The State vs Muhammad Maqbool alias Allah Wasaya, Muhammad

1. JUDGMENT .

2. SADIQ MAHMUD KHURRAM, J. Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (convicts) were tried alongwith Allah Wadhaya alias Wada and Muhammad Sabir (both since acquitted), the co-accused of the convicts, by the learned Additional Sessions Judge, Fortabbas in the case FIR No.644 of 2013 dated 26.11.2013 registered at Police Station Fortabbas, District Bahawalnagar in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Muhammad Jaffar son of Muhammad Yar (deceased) and Baqir Khan son of Muhammad Yar (deceased). The learned trial court vide judgment dated 07.03.2020, convicted Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (convicts) and sentenced them as under: Muhammad Maqbool alias Allah W asaya son of Allah Ditta: Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Jaffar son of Muhammad Yar (deceased)and Baqir Khan son of Muhammad Yar (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both Muhammad Jaffar son of Muhammad Yar (deceased) and Baqir Khan son of Muhammad Yar (deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.

3. The convict was ordered to be hanged by his neck till dead.

4. Muhammad Rafique alias Mithu son of Muhammad Sharif: Death on two counts under section 302(b)/34 PPC as Tazir for committing Qatl-i-Amd of Muhammad Jaffar son of Muhammad Yar (deceased) and Baqir Khan son of Muhammad Yar (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both Muhammad Jaffar son of Muhammad Yar (deceased) and Baqir Khan son of Muhammad Yar (deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.

5. The convict was ordered to be hanged by his neck till dead.

6. Allah Wadhaya alias Wada and Muhammad Sabir , the co-accused of the convicts, were, however , acquitted by the learned trial court.

2. Feeling aggrieved, Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (convicts ) lodged Criminal Appeal No.122 of 2020, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.07 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif. We intend to dispose of the Criminal Appeal No. 122 of 2020 and Murder Reference No.07 of 2020 through this single judgment.

3. Precisely , the necessary facts of the prosecution case, as narrated by Mst. Zahida Bibi (PW-1), the complainant of the case, are as under:- "On 26.11.2013 on the day of Tuesday there was cattle's mandi at shahbazwala at about 08:00AM, five persons namely Jaifar , Ashaq, Jewan, Zakar-Ullan and Amin were present on Dala and Baqer was on his motorcycle &they were going to that Mandi, while Allah Wadaya, M.Rafique alias Mithu and M.Maqbool stopped the motorcycle of Baqir . Rafique alias Mithu made a fire to Baqir which hit on his temporal region of right side of head, Maqbool made a fire with repeater on Baqir that hit on his right of body & Allah Wadaya also made fire with repeater . When the Jaifar brother of Baqir tried to escape him, the accused also made fire to Jaifar while Jewan and other persons ran away and accused also made fires on said dala. Jewan made telephonic call to me that Baqir & Jaifer have been murdered & Jewan also made telephonicall (sic) to police. I and police reached at the place. Police himself wrote application Exh.P .A on which I made my thumb impression.

7. The motive behind this occurrence is that Shahnaz Bibi has contracted marriage with my Dewar Tariq and she was residing with him, accused have murdered Jaifar and Baqir without any reason.

8. The accused Sabir had linked with M.Rafique alias Mithue on the day of occurrence and during investigation the police got telephonic data and the accused Sabir is also involved and remained in contact with the accused at the time of occurrence. After one month I also submitted a supplementary application Exh.P .B to the local police agianst Sabir and he was arrested. "

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 appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif were sent to face trial. The learned trial court framed the charge against the accused on 04.06.2014 and on 21.01.2015, 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 sixteen witnesses recorded. The ocular account of the case was furnished by Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). Mst Zahida Bibi (PW- 1) stated that she was told about the occurrence by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and thereafter submitted the written application (Exh. PA) for the registration of the F.I.R. Muhammad Asif 1084/C (PW-2) stated that on 26.11.2013, the Investigating Officer of the case, handed over to him two sealed parcels said to contai n blood stained earth and on 10.12.2013, he handed over the said two sealed parcels to Muhammad Arshad 288/C (PW-3) for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Abdul Razzaq 936/C (PW-4) stated that he was handed over the non-bailable warrants of arrest of the appellant namely Muhammad Rafique alias Mithu for execution. Hassan Ali 639/HC (PW- 5) stated that on 22.12.2013, the Investigating Officer of the case handed over to him a sealed parcel said to contain a gun and on 07.01.2014, he handed over the said sealed parcel to Fayy az Ahmad 760/C (PW-6) for its onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Muhammad Bilal 894/C (PW-7) stated that on 02.01.2014, he was handed over the proclamation with regard to the appellant namely Muhammad Rafique alias Mithu and on 07.01.2014, he pasted a copy of the same on the residence of the appellant namely Muhammad Rafique alias Mithu. Ejaz Rasool, Patwari (PW-8) prepared the scaled site plan of the place of occurrence (Exh.PC). Naseer Ahmad, ASI (PW-10) stated that on 26.11.2013, he recorded the formal F.I.R (Exh.P A/1). Rafaqat Ali 138/C (PW-11) stated that on 26.11.2013, he escorted the dead bodies of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer. Rafaqat Ali 138/C (PW-11) further stated that on 07.01.2014, he was handed over a sealed parcel said to contain a gun which he transmitted to the office of the Punjab Forensic Science Agency , Lahore. Jamat Ali Shah, SI (PW-14) investigated the case from 18.11.2014 till 05.12.2014, arrested the appellant namely Muhammad Rafique alias Mithu on 25.11.2014, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Sana Ullah, SI (PW-15) investigated the case from 26.11.2013 till 10.02.2014, arrested the appellant namely Muhammad Maqbool alias Allah Wasaya on 17.12.2013, 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. Muhammad Anwar (PW-9) examined, who on 26.11.2013 was posted as Medical Officer at THQ, Hospital, Fortabbas and on the same day conducted the postmortem examination of the dead body of Muhammad Jaffar son of Muhammad Yar (deceased). Dr. Muhammad Anwar (PW-9),on examining the dead body of Muhammad Jaf far son of Muhammad Yar (deceased) observed as under:- "Injury No.1.

9. A penetrating and lacerating wound of about 1.1cm x.7cm on the front of abdomen about 7cm above and lateral to the right side of umbilicus margins inverted, no burning or blackening was present.

10. Injury No.2.

11. Multiple wounds about 5 in number on the anterior surface of right thigh from inguinal region to the middle of thigh of varying size and shape margins were everted, no burning or blackening was present.

12. Injury No.3.

13. A penetrating and lacerating wound of about 14cmx10cm on the posterior or right thigh about 2cm from the right buttock containing ten wounds of varying size and shapes, margins were inverted, no burning or blackening was present, femur of right thigh was fractured.

14. Injury No.4.

15. Multiple wounds about 7 in numbers in an area of about 7cmx7cm around the anus and posterior to the left buttock, size and shapes were varying and margins were inverted, no burning or blackening was present.

16. Injury No.5 A penetrating and lacerated wound of about 1cmx.5cm on the medial of left leg about 16cm above the ankle joint, margins were inverted, no burning or blackening present.

17. OPINION: After doing careful external and internal examination of the dead body I am of the opinion about the cause of death that death occurred by injury No.4 collectively which were caused by firearm, injury No.1 was caused by bullet, injury No.4 by pallets which caused perforation of intestine and other viscerae which caused haemorrhage and shock sufficient to cause death, injury No.2 was also caused by pallets, injury No.5 was caused by bullets, injury No.2 was exit of injury No.3 right femur and left tibia were fractured. Injury No.2 is Ghayer Jaifah Munaqqilla and injury No.5 is Ghayer Jaifah Muniqqalla. After doing postmartum I handed over dead body , last worn clothes, postmartum report, a sealed vial containing pallets and three X rays were handed over to police, probable time between injury & death was 03 to 05 minutes and between death and postmartum about 09 to 10 hours."

18. Dr. Muhammad Anwar (PW-9) on 26.11.2013 also conducted the postmortem examination of the dead body of Baqir Khan son of Muhammad Yar (deceased). Dr. Muhammad Anwar (PW-9), on examining the dead body of Baqir Khan son of Muhammad Yar (deceased) observed as under:- "Injury No.1.

19. A penetrating and lacerated wound of about 7cmx.4cm on the left side of skull about 2cm above the left ear, margins were inverted, no burning and blackening was present.

20. Injury No.2.

21. A lacerated wound and penetrating on the postrolateral surface of skull measuring 2cmx1cm about 12cm from the right ear, margins were everted, bone below was broken and brain matter was coming out, this wound was situated on the right side of skull.

22. Injury No.3.

23. Multiple wounds about eight holes on the postrolateral surface of left shoulder in an area of about 11cmx5cm, margins were inverted, no burning or blackening was present which have penetrated the shoulder from posterior , this wound was continuous with a wound of about 12cmx7cm on the medial side of left arm about 9cm from left Axilla, margins were everted. Humerous bone of left arm was fractured and other multiple wound lacerated and penetrating on the postero-lateral surface of right side of chest, in an area of about 6cmx4cm about 12cm from the shoulder , card wad was removed from this wound, no burning or blackening was present, this wound was continuous with multiple wounds on the lateral surface of right side of chest. Margins were everted & were situated in an area of about 9x8cm on the right side of chest 7th rib on the right side was fractured.

24. Injury No.4.

25. Multiple wound on the postrolateral surface of left side of chest about 15cm from left axilla, these were in an area of about 10cmx14cm, margins were inverted, no burning or blackening was present, a card wad was removed from this wound 6th & 7th ribs on the left side were fractured, these wounds were continuous with multiple wounds on the anterolateral surface of front of chest on the left side in an area of about 13cmx12cm, margins were everted, pallets were removed from this wound subcutaneouly .

26. Injury No.5.

27. Multiple wound on the front of left knee about 5 in number in an area of about 8cmx5cm one on the medial side of knee joint measuring 2cmx.5cm and is continuous with a wound of 2cm x.6cm on the medial side of left thigh above left knee joint, these wounds were skin deep, margins were inverted, no burning or blackening was present.

28. OPINION.

29. After doing postmartum carefully internally as well as externally i am of the opinion about the cause of death that death occurred by injury No.1 individually as well as collectively by other injuries, injury No.1 was caused by firearm (bullet) directed from left to right side posteriorly , which is sufficient in the ordinary course of life to cause death, injuries No.3,4&5 were also caused by firearm (pallets) directed from posterior to anterior in case of injuries No.3&4 and from anterior to posterior in case of injury No.5, injury No.3 was declared as Ghayer Jaifah Hashama, injury No.4 was declared as Jaifah after doing postmartum examination, I handed over dead body , last worn clothes, postmartum report and a sealed vial containing pallets and two card wads. Probable time between injury & death was 02 to 03 minutes and between death and postmartum about 07 to 08 hours."

7. On 02.07.2015, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Amin, Zikar Ullah, Nasrullah 1285/C and Asghar Ali 263/C as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore (Exh.PW) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency , Lahore (Exh.PX) regarding the analysis of the crime empties and the recovered weapons.

8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif 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 appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.

9. On the conclusion of the trial, the learned Additional Sessions Judge, Fortabbas convicted and sentenced the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif as referred to above.

10. The contention of the learned counsel for the appellants 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 appellants 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 appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence due to enmity . The learned counsel for the appellants finally submitted 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 appearing on behalf of the complainant, contended that the prosecution had 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 appellants. They further contended that the medical evidence also corroborated the statements of the prosecution witnesses Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). 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 prayed for the rejection of the appeal as lodged by the appellants namely Muhammad Maqbool alias Allah W asaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif.

12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant and with their able assistance, perused the record and evidence documented during the trial.

13. As is obvious from the perusal of the prosecution evidence, the prosecution witness namely Zubaida Bibi (PW- 1) ,though became the complainant of the case ,however had not witnessed the occurrence and was told about the same by the prosecution witnesses Jewan Khan (PW -12) and Muhammad Ashaq (PW -13).

14. The mainstay of the prosecution case is the evidence of the prosecution witnesses Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) who claimed themselves to have been present at the place of occurrence and having witnessed the same. It is an admitted part of the prosecution case that both the prosecution witnesses Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were not only related to each other but also to both the deceased. Both the deceased were the brothers of the prosecution witness namely Jewan Khan (PW-12) whereas the prosecution witness namely Muhammad Ashaq (PW-13), during cross-examination, stated that the deceased namely Baqir Khan was his brother in-law (Behnoi). The prosecution witness namely Zuba ida Bibi (PW-1), during cross- examination, stated as under:- "Muhammad Amin Pw is my brother-in-law (Dewar), who is real brother of Baqir Khan and Jaifar Hussain deceased. Zakir-Ullah Pw is also real brother of deceased persons. M.Ashaq Pw is brother-in-law (Sala) of deceased person, while Muhammad Ashaq is my real brother . Jewan Khan Pw is also real brother of decesaed persons. The above mentioned persons/Pws were also cultivators, they cultivated the lands of different owners within the jurisdiction of chak NO.213/9R Azafi Basti. All the above mentioned Pws are resident of chak No.213/9R, The prosecution witness namely Muhammad Ashaq (PW -13), during cross-examination, stated as under:- "Baqir is my brother in law (Behnoi) Similarly M.T ariq is also my brother in law(Behnoi)."

30. The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) also admitted that the occurrence took place at a distance of 5/6 kilometres from their residences. The prosecution witness namely Jewan Khan (PW -12), during cross-examination, stated as under:- "Our house is situated at the distance of 5/6 K.M away from the place of occurrence."

31. The above-referred portion of the cross-examination of the prosecution witness namely Jewan Khan (PW-12) reflects that the prosecution witnesses namely Jewan Khan (PW-12) and Muham mad Ashaq (PW-13) , can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. Both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) also claimed that at the time of occurrence they had arrived at the place of occurrence, while riding on a vehicle (Dala) on which some animals had also been loaded, which were to be transported to the area of Shabazwala . The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) claimed that when the vehicle which they were riding reached near the place of the occurrence, they saw the accused, all armed, stopping Baqir Khan (deceased), who at that time was travelling separately on a motorcycle and firing at him. The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW- 13) identified the driver of the vehicle upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were riding at the time of occurrence as one Abbas Bhoord. The prosecution witness namely Jewan Khan (PW -12), during cross-examination, stated as under:- "The name of driver and owner of Dala is Abbas Bhoord. We left the house ten minutes prior to the occurrence i.e. 07:50 AM. We left the house after taking breakfast. My house is separate from the deceased persons. In dala three calfs and one cow. I, Jaifar deceased, M.Amin, Zakir-Ullah, M.Ashaq were sitting inside the dala along with cattle. In front seat no one was present except driver ." (emphasis supplied)

32. In this manner , despite the fact that the driver of the vehicle ,upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), were riding at the time of occurrence, was identified and named as one Abbas Bhoord, still the said Abbas Bhoord never appeared before the Investigating Officer of the case nor before the learned trial court though he was the most independent witness of the occurrence whose presence was even admitted by the accused .The prosecution witness namely Jewan Khan (PW-12), during cross-examination, stated as under:- "at the time of arrival of police driver of dala namely Abbas mentioned above was also present and he also appeared before the police. I.O did not record the statement of Abbas driver , we did not know why the I.O. did not record his statement. During investigation we did not produced (sic) Muhammad Abbas."

33. The prosecution witness namely Muhammad Ashaq (PW -13), during cross-examination, stated as under:- "Driver of Dala also witnessed the whole occurrence. We did not produce the driver of Dala before police during investigation." (emphasis supplied)

34. Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, also admitted during cross-examination that at the time of his arrival at the place of occurrence, the said Abbas Bhoord was present at the place of the occurrence however still his statement was not recorded by the Investigating Officer of the case. Sana Ullah, S.I. (PW-15), the Investigating Of ficer of the case, admitted during cross-examination, stated as under:- "When I reached at the place of occurrence at that time dala & driver Abbas was present there.

35. It is correct that during whole investigation as conducted by me I did not record the statement of Mohammad Abbas driver u/s 161 Cr.P.C or u/s 162 Cr.P.C. It is correct that Mohammad Abbas driver is an independent person and he was not relative of the parties. I did not join him in investigation as he did not appear before me." (emphasis supplied)

36. Neither during the course of investigation nor before the learned trial court, the statement of Abbas Bhoord, the driver of the vehicle, upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), were riding at the time of occurr ence, was recorded. This admitted failure of Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, to include in the investigation Abbas Bhoord, the driver of the vehicle upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were riding at the time of occurrence, and the failure of the prosecution to produce the said Abbas Bhoord before the learned trial court, reflects poorly upon the veracity of the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presum ed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order , 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

37. The failure of the prosecution to produce Abbas Bhoord, the driver of the vehicle upon which the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were riding at the time of occurrence, and the most natural witness, before the learned trial court, has convinced us that had he been produced before the learned trial court, he would not have supported the prosecution case. Reliance in this matter is placed on the cases of SHAMSHAD versus THE STATE (1998 SCMR 854 also cited as 1999 SCMR 2844 ), Lal Khan versus THE STATE (1996 SCMR1846), USMAN alias KALOO versus THE STATE (2017 SCMR 622), Muhammad Irshad Vs. Allah Ditta and others (2017 SCMR 142) and G. M. NIAZ Vs. The State" (2018 SCMR 506). In this manner , the prosecution case suf fers from inherent defects which are irreconcilable as it is.

15. We have also noted with grave conce rn that the reason which was given by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), for arriving at the place of occurrence was that both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) claimed that at the time of occurrence they had arrived at the place of occurrence while riding on a vehicle (Dala) on which some animals had also been loaded which were to be transported to the area of Shabazwala and one cow also was injured due to the firing made by the accused , but this claim was proved wrong. Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, stated during cross-examination that at the time of his arrival at the place of occurrence, he did not note the presence of any animals loaded in the vehicle or present at the place of occurrence, though the vehicle itself was taken into possession through recovery memo (Exh.PN). Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, admitted during cross-examination, stated as under:- "It is correct that I had not mentioned in rough site plan that fire sign were present on dala, similarly I had also not mentioned the presence of animals which were taken to shahbazwala by the deceased persons. I did not see any animal at the place of occurrence at my visit." (emphasis supplied)

38. In this manner , the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), failed miserably to establish the reason for their arrival and presence at the place of occurrence, at the time of occurrence. The absence of any animals at the place of occurrence at the time of arrival of Sana Ullah, S.I. (PW- 15), the Investigating Officer of the case, is absolute proof that the reason given by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) for their arrival at the place of occurrence was an absolute bogus claim. The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) claimed that a cow was also hit during the firing but that too was not present at the place of occurrence at the time of arrival of Sana Ullah, S.I. (PW-15), the Investigating Officer of the case. There is no evidence that the said animals were removed , prior to the arrival of Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, at the spot and more so when the vehicle in which the animals had been loaded was present at the spot .The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) had proceeded to and arrived at the place of the occurrence for the reason given by them and the failure to prove any reason for the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) to had proceeded to the place of occurrence has vitiated our trust in the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). We have noted with grave concern that the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was takin g place. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698 ) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State"

39. (2017 SCMR 622), wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore the said eyewitnes ses being, chance witnesses , were declared not worthy of reliance.

40. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- "In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."

16. Another factor which evidences the absence of the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) at the time of the occurrence is the fact that despite the claim of the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) that they were sitting on the backside of the vehicle where the animals had also been loaded and the claim of the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) that firing was directed at the said vehicle also and some bullets also hit the vehicle and the claim that some of the loaded cows were also injured after being hit by the bullets, the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) never suffered any injury .

41. The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were in open view, in front of the accused and as much relate d to the motive of the occurrence as were the deceased ,hence in that scenario, the miraculous escape of the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), in the midst of all the firing, is not only implausible but also proof of being outrightly false. The prosecution witness namely Jewan Khan (PW -12), during cross-examination, stated as under:- "In dala three calfs and one cow. I, Jaifar deceased, M.Amin, Zakir-Ullah, M.Ashaq were sitting inside the dala along with cattle . In front seat no one was present except driver .

42. 3/4 fire were hit to dala. Fires were hit on dala from back side. One fire hit to cow but we did not record the same in this case, because police was not ready to incorporate the same." (emphasis supplied)

43. The prosecution witness namely Muhammad Ashaq (PW -13), during cross-examination, stated as under:- "Three calfs (sic) and one cow was in dala, owner of dala is malik by caste and resident of chak NO.222/9R. We left the house at about 07/07:30AM. In front seat no one was sitting except driver and all were inside the dala One fire hit to the cattle." (emphasis supplied)

44. Blessing prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), with such an incredible consideration and showing the such favour , is implausible and opposed to the natural behaviour of any accused. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the accused for not doing away with prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). 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 appellants and their co-accused did not cause any injury to them. Such behaviour , on part of the accused , as deposed by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), 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 prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) was opposed to the common course of natural events and human conduct. Hence, we are holding that both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were not present at the place of occurrence, at the time of occurrence and did not witne ss the occurrence. The august Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses were not present at the place of occurrence.

45. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under: "First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."

46. 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."

47. 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."

48. We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst.

49. Rukhsana Begum & others v . Sajjad & others ( 2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accuse d encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assai lants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story . Such behavior , on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."

17. We have also noted with grave worry that the ocular account of the occurrence as furnished by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) is contra dictory to the medical evidence, flawed beyond mending and has disfigured the whole complexion of the prosec ution case, beyond repair and recognition. The statements of both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) are in direct contrast and contradictory to the observations and the opinion of Dr.Muhammad Anwar (PW-9), who conducted the post mortem examinations of the dead bodies of both the deceased namely Muhammad Jaffar son of Muhammad Yar and Baqir Khan son of Muhammad Yar. According to the statement of the prosecution witness namely Muhammad Ashaq (PW-13), he had seen the deceased namely Muhammad Jaffar son of Muhammad Yar being hit by only one fire and had seen the deceased namely Baqir Khan son of Muhammad Yar receiving two fire shots made by the accused. The prosecution witness namely Muhammad Ashaq (PW-13) during cross examination stated as under:- "In my view Baqir received only two fire shots.

50. In my view Jaifar (sic) received only one fire " (emphasis supplied)

51. Contrary to the above referred statement of the prosecution witness namely Muhammad Ashaq (PW-13) that he had seen the deceased namely Muhamm ad Jaffar son of Muhammad Yar being hit by only one fire and had seen the deceased namely Baqir Khan son of Muhammad Yar receiving two fire shots made by the accused ,Dr.Muhammad Anwar (PW-9), who conducted the post mortem examinations of the dead bodies of both the deceased namely Muhammad Jaffar son of Muhammad Yar and Baqir Khan son of Muhammad Yar, observed four independent firearm entry wounds on the body of Baqir Khan son of Muhammad Yar (deceased) and observed four independent firearm entry wounds on the body of Muhammad Jaffar son of Muhammad Yar. Dr.Muhammad Anwar (PW-9) on examining the dead body of Muhammad Jaffar son of Muhammad Yar (deceased) observed as under:- "Injury No.1.

52. A penetrating and lacerating wound of about 1.1cmx.7cm on the front of abdomen about 7cm above and lateral to the right side of umbilicus margins inverted, no burning or blackening was present.

53. Injury No.2.

54. Multiple wounds about 5 in number on the anterior surface of right thigh from inguinal region to the middle of thigh of varying size and shape margins were everted, no burning or blackening was present.

55. Injury No.3.

56. A penetrating and lacerating wound of about 14cmx10cm on the posterior or right thigh about 2cm from the right buttock containing ten wounds of varying size and shapes, margins were inverted, no burning or blackening was present , femur of right thigh was fractured.

57. Injury No.4.

58. Multiple wounds about 7 in numbers in an area of about 7cmx7em around the anus and posterior to the left buttock, size and shapes were varying and margins were inverted, no burning or blackening was present.

59. Injury No.5 A penetrating and lacerated wound of about 1cmx.5cm on the medial of left leg about 16cm above the ankle joint, margins were inverted, no burning or blackening present."

60. Dr. Muhammad Anwar (PW-9) on examining the dead body of Baqir Khan son of Muhammad Yar (deceased) observed as under:- "Injury No.1.

61. A penetrating and lacerated wound of about 7cmx.4cm on the left side of skull about 2cm above the left ear, margins were inverted, no burning and blackening was present.

62. Injury No.2.

63. A lacerated wound and penetrating on the postrolateral surface of skull measuring 2cmx1cm about 12cm from the right ear, margins were everted, bone below was broken and brain matter was coming out, this wound was situated on the right side of skull.

64. Injury No.3.

65. Multiple wounds about eight holes on the postrolateral surface of left shoulder in an area of about 11cmx5cm, margins were inverted, no burning or blackening was present which have penetrated the shoulder from posterior , this wound was continuous with a wound of about 12cmx7cm on the medial side of left arm about 9cm from left Axilla, margins were everted. Humerous bone of left arm was fractured and other multiple wound lacerated and penetrating on the postero-lateral surface of right side of chest, in an area of about 6cmx4cm about 12cm from the shoulder , card wad was removed from this wound, no burning or blackining was present, this wound was continuous with multiple wounds on the lateral surface of right side of chest. Margins were everted & were situated in an area of about 9x8cm on the right side of chest 7th rib on the right side was fractured.

66. Injury No.4.

67. Multiple wound on the postrolateral surface of left side of chest about 15cm from left axilla, these were in an area of about 10cmx14cm, margins were inverted, no burning or blackening was present, a card wad was removed from this wound 6th & 7th ribs on the left side were fractured, these wounds were continuous with multiple wounds on the anterolateral surface of front of chest on the left side in an area of about 13cmx12cm, margins were everted, pallets were removed from this wound subcutaneouly .

68. Injury no.5.

69. Multiple wound on the front of left knee about 5 in number in an area of about 8cmx5cm one on the medial side of knee joint measuring 2cmx.5em and is continuous with a wound of 2cm x.6cm on the medial side of left thigh above left knee joint, these wounds were skin deep, margins were inverted, no burning or blackening was present. "

70. Out of these four firearm entry wounds observed by Dr. Muhammad Anwar (PW-9) ,on examining the dead body of Baqir Khan son of Muhammad Yar (deceased), the prosecution witness namely Muhammad Ashaq (PW-13) failed to mention as many as two of them and out of the four firearm entry wounds observed by Dr. Muhammad Anwar (PW-9), on examining the dead body of Muhammad Jaffar son of Muhammad Yar (deceased), the prosecution witness namely Muhammad Ashaq (PW-13) failed to mention as many as three of them . Putting the prosecution case in further doubt is the satatement of the prosecution witness namely Jewan Khan (PW-12) who went on to claim that the deceased were hit by as many as 10/12 fires. During cross-examination the prosecution witnesses namely Jewan Khan (PW -12) and Muhammad Ashaq (PW -13) stated as under:- "10/12 fires hit both the deceased"

71. Despite our repeated queries, the learned Deputy Prosecutor General has failed to explain the said discrepancy 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 Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and the medical evidence as furnished by Dr. Muhammad Anwar (PW-9). The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and the medical evidence as furnished by Dr. Muhammad Anwar (PW-9), clearly establish that the prosecution miserably failed to prove the charge against the appellants. The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and the medical evidence as furnished by Dr. Muhamm ad Anwar (PW-9), sounded the death knell for the prosecution case and proved to be the cause of its sad demise. Had the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) seen the occurrence then there did not exist any possibility that they would have fallen into such colossal error. Reliance is placed on the cases of "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 "Amin Ali and another Vs. The State" ( 2011 SCMR 323 ).

18. The perusal of the prosecution evidence also reveals yet another contradiction between the ocular account of the occurrence as narrated by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and the medical evidence as furnished by Dr. Muhammad Anwar (PW-9). Both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) stated that the deceased were fired at from very close proximity . The prosecution witness namely Jewan Khan (PW-12) in his statement before the learned trial court stated as under: - "At the time of receiving of fire shot Baqir was facing towards east, the fire was made at a distance of 4 feet. One fire received by Baqir on motorcycle and after receiving fire he fell down on the grounds. The other fires which he received were in falling position. We all get down from Dala and Jaifar ran towards Baqir Khan when the accused persons made fire upon him, he was facing towards the East and he received fire at the distance of 6 feets (sic)." (emphasis supplied)

72. The prosecution witness namely Muhammad Ashaq (PW-13), in his statement before the learned trial court stated as under: - "Accused persons were towards north. Baqir received fire at the distance of 04 feet.

73. Accused persons made firing upon Baqir in lying condition after putting the gun on him ." (emphasis supplied)

74. Contrary to this claim of the prosecution witnesses that the firing had been made by the appellant from a distance of only about three/four feet, Dr. Muhammad Anwar (PW-9), who conducted the post mortem examinations of the dead bodies of the deceased, did not observe the presence of any blackening on any of the wounds observed by him on the dead bodies of both the deceased namely Muhammad Jaffar son of Muhammad Yar and Baqir Khan son of Muhammad Yar. As has been highlighted in Paragraph 17 of the judgment, Dr. Muhammad Anwar (PW-9) in his statement before the learned trial court clearly stated that no blackening or tattooing around the wounds was observed by him on any of the wounds present on the dead bodies of both the deceased namely Muhammad Jaffar son of Muhammad Yar and Baqir Khan son of Muhammad Yar. Had the firing at the deceased namely Muhammad Jaffar son of Muhammad Yar and Baqir Khan son of Muhammad Yar been made from such a short distance as suggested by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) then blackening on the wounds present on the dead bodies must have been observed by Dr. Muhammad Anwar (PW-9) .However , Dr. Muhammad Anwar (PW -9) in his statement before the learned trial court stated as under:- "Injury No.1 of Baqir Khan is entry wound while the injury No.2 is exit wound and injury has been caused by more than 10 feet.

75. Injury No.5 of Baqir Khan has been caused at the distance of more than 10 feet.

76. Injury No.1 of Jaifar was caused more than ten feet. Injury No.2 is exit wound of injury No.3 while the remaining injuries are entry wounds. Injury No.3 has been caused at the distance of 15/20 feets (sic). Injury No.1 has been caused by bullets while injury No.2&3 caused with pallets."(emphasis supplied)

77. Dr. Muhammad Anwar (PW-9) was not cross-examined by the prosecution and his testimony , with regard to his opinion regarding observation of no blackening around the entry wounds observed by him on the dead bodies of both the deceased namely Muhammad Jaffar son of Muhammad Yar and Baqir Khan son of Muhammad Yar, remained unchallenged. The prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) very well knew that the observations and opinion of Dr. Muhammad Anwar (PW-9) were in themselves sufficient to bring down the whole edifice of the prosec ution case as narrated by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) , however , even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. Muhammad Anwar (PW-9) 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 Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). Despite repeated queries, both the learned Deputy Prosecutor General and the learned counsel for the complainant/respondent No.2 have failed to explain the said discrepancy in the prosecution evidence. In this manner , an irreconcilable and a distressin g contradiction has cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and the medical evidence as furnished by Dr. Muhammad Anwar (PW-9). This contradiction in the ocular account of the occurrence, as narrated by the prosecutio n witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW- 13) and the medical evidence as furnished by Dr.Muhammad Anwar (PW-9) clearly establishes that the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) miserab ly failed to prove their presence at the place of occurrence, at the time of occurrence. Had the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) seen the occurrence then there did not exist any possibility that they would have fallen into error. In such a case, the ocular account is to be rejected as being contrary to the medical evidence.

78. Reliance is placed on Barkat Ali Vs. Muhamad Asif and others (2007 SCMR 1812 ) wherein it has been observed as infra: - "It is a settled law that blackening appears on the dead body in case the deceased 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."

79. Reliance is placed on Mian SOHAIL AHMED and othersVs. The State and others (2019 SCMR 956) wherein it has been observed as infra:- "3. Site-plan (Ex-PL) shows one of the appellants to be standing next to the driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely to cause blackening but the medical evidence (Post-mortem examination reports Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again raising a suspicion that the events may have unfolded differently than as reported."

80. Reliance is also placed on the case of ZAHIR YOUSAF and another Vs. The State and another (2017 SCMR 2002 ) wherein it has been observed as infra: - "According to the scaled site plan (Exh.P A) distance between the place were corpse of Ghulam Sarwar (point 1) was lying and where the appellant and his cc-accused were present (point 2) was sixteen feet. Dr. Ghulam Abbas Zafar (PW.11) who conducted autopsy upon the dead body of Ghulam Sarwar (deceased) while appearing before the learned trial court in his examination-in-chief stated that injury No.1 was with burnt inverted margins. In the last line of his cross examination, the said doctor stated that blackening occurred on the injury if fired from six feet and burning, if fired from few inches. Therefore, the medical evidence does not support the ocular account."

19. We have already mentioned that along with the appellants their co accused namely Allah Wadhaya alias Wada and Muhammad Sabir (both since acquitted) were also tried. The learned trial court acquitted the above mentioned Allah Wadhaya alias Wada and Muhammad Sabir , the co-accused of the appellants. 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 appellants, who have stated that the acquittal of Allah Wadhaya alias Wada and Muhammad Sabir had attained finality as neither the Sate nor any aggrieved person had assailed the acquittal of Allah Wadhaya alias Wada and Muhammad Sabir ,the co-accused of the appellants. 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 appellants, can be believed against the appellants. 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 nece ssity 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 .

81. 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.

82. 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 ."

83. Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the state ments of the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13), the eye witnesses of the occurrence. Jewan Khan (PW-12) in his statement recorded by the learned trial court stated as under:- "when he fell down, then all the three accused persons again made joint firing on the deceased, in the meanwhile we also stepped down from the dala then Allah Wadaya accused made a fire to jaifar Khan which hit on his belly he also fell down, then again three accused persons made joint firing upon Jaifar Hussain.

84. (emphasis supplied)

85. Similarly , Muhammad Asaq (PW -13) in his examination in-chief stated as under:- "when he fell down, then all the three accused persons again made joint firing on the deceased, in the meanwhile we also stepped down from the dala then Allah Wadaya accused made a fire to jaifar Khan which hit on his belly , he also fell down, then again three accused persons made joint firing upon Jaifar Hussain .

86. (emphasis supplied)

87. Both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) attributed causing of firearm injuries to the deceased by Allah Wadhaya alias Wada (since acquitted), however , both the witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) were found to have made false statements with regard to Allah Wadhaya alias Wada (since acquitted), the co-accused of the appellants. We are unable to find any independent corroboration of the prosecution case against the appellants and we are unable to distinguish the case of the appellants from the case of the acquitted co-accused namely Allah Wadhaya alias Wada, as the prosecution evidence with regard to the appellants and with regard to their co-accused namely Allah Wadhaya alias Wada (since acquitted) is similar . We find no reason to believe the statements of the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) with regard to the appellants in the absence of any reason to do so. This lying on the part of the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) with regard to Allah Wadhaya alias Wada (since acquitted), the co-accused of the appellants, has vitiated our trust in them. We are thus satisfied that the evidence of the prosecution witnesses namely Jewan Khan (PW- 12) and Muhammad Ashaq (PW-13) 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."

88. 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."

89. 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. Another aspect of the case raising our doubt over the presence the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) at the place of occurrence, at the time of occurrence, is the fact that they never reported the matter to the police and Sana Ullah SI (PW-15), the Investigating Officer of the case, himself reached at the place of occurrence and received the written application (Exh. P.A.) of the prosecution witness namely Mst. Zahida Bibi (PW-1), who herself had not witnessed the occurrence. 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 1155) 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."

90. Further denuding the fact that the written application (Exh.P A) was submitted after consultation and probe is the statement of Sana Ullah, SI (PW-15) , the Investigating Officer of the case , who in his cross-examination stated that he arrived at the place of occurrenc e at 9.00 a.m., whereas on the written application (Exh.P A) it had been noted that the said application had been received at 08.30 a.m., meaning half an hour even before the arrival of Sana Ullah, SI (PW-15) , the Investigating Officer of the case. During the cross-examination, Sana Ullah, SI (PW- 15), the Investigating Of ficer of the case, stated as under:- "I reached at the place of occurrence at about 09.00 a.m."

91. Then the prosecution witness namely Mst. Zahida Bibi (PW-1) herself admitted that it was the police officer himself who wrote the written application (Exh.P A) and she only thumb marked it. The prosecution witness namely Mst.

92. Zahida Bibi (PW -1), in her examination in chief, stated as under:- "Police himself wrote application Exh.P .A on which I made my thumb impression."

93. We have also noted that according to the column No.11 of the inquest report (Exh.PT) relating to the deceased namely Baqir Khan and according to the column No.11 of the inquest report (Exh.PT/1) relating to the deceased namely Muhammad Jafar , the blood of the deceased had coagulated when the inquest report (Exh.PT) relating to the deceased namely Baqir Khan and the inquest report (Exh.PT/1) relating to the deceased namely Muhammad Jafar , were prepared, revealing that the said documents had been prepared with much delay and not at the time when they were shown to had been prepa red. We have also noted with concern that though Mst. Zahida Bibi (PW- 1), who herself had not witnessed the occurrence, claimed that she was told about the occurrence by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) but it was brought on record that in his statement recorded under section 161 of the Code of Criminal Procedure, 1898 (Exh.DA), the prosecution witness namely Jewan Khan (PW-12) had not stated that he had informed the prosecution witness namely Mst. Zahida Bibi (PW-1) about the occurrence . During cross-examination the prosecution witness namely Jewan Khan (PW-12) was confronted with his previous statement (Exh.DA) and the learned trial court observed as under:- "I got recorded in my statement that I informed Mst. Zahida Bibi regarding the occurrence confronted with Exh.D.A where it is not so recorded." (Emphasis supplied)

94. These aspects of the prosecution case has left no doubt in our minds that both the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) were not present at the place of occurrence, at the time of occurrence and also had not witnessed the occurrence. Furthermore, it can be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the written application (Exh.P A) of the complainant, namely Mst. Zahida Bibi (PW-1) was prepared and the same was neither prompt nor spontaneous, hence worthy of no reliance.

21. We have also noted with disquiet that despite the fact that the occurrence took place at about 08.00 a.m. on 26.11.2013, the postmortem examinations of the dead bodies of the deceased were conducted with delay .

95. According to the Post Mortem Examinat ion Report (Exh.PD), Dr.Muhammad Anwar (PW-9), conducted the post mortem examination of the dead body of the deceased namely Baqir Khan at 03.00 p.m. on 26.11.2013 and according to the Post Mortem Examination Report (Exh.PE), Dr. Muhammad Anwar (PW-9) conducted the post mortem examination of the dead body of the deceased namely Muhammad Jafar at 05.15 p.m. on 26.11.2013.

96. Dr.Muhammad Anwar (PW-9), who conducted the post mortem examination of the dead body of Baqir Khan (deceased) and prepared the post mortem examination report (Exh. PD), gave the time between death and post mortem examination as being about 7 to 8 hours and gave the time between death of Muhammad Jafar (deceased) and the post mortem examina tion of the dead body of the deceased Muhammad Jafar as being about 9 to 10 hours . Dr. Muhammad Anwar (PW-9) explained that though he had received the dead bodies in the hospital at about 10.00 a.m., however , could not conduct the Post-Mortem Examinations of the dead bodies for the fact that the police papers were provided to him later. During cross-examination, Dr.Muhammad Anwar (PW-9), stated as under:- "Dead bodies were brought in hospital at 10:00AM. I conducted postmartum (sic) at 03:00Pm due to the reason that police papers were not provided to me."( emphasis supplied)

97. It is apparent that the delay in conducting the post mortem examinations was a result of the failure of the Investigating Officer of the case to hand over the relevant documents to Dr. Muhammad Anwar (PW-9).This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem exam inations was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to advance a false narrative further to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" ( 2012 SCMR 327 ) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".

98. The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others vs. The State and others" ( 2019 SCMR 956 ) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"

99. The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State"

100. (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."

22. Another aspect drawing our serious concern is the fact that the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) made blatant improvements to their previous statements. Jewan Khan (PW-12) was cross-examined in this regard and the learned trial court observed as under:- "I got recorded in my statement before police that time of occurrence was 08:00AM confronted with Exh.D.A where it is not so recorded. I also got recorded in my statement that accused stopped Baker after waving his hands confronted with Exh.D.A where it is not so recorded. I got recorded in my statement that Maqbool made fire on Baqir which hit on back of Baqir confronted with Exh.D.A where it is not so recorded. I got recorded in my statement that we escaped us while hiding us underneath the Dala confronted with Exh.D. where it is not so recorded. It is incorrect to suggest that I made dishonest improvement today ."(emphasis supplied).

101. Similarly , Muhammad Ashaq (PW-13) was also duly confronted with his previous statement during cross examination and the learned trial court observed as under:- "I got recorded in my statement before police that Maqbool made fire which hit on right side of back side of Baqir Khan confronted with Exh.D.B where it is not so recorded . I also got recorded in my statement before police that we save ourselves concealing underneath the dala confronted with Exh.D.B where it is not so recorded.

102. I also got recorded in my statement that we jointly called dala confronted with Exh.D.B where it is not so recorded.

103. It is incorrect to suggest that I made dishonest improvements just to show our presence at the spot." (emphasis supplied)

104. The above referred portions of the cross-examination of the prosecution witnesse s namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) clearly reflect that the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) introduced the above mentioned blatant improvements in their statements. By improving their previous statements, the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW -13) 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 ;"

105. As the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Asha q (PW-13) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) 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 Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) 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".

106. 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."

107. 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.

108. 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.

109. 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 recoveries of weapons made from the appellants and the report of the Punjab Forensic Science Agency , Lahore (Exh.PX) and have submitted that the said recoveries from the appellants offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13). The recovery of the Repeater gun 12-bore (P-7) from the appellant namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and the recovery of the Pistol (P-9) from the appellant namely Muhammad Rafique alias Mithu son of Muhammad Sharif 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-7) from the appellant namely Muhammad Maqbool alias Allah Wasaya and the recovery of the Pistol (P-9) from the appellant namely Muhammad Rafique alias Mithu, which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure , 1898 and therefore the evidence of the recoveries cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The provisions of section 103 Code of Criminal Procedure, 1898, 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.

110. Jamat Ali Shah, SI (PW -14) , the Investigating Of ficer of the case , during cross examination, admitted as under :- "No person was called from the locality ."

111. The prosecution witness namely Muhammad Ashaq (PW -13) during cross examination, admitted as under:- "It is correct that recovery from Rafique accused is an open place and every person can easily go there, at the time of recovery lumberdar or councillor were not summoned by the I.O.

112. On the day of recovery from Maqbool I.O. made us telephonic call for investigation, place of recovery is an open place and every person can go there. I.O did not summon any lumberdar or patti-dar of the locality ."

113. (emphasis supplied) .

114. Similarly , the prosecution witness namely Jewan Khan (PW -12) during cross examination, admitted as under:- "On the day of recovery from Maqbool I.O made us telephonic call for investigation, place of recovery is an open place and every person can go there. I.O did not summon any lumberdar or patti-dar of the locality .

115. It is correct recovery from M.Rafique was affected from a deserted place and in that place every person can go there, neither lumberdar nor inhabitant or councillor was summoned by the I.O." (emphasis supplied) .

116. Moreover , as mentioned above, Sana Ullah, SI (PW-15), the Investigating Officer of the case and the prosecution witnesses namely Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) also admitted that the recovery of the Repeater gun 12-bore (P-7) from the appellant namely Muhammad Maqbool alias Allah Wasaya and the recovery of the Pistol (P-9) from the appellant namely Muhammad Rafique alias Mithu were made from places which were open to easy public access. In this mann er, it was proved on record that the prosecution failed to prove that the appellants had exclusive possession of the weapons recovered from them. Therefore the evidence of the recovery of the Repeater gun 12-bore (P-7) from the appellant namely Muhammad Maqbool alias Allah Wasaya and the recovery of the Pistol (P-9) from the appellant namely Muhammad Rafique alias Mithu cannot be used as incriminating evidence against the appellants, 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."

117. With regard to the recovery of the motorc ycle (P-14) from the appellant namely Muhammad Rafique alias Mithu, it is observed that the witnesses neither during the investigation of the case and nor before the learned trial court mentioned the registration number , colour or any other detail of the motorcycle used by the appellants to arrive and flee away from the place of occurrence so as to relate the recovery of motorcycle (P-14) from the appellant namely Muhammad Rafique alias Mithu with the motorcycle used on the day of the occur rence. We have also noted that the prosecution failed to establish the safe custody of the empty shells from the place of recovery to the police station and from the Police Station to the Punjab Forensic Science Agency , Lahore .According to the prosecution witness namely Sana Ullah, SI (PW-15) on 26.11.2013, he took into possession the empty shells from the place of occurrence ,however , he never stated that he handed over the sealed parcels containing the said empty shells to the Moharrir of the Police Station . Similarly , Muhammad Asif, 1084/C (PW-2) stated that on 26.11.2013, the Investigating Officer of the case handed over to him two sealed parcels said to contain blood-stained earth and made no statement with regard to being handed over any sealed parcels containing the said empty shells .

118. Moreover , according to the report of the Punjab Forensic Science Agency , Lahore (Exh.PX), the sealed parcels containing the said empty shells were brought to it by Muhammad Arshad 288/C (PW-3), however , in his statement before the learned trial court, Muhammad Arshad 288/C (PW-3) never stated that he was handed over any sealed parcels containing empty shells or that he deposited any sealed parcels containing empty shells in the the Punjab Forensic Science Agency , Lahore. None of the above mentioned prosecution witnesses were declared hostile nor the said prosecution witnesses were re-examined by the prosecutor . Therefore, it is proved on record that the safe custody and safe transmission of the empty shells from the place of occurrence to the police station and from the Police Station to the Punjab Forensic Science Agency , Lahore could not be proved. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of the recovery of the Repeater gun 12-bore (P-7) from the appellant namely Muhammad Maqbool alias Allah Wasaya and the recovery of the Pistol (P-9) and the recovery of the motorcycle (P-14) from the appellant namely Muhammad Rafique alias Mithu 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 and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Mst. Zahida Bibi, Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) was that Shahnaz Bibi, the sister of the appellant namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta contracted marriage of her own free will and consent with Muhammad Tariq, the brother of the deceased namely Baqir Khan and Muhammad Jaffar. We have scrutinized the statements of the prosecution witnesses namely Mst.

119. Zahida Bibi, Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) and find that they failed to prove the motive as alleged. The most important factor which has persuaded us to reject the evidence of the motive as given by the prosecution witnesses namely Mst. Zahida Bibi, Jewan Khan (PW-12) and Muham mad Ashaq (PW-13) is the fact that Muhammad Tariq, the brother of the deceased namely Baqir Khan and Muhammad Jaffar, despite being alive, did not appear before the learned trial court in support of the alleged motive or the fact that the appellant nursed any grudge in their heart due to the fact that Mst. Shahnaz Bibi , the sister of the appellant namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta, had contracted marriage with Muhammad Tariq, the brother of the deceased namely Baqir Khan and Muha mmad Jaffar. The prosecution witness namely Mst. Zahida Bibi (PW-1), during cross-examination, admitted that Muhammad Tariq was alive. Moreover , it has not been explained by the prosecution witnesses that if the grudge was against Muhammad Tariq that he had contracted marriage with Mst.

120. Shahnaz Bibi, then why his brothers were assaulted and Muhammad Tariq, the real bone of contention, was not attacked at all. It was also admitted by the prosecution witnesses namely Mst. Zahida Bibi (PW-1), Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) that Mst. Shahnaz Bibi had contracted marriage with Muhammad Tariq one year prior to the occurrence and there did not exist any enmity between the appellants and the deceased on that score. It was also admitted by the prosecution witnesses namely Mst. Zahida Bibi (PW-1) Jewan Khan (PW- 12) and Muhammad Ashaq (PW-13) that the accused had not got lodged any case with regard to the marriage of Mst. Shahnaz Bibi with Muhammad Tariq. The prosecution witnesses namely Mst. Zahida Bibi (PW-1), Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) also admitted that Mst. Rani Bibi, another sister of Mst. Shahnaz Bibi and the appellant namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta, was also married to the prosecution witness namely Jewan Khan (PW-12) and the spouses were living their lives peacefully . The prosecution witness namely Mst. Zahida Bibi (PW -1) during cross-examination admitted as under:- "Tariq my brother in law (Dewar) brother of deceased persons is still alive. Mst.Shahnaz Bibi contracted marriage with Tariq one year prior to the occurrence. At the time of occurrence Mst. Shahnaz Bibi was residing with her husband at chak No.213/9R with us. One sister of Mst.Shahnaz Bibi as well as accused persons namely Mst.

121. Rani bibi married with Jewan Pw about 6/7 years prior to the occurrence, who is also residing with Jewan till today . Accused persons and his family did not get register any criminal case regard ing the abduction of Mst.

122. Shahnaza Bibi agianst (sic) Tariq as well as any member of our family . Prior to the occurrence, accused persons did not attack upon us any criminal assault regarding the abduction of Mst.Shahnaz Bibi. We also did not get register any case against the accused persons prior to the occurrence. Prior to the occurrence there was no enmity between us and the accused party ."(emphasis supplied)

123. Similarly , the prosecution witness namely Jewan Khan (PW -12) admitted during cross-examination as under:- "Prior to the occurrence we had no enmity with the accused person and we also did not get record any case against the accused persons or the accused persons also did not get record any case against us except the motive.

124. Mst.Shahnaz Bibi contracted marriage with Tariq 6/7 months prior to this occurrence. Accused persons did not get register any criminal case against us nor made any assault upon us except telephonic threats . Allah Wadaya threatened me on telephone. Accused persons did not threat on telephone to Tariq nor made any assault on T ariq."( emphasis supplied)

125. The prosecution witness namely Muhammad Ashaq (PW -13) stated during cross-examination as under:- "Mst.Shahnaz Bibi married with Tariq 5/6 months prior to the occurrence . It is incorrect to suggest Mst.

126. Shahnaz contracted marriage 2 1/2 years prior to the occurrence and I am concealing this fact intentionally . Prior to the occurrence accused persons did not get record any criminal case against us. Prior to the occurrence we also did not get record any criminal case against the accused a persons. We have no enmity with the accused persons except marriage of Mst.Shahnaz Bibi. Prior to the occurrence accused persons did not assault upon Tariq or anyone of us, however; they threatened to Baqir , other family members and me on telephone & I did not get record any criminal case regarding threats." (emphasis supplied)

127. The above referred portions of the cross-examination of the prosecution witnesses namely Mst. Zahida Bibi (PW- 1), Jewan Khan (PW-12) and Muhammad Ashaq (PW-13) clearly proves that 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 appellants to have committed the Qatl-i-Amd of both the deceased. As mentioned above, neither Muhammad Tariq, the brother of the deceased nor Mst. Shahnaz Bibi, though both alive, appeared before the learned trial court in support of the motive alleged and this fact alone is sufficient to reject the prosecution evidence with regard to the motive alleged. Both Muhammad Tariq and Mst. Shahnaz Bibi also did not appear before Sana Ullah, S.I. (PW-15), the Investigating Officer of the case, who admitted during cross- examination as under:- "It is correct that Tariq and Mst.Shahnaz did not appear before me during investigation. I investigated that marriage between Tariq & Shahnaz Bibi solemnized one year prior to the occurrence. Complainant party did not produce any proof regarding the fact that during period of mentioned above one year accused party assaulted upon them. It is correct that according to prosecution case grudge of accused persons was with Tariq."

128. (emphasis supplied)

129. The prosecution could never explain as to why both Muhammad Tariq and Mst. Shahnaz Bibi never appeared before the Investigating Officer of the case or before the learned trial court in support of the motive as alleged.

130. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v . The State ( 2016 SCMR 2021 ) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."

131. It is also 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 has no evidentiary value and loses its significance.

25. The learned Deputy Prosecutor General and the learned counsel for the complainant have also laid much premium on the abscondence of the appellant namely Muhammad Rafique alias Mithu son of Muhammad Sharif as proof of his guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with the substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373 ) that abscondence is only a suspicious circumstance. In the case of Muhammad Sadiq v. Najeeb Ali (1995 SCMR 1632 ) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of Muhammad Khan v. State (1999 SCMR 1220 ) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999 SCMR 304) it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of Muhammad Arshad v. Qasim Ali (1992 SCMR 814), Pir Badshah v. State (1985 SCMR 2070 ) and Amir Gul v. State (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone. Reliance is also placed on the cases of "Muhammad Farooq and another Vs. The State"

132. (2006 SCMR 1707 ) and "Nizam Khan and 2 others Vs. the State" (1984 SCMR 1092 ) and Rohtas Khan vs. The State ( 2010 SCMR 566 ).

26. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif 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 pruden t person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha 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 )."

133. 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 eyewitnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."

27. For what has been discussed above, the Criminal Appeal No.122 of 2020 lodged by Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (appellants) is allowed and the convictions and sentences of the appellants namely Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif awarded by the learned trial court through the impugned judgment dated 07.03.2020 are hereby set-aside . Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (appellants) are ordered to be acquitted by extending them the benefit of doubt. Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif (appellants) are in custody and are directed to be released forthwith, if not required in any other case.

28. Murder Reference No.07 of 2020 is answered in Negative and the sentences of death awarded to Muhammad Maqbool alias Allah Wasaya son of Allah Ditta and Muhammad Rafique alias Mithu son of Muhammad Sharif are Not Confirmed.