SADIQ MAHMUD KHURRAM, J. Jan Muhammad alias Jani son of Kaloo (convict) was tried along with Shah Dost son of Ali Murad (also convicted by the learned trial court, however, he has died since) by the learned Sessions Judge, Rajanpur in the case instituted upon the private complaint titled "Abdul Sattar v. Bilal Ahmad and 3 others" (relating to FIR No. 190 of 2010 dated 04.06.2010 registered at Police Station Dajal, District Rajanpur) in respect of offences under sections 302, 460 and 34 P.P.C. for committing the Qatl-i-Amd of Mushtaq Ahmad son of Karim Bakhsh (deceased).
The learned trial court vide judgment dated 28.08.2019, convicted Jan Muhammad alias Jani son of Kaloo (convict) and sentenced him as under:- Jan Muhammad alias Jani son of Kaloo: i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Mushtaq Ahmad son of Karim Bakhsh (deceased and directed to pay Rs.400,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Mushtaq Ahmad son of Karim Bakhsh (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous Imprisonment for ten years under section 460, P.P.C. Shah Dost son of Ali Murad, the co- accused of the convict, was also convicted by the learned trial court, however, he has died since.
2. Feeling aggrieved, Jan Muhammad alias Jani son of Kaloo (convict), lodged the Criminal Appeal No.817-J of 2019 through jail, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.126 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant, namely Jan Muhammad alias Jani son of Kaloo as well as Shah Dost son of Ali Murad (also covicted and sentenced to death by the learned trial court, however, Shah Dost soft of Ali Murad has died since and the Criminal Appeal No.816-J of 2019 lodged by Shah. Dost son of Ali Murad, stands abated in terms of section 431 Code of Criminal Procedure, 1898). We intend to dispose of the Criminal Appeal No. 8174 of 2019 and the Murder Reference No.126 of 2019 through this 'single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Abdul Sattar (PW-1), the complainant of the case, are as under:- "On 04.06.2010 I along with Mushtaq Ahmad deceased and Hafiz Muhammad Ismail with Azhar house members were sleeping and woke up at 01.00 a.m on the hue and cry of Mushtaq Ahmad deceased. At that time, Abdul Ghaffar also came there and in the light of electric bulb we saw that Shah Doast and Jan Muhammad both accused present before the court armed with Kalashnikovs, Bilal Ahmad armed with pistol 12-bore and Haq Nawaz armed with Kalashnikov were there. Shah Doast and Jan Muhammad accused present before the court were taking away motorcycle towards door of the Haveli while Mushtaq Ahmad deceased was pulling said motorcycle by holding it from the backside. The door of the Haveli was opened. At that moment Bilal Ahmad co-accused raised Lalkara to Mushtaq Ahmad deceased to leave the said motorcycle otherwise they will not left him alive because he had lodged an FIR about kidnapping of the girl against them. Then Haq Nawaz fired with Kalashnikov which hit on the chest of Mushtaq Ahmad deceased while Bilal accused made a fire with his pistol 12-bore which also hit on the chest of deceased Mushtaq Ahmad Shah. Dost and Jan Muhammad accused persons present in court left the motorcycle and fired at Mushtaq Ahmad deceased with their Kalashnikovs which hit on the chest and arms of Mushtaq Ahmad. Hariz Ismail P.W caught hold Kalashnikov of Haq Nawaz accused that left Kalashnikov and ran away while other accused persons also ran away with their respective weapons. Bilal accused also took away the mobile phone (Nokia 1680 with camera) of Mushtaq Ahmad deceased. We moved forwarded but Bilal accused raised Lalkara that if we came close we will also be dealt with the same as has been done with Mushtaq Ahmad deceased.
Accused persons left the motorcycle of Mushtaq Ahmad deceased and escaped. Motive behind the occurrence was that accused Bilal kidnapped one Mst. Mehtab Bibi daughter of Munir Ahmad for committing Zina and in this regard Mushtaq Ahmad deceased got lodged an FIR against Bilal accused and parents at police station Dajal. Due to influence of Mushtaq Ahmad deceased said abductee was returned back and due to this grudge all the accused persons entered in our house and committed murder of my brother Mushtaq Ahmad in furtherance of their common intention while making the excuse of theft of motorcycle. Thereafter, I went to police station while leaving Hafiz Ismail and Abdul Ghaffar PWS with the dead body. I was in the way to police station, when police met me at Turrki road to whom I got recorded my statement but they did not read over the same to me and got affixed my thumb impression. The police came at the place of occurrence and collected the evidence i.e blood stained earth, arms etc and sent the dead body for postmortem and handed over the dead body to us after postmortem. After many days, when proceedings started in our case and we engaged a counsel then we came to know that our FIR was registered against some un-known persons and police did this dishonestly. So I filed instant private complaint Ex.P-A. Shah Doast accused present in court was arrested on 29.05.2016 as he was P.O in this case. Police investigated from him. I and Abdul Ghaffar P.W joined the investigation at police station where during interrogation Shah Dost accused present in court made disclosure in our presence that he could get recovered. Kalashnikov weapon offence with which he fired at Mushtaq Ahmad deceased and he along with us and police in pursuance of disclosure led to the place of recovery of weapon of offence i.e Kalashnikov from his tent which was installed at the Eastern bank of Dajal canal which was taken into possession by Thanedar vide recovery memo Ex.P-B. I and Abdul Ghaffar P.W attested the same by affixing our thumb impressions. I.O also recorded my statement in this regard. There after accused was asked to point out the place of occurrence who expressed his consent. Then he pointed out the place of occurrence which was our house in which I and deceased were residing together and I.O. prepared the memo of pointation of place of occurrence Ex.P-C which was attested by me and Abdul Ghaffar by affixing our thumb impressions. I.O also recorded our statements in this regard.
On 23.10.2018 I along with Hafiz Muhammad Ismaeel went to police station, where accused Jan Muhammad alias Jani was already in police custody. In our presence, the accused Jan Muhammad alias Jani that he could get recovered Kalashnikov, weapon of offence. In pursuance of said disclosure we along with police and accused went to the residence of accused which was in the shape of tent. Then the accused Jan Muhammad alias Jan got recovered Kalashnikov from an iron box. The same was taken into possession through recovery memo Ex.P-D. I and Hafiz Ismaeel attested the recovery memo. I.O recorded my statement in this regard."
4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Abdul Sattar v. Bilal Ahmad and 3 others" (relating to FIR No. 190 of 2010 dated 04.06.2010 registered at Police Station Dajal, District Rajanpur) in respect of offences under sections 302, 460 and 34 P.P.C. for committing the Qatl-i-Amd of Mushtaq Ahmad son of Karim Bakhsh (deceased).
The learned trial court framed the charge against the accused on 18.12.2018, to which the accused pleaded not guilty and claimed trial.
5. The complainant of the case in order to prove its case got recorded statements of as many as seven witnesses. The ocular account of the case was furnished by Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2). Sharif Ahmad (PW-3) stated that on 04.06.2010, he identified the dead body of the deceased at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case in his presence.
Altaf Hussain, SI (PW-5) investigated the case from 21.10.2018 till 31.10.2018 and detailed the facts of his investigation in his statement before the learned trial court. Abdul Rauf 676/HC (PW-6) stated that on 23.10.2018, the Investigating Officer of the case handed over to him a sealed parcel said to contain a Kalashnikov rifle which on 30.10.2018, he handed over the said parcel to the Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Noor Hassan, ASI (PW-7) stated that on 04.06.2010, he recorded the formal FIR (Exh.PL).
6. The learned trial court also examined as many as seven witnesses as court witnesses. Ghulam Yaseen, Patwari (CW-1) prepared the scaled site plan of the place of occurrence (Exh.CW-1/1).
Muhammad Sadiq 210/C (CW-2) stated that on 08.06.2014, he was handed over non-bailable warrants of arrest of the appellant for execution, upon which his report was Exh.CW-2/1 and on 02.07.2014, he was handed over the proclamation (Exh.CW-2/3) under section 87 of the Code of Criminal Procedure, 1898 for its publication. Ijaz Ahmad, ASI (CW-3) stated that on 04.06.2010, the Investigating Officer of the case handed over to him sealed parcels said to contain blood stained earth, a Kalashnikov, an empty shell of a bullet and empty cartridges for keeping them in safe custody and on 13.07.2010, he handed over all the said parcels to Haq Nawaz 27/C for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Rasheed Ahmad 325/C (CW-4) stated that on 04.06.2010, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Allah Diwaya, SI (CW-5) conducted the investigation of the case from 16.10.2018 till 19.10.2018, arrested the appellant on 16.10.2018 and detailed the facts of his investigation in his statement before the learned trial court. Riaz Hussain Bukhari, SI (CW-6) conducted the investigation of the case from 23.05.2016 till 20.08.2016 and detailed the facts of his investigation in his statement before the learned trial court. Inayat Ullah 170/HC (CW-7) stated that on 18.08.2016, he handed over a sealed parcel said to contain a Kalashnikov rifle to Riaz Hussain Bukhari, SI (CW-6) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore.
7. The learned trial court also examined Dr. Muhammad Rashid (PW-4), who on 04.06.2010 was posted as Senior Medical Officer at R.H.C. Dajal and on the same day conducted the post mortem examination of the dead body of the deceased, namely Mushtaq Ahmad son of Karim Bakhsh. Dr. Muhammad Rashid (PW-4) on examining the dead body of the deceased namely Mushtaq Ahmad son of Karim Bakhsh, observed as under:- "DESCRIPTION OF INJURIES 1) A fire arm wound 1 cm x 1 cm going deep, margins inverted, burning, blackening present, situated on left side of chest 8 cm above from left nipple.
2) A fire arm wound of 1 cm x 1 cm going deep, margins inverted, burning, blackening present situated on left side of chest, medial to injury No. 1.
3) A fire arm wound of 1 cm x 1 cm going deep, margins inverted, burning blackening present situated on left side of chest, on left lateral aspect of left nipple 7 c.m from left nipple.
4) Four fire arm wounds of 1 c.m x 1 c.mx skin, burning blackening present situated on left side of chest on lateral aspect of left nipple and one on nipple 5) SA fire arm wound of 1 cm x 1 c.m going deep, margins inverted, burning and blackening present situated on right arm anterio lateral aspect 11 c.m above from right elbow joint. (entry).
6) A lacerated wound of 9 cm x 6 cm margins everted, blackening not present situated on posterior aspect of right arm, 7 cm lateral to right armpit (exit)
7) Four fire arms wounds of 1 cm x 1 cm skin deep burning and blackening present situated on medial aspect of left arm 24 c.m below from 3rd on anterior medial aspect 16 cm below from left shoulder.
8) A fire arm wound of 1 cm x 1 cm going deep, margins inverted, burning blackening present situated on posterior aspect on left forearm 24 c.m below from left elbow joint (entry).
9) A lacerated wound of 1 1/2 cm x 11/2 cm margins everted, burning blackening not present, shaft of left radius fractured situated on anterior aspect of left forearm 11 cm from wrist joint (exit).
10) Two fire arm wounds of 1 cm x 1 cm skin deep burning blackening present situated on posterior aspect of left forearm 24 c.m below from left elbow joint. .........
Remarks All the injuries were ante-mortem and caused by fire arm weapon. Death occurred due to haemorrhage and shock and injury to the Vital organ (left lung and heart). So the injuries Nos. 1, 2 and 3 proved fatal which were sufficient to cause death in ordinary course of nature. Probable time between injury and death was immediate and between death and postmortem was 10 to 11 hours."
8. On 16.05.2019, the learned counsel for the complainant gave up, the witnesses namely Abdul Ghaffar and Allah Bachaya as being unnecessary. On 23.05.2019, the learned counsel for the complainant gave up the witnesses namely Rab Nawaz and Muhammad Ramzan as being unnecessary. On 25.06.2019, the complainant of the case closed the prosecution evidence after tendering the report of the Punjab Forensic Science Agency, Lahore (Exh.PN) and the copies of the statements of Haq Nawaz 27/C (since dead) (Exh.PO) and Syed Akhtar Hussain, SI (since dead)
(Exh.PP).
9. After the closure of prosecution evidence, the learned trial court examined the appellant, namely Jan Muhammad alias Jani son of Kaloo under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant, namely Jan Muhammad alias Jani son of Kaloo, opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
10. At the conclusion of the trial, the learned Sessions Judge, Rajanpur convicted and sentenced the appellant as referred to above.
11. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy, of any reliance. The learned counsel for the appellant also submitted that the recoveries made in the case were full of procedural defects, of no legal worth and value, and were the. Result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion.
The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
12. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Jan Muhammad alias Jani. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recoveries also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal.
13. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance.
14. The whole prosecution case revolves around the statements of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2), with the deceased, is on record. Mushtaq Ahmad (deceased) was the brother of both the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2). The prosecution witness namely Abdul Sattar (PW-1) also admitted during cross- examination that his house was at a distance of as much as 5/6 acres from the place of occurrence. The prosecution witness namely Abdul Sattar (PW-1), during cross-examination stated as under:-"In the night of occurrence I was at the place of occurrence with my mother. My house is at a distance of 5/6 acres from the place of occurrence. "(Emphasis supplied)
The prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) did not explain as to why and in what circumstances, the prosecution witness namely Abdul Sattar (PW-1), who had his house at a distance of as much as 5/6 acres from the place of occurrence, came to be present at the place of occurrence, at the time of occurrence.
15. We have also noted that according to the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2), the occurrence took place in the dead of night at about 01.00 a.m in the balmy 4th night of the month of June, 2010, however, admittedly no source of light, which could have enabled the witnesses to have rightly identified the accused and also allowing the witnesses to note the individual roles of each and every accused present at the place of occurrence, at the time of occurrence, was produced by the witnesses during the investigation of case or even before the learned trial court. The prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) claimed that they had witnessed the occurrence in the light of an electric bulb which was lit at the place of occurrence, however, the said electric bulb, which was allegedly lit at the place of occurrence and in the light of which the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) allegedly witnessed the occurrence, was neither produced by the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) to the Investigating Officer of the case nor the Investigating Officer of the case, during his visit to the place of occurrence, took into possession any such electric bulb. The non- production of the electric bulb which was allegedly lit at the place of occurrence, at the time of occurrence is all the more a matter of disquiet for the reason that the trial of the case was conducted in a private complaint and if the said source of light was indeed available then the complainant of the case could have easily produced the same before the learned trial court. The failure of the complainant of the case to produce the same before the learned trial court leads to only one conclusion, and that being that no such source of light was available at the place of occurrence which could have enabled the eye-witnesses to have identified the assailants and also witness the individual roles of the assailants as acted by them during the occurrence. As mentioned above, no such electric bulb which was lit at the place of occurrence was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence. According to the prosecution evidence, the Investigating Officer of the case, visited the place of occurrence after the occurrence but the electric bulb, which was allegedly available and lighted at the place of occurrence, at the time of occurrence, was not taken into possession at the spot by the Investigating Officer along with other recoveries though there was no occasion for the said electric bulb not to have been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer or it being not taken into possession by the Investigating Officer during his visit at the place of occurrence. The joint failure of Abdul Sattar (PW- 1), the complainant of the case and the Investigating Officer, to produce the electric bulb allegedly present at the place of occurrence and lighted up at the time of occurrence, proves that none was available and only an invented and false claim of such an electric bulb being available was made by the said witnesses. We have noted that according to the record of the case, during the course of investigation a torch light was produced by Muhammad Ramzan, a witness who had stated that he had seen the accused coming from the place of occurrence in the light of the said torch light, however, during the course of trial of the appellant, the said witness namely Muhammad Ramzan was given up as an unnecessary witness by the complainant of the case on 23.05.2019. Besides, it was never the claim of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) that they had used the torch light available with Muhammad Ramzan (given up prosecution witness) to identify the assailants. The prosecution witnesses failed to establish the fact of such availability of light source and in absence of their ability to do so; we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in the dark. It was admitted by the witnesses themselves that it was a dark night and they had used the light of an electric bulb, never produced, to identify the assailants during the occurrence and as the prosecution witnesses failed to prove the availability of such a light source, their statements with regard to them identifying the assailants cannot be relied upon.
The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised "Reliance is also placed on the case of "Hameed Gul v. Tahir and 2 others" (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:- "Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence.
The One Haid Akbar who produced the same' before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along."
Reliance is also placed on the case of "Basar v. Zulfiqar Ali and others" (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:- "7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights.
The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt."
Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:- "It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant.
Although in the site plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."
Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer."
16. We have also noted with concern that despite the occurrence having taken place at about 01.00 a.m. on 04.06.2010, the matter was not reported to the police till 04.30 a.m. on 04.06.2010.
According to the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) a motorcycle was available at the place of occurrence, and the prosecution witness namely Abdul Sattar (PW-1) travelled upon the same for reporting the matter to the police, however, still the oral statement of Abdul Sattar (PW-1) was recorded by Akhtar Hussain, SI (since dead) at 04.30 a.m. and the formal F.I.R (Exh.PL) was registered on the basis of the said oral statement of Abdul Sattar (PW-1) by Noor Hassan, ASI (PW-7) at 04.50 a.m. on 04.06.2010. In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because, the prosecution witness namely Abdul Sattar (PW-1) delayed the matter of reporting the incident to the police. This inordinate delay in reporting the matter conclusively proves that the prosecution witnesses namely Abdul Sattar (PW- 1) and Hafiz Muhammad Ismail (PW-2) were not present at the place of occurrence, at the time of occurrence and the said delay was used to procure their attendance.
17. It is also an admitted part of the prosecution case that at the time of narrating the incident to Akhtar Hussain, SI (since dead) at 04.30 a.m. on 04.06.2010, the complainant of the case namely Abdul Sattar (PW-1) did not name any person as an accused in his oral statement and the formal FIR (Exh.PL) was registered against three unknown accused persons. The prosecution witness namely Abdul Sattar (PW-1) admitted during cross-examination as under:- "We reported to police about the nomination of accused persons but police chalked out FIR against unknown persons and for the said reason I filed instant private complaint."(Emphasis supplied)
Altaf Hussain, SI (PW-5) also admitted during cross-examination as under: - It is correct that FIR was registered against three unknown accused persons. Features of whom were mentioned therein."
Allah Diwaya, SI (CW-5), the Investigating Officer of the case who arrested the appellant, also admitted during cross-examination as under:- "It is correct that accused was not nominated in the FIR"
The failure of the prosecution witness namely Abdul Sattar (PW-1) to name the appellant as an accused in his oral statement recorded by Akhtar Hussain SI (since dead), on the basis of which the formal FIR (Exh.PL) was registered at the Police Station by Noor Hassan, ASI (PW-7), conclusively prove that the appellant was involved in the case subsequently and had the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) seen the appellant present at the place of occurrence, taking part in the same, then they did not exist any possibility that they would not have named him as an accused in the FIR (Exh.PL).
18. We have also noted with disquiet that despite the fact that the occurrence took place at about 01.00 a.m. on 4th June, 2010, the post-mortem examination of the dead body of the deceased was conducted after much delay at about 10.45 a.m. on 4th June, 2010. According to Dr. Muhammad Rashid (PW-4), he on 04.06.2010 at about 10.45 a.m conducted the post-mortem examination of the dead body of Mushtaq Ahmad after more than nine hours of the occurrence. Dr. Muhammad Rashid (PW-4) also noted developed rigor mortis at the time of conducting the post-mortem examination of the dead body of the deceased. Before proceeding any further, it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly, the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from "The Principles and Practice of Medical Jurisprudence" by Alfred Swaine Taylor, MD, is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 'POST-MORTEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), it has been discoursed as under:- "Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.
Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.
In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However, according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor.
Time of Onset. This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.
Duration In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination."
No explanation was offered to justify the said delay in conducting the post-mortem examination of the dead body. The inordinate and unexplained and substantial delay in the post-mortem examination of the dead body clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant escaping from the place of occurrence had not seen the occurrence and were not present at the time of occurrence and the delay in the post-mortem examination was used to procure their attendance and formulate a dishonest account of the occurrence, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post-mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327) has held as under: "The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian Sohail Ahmed and others v. The State and others" (2019 SCMR 956) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15, a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution.
The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068) has held as under: "More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating .officer 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 government 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 strikingly wants."
19. A perusal of the record reveals that Muhammad Bilal and Haq Nawaz alias Mota, two co- accused of the appellant, were tried by way of a separate trial and convicted and sentenced by the learned trial court. Both Muhammad Bilal and Haq Nawaz alias Mota, two co-accused of the appellant, assailed their convictions and sentences by lodging Criminal Appeal No.760 of 2012 titled 'Muhammad Bilal v. Abdul Sattar etc.' and Criminal Appeal No. 806 of 2012 titled 'Haq Nawaz alias Mota v. The State etc.', which appeals were allowed by this Court vide judgment dated 13.02.2017 and both Muhammad Bilal and Haq Nawaz alias Mota, two co-accused of the appellant, were ordered to be acquitted by this Court. The question for determination before this Court now is whether the evidence of the prosecution witnesses which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of the same offence, is now a settled proposition. The august Supreme Court of Pakistan has held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:- "The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences 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 Evidence and Offences against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments. Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this countrypractically 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 it also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."
Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2), the eye-witnesses of the occurrence. Abdul Sattar (PW-1) in his statement recorded by the learned trial court stated as under:- "Then Haq Nawaz fired with Kalashnikov which hit on the chest of Mushtaq Ahmad deceased while Bilal accused made a fire with his pistol 12-bore which also hit on the chest of deceased Mushtaq Ahmad. .......................................
The fires of Haq Nawaz accused hit the deceased on the arms and chest of the deceased Mushtaq.
After receiving fires from Bilal and Haq Nawaz, Mushtaq deceased fell down while facing towards the grounds." Similarly, Hafiz Muhammad Ismail (PW-2) in his examination-in-chief stated as under:- "Then Bilal and Haq Nawaz fired at Mushtaq Ahmad deceased with 12-bore pistol and Kalashnikov respectively which hit on the chest of Mushtaq Ahmad deceased. .............................
Bilal accused was armed with pistol 12 bore and Bilal accused made fire shot and thereafter Haq Nawaz fired a burst."
Both the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) attributed causing of injuries to the deceased by Muhammad Bilal and Haq Nawaz alias Mota, co- accused of the appellant, both since acquitted, however, both the witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) were found to have made false statements with regard to Muhammad Bilal and Haq Nawaz alias Mota, co-accused of the appellant, both since acquitted.##TE# The prosecution witness namely Hafiz Muhammad Ismail (PW-2), admitted during cross-examination as under:- Bilal and Haq Nawaz accused were already sentenced in this case who were later on acquitted from High Court"
We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appellant from the case of the acquitted co-accused namely Muhammad Bilal and Haq Nawaz alias Mota, as the prosecution evidence with regard to the appellant and with regard to his co-accused, namely Muhammad Bilal and Haq Nawaz alias Mota, (both since acquitted) is similar. We find no reason to believe the statements of the witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) with regard to the appellant in absence of any reason for us to do so. This lying on part of the witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) with regard to Muhammad Bilal and Haq Nawaz alias Muta, co-accused of the appellant, both since acquitted has vitiated our trust in them. We ate !rats satisfied that the evidence of Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) has no worth and deserves outright rejection. Reliance in this regard is placed on the case of "Tariq v. The State" (2017 SCMR 1672) wherein the august Supreme Court of Pakistan has held as under:- "So the conviction of the appellant can only be sustained if There is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant.
Reliance in this regard is also placed on the case of Munir Ahmed and others v. 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 deceased 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 petitioners 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 occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case."
Reliance is also placed on the case of Safdar Abbas and others v. 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-accused; 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 inconsequential. 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. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon that the recovery of the Kalashnikov rifle (P-7) from the appellant and the report of Punjab Forensic Science Agency, Lahore (Exh. P.N.) and have submitted that the said recovery from the appellant offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2). The recovery of the Kalashnikov rifle (P-7) from the appellant cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the said recovery, which action of him was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recovery cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The prosecution witness namely Hafiz Muhammad Ismail (PW-2) admitted during cross-examination as under: - "It is correct that I.O did not invite any local person to join the recovery proceedings."
Similarly, Altaf Hussain, SI (PW-5) during cross-examination admitted as under:- "It is correct that no private person apart from complainant party is the witness of this case."
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.
The august Supreme Court of Pakistan in the case of Muhammad Ismail and others v. 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 section 103, Cr.P.C. had flagrantly been violated in that regard."
Moreover, according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PN), the recovered Kalashnikov rifle (P-7) was found in working condition, however, no comparison was made of the said Kalashnikov rifle (P-7) with the empty shells of the bullets recovered from the place of occurrence, therefore, the report of the Punjab Forensic Science Agency, Lahore (Exh.PN) offers no proof of any relevant fact. In this manner, the prosecution failed to prove the recovery of the Kalashnikov rifle (P-7) from the appellant.
21. 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 Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) was that before the occurrence, Muhammad Bilal (since acquitted), the co-accused of the appellant, abducted Mst. Mehtab Bibi, daughter of Munir Ahmad, the cousin of the deceased and as the case was got lodged for the abduction of Mst. Mehtab Bibi by the deceased, therefore, the accused murdered the deceased. The prosecution witness namely Abdul Sattar (PW-1) in his statement before the learned trial court stated as under:- "Motive behind the occurrence was that accused Bilal kidnapped one Mst. Mehtab Bibi daughter of Munir Ahmad for committing Zina and in this regard Mushtaq Ahmad deceased got lodged an FIR against Bilal accused and parents at Police Station Dajal. ................
It is correct that I got recorded in my examination in chief that accused Bilal kidnapped Mst.
Mehtab Bibi and Mushtaq deceased got lodged FIR against Bilal for said occurrence and due to said grudge Mushtaq was done to death. On the night of occurrence Bilal raised Lalkara to teach a lesson to Mushtaq deceased for lodging an FIR regarding the matter of abduction of above said Mehtab Bibi daughter of Munir Ahmed (cousin of complainant)."
The prosecution witness namely Hafiz Muhammad Ismail (PW-2)) in his statement before the learned trial court stated as under:- "Motive behind the occurrence was that Bilal accused kidnapped one Mst. Mehtab Bibi daughter of Munir Ahmad for committing zina and in this regard Mushtaq Ahmad deceased got lodged an FIR against Bilal accused and his parents at Police Station Dajal."
The perusal of the above reproduced statements of the prosecution witnesses namely Abdul Sattar (PW-1) and Hafiz Muhammad Ismail (PW-2) reveals that the appellant namely Jan Muhammad alias Jani was not related to the motive of the case at all. Moreover, Mehtab Bibi, neither joined the investigation of the case nor the prosecution produced her before the learned trial court in support of the alleged motive. The prosecution witnesses did not even make an effort to provide any details regarding the connection of the appellant with the motive. The failure of the various Investigating Officers of tile case, to join Mehtab Bibi in the Investigation of the case reflects poorly on the prosecution case. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant namely Jan Muhammad alias Jani to have committed the Qatl-i- Amd of the deceased namely Mushtaq Ahmad. There is an evocative muteness in the prosecution case with regard to the minutiae of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable, then motive and recovery have no evidentiary value and lost their significance.
22. The learned Deputy Prosecutor General and the learned counsel for the complainant have also laid much premium on the abscondence of the appellant 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 All (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 v.
The State" (2006 SCMR 1707) and "Nizam Khan and 2 others v. The State" (1984 SCMR 1092) and Rohtas Khan v. The State (2010 SCMR 566)
23. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Muhammad Rashid (PW- 4) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellants' conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another v. The State"
(2017 SCMR 986) has enunciated the following principle of law: "The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
The august Supreme Court of Pakistan, in its binding judgment titled "Naveed Asghar and 2 others v. The State" (PLD 2021 Supreme Court 600) has enunciated the following principle of law: "31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."
24. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of appellant namely Jan Muhammad alias Jani son of Kaloo in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there32 should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah v.
The State (2021 SCMR 736) in which it has been observed 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 person's 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 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 (1995 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 eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused." -
25. For what has been discussed above Criminal Appeal No.817-J of 2019 lodged by the appellant namely Jan Muhammad alias Jani son of Kaloo is allowed and the conviction and sentences of the appellant awarded by the learned trial court through the impugned judgment dated 28.08.2019 are hereby set-aside. The appellant namely Jan Muhammad alias Jani son of Kaloo is ordered to be acquitted by extending him the benefit of the doubt. The appellant namely Jan Muhammad alias Jani son of Kaloo is in custody and is directed to be released forthwith if not required in any other case.
26. Murder Reference No.126 of 2019 is answered in Negative and the sentence of death awarded to Jan Muhammad alias Jani son of Kaloo is Not Confirmed. Murder Reference No. 126 of 2019 seeking confirmation or otherwise of the sentence of death awarded to Shah Dost son of Ali Murad (since dead) needs no further consideration and the question of confirming or otherwise of the sentence of death awarded to Shah Dost son of Ali Murad remains no more relevant in view of the fact that Shah Dost son of Ali Murad has already died. Therefore, Murder Reference No. 126 of 2019 is answered as such to the extent of Shah Dost son of Ali Murad (since dead) and the sentence of death awarded to Shah Dost son of Ali Murad (since dead) is not confirmed.