MUHAMMAD TARIQ NADEEM, J: - Through this single judgment, we intend to dispose of Crl. Appeal No. 293-J of 2023 filed by Atif Pervaiz against his conviction and sentence, whereas Murder Reference No. 23 of 2023 has also been transmitted by learned trial court for confirmation or otherwise of death sentence of Atif Pervaiz, appellant, both the matters being originated from the same judgment dated 14-06-2023 passed by learned Addl. Sessions Judge, Fort Abbas, District Bahawalngar in private complaint under sections 302,109, 114, 34 PPC emanated from case FIR No.285 dated 16-07-2022, under Sections 302,109, 34 PPC registered at Police Station Khichiwala whereby, at the conclusion of the trial in the said case, the learned trial court, while acquitting rest of the co-accused namely Mst. Abida Perveen, Muhammad Naveed and Muhammad Latif alias Changa, convicted and sentenced the appellant as under:-:- U/S 302 (b) PPsC.
Sentenced to death with the direction to pay a sum of Rs.3,00,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of Muhammad Nawaz, deceased, recoverable as arrears of land revenue and in default thereof to further undergo six months S.I.
2. The prosecution story as given in the judgment of the Trial Court reads as under: ...2. Brief facts of the written complaint Exh.P.D are that the complainant Muhammad Abbas is resident of Chak No.134/6R and retired ranger person; that about 17/18 years ago, complainant's brother Muhammad Nawaz was married with Mst.Abida Perveen D/o Muhammad Shafique, Caste Arian, R/o Chak No.308/HR Marrot; that there was death in the in-laws of complainant's brother Muhammad Nawaz where they wanted to go and on 16.07.2022 at about 01:00 p.m, complainant's brother Muhammad Nawaz and his wife Mst.Abida Perveen departed on CD-70 Motorcycle towards chak No.308/HR Marrot while the complainant Muhammad Abbas along with his brother Muhammad Riaz & his son Tanzeel Abbas also departed on motorcycle towards Chak No.308/HR; that complainant's brother Muhammad Nawaz & his wife were ahead at some distance and at about 01:40 p.m, they reached at metaled road of chak No.179/7R and saw that complainant's brother Muhammad Nawaz along with his wife Mst. Abida Perveen were standing on Eastern side of metaled road at the distance of 1 1/2 acre, accused persons Atif Pervez S/o Faryad Hussain & Muhammad Latif alias Changa while armed with pistol 30-bore were present there on motorcycle; that on seeing the complainant and PWs, accused person Atif Pervez & Muhammad Latif alias Changa made fires with their pistols, which hit on right upper side of ear of Muhammad Nawaz, neck and belly, who fell in the ground & the accused persons succeeded to run away on their motorcycle towards chak No.178/7R by brandishing their weapons; that complainant and PWs rescued Muhammad Nawaz, who succumbed to injuries at the spot; that accused Mst. Abida Perveen is involved in the murder of Muhammad Nawaz and she had illicit relations with accused Atif Pervez. Complainant's brother Muhammad Nawaz used to forbade the accused Atif Pervez from his house and the accused persons in furtherance of their common intention made planning and lady accused Mst.Abida Perveen called the accused persons Atif Pervez and Muhammad Latif alias Changa at the spot and the accused person Atif Pervez obtained the pistol from the accused Muhammad Naveed and accused persons Atif Pervez & Muhammad Latif alias Changa committed the murder of Muhammad Nawaz with firing of their pistols. On the oral version/statement of complainant, case FIR No.285/22, U/S. 302/114/109/34 P.P.C., PS, Khichiwala was registered and later- on, the post mortem examination of complainant's brother was conducted at THQ Hospital Fortabbas; that accused Muhammad Latif alias Changa was an influential person. Investigating officer malafidely did not investigate the case and declared the accused Latif Alias Changa only to the extent of abetment as well as taking sapari of Rs.2,80,000/- U/S.109 PPC, while he is a real culprit of committing the murder of Muhammad Nawaz deceased with his pistol by taking sapari of Rs.2,80,000/- from accused Atif Pervez through accused Muhammad Naveed; that accused Latif alias Changa along with accused Atif Pervez committed the murder of deceased Muhammad Nawaz in the presence of accused Mst.Abida Perveen, but the local police did not investigate the case on merits. Hence, feeling aggrieved from the police investigation, he has filed the instant private complaint Exh.P.D "
3. After recording cursory statements of the complainant and PWs the accused were summoned to face trial. Learned trial court, after observing all the pre-trial codal formalities, framed charge under sections 302,114,109,34 PPC against the appellant along with his acquitted co-accused on 03-01-2023, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as 05 PWs and 11 witnesses were examined as CWs. The ocular account of the incident in issue had been provided by Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2). Waris Ali 838/C (CW.4) was the recovery witness of CDRs of appellant, Mst.
Abida Perveen and Muhammad Naveed, co-accused (since acquitted) taken into possession vide recovery memo (Exh.CW-3/C). He was also the recovery witness of Samsung mobile (P.8) having SIM No. 0344-1089134 recovered from the appellant vide seizure memo (Exh.CW-4/D). He was also the recovery witness of motorcycle (P.9) used by the appellant during the occurrence,vide recovery memo (Exh.CW-4/E). Zulfiqar Ali Halqa Patwari (CW.7), who prepared scaled site plan (Exh.CW- 7/G). Asim Ali Touqeer, ASI (CW.11) was the investigating officer of the case who stated about the various steps taken by him during investigation of this case. The medical evidence was furnished by doctor Zain-ul-Harmain (CW.2).
The remaining evidence produced by the prosecution was formal in nature. The prosecution gave up Rustam Ali 1116/C, PW being unnecessary and after tendering reports of the Forensic Science Agency, Lahore (Exh.PL, Exh.PM and Exh.PN) closed its evidence.
4. Thereafter the statements of the appellant and his co-accused under section 342 Cr.P.C. were recorded wherein they refuted the allegations leveled against them and professed their innocence.
The appellant neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegation leveled against him, nor produced any defence evidence.
5. The learned trial court vide judgment dated 14-06-2023 found the appellant guilty, convicted and sentenced him as mentioned above, however, acquitted his co-accused namely Mst. Abida Perveen, Muhammad Naveed and Muhammad Latif alias Changa of the charge through the same judgment by giving them the benefit of doubt, hence, the criminal appeal, and connected Murder Reference before us.
6. We have heard the arguments of the learned counsel for the appellant and learned Deputy Prosecutor General assisted by learned counsel for the complainant meticulously and also scanned the record minutely with their able assistance.
7. The incident in the present case, according to the prosecution case, the occurrence was alleged to have taken place on 16-07-2022 at about 01:40 p.m. within the area of Chak No.179/7.R, about 19 kilometers away from Police Station Khichiwala, District Bahawalnagar and the same was reported by Muhammad Abbas, complainant (PW.1) through his oral statement (Exh.PA) on the same day at 04:15 p.m. whereafter on the basis of which formal FIR (Exh.CW6/F) was chalked out on 16-07-2022 at 04:45 p.m. There is a delay of 02 hours and 35 minutes in reporting the matter to the police.
According to the testimony of Muhammad Abbas, complainant (PW.1) police reached at the spot at 02:45 p.m. Same was the statement of other eye witness Muhammad Riaz (PW.2.). No reasoning has been described by Muhammad Abbas, complainant (PW.1) to the effect that why he recorded his statement (Exh.PA) with the delay of one and half hour after the arrival of police. This fact is sufficient to hold that that supra-mentioned eye witnesses were not present at the time and place of occurrence, even otherwise, there was no justification for the above-mentioned delay. Therefore, we hold that this delay in setting the machinery of law into motion speaks volume against the veracity of prosecution version.
8. We have further noted that according to the prosecution story, Muhammad Nawaz kissed to dust at the spot on 16-07-2022 at 01:40 p.m. whereas postmortem on the dead body of Muhammad Nawaz was conducted on 16-07-2022 at 11:30 p.m. According to the statement of doctor Zain-ul- Harmain, Medical Officer (CW.2), dead body of Muhammad Nawaz was brought by Asim Ali Touqeer, ASI (CW.11) for postmortem examination on 16-07-2022 at 11:00 p.m. and he (CW.2) conducted autopsy on 16-07-2022 at 11:30 p.m. thus, the postmortem on the dead body of Muhammad Nawaz (deceased) was conducted with the delay of 09 hours and 50 minutes, after the occurrence. Keeping in view, the above-mentioned gross delay in the post mortem examination, an adverse inference can be drawn that the prosecution witnesses were not present at the time of occurrence and the intervening period had been consumed in fabricating a false story after preliminary investigation, otherwise there was no justification of delay for conducting post-mortem examination on the dead body of the deceased.
9. We have further noted that Muhammad Abbas, complainant (PW.1) being dissatisfied with the police investigation, while changing the prosecution version as reproduced supra, filed private complaint (Exh.PD) on 06-12-2022 with the delay of almost 04 months and 20 days of the occurrence. Prosecution has not given any plausible reasoning qua such delay meaning thereby that the private complaint has been filed after due deliberation and consultation just to fill up the lacunas left in the FIR. We fortify our view from the dictum laid down in case law titled as "Muhammad Azad vs. Ahmad Ali and 02 others" (PLD 2003 SC 14) wherein the Supreme Court of Pakistan has held as under:- "S. 302---Constitution of Pakistan (1973), Art. 185 Appeal against acquittal-Private complaint suffered from an unexplained delay of three months and four days which apparently had been filed after due deliberation, consultation and in consonance with the injuries shown in the post- mortem report---Complainant and eye-witnesses had improved the prosecution case by exaggerating the matter beyond the contents of the F.I.R. registered earlier by the complainant, in order to bring the case in consonance with the medical evidence..."
10. In an attempt to make it a case of direct evidence against the appellant, the prosecution has heavily relied upon the statements of Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2), who happened to be the real brothers of Muhammad Nawaz (deceased) respectively.
The alleged occurrence took place on 16-07-2022 at about 01:40 p.m. within the area of Chak No.179/7.R, about 19 kilometers away from Police Station Khichiwala, District Bahawalnagar It was, therefore, mandatory for the above-mentioned eye witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason but they have failed to establish their presence at the relevant time and place of occurrence rather they are related and chance witnesses. According to the prosecution story on the fateful day at 01:00 p.m. they alongwith their brother Muhammad Nawaz (since deceased), Mst. Abida Perveen, co-accused (since acquitted) as well as Tanzeel Abbas (jettisoned PW) proceeded to Chak No. 308/HR Marrot, Tehsil Fortabbas for the purpose of condolence in the family of in-laws of Muhammad Nawaz (deceased).
According to the statement of Muhammad Abbas, complainant (PW.1), the daughter of maternal uncle of Mst. Abida Perveen, co-accused (since acquitted) was died about 07/08 days before the occurrence in Chak No. 308/HR Marrot, Tehsil Fortabbas and for the condolence, he (PW.1) alongwith Muhammad Riaz (PW.2) and his son Tanzeel Abbas (jettisoned PW) as well as his brother (deceased) and sister-in-law Mst. Abida Perveen, co-accused (since acquitted) were going there but he (PW.1) failed to disclose the name of daughter of maternal uncle of Mst. Abida Perveen, co- accused (since acquitted) nor he knew the name of her father. He (PW.1) further did not go to the funeral prayer as well as Qul Khawani of deceased daughter of maternal uncle of Mst. Abida Perveen, co-accused (since acquitted). Moreover, according to his statement, neither Mst. Abida Perveen, co-accused (since acquitted) nor her husband Muhammad Nawaz (deceased) went to attend the funeral prayer as well as Qul Khawani. According to his testimony, the distance between Chak No.134/6R and Chak NO. 308/HR was about 50 kilometers. He (PW.1) further stated in his cross examination as under:- "...I along with PWs, accused Mst. Abida Perveen & deceased Muhammad Nawaz jointly departed from our house on two motorcycles. I was driving the motorcycle and my brother Muhammad Riaz was sitting behind me and my son Tanzeel Abbas was also sitting behind my brother Muhammad Riaz. I do not know the name of owner of that motorcycle which I was driving at the time of occurrence....."
Similarly, Muhammad Riaz (PW.2) deposed in line with the statement of Muhammad Abbas, complainant (PW.1). Relevant lines of his (PW.2) cross examination read as under:- "...The niece of Abida Perveen accused was passed away and we were going for her condolence at chak No.308/HR. I do not know the name of Mamo of Abida Perveen accused and I also do not know the name of deceased girl. The deceased girl was expired 6/7 days prior to the occurrence. I do not know the age of deceased girl..."
We have further observed that occurrence took place in broad daylight at 01:40 p.m. on 16-07-2022 but the alleged eye witnesses Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2) have not described any specific injury to any of the accused persons. Had they present at the time of occurrence, they must have described the exact locale of injuries on the body of Muhammad Nawaz (deceased), this fact further negates the version of the prosecution qua the presence of supra-mentioned eye witnesses at the time and place of occurrence.
In the eventuality of supra mentioned facts, we are of the considered view that Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2) have failed to establish their presence at the spot at the relevant time rather they are interested and chance witnesses and as such their evidence is not reliable.
11. There is yet another crippling feature of the prosecution case is that the appellant and his co- accused Muhammad Latif alias Changa (since acquitted) were not nominated in the F.I.R (Exh.CW6/F). They were implicated in this case through the supplementary statement (Exh.PB) of Muhammad Abbas, complainant (PW.1), which was allegedly got recorded by him on the same day of occurrence wherein he (PW.1) stated that at the time of registration of case, he was in anxiety and shock due to the reason that his real brother was murdered in his eye view and he incorporated two unknown accused persons in the FIR. At the time of occurrence, the appellant and his co-accused Muhammad Latif alias Changa (since acquitted) were armed with pistols 30 bore and Mst. Abida Perveen, co-accused (since acquitted) was empty handed, where appellant and his co-accused Muhammad Latif alias Changa (since acquitted) made fire shots with their respective pistols 30 bore upon his brother Muhammad Nawaz (deceased), which landed on the different parts of his body, who succumbed to the injuries at the spot.
It is settled by now that a supplementary statement is a statement made by a complainant or witness after the initial First Information Report (F.I.R.) has been recorded. It is typically used to provide additional information or clarify details that were not included in the original F.I.R. However, the legal standing and evidentiary value of supplementary statements can be quite limited. In the context of Pakistani law, supplementary statements are not considered equivalent to the F.I.R. and do not carry the same weight in legal proceedings. The Supreme Court of Pakistan has emphasized that any statement or further statement recorded during the investigation by the police should not be equated with the F.I.R. and its value is determined based on the principles established by superior courts. The courts have also noted that supplementary statements should not be relied upon if they change the initial version of events without a plausible explanation for change.
In nutshell, while supplementary statements can provide additional context or details, their legal significance is often scrutinized, and they are treated with caution in judicial proceedings.
After careful scrutiny of the prosecution evidence, it manifests that the appellant was a close relative of the complainant party. Muhammad Abbas, complainant (PW.1) during his cross examination has stated as infra:- "...Father of accused Atif Pervez is my paternal cousin and we are living in the same village. Father of accused Atif Pervez is also the owner of about five acre land. Our land is situated in the same khata but we have mutually partitioned our respective agricultural land...."
Likewise, Muhammad Riaz (PW.2) has also admitted this fact in his cross examination. Relevant lines of his cross-examination are mentioned below:- "...The father of accused Atif Pervez is the son of my Taya. It is correct that the land of accused Atif Pervez as well as my land situated in the same Khata..."
More so, Asim Ali Touqeer, ASI/I.O (CW.11) during his cross examination stated as under:- "...It is correct that he complainant Abbas and Atif accused are neighbourer with single common wall between their house. It is correct that complainant and Atif accused are paternal cousins....."
We have further noted that no medical evidence was produced before the court that at the time of recording of statement Muhammad Abbas, complainant (PW.1) was in a serious anxiety and shock condition. While, it is not the case of prosecution that Muhammad Riaz (PW.2), who is also real brother of Muhammad Nawaz (deceased), was also mentally disturb at the time of recording of his first statement under section 161 Cr.P.C. about the occurrence.
In this way, it is abundantly clear that above-mentioned PWs have implicated the appellant after due deliberation and consultation; even otherwise, due to the close relationship of the eye witnesses with the appellant being residents of adjacent houses, there was no occasion for not mentioning the name the appellant and his co-accused in the F.I.R. Even otherwise, the courts have always deprecated such kind of statement, which is made with the purpose to strengthen the case of the prosecution at the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or crook. Nomination through supplementary statement has always been disliked by the Supreme Court of Pakistan and has never appreciated the same being afterthought. Here, we would like to refer to the case of "Khalid Javed vs. The State" (2003 SCMR 1419) wherein the Supreme Court of Pakistan has held as under:- "...14. With reference to above discussion there is yet another important area of the case which needs elaborate consideration i.e. after how much time front lodging F.I.R. Exh. P/O complainant Naveea Anwar Naveed got recorded supplementary statement Exh.D/B. This aspect of the case engaged our attention quite for some time during hearing because delay in recording supplementary statement would be an important factor which is likely to give rise to an inference that second version contained in it was introduced by the prosecution after deliberation and if it is so it will adversely affect the prosecution case. We failed to find satisfactory answer to our query from the record of the case because no time has been noted on the supplementary statement Exh.D/B by P.W. Muhammad Asadullah, Investigating Officer who recorded it. However, in his Court statement Investigating Officer deposed that shortly after recording the F.I.R. Exh.P.O the complainant got his supplementary statement Exh.D.B recorded but he did not disclose even approximate time of recording the same. So for complainant Naveed Anwar Naveed is concerned he in his Court statement stated that "I was so much confused and shocked that I felt that my eyes were blurred. Matloob Ahmad Waseem, Muhammad Saleem Butt and Muhammad Zubair consoled me and I stabilized myself after some time and then I left Muhammad Saleem and Muhammad Zubair to look after the dead body and went to the Police Station, Civil Line on the scooter of Matloob Ahmad Wasim, driven by him. I was not fully within myself even at that time and narrated the occurrence as much as I could under the given condition, and the Inspector recorded my report, got my signatures. The report is Exh. P/O, and the report was read over to me after my signature and I immediately pointed out that under great stress and strain and mental shock I had erroneously mentioned the murderers as the P.Ws. and had omitted to mention the names of other P.Ws. namely Muhammad Saleem Butt. and Muhammad Zubair. There and then my supplementary statement was recorded". This vital portion of the statement of the complainant also has not helped us to ascertain the time of recording his supplementary statement. It may be noted that for changing his version from F.I.R. Exh.P.O to the version incorporated in supplementary statement Exh.D/B the complainant had claimed allowance oft account of his disturbed mental condition but without proving medically through expert evidence, therefore, it would be dangerous and against the interest of justice to accept his explanation without legal proof...."
Further reference can be made to the case laws titled as "Akhtar Ali and others vs. The State"
(2008 SCMR 6) and "Rafaqat Ali vs. The State" (2022 SCMR 1107).
12. We have also observed that there is a direct conflict between the ocular account and medical evidence. According to the site plan (Exh.CW7/G), Muhammad Nawaz (deceased) received fire shot from a distance of 02 karams whereas according to the statement of doctor Zain-ul-Harmain, Medical Officer (CW.2), there were burnt margins present on injuries No.1 and 2. According to the Modi's Book of Medical Jurisprudence and Toxicology 27th edition, in case of pistol fire shot burning can occur if the fire shot is made from a distance of within 02 feet. Relevant extract from the Book of Modi's Medical Jurisprudence and Toxicology 27th edition reproduced as under:- "...25.7.1.1 Distance of the Firearm If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet.
Reliance is also placed upon the case law titled as "Riasat Ali and Fakhar Zaman vs. The State and another" (2024 SCMR 1224), wherein it has been held as under:-
14. The postmortem report of deceased Asadullah Khan mentions about blackened and burnt area of his entrance wound near lower end of his scapula. The distance from which the deceased Asadullah Khan was fired upon was 5.5 feet. According to Modi's Medical Jurisprudence and Toxicology blackening is found, if a firearm like shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet.."
13. Another important aspect of the case, which cannot be lost sight of is that the witnesses of ocular account, Muhammad Abbas, complainant (PW.1) and Muhammad Riaz (PW.2) are not witnesses of inquest report (Exh.CW-2/B/5) and postmortem report (Exh.CW2/B) pertaining to Muhammad Nawaz (deceased). If they were present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report. Similarly, they should have escorted the dead body to the hospital being the close relatives and their names should have been incorporated in the post mortem report in the column of identification of the dead body. This fact has constrained us to hold that supra mentioned PWs were not present at the time and place of occurrence.
14. We have further noted that Muhammad Abbas, complainant (PW.1) in his private complaint (Exh.PD) has ascribed the role Muhammad Latif alias Changa, co-accused) of causing firing shot injuries on the body of Muhammad Nawaz (deceased) but he has been acquitted of the charge by the learned trial court through the same judgment. Learned District Public Prosecutor assisted by learned counsel for the complainant has frankly admitted that the complainant filed appeal against acquittal of said co-accused but the same was dismissed due to non-prosecution. It is a trite principle of law and justice that once prosecution witnesses are disbelieved with respect to a co-accused then, they cannot be relied upon with regard to the other co-accused unless they are supported by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case.
15. With regard to the recovery of pistol 30 bore (P-4) taken into possession by Asim Ali Touqeer, ASI/I.O (CW.11) at the pointation of the appellant vide recovery memo (Exh.PJ) concealed near the bridge of 7/R within the limits of Chak No.172/7R by wrapping in shopper under the gumarabic tree and positive report of the Punjab Forensic Science Agency, Lahore (Exh.PL), we are of the view that the same are not helpful to the prosecution, because the pistol was recovered from an open place, which was easily accessible to all. Reference can be made to the case of "Arshad Khan vs. The State" (2017 SCMR 564).
Moreover, we have already disbelieved the evidence of Muhammad Riaz (PW.2) to the extent of ocular account, thus, his evidence cannot be believed to the extent of this corroborative piece of evidence. In this way, abovementioned recovery of pistol at the instance of the appellant is highly doubtful in nature and the same cannot be relied upon. Even otherwise, it is not safe to rely on such a piece of prosecution evidence, which even otherwise is merely corroborative of direct evidence and is not itself the conclusive evidence of charge, hence, does not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye witness account.
Reliance is placed upon the case law titled as "Mian Sohail Ahmad and others vs. The State and others" (2019 SCMR 956).
16. As far as recovery of CDR of mobile phone (P-7) being used by co-accused Mst. Abida Perveen (since acquitted) through recovery memo (Exh.CW11/J) and CDR of mobile phone (P.9) of appellant through recovery memo (Exh.CW3/C) are concerned, the same simply depict the number of caller as well of recipient, location, duration of call and not more than this, even there is no evidence that what was the conversation made between the caller and recipient. It is well settled by now that CDR is not conclusive proof of involvement of accused in the commission of crime.
17. So far as the recovery of motorcycle CD-70 (P-9) allegedly used by the appellant during the occurrence, taken into possession vide recovery memo (Exh.CW4/E), which was produced by Faryad Hussain, father and Muhammad Maroof, brother-in-law of appellant to the police is concerned, admittedly, no registration number, colour, its company name have been described in the F.I.R. Moreover, abovesaid recovery was not made from the possession of the appellant. In this way, recovery of motorcycle is inconsequential and not helpful to the prosecution case.
18. Now the next piece of evidence which still remains in the field is the motive advanced by the prosecution behind the unfortunate incident, which, as per prosecution story was that Mst. Abida Perveen, co-accused (since acquitted), who was wife of Muhammad Nawaz (deceased) had illicit relations with the appellant. We have noted that it was an oral assertion of the appellant and no substantial piece of evidence was led by the prosecution to prove the same. Although, the prosecution has got recorded the statement of Liaqat Ali (PW.3), who deposed before the learned trial court about the extrajudicial confession of Mst. Abida Perveen, co-accused (since acquitted) that she confessed before him as well as Maqsood Ahmad (jettisoned PW) on 20-07-2022, when they were sitting in his drawing room where Mst. Abida Perveen, co-accused (since acquitted) widow of Muhammad Nawaz (deceased) came to them in worried condition and stated that her husband was living abroad and in his absence, she had developed illicit relations with the appellant and that relation had come in the knowledge of her husband (deceased). She further stated that for continuation of her illicit relations with the appellant, they made planning to commit murder of Muhammad Nawaz (deceased). After scanning the prosecution evidence, we have noticed that the abovesaid stance of the prosecution is negated from the testimony of Asim Ali Touqeer, ASI/I.O (CW.11). He (CW.11) during his cross examination stated as under:- "....It is correct that Atif Pervez and Nawaz lived abroad for livelihood purpose and some days before the occurrence they came to Pakistan..."
In the light of above, we feel no hesitation to hold that the prosecution has failed to prove the motive part of the unfortunate occurrence. Although, the prosecution is not under obligation to establish a motive in every murder case but it is also well settled principle of criminal jurisprudence that if prosecution sets up a motive but fails to prove it, then, it is the prosecution who has to suffer and not the accused. Reliance is placed upon the case laws titled as "Tajamal Hussain Shah vs. The State and another" (2022 SCMR 1567) and "Iftikhar Hussain alias Kharoo vs. The State" (2024 SCMR 1449).
19. Having considered all the pros and cons of this case, we have come to an irresistible conclusion that the prosecution could not prove its case against the appellant beyond shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs, but in this case the prosecution remained failed to discharge its responsibility. It is also well established principle of law 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 as observed by the . Reliance is placed upon the following case law titled as "Rehmat Ullah & 2 others vs. The State & others"
20. For what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any shadow of doubt.
So by extending the benefit of doubt to Atif Pervaiz, appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
21. Murder Reference is answered in negative and death sentence passed by learned trial court against Atif Pervaiz appellant is not confirmed.