SADIQ MAHMUD KHURRAM, J.-Liaquat Ali son of Shahzada, Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada (convicts) were tried along with Shahzada and Basit Ali (both since acquitted), their co-accused, by the learned Additional Sessions Judge, Hassan Abdaal in the case F.I.R. No. 234 of 2018 dated 15.08.2018, registered in respect of offences under sections 302,324, 337- F(i),337-A(ii), 148 and 149 P.P.C. at the Police Station Saddar Hassan Abdaal, District Attock for committing the Qatl-i-Amd of Asghar Ali son of Ghulam Khan (deceased). The learned trial court vide judgment dated 12.04.2022, convicted Liaquat Ali son of Shahzada, Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada (convicts) and sentenced them as infra: Liaquat Ali son of Shahzada:- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Asghar Ali son of Ghulam Khan (deceased) and directed to pay Rs.10,00,000/- as compensation under section 544-A, 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 death.
Mazhar Ali son of Shahzada :- i) To pay Arsh equal to 5% of Diyat under section 337-A(ii) P.P.C. read with section 34 P.P.C. to Najabat Ali (PW-12) . ii) To pay Daman of Rs.20,000/- under section 337-F(i) P.P.C. read with section 34 P.P.C. to Najabat Ali (PW-12) .
Kamran Ali son of Shahzada:- i) To pay Arsh equal to 5% of Diyat under section 337-A(ii) P.P.C. read with section 34 P.P.C. to Najabat Ali (PW-12) . ii) To pay Daman of Rs.20,000/- under section 337-F(i) P.P.C. read with section 34 P.P.C. to Najabat Ali (PW-12) .
Till the payment of above mentioned Arsh and Daman amounts, Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada (convicts) were directed to remain confined and their imprisonment was to be treated as simple imprisonment.
The convict namely Liaquat Ali son of Shahzada was however acquitted the charge under section 324, 337-A(ii), 337-F(i), 148 and 149 P.P.C. by the learned trial court. The convicts namely Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada were acquitted of the charge under section 302,324, 148 and 149 P.P.C. by the learned trial court. Shahzada and Basit Ali , the co-accused of the convicts, were acquitted of all the charges by the learned trial court.
2. Feeling aggrieved, Liaquat Ali son of Shahzada(convict) lodged the Criminal Appeal No.778-J of 2022, assailing his conviction and sentence. Feeling aggrieved, Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada (convicts) lodged the Criminal Appeal No. 276 of 2022, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.82 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Liaquat Ali son of Shahzada . We intend to dispose of the Criminal Appeal No. 778-J of 2022, Criminal Appeal No. 276 of 2022 and the Murder Reference No.82 of 2022 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as narrated by Sohbat Khan (PW-11), the complainant of the case are as under:- "Stated that on 15.08.2018, at about 06:30 p.m., my son Shafqat Ali was grazing cattle near Haidri Masjid at a distance about 20 paces from my house. Meanwhile, suddenly, accused persons Shahzad alias Shada armed with Sota, Mazhar armed with sickle, Kamran armed with Sota, sons of Shahzad alias Shada, Basit son of Ishtiaq empty handed emerged there. Accused Shahzad alias Shada raised Lalkara to his co-accused persons to teach lesson to Shafqat for making litigation with Nasir Khan Tahir Khaili upon which accused persons started beating Shafqat Ali my son. My son Shafqat raised hue and cry, hearing which my nephew Najabat Ali son of Aksar Zaman alias Kala rushed to get relieved Shafqat from the hands of accused persons. Accused Mazhar Ali made a sickle blow on Najabat Ali which hit on left side of his face, who fell injured upon which Kamran accused made a Sota blow which hit on lower side of left shoulder towards chest. I and my brother Asghar Ali aged about 45/50 years alongwith nephew Najab Ali and my son Barkat Ali, hearing noise, came out from the house. Meanwhile, Liaqat armed with 12 bore, alongwith Shahzad alias Shada, Mazhar, Kamran, Basit son of Ishtiaq rushed towards us while accused Shahzad alias Shada again raised Lalkara upon which Liaqat made fire which hit my brother Asghar Ali on his right temporal region of his head, who fell injured and succumbed to the injuries. The accused persons while raising Lalkaras fled away from the place of occurrence. On 10.08.2018, at about 01:30 p.m., my son Barkat Ali and nephew Najab Ali were passing near Dera of Shahzad alias Shada. Nasir Khan Tahir Khaili, Shahzad alias Shada, Mazhar, Liaqat, Kamran, Basit were sitting at the Dera of Shahzad alias Shada. Nasir Khan Tahir Khaili was saying to his co-accused to murder Asghar and Sohbat Khan and he will deal with the matter. Under objection from learned defence counsel that the witness is recording hearsay evidence regarding hatching of conspiracy and it is inadmissible in Qanun-eShahadat Order. Learned counsel for the Complainant replied that it is not hearsay evidence. (As the witness has not stated about getting information from other person and he is narrating the story whatever is mentioned in his complaint/Fard Biyan and definitely, the prosecution shall prove the alleged hatching of conspiracy through independent evidence, therefore, the defenc objection is over ruled) Police reached at the spot and recorded my statement Exh.P- H which bears my signatures Exh.P-H/1.
On 04.09.2018, I handed over attested copy of plaint and order sheet P-8/1-5 and copy of documents relating to Revenue Board P- 9/1-6 to police, who took the same into possession vide recovery memo Exh.P-J and obtained my signatures and recorded my statement.
The motive behind the occurrence is pendency of civil litigation between us and Nasir Khan Tahir Khaili. Nasir Khan Tahir Khaili asked the accused persons to eject us from the land."
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 27.11.2018, 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 sixteen witnesses recorded. The ocular account of the case was furnished by Sohbat Khan (PW-11) and Najabat Ali (PW-12). Shaukat Ali (PW-1) stated that on 15.08.2018, the Investigating Officer of the case took into possession blood stained earth and one empty cartridge (P-1) from the place of occurrence. Nazir Muhammad (PW-2) stated that on 15.08.2018, he identified the dead body of the deceased at the time of its post mortem examination. Nazim Ali (PW-4) stated that on 11.10.2018, the appellant namely Kamran Ali got recovered Danda (P-3). Muhammad Ashraf (PW5) stated that on 02.09.2018, the appellant got recovered Rifle 12-bore (P-4). Aqil Khan Patwari, (PW-6) prepared the scaled site plan of the place of occurrence (Exh.PF). Dilshad Ahmad 1321/C (PW-7) stated that on 15.08.2018 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Amir Shahzad 1676/HC (PW-9) stated that on 15.08.2018, the Investigating Officer of the case handed over to him one sealed parcel said to contain the empty cartridge, one sealed parcel said to contain blood stained earth , one sealed parcel said to contain a bullet and the last worn clothes of the deceased and on 19.08.2018, he handed over the one sealed parcel said to contain the empty cartridge, one sealed parcel said to contain blood stained earth, one sealed parcel said to contain a bullet to Muhammad Ismail, ASI (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 02.09.2018, Zulfiqar Khan, SI (PW- 16) handed over to him one sealed parcel said to contain a gun which on 13.09.2018 , he handed over to Muhammad Ismail, ASI (PW-8) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Zulfiqar Khan, SI (PW-16) investigated the case from 15.08.2018 till 12.10.2018, arrested the appellant namely Liaquat Ali on 28.08.2018, arrested the appellants namely Mazhar Ali and Kamran Ali on 09.10.2018 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. Noman Shaukat (PW-14) examined, who on 15.08.2018 was posted as Medical Officer at THQ hospital Hassan Abdaal and on the same day, conducted the post mortem examination of the dead body of Asghar Ali son of Ghulam Khan ( deceased). Dr. Noman Shaukat (PW-14), on conducting the post mortem examination of the dead body of Asghar Ali son of Ghulam Khan ( deceased) observed as under:- "Description of injuries:-
(1) Firearm entry wound 3.0 cm X 2.0 cm with inverted edges on right of face near right ear.
Route Entered from right side of face downward passing skin, subcutaneous tissues, muscles, fracturing right maxilla upper molar teeth then fracturing right mandible with lower molar passing into the neck damaging great vessels of neck including jugular vein, crossed and damage great vessels of chest crossing the left lung damaging it and found at back of left lung at about second rib level.
300 ml to 500 ml blood was recovered from chest cavity. All injuries were antemortem.
In my opinion, the cause of death was a shock & hemorrhage due to injury No. 01 which is sufficient to cause death in ordinary course of nature. Injury No. 01 was antemortem. "
On 15.08.2018 , Dr. Noman Shaukat (PW-14) also medically examined Najabat Ali (PW-12) . Dr. Noman Shaukat (PW-14), on examining Najabat Ali (PW-12) observed as under:- "INJURIES
1. Incised wound measuring 04 X 01 cm on left side of face, 06 cm blow (sic) left eyelid and 01 cm above left upper lip with bone exposed.
2. Swelling 04 X 01 cm on left side of upper anterior chest at about clavicle region."
7. On 21.02.2022, the learned Deputy District Public Prosecutor gave up the Ahmed Khan, Ghulam Ashiq son of Ghulam Khan, Muhammad Younas 628/C, Azhar Ali son of Sher Dil, Lal Khan son of Ghulam Sarwar, Ibrar Ali son of Meer Afzal, Bakht Ali son of Asghar Ali, Barkat Ali son of Sohbat Khan as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. P.AA. and Exh. P.Z).
8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Liaquat Ali son of Shahzada , Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada 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, they replied that they had been involved in the case falsely and were innocent. The appellants namely Liaquat Ali son of Shahzada , Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada , opted not to get themselves examined under section 340(2)
Cr.P.C. and did not adduce any evidence in their defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Hassan Abdaal, convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants precisely was that the whole case was 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 appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also submitted that the recovery of the Sickle (P-10) from the appellant namely Mazhar Ali son of Shahzada and the recovery of the Gun 12- bore (P-4) from the appellant namely Liaquat Ali son of Shahzada and the recovery of the Danda (P-3) from the appellant namely Kamran Ali son of Shahzada were full of procedural defects, of no legal worth and value, and were result of fake proceedings. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsel for the appellants 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 had 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 Liaquat Ali son of Shahzada, whereas the prosecution witness namely Najabat Ali (PW-12) was also injured at the hands of the appellants. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that the medical evidence also corroborated the statements of the eye witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the Sickle (P-10) from the appellant namely Mazhar Ali son of Shahzada and the recovery of the Gun 12-bore (P-4) from the appellant namely Liaquat Ali son of Shahzada and the recovery of the Soti (P-8) from the appellant namely Kamran Ali son of Shahzada also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeals.
12. We have heard the learned counsel for the appellants, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance.
13. The ocular account of the case was furnished by the prosecution witnesses Sohbat Khan (PW-11) and Najabat Ali (PW-12). The prosecution witness namely Najabat Ali (PW-12) claimed that he was injured during the occurrence however the stamp of injuries on the person of a witness may be proof of his presence at the place of occurrence, at the time of occurrence, however the same can never guarantee a truthful deposition. Injuries statedly received by a witness during an incident do not warrant acceptance of his evidence without scrutiny. At the most, such traumas can be taken as an indication of his presence on the spot, but still his evidence is to be scrutinized on the benchmark of principles laid down for the appraisal of evidence. It is not a given that a witness who suffered injuries during the occurrence will depose nothing but the truth. Even otherwise, it is not the simple presence of a witness at the crime scene but his credibility which makes him a reliable witness. It has been held by the august Supreme Court of Pakistan repeatedly that the facts which an injured witness narrates are not to be implicitly accepted rather, they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCM R 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under: "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth".
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that presence of injuries does not stamp a witness to be a truthful one and observed as under :-.
"12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:- - "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not s h o w that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the F.I.R. namely, Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."
In the case of Mehmood Hayat supra at page 1417, it has been observed as under:-- "10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony."
In the case of Mehmood Ahmed supra, this Court at page 7 observed as under: "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."
13. From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence."
With this principle of appreciation of evidence in our minds that an injured witness cannot be presumed to be also a truthful witness, we have proceeded to examine the statement of the prosecution witness namely Najabat Ali (PW-12) who had claimed that he was injured during the incident. We have noticed that despite the claim of the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) that Najabat Ali (PW-12) was also injured during the occurrence ,no effort was made to get the prosecution witness namely Najabat Ali (PW-12) medically examined before the arrival of Zulfiqar Khan, SI (PW-16) at the place of occurrence. Additionally according to Zulfiqar Khan, SI (PW-16), the Investigating Officer of the case , Najabat Ali (PW-12) was sent to the hospital after an hour of the arrival of Zulfiqar Khan, SI (PW-16), the Investigating Officer of the case at the place of the occurrence . It is even otherwise not believable that the prosecution witness namely Najabat Ali (PW-12) kept bleeding at the place of occurrence awaiting the arrival of the police for as many as two hours and twenty minutes without him being taken to any hospital and was not sent to the hospital for another hour even after the arrival of the police at the place of the incident. Amir Shahzad 1235/C (PW10) stated during cross-examination, as under:- " The injured was handed over to me from the spot at about 09:00 p.m. I reached at the place of occurrence at about 08:50/55.p.m. alongwith IO from Police Station City Hassan Abdal."
(emphasis supplied)
Similarly, Zulfiqar Khan, SI (PW-16) also stated during cross-examination , as under:- "I sent the dead body to THQ Hospital, Hassan Abdal after 01 hour and 30 minutes from my arrival at the place of occurrence. The injured was sent to THQ Hospital, Hassan Abdal about 10 to 15 minutes earlier. I did not record statement of injured Najabat at the place of occurrence " (emphasis supplied)
Had Najabat Ali (PW-12) been injured during the incident, then there did not exist any possibility that he would not have been taken to the hospital for as many as two hours and twenty minutes till the arrival of the police at the place of the occurrence and would have been held at the spot for another hour even after the arrival of Zulfiqar Khan, SI (PW-16) ,the Investigating Officer of the case,at the place of occurrence. Moreover, had Najabat Ali (PW-12) been present in an injured condition, then Zulfiqar Khan, SI (PW-16),the Investigating Officer of the case would have recorded his statement under section 161 of the Code of Criminal Procedure, 1898 at the place of the occurrence but it was not. The claim of Najabat Ali (PW-12) being injured during the occurrence is also falsified by the fact that despite the claim of Najabat Ali (PW-12) that he fell after suffering from the injuries and remained present at the place of the occurrence for more than two hours and twenty minutes, no blood stained earth related to the falling of the blood of Najabat Ali (PW- 12) was taken into possession by Zulfiqar Ali (PW-16), the Investigating Officer of the case from the place of the occurrence . It is also a fact that not even the clothes of Najabat Ali (PW-12), which in the circumstances must have been stained with blood , were taken into possession by the Investigating Officer of the case. All these facts of the prosecution case create a huge doubt with regard to the claim of the prosecution that Najabat Ali (PW-12) was injured during the incident.
14. We have noticed that the prosecution witness namely Najabat Ali (PW-12), while getting his statement recorded before the learned trial court, never stated that he was taken to the hospital after the occurrence or that any Medical Officer had examined him after the occurrence. For reference, the examination in chief of the prosecution witness namely Najabat Ali (PW-12) as recorded by the learned trial court is being reproduced under:- " Stated that on 15.08.2018, at about 06:30 p.m., my cousin Shafqat Ali son of Sohbat Khan was grazing cattle near Haidri Masjid at a distance about 20 paces from his house. Meanwhile, suddenly, accused persons Shahzad alias Shada armed with Sota, Mazhar armed with sickle, Kamran armed with Sota, Basit son of Ishtiaq empty handed emerged there. Accused Shahzad alias Shada raised Lalkara to his co- accused persons to teach lesson to Shafqat for making litigation with Nasir Khan Tahir Khaili upon which accused persons started beating Shafqat Ali my cousin, who raised hue and cry, hearing which I rushed to rescue Shafqat Ali from the hands of accused persons. Accused Mazhar Ali made a sickle blow which hit me on left side of my face. I fell injured upon which Kamran accused made a Sota blow which hit on lower side of my left shoulder towards chest. Hearing our noise, Sohbat Khan, my Chacha Asghar Ali since deceased, Najab Ali and Barkat Ali PWs, came out from their house. Meanwhile, Liaqat armed with. 12 bore gun, alongwith Shahzad alias Shada, Mazhar, Kamran, Basit son of Ishtiaq while armed with their respective weapons mentioned above rushed towards Sohbat Khan etc while accused Shahzad alias Shada again raised Lalkara upon which Liaqat made fire which hit my chacha Asghar Ali on his right temporal region of his head, who fell injured and succumbed to the injuries. The accused persons while raising Lalkaras fled away from the place of occurrence. I joined the investigation and police recorded my statement." (emphasis supplied)
The learned Deputy Prosecutor General is unable to explain as to why the prosecution witness namely Najabat Ali (PW-12) himself never claimed that he was taken to the hospital or that he was medically examined or that any Medico Legal Examination Certificate was issued with regard to his examination. When Najabat Ali (PW-12) himself never stated to have been examined by any Medical Officer , we cannot presume it on our own.
15. We have also noted another flaw in the statement of Najabat Ali (PW-12) which also hits at the very foundation of the prosecution case. According to the statements of Sohbat Khan (PW-11) and Najabat Ali (PW-12) initially, it was Shafqat Ali , the son of Sohbat Khan (PW-11) who was allegedly beaten by the appellants and thereafter when Najabat Ali (PW-12) tried to save the said Shafqat Ali, the appellants namely Kamran Ali and Mazhar Ali attacked Najabat Ali (PW12) after which he was injured and it was only later that the deceased and Sohbat Khan (PW-11) arrived at the place of occurrence whereafter Asghar Ali (deceased) was fired at, however, according to Dr. Noman Shaukat (PW-14) when he medically examined Najabat Ali (PW-12) at about 09.00 p.m on 15.08.2018, he also recorded the history of the injuries suffered by Najabat Ali (PW-12) and according to the statement of Dr. Noman Shaukat (PW-14), at the time of narrating the history of the injuries as suffered by Najabat Ali (PW-12), the names of the appellants who had injured him were not mentioned and furthermore it was not cited by Najabat Ali (PW-12) at all that Asghar Ali (deceased) had also died during the incident. Dr. Noman Shaukat (PW-14) , during cross- examination , stated as under:- "Najabat has got mentioned in his brief history that he was assaulted by two persons with scythe."
(emphasis supplied)
This failure of Najabat Ali (PW-12) to mention the names of the appellants who had injured him while narrating the history of the incident to Dr. Noman Shaukat (PW14) and the failure of Najabat Ali (PW-12) to mention that during the same incident, Asghar Ali (deceased) had also died has all the more profound impression on the prosecution case for the fact that Najabat Ali (PW-12) was being examined by Dr. Noman Shaukat (PW-14) at 09.00 p.m on 15.08.2018, whereas the occurrence had already completed by 06.30 p.m on the same day and even the oral statement (Exh.PH) of Sohbat Khan (PW-11) had also been recorded for the registration of the F.I.R. at 08.50 p.m. This complete and utter failure of Najabat Ali (PW-12) to mention the names of the appellants who had injured him and the facts related to the death of Asghar Ali (deceased) while narrating the history of the incident to Dr. Nauman Shaukat (PW-14), proves that Najabat Ali (PW-12) had no idea who had injured him and had not even witnessed the incident during which Asghar Ali (deceased) died and therefore he did not narrate the said fact at the time of his medical examination by the Medical Officer. The evidence in the case has been collected in an abject lax manner, working more to create further confusion regarding the facts in issue rather than proving the said facts.
16. Another flaw of the prosecution case is that according to the statements of Sohbat Khan (PW-11) and Najabat Ali (PW-12), the whole incident triggered after Shafqat Ali (given up ), the son of Sohbat Khan (PW-11) was allegedly beaten by the appellants. It is admitted part of the prosecution case that despite the claim of the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) that Shafqat Ali (given up ) was beaten by the appellants, the said Shafqat Ali (given up) was never got examined by any Medical Officer, nor the said Shafqat Ali (given up) suffered from any injury nor the said Shafqat Ali (given up ) appeared before the learned trial court.
Moreover, Zulfiqar Khan, SI (PW-16) admitted during cross examination that the said Shafqat Ali (given up )was never even injured and therefore, he did not even prepare any injury statement with regard to said Shafqat. Zulfiqar Khan, SI (PW-16) stated during cross-examination , as under:- " I did not prepare injury statement of Shafqat PW as he was not injured at that time." (emphasis supplied)
In this manner, it is proved on record that the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) made an absolutely false statement with regard to the inception of the occurrence and how the same was triggered. According to the statement of Aqil Khan, Patwari (PW-6) who prepared the scaled site plan of the place of occurrence (Exh.PF), neither the residences of prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) nor that of the deceased had been marked by him in the scaled site plan of the place of occurrence (Exh.PF) as prepared by him. Aqil Khan Patwari (PW-6) admitted as under:- "I have not shown houses of complainant and PWs in site plan. I have not shown Masjid anywhere in the site plan. Presence of cattle also not been shown in the site plan. "
Realizing this fact that the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) had no reason to be present at the place of occurrence, they created a false purpose for their presence at the place of occurrence that they were attracted to the place of occurrence after coming to know about the beating of Shafqat Ali (given up ) by the appellants, however were exposed to have made absolutely false statements in this regard.
17. We have also noted that the witness namely Sohbat Khan (PW-11) admitted during cross- examination that enmity existed between him,Shafqat Ali (given up ) and one Nasir Khan Tahir Khaili, the co-accused of the appellants. Sohbat Khan (PW-11), in his statement before the learned trial court, stated as under:- "Accused Shahzad alias Shada raised Lalkara to his co-accused persons to teach lesson to Shafqat for making litigation with Nasir Khan Tahir Khaili upon which accused persons started beating Shafqat Ali my son On 10.08.2018, at about 01:30 p.m., my son Barkat Ali and nephew Najab Ali were passing near Dera of Shahzad alias Shada. Nasir Khan Tahir Khaili, Shahzad alias Shada, Mazhar, Liaqat, Kamran, Basit were sitting at the Dera of Shahzad alias Shada. Nasir Khan Tahir Khaili was saying to his co- accused to murder Asghar and Sohbat Khan and he will deal with the matter. ----------- Nasir Khan Tahir Kheli had filed an application for partition of land before Tehsildar, Hassan Abdal against my father and paternal uncle. After death of my father, I was impleaded in the said partition proceedings. Said partition application of Nasir Khan was accepted by Tehsildar against which we had filed appeal before the Collector which was dismissed. Volunteered that now our case against partition is pending in honourable Lahore High Court, Rawalpindi Bench, Rawalpindi and a civil suit is also pending at Attock. It is correct that we had lost the case of partition from all the fora of revenue side." (emphasis supplied)
The above referred portion of the statement of Sohbat Khan (PW-11) fully reveals target of the assailants. Furthermore, according to the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12), they were in clear view, at a meagre distance, from the assailants and unarmed whereas the appellants were allegedly armed whereas their co-accused were also armed with various weapons. Sohbat Khan (PW-11) during cross-examination stated as under:- "At the time of receiving of fire by Asghar Ali, Najabat PW was in front of me. Liaqat was at a distance about 40 paces away from me. Barkat PW was behind me at a distance about 02/03 paces. Najaf Ali was at a distance about 02/03 paces from Barkat. Shafqat PW was about 20 paces from me. Occurrence of receiving of injuries by Asghar Ali took place within 02/03 minutes.. "
Neither there was any dearth of ammunition,weapons nor that of intent and opportunity on part of the appellants or their co-accused for not doing away with the witness namely Sohbat Khan (PW- 11) and Shafqat Ali (given up ), their main adversaries. In this scenario, it is hard to believe that the witness namely Sohbat Khan (PW-11) and Shafqat Ali (given up ) would have been shown the courtesy of being not fired at all when they should have been the prime targets of the assailants.
Besides, it was the claim of the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) that Shafqat Ali (given up ) was beaten, however, as mentioned above, it was found to be an absolutely false claim. Moreover, the prosecution witness namely Sohbat Khan (PW-11), the main adversary of the appellants, did not receive even a single scratch during the whole occurrence and the appellants did not even point their weapons or directed any blows towards Sohbat Khan (PW- 11). If the witnesses namely Sohbat Khan (PW-11) and Shafqat Ali (given up ) had been present in the view of the assailants, then they would not have been spared. Blessing the witnesses namely Sohbat Khan (PW-11) and Shafqat Ali (given up ) with such an incredible consideration and showing them such favour is implausible and opposed to the natural behaviour of any accused.
Such behaviour, on part of the accused as deposed by the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) 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 thinks 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 the prosecution witnesses namely Sohbat Khan (PW- 11) and Najabat Ali (PW-12), was opposed to the common course of natural events and human conduct, hence, we are holding that the statements of prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) cannot be relied upon. The august Supreme Court of Pakistan in its binding judgment 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 were not present at the place of 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 & 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 & others v. Sajjad & 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 PWs 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 accept such unbelievable proposition."
18. Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police for as many as more than two hours and twenty minutes after the occurrence , which had taken place on 15.08.2018 at 6.30 p.m.and the matter was reported to the police only when Zulfiqar Khan, SI (PW-16) on his own arrived at the place of occurrence at about 08.50 p.m. According to the statement of Sohbat Khan (PW-11) , the police station was only at a distance of 3/3.5 kilometers from the place of the occurrence. Sohbat Khan (PW-11), during cross-examination, stated as under:- "Interse distance between place of occurrence and Police Station is about 03/03.5 kilometers. "
Despite the presence of the police station as such a short distance, none of the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) made any effort to report the matter to the police. The oral statement (Exh.PH) of Sohbat Khan (PW-11) was recorded by Zulfiqar Khan, SI (PW-16) at the place of occurrence on 15.08.2018 at 08.50 p.m.The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) has observed regarding the doubt attached to receiving the applications for the registration of the case at the place of occurrence as under:- "An F.I.R. 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."
19. We have also noted that both the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) were not mentioned either in column No.4 of the inquest report (Exh.PN) as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report (Exh.PN) nor were mentioned at page 4 of the inquest report (Exh.PN) as witnesses who were present at the place of occurrence at the time of preparation of the inquest report (Exh.PN), despite the fact that Zulfiqar Khan, SI (PW-16) prepared the inquest report (Exh.PN) at the place of occurrence. This fact also points towards the absence of the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) at the place of occurrence, at the time of preparation of the inquest report (Exh.PN) by Zulfiqar Khan, SI (PW-16), the Investigating Officer of the case.
20. We have noted that the medical evidence brought on record was contradictory to the ocular account of the occurrence as narrated by the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12). According to the statements of prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) the appellant namely Liaquat Ali had used a single barrel 12- bore gun to fire at the deceased and according to the statement of Dr. Noman Shaukat (PW-14) no blackening was observed around the wound of entry of the said projectile in the body of the deceased. Dr. Noman Shaukat (PW-14) further stated that the dimension of the wound observed by him on the dead body of the deceased was 3.0 cm X 2.0 cm. Dr. Noman Shaukat (PW-14) also traced the path taken by the said projectile inside the body of the deceased and also recovered a single metal projectile. Amir Shahzad 1676/HC (PW-9) got recorded before the learned trial court as under:- "Stated that on 15.08.2018, I was posted at P.S Saddar Hassan Abdal. On the same stain soil, one sealed parcel said to contain crime empty, one sealed parcel said to contain led bullet and last worn cloth of the deceased comprising of Shalwar Qameez of light sky blue coloured blood stain and string of white colour which I kept the same in the safe custody at the Malkhana intact.
On 19.08.2018, I handed over one sealed parcels said to contain blood stain soil, one sealed parcel said to contain crime empty and sealed parcel said to contain led bullet to Muhammad Ismail ASI for onward transmission to PFSA Lahore for chemical analysis intact." (emphasis supplied)
Similarly, Zulfiqar Khan SI (PW-16) ,the Investigating Officer of the case ,) got recorded before the learned trial court as under:- "After postmortem examination, Dilshad Ahmed 1321/ handed over to me application for postmortem examination, inquest report, postmortem examination report and last worn clothes of th deceased viz a viz light blue colour Shalwar P-5, Qameez P-6, Azarband P-7, parcel of led bullet P-11 and plastic stopper P-12. I took last worn clothes and sealed parcel offled bullet and stopper into possession vide recovery memo Exh.P-G" (emphasis supplied)
Obviously a single barrel 12-bore gun does not fire bullets and according to the prosecution witnesses no pellets were discovered from the dead body of the deceased ,therefore there is a huge contradiction in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) and the medical evidence. The prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) were proved not to have deposed truthfully with regard to the appellants.
21. The learned Deputy Prosecutor General along with the learned counsel for the complainant, have relied upon the recovery of the Sickle (P-10) from the appellant namely Mazhar Ali son of Shahzada and the recovery of the Gun 12-bore (P-4) from the appellant namely Liaquat Ali son of Shahzada and the recovery of the Danda (P-3) from the appellant namely Kamran Ali son of Shahzada and have submitted that they offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) . The recovery of the Sickle (P-10) from the appellant namely Mazhar Ali son of Shahzada and the recovery of the Gun 12-bore (P-4) from the appellant namely Liaquat Ali son of Shahzada and the recovery of the Danda (P-3) from the appellant namely Kamran Ali son of Shahzada cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the Sickle (P-10) from the appellant namely Mazhar Ali son of Shahzada and the recovery of the Gun 12-bore (P-4) from the appellant namely Liaquat Ali son of Shahzada and the recovery of the Danda (P-3) from the appellant namely Kamran Ali son of Shahzada 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 Sickle (P-10) from the appellant namely Mazhar Ali son of Shahzada and the recovery of the Gun 12-bore (P-4) from the appellant namely Liaquat Ali son of Shahzada and the recovery of the Danda (P-3) from the appellant namely Kamran Ali son of Shahzada cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. Nouman Ali (PW-4) admitted during cross-examination as under :- "The I0 did not call anyone from the said Abadi area to associate the recovery proceedings."
"I did not associate any Lumberdar, Councilor, Imam Masjid or any other respectable of the locality in recovery proceedings."
The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, section 103 Cr.P.C 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 Vs. 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, Sohbat Khan (PW-11) stated that the appellant namely Liaquat Ali was arrested after 2/3 days of the occurrence and stated as under:- "Liaqat accused was produced to the police by said Shafqat Khan. Accused Liaqat was arrested after 02/03 days of the occurrence"
Whereas Zulfiqar Khan, SI (PW-16) , stated that the appellant namely Liaquat Ali was arrested on 28.08.2018 i.e after as many as thirteen days of the occurrence and therefore it was proved that the appellant namely Liaquat Ali was kept in illegal confinement by Zulfiqar Khan, SI (PW-16), the Investigating Officer of the case, therefore, no value can be attached to the recovery of the Gun 12- bore (P-4) from the appellant namely Liaquat Ali. In this manner, the recovery of the Sickle (P- 10) from the appellant namely Mazhar Ali son of Shahzada and the recovery of the Gun 12-bore (P- 4) from the appellant namely Liaquat Ali son of Shahzada and the recovery of the Danda (P-3) from the appellant namely Kamran Ali son of Shahzada could not be proved and cannot be considered as a relevant fact for proving any fact in issue.
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 behind the occurrence of this case, as stated by the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) was that the prosecution witness namely Sohbat Khan (PW- 11) had litigation pending with one Nasir Khan Tahir Khaili and it was on the direction of the said Nasir Khan Tahir Khaili that the appellants committed the crimes. A perusal of the prosecution evidence reveals that prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12) miserably failed to provide any evidence in order to prove the motive due to which the occurrence took place. As mentioned above, according to the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12), the deceased and the prosecution witness namely Sohbat Khan (PW-11) had no dispute with the appellants which could have motivated them to commit the Qatl- i-Amd of Asghar Ali (deceased). Sohbat Khan (PW-11) admitted during cross-examination, as under:- "Mazhar, Kamran, Basit and Liaqat accused persons were not party to the said partition. ---------------- From 10.08.2018 to 15.08.2018, neither Najaf Ali nor Barkat Ali PWs reported the alleged hatching of conspiracy by Nasir Khan Tahir Kheli to the police nor I nor any other PW had reported the matter of hatching of conspiracy to the police. Nasir Khan Tahir Kheli was found not involved in this case by the police during investigation and deleted section 109 PPC. We had not filed application before this court for summoning of Nasir Khan Tahir Kheli as accused. I do not remember that we moved application for summoning of Nasir Khan Tahir Kheli as accused on 30.01.2019 which was dismissed by predecessor of this court vide order dated 15.05.2019. We did not file any private complaint against Nasir Khan Tahir Kheli. I did not furnished copy of any Khasra Girdawri to the police showing that the accused persons had every been remained tenants of Nasir Khan Tahir Kheli on his land. I have no written proof showing that accused persons are/were tenants of Nasir Khan Tahir Kheli on his land."
Similarly, Najabat Ali (PW-12) admitted during cross-examination , as under:- "I had no litigation with Nasir Khan Tahir Kheli. Shafqat PW had no litigation with Nasir Khan Tahir Kheli. Accused persons Liaqat, Basti, Kamran, Mazhar and Shahzada had not filed any suit against me or against Shafqat PW"
The perusal of the statements of the prosecution witnesses clearly proves that 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 appellants, namely Mazhar Ali son of Shahzada, Liaquat Ali son of Shahzada and Kamran Ali to have committed the Qatl-i-Amd of the deceased.There are haunting contradictions with regard to the minutiae of motive alleged. 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 a corroborative piece of evidence and if the ocular account is found to be unreliable, then motive alone cannot be made the basis of conviction. Even otherwise, a tainted piece of evidence cannot corroborate another tainted piece of evidence. Reliance in this regard is placed on the case of Muhammad Javed v. The State (2016 SCMR 2021).
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 appellants at the time of cross-examination of the prosecution witnesses namely Sohbat Khan (PW-11) and Najabat Ali (PW-12). Suffice it to observe that 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 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 Vs. 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. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Mazhar Ali son of Shahzada , Liaquat Ali son of Shahzada and Kamran Ali son of Shahzada 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 Vs. 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 Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749)."
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 SCMR 736) in which it has been observed as infra: "9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty 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 We have 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."
25. For what has been discussed above, the Criminal Appeal No.778-J of 2022 lodged by the appellant namely Liaquat Ali son of Shahzada is allowed. The Criminal Appeal No. 276 of 2022 lodged by the appellants namely Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada is also allowed. The convictions and sentences of the appellants namely Mazhar Ali son of Shahzada , Liaquat Ali son of Shahzada and Kamran Ali son of Shahzada awarded by the learned trial court through the impugned judgment dated 12.04.2022 are hereby set-aside. The appellants namely Mazhar Ali son of Shahzada, Liaquat Ali son of Shahzada and Kamran Ali son of Shahzada are ordered to be acquitted by extending them the benefit of the doubt. The appellant Liaquat Ali son of Shahzada is in custody and is directed to be released forthwith if not required in any other case.The sentences of the appellants namely Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada were suspended by this Court vide order dated 26.04.2022 and they are present before the Court. The sureties of the appellants shall stand discharged from their liability and the bail bonds submitted by the appellants namely Mazhar Ali son of Shahzada and Kamran Ali son of Shahzada are hereby cancelled.
26. Murder Reference No.82 of 2022 is answered in Negative and the sentence of death awarded to Liaquat Ali son of Shahzada is Not Confirmed.