SADIQ MAHMUD KHURRAM, J. Javaid son of Muhammad Boota (convict) was tried along with Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobeen, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali, the co-accused of the convict, all since acquitted, by the learned Additional Sessions Judge, Lahore in the case F.I.R. No. 651 of 2012 dated 15.08.2012 registered in respect of offences under sections 302, 452,148 and 149 P.P.C. at the Police Station City Raiwind, District Lahore for committing the Qatl-i-Amd of Farman Ali son of Muhammad Anwar (deceased). The learned trial court vide judgment dated 03.10.2018, convicted Javaid son of Muhammad Boota (convict) and sentenced him as under: Javaid son of Muhammad Boota: Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Farman Ali son of Muhammad Anwar (deceased) and directed to pay Rs.800,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
The convict was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898.
The convict was, however , acquitted from the charges under sections 452,148 and 149 P .P.C.
Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobee n, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali, the co-accused of the convict, were acquitted by the learned trial court.
2. Feeling aggrieved, Javaid son of Muhammad Boota (convict) lodged the Criminal Appeal No. 240557 of 2018, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.323 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Javaid son of Muhammad Boota. We intend to dispose of the Criminal Appeal No. 240557 of 2018 and the Murder Reference No.323 of 2018 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as narrated by Ghulam Abbas (PW-2) , the complainant of the case are as under:- "27/28 months before at about 06.00/07.00 p.m. a quarrel took place between Mst. Sajida Bibi and his mother Mst.
Bavi in our house situated at Unchay Ladhayke. I came in the house and reprimanded Mst. Sajida Bibi as well as Mst. Bavi. Then Mst. Sajida Bibi made telephonic call to her family and inform ed about the quarrel. At about 10.00/1 1.00 p.m. Muhammad Boota, Javaid, Waqas, Sajjad, Abbas, Naveed and 3/4 other persons came to our house. Muhammad Boota raised lalkara that they be killed, on which Javaid made fire which hit on the chest of my brother Farman Ali on left side. Then Sajjad made fire which landed on the right flank of Farman Ali. Naveed and other persons also made firing and threatened that whoever will move will be killed. Then accused went out while making firing. Accused have come on a Toyota. When accused tied to escape from place of occurrence, they were apprehended by people of village. I made telephonic call on 15 and informed them about the occurrence. Police reached the place of occurrence in 30/45 minutes. I made application Ex. P.A. to police for registration of case, which was thumb marked by me. W e took Farman Ali to hospital but he died on the way ."
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. The learned trial court framed the charge against the accused on 30.08.2014, 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 Mst. Mumtaz Bibi (PW-1),Ghulam Abbas (PW-2) and Qadir Ali (PW-3).
Syed Muhammad Younis Bukhari, Draftsman (PW-4) prepared the scaled site plan of the place of occurrence (Exh.
P.D.). Muhammad Sharif , A.S.I. (PW-5) stated that on 15.08.2012, the Investigat ing Officer of the case , handed over three sealed parcels said to contain the blood stained earth , empties and a piece of a bullet recovered from the place of occurrence and on 17.08.2012, the Investigating Officer of the case, handed over to him a sealed parcel said to contain a gun and on 27.08.2012, he handed over all the sealed parcels to Basharat Ali 3628/C (PW- 6) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Muhammad Sharif , A.S.I. (PW-5), further stated that on 28.08.2012, the Investigating Officer of the case, handed over to him a sealed parcel said to contain a pistol which on 30.08.2012 he handed over the said parcel to Basharat Ali 3628/C (PW-6) for its onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Allah Ditta 12916/C (PW- 7) stated that on 15.08.2012 the Investigating Officer of the case , handed over to him the dead body of the deceased for escorting the same to the hospital and the Medical Officer handed over to him the last worn clothes of the deceased after post mortem examination. Amjad Ali, SI (PW-9) stated that on 15.08.2012, he recorded the formal F.I.R (Exh. P.H.). Gulzar Ahmd, SI (PW-10) stated that on 15.08.2012, he received the application (Exh.
P.A.) of Ghulam Abbas (PW-2) and sent the same to the Police Station for the registration of the F.I.R. Muhammad Akram (PW-12) stated that he identified the dead body of the deceased. Muhammad Sarwar , SI (PW-14) investigated the case from 15.08.2012 till 31.08.2012 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. Iftikhar (PW-11) examined, who on 15.08.2012, was posted at the Department of Forensic Medicine at Allama Iqbal Medical College,Lahore and on the same day conducted the postmortem examination of the dead body of Farman Ali son of Muhammad Anwar (deceased). Dr. Iftikhar (PW-11), on examining the dead body of Farman Ali son of Muhammad Anwar (deceased) observed as under:- "INJURIES: Injury No. 1: Entry wound 2 x 1.5 cm with collar of abrasion on mid epigastrum, 16-cm from right nipple and 17-cm from umbilical Injury No.2-A: Entry wound 1.5 x 1.7 cm on left to injury No.1 i.e. 12-cm from left nipple and 7-cm from umbilical.
Injury No.2-B: Exit wound 1.5 x 1 cm on lateral side of abdomen.
OPINION.
The autopsy findings revealed that all injuries were ante-mortem caused by firearm. The injury No.1 caused damage to vital organs i.e. liver and major blood vessels that caused severe hemorrhage shock and death in ordinary course of nature."
7. On 08.12.2016, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Liaqat Ali, Mst. Bavi Bibi,Ghulam Murtaza and Muhammad Amin as being unnecessary . On 21.09.2015, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Akhtar , A.S.I. and Muhammad Sharif 5199/C as being unnecessary . On 17.04.2017, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency , Lahore (Exh. P .U. and Exh. P .V.).
8. After the closure of prosecution evidence, the learned trial court examined the accused under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, the appellant namely Javaid son of Muhamm ad Boota replied that he had been involved in the case falsely and was innocent. The appellant namely Javaid son of Muhammad Boota opted not to get himself examined under section 340(2) Cr .P.C. and did not adduce any evidence in his defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Lahore convicted and sentenced the appellant namely Javaid son of Muhammad Boota 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 submitted that the recoveries made in the case were full of procedural defects, of no legal worth and value, and were the result of fake proce edings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitte d that the prosecution had 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 for the complainant, contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned coun sel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Javaid son of Muhammad Boota. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that the medical eviden ce also corroborated the statements of Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) . The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the pistol (P-7) from the appellant namely Javaid son of Muhammad Boota and the report of Punjab Forensic Science Agency , Lahore (Exh. P.V.) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant, 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 along with the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Javaid son of Muhammad Boota.
12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the eyewitnesses of the occurrence. The relationship of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , with the deceased, is on record. Farman Ali (deceased) was the husband of Mst. Mumtaz Bibi (PW-1) and the real brother of Ghulam Abbas (PW-2) and Qadir Ali (PW-3). The prosecution witness namely Mst. Mumtaz Bibi (PW-1) during cross-examination explained as under:- "Ghulam Abbas complainant is real brothe r of deceased. Mst. Bavi Bibi is mother of deceased. Qadir Ali and Liaqat Ali are brothers of deceased. Mst. Bashiran Bibi is wife of Ghulam Abbas complainant. Ghulam Murtaza PW is cousin of deceased. Amin and Akram PWs are maternal uncles (Mamo) of deceased."
Though it is also a fact that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) lived in the same house as the deceased and the occurrence had also taken place in the courtyard of the said house, but a scrutiny of the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadi r Ali (PW-3) reveals that they failed to prove the facts in issue and their evidence was proved to be inconsistent as well as worthy of no reliance. At the very outset, it is obvious from the perusal of the written application (Exh. P.A.) submitted by the prosecution witness namely Ghulam Abbas (PW-2) for the registration of the F.I.R that the time of occurrence was not mentioned in the same, though it had been mentioned that the occurrence had taken place on 14.08.2012. While appearing before the learned trial court, the prosecution witness namely Ghulam Abbas (PW-2) improved upon his statement and stated that the occurrence had taken place at about 10/11.00 p.m. on the night of 14th August, 2012, however was duly confronted with his application (Exh. P.A.) submitted by him for the registration of the F.I.R and the learned trial court observed as under:- "I mentioned in Ex PA that occurrence took place at 10.00/1 1.00 p.m. Confronted with Ex. P.A. where it is not so recorded."
Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case also admitted that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) did not mention the time of occurrence as long as he continued the investigation of the case. During cross-examination Muhammad Sarwar , SI (PW-14), the Investigating Of ficer of the case, explained as under:- "No time of occurrence is mentioned in complaint as well as in F.I.R. Supplementary statement of complainant was recorded by me. Complainant has also not mentioned time of occurrence in supplementary statement. During whole investigation, complainant has not told the time of occurrence." (emphasis supplied)
In this manner , it was brought on record that at the time of the submission of the written application (Exh. P.A.) for the registration of the F.I.R , and even during the whole investigation of the case, the time of occurrence was not mentioned by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) . Had the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) witnessed the occurrence then they definitely would have given the time when the same had taken place, but their failure in this regard proves that they had not seen the occurrence. Comp ounding further the matter is the fact that none of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3), in their statements recorded by the Investigating Officer of the case or in their statements recorded by the learned trial court , stated that there existe d any light source which was lit at the place of occurrence , at the time of occurrence, which occurrence was admittedly taking place at dead of the night, which could have enabled the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) to have witnessed the occurrence and observe the details thereof. The Investigating Officer of the case, also did not take into possession any such source of light which was available and lit at the place of occurrence, at the time of occurrence, which could have enabled the prosecution witnesses namely Mst. Mum taz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) to observe the occurrence. The prosecution witness namely Mst. Mumtaz Bibi (PW-1) during cross-examination candidly admitted to the said omission in mentioning the source of light available at the place of occurrence and stated as under:- "I have not stated the source of light in my examination in chief"
We have also ourselves perused the scaled site plan of the place of occurrence (Exh. P.D.) as prepared by the Syed Muhammad Younis Bukhari, Draftsman (PW-4) and the rough site plan of the place of occurrence (Exh. P.P.) as prepared by the Muhammad Sarwar , SI (PW-14) and have noted that no source of light was mentioned in the said site plans (Exh. P.D. and Exh. P.P.) so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailants, despite the fact that as per prosecution' s own claim ,the occurrence had taken place during the night. The prosecution failed to establish the fact of such availability of any light source and in the absence of their ability to do so, we cannot presume the existence of such a light source on our own. The absence of any light source has put the whole prosecution case in murk. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11.45 p.m. during the fatefu l night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised"
Reliance is also placed on the case of "Hameed Gul v. Tahir and two others" (2006 SCMR 1628 ) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurren ce. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along."
Reliance is also placed on the case of "Basar Vs. Zulfiqar Ali and others" (2010 SCMR 1972 ) wherein the august Supreme Court of Pakistan observed as under:- "7. It is also alleged by the prosecutio n that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt."
Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:- "It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the F.I.R. no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."
Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the F.I.R. the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer ."
15. We have also noted that according to the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the motive of the occurrence was that the prosecution witness namely Ghulam Abbas (PW-2) had reprimanded Mst. Sajida Bibi (since acquitted), the sister of the appellant and it was Mst. Sajida Bibi (since acquitted) who told her parents about the said act of the prosecution witness namely Ghulam Abbas (PW-2), who thereafter arrived at the place of occurrence along with the appellant. The prosecution witness namely Ghulam Abbas (PW -2) in his statement before the learned trial court stated as under:- "I came in the house and reprimanded Mst. Sajida Bibi as well as Mst. Bavi. Then Mst. Sajida Bibi made telephonic call to her family and informed about the quarrel. "
Similar statements were made by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1) and Qadir Ali (PW- 3). In these circumstances, the prosecution witness namely Ghulam Abbas (PW-2) should have been the prime target of the assailants. Furthermore, according to the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the prosecution witness namely Ghulam Abbas (PW-2) was in clear view, at a meagre distance, from the assailants and unarmed whereas the accused were allegedly armed with various firearm weapons. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellant or his co-accused for not doing away with the prosecution witness namely Ghulam Abbas (PW-2) , their main adversary , who at the time of occurrence, was present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the prosecution witness namely Ghulam Abbas (PW-2) was present . The prosecution witness namely Mst. Mumtaz Bibi (PW-1) during cross-examination stated as under:- "There was no dispute or quarrel between Farman Ali deceased and accused Mst. Sajida Bibi. Similarly , accused Muhammad Boota was having no dispute with the deceased before the occurrence.
Both Ghulam Abbas and Farman Ali were sitting at a distance of 3/4 feet from each other at the time of occurrence ."
The prosecution witness namely Ghulam Abbas (PW -2) admitted during cross-examination as under:- "I was also towards Northern side of tree. Distance between me and Farman Ali at the time of occurrence was 4/5 feet. "
In this scenario, it is hard to believe that the prosecution witness namely Ghulam Abbas (PW-2) would have been shown the courtesy of being not fired at all, when Ghulam Abbas (PW-2) should have been the prime target of the assailants . In the midst of firing by so many accused persons, the prosecution witness namely Ghulam Abbas (PW-2) did not receive even a single scratch on his body during the whole occurr ence. If the prosecution witness namely Ghulam Abbas (PW-2) had been present in the view of the assailants, then he would not have been spared. Blessing the prosecution witness namely Ghulam Abbas (PW-2) with such an incredible consideration and showing him such favour , the person with whom the assailants had a direct dispute with, is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant and his co-accused did not cause any injury to them. Such behaviour , on part of the accused as deposed by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) runs counter to natural human conduct and behaviour . Article 129 of the Qanun-e-Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that the conduct of the assailants, as deposed to by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3), was opposed to the common course of natural events and human conduct. Hence, we are holding that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgments has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses had not witnessed the occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1 170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellan t did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P .Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707 ) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst.
Rukhsana Begum & others v . Sajjad & others ( 2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the F.I.R., all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other P.W.s were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
16. Another aspect of the case brought on the record is that Muhammad Sarwar , SI (PW-14) , the Investigating Officer of the case , at the time of his visit to the place of occurrence , recovered and took into possession three empty shells of 9mm bore from the roof of the house, in the courtyard of which house the occurrence had taken place, the place where the prosecution witness namely Ghulam Abbas (PW-2) was present during the occurrence.
During cross-examination Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case, explained as under:- "I have collected three crime empties of 9-mm from the roof of house i.e. place of occurrence.
In un-scaled site plan, I have mentioned that at the time of occurrence, complainant was present at roof of house.
Complainant was present on the roof from where come empties were taken into possession by me."
(emphasis supplied)
It had not been explained by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) that in what circumstances and due to firing of whom, Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case, at the time of his visit to the place of occurrence, recovered and took into possession three empty shells of 9mm bore from the roof of the house, the place where none of the assailants had been present. This fact also proves that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) had not given correct evidence regarding the details of the occurrence and the manner in which it happened.
17. We have noted with serious anxiety that the ocular account of the occurrence as furnished by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) is inconsistent with the medical evidence as furnished by Dr. Iftikhar (PW-11) and flawed beyond mend ing, resulting in disfiguring the whole complexion of the prosecution case beyond reparation and recognition. According to the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3), they had seen Sajjad Hussain (since acquitted), the co-accused of the appellant, firing with his weapon, hitting Farman Ali (deceased) on his right flank, however , Dr. Iftikhar (PW-11) observed no such injury present on the dead body of the deceased at the time of post morte m examination. Dr. Iftikhar (PW-11) during cross-examination stated as under:- "There is no entry wound on right or left flank."
Moreover , the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW- 3) went on to attribute causing of an injury to the deceased by Sajjad Hussain (since acquitted), the co-accused of the appellant, though the said injury was an exit wound according to the opinion of Dr. Iftikha r (PW-11).
Furthermore, according to the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) the appellant had fired only once, hitting on the left side of chest of the deceased but Dr. Iftikhar (PW-11) noted another firearm entry wound present on the area of epigastrium , 16 cm from the right nipple, on the dead body of the deceased, which injury was not given evidence of by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) . Additionally , Dr. Iftikhar (PW-11) also opined that the injury observed by him on the left side of the chest of the dead body of the deceased had an exit wound lower in angle, proving that the fire had been made from a higher place than the place of the presence of the deceased. Dr . Iftikhar (PW -11) stated during cross examination as under:- "The course of bullet in injury No.2-A & 2-B is from upward to downwards ."
The trajectory of the bullet hitting the dece ased as determined by Dr. Iftikhar (PW-11) also negates the evidence of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) who stated that the accused and the deceased were standing at the same level. The said opinion and observations of Dr. Iftikhar (PW-11) were never challenged by the prosecution either during the investigation of the case or during the course of the trial. In this manner , the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW- 1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) are in direct contradiction and in conflict with the opinion and observations of Dr. Iftikhar (PW-11). The prosecution witnesses very well knew that the observations and opinion of Dr. Iftikhar (PW-11), were in themselves sufficient to shatter the very foundation upon which the prosecution case was built, however , even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. Iftikhar (PW-11) or if the same could not be challenged, then to explain the same. Despite our repeated queries, the learned Deputy Prosecutor General and the learned counsel for the complainant have failed to explain the said discrepancies in the prosecution evidence. In this manner , irreconcilable and harrowing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) and the medical evidence as furnished by Dr. Iftikhar (PW-11). The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) and the medical evidence as furnished by Dr. Iftikhar (PW-11) clearly establish that the prosecution miserably failed to prove the charge against the appellant. The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) and the medical evidence, as furnished by Dr. Iftikhar (PW-11), sounded the death knell for the prosecution case and proved to be the cause of its sad demise. Had the prosecution witnesses namely Mst.
Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the occurrence then there did not exist any possibility that they would have fallen into error. The august Supreme Court of Pakistan in the case of "Muhammad Shafi alias Kuddoo vs. The State and others" ( 2019 SCMR 1045 ) has held as under:- "Ocular account is in conflict with medical evidence inasmuch as according to the crime report both the appellant, as well as, Abdul Razzaq, co-accused, are assigned one blow each to the dece ased, whereas according to the initial medical examination, Medical Officer noted solitary injury on the head, its impact on the eye has been utilized by the witnesses to array the latter in the crime."
Reliance is also placed on the case of "Muhammad Zaman vs. The State and others" (2014 SCMR 749) wherein it has been held as under:- "The more so, when the total number of injuries found on the deceased as well as the injured could be caused by one or two L.G. Cartridges. The number of assailants in the circumstances of the case appears to have been exaggerated"
Reliance is placed on the cases of "Muhammad Ali Vs. The State" (2015 SCMR 137) "Muhammad Ashraf Vs. The State" (2012 SCMR 419) ,USMAN alias KALOO Vs. The State (2017 SCMR 622) ,Muhammad Hussain Vs. The State (2008 SCMR 345) and "Ain Ali and another Vs. The State" (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of prosecution witnesses when the same was found to be in contrast with the medical evidence.
18. We have also noted that the prosecution witness namely Ghulam Abbas (PW-2) claimed that after the occurrence, he held the deceased and while holding the deceased, his clothes were smeared with blood, whereas the prosecution witness namely Qadir Ali (PW-3) claimed that he had taken the deceased in an injured condition to the hospital. The prosecution witness namely Ghulam Abbas (PW -2) during cross-examination stated as under:- "I myself put Farman Ali in a car. During this process, my clothes became stained with blood. I have not produced my clothes before police.
Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case , did not take any such blood-stained clothes of Ghulam Abbas (PW-2) and Qadir Ali (PW-3) in possession during the investigation of the case nor the said prosecution witnesses namely Ghulam Abbas (PW-2) and Qadir Ali (PW-3) admitte dly produced their clothes either before the Investigating Officer of the case or before the learned trial court . Muha mmad Sarwar , SI (PW-14), the Investigating Officer of the case who otherwise showed extraordinary interest in the case, did not take the clothes of the prosecution witnesses namely Ghulam Abbas (PW-2) and Qadir Ali (PW-3) 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 prosecution witnesses namely Ghulam Abba s (PW-2) and Qadir Ali (PW-3).
This omission lays bare the untruthful and false claim of the prosecution witnesses namely Ghulam Abbas (PW-2) and Qadir Ali (PW-3) to have witnessed the occurrence. 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."
19. Another vital aspect of the case is the fact that despite the assertion of the prosecution witnesses namely Mst.
Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) that they had witnessed the occurrence on 14.10.2012 at 10.00/1 1.00 p.m., the matter was reported to the police on 15.10.2012 at 02.00 a.m when Gulzar Ahmad, SI (PW-10), the Investigating Officer of the case, reached at the place of occurrence and received the written application (Exh. P.A.) of the prosecution witness namely Ghulam Abbas (PW-2) at the place of occurrence.
In this manner , the delay in reporting the matter to the police was of about than 3 to 4 hours, for which delay no reason, much less plausible, was offered. Doubt over the witnessing of the occurrence by the the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) is raised due to the fact that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) never reported the matter to the police on their own. According to the prosecution case, Gulzar Ahmad, SI (PW-10), the Investigating Officer of the case, got the information about the occurrence and reached the place of occurrence on his own. No one out of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) had told him about the occurrence. Moreover , the written application (Exh. P.A.) of Ghulam Abbas (PW-2) was received by Gulzar Ahmad, SI (PW-10), the Investigating Officer of the case, at the place of occurrence after his arrival there. The august Supreme Court of Pakistan has already enunciated the principle of law that when the F.I.R of the case is not lodged at the Police Station, a conclusion can be drawn that the F.I.R. had been registered after pondering and inquiry at the spot. The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v . The State" ( 2017 SCMR 1 155) has observed as under: "An F.I.R. in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the F .I.R. had been chalked out after deliberations and preliminary investigation at the spot."
We have also noted that according to the prosecution witness namely Ghulam Abbas (PW-2), the police arrived at the place of occurrence within thirty minutes of the occurrence and stated during cross-examination as under:- "Police came at the place of occurrence after 30/35 minutes of the occurrence."
Despite the arrival of the police at the place of occurrence after thirty minutes of the happening of the same, it still, it took another three hours for the writing and receiving of the written application (Exh. P.A.) of Ghulam Abbas (PW- 2). No explanation has been offered as to why, even after the arrival of the police , it took another three hours for the receiving of the written application (Exh. P.A.). The circumstances in which the written application (Exh. P.A.) was submitted to Gulzar Ahmad, SI (PW-10) were put in further doubt when the prosecution witness namely Ghulam Abbas (PW-2) stated during cross-examination that he went to the Police Station for the registration of the F.I.R at 04.00/5.00 a.m. The prosecution witness namely Ghulam Abbas (PW-2) during cross-examination stated as under:- "I went to police station for registration of F.I.R. at about 04.00/05.00 a.m. I was accompanied by Qadir Ali, Liaqat Ali and Shaukat Ali when I went to police station for registration of F .I.R." (emphasis supplied)
Contradicting both the prosecution witnesses namely Ghulam Abbas (PW-2) and Gulzar Ahmad, SI (PW-10), the Investigating Officer of the case namely Muhammad Sarwar , SI (PW-14), stated that Ghulam Abbas (PW-2) did not submit his written application (Exh. P.A.) at the Police Station rather the same was presented to him at the place of occurrence.
Muhammad Sarwar , SI (PW -14), the Investigating Of ficer of the case during cross-examination stated as under:- "Complainant has not presented complaint to me in P .S. but same was presented to me at place of occurrence."
The above referred portion of cross-exam ination of the Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case, not only proves that the written application (Exh. P.A.) of Ghulam Abbas (PW-2) was prepared with delay but also proves that the same was documented after Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case had arrived at the place of occurrence and conducted a preliminary investigation. It is apparent that the written application (Exh. P.A.) of Ghulam Abbas (PW-2) was articulated after a thorough probe, investigation, inquiry and fashioning out of a false narrative of the written application (Exh. P.A.) of Ghulam Abbas (PW-2). No justification, much less credible, has been given by the prosecution at any stage for such deferral in submitting the written application (Exh. P.A.) of Ghulam Abbas (PW-2) . The reason for this inordinate delay in reporting the matter to the police by the prosecution witness namely Ghulam Abbas (PW-2) is obvious, being that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) had not witnessed the occurrence and the delay was used to formulate a false narrative. In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because, the witnesses never reported the matter to the police for as many as three to four hours. This inordinate delay in reporting the matter conclusively proves that the written application (Exh. P.A.) of Ghulam Abbas (PW-2) was prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) had not witnessed the occurrence, the delay ensued. The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh. P.A.) of Ghulam Abbas (PW-2) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences their failure of having witnessed the occurrence. Reliance is placed on the case of "Ghulam Abbas and another v. The State and another" (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:- "As per contents of F.I.R., the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morni ng at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrenc e at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chance s of deliberations and consultations before reporting the matter to the Police cannot be ruled out."
Reliance is also placed on the case of "MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others" (2017 SCMR 199) wherein the august Supreme Court of Pakistan was pleased to hold as under: "The hospital is closely situated to the Police Station but neither the complainant nor P.W.s took a little pain to report the matter , nor the staff of the hospital including the treating doctor took initiative."
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of "Zafar vs. The State and others" (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:- "It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the F.I.R. or while appearing before the learned trial Court qua the delay in lodging the F.I.R. or for that matter the belated postmortem of the deceased."
Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of "G. M.
NIAZ Vs. The State" (2018 SCMR 506), "Abdul Jabbar and another Vs. The State" (2019 SCMR 129) and "Muhammad Shafi alias Kuddoo Vs. The State and others" ( 2019 SCMR 1045 ).
20. We have also noted with disquiet that despite the fact that the occurrence took place at about 10.00/1 1.00 p.m. on 14th August, 2012 , the postmortem examination of the dead body of the deceased was conducted after much delay . According to Dr. Iftikhar (PW-11), he conducted the post mortem examination of the dead body of the deceased namely Farman Ali at 4.00 p.m. on 15.08.2012 i.e., after 17 hours of the occurrence. Dr. Iftikhar (PW- 11), who conducted the post mortem examination of the dead body of Farman Ali (deceased) observed developed rigor mortis at the time of conducting the post mortem examination. Before proceeding any further , it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly , the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis , an extract from "The Principles And Practice Of Medical Jurisprudence" by Alfred Swaine T aylor , MD, is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly , William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 'POST -MOR TEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P.
Modi's A Textbook of Medical Jurisprudence and T oxicology (26th Edition 2018), it has been discoursed as under:-: "Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away .
Rigor mortis first appears in the involuntary muscles, and then in the voluntary . In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy , and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.
In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However , according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor .
Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.
Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in winter and 18 to 36 hours in summer . According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early , it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associat ed findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability , the death might have occurred six to twelve hours or so more before the time of examination."
Dr. Iftikhar (PW-11) during cross-examination himself explained that he had noted the presence of fully developed rigor mortis at the time of post mortem examination and also stated that it took twelve hours for the full development of rigor mortis. Dr . Iftikhar (PW -11) during cross-examination stated as under:- "Rigor mortis was on full stage.
Rigor mortis start developing .in first twelve hours and remained in the body for next twelve hours and it vanished in next about twelve hours. "
No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence had not seen the occurrence and the delay in the post mortem examination was used to formulate a false account of the occurrence 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 advancement of a false narrative to involve any perso n. 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, F.I.R. 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 F .I.R. 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 F.I.R. 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."
21. We have already mentioned that along with the appellant his co-accused namely Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobeen, Mst. Sajida Bibi, Muham mad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali (all since acquitted) were also tried. The learne d trial court acquitted the above mentioned Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobeen, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali, the co-accused of the appellant. 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 Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobeen, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali (all since acquitted) had attained finality as the acquittal of Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobeen, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali (all since acquitted) by the learned trial court was not assailed 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 acquit ted 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 Supr eme Court of Pakistan has 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 cannot 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 XI titled "Of False Evidenc e 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. According to the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , they had seen Sajjad Hussain (since acquitted), the co-accused of the appellant, firing with his weapon, hitting Farman Ali (deceased) on his right flank. The prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) attributed causing of firearm injury to the deceased by Sajjad Hussain (since acquitted), however , the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) were found to have made false statements with regard to Sajjad Hussain (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 Sajjad Huissain as the prosecution evidence with regard to the appellant and with regard to his co-accused namely Sajjad Hussain (since acquitted) is similar . We find no reason to believe the statements of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) with regard to the appellant in absence of any reason to do so. This lying on part of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) with regard to Haroon, Javed Khan son of Sardar Khan, Muhammad Boota, Muhammad Mobeen, Mst. Sajida Bibi, Muhammad Naveed, Sajjad Hussain, Waqas, Abdul Aleem and Haider Ali (all since acquitted), the co-accused of the appellant, has vitiated our trust in them. We are thus satisfied that the evidence of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) 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 P.W.s; 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."
22. Another aspect drawing our grave concern is the fact that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) made blatant improvements to their previous statements. Mst.
Mumtaz Bibi (PW -1) was cross-examined in this regard and the learned trial court observed as under:- "I stated before police that 27/28 months before I was present in my house at 06.00/07.00 p.m. Confronted with Ex.DA where it is not so recorded. I stated before police that Farman, Qadir , Liaqa t, Mst. Sajida Bibi, Yaqoob and Mst. Bavi Bibi were present with me in house. Confronted with Ex.DA where names of witnesses have not been mentioned and it is mentioned that "we all family members were present in the house". I stated before police that Abbas came and reprimanded Mst. Sajida Bibi and Mst. Bavi Bibi. Confronted with Ex. DA where it is not so recorded. I have not stated before police that quarrel took place between Ghulam Abbas and Mst. Sajida Bibi.
Confronted with Ex. DA where it is mentio ned that Mst. Sajida Bibi quarreled with Abbas and Mst. Bavi Bibi. I stated before police that in the meanwhile, Javaid, Sajjad, Waqas and Abbas came there. Confronted with Ex. DA where names have not been mentioned . I stated before police that Javaid made a fire shot which hit Farman Ali on his chest towards left side. Confronted with Ex. DA where sent of injury has not been mentioned . I stated before police that second fire was made by Sajjad which hit Farman Ali on his right flank. Confronted with Ex.DA where seat of injury has not been ment ioned . I stated before police that I became unconscious. Confronted with Ex.DA where it is not mentioned."(emphasis supplied).
Similarly , Ghulam Abbas (PW-2) was also duly confronted with his previous statement during cross examination and the learned trial court observed as under:- "stated in application Ex. P.A. that a quarrel between Mst. Sajida Bibi and Mst. Bavi Bibi took place 27/28 months before the occurrence. Confronted with Ex. P.A. where time of above said quarrel and name of Mst. Bavi Bibi has not been mentioned and word that quarrel between his Bhabi and other house inmates took place is mentioned. I stated in Ex. P.A. that when I came back to house, 1 reprimanded both of them. Confronted with Ex. P.A. where it is not so recorded. I mentioned in Ex. P.A. that occurrence took place at 10.00/1 1.00 p.m. Confronted with Ex. P.A. where it is not so recorded. I mentioned the names of Javaid, Waqas , Abbas, Sajjad and Naveed who entered in my house Confronted with Ex. P.A. where names of accused have not been mentioned. I have mentioned in my statement Ex. P.A. that fire made by Java id hit Farman Ali on his chest. Confronted with Ex. P.A. where word heart instead of chest has been mentioned. I stated in Ex. P.A. that fire of Sajjad hit Farman Ali at his left flank.
Confronted with Ex.P A where 4 name Shahzad has been mentioned instead of Sajjad. "(emphasis supplied)
Likewise, Qadir Ali (PW-3) was also duly confronted with his previous statement during cross examination and the learned trial court observed as under:- "I stated before police that 27/28 months before the occurrence at about 06.00/07.00 p.m. I was present in my house. Confronted with Ex.DA where it is not so recorded. I have not stated before police that a quarrel took place between Mst. Sajida Bibi and Ghulam Abbas. Confronted with EX. DA where it is so recorded . I stated before police that Mst. Sajida Bibi asked her family to come and kill us. Confronte d with Ex.DA where it is not so recorded. I have stated before police that accused namely , Javaid, Naveed, Sajjad, Waqas, Abbas and Haroon came there on a Wagon. Confronted with Ex, DA where names of accused have not been mentioned. It stated before police that fire of Javaid hit on left side of Chest of deceased. Confronted with Ex.DA where it is mentioned that fire hit on heart of deceased. I stated before police that second fire of Sajjad landed on right flank. Confronted with Ex.DA where word right has not been mentioned." (emphasis supplied)
The above referred portions of the cross-examination of the prosecution witnesses namely Mst. Mumtaz Bibi (PW- 1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) clearly reflect that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) introduced the above mentioned blatant improvements in their statements. By improving their previous statements, the prosecution witnesses namely Mst. Mumtaz Bibi (PW- 1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) 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 the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abba s (PW-2) and Qadir Ali (PW-3) introduced dishonest, blatant and substantial improvements to their previous state ments and were duly confronted with their former statements, hence their credit stands impeached and the prosecution witnesses namely Mst.
Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) 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 of the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) has no intrinsic worth and is to be rejected outrightly . The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha Vs. The State" ( 2018 SCMR 772 ) has enunciated the following principle: "Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence".
The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
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 is entry 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.15 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."
23. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol (P-7) from the appellant namely Javed son of Muhammad Boota and have submitted that the said recovery of the pistol (P-7) from the appellant offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecut ion witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3). The recovery of the pistol (P-7) from the appellant namely Javed son of Muhammad Boota cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol (P-7) from the appel lant namely Javed son of Muhammad Boota , which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. The provisions of this section, unfortunately , are honoured more in disuse than compliance. To appreciate it better , this section is being reproduced:- "103.--(1) Before making a search. under this chapter , the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case, during cross examination, admitted as under:- "I had not associated any Numberdar , councilor or any respectable of locality in recovery proceedings."
Moreover , Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case, also admitted that the recovery of the pistol (P-7) from the appellant namely Javed son of Muhammad Boota was made from the Haveli of one Sarja Bhatti, however even the said Sarja Bhatti was not made to witness the same and also no statement of said Sarja Bhatti was recorded during the investigation of the case. Muhammad Sarwar , SI (PW-14), the Investigating Officer of the case, admitted during cross examination as under:- "Sarja Bhatti was owner of Havaili from where pistol was recovered from accused Javaid. Sarja Bhatti was not associated in recovery proceedings by me."
Therefore the evidence of the recovery of the pistol (P-7) from the appellant namely Javed son of Muhammad Boota cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclu sionary 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."
Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of the recovery of the pistol (P-7) from the appellant namely Javed son of Muhammad Boota would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
24. The learned Deputy Prosecutor General along with the learned counsel for the complainant, has also relied upon the evidence of motive and submitted that it corroborated the ocular account. According to the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) , the motive of the occurrence was that the prosecution witness namely Ghulam Abbas (PW-2) had reprimanded Mst. Sajida Bibi (since acquitted), the sister of the appellant and it was Mst. Sajida Bibi (since acquitted) who told her parents about the said act of the prosecution witness namely Ghulam Abbas (PW-2), who thereafter arrived at the place of occurrence along with the appellant. In this manner , the prosecution witness namely Ghulam Abbas (PW-2), should have been the prime target of the assaila nts, but the prosecution witness namely Ghulam Abbas (PW-2) was not even fired at by any of the assailants. Furthermore it was admitted by the prosecution witness namely Mst. Mumtaz Bibi (PW-1) that the deceased had no enmity with any accused nor he had said anything to Mst. Sajida Bibi (since acquitted), the sister of the appellant. The prosecution witness namely Mst. Mumtaz Bibi (PW-1) during cross- examination stated as under:- "There was no dispute or quarrel between Farman Ali deceased and accused Mst. Sajida Bibi. Similarly , accused Muhammad Boota was having no dispute with the deceased before the occurrence."
It was also brought on record that the prosecution witnesses namely Mst. Mumtaz Bibi (PW-1), Ghulam Abbas (PW-2) and Qadir Ali (PW-3) made dishonest improvements in their statements before the learned trial court with regard to the motive of the occurrence and were duly confronted with the same. The prosecution witnesses failed to provide evidence enabling us 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 namely Javed son of Muha mmad Boota to have committed the Qatl-i-Amd of the deceased namely Farman Ali . There is an evocative muteness in the prosecution case with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. 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."
Moreover , it is an admitted rule of appreciation of evidence that motive is only a corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction.
25. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Javaid son of Muhammad Boota 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 Akram v . The State ( 2009 SCMR 230 ) and Muhammad Zaman v . The State ( 2014 SCMR 749 )."
Reliance is also placed on the judgment of the august Supreme Court of Pakista n Najaf Ali Shah Vs. the State (2021 SCMR 736 ) in which it has been observed in paragraph No.13 of page 236 as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer . As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer ." Benjamin Franklin, who was one of the leading figures of early American history , went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer ." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner . This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345 ) and Ayub Masih v. The State (PLD 2002 SC 1048 )."
The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eyew itnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
26. For what has been discussed above Criminal Appeal No.240557 of 2018 lodged by the appellant namely Javaid son of Muhammad Boota is allowed and the conviction and sentence of the appellant namely Javaid son of Muhammad Boota awarded by the learne d trial court through the impugned judgment dated 03.10.2018 are hereby set-aside. The appellant namely Javaid son of Muhammad Boota is ordered to be acquitted by extending him the benefit of the doubt. The appellant namely Javaid son of Muhammad Boota is in custody and is directed to be released forthwith if not required in any other case.
27. Murder Reference No.323 of 2018 is answered in Negative and the death sentence awarded to Javaid son of Muhammad Boota is Not Confirmed.