qadeer Ahmad and Khaleel Ahmad were preparing their land for the purpose of sowing wheat crop. Haji Khan Muhammad (PW-1) claimed that the place of occurrence was under his cultivation and not one Aslam Bappar . Haji Khan Muhammad (PW -1) during cross-examination stated as under:- " I have got recorded in my statement Ex.PA that I was present in my land (confronted with Ex.P A where it is not so recorded ). ......................................
It is incorrect to suggest that the place of occurrence was under cultivation of one Aslam Bappar as lessee volunteered, Aslam Bappar is lessee of my brothers namely Abdul Razzaq, Gul Muhammad and Lal Bakhsh. ......................................
My house is situated at a distance of two acres from the place of occurrence." (emphasis supplied).
Contrary to the statement of Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) stated that the place of occurrence was being cultivated by Aslam Bappar since 4/5 years before the occurrence took place. Faiz Rasool (PW-2) during cross-examination admitted as under:- "At the time of occurrence, the land of my uncles was cultivated by Aslam Bappar . Aslam Bappar is cultivating the land since 4/5 years when the occurrence took place. The land where occurrence took place is owned by my uncle Abdul Razzaq.
My house is situated at distance of two and a half acre from the place of occurrence ." (emphasis supplied)
Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, also admitted that during the investigation of the case he recorded the statements of the witnesses who stated that the place of occurrence was being cultivated by Aslam Bappar . During cross-examination Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, stated as under:- " I recorded the statement of Azeem Bakhsh s/o Bashir Ahmad on 21.11.2015. Said Azeem Bakhsh got recorded in his statement that land of place of occurrence was on lease with one Aslam Bapper".
The above referred portion of the cross-examination of Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) clearly establishes the fact that the place of occurrence was being cultivated by Aslam Bappar and there existed no reason for either the witnesses or the deceased to have been present at the place of occurrence ,prior to the occurrence, for the purpose of preparing the land for sowing the wheat crop, a land which was not even being cultivated by them. Additionally , we have also noted that no hoes used by the deceased Khalil Ahmad (deceased) or Qadeer Ahmad (deceased) to prepare the land for cultivation were observed or taken into possession at the place of occurrence by Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, when he visited the place of occurrence. According to the statements of the prosecution witnesses, Abbas Akhtar Inspector (PW-9) , the Investigating Officer of the case, arrived at the place of occurrence soon after the happening of the same and in that manner the said hoes must have been present at the place of occurrence if the said claim of the prosecution witnesses was true, however , Abbas Akhtar Inspector (PW-9) , the Investigating Officer of the case, did not observe the presence of said hoes at the place of occurrence during his visit. Both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) also did not produce the said hoes before Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, during the investigation of the case or before the learned trial court.
Abbas Akhtar Inspector (PW-9), the Investigating Officer of the case, during the cross-examination stated as under:- "I have not taken into possession any hoes (Kassles) nor the same were produced to me by the complainant party "
Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) also admitted that no hoes were produced before the Investigating Officer of the case. The absence of the said hoes, at the place of occurrence, which were allegedly being used by the deceased for preparing the land, denudes the fact that both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) developed a false narrative to provid e the reason for their arrival at the place of occurrence and were exposed badly in their endeavour . We have also noted that Muhammad Anwar Khan, SI (PW-8) prepared the inquest report (Exh.PN/1) relating to the Khaleel Ahmad (deceased) , after his arrival at the place of occurrence , however , while preparing the same, neither in column No.4 nor at page 4 of the inquest report (Exh.PN/1), the names of both the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) are mentioned. These omissions strike at the roots of the case of the prosecution and lay bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence, at the time of occurrence. All these omissions are cons picuous by their absence. In absence of any 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 cases of "Muhammad Rafiq v. State" (2014 SCMR 1698 ), "Usman alias Kaloo v. State" (2017 SCMR 622 ) and "Nasrullah alias Nasro v . The State" ( 2017 SCMR 724 ).
17. We have also noted that Muhammad Anwar Khan, SI (PW-8) got information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) had told him about the occurrence. The oral statement (Exh.P A) of Haji Khan Muhammad (PW-1) was recorded at 7.00 p.m by Muhammad Anwar Khan, SI (PW-8), whereas the occurrence had taken place at 5.00 p.m. We have also observed with grave concern that none of the witnesses including Haji Khan Muhammad (PW- 1) and Faiz Rasool (PW-2) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Muhammad Anwar Khan, SI (PW-8),at the place of occurrence on his own despite the fact that Qadeer Ahmad (deceased) was injured and alive. The august Supreme Court of Pakistan in the case of "Abdul dlabbar alias dlabbari v . The State" ( 2017 SCMR 1 155) has observed as under: "An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
18. We have also noted that Haji Khan Muhammad (PW-1) stated that accused had fired at the deceased from a distance of 100 feet, however , Dr.Haji Ahmad Durrani (PW-6) opined that the injuries suffered by the deceased namely Khaleel Ahmad (deceased) had been caused from a distance of about 4 to 5 feet as he had observed burning around the wounds. Haji Khan Muhammad (PW -1) during cross-examination stated as under"- "The accused came from the southern side they started firing from a distance of 100 feet." Contrary to the above statement of Haji Khan Muhammad (PW-1) that the deceased namely Khaleel Ahmad (deceased) had been fired from a distance of 100 feet, Dr . Haji Ahmad Durrani (PW -6) opined as under:- "Injuries No.1 and 3 are result of straight fires. Injuries No.1 and 3 might be caused within a distance of 4/5 feet."
(emphasis supplied)
This opinion of Dr. Haji Ahmad Durrani (PW-6) also proves that no reliance can be placed on the statements of Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) . In such a case the ocular account is to be rejected as being contrary to the medical evidence. Reliance is placed on Barkat Ali Vs. Muhammad Asif and others (2007 SCMR 1812 ) wherein it has been observed as infra: - "It is an admitted fact that eye-witnesses had stated that the deceased was hit by the respondents at about 30/35 feet whereas according to the medical report, there was burning and blackening as is evident from the statement of P.W.2, therefore, ocular account furnished by the two eye-witnesses is not in consonance with the medical evidence which clearly contradicts the statement of the eye-witnesses. It is a settled law that blackening appears on the dead body in case the decease d has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292 , Sain Dad's case 1972 SCMR 74 and Zardshad' s case 1969 SCMR 644."
Reliance is also placed on Muhammad Zaman Vs. The State and others (2014 SCMR 749) wherein it has been observed as under: - "Let us assume that F.I.R., whose maker passed away before his examination in the court, cannot be looked into for any purpose yet the prosecution version neither rings true nor inspires confidence when a firearm entry wound found on the person of P.W. No.5 caused by a shot fired from a distance of 13 feet was accompanied by blackening which is not possible beyond 3 feet. Especially when it has never been the case of the P.W. that any of the assailants fired at him from a close or contact range. In Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 354, it has been held that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet". Improvements and afterthoughts introduced to bring the ocular account in tune with the medical evidence which too tend to damage evidentiary worth of the evidence."
Reliance is also placed on the case of Faiz Meeran vs. Muhammad Khan and others (2016 SCMR 1456 ) wherein it has been observed as under: - "The said allegation leveled against respondents Nos. 1 and 2 was not supported by the medical evidence because according to the eyewitnesses produced by the prosecution respondents Nos. 1 and 2 had fired at and injured Muhammad Arif (PW7) from a distance of thirty-five feet but the medical evidence had shown availability of burning on the relevant injuries which was not possible from a distance of thirty-five feet."
19. We have already mentioned that along with the appellant his co-accused namely Ali Murad and Shahid Murad ( both since acquitted) were also tried . The learned trial court acquitted the above mentioned co-accused namely Ali Murad and Shahid Murad (both since acquitted) of the charges. We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co-accused of the appellant , who have stated that the acquittal of Ali Murad and Shahid Murad (both since acquitted) had attained finality as the Criminal Appeal No. 156 of 2018 lodged by Haji Khan Muhammad (PW-1) assailing the acquittal of Ali Murad and Shahid Murad ( both since acquitted) was dismissed by this Court vide order dated 19.10.2020 and the matter was not agitated any further . The question for determination before this Court now is that whether the evidence of the prosecution witnesses which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected. " If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence canno t be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: - "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony .
The very fact that there is a whole chapter , numbered XI, dedicated to such offenc es amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XW titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments. ................................................
Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country . A court of law cannot permit something which the law expressly forbids. .............................................. ..............................................
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society . Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury ."
Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) , the eye witnesses of the occurrence. Haji Khan Muhammad (PW-1) during his statement before the learned trial court got recorded as under:- "Accused Zahid made a fire shot upon my son Khalil deceased on his left arm while Ali Murad made a fire shot which hit Khalil Ahmad on left side of buttock. Accused Shahid made a fire which hit Qadeer on his left side of head. Mujahid made fire which hit on left side of forehead of Qadeer .."(emphasis supplied) .
Similarly , Faiz Rasool (PW -2) in his examination in-chief stated as under:- "Zahid Murad made fire shot which hit on the left arm of Khalil Ahmad. Ali Murad made fire shot which hit left side of buttock of Khalil Ahmad. Shahid Murad made a fire shot which hit on the left side of Qadeer Ahmad. Then Mujahid Murad made a fire which hit left side of fore head of Qadeer Ahmad .(emphasis supplied) .
Both the prosecution witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) attributed causing of firearm injuries to the deceased by Ali Murad and Shahid Murad (both since acquitted), however both the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) were found to have made false statements with regard to Ali Murad and Shahid Murad ( both since acquitted), the co-accused of the appellant. We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appellant from the case of the acquitted co-accused namely Ali Murad and Shahid Murad as the prosecution evidence with regard to the appellant and with regard to his co-accused namely Ali Murad and Shahid Murad ( both since acquitted) is similar . We find no reason to believe the statements of the witnesses namely Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) with regard to the appellant in absence of any reason to do so. This lying on part of the witnesses with regard to Ali Murad and Shahid Murad (both since acquitted) the co-accused of the appellan t ,has vitiated our trust in them. We are thus satisfied that the evidence of Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) has no worth and deserves outright rejection. Reliance in this regard is placed on the case of Tariq Vs. The State (2017 SCMR 1672 ) wherein the august Supreme Court of Pakistan has held as under: - "So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity , being double edge, could be reason for false implication of the appellant."
Reliance in this regard is also placed on the case of MUNIR AHMED and others Vs. the State and others (2019 SCMR 2006 ) wherein the august Supreme Court of Pakistan has held as under:- "Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury , notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity , it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the decease d and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitione rs and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurre nce did not place in the manner as is alleged in the crime report; argume nt that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently , Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case."
Reliance is also placed on the case of SAFDAR ABBAS and others Versus The STATE and others (2020 SCMR 219 ) wherein the august Supreme Court of Pakistan has held as under: - "Petitioners' father , namely , Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-ac cused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequen tial. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case."
20. Learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the Repeater gun 12-bore (P-3) made from the appellant and the report of the Punjab Forensic Science Agency , Lahore (Exh.PQ). The recovery of the Repeater gun 12-bore (P-3) from the appellant namely Zahid Murad cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the Repeater gun 12-bore (P-3) from the appellant namely Zahid Murad which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898.Faiz Rasool (PW-2) during cross-examination admitted as under:- " No person of the vicinity was associated with the recovery proceedings" Therefore the evidence of the recovery of the Repeater gun 12-bore (P-3) from the appellant cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. 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 associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr .P.C. had flagrantly been violated in that regard."
Furthermore, according to the prosecution witnesses the recovery of the Repeater gun 12-bore (P-3) from the appellant was made on 21.12.2015 from the same house which the police had gone to on the very day of occurrence. Haji Khan Muhammad (PW-1) and Faiz Rasool (PW-2) both admitted during cross-examination that on 21.11.2015 , the police had entered the house of Ali Murad (since acquitted), the same house from where it was alleged that the appellant got recovered the Repeater gun 12- bore (P-3) on 21.12.2015 . Haji Khan Muhammad (PW-1) also admitted during cross-examination that since the day of occurren ce the house from where the Repeater gun 12-bore (P-3) was recovered had been vacant and also admitted that the police might have taken weapons from the house of the accused on the day of occurrence. During cross-examination Haji Khan Muhammad (PW -1) stated as under:- " It is correct that no person is residing in the house of accused Ali Murad since the day of occurrence. It is correct that the house of accused Ali Murad is lying barren since the day of occurrence. Police might have taken licensed shot gun and pistol from the house of Ali Murad on day of occurrence" (emphasis supplied).
Moreover , the appellant namely Zahid Murad was arrested on 09.12.2015 , however the empties taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency , Lahore on 18.12.2015 and there was no reason for keeping the empties which were taken into possession on 21.11.2015 at the Police Station and not sending them to the office of Punjab Forensic Science Agency , Lahore till 18.12.2015 i.e. nine days after the arrest of the appellant. In this manner the said report of Punjab Forensic Science Agency , Lahore. (Exh. PQ) has no evidentiary value as possibility of fabrication is apparent. 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 Repeater gun 12-bore (P-3) from the appellant namely Zahid Murad does not further the case of prosecution in any manner . In view of the above mentioned facts, the recovery of the Repeater gun 12- bore (P-3) from the appellant namely Zahid Murad is not proved and the same cannot be used as a circumstance against the appellant.
21. Learned Deputy Prosecutor General and the learned counsel for the complainant have admitted that during the course of trial the prosecution witnesses did not give any evidence as to what was the motive of the occurrence.
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Zahid Murad son of Ali Murad in the present case. It is a 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 ), Muhammad Akramv .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 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."
23. For what has been discussed above, the Criminal Appeal No.76 of 2018 lodged by Zahid Murad son of Ali Murad (appellant) is allowed and the conviction and sentence of the appellant namely Zahid Murad son of Ali Murad awarded by the learned trial court through the impugned judgment dated 29.01.2018 are hereby set-aside.
Zahid Murad son of Ali Murad (appellant) is ordered to be acquitted by extending him the benefit of doubt. Zahid Murad son of Ali Murad (appellant) is in custody and he is directed to be released forthwith if not required in any other case.
24. Murder Reference No.02 of 2018 is answered in Negative and the death sentence awarded to Zahid Murad son of Ali Murad is Not Confirmed .