SADIQ MAHMUD KHURRAM, J. Muhammad Sharif son of Raheem Bakhsh (convict) was tried along with Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan (both since acquitted), the' co-accused of the convict, by the learned Additional Sessions Judge, Dera Ghazi Khan in the case FIR No. 334 of 2013 dated 08.12.2013 registered in respect of offences under sections 302,324, 148 and 149, P.P.C. at the Police Station Shah Saddar Din, District Dera Ghazi Khan for committing the Qatl-i-Amd of Awais Bashir son of Bashir Ahmad (deceased). The learned trial court vide judgment dated 21.03.2018, convicted Muhammad Sharif son of Raheem Bakhsh (convict) and sentenced him as infra: Muhammad Sharif son of Raheem Bakhsh:- Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Awais Bashir son of Bashir Ahmad (deceased) and directed to pay Rs.200,000/- as compensation under section 544A, Cr.P.C. to the legal heirs of the deceased and 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.
Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan, the co- accused of the convict, were, however acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Sharif son of Raheem Bakhsh (convict) lodged Criminal Appeal No.282 of 2018, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.45 of 2018 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Sharif son of Raheem Bakhsh.
The complainant of the case namely Shahid Bashir filed Criminal Appeal No.580 of 2018 against the acquittal of the accused namely Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan. We intend to dispose of the Criminal Appeal No. 282 of 2018, Criminal Appeal No.580 of 2018 and the Murder Reference No.45 of 2018 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Shahid Bashir (PW-1), the complainant of the case are as under:- "States that during the night between 7/8-12-2013, there was a musical programme in the marriage ceremony of my cousin Javed Iqbal There was arrangements of lightning in the place of function.
At about 11.00 P.M, the accused present in court Muhammad Sharif armed with Kalashnikov and pistol, Allah Bakhsh armed with and Akhter Aias (sic) Bido accused were also armed with Kalashnikovs alpg with three unknown accused armed with fire arms came at the marriage ceremony and started ariel ^c) firing, I along with my father Basheer Ahmad, Abdul Latif maternal uncle, Ghulam Fareed uncle and my brother Awais Bashir strictly restrained them not to make ariel
(sic) firing. Upon this hot- words were exchanged and then scuffle took place between me and accused Sharif. The accused persons extended threats us to that they would teach him a lesson for insulting them. In the meanwhile, the accused persons made straight firing upon us with their respective weapons. We save (sic) our lives while laying on the ground, however, a fire made by Muhammad Sharif accused hit on the back of head of my younger brother Awais Bashir aged about 12/13 years, who fell down on the earth after receiving the injury and another fire hit Irshad Hussain son of Muhammad Ramzan the owner of Sound System. The accused persons fled away from the spot through their motorcycles, while making firing. The accused persons left a motorcycle Honda 125/C.G. bearing registration No. 1051 DGN in ditch of a water while fleeing away from the spot. We proceeded to D.H.Q. Hospital DG.Khan for his medical treatment while boarding the injured in a private vehicle but in the way Rescue 1122 met us, we shifted the injured on vehicle of Rescue 1122, and reached the Trauma Center. The injured Muhammad Irshad himself went to R.H.C. Shahsaddar Din for his treatment. The doctors in the Trauma Center attempted to save life of Awais Bashir while taking him first aid, who died succumbing to the injuries in the Trauma Center.
We took the dead body of Awais Bashir and reached our houses. We deputed my father Bashir Ahmad and other relatives for guarding the dead body and I along with Ghulam Fareed FW proceeding to Police Station for reporting the matter. The police met us near Grid Chowk I got recorded my statement Ex-PA before the Police. The police read over the same to me and I signed the same in token of its correctness.
The motive behind the occurrence was that I along with P.W.s restrained the accused persons from making ariel (sic) firing in the marriage ceremony, due to this grudge, the accused Sharif committed murder of my brother Awais Bashir and other accused persons with their common intention injured Irshad."
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 02.02.2017 to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as thirteen witnesses recorded. The ocular account of the case was furnished by Shahid Bashir (PW-1) and Ghulam Farid (PW-2). Muhammad Kaleem Kaman Patwari (PW-3) prepared the scaled site plan of the place of occurrence (Exh. P. B.). Shameem Abbas, A.S.I. (PW-8) stated that on 08.12.2013, Muhammad Ayyub, SI (PW-6) handed over to him one sealed parcel said to contain the blood stained earth, one sealed parcel said to contain four empty shells of bullets of 30-bore and one sealed parcel said to contain sixteen empty shells of bullets of Kalashnikov rifle collected from the place of occurrence and on 01.01.2014, he handed over the said parcels to Zahid Iqbal 800/C (PW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Abdul Rehman SI (PW-9) stated that on 08.12.2013, he recorded the formal FIR (Exh. PA/1). Muhammad Ishfaq, (PW-13) stated that on 08.12.2013, 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. Muhammad Ayyub, SI (PW-6) investigated the case from 08.12.2013 till 14.01.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Moazzam Mahmood Abbas, SI (PW-12) investigated the case from 10.06.2016 till 17.08.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Munir Ahmad, SI (PW-10) investigated the case from 28.08.2016 till 21.11.2016, arrested the appellant on 16.09.2016, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Gull Hassan Shah (PW-7) examined, who on 08.12.2013 was posted as Medical Officer R.H.C. Shah Saddar Din and on the same day, conducted the post-mortem examination of the dead body of Awais Bashir son of Bashir Ahmad (deceased). Dr. Gull Hassan Shah (PW-7), on examining the dead body of Awais Bashir son of Bashir Ahmad (deceased) observed as under:- "Injury No.1 A contused firearm lacerated wound of 1.5 cm x 1.5 cm circular in shape with margins inverted wound was going deep on the back of the right side of the head just about and slightly behind to the top of the right ear; (wound of entrance). Wound had blood clots in it. Skull membrane was injured.
Injury No. 2 Another contused firearm lacerated wound of nearly 2.5 cm obliquely horizontal on the left of the front of forehead at the level of left eyebrow and the middle of the left eyebrow level. It was 1 cm.
Wound was going deep and there was fracture of frontal and orbital bone. Margins of the wounds were inverted. It was a wound of exit. No blackening and burning was found. ..................................
Opinion In my opinion, both the injuries i.e. 1 and 2 were ante mortem injuries and both are on head and were entrance and exit wound. There were grievous one and they had injured skull and brain and brain matter and membrance of brain. Causing injury to brain matter leading to neurogenic shock and hemorrhagic leading to the failure of the brain, failure of the heart and then death. Probable duration between the injury and death was within few minutes and between death and postmortem was within 12 hours."
On the same day, Dr. Gull Hassan Shah (PW-7), also medically examined Muhammad Irshad (given up P.W.). Dr. Gull Hassan Shah (PW-7), on examining Muhammad Irshad (given up P.W.) observed as under:- "Injury No.1 A contused firearm lacerated wound of 1.5 cm x 1 cm obliquely horizontal on the front of the middle of the left upper arm with margin of the wound inverted (wound of entrance). Wound was going deep. No blackening and no burning was seen. Injured was complaining of severe pain in the left upper arm and also on the front side of the left side of the chest. Injured was feeling dyspnea. X-ray of left upper arm and X-rays of chest all views were advised."
7. On 02.03.2018, the learned Assistant District Public Prosecutor gave up the prosecution witness, namely Irshad Hussain as being won over by the accused as well as being settled outsdide Pakistan and gave up the prosecution witnesses, namely Abdul Latif, Javed Iqbal, Bashir Ahmad and Shoaib as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh. P. O.).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Sharif son of Raheem Bakhsh 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 Muhammad Sharif son of Raheem Bakhsh, opted not to get himself .examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence..
9. At the conclusion of the trial, the learned Additional Sessions Judge, Dera Ghazi Khan convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the Kalashnikov rifle.(P-6) and five bullets (P-7/1- 5) was full of procedural defects, of no legal worth and value, and was 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.
11. 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 Muhammad Sharif. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that medical evidence also corroborated the statements of Shahid Bashir (PW-1) and Ghulam Farid (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) 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 offender 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. The learned counsel for the complainant also argued that the Criminal Appeal No.580 of 2018, assailing the acquittal of Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan by the learned trial court, also merited acceptance.
12. 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.
13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), with the deceased, is on record. Awais Bashir (deceased) was the brother of Shahid Bashir (PW-1), and the paternal nephew of the prosecution witness namely Ghulam' Farid (PW-2). The prosecution witness namely Ghulam Farid (PW-2), during cross-examination, explained as under:- "I am paternal uncle of the complainant and the deceased."
We have also noted that according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the occurrence happened after the prosecution witness namely Shahid Bashir (PW-1) had an altercation with the appellant over him stopping the appellant and his companions from firing at the place of occurrence. The prosecution witness namely Shahid Bashir (PW-1) in his statement before the court stated as under:- "Upon this hot words were exchanged and then scuffle took place between to me and accused Sharif. ..................
When we forbade the accused persons from making aerial firing in the marriage function, due to which, altercation of hot wards occurrence between me and Sharif accused; all the accused persons were carrying fire arms at said time. ..................
When firing was made by the accused persons on me, I was present at the distance of 9 karams from them. "
The prosecution witness namely Ghulam Farid (PW-2) in his statement before the court stated as under:- "Only Shahid complainant went to forbid the accused persons from aerial firing." (emphasis supplied)
In these circumstances, the prosecution witness namely Shahid Bashir (PW-1) should have also been the target of the assailants. Furthermore, according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the prosecution witness namely Shahid Bashir (PW-1) was in clear view, at a meagre distance, from the assailants and unarmed whereas the accused, as many as six in total, were allegedly armed with various firearm weapons. Neither there was any dearth of ammunition nor that of intent and opportunity on the part of the appellant or his co-accused for not doing away with the prosecution witness namely Shahid Bashir (PW-1), who at the time of occurrence, was allegedly present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the prosecution witness namely Shahid Bashir (PW-1) was present. In this scenario, it is hard to believe that the prosecution witness namely Shahid Bashir (PW-1) would have been shown the courtesy of not being harmed at all when he should have also been the target of the assailants. In the midst of firing by so many accused persons, the prosecution witness namely Shahid Bashir (PW-1) did not receive even a single scratch on his body during the whole occurrence. If the prosecution witness namely Shahid Bashir (PW-1) had been present in the view of the assailants, then he would not have been spared.
Blessing the prosecution witness namely Shahid Bashir (PW-1), with such an incredible consideration and showing them such favour, the persons with whom the assailants had a direct dispute with, is implausible and opposed to the natural behaviour of any accused.
14. We have also noted with concern that the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) failed to prove that in what circumstances the deceased came to be hit by a bullet at the place of occurrence as according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), they had got down from the stage, along with the deceased, to stop the assailants from making celebratory firing at the place of occurrence and the assailants did stop, however, subsequently, they fired at the prosecution witness namely Shahid Bashir (PW-1) when he was at a distance of nine karams from the stage whereas at that moment the deceased was standing near the said stage. The prosecution witness namely Shahid Bashir (PW-1) also claimed during cross-examination that when he along with the other witnesses was laying on the ground, dodging the bullets being fired by as many as six assailants, none of the assailants attempted to make any firing directly at the witnesses. It was also claimed by the prosecution witness namely Shahid ,Bashir (PW-1) that the deceased was hit by a bullet at a distance of 18 karams from the assailants, whereas the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) were at a distance of only nine karams from the assailants.
The prosecution witness namely Shahid Bashir (PW-1) during cross-examination stated as under:- "When the accused persons were making aerial firing, we alighted from the stage, went closer to the accused persons and asked them to stop the aerial firing. When we asked the accused persons to stop the aerial firing, they stopped the aerial firing and immediately did not made fire on us.
When firing was made by the accused persons on me, I was present at the distance of 9 karams from them. At said time, Awais my brother was present near the stage, however my father Bashir Ahmad, Ghulam Fareed my uncle and Abdul Latif were present with me. At that time, stage was towards south west from us at the distance of 9 karams. When firing was made, we laid down on the ground, however the accused persons did not came near to us and did not make firing on us, when we were lying on the ground. When Awais reached D near the stage and firing was made, only two persons namely Awais himself and Irshad were present on the stage. When physical altercation between the accused persons and us occurred and firing was made, all the persons sitting at the stage including Mansoor Malangi left the stage. Awais Bashir received bullet shots from the distance of 18 karams."
(emphasis supplied)
The above referred portion of the cross-examination of the prosecution witness namely Shahid Bashir (PW-1) also brings into question that if the prosecution witnesses namely Shahid Bashir (PW- 1) and Ghulam Farid (PW-2) were laying and cowering on the ground to save themselves from the bullets being fired, then how they were able to observe the firing made by each of the assailants and the consequential hitting of the deceased by one of the bullets. When according to the prosecution witnesses namely Shahid Bashir.(PW-1) and Ghulam Farid (PW-2) themselves they were ducking and recoiling to save their lives during the occurrence, then there did not exist any possibility that they would have been able to witness and observe the maker of the fatal shot at the deceased. Such behaviour, on part of the accused, as deposed by the prosecution witnesses. namely Shahid Bas'iir (PW-1) and Ghulam Farid (PW-2), runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it th, aks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We, thus, trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailants, as deposed to by prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) was opposed to the common course of natural events and human conduct. Hence, we are holding that the prosecution witnesses namely Shahid Bashir (PW- 1) and Ghulam Farid (PW-2), did not witness the occurrence. The august Supreme Court of Pakistan, in its binding judgments, has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses, but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses had not witnessed the occurrence. The august Supreme Court of Pakistan, in case Tariq Mehmood v. The State and others (2019 SCMR 1170), has observed as under: "First sight cannot escape preponderance of evidence; however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report."
The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P. Ws. were not present at the place of occurrence."
The august Supreme Court of Pakistan in the case of Muhammad Farooq and another v. The State (2006 SCMR 1707) at page 1712 held as under:-- "Had P. W. 9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596) where at page 601 it was observed as under: - "Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye-witness. The site plan positions would show that, he and the other P. Ws. were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e- Shahadat Order, 1984, therefore, the court is unable to acceptsuch unbelievable proposition."
15. We have noted that according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the occurrence took place at about 11.00 p.m. on a cold winter night of 07.12.2013, however, admittedly, no source of light, which could have enabled the witnesses to have rightly identified the accused and also allowed the witnesses to have noted 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 Shahid Bashir (PW-1) and Ghulam Farid (PW-2) claimed that they had witnessed the occurrence in the light of the electric bulbs which were lit at the place of occurrence, however, the said electric bulbs, which were allegedly lit at the place of occurrence and in the light of which the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) allegedly had witnessed the occurrence, were neither produced by the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (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 bulbs. The non-production of the electric bulbs which were allegedly lit at the place of occurrence, at the time of occurrence is all the more a matter of disquiet for the reason that according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) the assailants were standing at a distance of as much as 18 karams from where the electric bulbs were allegedly lit. Muhammad Ayyub SI (PW-6), the Investigating Officer of the case, stated during cross-examination as under:- "According to rough site plan prepared by me, at point No.4 there were the accused and at the distance of 18 karams from point No.4 at point No.3 there were the witnesses towards southwest and at point No.1 at a distance of 9 karams from point No.3, there was deceased towards southwest. At point No.5 towards north from point No.4, the crime empties were lying and I did not mention the distance between points Nos.4 and 5."
In this manner, according to the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), the assailants were standing at a place 18 karams away from the stage and the 11 availability and range of the electric bulbs lit at the place of the occurrence to have an affect at such a huge distance was also not proved. 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 out of the many which were allegedly lit at the place of occurrence was taken into possession by the Investigating Officer. According to the prosecution evidence, the Investigating Officer of the case, visited the place of occurrence after the occurrence, still, the electric bulbs, which were allegedly available and lighted at the place of occurrence, at the time of occurrence, were not taken into possession at the spot by the Investigating Officer along with the other recoveries, though there was no occasion for the said electric bulbs not to have been present at the place of occurrence or they being not produced by the witnesses before the Investigating Officer or they being not taken into possession by the Investigating Officer during his visit at the place of occurrence. The joint failure of Shahid Bashir (PW-1), the complainant of the case and Muhammad Ayyub, SI (PW-6), the Investigating Officer, to produce the electric bulbs 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 electric bulbs being available was made by the said witnesses. We have also perused the scaled site plan of the place of occurrence (Exh. P.B.) as prepared by Muhammad Kaleem Kamran, Patwari (PW-3) and the rough site plan of the place of occurrence (Exh. P.D.) as prepared" by Muhammad Ayyub, SI (PW-6), the Investigating Officer of the case, and have noted that the presence of any light source lit at the place of occurrence has not been niarked in both the site plans (Exh. P.B. and Exh. P.D.). 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 dark.
It was admitted by the witnesses themselves that it was a dark night and they had used the light of the electric bulbs lit at the place of occurrence, 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 Gui 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 F.I.R. no source of light at the spot had been mentioned by the complainant.
Although in the site plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case." Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the F.I.R. the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the Investigating Officer."
16. Another grave fact of the prosecution case is that both the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) admitted the prescnce of other witnesses, those who had arrived at the place of occurrence to attend the marriage function of Javed Iqbal, (given up PW), however, none of the said witnesses appeared before the learned trial court in support of the prosecution case. The prosecution witness namely Shahid Bashir (PW-1) during cross- examination stated as under:- "The marriage ceremony of Javed Iqbal was being held on the day of occurrence. About 300/350 people were present at the time and place of occurrence. Invitees of marriage function as well as uninvited persons were present there because of musical program of marriage function. Singer Mansoor Mailnagi performed in the musical function. ..........................
We did not ask Mansoor Malangi to become our witness. Volunteered, when police arrived at the place of occurrence Mansoor Malangi was present there."
Similarly, the prosecution witness namely Ghulam Farid (PW-2) during cross-examination stated as under:- "Many other persons were also present in the marriage function uninvited.."
Even Muhammad Ayyub, SI (PW-6) admitted during cross-examination that he did not record the statement of any person who at the time of occurrence was attending the marriage function and stated as under:- "I did not record statement under section 161 of Cr.P.C. of any participants of the marriage function except the witnesses mentioned by the complainant."
The failure of the prosecution to produce the said persons who had witnessed the occurrence, according to prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), has convinced us that had they been produced before the learned trial court, they would not have supported the prosecution case. Even Javed Iqbal, the person whose marriage was being celebrated at the time of occurrence, was not produced before the learned trial court and was given up as an unnecessary witness. Similarly, Irshad Hussain, the person who was injured during the occurrence, also did not appear before the learned trial court in support of the prosecution case against the appellant. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same.
Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case. The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable as they are. Compounding the failures of the prosecution is the fact that the persons admittedly present at the place of occurrence, at the time of occurrence, were not produced as witnesses. Guidance is sought from the binding decision of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949) wherein it has been observed as under:- "...further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."
17. We have also noted that the names of both the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) were neither mentioned in column No.4 nor at page 4 of the inquest report (Exh.PC/1) prepared with regard to Awais Bashir (deceased) as being the witnesses who were present near the dead body at the time of preparation of the inquest report (Exh.PC/1).
This fact also evidences the absence of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) at the place of occurrence, at the time of occurrence. More grave is the fact that admittedly in the inquest report (Exh.PC/1) the role of the appellant that it was his fire that had hit the deceased was not mentioned. Muhammad Ayyub, SI (PW-6), the Investigating Officer of the case, admitted during cross-examination as under:- "According to facts mentioned in Ex-PC/1, it is not written that fire made by Sharif accused hit the deceased. Volunteered the said facts in Ex-PC/1 were in fact summary of Ex-PD, the statement of the complainant Shahid Bashir, written for the assistance of the doctor. It is correct that it is not written in Ex-PC/1 about kind of weapon causing injury on the body of the deceased."
(emphasis supplied)
18. We have also noted with concern that the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2), though claimed that after the occurrence Awais Bashir (deceased) was taken to the hospital by the Punjab Emergency Service, Rescue 1122, however, neither during the investigation nor during the course of the trial, any proof was brought on record to support the said claim of the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2).
Muhammad Ayyub, SI (PW-6), the Investigating Officer of the case, during cross-examination admitted as under:- "It is correct that neither Rescue 1122 informed me about bringing as well as admission of the deceased in injured condition in Trauma Center, D.G. Khan nor any doctor nor complainant party nor participant of the marriage ceremony informed me about the said incident. .............................
I did not collect any record from Trauma Center D.H.Q. D.G. Khan regarding arrival of the deceased in injured condition there, his treatment and his death in the hospital."
We have also noted that according to the prosecution witness namely Ghulam Farid (PW-2), the dead body of the deceased was brought to the house after he was declared to be dead by the doctors at the hospital and thereafter the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) went to the Police Station for reporting the matter, however, met the prosecution witness namely Muhammad Ayyub, SI (PW- 6) at Grid Chowk, where the oral statement (Exh. P.A.) of Shahid Bashir (PW-1) was recorded. The prosecution witness namely Ghulam Farid (PW-2) during cross-examination stated as under:- "I and Shahid went to call the police on my motorcycle after about two hours of the occurrence.
After the occurrence we went to the hospital boarding Awais in injured condition to the hospital through a private car which situated at the distance of 30 kilometers from the place of occurrence.
We remained in the hospital for 10/15 minutes. At about 12:30 AM we returned to our house along with the dead body of deceased. Neither we ourselves informed the police instantly after the occurrence nor asked any of our relative or any other person to do so. "
Contradicting the statement of the prosecution witness namely Ghulam Farid (PW-2) that the dead body of the deceased was brought to the house, both the prosecution witnesses namely Shahid Bashir (PW-1) and Muhammad Ayyub, SI (Pm.- 6), the Investigating Officer of the case, stated that the dead body was escorted from the place of occurrence to the hospital. The prosecution witness namely Shahid Bashir (PW-1), during cross-examination stated as under:- "The police reached at the place of occurrence after 01:15 A.M. in the night. Police inquired all the persons present at the place of occurrence including Mansoor Malangi. I and my uncle Ghulam Fareed went to the Police Station. Volunteered, police met us in the way, then we brought them to the place of occurrence, while one police official went to the police station for registration of the case and the other came at the place of occurrence. Police remained at the place of occurrence for 35 to 40 minutes and first of all police sent the dead body to the Hospital for autopsy."
(emphasis supplied).
Muhammad Ayyub, S.I. (PW-6), Investi-gating Officer of the case, in his statement before the learned trial court, stated as under:- "Afterwards, I proceeded to the place of occurrence, where the dead body of the deceased Awas Bashir was being on the cot. .......................
I sent dead body of the deceased for the purpose of postmortem examination on a private vehicle/dalla from the place of occurrence a little bit later after my arrival there."
19. We have also observed with grave concern that according to Muhammad AyYub, SI (PW-6), the Investigating Officer of the case, the time of getting the information of the occurrence by the police was mentioned as 11.00 p.m. on 07.12.2013 in the inquest report (Exh.PC/1), whereas the oral statement (Exh. P.A.) of Shahid Bashir (PW-1) was recorded by Muhammad Ayyub, SI (PW- 6) at Grid Chowk at 01.10 a.m on 08.12.2013. The prosecution witness namely Muhammad Ayyub, SI (PW- 6), during cross-examination admitted as under:- "It is also correct that in column No.3 of inquest report Ex-PC/1, time of 11.00 PM dated 07.12.2013 is mentioned about receiving of information about the occurrence."
Reliance in this regard is placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- "According to the prosecution the occurrence had taken place at 05.00 a.m. and the police had been informed about the incident at 06.30 a.m. but surprisingly in column No. 3 of the Inquest Report the time of death of the deceased becoming known was recorded as 05.15 a.m."
Furthermore, the oral statement (Exh. P.A.) of Shahid Bashir (PW-1) was recorded by Muhammad Ayyub, S.I. (PW-6) at Grid Chowk while he was on his way to the Police Station. We have noted that despite the disapproval of the August Supreme Court of Pakistan, the same method was adopted in this case also that when Muhammad Ayyub, SI (PW- 6), the Investigating Officer of the case, was present at Grid Chowk on petrolling, the prosecution witness namely Shahid Bashir (PW-1) appeared before him and got recorded his oral statement (Exh. P.A.). The August Supreme Court of Pakistan in the case of "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596) observed at page 601 as under:- "In the ridder to the FIR, the Investigating Officer has mentioned that the complainant Muhammad Faazil met him somewhere in the way while proceeding to the police station. In past, it had become routine practice of the police that indeed in such like crimes, the FIR/written complaints were being taken on the crime spot after preliminary investigation, however, after this court had disapproved 'this practice, they have invented a new way of misleading the court of law because invariably in every second or third case, same and similar practice is adopted but with newly invented methodology."
The august Supreme Court of Pakistan in the case of "Muhammad Asif v. The State" (2008 SCMR 1001) has observed as under: The FIRs which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations."
The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State"
(2017 SCMR 1155) has observed as under: "An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the F.I.R. had been chalked out after deliberations and preliminary investigation at the spot."
20. We have also noted with disquiet that despite the fact that the occurrence took place at about 11.00 p.m. on 07.12.2013, the post-mortem examination of the dead body of the deceased was conducted after much delay at about 11.45 a.m. on 08.12.2013. According to Dr. Gull Hassan Shah (PW-7), he on 08.12.2013 at about 11.45 a.m. conducted the postmortem examination of the dead body of Awais Bashir son of Bashir Ahmad i.e., after about 12 hours and 45 minutes of the occurrence. Dr. Gull Hassan Shah (PW-7) also opined that the time which had elapsed between the death of the deceased and the post mortem examination of the dead body of the deceased was 'about 12 hours. No explanation was offered to justify the said delay in conducting the post-mortem examination of the dead body. Not only the post-mortem examination of the dead body was delayed by as many as 12 hours and 45 minutes, but also the dead body was brought to the hospital at 11.35 a.m on 08.12.2013. Dr. Gull Hassan Shah (PW-7) stated during cross-examination as under:- "It is correct that dead body was received in dead house on 08.12.2013 at 11.35 A.M. It is correct that necessary documents were delivered to Muhammad Ejaz (PW-2) on 08.12.2013 by the police."
The inordinate and unexplained and substantial delay in the post-mortem examination of the dead body and submission of the police papers to the Medical Officer 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 examinations 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 F.I.R. was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian Sohail Ahmed and others 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 F.I.R. was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeqa 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 is strikingly wanting."
21. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the Kalashnikov rifle (P-6) from the appellant namely Muhammad Sharif and have submitted that the said recovery from the appellant offered sufficient corroboration of the ocular account of the occurrence as furnished by prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2). The recovery of the Kalashnikov rifle (P-6) and five live bullets (P-711-5) from the appellant namely Muhammad Sharif 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 his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recovery of the Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) 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 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 of section 103, Cr. P. C. had flagrantly been violated in that regard."
Moreover, the recovered Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) were never sent to the office of the Punjab Forensic Science Agency, Lahore for their comparison with the empties collected from the place of occurrence. Moreover, even no report of the Punjab Forensic Science Agency, Lahore was not brought on record that the recovered Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) were indeed a wapon in working condition and bullets which could be fired in the same. In this manner, the recovery of the Kalashnikov rifle (P-6) and five live bullets (P-7/1-5) from the appellant does not prove any fact in issue or relevant fact.
22. 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 Shahid Bashir (PW-1) and Ghulam Farid (PW-2), was that after the prosecution witness namely Shahid Bashir (PW-1) had an altercation with the appellant over him stopping the appellant and his companions from firing at the place of occurrence, the assailants fired at the witnesses, however, hit the deceased. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. It is admitted by the prosecution witnesses namely Shahid Bashir (PW-1) and Ghulam Farid (PW-2) themselves that the appellant had no motive to commit the Qatl-i-Amd of the deceased, rather his altercation had taken place with the prosecution witness namely Shahid Bashir (PW-1). During the whole occurrence, despite the presence of six armed assailants, the prosecution witness namely Shahid Bashir (PW-1) was not even injured. As discussed above, had the motive being true, then the prosecution witness namely Shahid Bashir (PW-1) would not have been let off. 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 Muhammad Sharif to have committed the Qatl-i-Amd of the deceased namely Awais Bashir son of Bashir 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 namely Muhammad Sharif son of Raheem Baksh as proof of his guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with the substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of Asadullah v. Muhammad Ali (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case of 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 eyidence 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 learned Deputy Prosecutor General and the learned counsel for the complainant have also laid much stress upon the stance taken by the learned counsel representing the appellant namely Muhammad Sharif son of Raheem Bakhsh at the time of cross-examination of the prosecution witness namely Munir Ahmed SI (PW-10), another Investigating Officer of the case. It was suggested by the learned counsel representing the appellant namely Muhammad Sharif son of Raheem Bakhsh to Munir Ahmed SI (PW-10), another Investigating Officer of the case that during the occurrence the deceased died as a result of being hit by a stray bullet. Furthermore, the learned Deputy Prosecutor General has referred to the statement of the appellant wherein it had been recorded that the appellant had received injuries during the occurrence. The learned Deputy Prosecutor General has argued that this statement of the appellant proved the presence of the appellant at the place of occurrence, at the time of occurrence. It is admitted that the appellant was never examined by any Medical Officer. In absence of any opinion of any Medical Officer regarding the presence of any injury on the person of the appellant, no presumption can be drawn that he must have been injured during the occurrence. Moreover, the onus to prove the facts in issue never shifts and always lies on the prosecution. That the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased, which at least is not the case in this particular matter. The suggestions as put by the learned counsel representing the accused, hardly provide any substantiation to the prosecution case. Reliance is placed on the case of Azhar Iqbal v. The State (2013 SCMR 383) wherein the august Supreme Court of Pakistan has held as under:- "It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand."
24. 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. Gull Hassan Shah (PW-7) 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 appellant's 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 identity of the accused person.' Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."
25. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Sharif son of Raheem Bakhsh in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha 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 in the case of 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 than 100 guilty persons should let off but one innocent person should not suffer. As the pre- eminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right.
Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
26. For what has been discussed above Criminal Appeal No.282 of 2018 lodged by the appellant namely Muhammad Sharif son of Raheem Bakhsh is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 21.03.201P are hereby set-aside. The appellant namely Muhammad Sharif son of Raheem Bakhsh is ordered to be acquitted by extending him the benefit of the doubt. The appellant namely Muhammad Shard son of Raheem Bakhsh is in custody and is directed to be released forthwith if not required in any other case.
27. The complainant of the case namely Shahid Bashir (PW-1) filed Criminal Appeal No.580 of 2018 against the acquittal of the accused namely Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan. We have observed that the learned trial court rightly, acquitted the said accused. Allah Bakhsh son of Karim Bakhsh and Muhammad Al:htar alias Baddo son of Lal Khan, both since acquitted, were alleged to had also fired at the place of occurrence, during the occurrence, however, admittedly no one was injured due to their firing. Moreover, nothing was recovered from their possession during the investigation of the case. Admittedly, both Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan were also not having any motive to commit the Qatl-iAmd of deceased. It is important to note that according to the established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the Courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as Muhammad Inayat v. The State (1998 SCMR 1854) wherein it has been held as under: "The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same, and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
The august Supreme Court of Pakistan in the case of "Mst. Sughran Begum and another v. Qaiser Pervaiz and others" (2015 SCMR 1142) has held as under: "On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course."
Pursuant to the discussion made and conclusions arrived at above, the Criminal Appeal No.580 of 2018, lodged by the complainant of the case namely Shahid Bashir, assailing the acquittal of the accused namely Allah Bakhsh son of Karim Bakhsh and Muhammad Akhtar alias Baddo son of Lal Khan (both since acquitted by the learned trial court), is hereby dismissed.
28. Murder Reference No.45 of 2018 is answered in Negative and the sentence of death awarded to Muhammad Sharif son of Raheem Bakhsh is Not Confirmed.