SARDAR AKBAR ALI, J:- Muhammad Mohsan (convict/appellant) along with his co-accused Aqib Javed, Ali Raza @ Sajid, and Moazam Abbas was tried by learned Sessions Judge, Mandi Bahauddin in case FIR No.555, dated 22.08.2018 for offences under sections 302/148/149 PPC registered at Police Station Civil Lines, District Mandi Bahauddin and vide judgment dated 31.03.2021 while acquitting Aqib Javed, Ali Raza @ Sajid and Moazam Abbas accused proceeded to convict and sentence Muhammad Mohsan (accused/appellant) in the following terms:- "Under Section 302 (b) PPC to suffer death sentence as ta'zir. He was also directed to pay compensation of Rs.3,00,000/- under Section 544-A Cr.P.C. to the legal heirs of Muhammad Ashraf (deceased) and in default whereof to suffer 06- months simple imprisonment."
Aggrieved by his conviction and sentence, Muhammad Mohsan (appellant) filed Criminal Appeal No.27259-J of 2021. Likewise, trial Court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.73 of 2021 for the confirmation or otherwise of death sentence awarded to Muhammad Mohsan appellant. Both these matters are being decided through this single judgment.
2. Succinctly stated facts of the prosecution case as disclosed by Muhammad Sadiq (PW.3) in F.I.R (Exh.PK) are to the effect that on 22.08.2018 at about 03:40 p.m. he along with Muhammad Abbas (PW.4) and Irfan Ahmad (given Up PW) was sitting in the courtyard of "Dara Majheka" whereas his son Muhammad Ashraf was laying inside the room of Dara for taking rest. The door of the room was opened and Muhammad Ashraf (deceased) was visible to the complainant and the PWs.
Instantaneously from the western door of Dara, Muhammad Mohsan (appellant) while armed with gun .12 bore along with four unknown accused, while raising lalkaras and making firing entered the Dara; that Mohsan fired a shot with his gun .12 bore striking Muhammad Ashraf on the right side of his face, eye, forehead and cheek; that additionally Mohsan (appellant) fired another shot that struck Muhammad Ashraf deceased on the right side of his abdomen near the flank. Thereafter, the accused persons took flight from the spot while making aerial firing; that Muhammad Ashraf deceased succumbed to the injuries at the spot.
The motive for the incident statedly was a quarrel between Muhammad Mohsan appellant and Muhammad Ashraf deceased which took place on the preceding night.
3. On 22.08.2018 at 06:30 p.m following the receipt of information regarding the incident Pervaiz Akhtar, S.I (PW.14), along with other police personnel, reached at the place of occurrence where the complainant/PW.3 presented application/complaint Exh.PB. He subscribed the police proceedings Exh.PB/1 on the application which he forwarded to the Police Station through Muhammad Javed Iqbal 583/HC (not produced) for the registration of formal FIR. At the spot, he inspected the dead body of the deceased (Muhammad Ashraf) which was lying on a cot, prepared injury statement (Exh.PN), inquest report (Exh.PO), drafted application (Exh.PP) for postmortem examination of the deceased. Muhammad Javed Iqbal 583/HC handed over to him copy of FIR along with application (Exh.PB) and he mentioned the FIR number on the relevant police papers. On arrival of team of CSIU/PFSA, Gujranwala, arrangement of the light was made at the spot. On the pointing out of the complainant as well as the PWs, he along with the team of CSIU/PFSA inspected the place of occurrence, secured two crime empties of .12 bore shotgun from inside the room of "Dara", one crime empty of .44 bore and one live .44 bore crime empty from the street outside the "Dara" and prepared sealed parcels of the same. Waqar Pervez, Junior Scientist, Incharge Team, CSIU/PFSA (PW.13) handed over to him four sealed parcels along with copy of exhibit sheet which he took into possession through recovery memo (Exh.PD). He also secured blood through cotton swab through memo Exh.PC. Thereafter he prepared un-scaled site plan (Exh.PQ). He handed over the dead body of Muhammad Ashraf deceased to Waseem Akram 272/C (PW.2) for autopsy. On the next day i.e. 23.08.2018 Waseem Akram 272/C (PW.2) came to the Police Station and handed over to him postmortem report, 05-X-Rays P-3/1-5, one sealed phial along with last worn clothes of the deceased Shalwar P-1, Qameez P-2 both blood imbrued and secured the same through recovery memo Exh.PA. On 29.08.2018, he collected sealed parcels of crime empties, blood imbrued earth and sealed phial from the Muharrer and deposited the same in the Office of PFSA, Lahore on the same day. On 30.08.2018, Gulzar Ahmad Sattar, Draftsman (PW.12), inspected the place of occurrence, who took rough notes in presence of the complainant and the PWs and prepared scaled site plan (Exh.PL) and (Exh.PL/1). On 24.09.2018, he arrested Ali Raza @ Sajid (co-accused since acquitted) who on 26.09.2018 made a disclosure and in response thereof led to the recovery of motorcycle HONDA 125 (P.4) which was taken into possession through memo (Exh.PE). On 04.10.2018, he arrested Muhammad Mohsan (appellant) who on 09.10.2018 made a disclosure and in response thereof led to the recovery of .12 bore shotgun P.5 which was taken into possession through memo (Exh.PF). Remaining details whereof are available in the judgment of the learned trial Court itself. Armoghan, S.I (PW.15) also conducted investigation in this case and during the investigation, he was of the opinion that appellant was found involved in the crime. He after recording the statements of witnesses under Section 161 Cr.P.C. and completing all codal formalities, submitted the file to the relevant Station House Officer for the preparation of a report under Section 173 Cr.P.C.
4. The prosecution in order to prove its case against the appellant produced a total of seventeen witnesses, out of whom Muhammad Sadiq (PW.3) and Muhammad Abbas (PW.4) provided eyewitness testimony, while Dr. Muhammad Umer (PW.8) furnished the medical evidence and Pervaiz Akhtar (PW.14) and Armoghan, SI (PW.15) conducted the investigation of the case. The other PWs predominately were formal in nature. Learned prosecutor given up PWs, namely, Irfan Ahmad (eye witness) and Fakhar-ur-Rehman being unnecessary. The prosecution also produced documentary evidence in the shape of Exh.PA to Exh.PAA).
5. On 23.08.2018 at about 06:00 a.m. Dr. Muhammad Umer (PW.8) performed the autopsy on Muhammad Ashraf deceased and noted the following injuries:-
(1) A firearm injury with inverted margins on the front side of skull in the line of nose with burnt margins measuring 3cm x 1.5 cm (entry wound).
(2) A firearm injury with inverted margins upper right eyebrow with burnt margins sized 2.5x2.5 cm (entry wound)
(3) A firearm injury on medical aspect of right eye just under right eyebrow sized 1 x 1 cm burnt margins.
(4) A firearm injury below right eye with burnt margins sized 1x1 cm (entry wound).
(5) A firearm injury at right cheek with burnt margins sized lx1 cm inverted margins (entry wound).
(6) A tiny entry wound with burnt margins on right shoulder near top of shoulder sized 2mm x 2mm.
(7) Two consecutive entry wounds with burnt inverted margins sized.7 x .7 cm under right armpit 5 cm with each other and third entry is above the posterior one sized .5 x .5 cm.
(8) Four entry wounds in right flank (A) sized 1 x 1 cm with burnt inverted margins on lateral side of the body (B) 2 cm from injury No.A sized 1.5 x 1.5 cm towards front side of body inverted margins with burning damaging the underlying ribs (C) 6 cm apart from injury No.B towards the umbilicus anterior and lower to B sized 1.5 x 1.5 cm with inverted burnt margins (D) a tiny entry wound between injury No.B & C sized 2mm x 2mm with burning.
(9) Five firearm injuries entry wounds on abdomen right lateral side under injury No.8, three of which lying on lateral side sized l x 1 cm each while two wounds are 7 cm below and towards umbilicus of sized 4th is 1.5 x 1 cm while 5th is 1x .7 cm.
(10) A firearm injury with inverted margins on scalp posterior to injury No.1 sized 1 x 1 cm damaging skull.
According to the opinion of the doctor, the cause of death was attributed to all the injuries except injuries No.5 & 6 leading to injury shock and coma. He further indicated that the duration between injuries and death was immediate while the time between death and postmortem examination was estimated to be 12 to 18 hours.
6. On close of prosecution case, the appellant when examined under section 342 Cr.P.C. denied the prosecution evidence. The appellant refuted the allegations leveled against him and professed his innocence, whereas, while answering to a question that "Why this case and why the PWs deposed against you" Muhammad Mohsan appellant replied as under:- "All the Pws are related inter se and have deposed falsely against me and my co-accused persons. Infact, it was a blind murder and the complainant party after due deliberation and consultation while concocting a false story involved me and my co-accused persons falsely in this false case. My father Muhammad Aslam S/O Muhammad Ghayas had filed an application for partition of the joint property against the complainant party and others before Tehsildar M.B.Din in the year 2017, which was pending adjudication even in the days of alleged occurrence. Since long my father had been demanding the said property from the complainant party but the complainant party refused to do so due to which the aforesaid application for partition of the joint property was preferred by my father. For the purpose of usurping and misappropriation of our property while concocting a false story and motive I have been implicated falsely in this false case. Infact, the deceased Ashraf had illicit relations with her aunt namely Mst. Ghazala and his sons used to quarrel with the deceased and were nourishing grudge against the deceased. Due to the above said illicit relations of the deceased, the complainant had expelled him from his house who used to reside in the house of the said Mst. Ghazala, which was unwarranted by her family".
All the accused except Muhammad Mohsan (appellant) did not produce any witness in defence but they all not opted to appear in the witness box as required by section 340(2) Cr.P.C. The trial Court vide its judgment dated 31.3.2021 found the appellant guilty convicted and sentenced him as mentioned and detailed above, however, vide the same impugned judgment co-accused Aqib Javed, Ali Raza @ Sajid and Moazzam Abbas were acquitted by the trial Court while giving them benefit of doubt. The complainant did not prefer any appeal against their acquittal.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that there is delay in lodging the FIR as well as in conducting postmortem examination on the dead-body of Muhammad Ashraf deceased which shows that the occurrence was unseen; that the eyewitnesses are chance witnesses; that ocular account furnished by the eye witnesses is not reliable because, they could not establish any valid reason of their presence at the spot at the relevant time; that owner of Dara has not been produced in evidence, as such the prosecution withheld its best evidence; that there is conflict between the ocular account and the medical evidence; that nothing incriminating was recovered on the pointing out of the appellant; that report of PFSA was in the negative; that the motive has not been proved; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, the appeal filed by the appellant may be accepted and he may be acquitted from the charge.
8. On the other hand, learned Additional Prosecutor General duly assisted by learned complainant's counsel contended that the prosecution has fully proved its case against the appellant beyond the shadow of any doubt, therefore, he has rightly been convicted and sentenced by the learned trial Court; that the prosecution witnesses were put to the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case against the appellant is substantially supported by the medical evidence; that there is no substance in the appeal filed by the appellant; that the motive as alleged by the prosecution has been proved in this case through reliable and confidence inspiring evidence by the prosecution witnesses; that the appellant has committed a brutal and reckless murder of an innocent person, therefore, the sentence of death was rightly awarded to him, hence, the same may be upheld and maintained, appeal filed by the appellant be dismissed and murder reference be answered in affirmative.
9. Arguments heard and record perused.
10. The ruthless murder of Muhammad Ashraf deceased aged about 39 years by four persons by way of firing is a crime of heinous nature but the frightful nature of crime should not blur the eyes of justice, allowing emotions triggered by the horrifying nature of the offence to prejudge the accused. The rule is that the cases are to be decided on the basis of evidence and not on the basis of sentiments and emotions. The gruesome, heinous or brutal nature of the offence may be relevant at the stage of awarding suitable punishment after conviction; but it is totally irrelevant at the stage of appraising or re-appraising the evidence available on record to determine guilt of the accused, as possibility of an innocent person having been wrongly involved in cases of such nature cannot be ruled out. An accused person is presumed to be innocent till the time he is proved guilty beyond reasonable doubt, and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond reasonable doubt on the basis of legally admissible, confidence inspiring, trustworthy and reliable. No matter how heinous the crime, the constitutional guarantee of fair trial under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973, cannot be taken away from the accused. It is, therefore, duty of the Court to assess the probative value (weight) of every piece of evidence available on record in accordance with the settled principles of appreciation of evidence, in a dispassionate, systematic and structured manner without being influenced by the nature of allegations. Any tendency to strain or stretch or haphazardly appreciate evidence to reach a desired or popular decision in a case must be scrupulously avoided or else highly deleterious results seriously affecting proper administration of criminal justice will follow, as has been held by the Honourable Supreme Court of Pakistan in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600). It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by the Honourable Supreme Court of Pakistan that "In the criminal trial it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution." The Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377) held that: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."
11. Turning to the case in hand, as per evidence brought on record by the prosecution, it reflects that the occurrence in this case allegedly took place on 22.08.2018, at 03:40 p.m. whereas the matter was reported to the police at 07:15 p.m. The distance between police station and the place of occurrence is thirteen kilometers. There is a delay of about 03 hours and 35 minutes in reporting the crime to the police without any plausible explanation. It is also worth mentioning here that while appearing before the learned trial Court both the witnesses of ocular account namely Muhammad Sadiq / complainant, (PW.3) and Muhammad Abbas (PW.4) did not utter even a single word about the above said delay. Therefore, we hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain vs. The State" (2019 SCMR 274), "Abdul Ghafoor vs. The State" (2022 SCMR 1527) and "Pervaiz Khan and another vs. The State" (2022 SCMR 393).
12. Undisputedly, there is a noticeable delay in conducting autopsy of the dead-body of Muhammad Ashraf (deceased) because Dr. Muhammad Umer (PW.8) stated in his examination- in-chief that the time elapsed between death and postmortem examination was 12 to 18 hours. It has been held repeatedly by the Hon'ble Supreme Court of Pakistan that such noticeable delay is normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the postmortem examination of dead body of the deceased which happens only when the complainant and police remain busy in consultation and preliminary inquiry regarding the culprits in such cases of unwitnessed occurrence. Reliance is placed on case law titled as "Irshad Ahmed vs. The State" (2011 SCMR 1190) and "Nazeer Ahmed vs The State" (2016 SCMR 1628). Similarly, in the case of "Khalid alias Khalidi and two others vs. The State" (2012 SCM 327), the Hon'ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time. In the case of 'Muhammad Ilyas Ys Muhammad Abid alias Billa and others'
(2017 SCMR 54), the Apex Court of the country was pleased to observe that delay of 09 hours in conducting the postmortem examination suggests that the prosecution eye witnesses were not present at the spot at the time of occurrence therefore, the said delay was used in procuring the attendance of fake eye witnesses. Relevant part of the said judgment at page No. 55 reads as under:- "2.......................Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution. ..."
Similar view was taken by the Apex Court of the country in the cases reported as "Zafar vs. The State and others" (2018 SCMR 326) and "Muhammad Ashraf vs. The State" (2012 SCMR 419) and "Sufyan Nawaz and another vs. The State and others" (2020 SCMR 192).13. We have also noted that Dr. Muhammad Umer (PW.8) in his examination-in-chief stated that while conducting autopsy, he found left eye opened of deceased Muhammad Ashraf, which makes the presence of the ocular account at the time of occurrence doubtful because had they been present there they would have closed eye of the deceased who are close relatives of the deceased. Reference in this context may be made to the case of "Zahir Yousaf and another vs. The State and another" (2017 SCMR 2002) wherein at Para No.4 it was observed as under:- "..................We have also noted that as per the inquest report (Exh.PG) eyes of Ghulam Sarwar (deceased) were open which makes the presence of the witnesses of ocular account at the time of occurrence doubtful because had they been present there they would have closed eyes of deceased who was their close relative............"
Similar view was taken by the Apex Court of the country in the case of "Muhammad Asif vs. The State" (2017 SCMR 486).
14. As stated above Muhammad Sadiq/complainant (PW-3) and Muhammad Abbas (PW-4) are real father and paternal uncle of Muhammad Ashraf (deceased) respectively, therefore, they can be said to be richly interested witnesses as their conduct is highly unnatural because if they were present at the spot at the relevant time even if the appellant though was armed with firearm weapon, they could have caught hold the appellant in their captivity but they neither made any serious effort to save the life of the deceased nor to apprehend the appellant rather they stood like silent spectators and gave free hand to the appellant to cause firearm injuries to their kith and kin.
We are, therefore, of the considered view that conduct of both the eye witnesses is highly unnatural, hence, their presence at the spot is highly doubtful and their testimony is not worthy of reliance. We may refer here the case of "Liaquat Ali Vs. The State" (2008 SMCR 95), wherein at Para No.5-A of the judgment, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W.7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaquat Ali had threatened them therefore, they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful."
Similar view was reiterated by the august Supreme Court of Pakistan in the cases of "Pathan Vs. The State" (2015 SCMR 315) & "Zafar Vs. The State and others" (2018 SCMR 326).
15. Apart from all above, Muhammad Sadiq / complainant (PW-8) in his examination-in-chief stated as under: "On second previous Eid-ul-Adha (on the day of Eid), I alongwith my brother Muhammad Abbas, PW, Irfan PW, were present in the courtyard of our Dara at about 03:40 p.m situated in village Bohat."
But at the same time, during his cross-examination, he admitted that: "I have not mentioned in Exh.PB that it was day of Eid i.e. Eid-ul-Azha".
Likewise, Muhammad Abbas (PW.04) in his cross-examination admitted that: "I got recorded in my statement under S.161 Cr.P.C that Ali Raza, Aqib and Moazzam armed with firearm alongwith Haseeb armed with firearm entered in the Dara. Confronted with Exh.DA where it is not so recorded. I got recorded in Exh.DA that Mohsan accused again repeated a fire shot at Ashraf deceased which had hit on the right flank and right side of abdomen of Ashraf. Confronted with Exh.DA where it is not so recorded but recorded that the fire shot had hit at the abdomen of Ashraf near his right flank"
In view of the above statements of the eyewitnesses, it appears that their statements can safely be termed as dishonest improvements.
16. There is no cavil to the proposition that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that improvements were made deliberately and with mala fide intention, the testimony of such witness become unreliable. The Supreme Court of Pakistan has observed in a plethora of judgments that the witnesses who make dishonest improvements in their statements on material aspects of the case in order to fill the lacunas of the prosecution case or to bring their statements in line with other prosecution evidence are not worthy of reliance. Reference in this respect may be placed on the judgment reported as "Muhammad Arif v. The State" (2019 SCMR 631), "Khalid Mehmood and another v. The State"
(2021 SCMR 810) and "Rafaqat Ali Vs. The State" (2022 SCMR 1107).
17. Another intriguing aspect of the case is that according to the contents of FIR the most natural witness of the occurrence was Irfan Ahmad real paternal uncle of the deceased who was not only the eyewitness of the occurrence but was also the scriber of the application (Exh.PB). Muhammad Sadiq/complainant while appearing as (PW.03) admitted during the cross-examination that: "No one had accompanied me to police station for lodging of FIR. Police arrived at the place of occurrence at about 06:00/06:30 p.m. At that time above said Rasheed s/o Salehon was not present there. Irfan PW had informed the police regarding the occurrence, telephonically, Irfan Ahmad PW has scribed Exh.PB, on my dictation. About four minutes were consumed, in preparing of Exh.PB."
Furthermore, the owner of the Dara i.e. alleged place of occurrence, has neither been produced in the investigation nor in evidence, therefore, the prosecution has also withheld the best pieces of evidence of Irfan Ahmad, paternal uncle of deceased as well as owner of Dara, hence an adverse inference within the meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 can also validly be drawn against the prosecution that had the abovementioned witnesses been produced in the witness box then their evidence would have been unfavourable to the prosecution. Reliance in this respect may be placed on the case reported as "Lal Khan Vs. The State" (2006 SCM R 1846).
Relevant para No.7 of the said judgment is reproduced hereunder for ready reference:- Para No.7 "..............................There is no plausible explanation on the record that for what reason Mst. Noor Bibi did not disclose the story of murder of deceased till the registration of case after five days of the occurrence and why no other inmate of the house was examined in confirmation of her statement. The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."
(Bold and underlining is supplied for emphasis)
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the judgments reported as "Muhammad Rafique and others Vs. The State and others" (2010 SCMR 385), "Riaz Ahmed Vs. The State" (2010 SMCR 846), 'Pathan Vs The State' (2015 SCMR 315), 'Muhammad Jabran Vs. The State' (2020 SCMR 1493), Mst. Shahnaz Akhtar Vs. Syed Ehsan ur Rehman (2022 SCMR 1398) and Abdul Qadeer Vs. The State (2024 SCMR 1146) and 'Muhammad Ijaz alias Billa and another Vs. The State and others' (2024 SCMR 1507).
We are, therefore, of the view that the testimony of stated eye-witnesses is not worthy of reliance and the same is hereby discarded.
18. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards the appellant implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605). Therefore, we hold that the evidence furnished by the prosecution is shaky in nature and cannot be relied upon for maintaining conviction/sentence of the appellant.
19. As per prosecution case weapon of offence i.e. repeater/gun .12 bore (P.5) alongwith three live bullets (P.6/1-3) has been recovered on the lead of the appellant on 09.10.2018 but this recovery remains totally inconsequential because of negative PFSA report (Exh. PEE & PEE/1).
20. Motive behind the occurrence was that on the preceding night of the date of occurrence, a quarrel had taken place between the appellant and Muhammad Ashraf, deceased which led to the murder of the deceased. Admittedly, the motive part of incident is based on oral assertions and no solid evidence in that regard was produced by the prosecution during the trial. There is a haunting silence with regard to the minutiae of motive alleged. No place of motive incident has been mentioned by any of the prosecution witnesses. Even no reason was mentioned by any of the prosecution witnesses that as to why motive incident took place between the accused party and the deceased. None of the prosecution witnesses claimed that they were present at the time of occurrence of motive incident. No independent witness was produced by the prosecution to prove the motive as alleged. Moreover, it is an admitted rule of appreciation of evidence that motive is only supportive piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. We are therefore, of the view that the prosecution has failed to prove the motive part of the occurrence. 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."
We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. Reliance is placed on the cases reported as "MAQSOOD ALAM and another Versus The STATE and others" (2024 SCMR 156), "ABDUL QADEER Versus The STATE" (2024 SCMR 1146), "MUHAMMAD IMTIAZ BAIG and another Versus The STATE through Prosecutor General, Punjab, Lahore and another" (2024 SCMR 1191), "MUHAMMAD HASSAN and another Versus The STATE and others" (2024 SCMR 1427), "KHIAL MUHAMMAD Versus The STATE" (2024 SCMR 1490) and "MUHAMMAD IJAZ alias BILLA and another Versus The STATE and others" (2024 SCMR 1507).
21. For the foregoing reasons, Criminal Appeal No. 27259-J of 2021 filed by Muhammad Mohsan appellant is accepted, his convictions & sentences recorded by the learned trial Court are set aside and he is acquitted of the charges by extending him the benefit of doubt. Resultantly, Murder Reference No. 73 of 2021 is answered in the negative & death sentence of Muhammad Mohsan appellant is not confirmed. The appellant, namely, Muhammad Mohsan is in custody, he be released from the jail forthwith if not required to be detained in any other case. The case property, if any, shall be disposed of in accordance with law and the record of the trial Court be sent back immediately.