MUHAMMAD ASIF, J.- Appellant, namely Muhammad Niaz alias Aalian, involved in case FIR No.641/2022 dated 07.05.2022, registered under Sections 302(b) and 397 of the Pakistan Penal Code, 1860 ("PPC") at Police Station Golra Sharif, Islamabad, was tried by learned Additional Sessions Judge, Islamabad-West. The trial court, vide judgment dated 29.11.2023 ("Impugned Judgment"), convicted and sentenced the appellant in the following terms: Under Section 302(b) to suffer the death sentence as Ta'zir. He was also directed to pay Rs.500,000/- (Rupees Five Lac) as compensation to the legal heirs of the deceased u/s 544-A Cr.P.C, which was ordered to be recovered as arrears of land revenue and in default of payment of compensation to undergo simple imprisonment for six months.
Offence Under Section 397 PPC to suffer seven years' R.I for committing robbery. He was also directed to pay fine of Rs.30,000/- (Rupees Thirty Thousand). In case of non-payment of the fine, the convict shall further undergo for six months S.I. However, benefit of Section 382-B Cr.P.C was extended to the appellant.
The appellant has challenged the conviction through filing of the titled Criminal Appeal. The trial court has sent Reference u/s 374 of Code of Criminal Procedure 1898 ("Cr.P.C"), which has been numbered as Murder Reference No.25 of 2023 for confirmation or otherwise of the death sentence awarded to the appellant.
PERTINENT FACTS:
2. Brief facts of the case are that on the night between 6th and 7th May 2022, at around 02:45 a.m., a report with Police Station Golra, Islamabad, was lodged on the complaint of Akbar Munir (PW-5) regarding the murder of his son, Khurram Akbar (deceased), an advocate and property businessm an. According to the prosecution, Khurram was travelling from Gujranwala to Islamabad in a white-coloured Honda Civic Car, Model 2019. Upon reaching Street No. 5 Golra Sharif, he stopped the car so his relative, Muhammad Afzal (PW-6), could relieve himself. At that moment, a young man, aged about 23 to 24 years old, thin and short in stature, approached and demanded valuables. When Khurram Akbar (deceased) resisted, the assailant fired two shots upon him, resulting in his death on the spot. The attacker then fled with the vehicle, two mobile phones (an Oppo with SIM number 0307-6154605 and a Vivo with SIM number 0316-7156824), and cash.
Muhammad Afzal, who witnessed the incident, stated that he could identify the accused. Akbar Munir (PW-5) later on submitted a supplementary statement to clarify the vehicle registration number and provide additional details.
3. The trial court framed the charge, to which the accused/appellant pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case, produced as many as thirteen (13) PWs including the complainant (PW-5), who provided the details of the occurrence. Dr. Muhammad Huzzaifa Tahir, MLO PIMS Hospital Islamabad (PW-8), who furnished medical evidence and Muhammad Khan Marwat, Inspector/I.O (PW-11), who investigated the case.
5. The post-mortem examination of the deceased was conducted on 07.05.2022 at about 8:00 a.m. by Dr. Muhammad Huzzaifa Tahir, MLO PIMS Hospital Islamabad (PW-8), wherein, he observed the following injuries: Injury No.1. Fire Arm Entry wound 0.5x0.5 c.m. circular inverted margins blood stained. On anterior aspect of the chest in mid chest line. Burning and blackening present.
Injury No.2. Fire Arm Entry wound 1x1 c.m. circular inverted margins blood stained. On left anterior aspect of the chest 5 cm lateral to mid chest line. Burning and blackening present.
Injury No.3. Fire Arm Exit wound 1x1 c.m. with everted margins at the back of the victim right aspect 8 c.m. lateral to vertebral column. Burning and blackening absent.
Injury No.4. Fire Arm Exit wound 1x1 c.m. with everted margins over the left aspect of the back at scapular region. Burning and blackening absent.
6. After the conclusion of the prosecution evidence, the learned trial court examined the appellant U/s 342 Cr.P.C, who in response to a question "why this case against you and why the PWs deposed against you?" replied as under: "The occurrence is an un-seen one and information forwarded by one Kausar Zaidi to Rescue 15 through his personal mobile phone No.0301-8560110, that an unknown deadbody was lying in Street No.5, Shah Allah Ditta, who was murdered by someone and even application Ex.PD forwarded by complainant PW-5 by registration of FIR is related to unknown persons and with due deliberation and consultation PW-6 was introduced and managed a planted story regarding dacoity against real facts in connivance with the local police just to grab the vehicle, which was originally owned by me. I was running a business of BIGO LIVE APP with the deceased and remained in contact with the complainant on many occasions, I and my brother Muhammad Ayyaz oftenly transferred the amounts in account of deceased as well as account of complainant bearing No.0112150702100279, UBL Gujranwala. I alongwith deceased used to live in same Flat No.203, Second Floor, Malik Heights, Sector E-11/2, Islamabad. Some females/ladies were also in contact with the deceased, who were interrogated by the I.O./PW-11. The deceased was murdered in suspicious condition. The matter was reported by one Kausar Zaidi through Rescue 15 call and with deliberation and consultation an afterthought story was concocted regarding dacoity of vehicle and ultimately I was introduced through Honda Civic Car and after the identification parade, which was conducted just a procedure, for developing my nexus with the instant occurrence. PW-5 & PW-6 are private witnesses in which PW-5 is complainant being real father of the deceased and PW-6 is close relative of the deceased, otherwise, PW-6 is a chance witness who could not inspire his credibility and all the prosecution evidence has badly failed to probe the presence of PW-6. Rest of the PWs are police officials whose evidence is shaky in nature and full of contradictions."
7. The learned counsel for the appellant argued that the conviction was based on a misreading of the evidence, relying solely on the uncorroborated testimony of a single eyewitness, while disregarding documentary evidence demonstrating joint ownership of the vehicle. It was contended that the recovery of the weapon and the vehicle was doubtful, the eyewitness's presence at the scene was not established, and the medical and circumstantial evidence failed to link the appellant to the commission of the offence. Furthermore, it was submitted that the trial court did not properly evaluate the evidence or weigh the facts in the interest of justice, resulting in a conviction founded on conjecture rather than solid proof. It was further argued that the prosecution utterly failed to establish the appellant's guilt, and therefore, the case warranted acquittal. He thus, concluded that the impugned judgment dated 29.11.2023 amounts to a miscarriage of justice and should be set aside, with the appellant honorably acquitted in the interest of justice.
8. On the other hand, the learned counsel for the complainant, supported by the Deputy District Public Prosecutor, submitted that the prosecution had proven the case beyond reasonable doubt through medical, forensic, and eyewitness testimony. They argued that minor contradictions should not benefit the accused where the overall evidence is credible.
9. We have heard the learned counsel for the parties and minutely gone through the material made available on record with their valuable assistance.
10. The well-established principles of criminal jurisprudence require the prosecution to construct its case on three foundational pillars of evidence:
(i) OCULAR (EYEWITNESS) ACCOUNT;
(ii) MEDICAL EVIDENCE; &
(iii) RECOVERY OF INCRIMINATING MATERIAL.
In order to establish the guilt of an accused person beyond a reasonable doubt, it is imperative that the prosecution produces substantive and credible evidence in each of these categories. Any deficiency in these essential components invariably weakens the prosecution's case and adversely affects the possibility of securing a lawful conviction. Among these, the ocular account has consistently been recognised by this Court and the Honourable Supreme Court of Pakistan as the most significant and determinative element. The testimony of an eyewitness, if found to be trustworthy, accurate, free from embellishment, and confidence-inspiring, can by itself be sufficient to sustain a conviction. However, such evidence must be scrutinized carefully and must meet the high standard of proof required in criminal cases, ensuring that it leaves no room for reasonable doubt as to the culpability of the accused. Reliance is placed on Muhammad Anwar v. The State (1997 P.Cr.L.J. 321), Imtiaz alias Taji and another v. The State and others (2020 SCMR 287), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Arshad v. The State (2020 SCMR 2025) and Zahid v. The State (2022 SCMR 50). The pertinent excerpts from the aforementioned judicial pronouncements, enunciating the principles governing ocular testimony, are reproduced below for ease of reference:- "1997 P.Cr.L.J. 321, supra, The touchstone in assessing and evaluating the evidence of eye-witnesses two important factors should be seriously taken into consideration i.e. (1) Whether in the circumstances of the case it was possible for the eye-witnesses to be present at the scene or their explanation for their presence at the place of occurrence could be accepted and (2) whether there was anything inherently improbable or unreliable in their evidence. The ocular evidence would carry convincing weight and create unswerving confidence, which was corroborated by the medical evidence and the motive relating to the occurrence. Such type of evidence is further strengthened if the F.I.R. was promptly lodged without giving any time for fabrication or inventing totally false story. It is true that there is no inflexible role that the statement of an interested or an inimical witness can never be accepted without corroboration. It is also true that interest and truth some times are so intermingled that those might go together and corroborated, therefore, is not always to be considered as a sine qua non for the acceptance of the evidence of such interested witnesses.
The creditable value is to be attached even to such witnesses if their evidence is found free from doubt, infirmity or the possibility of the implication of wrong persons is excluded. Rule of prudence in such circumstances requires to find out whether a witness had seen the occurrence, could identify the culprits and was reliable enough to be believed without corroboration. It is also well- understood that the evidence of an interested witness was not like the evidence of an approver, which would need corroboration and abundant caution before its acceptance. The rule of caution cannot be confined to a water-tight compartment nor it can be kept in a straightjacket. In nutshell every case is to be evaluated and considered on its own merits because in human affairs, the facts and circumstances differ from place to place and mostly from time to time.
2020 SCMR 287, supra, The ocular account in this case was furnished by Tariq Ejaz (PW-10) and Meer Tahir (PW-11). Tariq Ejaz (PW-10) is the complainant of the case and is the real son of deceased Ejaz Ahmad. He has given sufficient explanation for his presence at the spot at the relevant time.
2018 SCMR 772, supra, Once the Court comes to the conclusion that the eye- witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that when ever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses.
2020 SCMR 2025, supra, The ocular account in this case is supported by 02 injured PWs, the statements of the prosecution witnesses coincide with each other on salient features of prosecution version. The ocular account is corroborated by the medical evidence, recovery of hatchet further lends support to the prosecution case and during the course of investigation, the petitioner was found involved and his name was placed in column No.03 of the report under section 173, Cr.P.C.
2022 SCMR 50, supra, The whole prosecution case qua ocular account hinges upon the testimonies of these two witnesses. Amongst these two witnesses Mst. Shahida Bibi happens to be the victim of the occurrence. While making her statement in Court, she has narrated the whole occurrence in a very mature and natural manner touching the contents of the crime report on all aspects without any disconnection.
OCULAR ACCOUNT:
11. The entire edifice of the prosecution's case hinges upon the testimony of Muhammad Afzal (PW- 6), who has been presented as the sole eyewitness to the occurrence. He stated before the learned trial court that the appellant allegedly intercepted the vehicle of the deceased near Shah Allah Ditta, committed robbery at gunpoint, and fatally shot the deceased upon resistance. However, a careful and critical appraisal of the ocular account reveals that the presence of PW-6 at the scene is not independently corroborated by any other evidence. Notably, his statement under Section 161 Cr.P.C. was recorded belatedly on 14.03.2023, which raises legitimate concerns about its spontaneity and veracity. Furthermore, the complainant, Akbar Munir (PW-5), in the FIR, initially described the incident as one involving an unknown assailant and did not disclose the source of his information, such as any mobile communication or the identity of an informant, nor did he nominate any person as the accused. However, during the trial, he deviated materially from his earlier version by naming the appellant and attributing this information to PW-6. This material improvement, surfacing for the first time during the evidentiary phase, significantly undermines the credibility of the complainant's testimony and indicates that the prosecution's case lacks the consistency and reliability required for a conviction. Additionally, his oral testimony is riddled with contradictions when compared with other pieces of prosecution evidence. It is settled principle of criminal justice that an eye-witness, who claimed his presence at the spot, must satisfy the mind of the Court through some physical circumstances or through some corroborative evidence in support of his presence at the spot, which are missing in the present case qua the eye witness i.e. PW-6.
12. Given that the present case is one of a blind occurrence, wherein no accused was nominated in the FIR, the settled principle of law demands independent and trustworthy corroboration of the prosecution's version. In the absence of such corroboration, the testimony of PW-6 cannot be safely relied upon. The Hon'ble Supreme Court of Pakistan, in Ghulam Sarwar v. The State (PLD 1975 SC 69) has unequivocally held that where the presence of an eyewitness is doubtful and remains uncorroborated by other credible evidence, no conviction can be sustained on such shaky testimony. The prosecution's failure to produce any supporting eyewitnesses or forensic and circumstantial evidence further erodes the evidentiary value of PW-6's solitary statement. In criminal jurisprudence, particularly in capital cases, the standard of proof must be beyond reasonable doubt. The uncorroborated, delayed, and unsupported testimony of PW-6 does not meet this standard. Consequently, his statement fails to pass the legal tests of credibility and reliability, and no conviction can be lawfully based upon it.
MEDICAL EVIDENCE:
13. The medical evidence, as presented by Dr. Huzzeffa Tahir (PW-8), confirms that the deceased succumbed to firearm injuries resulting in cardiopulmonary arrest and hypovolemic shock. While this establishes the homicidal nature of death, it does not offer any direct nexus to the appellant.
No forensic evidence such as gunshot residue, DNA, or biological trace was found linking the appellant to the commission of the offence. Furthermore, no ballistic connection could be established between the weapon allegedly recovered and the projectile extracted from the deceased's body. Hence, although the post-mortem findings affirm the cause of death, they fall significantly short of identifying the appellant as the perpetrator. The Hon'ble Supreme Court in Muhammad Aslam v. The State (2011 SCMR 820) has held that medical evidence alone cannot pinpoint the identity of the assailant and can only lend support to ocular evidence, provided the latter is trustworthy and convincing.
RECOVERY OF INCRIMINATING MATERIAL:
14. The alleged recovery of the deceased's vehicle on 10.05.2022, and the purported recovery of the crime weapon on 12.06.2022, demonstrate a disjointed and suspicious sequence of events. The credibility of recoveries is seriously undermined by multiple legal infirmities. Firstly, the ownership of the recovered vehicle was jointly held, and the prosecution has failed to establish that the appellant was in exclusive possession of it. Secondly, the alleged murder weapon, a pistol, was taken into possession after an inordinate delay of more than a month and was carried out without adherence to mandatory legal protocols. The recovery memo is notably deficient in essential particulars, such as the exact location and circumstances of the recovery. Moreover, the chain of custody for the weapon was neither properly documented nor preserved, compromising its evidentiary value.
15. It is a well-established principle of criminal jurisprudence that circumstantial evidence must be so cogent and cohesive that it forms a complete and unbroken chain, leading exclusively and irresistibly to the guilt of the accused. The apex Court in the case of Dr. Israr-ul-Haq v.
Muhammad Fayya z (2007 SCMR 1427) and Ghulam Qadir v. The State (2008 SCMR 1221) categorically held that if the circumstantial evidence contains broken or dubious links, no conviction can be sustained thereon.
16. Even otherwise, recovery of the weapon of offence is only a corroborative piece of evidence, and in the absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of the offence or is disbelieved, corroborative evidence is of no help to the prosecution, as the corroborative evidence cannot by itself prove the prosecution's case. And it is well settled that when the ocular evidence is held to be unreliable, the strongest corroborative evidence may not cure such deficiency/lacking inasmuch as when the direct evidence is unacceptable, the corroborative evidence becomes worthless. Reliance is placed on Noor Muhammad v. The State and another (2010 SCMR 97) and Dr. Israr-ul-Haq v. Muhammad Fayya z and another.
In case titled as Dr. Israr-Ul-Haq Versus Muhammad Fayya z and another (2007 SCMR 1427), the august Supreme Court of Pakistan held that 4... It is also a settled law when ocular evidence is disbelieved in a criminal case then the recovery of an incriminating article in the nature of weapon of offence does not by itself prove the prosecution case.... It is also a settled law that the direct evidence having failed, the corroborative evidence is of no help.
In case titled as Yasir Versus The State (2010 YLR 2344), the Hon'ble Lahore High Court held that "Even otherwise, it is settled law that when the ocular account is not reliable then merely on the basis of supporting pieces of evidence, conviction cannot be made. Reliance has been placed on the case of Riaz Ahmad (Supra) (sic), wherein the Hon'ble apex Court has observed as under: "The prosecution also produced the positive F.S.L. report meaning thereby the crime empties secured from place of incident matched with the gun recovered from the possession of the appellant. This being a corroborative piece of evidence, which by itself is insufficient to convict the appellant in absence of substantive piece of evidence. Reference is invited to Ijaz Ahmad v. State 1997 SCMR 1279. It was held in the case of Asadullah v. Muhammad Ali PLD 1971 SC 541, that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. the State 1985 SCMR 410, it was held that when there is no eye-witness to be relied upon then there is nothing, which can be corroborated by the recovery. It has been held in the case of Riaz Masih v.
The State 1995 SCMR 1730 that recovery of crime weapon by itself is not sufficient for conviction on murder charge. In the case of Siraj v. Crown PLD 1956 Federal Court 123, it was held that recovery of the handle of blood- stained hatchet at the instance of the accused, when other evidence was disbelieved, then it was not enough for conviction".
17. The defence successfully produced documentary evidence, including bank records, substantiating the joint ownership of the vehicle and thereby refuting the prosecution's assertion of exclusive possession by the appellant. Notably, this material evidence was neither properly appreciated nor discussed by the learned trial court. Furthermore, the appellant's statement recorded under Section 340(2) Cr.P.C. remained consistent, unshaken, and unchallenged on material particulars. The Hon'ble Supreme Court in Iqbal vs. The State (2001 SCMR 133) emphasized that defence evidence must be assessed with equal importance and failure to consider the same constitutes a serious miscarriage of justice.
18. In view of above stated circumstances of the case, it can safely be held the prosecution's case against the appellant is fundamentally flawed due to the unreliability and lack of corroboration of the sole eyewitness testimony, the insufficiency of medical evidence to link the accused directly to the crime, and significant procedural deficiencies surrounding the recovery of incriminating material. The eyewitness account (PW-6) is undermined by contradictions, delayed recording, and absence of independent corroboration, rendering it legally insufficient to support a conviction.
Medical findings confirm the cause of death but do not establish the appellant's involvement.
Additionally, the delayed and improperly documented recovery of the vehicle and alleged weapon fails to establish a credible chain of custody or conclusive forensic linkage, thereby weakening the prosecution's narrative. Established legal precedents consistently hold that where ocular evidence is unreliable or uncorroborated, corroborative evidence alone cannot sustain a conviction.
19. The record is bereft of credible, unimpeachable evidence and does not inspire confidence. The benefit of doubt, even if arising from a single material infirmity, must be extended to the appellant as a matter of right, not of grace. It is a foundational principle of criminal justice that the accused is presumed innocent until proven guilty beyond a reasonable doubt. In Muhammad Hassan and another vs. The State and others (2024 SCMR 1427), the Supreme Court reaffirmed that even a single loophole in the prosecution's case entitles the accused to acquittal. This view is consistently reflected in Daniel Boyd (Saifullah) v. The State (1992 SCMR 196), Gul Dast Khan v. The State (2009 SCMR 431), Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), Abdul Jabbar v.
The State (2019 SCMR 129), Mst. Asia Bibi v. The State (PLD 2019 SC 64), and Muhammad Imran v.
The State (2020 SCMR 857).
20. There is no denying that the incident in question is of a grave and brutal nature, wherein the complainant's son lost his life due to a fatal gunshot. However, the seriousness of the offence cannot be permitted to overshadow the impartiality and objectivity that must guide judicial proceedings. Courts are duty-bound to dispense justice strictly in accordance with the Constitution and settled principles of criminal jurisprudence, rather than being influenced by emotions or public sentiment. The pain and anguish suffered by the bereaved family is deeply unfortunate and elicits sympathy; however, such considerations cannot be allowed to influence the judicial process. The case must be adjudicated solely on its legal merits, based on the evidence available on record, to determine whether the prosecution has succeeded in proving the charge beyond reasonable doubt. It is a foundational principle of criminal law that every accused is presumed innocent until proven guilty. This presumption remains intact unless and until the prosecution discharges its burden by producing admissible, credible, and trustworthy evidence.
Regardless of the nature of the offence, the accused is constitutionally entitled to a fair trial under Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, which is an inviolable right.
Hence, it is the solemn obligation of the Court to assess each piece of evidence dispassionately and in line with the established principles of appreciation of evidence. Any attempt to distort or stretch the evidence to meet a predetermined outcome must be avoided, as it undermines the integrity of judicial proceedings and poses a serious threat to the fair administration of criminal justice. This principle has been consistently upheld by the Honourable Supreme Court of Pakistan, in case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
21. It is also cardinal principle of criminal law that the prosecution bears the burden to prove its case beyond a reasonable doubt. The numerous contradictions in the prosecution's case, coupled with an unsubstantiated eyewitness account and a failure to consider exculpatory defence evidence, clearly entitle the appellant to the benefit of doubt. The Supreme Court in Muhammad Bashir vs. The State (PLD 1968 SC 45) reaffirmed that where doubt arises in a prosecution's case, no matter how slight, it must invariably be resolved in favour of the accused.
22. The impugned judgment of the learned trial court appears to be based on assumptions rather than concrete, reliable, and legally admissible evidence. It suffers from a failure to appreciate the material placed on record in its proper legal perspective. As such, the findings are untenable in law and call for judicial interference. The reliance on conjectural reasoning rather than substantiated proof undermines the sanctity of the judicial process. The appellate forum is, therefore, urged to re- examine the matter dispassionately and with legal acuity, so that justice may prevail through a verdict based on truth and law.
23. In view of the above discussion, we find that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. Accordingly, Criminal Appeal No. 433 of 2023 is allowed.
The convictions and sentences awarded to Muhammad Niaz alias Aalian vide judgment dated 29.11.2023 by the learned Additional Sessions Judge, Islamabad (West), are set-aside. He is acquitted of the charges under Sections 302(b) and 397 PPC and shall be released forthwith if not required in any other case.
24. The Murder Reference No.25 of 2023 for confirmation of death sentence is answered in the NEGATIVE.