MUHAMMAD TARIQ NADEEM, J. Muhammad Akram alias Akri and Zulfiqar Ahmad, appellants along with co-accused Amjad Iqbal (since acquitted) were tried, for committing the murder of Hafiz Muhammad Khan and for commission of robbery, by the learned Additional Sessions Judge, Malakwal in case FIR No.25 dated 19-01-2014 registered under sections 302, 460, 412, 34, P.P.C:, at Police Station Gojra, Mandi Bahauddin, and after conclusion of trial, vide judgment dated 31-05- 2017, while acquitting co-accused Amjad Iqbal, convicted and sentenced the appellants as under:-
1. Muhammad Akram alias Akri, appellant Under section 302(b), P.P.C.
Life imprisonment along with compensation of Rs.2,00,000/- to the legal heirs of deceased Hafiz Muhammad Khan, under section 544-A, Cr.P.C. recoverable as arrears of land revenue and in default thereof to further undergo 06 months' S.I.
Under section 392, P.P.C.
10 years' R.I. along with fine of Rs.100000/- and in default thereof to undergo 03 months' S.I.
Under section 451, P.P.C.
07 years' R.I. along with fine of Rs.50000/- and in default thereof to undergo 02 months' S.I.
The sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to the convict.
2. Zulfiqar Ahmad, appellant Under section 392, P.P.C.
07 years' R.I. along with fine of Rs.50000/- and in default thereof to undergo 02 months' S.I.
Under section 451, P.P.C.
07 years' R.I. along with fine of Rs.50000/- and in default thereof to undergo 02 months' S.I.
The convict shall pay compensation of Rs.1,00,000/- under section 544-A, Cr.P.C. to the complainant and Matloob Bibi (PW.2) for suffering mental anguish, which was ordered to be recovered as arrears of land revenue and in default thereof to undergo 06 months' S.I.
The sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was extended to the convict.
Feeling aggrieved from the judgment of the learned trial court, the appellants have assailed their convictions and sentences through the titled appeals.
2. The brief facts of the case as narrated by Muhammad Tayyab, complainant (PW.22) in the FIR (Ex.PA) are that he was resident of Bosal Sukha and was a shopkeeper. On the fateful day i.e. 19-01- 2014 at about 03:00 a.m., he was sleeping in his "Baithak", when three unknown persons entered into the Baithak by scaling over the wall, put the pistol on his temporal region and snatched Rs.1200/- and mobile phone NOKIA from him. Thereafter, the accused persons took him to the residential room where his other family members were sleeping. The accused persons also snatched two mobile phones NOKIA from his mother. Thereafter, the accused persons inquired from the complainant about the room in which his father was sleeping. He took the accused persons towards the room of his father and his father asked from him, who they were. He replied to his father that there were dacoits upon which complainant's father closed the door of his room. The accused persons tortured him upon which his father after opening the door, came out with club and tried to inflict the same to accused persons, upon which, one accused who had middle height, made a fire shot with his pistol 30 bore which landed on the upper side of right ear of his father, who succumbed to the injury at the spot. On their hue and cry, Muhammad Rafique and Qamar Abbas came at the spot and upon seeing them, the accused persons fled away from the spot.
Hence, the above-mentioned FIR.
3. It is noteworthy that the FIR was registered against unknown accused persons. The appellants were arrested on 19-04-2014 and were sent to judicial lockup for the purpose of identification parade, which was conducted on 26-04-2014 in District Jail Mandi Bahauddin under the supervision, of Raja Ehtesham Muqarab, Judicial Magistrate Ist Class, Malakwal (PW.23) where Muhammad Tayyab, complainant (PW.22) identified Zulfiqar Ahmad, appellant but remaining accused persons were not identified by him. Thereafter, on 08-05-2014, he nominated the present appellants and Amjad Iqbal (since acquitted) in this case through supplementary statement (Ex.PP).
4. After completion of investigation, report under section 173, Cr.P.C. was submitted against the appellants along with their acquitted co-accused Amjad Iqbal. The charge against the appellants was framed on 05-07-2014 to which they pleaded not guilty and claimed trial. In order to bring home the guilt of the accused, the prosecution got examined as many as 23-witnesses.
Muhammad Rafique (PW.20), Matloob Bibi (PW.21) and Muhammad Tayyab, complainant (PW.22) have furnished the ocular account. Gulzar Ahmad, draftsman (PW.6) prepared scaled site plan of the- place of occurrence (Ex.PG and Ex.PG/1). Sajid Hussain 1543/C (PW.11) was the witness of recovery of Rs.1200 (P.6), vide recovery memo (Ex.PJ), Churi (P.7) vide recovery memo (Ex.PK), hatchet (P.8), vide recovery memo (Ex.PL) and motorcycle (P.9) vide recovery memo (Ex.PM).
Mudassar Iqbal 65/C (PW.16) was the witness of recovery of pistol 30 bore and SIM No.0345- 6507361, which were taken into possession vide recovery memo (Ex.PH) at the instance of appellant Muhammad Akram alias Akri. Raja Ehtesham Muqarab, Judicial Magistrate 1st Class, Malakwal (PW.23), supervised the identification parade (Ex.PQ/1-5) of appellants. Tariq Mehmood, SI (PW.7) and Jahangir Khan, SI (PW.19) being investigating officers stated about various steps taken by them during investigation of the case. The medical evidence was furnished by Doctor Muhammad Javed Akhtar (PW.5), who conducted autopsy on the dead body of deceased Hafiz Muhammad Khan and issued this PMR (Ex.PC.)
The remaining prosecution witnesses, are formal in nature. The prosecution gave up Muhammad Ashraf Hussaini, Rafaqat Bashir 355/C, Matee-ur-Rehman, Fakhar Ijaz 1575/C, Rashid Riaz 1252/C, Qamar Abbas and Mumtaz, PWs being unnecessary and after tendering in evidence report of Punjab Forensic Science Agency regarding Forensic Serology Analysis Report (Ex.PR/A) and Firearms and Toolmarks Examination Report (Ex.PS/A), closed its evidence.
5. After completion of prosecution evidence, statements of the appellants under section 342, Cr.P.C. along with their acquitted co-accused were recorded wherein they denied the allegations levelled against them and claimed their innocence. They neither opted to appear as their own witnesses within the scope of section 340(2), Cr.P.C. nor produced any defence evidence.
6. The learned trial court vide judgment dated 31-05-2017 found the appellants guilty, convicted and sentenced them as mentioned above, however, acquitted their co-accused namely Amjad Iqbal of the charges through the same judgment by giving him the benefit of doubt, hence, the criminal appeals.
7. I have heard learned counsel for the appellants and learned Deputy Prosecutor General for the State at length and perused the record with their able assistance.
8. The incident in the present case, according to the prosecution, was alleged to have taken place on 19-01-2014 at about 3:00 a.m. (night) within the area of Bosal Sukha, about 05 Kilometers away from Police Station, Gojra, District Mandi Bahauddin and the same was reported by Muhammad Tayyab, complainant (PW.22) through complaint (Ex.PA/1) to Jahangir Khan, SI (PW.19) on the same night on the basis of which formal FIR (Ex.PA) was chalked out by Muhammad Inayat, ASI (PW.2) at 04:00 a.m. within 01 hour but the postmortem examination on the A dead body of the deceased Hafiz Muhammad Khan was conducted by Doctor Muhammad Javed Akhtar (PW.5) on 19-01-2014 at about 10:00 a.m. with the delay of 07 hours after the occurrence. Keeping in view this material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case can be drawn that the intervening period had been consumed in fabricating a story creating serious doubt regarding the prosecution case. Reliance in this regard is placed upon the cases titled as "Muhammad Adnan and another v. The State and others" (2021 SCMR 16) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "...the matter was reported to police on the same night at 09:45 p.m. whereas the FIR was registered at 10:30 p.m., Surprisingly, post-mortem examination on the dead body of Muhammad Tayyab was conducted on 19-09-20018 at 6:30 a.m. Dr. Muhammad Sharif (PW6) who conducted autopsy stated in his cross-examination that at THQ, Hospital, Depalpur, the arrangements for conducting posts-mortem examination are available at night; that he was on duty in the hospital on that night; that his duty started from 8:00 p.m. on 18-09-2008 till 08.00 a.m. on 19-09-2008; that he received the police papers at 6.30 a.m. on 19.09.2008. There is no explanation on record why the autopsy on the dead body of Muhammad Tayyab was conducted with delay of more than nine hours."
Wisdom is also derived from the judgment reported as "Pervaiz Khan and another v. The State"
(2022 SCMR 393) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "... There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but postmortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed postmortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case..."
9. Another aspect of the case is that, according to the prosecution's version, the incident occurred at night time. The prosecution has not described any source of light in FIR (Ex.PA). Similarly, scaled site plan (Ex.PG) and un-scaled site plan (Ex.PR) are silent with respect to the source of light. More so, none amongst the witnesses have described the source of light in their statements nor the investigating officer had taken into possession any source of light. The prosecution failed to establish the fact of the availability of a light source and in the absence of their inability to do so, I cannot presume the existence of source of light at the place of occurrence. Wisdom is derived from the case laws reported as "Nazeer Ahmad v. Gehne Khan and others" (2011 SCMR 1473), "Sardar Bibi and another v. Munir Ahmad and others" (2017 SCMR 344), "Gulfam and another v. The State" (2017 SCMR 1189) and "Pervaiz Khan and another v. The State" (2022 SCMR 393).
10. The ocular account of the prosecution was produced through Muhammad Tayyab, complainant (PW.22), Muhammad Rafique (PW.20) and Matloob Bibi (PW.21) inasmuch as Muhammad Tayyab, complainant (PW.22) was the son of Hafiz Muhammad Khan (deceased) whereas Muhammad Rafique (PW.20) and Matloob Bibi (PW.21) were the neighbor and widow of Hafiz Muhammad Khan (deceased) respectively. I have noted that appellants were not nominated in the FIR. Occurrence in this case took place on 19-01-2014 at about 03:00 a.m. whereas the appellants were arrested on 19- 04-2014 and were sent to jail for the purpose of identification parade, which was held on 26-04- 2014 in District Jail, Mandi Bahauddin. It is noteworthy that only Muhammad Tayyab, complainant (PW.22) joined the proceeding of that identification parade, where only Zulfiqar Ahmad, appellant was identified by Muhammad Tayyab, complainant (PW.22) whereas Muhammad Akram alias Akri, appellant was not identified by the complainant during the course of identification parade.
Although, the complainant identified the appellant Zulfiqar Ahmad during the course of identification parade but he did not disclose the role played by the said appellant during the occurrence in issue. It has repeatedly been held by the august Supreme Court that identification of an accused person without reference to the role allegedly played by him during the occurrence is shorn of any evidentiary value. Reliance is placed upon cases "Muhammad Fayya z v. The State"
(2012 SCMR 522), "Azhar Mehmood and others v. The State" (2017 SCMR 135) and "Kamal Din alias Kamala v. The State" (2018 SCMR 577).
11. Apart from the above, no proper features of the culprits had been mentioned in the FIR (Ex.PA).
Even otherwise, I have already observed in the preceding paragraph that the prosecution witnesses, even if they were present at the scene of the occurrence, were not in a position to identify the appellants owing to the darkness of night. Keeping in view the facts and circumstances of the case, an identification parade has no evidentiary value in the eyes of the law and it cannot be used against the appellant Zulfiqar Ahmad as a corroborative piece of evidence. The PWs had not described the complete features, physiques, and complexions of any of the unknown accused persons. As such the test identification parade loses its authenticity as observed by the august Supreme Court of Pakistan in the cases titled as, "Muhammad Afzal alias Abdullah v. The State and others" (2009 SCMR 436), "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) and "Javed Khan alias Bacha and another v. The State and another" (2017 SCMR 524).
12. It is noteworthy that the said identification parade was not held in accordance with law as the same was conducted jointly, so it was E unreliable. The august Supreme Court of Pakistan in case of "Mian Sohail Ahmad and others v. The State and others" (2019 SCMR 956) while enunciating the principles of law relating to the identification parade has held as under:-
5. The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmities diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin.
TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. have been arrested.
Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v.
Sohharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367).
6. Both the appellants were jointly seated in the lineup. The idea of identification parade or lineup is to stand or seat the suspect in a group of persons (dummies or fillers) that closely resemble the characteristics of the suspect, in order to test the recognition, memory, perception and observation of the witness and thus verify the testimony of the witness. Placing two or more suspects jointly in an identification parade (or joint parade), tarnishes the homogeneity, sameness and identicalness of the members of the parade and defeats the very purpose of having a 11/3/21, 12:24 p.m. 2019 SCMR 956 test identification parade. Joint parade passes for suggestive and indicative identification, compromising the reliability of the witness and opening doors to misidentification, rendering TIP unsafe and untrustworthy. See: In the matter of Kanwar Anwaar Ali (PLD 2019 SC 488) on joint identification parade.
7. No role was assigned to the suspects by the witnesses, especially when the first information report clearly describes two different roles to the appellants; one that of an assailant, while the other of a driver of a motorcycle who drove the assailant away. If a witness fails to give the description of the part played by the suspect in the crime, the credibility of the witness stands questioned as he fails to complete the picture of the crime scene, thus inviting caution and circumspection in assessing the evidentiary value of the identification evidence. This Court over the years has placed little reliance on such identification evidence. Even in the subsequent identification by the complainant in court, which has little evidentiary value, he failed to point an accusing finger at the appellants to say who did what, therefore the parts played by the appellants in the crime remain a mystery. See: In the matter of Kanwar Anwaar Ali (PLD 2019 SC 488) on the absence of a role assigned by the witness in an identification parade...."
13. Besides the foregoing, Muhammad Tayyab, complainant (PW.22) during his cross-examination stated as under:- ".... The accused Akram confessed all the details of occurrence before police in my presence at the time of their arrest on 18.04.2014 and the remaining accused Zulfiqar and Amjad were also present with him on the said date in my presence...."
He (PW.22) during his cross-examination admitted as under:- "...It is correct that police arrested different persons who were record holders and I also joined the police investigation. I do not know whether I appeared before police on 18.04.2014. I am educated person. It is correct that on 18.04.2014 police arrested Hamid Merasi and interrogated him. It is correct that Akram accused, Amjad Iqbal son of Ahmad Khan and Zulfiqar Ahmad son of Ahmad Khan present in the court were arrested by the police------ On 18-04-2014 police interrogated the accused present in the Court..."
Whereas, Tariq Mehmood, SI (PW.7) during his court statement stated that the complainant party was previously known to the accused persons. Relevant portion of his cross-examination reads as under:- "...It is correct that being co-villagers the complainant party was well known to the accused present in the court prior to this occurrence...."
In the eventuality of supra mentioned reproduced portion of evidence got recorded by Muhammad Tayyab, complainant (PW.22), it manifests that when the appellants were already seen by Muhammad Tayyab, complainant (PW.22) and they have allegedly made extra judicial confession before him on 18-04-2014 then the subsequent proceeding of identification parade had lost its significance. Reference in this respect may be made to the cases of "Shafqat Mehmood and others v. The State" (2011 SCMR 537), "Samar Abbas v. The State and others" (2017 YLR 48), "Niaz alias Niazi alias Jumma v. The State" (2017 MLD 1147) and "Waheed Khan v. The State and others" (2021 YLR Note 133).
14. So far as the supplementary statement of Muhammad Tayyab, complainant (PW.22) is concerned, it is noteworthy that after the test identification parade, which was held on 26-04-2014 during which Muhammad Akram alias Akri, appellant and Amjad Iqbal (acquitted co-accused) were not identified by Muhammad Tayyab, complainant (PW.22), he (complainant) got recorded his supplementary statement (Ex.PP) on 08-05-2014 and nominated Muhammad Akram alias Akri, Zulfiqar Ahmad, appellants as well as Amjad Iqbal (since acquitted) and Amir alias Amri (PO) but in the said supplementary statement no source of information has been described rather Muhammad Tayyab, complainant (PW.22) has stated that he came to Lnow through reliable sources that appellants along with their supra mentioned co-accused had committed the murder of his father. The Courts have always deprecated such kind of statements, which arc made with the purpose to strengthen the case of the prosecution at the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or crook. Nomination through supplementary statement has always been deprecated and disliked by the Hon'ble Supreme Court and has never been appreciated being afterthought. Here, I would like to refer the cases of "Akhtar Ali and others v. The State" (2008 SCMR 6) and "Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others" (PLD 2016 SC 951).
15. I have also noted with grave concern that the witnesses, namely Muhammad Tayyab, complainant (PW.22), Muhammad Rafique (PW.20) and Matloob Bibi (PW.21) have made blatant and dishonest improvements in their earlier statements. Muhammad Tayyab, complainant (PW.22) was duly confronted with improvements and the relevant portion of his cross-examination highlighting those improvements is as under:- "....I got recorded in my statement that accused persons tied my hands and searched me.
Confronted with Exh. PP wherein it is not so recorded. I got recorded in my statement that the mobile phone Nokia was lying on cot. Confronted with Exh. PP where it is not so recorded. I got recorded in my statement that accused persons took me to the residential room where my mother was sleeping. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that I took the accused towards the room of my father and my father asked me who are. Confronted with Exh. PP where it is not so recorded. I got recorded in my statement that Zulfiqar accused put Churi on my neck. Confronted with Exh. PP where it is not so recorded. I got recorded in my statement that Akram put pistol on my temporal region. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that accused extended threats to me to get opened the door of my father's room otherwise you will be killed. Confronted with Exh. PP where it is not so recorded. I got recorded in my statement that accused snatched mobile from my father. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that accused tried to apprehend my father. Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that Akram made fire on right side of head of my father who fell down.
Confronted with Exh.PP where it is not so recorded. I got recorded in my statement that besides the accused present in the court two other accused were outside of our house. Confronted with Exh.PP where it is no so recorded. I got recorded in my statement that 1 came to know later on that one was Amir and other is not tracable. Confronted with Exh.PP where it is no so recorded.........."
Similarly, Muhammad Rafique (PW.20) during his cross-examination stated as under:- "....I got recorded in my statement before police that I was sleeping in my Haveli of cattle shed adjacent to the street. Confronted with Exh.DC wherein it is not so mentioned. I got recorded in my statement before police that I went to the Haveli of deceased by scaling over the wall near the main gate. Confronted with Exh.DC wherein "near the main gate" is not mentioned. I got recorded in my statement before police that we saw three persons one armed with pistol one armed with hatchet and other was armed with dagger. Confronted with Exh.DC wherein it is not so recorded. I got recorded in my statement before police that one accused having middle height namely Akram present in the court made firing hitting on the person of Muhammad Khan deceased.
Confronted with Exh.DC wherein it is not so recorded, however, one accused made fire with pistol hitting on the head of deceased is mentioned. I got recorded in my statement before the police that deceased received firearm injury on the head near the right ear and went through and through. Confronted with Exh.DC where it is not mentioned only head injury on deceased is mentioned. I got recorded in my statement that we stood there due to fear at once. Confronted Exh.DC where it is not so recorded......."
Likewise, Matloob Bibi (PW.21) during his statement made so many improvements. Relevant portion of her cross-examination is described infra:- "...I got recorded in my statement before police that the accused present in the court tied the hands of my son Tayyab on his back. Confronted with Exh.DD wherein it is not so recorded. I got recorded in my statement before police that four mobiles were snatched from us. 1 got recorded in my statement before police that Akram put his pistol on my son. Confronted with Exh DD wherein it is not so recorded. I got recorded in my statement before police that accused took my son in the compound of house. Confronted with Exh.DD wherein it is not so recorded. I got recorded in my statement before police that when I was lying on cot. Confronted with Exh.DD where it is not so recorded. I got recorded in my statement that accused came out from my room.
Confronted with Exh.DD wherein it is not so recorded. I got recorded in my statement that the deceased took sotto and stood in the corner at that time my son having tied his hands raised hue and cry as the accused persons put their weapons at the person of my late husband deceased.
Confronted with Exh.DD where it is not so recorded however it is recorded that Muhammad Khan opened the door, came out and took a danda and after taking danda he intended to beat the accused. I got recorded in my statement that in the meanwhile accused made pistol blow hitting on the right side of head of deceased, who fell down. Confronted with Exh.DD where it is not recorded however, it is recorded that one accused having middle height made fire with his pistol hitting on the above left side of ear of my husband (deceased)....."
In a slew of decisions, the Hon'ble Supreme Court of Pakistan has stated that a witness is untrustworthy if he makes dishonest improvements in his statement on a material aspect of the case in order to fill gaps in the prosecution case or to bring his statement in line with the other prosecution evidence. Reference in this respect may be made to the judgment reported as "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600) wherein the august Supreme Court of Pakistan has held as under:- "....17. Deliberate and dishonest improvements made by a witness in his statement to strengthen the prosecution case cast serious doubts on his veracity, and makes him untrustworthy and unreliable. It is quite unsafe to rely on testimony of such witness, even on facts deposed by him other than those improvements unless it receives corroboration from some other independent piece of reliable evidence. 17 In the case of Shahzada v. Hamidullah, 18 a five-member Bench of this Court, on appraising the evidence of a witness, found that he had improved upon the version he had earlier given to the police while making statement in Court, and upon such finding held that the improvement had affected his veracity rendering it unsafe to rely upon his evidence.
Hamoodur Rahman, J., speaking for the Bench observed: " [The witness] also tried to improve upon the version he earlier gave to the police by introducing the story of his having seen the [accused] respondent Hamidullah actually loading his gun in the middle of the bazar.
In his police statement he had only stated that when he saw Hamidullah first he appeared to be proceeding to the shop of the deceased to purchase snuff this definite attempt at embellishment clearly affected his veracity and rendered it unsafe to rely upon his evidence." In the case of Akhtar Ali v. State 19 the complaint initially made statement that four unknown persons had committed the offence and did not name any person therein, but subsequently nominated the accused persons in his supplementary statement despite the fact that one of the accused person was already known to him. A four-member Bench of this Court, which heard the case, noted with concern that improvement made by the complaint even during investigation and discarded his testimony snaking the observations that "when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful."
I also fortify my view from the dictum laid down in cases titled as "Khalid Mehmood and another v.
The State" (2021 SCMR 810).
16. Another intriguing aspect of the case, which cannot be lost sight off is that the witnesses of ocular account, Muhammad Tayyab, complainant (PW.22), Muhammad Rafique (PW.20) and Matloob Bibi (PW.21) are not witnesses of inquest report (Ex.PE) and post mortem (Ex.PC) pertaining to Hafiz Muhammad Khan (deceased), had they been present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report. Similarly, they should have escorted the dead body to the hospital being the close relatives and neighbor and their names should have been incorporated in the post mortem report in the column of identification of the dead body. This fact has constrained me to hold that supra mentioned PWs were not present at the time and place of occurrence. Reliance is placed upon the following case laws titled as "Abdul Jabbar alias Jabri v. The State" (2017 SCMR 1155), "Nadeem alias Kala v. The State and others"
(2018 SCMR 153) and "Liaqat Ali and another v. The State and others" (2021 SCMR 780).
17. There is yet another intriguing aspect of the case that the learned trial court has disbelieved the prosecution evidence qua the co-accused Amjad Iqbal, whom identical role has been ascribed. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case. Reliance is placed upon the cases titled as "Shahbaz v. The State" (2016 SCMR 1763), "Nazir Ahmad v. The State" (2018 SCMR 787) "Haroon Shafique v. The State and others" (2018 SCMR 2118), "Munir Ahmad and another v.
The State and others" (2019 SCMR 79) and "Safdar Abbas and others v. The State and others"
18. So far as the medical evidence is concerned, according to the prosecution story, as per narration of FIR (Ex.PA), Hafiz Muhammad Khan (deceased) received fire arm injury above his left ear whereas according to the post-mortem report (Ex.PC) and testimony of Doctor Muhammad Javed Akhtar (PW.5), Hafiz Muhammad Khan (deceased) received firearm arm injury on the right side of his head. Injury described in the FIR (Ex.PA) was an exit wound. Similarly, according to the scaled site plan (Ex.PG), Hafiz Muhammad Khan (deceased) sustained firearm shot injury from a distance of one feet whereas Doctor Muhammad Javed Akhtar (PW.5) has not noted any blackening around the injury No. 1 which was only an entry wound on the body of deceased, which is reproduced as under:- "1.a A firearm wound with inverted edges measuring 1 cm x 1 cm located on right side of head 4 cm posterior to right ear (entry wound)...."
In the eventuality of abovesaid discussion, it is crystal clear that eye-witnesses were not present at the place of occurrence. Had they been present at the relevant time they must have described the exact seat of injury. Reliance is placed upon the case laws titled as "Faiz Meeran v. Muhammad Khan and others" (2016 SCMR 1456), "Zahir Yousaf and another v. The State and another" (2017 SCMR 2002) "Abdul Jabbar and another v. The State" (2019 SCMR 129), "Mian Sohail Ahmed and others v. The State others" (2019 SCMR 956).
19. According to the prosecution case on 29-04-2014 the recovery or a pistol .30 bore (P.1) was taken into possession vide memo (Ex.PH) on the pointation of the appellant Muhammad Akram alias Akri. I have noted that the witnesses of said recovery memo are police officials and no independent witness was examined by the prosecution. Thus, the investigation officer while effecting the recovery of the pistol at the instance of the appellant Muhammad Akram alias Akri has committed a violation of section 103, Cr.P.C. which creates doubt with regard to the recovery of said pistol. Reliance is placed upon the case law titled as "Muhammad Ismail and others v. The State" (2017 SCMR 898).
Moreover, the report of the Punjab Forensic Science Agency, Lahore (Ex.PSIA) is confined to the working condition of the pistol allegedly recovered at the instance of the appellant. Thus, the alleged recovery of a weapon of offence at the instance of the appellant is not helpful to the prosecution. This piece of evidence has rightly been discarded from consideration by the learned trial court in para No.27 of the impugned judgment. Reliance is placed upon the case titled as "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan held as under:- "7. It was asserted by the prosecution that a pistol had been recovered from the appellants' custody during the investigation but such recovery was legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered pistol with the alleged offence...."
Similar view has been reiterated by the august Supreme Court of Pakistan in case titled as "Khalid Mehmood and another v. The State and others" (2021 SCMR 810), wherein it has been held as under:- "6. No empty was secured from the spot by the investigating agency, therefore, the report of FSL is confined to working condition of 44 bore rifle allegedly recovered at the instance of the petitioner.
This piece of evidence has rightly been discarded from consideration by the learned High Court in Para No.13 of the impugned judgment....."
20. The prosecution has also emphasized the recovery of Rs.1200/- currency notes (P.6), which were taken into possession vide recovery memo (Ex.PJ) but the said recovery of currency notes is not helpful to the prosecution case because they were not recovered from the possession of the appellant Muhammad Akram alias Akri rather the same were allegedly produced by his brother namely Mono at police station tothe investigating officer. Moreso, no denomination of the said currency has been mentioned in the FIR (Ex.PA) as well as in application (Ex.PP) and, subsequently, after the recovery of alleged currency notes, no identification memo of currency notes was prepared. For this reason, this recovery has no evidentiary worth in the eye of the law. Even otherwise, currency notes are easily available in the market and could easily be planted, thus, the learned trial court has rightly disbelieved the recovery of currency notes against the appellant.
Reference is made to the judgment reported as "Muhammad Imran and others v. The State" (2021 YLR 95).
21. As far as recovery of churri (P.7) at the instance of the appellant Zulfiqar Ahmad, vide recovery memo (Ex.PK) is concerned, the same is not helpful to the prosecution because the witnesses of said recovery memo are police officials and no independent witness was examined by the prosecution. Thus, the investigation officer while effecting the recovery of the churl at the instance of the appellant Zulfiqar Ahmad has committed a violation of section 103, Cr.P.C. Moreover, from perusal of FIR (Ex.PA), as well as supplementary statement (Ex.PP), statement of Muhammad Rafique (PW.20) recorded under section 161. Cr.P.C. (Ex.DC) and statement of Matloob Bibi (PW.21) recorded under section 161, Cr.P.C. (Ex.DD), it reveal that none of the assailants was shown to have been armed with a Churi. In this way, recovery of churn through recovery memo (Ex.PK) at the instance of appellant Zulfiqar Ahmad has become inconsequential, thus the learned trial court has rightly disbelieved the recovery of Churi at the instance of the appellant Zulfiqar Ahmad.
It is well settled that unless direct or substantive evidence is brought on record, a conviction cannot be recorded on the basis of such evidence, howsoever convincing it may be. Reliance is placed upon the cases titled as "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142) and "Muhammad Mansha v. The State" (2018 SCMR 772).
22. After reviewing the prosecution case from every angle, I concluded that the case to the extent of the appellants is replete with doubts and their convictions and sentences cannot be upheld on the basis of such shaky and untrustworthy evidence. This country's Hon'ble Supreme Court has clearly stated that in the event of a doubt, the benefit must be given to the accused not as a matter of grace, but as a matter of right. Reliance is placed upon case laws titled as "Tariq Pervez v. The State" (1995 SCMR 1345), "Ayub Masih v. The State" (PLD 2002 SC 1048) and "Najaf Ali Shah v. The State" (2021 SCMR 736). The prosecution must prove its case against the accused beyond a reasonable doubt, and if it fails, the accused is entitled to the benefit of the doubt. The golden rule, also known as the rule of benefit of doubt, is essentially a rule of prudence that must be followed when dispensing justice in accordance with the law. So, after carefully weighing all of the case's advantages and disadvantages, this Court concludes that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt. As a result of which, the impugned judgment is set aside and the appellants, Muhammad Akram alias Akri and Zulfiqar Ahmad are acquitted of the charges. Muhammad Akram alias Akri, appellant is in jail. He be released forthwith if not required in any other case, whereas Zulfiqar Ahmad, appellant after serving out whole of his sentence is already released from jail in this case.