SADIQ MAHMUD KHURRAM, J.- Muhammad Abid son of Muhammad Amin (convict) was tried by the learned Additional Sessions Judge, Haroonabad in the case F.I.R. No. 244 of 2022 dated 22.04.2022 registered in respect of an offence under section 302 at the Police Station City Haroonabad, District Bahawalnagar for committing the Qatl-i-Amd of Muhammad Nabeel Sarwar son of Muhammad Sarwar (deceased). The learned trial court vide judgment dated 19.01.2023 convicted Muhammad Abid son of Muhammad Amin (convict) and sentenced him as infra: Muhammad Abid son of Muhammad Amin:- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Nabeel Sarwar son of Muhammad Sarwar (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; in case of default of payment of compensation amount, the convict was further directed to undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Muhammad Abid son of Muhammad Amin (convict) lodged the Criminal Appeal No.34-J of 2023, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.01 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Abid son of Muhammad Amin.
We intend to dispose of the Criminal Appeal No.34-J of 2023 and the Murder Reference No.01 of 2023 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Shamshad Bibi (PW-1), the complainant of the case, are as under:- "I am permanent resident of House No.166 Housing Colony, Haroonabad. My husband passed away 9-years ago. I have two sons and one daughter, My brother Javed resides with me. On 22.4.2022 at about 4:15 p.m. I was going to get medicine from hospital, alongwith my son Nabeel Sarwar aged 19/20 years. We stopped in front of Aamir Karyana Store. Accused Abid present in the court came there while brandishing his pistol and said that he shall not let my son go. My son ran towards the Karyana Store but he just reached near the door when accused made 5/6 fires at him which hit on his face, in the chest, on his thigh and on his arm. Accused fled away while brandishing his weapon.
I stopped a passing-by car and shifted my son to THQ Hospital, Haroonabad. Just at the time of reaching at Hospital, my son succumbed to the injuries.
Police came at the hospital. I submitted application Exh-PA to the police which bears my thumb impression and signature Exh-PA/1.
Motive behind the occurrence was that my son remained employed for 4/5 months with Sajid, brother of the accused. About one year prior to the occurrence, said Sajid was murdered in a police encounter. Accused levelled allegation that my son had informed the police about deceased Sajid.
Upon my application case was registered."
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 was sent to face trial. The learned trial court framed the charge against the accused on 06.07.2022, 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 ten witnesses recorded.
The ocular account of the case was furnished by Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2). Muhammad Shabbir 187/C (PW-3) stated that on 30.04.2022, the appellant got recovered the Pistol (P-2). Fazal Karim, ASI (PW-4) stated that on 22.04.2022, he got recorded the formal F.I.R.
(Exh.PA/2). Waleed Khalid 44/C (PW-6) stated that on 22.04.2022, 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. Muhammad Imran 1272/HC (PW-7) stated that on 22.04.2022, the Investigating Officer of the case handed over to him one motorcycle, one sealed parcel said to contain empty shells of the bullets, two envelopes, last worn clothes of the deceased, one sealed parcel said to contain bullets and on 28.04.2022, he handed over the one sealed parcel said to contain empty shells of the bullets, two envelopes and one sealed parcel said to contain bullets to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 30.04.2022, the Investigating Officer of the case handed over to him a sealed parcel said to contain a Pistol which on 17.05.2022, he handed over to Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Sahil Sikandar draftsman (PW-10) prepared the scaled site plan of the place of occurrence (Exh.PP). Muhammad Abbas, ASI (PW9) investigated the case from 22.04.2022 till 17.05.2022, arrested the appellant namely Muhammad Abid son of Muhammad Amin on 26.04.2022 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. Arslan Ahmad (PW-8) examined, who on 22.04.2022 was posted as Medical Officer at THQ hospital Rahim Yar Khan and on the same day conducted the postmortem examination of the dead body of Muhammad Nabeel Sarwar son of Muhammad Sarwar (deceased). Dr. Arslan Ahmad (PW-8), on examining the dead body of Muhammad Nabeel Sarwar son of Muhammad Sarwar (deceased) observed as under:- "DESCRIPTION OF INJURIES.
Injury No. 1: An oval shaped lacerated wound on left side of jaw measuring approx. 5cm by 3cm located approx. 7cm lateral to chin. Directed posterioinferiorly. Everted Edges were present and surrounded clotted blood present. It's a through and through wound communicating with injury No. 11.
Injury No.2: A puncture wound, oval shaped on right side of chest measuring approx. 0.5cm by 1cm located approx. 6cm above right nipple. It has inverted margins on examination it seems entry wound of firearm which passes through mediastinal cavity damaging the organs and structures in it's the pathway i.e. skin, intercostal space, right lung, heart, left lung, and exiting by causing injury No.3.
Injury No.3: A circular shaped wound on left side of chest measuring approx. 1.5cm by 1.5cm located approx.
5cm below and lateral to left nipple, having everted edges, blood oozing out and it's a through and through injury. On examination, it seems an exit wound of firearm weapon communicating with injury No.2.
Injury No.4: A punctured wound, oval shaped on posterior side of right forearm, measuring approx. 0.5cm by 0.3cm located approx. 5cm below olecranan process having inverted margins, burning and blackening present and it's a through and through injury on examination it seems to be an entry wound caused by a firearm weapon damaging skin, subcutaneous tissue and muscles in its path and exiting by causing injury No.5.
Injury No.5: An oval shaped wound on posteromedial aspect of right forearm measuring approx. lem by 1.5 cm located 4cm below medial epicondyle with everted edges and blood oozing out and it's a through and through injury. On examination it seems an exit wound caused by firearm weapon communicating with injury No.4.
Injury No.6: A circular shaped wound measuring approx. 1.2cm by 1.5cm on left side of abdomen, located 3cm interior to interior axillary line with everted margins and blood oozing out it's a through and through injury and on examination seems to be communicating with injury No.7. an exit wound Injury No.7: A punctured, oval shaped measuring approx. 0.6cm by 0.3cm located on left side of abdomen approx. 8cm above and lateral to umbilicus having inverted edges and abrasion collar present. On examination it seems to be an entry wound caused by firearm weapon. It is a through and through injury damaging skin, subcutaneous tissues and abdominal muscles and exiting by causing injury No.6.
Injury No.8: A punctured wound, oval shaped on back on right side measuring approx. 0.5cm by 0.3cm located 8cm lateral to vertebral column. Directed anteroinferiorly, having inverted margins. It was a through and through injury. On examination it seems an entry wound caused by firearm weapon that damages skin, subcutaneous tissues, muscles on its path and exiting by causing injury No.12.
Injury No.9: An oval shaped wound on anterior aspect of left thigh measuring approx. 0.7cm by 0.5cm located 15cm above patella. Having everted margins and blood stained. It's a through and through injury.
On examination it seems an exit wound caused by firearm weapon and communicating with injury No.10.
Injury No.10: A punctured wound, oval shaped on lateral spect of left thigh located 10cm above lateral condyle, measuring 0.5cm by 0.3 approx. with inverted margins. On examination it seems an entry wound caused by a firearm weapon that damaged the underlying structures ie. skin, subcutaneous tissue, muscles, fracturing femur and exiting by causing injury No.9.
Injury No. 11: A punctured wound, oval shaped on back, upper part on left side measuring approx. 0.5cm by 0.3cm, located 6cm lateral to vertebral column with inverted edges and it's a through and through injury. From examination it seems an entry wound casused by firearm weapon. It was directed anterosuperiorly and damages skin, subcutaneous tissue and neck muscles and exits through causing injury No. 1.
Injury No.12: An oval shaped wound located on right side of abdomen, in right inguinal region, measuring approx. 1cm by 0.5cm located 12cm below and lateral to umbilicus, everted margins present. On examination, it seems an exit wound. It's a through and through injury communicating with injury No.8.
Injury No.13: A punctured wound on posterio-lateral side of left arm measuring 0.5cm by 0.4cm approx. and 4cm above lateral epicondyle, having inverted edges and blackening present, anteriorly and superiorly and bone deep. On examination it seems to be an entry wound of firearm weapon and a bullet was recovered in its track that was found at edge of bone.
Injury No.14: An oval shaped punctured wound on posterior side of left arm measuring approx. 0.5cm by 0.3cm located 9cm above elbow joint with inverted margins. It's a through and through injury and on exathination seems to be an entry wound caused by firearm weapon. Skin and muscles are damaged and exits by causing injury No.15.
Injury No.15: A circular shaped wound measuring 1.5cm by 1.5cm located on medial side of left arm. 13cm above medial epicondyle, everted margins, blood oozing out and fat protruded. It was a through and through injury communication with injury No.14 and seems exit wound OPINION: According to the complete external and internal post mortem examination, I am of the opinion that injuries No.2, 3, 9, 10 was the cause of death due to damage to the vital organs i.e. Heart and lungs and excessive bleeding leading to haemorrhgic shock and cardiogenic shock. All injuries were ante-mortem in nature. These injuries were sufficient to cause death in usual circumstances. All injuries were caused by firearm weapon."
7. On 31.08.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Naseer Ahmad as being won over by the accused. On 19.10.2022, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Akram as being unnecessary. On 07.01.2023, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Ibrar Hussain 388/C as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh.
PN and Exh.PO).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Abid son of Muhammad Amin under section 342 Cr.P.C. and in answer to question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. The appellant namely Muhammad Abid son of Muhammad Amin opted not to get himself examined under section 340(2) Cr.P.C. however produced documents (Exh.DA, Exh.DB, Mark-DA and Mark-DB) as evidence in his defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Haroonabad convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant namely Muhammad Abid son of Muhammad Amin 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 appellant 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 appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin was full of procedural defects, of no legal worth and value, and was the result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence only on suspicion. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General and 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 and the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General and the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the eyewitnesses. The learned Deputy Prosecutor and the learned counsel for the complainant further argued that the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin also corroborated the ocular account. The learned Deputy Prosecutor General and the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Muhammad Abid son of Muhammad Amin.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel for the complainant and with their assistance carefully perused the record and evidence recorded during the trial.
13. A perusal of the prosecution evidence reveals that the whole prosecution case as against the appellant namely Muhammad Abid son of Muhammad Amin is based on the statements of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2). The relationship of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) with the deceased and with each other is on record. Muhammad Nabeel Sarwar (deceased) was the son of the prosecution witness namely Shamshad Bibi (PW-1) and the maternal nephew of the prosecution witness namely Muhammad Javaid (PW-2). The prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) both of them had their residence within the Housing Scheme namely " Housing Colony Z-Block, Haroonabad" whereas the occurrence took place within the area of "Bangla road Haroonabad ". In this manner, the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. The prosecution witness namely Shamshad Bibi (PW-1) had claimed that she had accompanied her deceased son on a motorcycle for the purpose of getting medicine for herself from the hospital and had stopped in front of the Amir Karyana Store when the accused came there and attacked the deceased. The prosecution witness namely Shamshad Bibi (PW-1) very well knew that as she was not the resident of the place where the occurrence took place, therefore, she would be questioned with regard to her reason to be present at the place of occurrence, at the time of occurrence, and therefore, came up with the explanation that as she needed medicine for herself ,therefore, she had accompanied her son, however, after analysis of the statement of prosecution witness namely Shamshad Bibi (PW-1) we have arrived at an irresistible conclusion that Shamshad Bibi (PW-1) failed to prove her stated reason for her presence at the place of occurrence. In this regard, we have noticed that Shamshad Bibi (PW-1) admitted during cross- examination that she did not produce any prescription of any Doctor regarding the medicines which she needed to purchase on the day of the occurrence. During cross-examination Shamshad Bibi (PW1) admitted as under:- "I was suffering from typhoid and for its treatment 1 was going to hospital. Prior to the occurrence, as well, I had got treatment from the hospital. I had not produced prescription during investigation. We proceeded from our home at about 4:00 p.m. We proceeded to Bangla Road through Melad-Chowk. " (emphasis supplied)
It is also a fact that Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case also did not collect any evidence with regard to the claim of Shamshad Bibi (PW-1) that on the day of occurrence, she had accompanied the deceased for the purpose of taking medicines from the hospital. Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case admitted during cross-examination, as under:- "Complainant did not produce any prescription of the doctor regarding her treatment for which she allegedly was proceedings to the clinic of the doctor "
14. We have also noticed that the prosecution witness namely Muhammad Javaid (PW-2) also could not furnish any explanation for his sudden presence at the place of occurrence. Shamshad Bibi (PW-1) admitted during cross-examination that Muhammad Javaid (PW-2) was his brother and a tailor by profession and also that he resided in the same house with Shamshad Bibi (PW-1).
With regard to the reason for his presence at the place of occurrence, Muhammad Javaid (PW-2) claimed that he had accompanied Naseer Ahmad (given up prosecution witness) who had to purchase exotic birds from a shop in front of the Amir Karyana Store and both of them were present at the said shop when he witnessed the incident. As mentioned above, Naseer Ahmad, the person who had to purchase the birds and whom Muhammad Javaid (PW-2) had accompanied, was given up as a prosecution witness after it was declared that he had been won over by the accused. Moreover, the shopkeeper of the shop, the shop at which the prosecution witness namely Muhammad Javaid (PW-2) was present with Naseer Ahmad (given up prosecution witness), purchasing birds when the occurrence took place, also did not appear before the Investigating Officer of the case and also before the learned trial court in support of the claim of Muhammad Javaid (PW-2) that he indeed was present at his shop, at the time when the occurrence took place.
Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case admitted during cross- examination, as under:- "I had not recorded statement of owner of Birds Shop where the PWs stated that they were present at"
Most importantly neither in the unscaled site plan (Exh.PM) as prepared by Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case nor in the scaled site plan of the place of occurrence (Exh.PP) as prepared by Sahil Sikandar draftsman (PW-10) any shop of any birds seller has been marked. In this manner, the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW2) failed miserably to prove that they had indeed arrived at the place of occurrence, before the occurrence. The proven failure of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) to provide a reason for their presence at the place of occurrence, on the day of the incident, has repercussions, proving that there was no reason actually for the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW- 2) to be visiting the place of occurrence. The very inception of the prosecution case is thus put in doubt due to the said abject failure of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW2). The failure of the prosecution to prove their claims regarding the reason for their presence at the place of occurrence has vitiated our trust in Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) as being truthful witnesses. In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on.
Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad, Ghulam Farid and Manzoor Ahmed in the said case who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, declared chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724).
15. It is also a fact that the occurrence took place in front of the Amir Karyana Store and Shamshad Bibi (PW-1) claimed in her statement recorded by the learned trial court that prior to the arrival of the accused at the place of occurrence, she and her son had stopped in front of the said Amir Karyana Store, however, could not give any reason as to why this stop was made when there was no purpose of said a stop and when the destination of Shamshad Bibi (PW-1) was the hospital from where she had to take the medicine. Furthermore, it has also not been explained that how the appellant came to know about the travelling plan of the deceased on the day of occurrence and the appellant arrived at the place of occurrence on foot which place of occurrence was at a distance from his own house and which place of occurrence was also at a distance from the house of the deceased and where the presence of deceased was not in the usual course of things rather the presence of the deceased was a chance presence.
16. We have also noted that the stance set up by the prosecution in the present case was that the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) were present at the time of the death of the deceased and had remained with the dead body however in the inquest report (Exh.PL), in column No.8 it had been noted that both the mouth and the eyes of the deceased were open at the time of preparation of the same, which clearly shows that the dead body was not attended to by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2), as claimed. The mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PL), thus, if the witnesses were present then, at least after the death, as is a consistent practice of such close relatives, they would have closed the eyes and mouth of the deceased on his expiry, however, they did not. Thus, the open eyes and mouth of the deceased force a hostile interpretation against the prosecution's version regarding the presence of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW2) at the place of occurrence, at the time of occurrence. This fact by itself indicates that none was present with the deceased till his death. The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State"(2019 SCMR 1068) has held as under: "What has further irked this Court is that in column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW-10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However, the stance set up by the prosecution in the present case is that Arshad Ali - the brother, and Nazir Ahmad - the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter. Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence."
We have also noted that both the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) were not mentioned either in column No.4 of the inquest report (Exh.PL) as being the witnesses who had identified the dead body of the deceased at the time of preparation of the inquest report (Exh.PL) nor were mentioned at page 4 of the inquest report (Exh.PL) as witnesses who were present at the time of preparation of the inquest report (Exh.PL). This fact also points towards the absence of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) at the place of occurrence, at the time of preparation of the inquest report (Exh.PL) by Muhammad Abbas, ASI (PW-9) , the Investigating Officer of the case .
17. We have also noted that the ocular account of the incident as narrated by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) was proved to be inconsistent with the medical evidence. According to the statements of prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) the appellant had fired at the deceased 5/6 times ,with the bullets hitting the deceased on various parts of his body. Shamshad Bibi (PW-1) in her statement before the learned trial court got recorded as under:- "My son ran towards the Karyana Store but he just reached near the door when accused made 5/6 fires at him which hit on his face, in the chest, on his thigh and on his arm."
Muhammad Javaid (PW-2) in his statement before the learned trial court got recorded as under: - "At a distance of 5/6 feet from Aamir Karyana Store accused Abid fired 5/6 shots on Nabeel Sarwar"(emphasis supplied)
Contrary to the statements of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) that the deceased had being hit by 5/6 bullets, Dr. Arslan Ahmad (PW- 8) who conducted the post mortem examination of the dead body of the deceased observed the presence of as many as fifteen injuries on the dead body of the deceased and further opined that out of the fifteen injuries observed by him on the dead body of the deceased, injury No.2, injury No.4, injury No.7, injury No.8, injury No.10, injury No.11, injury No.13 and injury No. 14 were entry wounds. In this manner, according to the observations of Dr. Arslan Ahmad (PW-8) who conducted the post mortem examination of the dead body of the deceased, as many as eight bullets had hit the deceased , whereas according to the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) the appellant had only 5 to 6 times. In this manner, the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) failed to explain the presence of three other injuries on the body of Muhammad Nabeel Sarwar (deceased) which were observed by Dr. Arslan Ahmad (PW-8), who conducted the post mortem examination of the dead body of the deceased. The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) and the medical evidence as furnished by Dr. Arslan Ahmad (PW-8), sound the death knell for the prosecution case against the appellant and proves to be the cause of its sad demise.The prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) were proved not to have deposed truthfully with regard to the appellant. Reliance is placed on the case of "Muhammad Ashraf Vs. The State" (2012 SCMR 419) where the august Supreme Court of Pakistan was pleased to hold as under:- "Both the eye-witnesses are not natural witnesses and they claimed that they had seen the incidence but had failed to explain two injuries caused with blunt weapon on the forehead and below the left eye of the deceased and had only attributed one injury to the appellant at the back of his ear."
Reliance is also placed on the case of USMAN alias KALOO Vs. The State (2017 SCMR 622) where the august Supreme Court of Pakistan was pleased to hold as under:- "Some of the above mentioned eye-witnesses had maintained that the deceased had received only one injury at the hands of the appellant but the Post-mortem Examination Report shows that the deceased had received as many as 8 injuries on different parts of his body."
Reliance is also placed on the case of Muhammad Hussain Vs. The State (2008 SCMR 345) where the august Supreme Court of Pakistan was pleased to hold as under:- "Only one fire-arm injury was attributed to Muhammad Hussain petitioner but according to the post-mortem report there was another injury on the person of deceased caused with blunt weapon."
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 reject the evidence of injured witnesses and held as under:- "11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased.
Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye- witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence.
Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution. .....................................
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."
Reliance is also placed on the case of Irfan Ali Vs. The State (2015 SCMR 840) where the august Supreme Court of Pakistan was pleased to hold as under:-
11. The most striking feature of the case is that in the F.I.R. complete photographic narration of the entire tragedy has been given so much so, Muhammad Khan acquitted accused and the appellant were attributed causing specific injuries with the fire shots of 30-bore pistols at the deceased. With such degree of accuracy each and every detail of the incident was given however, it was not due to mental disorientation that the dagger blows inflicted on the deceased found during the autopsy on the dead body, could not be noticed by the complainant. This doubt of reasonable nature and substance would strongly suggest that the complainant and the other eye-witnesses were not present at the spot, otherwise, lodging the report after more than 3 hours and spending 1-1/2 hour at the spot with the dead body, no room was left for this glaring omission.
This omission is very fatal to the prosecution case and it is established that crime was an unwitnessed one".
18. The perusal of the prosecution evidence also reveals the presence of another serious contradiction between the ocular account of the occurrence as narrated by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) and the medical evidence as furnished by Dr. Arslan Ahmad (PW-8). The inconsistency in the ocular account of the occurrence and the medical evidence is of such magnitude that it has resulted in proving that the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) had not witnessed the occurrence and it was for that reason that the flaw cropped up. As mentioned above, the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) stated that the deceased was fired at from a distance of 5/6 feet. Contrary to this claim of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) that the firing had been made by the appellant from a distance of only about 5/6 feet, Dr. Arslan Ahmad (PW-8), who conducted the post mortem examination of the dead body of the deceased on 22.04.2022, did not observe the presence of any blackening on six of the entry wounds observed by him on the dead body of the deceased namely Muhammad Nabeel Sarwar . Dr. Arslan Ahmad (PW-8), in his statement before the learned trial court, clearly stated that no blackening, burning or tattooing around the wounds was observed by him on six of the entry wounds present on the body of the deceased mentioned as injury No.2, injury No.7, injury No.8, injury No.10, injury No.11 and injury No.14 in the postmortem examination report (Exh.PJ). Had the firing at the deceased namely Muhammad Nabeel Sarwar been made from such a short distance as suggested by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) then blackening on the wounds mentioned as injury No.2, injury No.7, injury No.8, injury No.10, injury No.11 and injury No.14 in the postmortem examination report (Exh.PJ) must have been observed by Dr. Arslan Ahmad (PW-8). The prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW2) very well knew that the observations and opinion of Dr. Arslan Ahmad (PW-8) were in themselves sufficient to bring down the whole edifice of the prosecution case as narrated by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2), however, even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. Arslan Ahmad (PW-8) or if the same could not be challenged, then to explain the same. We have noted that during the course of the trial, the prosecution witnesses failed to explain as to why was there such a huge, gaping and all consuming, inexplicable and baffling error in the statements of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2). Despite repeated queries, the learned Deputy Prosecutor General and learned counsel for the complainant have failed to explain the said discrepancy in the prosecution evidence. In this manner, an irreconcilable and distressing contradiction has cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) and the medical evidence as furnished by Dr. Arslan Ahmad (PW-8). This contradiction in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Shamshad Bibi (PW- 1) and Muhammad Javaid (PW-2) and the medical evidence as furnished by Dr. Arslan Ahmad (PW-8) clearly establishes that the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) miserably failed to prove their presence at the place of occurrence, at the time of occurrence. Had the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) seen the occurrence then there did not exist any possibility that they would have fallen into error. In such a case, the ocular account is to be rejected as being contrary to the medical evidence. Reliance is placed on Barkat Ali Vs. Muhamad Asif and others(2007 SCMR 1812) wherein it has been observed as infra: - "It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292, Sain Dad's case 1972 SCMR 74 and Zardshad's case 1969 SCMR 644."
Reliance is placed on Mian SOHAIL AHMED and othersVs. The State and others (2019 SCMR 956) wherein it has been observed as infra:- "3. Site-plan (Ex-PL) shows one of the appellants to be standing next to the driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely to cause blackening but the medical evidence (Postmortem examination reports Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again raising a suspicion that the events may have unfolded differently than as reported."
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 reject the evidence of injured witnesses and held as under:- "11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased.
Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye- witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence.
Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution. .....................................
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."
19. Another grave fact of the prosecution case is that none of the persons who had their residences or their shops near or around the place of occurrence appeared either during the investigation of the case or before the learned trial court in support of the prosecution case. It was admitted by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) that the place where the incident took place was surrounded by inhabited houses and shops. Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case made no effort to record the statements of the persons who had their residences or their shops near or around the place of occurrence during the course of the investigation. The failure of the prosecution to produce the said persons who had their shops and houses at and around the place of occurrence has convinced us that had they been produced before the learned trial court, they would not have supported the prosecution case.
Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced, the same would have gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
The Investigating Officer was under a binding duty to collect evidence and his failure to record the statement of the residents of the houses and shops around the place of occurrence has to be taken as a circumstance belying the prosecution's case. The purpose of the trial is the discovery of truth. As long as men keep lying, the only causality would be the reality. The prosecution's case suffers from inherent defects which are irreconcilable as they are. Compounding the failures of the prosecution is the fact that the persons, admittedly residents around the place of occurrence were not produced as witnesses. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State (2010 SCMR 949) wherein it has been observed as under:- "....further that no independent witness of the locality where the incident took place, a 'Bazar' joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt."
20. The learned Deputy Prosecutor General and the learned counsel for the complainant placed much emphasis on the promptitude with which the written application (Exh.PA) of Shamshad Bibi (PW-1) was received by Muhammad Abbas, ASI (PW-9) ,the Investigating Officer of the case and stated that this excluded the possibility of any pre-concert prior to the recording of the written application (Exh.PA). The prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) claimed that after the occurrence had taken place at about 04.15 p.m, they took the deceased in an injured condition to the hospital within ten minutes of the incident, however, the deceased was declared to be dead on arrival at the hospital and thereafter Muhammad Abbas, ASI (PW-9) , the Investigating Officer of the case arrived at the THQ hospital Haroonabad and received the written application (Exh.PA) of Shamshad Bibi (PW-1) at about 05.10 p.m. Shamshad Bibi (PW-1) during cross-examination claimed as under:- "I shifted my son from place of occurrence to Hospital within 10- minutes of the occurrence "
Muhammad Javaid (PW-2) during cross-examination claimed as under:- "We remained at the place of occurrence 2/4 minutes and in the meanwhile the passerby car came. Distance between place of occurrence and hospital is about 5- minutes. It is in correct to suggest that I had not witnessed"
This claim of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) that they arrived at the THQ hospital Haroonabad within ten minutes of the occurrence and the written application (Exh.PA) was presented to Muhammad Abbas, ASI (PW-9) , the Investigating Officer of the case at about 05.10 p.m was totally belied by the statement of Dr. Arslan Ahmad (PW- 8) who stated that the dead body was brought to the hospital at 10.30 p.m. Dr. Arslan Ahmad (PW- 8) in his statement before the learned trial court , stated as under:- "On 22.4.222, I was posted as Medical Officer at THQ, Hospital Haroonabad. On the same day, dead body of Muhammad Nabeel Sarwar S/O Muhammad Sarwar aged 20-years was received for post mortem at 10:30 P.M." (emphasis supplied)
Moreover, according to the statement of Muhammad Abbas, ASI (PW9) , the Investigating Officer of the case, the Crime Scene Unit had also visited the place of occurrence and it was at the place of occurrence that the Crime Scene Unit handed over to him two sealed parcels and two Exhibit Sheets which he then took into possession through recovery memo (Exh.PD), however the perusal of the Exhibit Sheets as prepared by the Crime Scene Unit reveals that the Crime Scene Unit had taken the swa bs stained with the blood of the deceased at 10.01 p.m and had taken to buccal swa bs of the deceased from inside the mortuary of THQ hospital Haroonabad at 09.41 p.m., contradicting the statement of Muhammad Abbas, ASI (PW-9) , the Investigating Officer of the case, that he had received the two sealed parcels and two Exhibit Sheets as prepared by Crime Scene Unit at the place of occurrence, when he was present there and had then proceeded to the THQ hospital Haroonabad. All these facts of the prosecution case denude the fact that the written application (Exh.PA) of Shamshad Bibi (PW-1) was not received at the time it was claimed to had been. Furthermore, none of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW 2) reported the matter to the police and Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case on his own arrived at the hospital after having received information regarding the incident. 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 other than at the police station 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."
The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PA) as submitted by Shamshad Bibi (PW1) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. No corroboration of the prosecution evidence can be had from the said written application (Exh.PA) of Shamshad Bibi (PW- 1) Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard.
21. We have also noted with disquiet that despite the fact that the occurrence took place at about 04.15 p.m. on 22.04.2022, the postmortem examination of the dead body of the deceased was conducted after much delay. According to Dr. Arslan Ahmad (PW-8), he conducted the post mortem examination of the dead body of the deceased on 22.04.2022 at 11.00 p.m i.e. after as many as seven hours after the death of Muhammad Nabeel Sarwar (deceased). In the present case, not only the post mortem examination of dead body was delayed but even the dead body of the deceased was brought to the hospital at 10.30 p.m. Moreover, Dr. Arslan Ahmad (PW-8), who conducted the post mortem examination of the dead body of Muhammad Nabeel Sarwar (deceased) and prepared the post mortem examination report (Exh. P.J.), gave the time between death and post mortem examination as being within 6 to 8 hours. Dr. Arslan Ahmad (PW-8) recorded in his statement before the learned trial court as under:- "Probable time that elapsed:
(a) Between injury and death: within 10-15 minutes.
(b) Between death and post mortem: within 6-8 hours." (emphasis supplied)
The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Muhammad Nabeel Sarwar (deceased) is that by that time the details of the occurrence were not known and the said time was used not only to procure the attendance of the witnesses but also to fashion out a false narrative of the occurrence. No explanation was offered to justify the said delay in conducting the post mortem examination and the delay in escorting the dead body of the deceased to the hospital itself and the delay in conducting of the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and two others vs. The State" (2012 SCMR 327) has held as under: "The incident in the instant case took place at 2.00 a.m, F.I.R. was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the F.I.R. was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others vs. The State and others" (2019 SCMR 956) has held as under: "According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal F.I.R. was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "MUHAMMAD RAFIQUE alias FEEQA vs. The State" (2019 SCMR 1068) has held as under: "More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting."
22. The learned Deputy Prosecutor General and the learned counsels for the complainant have submitted that the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin offered sufficient corroboration of the statements of the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW 2). Regarding the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin which was in clear violation of section 103 Code of Criminal Procedure, 1898. Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case admitted during cross-examination, as under:- " There is no private witness of recovery of pistol P-2. "
The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do."
Therefore, the evidence of the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin cannot be used as incriminating evidence against the appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary rule of evidence 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."
We have also noted that the appellant namely Muhammad Abid son of Muhammad Amin was arrested on 26.04.2022, the Pistol (P-2) was recovered from the appellant namely Muhammad Abid son of Muhammad Amin on 30.04.2022, however the empty shells of the bullets taken into possession from the place of occurrence on 22.04.2022 were sent to Punjab Forensic Science Agency, Lahore on 28.04.2022 though there was no reason for keeping the shells of the bullets, which were taken into possession of on the day of occurrence, at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till 28.04.2022 i.e. after the appellant had been arrested on 26.04.2022. In this manner the report of Punjab Forensic Science Agency, Lahore. (Exh. PN) regarding the comparison of the shells of the bullets taken from the place of occurrence with the Pistol (P-2) recovered from the appellant, has no evidentiary value as the possibility of fabrication is apparent. Reliance is placed on the case of Muhammad Amin Vs. The State and another (2019 SCMR 2057) wherein the august Supreme Court of Pakistan has held as under:- "Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case.
In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential."
In view of the above-mentioned facts, the alleged recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin is not proved and the same cannot be used as a circumstance against the appellant. Even otherwise, as we have disbelieved the ocular account in this case, hence, the evidence of the recovery of the Pistol (P-2) from the appellant namely Muhammad Abid son of Muhammad Amin would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a supporting piece of evidence and if the ocular account is found to be unreliable, then the recovery has no evidentiary value.
23. The Learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) in their statements recorded by the learned trial court was that the appellant suspected that the deceased had given information to the police about Sajid, the brother of the appellant who thereafter was killed in an encounter with the police. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. During the course of cross-examination both the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) admitted that neither the deceased nor the prosecution witnesses namely Shamshad Bibi (PW-1) and Muhammad Javaid (PW-2) had reported the matter of deceased facing threats to his life at the hands of the appellant. During cross-examination, Shamshad Bibi (PW-1) admitted as under:- "It is correct that the deceased was neither a witness nor accused in case of Sajid Khan's death.
When my deceased son informed me about threats of the accused, we were terrified and due to that fear we had not informed the police about the threats. At that time no other person was present with us."
Muhammad Javaid (PW-2) also admitted during cross-examination, as under:- "We were poor/weak people and due to fear of the accused, had not moved any application against him to the police "
Muhammad Abbas, ASI (PW-9), the Investigating Officer of the case, also did not collect any evidence with regard to the motive of the incident so as to establish that there was any grievance developing in the heart of the appellant as against the deceased which motivated him to act in the manner in which he did. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant namely Muhammad Abid to have committed the Qatl-i-Amd of the deceased namely Muhammad Nabeel Sarwar. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under: "The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
Moreover, it is an admitted rule of appreciation of evidence that motive is only a supporting piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made the basis of conviction.
24. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Abid son of Muhammad Amin 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 held as:- "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 this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."
25. For what has been discussed above the Criminal Appeal No.34-J of 2023 lodged by the appellant namely Muhammad Abid son of Muhammad Amin is allowed and the conviction and sentence of the appellant namely Muhammad Abid son of Muhammad Amin (convict) awarded by the learned trial court through the impugned judgment dated 19.01.2023 are hereby set-aside.
The appellant namely Muhammad Abid son of Muhammad Amin is ordered to be acquitted by extending him the benefit of doubt. Muhammad Abid son of Muhammad Amin is in custody and he is directed to be released forthwith if not required in any other case.
26. Murder Reference No.01 of 2023 is answered in Negative and the sentence of death awarded to Muhammad Abid son of Muhammad Amin is Not Confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.