SADIQ MAHMUD KHURRAM, J.- Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar (convicts) were tried alongwith Muhammad Shaban, Ali Haider and Muhammad Gulzar (since acquitted), the co-accused of the convicts by the learned Additional Sessions Judge, Jhelum in the case F.I.R. No. 111 of 2022 dated 20.02.2022 registered at Police Station Saddar Jhelum, District Jhelum in respect of offences under sections 302, 34 and 109 P.P.C. for committing the Qatl-i-Amd of Anwar ul Haq son of Muhammad Siddique (deceased). The learned trial court vide judgment dated 24.08.2023 convicted Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar (convicts) and sentenced them as infra: Tahir Mahmood alias Tahiri son of Mukhtar Ahmad:- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Anwar ul Haq son of Muhammad Siddique (deceased) and directed to pay Rs.1,00,000/- 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.
Tasaddaq Hussain son of Muhammad Gulzar:- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Anwar ul Haq son of Muhammad Siddique (deceased) and directed to pay Rs.1,00,000/- 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.
The convicts were, however, extended the benefit available under section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court.
Muhammad Shaban, Ali Haider and Muhammad Gulzar, the co-accused of the convicts, were however acquitted by the learned trial court.
2. Feeling aggrieved, Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar (convicts) lodged the Criminal appeal No.840-J of 2023, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.46 of 2023 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar. The complainant of the case namely Ikram ul Haq also filed Criminal Appeal No.640 of 2023 against the acquittal of the accused namely Muhammad Shaban, Ali Haider and Muhammad Gulzar by the learned trial court. We intend to dispose of the Criminal Appeal No.840-J of 2023, the Criminal Appeal No.640 of 2023 and the Murder Reference No.46 of 2023 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Ikram ul Haq (PW-7), the complainant of the case, are as under:- "States that on 19-02-2022, 1 alongwith Muhammad Maroof, Anwaar-ul-Haq, Shahzad alias Shadi were playing cards in office of Thekedar Ch.Naeem, situated in village Bagga and were also having Gup-Shup. We sent Shahzad alias Shadi to take Prathas from Lota Morr. We had been playing cards and having Gup-Shup. There was light of bulbs inside office and outside the office. In the meanwhile, at about 11.00 p.m. a motorcar of white colour XLI came and stopped there. Accused Tahir alias Tahiri armed with rifle 44 bore, Shaban son of Mukhtar empty handed, Tasaddaq Gulzar armed with pistol 30 bore, Ali Haider son of Ali Muhammad armed with pistol 30 bore, accused present in the court deboarded from the car. Shaban accused raised Lalkara that they would not leave Anwaar-ul-Haq who put his hands to their honour and they would teach lesson to him.
Whereupon, Tahir alias Tahiri made two fire shots of rifle 44 bore, which hit my brother Anwaar on the front of abdomen and on flank. Then Tasaddaq Gulzar accused made two fire shots with pistol 30 bore which hit my brother Anwaar on left and right flanks. Then Ali Haider accused made two fire shots with his pistol 30 bore which hit my brother on leg and umbilicus. Then my brother fell on the ground face towards the ground. Then the said three accused made fire shots which hit my brother Anwaar who was already fallen on the ground. Those fire shots hit different parts of his body. Then Tasaddaq Gulzar accused made fire shot which hit on backside of head of my brother Anwaar. Then accused persons while boarding on their car, making lalkaras and firing fled away towards Belly Paharwal towards their houses. My brother Anwaar succumbed to the injuries at spot.
Motive behind the occurrence is that accused Gulzar son of Rehmat had suspicion that my deceased brother had illicit relationship with his daughter. Then police came at the spot, where I got recorded my statement Ex.PJ, which bears my signature and thumb impression. Police sent dead body of the deceased to DHQ Hospital, Jhelum for autopsy after completing the police papers.
On 20-02-2022, on the same night as date was changed at 12.00 midnight, police collected 10 empties of 30 bore pistol P1/1-10 and 13 empties of rifle 44 bore P2/1-13. Investigating Officer took the same into possession vide recovery memo Ex.PK, which was signed by me and Muhammad Maroof PW. Police also collected blood with cotton from the place of occurrence in my and Muhammad Maroof presence. Investigating Officer took the same into possession vide recovery memo Ex.PL, which was signed by me and Muhammad Maroof PW. Investigating Officer also took into possession three energy savers which were on at the place of occurrence at the time of occurrence vide recovery memo Ex.PM, which was signed by me and Muhammad Maroof PW.
Investigating Officer also prepared un-scaled site plan on pointing out of me and PW. Investigating Officer recorded my statement under section 161 Cr.P.C. in this regard. On 22-02-2022. Asif Akhtar Nakash draftsman visited the place of occurrence alongwith Investigating Officer and he took rough notes on my and Muhammad Maroof pointing out.
On 11-03-2022, I and Muhammad Maroof went to police station where accused Tahir alias Tahiri, Shaban, Tasaddaq Gulzar and Ali Haider were in custody of police and Investigating Officer was interrogating them. Accused Tahir alias Tahiri made disclosure in our presence that he could led the recovery of weapon of offence rifle 44 bore which he hided in chaff room in his Dera, situated in Belly Paharwal. He also disclosed that he could get recovered motorcar, which was present on his Dera. Tasaddaq Gulzar accused also disclosed that he could get recovered pistol 30 bore weapon of offence, which he hided in a room of tractor. Muhammad Shaban accused also made disclosure that he could led recovery of pistol 30 bore weapon of offence, which he hided in the room of tractor in almirah. Then accused persons led us to their Dera where accused Tahir alias Tahiri got rifle 44 bore P3 from Chaff room, which was wrapped in a plastic sack and gave it to Investigating Officer, who unloaded it found five live bullets P4/1-5. Investigating Officer prepared sealed parcel of rifle and live bullets. Accused Tahir alias Tahiri also produced motorcar registration No.2543/LEA P5 (present outside the court room) which was present in the courtyard of the Dera. Investigating Officer took rifle and live bullets into possession vide recovery memo Ex.PN, which was signed by me and Muhammad Maroof PW. Investigating Officer took motorcar into possession vide separate recovery memo Ex.PP, which was signed by me and Muhammad Maroof PW. Accused Tahir alias Tahiri was brought back in the official vehicle.
Then accused Tasaddaq Gulzar got 30 bore pistol P6 from an iron box present in room of tractor and produced the same before Investigating Officer who found two live bullets P7/1-2 from it on unloading the same. Investigating Officer prepared sealed parcel of pistol and live bullets and took the same into possession vide recovery memo Ex.PQ, which was signed by me and Muhammad Maroof PW. Accused Tasaddaq Gulzar was brought back to the official vehicle of police.
Then accused Muhammad Shaban from almirah of said tractor room got pistol 30 bore P8 of silver colour and presented the same before Investigating Officer, who found three live bullets P9/1-3 on unloading the same. Investigating Officer prepared sealed parcel of pistol and live bullets and took the same into possession vide recovery memo Ex.PR, which was signed by me and Muhammad Maroof PW. Investigating Officer recorded my statements under Section 161 Cr.P.C.
On 14-03-2022, I handed over mobile phone P10 of deceased Anwaar to police on demand of police. Investigating Officer took the same into possession vide recovery memo Ex.PS, which was signed by me. Investigating Officer recorded my statement under Section 161 Cr.P.C. in this regard"
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 29.06.2022, 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 Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8). Saqib Ali 52/HC (PW-2) stated that on 20.02.2022, the Crime Scene Unit visited the place of occurrence, prepared four sealed parcels and handed them to the Investigating Officer of the case. Asif Akhtar Naqash, draftsman (PW-3) prepared the scaled site plan of the place of occurrence (Exh.PE & Exh.PF). Ibrar Hussain, ASI (PW-4) stated that on 20.02.2022, he got recorded the formal F.I.R. (Exh.PG). Azmat Ali 680/HC (PW-5) stated that on 20.02.2022, Qamar Sultan, SI (PW- 9) handed over to him one sealed parcel said to contain blood stained cotton, one sealed parcel said to contain empty shells of the bullets, four sealed parcels prepared by Crime Scene Unit and on 25.02.2022, he handed over the one sealed parcel said to contain blood stained cotton, one sealed parcel said to contain empty shells of the bullets , four sealed parcels prepared by Crime Scene Unit to Qamar Sultan, SI (PW-9) for their onward transmission to the office of the Collection Center, Punjab Forensic Science Agency, Gujranwala and on 11.03.2022, Qamar Sultan, SI (PW-9) handed over to him one sealed parcel said to contain a rifle and two sealed parcels said to contain pistols and a car and on 14.03.2022, Qamar Sultan, SI (PW-9) handed over to him a sealed parcel said to contain the mobile phone device of the deceased and on 18.03.2022 he handed over the one sealed parcel said to contain a rifle and two sealed parcels said to contain pistols and the sealed parcel said to contain the mobile phone device of the deceased to Qamar Sultan, SI (PW-9) for their onward transmission to the office of the Collection Center, Punjab Forensic Science Agency, Gujranwala. Ihsan ul Haq (PW-6) stated that on 19.02.2022, he identified the dead body of the deceased and on 20.02.2022, he received the dead body of the deceased. Asjad Javed 841/C (PW-10) stated that on 20.02.2022 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. Qamar Sultan, SI (PW-9) investigated the case from 20.02.2022 till 15.04.2022, arrested the appellants namely Tahir Mahmood alias Tahiri and Tasaddaq Hussain on 02.03.2022 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. Zahoor ul Haq (PW-1) examined, who on 20.02.2022 was posted as Medical Officer at DHQ, hospital Jhelum and on the same day conducted the postmortem examination of the dead body of Anwar ul Haq son of Muhammad Siddique (deceased). Dr. Zahoor ul Haq (PW-1), on examining the dead body of Anwar ul Haq son of Muhammad Siddique (deceased) observed as under:- "DESCRIPTION OF INJURIES.
1. (i). A lacerated wound occipital region of skull on right side, size 0.8 x 1 cm inverted margins entry would. 03 cm back of right ear. (ii) A lacerated wound occipital region of skull on right side, size 3 x 1.5 cm. It was everted margins entry wound. 08 cm behind of right ear. It was an exit wound. Blood was oozing from this injury side and these all injuries were reddish in colour.
2. (i) A lacerated wound left lower chest posteriorly inverted margins size 0.8 x 1.2 cm was noted. (ii)
A lacerated wound left upper chest in size 5 x 2.4 cm was noted. (iii) A lacerated wound on left chest posteriorly in the middle inverted margins size 0.8 x 1.3 cm. These all injuries were reddish in colour and blood was oozing.
3. Abrasion on the back of left chest in the lower middle in size 7.5 x 0.8 cm was noted.
4. A lacerated wound on left buttock reddish in colour (1) upper buttock quadrant size 1.2 * 4 cm everted margins (ii) Lower medial 2nd part in size 0.8 x 0.6 cm inverted margins, (iii) Lower buttock quadrant in size 0.8cm * 1 cm was noted.
5. A lacerated wound on right buttock upper outer quadrant in size 0.8 x 1 cm was noted.
6. A lacerated wound on right thigh in the middle, (i) Lateral size 0.8 x 1.2 cm inverted margins. It was an entry wound, (ii) Injury on middle side in size 1.5 x 2.2 c, was noted of everted margins. It was an exit wound. injuries were 11 cm a part.
7. A lacerated wound on right leg in the middle (i) Lateral size 0.8 x 1 cm, inverted margins entry wound, (ii) middle side in size 1.5 cm x 2 cm everted margins exit wound. These injuries were 9 cm from each other.
8. A lacerated wound interiorly on abdominal on left side in size 1 x 0.8 cm inverted margins.
9. A lacerated wound on hypogastric region in the middle size 0.6 x 1.2 cm inverted margins.
10. A lacerated wound on front of abdominal on right side (i) middle size 0.8 x 1.2 cm inverted margins. It was an entry wound, (ii) on lateral side in size 1.5 x 2.6 cm everted margins. It was an exit wound.
11. A lacerated wound on right arm (i) front side in size 0.6 x 0.8 cm (ii) medial side was swelling and reddish bruise.
12. A lacerated wound on left knee, (i) upper side in size 0.6 x 0.8cm inverted margins entry wound,
(ii) lateral side in size 1 x 2.2cm everted margins. It was an exit wound.
FINAL OPINION: After careful external and internal post mortem examination of the dead body, I was of the opinion that the death was due to firearm injuries (Injury No.1, 2 & 11), damaging vital organs Heart and left lungs and hypovolemic shock resulting into death. Those injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature."
7. On 22.11.2022, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Junaid ul Saleheen 970/C as being unnecessary. On 20.06.2023, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Arshad and Muhammad Bilal as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. PZ, Exh.PAA and Exh.PBB).
8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar 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, they replied that they were innocent and had been falsely involved in the case. The appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar opted not to get themselves examined under section 340(2) Cr.P.C, however, produced documents (Exh.DA to Exh.DF) as evidence in their defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Jhelum convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsels for the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar 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 counsels 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 counsels for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsels for the appellants also submitted that the recoveries of the rifle 44 bore (P-3) and car (P-5) from the appellant namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and the recovery of the Pistol (P-6) from the appellant namely Tasaddaq Hussain son of Muhammad Gulzar were full of procedural defects, of no legal worth and value, and were result of fake proceedings. The learned counsels for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsels 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 Additional 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 Additional 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 appellants. The learned Additional 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 Additional Prosecutor General along with the learned counsel for the complainant, further argued that the recoveries of the rifle 44 bore (P-3) and car (P-5) from the appellant namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and the recovery of the Pistol (P-6) from the appellant namely Tasaddaq Hussain son of Muhammad Gulzar also corroborated the ocular account. The learned Additional 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 Additional Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar. The learned counsel for the complainant also argued that the Criminal Appeal No.640 of 2023, assailing the acquittal of Muhammad Shaban, Ali Haider and Muhammad Gulzar by the learned trial court from the charges also merited acceptance.
12. We have heard the learned counsels for the appellants, the learned counsel for the complainant, the learned Additional Prosecutor General 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 appellants is based on the statements of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8). The relationship of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) with the deceased is on record. Anwaar ul Haq (deceased) was the brother of the prosecution witness namely Ikram ul Haq (PW-7). The prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) all of them had their residences at a distance from the place of occurrence. The prosecution witness namely Ikram ul Haq (PW-7), during cross-examination stated as under:- "Inter-se distance between my house and place of occurrence is about 150 meters. Inter-se distance between house of Maroof PW and place of occurrence is about one kilometer" (emphasis supplied)
Qamar Sultan, SI (PW-9), the Investigating Officer of the case, during cross-examination, stated as under:- "Maximum distance between place of occurrence and house of complainant party is one kilometer. Inter-se distance between house of Mahroof and place of occurrence is about 03 kilometers." (emphasis supplied)
In this manner, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) 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 Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) 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 witnesses namely Ikram ul Haq (PW- 7) and Muhammad Maroof (PW-8) had claimed that as the place of occurrence was a shop/office from where the receipt was to be received by prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8), therefore, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) arrived at the said shop/office on a tractor trolley and were waiting for the receipt to be given and using the said time for playing cards, that the accused arrived at the place of occurrence. A perusal of the statements of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) reveals that in fact there was no reason for the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to have gone to where the occurrence took place. Furthermore, during cross-examination, it was brought on record that prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) had contrived their reason for arrival at the shop/office where the occurrence took place and had not mentioned the same in their earlier statements. Qamar Sultan, SI (PW-9), the Investigating Officer of the case, admitted during cross-examination, as under:- "It is correct that it is not mentioned in FIR that complainant and witnesses were present in the shop to receive receipt.
Complainant and witnesses did not state before me that they used to obtain receipt from the shop of occurrence"
Most importantly, the owner of the shop/office namely Ch. Naeem, Contractor, from whom the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) had to receive the receipts and in whose shop/office the alleged occurrence took place, never joined the investigation of the case in support of the claim of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) that they had to receive any receipts from him. Ikram ul Haq (PW-7) during cross-examination, admitted as under:- "We did not produce Ch.Naeem Contractor before Investigating Officer to prove the said that Shahzad was his Munshi."
Qamar Sultan, SI (PW-9), the Investigating Officer of the case, also admitted during cross- examination as under:- "Owner of the shop where the occurrence took place is Ch.Naeem Thekedar. It is correct that Ch.Naeem Thekedar did not join the investigation"
The prosecution witness namely Ikram ul Haq (PW-7) also claimed that he had to receive the receipt from one Shahzad alias Shadi Munshi, however, the said Shahzad alias Shadi Munshi also did not appear before the Investigating Officer of the case during the investigation of the case.
Then the prosecution witness namely Ikram ul Haq (PW-7) further claimed that he had already received the receipt from Shahzad alias Shadi Munshi and if he already had, then there was no reason for the presence of prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) at the said shop/office. Ikram ul Haq (PW-7), during cross-examination, stated as under:- "Shahzad alias Shadi Munshi issued receipt at night time. He was present in the shop at the night of the occurrence. We did not take receipt from him. We took receipt of Rs.300/-. We did not produce said Shahzad during investigation.
I did not mention in Ex.PJ that Shahzad alias Shadi was Munshi there. Shahzad is Munshi/employee of Ch. Naeem Contractor. We did not produce Ch.Naeem Contractor before Investigating Officer to prove the said that Shahzad was his Munshi." (emphasis supplied)
The proven failure of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to provide a reason for their arrival at the place of occurrence, on the night of the incident, has repercussions, proving that there was no reason actually for the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) 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 Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8).
14. We have also noted that the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) claimed that prior to the arrival of the assailants at the place of the incident, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) and the deceased were playing cards , while sitting on chairs, however, admittedly neither any such playing cards were recovered from the place of occurrence nor the said playing cards were produced before Qamar Sultan, SI (PW-9), the Investigating Officer of the case nor any furniture under the use of prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW- 8) and the deceased was taken into possession from the place of the incident. Ikram ul Haq (PW-7) admitted during cross-examination, as under:- "We did not produce cards, with which we were playing, to the police.
Deceased was sitting on the chair at that time. The chair might have been stained with blood. Police did not take into possession the said chair." (emphasis supplied)
Similarly, Asif Akhtar Naqash draftsman (PW-3), who prepared the scaled examination that the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) did not point out any place where they were playing cards prior to the arrival of the assailants at the place of occurrence and stated as under:- "Complainant and PWs did not point out any place/ point where they were playing cards"
Qamar Sultan, SI (PW-9), the Investigating Officer of the case, also admitted during cross- examination that he did not take into possession any playing cards from the place of occurrence and also did not take into possession any furniture under the use of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) and deceased and admitted as under:- "It is correct that I did not take into possession the said cards during my whole Investigation I did not take into possession any chair or table"
We have also noted that Qamar Sultan, SI (PW-9), the Investigating Officer of the case, admitted during cross-examination that he had not mentioned any shop/office in the inquest report (Exh.PC) where the occurrence had taken place and stated as under:- "It is correct that I have not mentioned shop in inquest report"
All these facts of the prosecution case itself prove that false claims were made by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) with regard to their presence at the place of the incident.
15. We have also noted that though it was claimed by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) that they had gone to the place of occurrence on a tractor trolley however, during the course of the investigation as well as before the learned trial court, the said tractor trolley, allegedly used by prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8), to arrive at the place of occurrence, was not produced. Qamar Sultan, SI (PW-9), the Investigating Officer of the case, also admitted during cross-examination that at the time of his arrival at the place of occurrence, the tractor trolley used by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to arrive at the place of occurrence was not taken into possession by him and admitted as under:- "It is correct that complainant and witness did not point out during investigation that tractor and trolley were present there."
Even Asif Akhtar Naqash draftsman (PW-3) stated during cross-examination that Muhammad Maroof (PW-8) had not pointed out the place where he had parked the tractor trolley which vehicle was used by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to arrive at the place of occurrence and stated as under:- "Muhammad Maroof did not point out the place where he parked the tractor trolley. " (emphasis supplied)
The non-production and the non-availability of the tractor trolley used by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to arrive at the place of occurrence and the failure of prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to produce the same before the Investigating Officers of the case, leads to only one conclusion and that being that no such vehicle was available. Had such a vehicle been used by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Qamar Sultan, SI (PW-9), the Investigating Officer of the case and the same would necessarily have been taken into possession by the Investigating Officer of the case but it was not and it proves that a false claim was made by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) that they had arrived at the place of occurrence on a tractor trolley. In this manner, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) failed miserably to prove that they had indeed arrived at the place of occurrence, prior to the incident. Reliance in this regard is placed on the case of "Muhammad Ali Vs. The State" (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:- "The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material."
The prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence and the mode through which they arrived at the place of occurrence. The prosecution was under a bounden duty to establish not only that the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) had a reason to proceed to the place of occurrence but also to prove the mode through which the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) arrived at the place of occurrence. The failure of the prosecution to prove the said facts has vitiated our trust in prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) as being truthful witnesses. In this respect, reliance is placed on the cases of "Muhammad Rafiq v. State" (2014 SCMR 1698), "Usman alias Kaloo v. State" (2017 SCMR 622) and "Nasrullah alias Nasro v. The State" (2017 SCMR 724).
16. We have also noted that according to the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8), the occurrence took place inside a shop/office and according to the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8), they were in clear view, at a meagre distance, from the assailants and unarmed whereas the accused were allegedly armed with various firearm weapons. Neither there was any dearth of ammunition nor that of intent and opportunity on the part of the appellants or their co-accused for not doing away with the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) who, at the time of occurrence, were allegedly present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) were present. In this situation, it is hard to believe that the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) would have been shown the courtesy of being not fired at all. In the midst of the firing by the accused persons, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) did not receive even a single scratch on their bodies during the whole occurrence nor were even targeted at all. If the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) had been present in the view of the assailants, then they would not have been spared. Blessing the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) with such an incredible consideration and showing them such favour, is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) were left alive, they would depose against the accused, even then the appellants and their co-accused did not cause any injury to them. Such behaviour,on the part of the accused as deposed by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) 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 Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) was opposed to the common course of natural events and human conduct. Hence, we are holding that prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) did not witness the occurrence.
17. Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police on their own and made no effort to take the deceased to any hospital during the said time period. According to the prosecution case, Qamar Sultan, SI (PW-9), got the information about the occurrence and reached the place of occurrence on his own. No one out of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) had told him about the occurrence. Moreover, the oral statement (Exh. PJ) of Ikram ul Haq (PW-7) was recorded by Qamar Sultan, SI (PW-9) at the place of occurrence after his arrival there. The august Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) has observed as under: "An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
Not reporting the matter by the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) to the police and staying of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) at the place of occurrence till the arrival of the police at the place of occurrence, conclusively proves that the oral statement (Exh. PJ) of Ikram ul Haq (PW-7) and the formal F.I.R (Exh.PG) were prepared after probe, consultation, planning, investigation and discussion and the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) were not present at the place of occurrence, at the time of occurrence.
The scrutiny of the statements of the prosecution witnesses reveals that the oral statement (Exh.
PJ) of Ikram ul Haq (PW-7) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and compromised document. We have also noted with grave concern that neither in column No.4 of the inquest report (Exh. P.C.) nor at page 4 of the inquest report (Exh.P.C.), the names of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8), were mentioned as being the persons present at the place of occurrence. In column No.4 of the inquest report (Exh. P.C.) and at page 4 of the inquest report (Exh. P.C.), the names of Ehsan Ul Haq (PW-6) and Muhammad Arshad have been mentioned. This fact also fully denudes the fact that at the time of the preparation of the inquest report (Exh. P.C.), the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8), were not present at the place of occurrence and therefore, their names were also not mentioned in the the inquest report (Exh. P.C.). Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and not reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences their absence at the time of occurrence, at the place of occurrence.
18. We have also noted that the prosecution witness namely Ikram ul Haq (PW-7) admitted during cross-examination that not only he never left the place of occurrence to report the matter to the police rather also did not take the deceased to any hospital and also did not accompany the dead body of the deceased to the hospital. Ikram ul Haq (PW-7) during cross-examination admitted as under:- "I did not go to hospital. I went home from the place of occurrence as several people were coming to our house due to death of my brother" (emphasis supplied)
Similarly, the prosecution witness namely Muhammad Maroof (PW-8) also stated that he did not go to the hospital with the dead body of the deceased but rather went to the house of Ikram ul Haq (PW-7). Muhammad Maroof (PW-8) stated during cross-examination as under:- "I went to home of Ikram-ul-Haq from the place of occurrence at time between 12.00 and 01.00 am. In the meanwhile dead body was sent to DHQ Hospital Jhelum."
The august Supreme Court of Pakistan has repeatedly observed that such conduct of the prosecution witnesses where they failed to accompany the dead body of the deceased to the hospital revealed their absence at the place of occurrence. Reliance is placed on the case of Muhammad Sharifan Bibi vs. Muhammad Yasin and others (2012 SCMR 82) wherein the august Supreme Court of Pakistan held as under:- "Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for postmortem examination."
The august Supreme Court of Pakistan in the case of "Zaheer Sadiq v. Muhammad Ijaz and others" (2017 SCMR 2007) has observed as under: "The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police."
19. We have also noted with disquiet that despite the fact that the occurrence took place at about 11.00 p.m. on 19.02.2022, the postmortem examination of the dead body of the deceased was conducted after much delay. According to Dr. Zahoor ul Haq (PW-1), he conducted the post mortem examination of the dead body of the deceased on 20.02.2022 at 05.00 a.m i.e. after as many as six hours after the death of Anwar ul Haq (deceased). According to the statement of Qamar Sultan, SI (PW-9),the Investigating Officer of the case , the hospital was only at a distance of 4/5 kilometres from the place of occurrence and one could reach the hospital within 15 to 20 minutes from the place of occurrence . Qamar Sultan, SI (PW-9), the Investigating Officer of the case, during cross-examination stated as under:- "Inter-se distance between place of occurrence and DHQ Hospital, Jhelum is about 4/5 kilometers.
It is correct that there is metaled road between place of occurrence and DHQ Hospital, Jhelum.
One can reach from place of occurrence to DHQ Hospital, Jhelum in about 15 to 20 minutes"
(emphasis supplied)
Despite the above statement of Qamar Sultan, SI (PW-9), the Investigating Officer of the case, according to the statement of Dr. Zahoor ul Haq (PW-1) the dead body of the deceased was brought to the hospital at 04.50 a.m. on 20.02.2022. Moreover, according to Dr. Zahoor ul Haq (PW-1) and the entries made in the post mortem examination report (Exh. P.A.), the complete police papers were received by Dr. Zahoor ul Haq (PW-1) at 04.00 a.m. on 20.02.2022. Dr. Zahoor ul Haq (PW-1), in his statement before the learned trial court, stated as under:- "Date & Time of Death: 19-02-2022, at 11.00 p.m. Police papers were received on 20.02.2022, at 04.00 a.m., whereas dead body was received in the dead house at 04.50 a.m. and I conducted autopsy at 05.00 a.m."
(emphasis supplied)
Dr. Zahoor ul Haq (PW-1), who conducted the post mortem examination of the dead body of Abdul Sattar (deceased) and prepared the post mortem examination report (Exh. P.A.), gave the time between death and post mortem examination as being within six hours. The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Anwar ul Haq (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 submitting the complete papers. 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."
20. The learned Additional Prosecutor General and the learned counsel for the complainant, have submitted that the recovery of the rifle 44 bore (P-3) and car (P-5) from the appellant namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and the recovery of the Pistol (P-6) from the appellant namely Tasaddaq Hussain son of Muhammad Gulzar offered sufficient corroboration of the statements of the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8). Regarding the recovery of the rifle 44 bore (P-3) and car (P-5) from the appellant namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and the recovery of the Pistol (P-6) from the appellant namely Tasaddaq Hussain son of Muhammad Gulzar , the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recoveries of the rifle 44 bore (P-3) and car (P-5) from the appellant namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and the recovery of the Pistol (P-6) from the appellant namely Tasaddaq Hussain son of Muhammad Gulzar which was in clear violation of section 103 Code of Criminal Procedure, 1898. Qamar Sultan, SI (PW-9), the Investigating Officer of the case, admitted during cross-examination, as under:- "Witnesses did not come to police station after recovery and they were allowed to go anywhere from the place of recovery. I did not join into investigation any Lumberdar, Chairman or Councilor of the locality." (emphasis supplied)
Similarly, the prosecution witness namely Ikram ul Haq (PW-7) also admitted during cross- examination, as under:- "No independent person from the locality was asked to join 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 of the Code of Criminal Procedure, 1898 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 recoveries of the rifle 44 bore (P-3) and car (P-5) from the appellant namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and the recovery of the Pistol (P-6) from the appellant namely Tasaddaq Hussain son of Muhammad Gulzar cannot be used as incriminating evidence against the appellants, 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."
21. We have also noted that the prosecution failed to establish the safe custody of the recovered empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) and their transmission to the Punjab Forensic Science Agency, Lahore. Azmat Ali 680/HC (PW-5) stated that on 20.02.2022, Qamar Sultan, SI (PW-9) handed over to him one sealed parcel said to contain blood stained cotton, one sealed parcel said to contain empty shells of the bullets , four sealed parcels prepared by Crime Scene Unit and on 25.02.2022, he handed over the one sealed parcel said to contain blood stained cotton, one sealed parcel said to contain empty shells of the bullets, four sealed parcels prepared by Crime Scene Unit to Qamar Sultan, SI (PW9) for their onward transmission to the office of the Collection Center, Punjab Forensic Science Agency, Gujranwala. The relevant portion of the statement of Azmat Ali 680/HC (PW-5) reads as under:- "States that on 20-02-2022, I was posted as Moharrar Malkhana at police station Saddar, Jhelum.
On the same day, Qamar Sultan Si handed over to me one parcel said to contain blood stained cotton, one parcel said to contain empty, 04 parcels prepared by Punjab Forensic Science Agency, Rawalpindi and last worn clothes of deceased, which I kept in Malkhana for safe custody.
On 25-02-2022, I handed over the one parcel of blood stained cotton, one parcel of empty, 04 parcels prepared by Punjab Forensic Science Agency, Rawalpindi to Qamar Sultan Sl for their onward transmission to the office of Punjab Forensic Science Agency, Collection Center, Gujranwala, intact"
Bringing into doubt the safe custody of the recovered empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) and their transmission to the Punjab Forensic Science Agency, Lahore is the fact that according to Qamar Sultan, SI (PW-9), he had deposited the one sealed parcel said to contain the recovered empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore ((P-2/1-13) in the office of the Punjab Forensic Science Agency, Lahore and not the office of the Collection Center, Punjab Forensic Science Agency, Gujranwala. Qamar Sultan, SI (PW-9), in his statement before the learned trial court, stated as under:- "On 25-02-2022, I took sealed parcels from Moharrar for onward transmission to the office of Punjab Forensic Science Agency, Lahore and deposited the same in the said office, intact, on the same day." (emphasis supplied)
In this manner, the prosecution produced contradictory evidence as to what happened with the one sealed parcel said to contain the collected empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) and how the said sealed parcel came to be deposited in the Punjab Forensic Science Agency, Lahore. The safe custody of the collected empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) and their safe transmission to the Punjab Forensic Science Agency, Lahore was never proved. The learned Additional Prosecutor General is unable to explain these discrepancies in the prosecution case with regard to the transmission of the collected empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) to the Punjab Forensic Science Agency, Lahore .We have queried the learned Additional Prosecutor General to clarify that what was the evidence available on the record to confirm that the collected empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) had indeed been kept in safe custody and had been safely transmitted to the Punjab Forensic Science Agency, Lahore but after going through the record of this case from cover to cover, he has remained unable to refute that there is no consistent evidence in this regard. In such a state of contradictory evidence available on the record, safe custody of the collected empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) is not discernable from the record of this case .The break in the chain of custody and lapse in the control of possession of the collected empty shells of the bullets 30-bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) casts doubts on the safe custody and safe transmission of the collected empty shells of the bullets 30 bore (P-1/1-10) and empty shells of the bullets 44-bore (P-2/1-13) and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency, Lahore (Exh.PBB). Moreover , according to the Coloumn No.23 of the inquest report (Exh.PC) , it was not mentioned that any empty shells of the bullets were present at the place of the occurrence, though the inquest report (Exh.PC) was prepared by Qamar Sultan, SI (PW-9) at the place of the occurrence after his arrival there .Even otherwise, as we have disbelieved the ocular account in this case, hence, the evidence of the recoveries of the rifle 44 bore (P-3) and car (P-5) from the appellant namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and the recovery of the Pistol (P-6) from the appellant namely Tasaddaq Hussain son of Muhammad Gulzar 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.
22. The Learned Additional 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 Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) was that Muhammad Gulzar (since acquitted), the co-accused of the appellant had a suspicion that the deceased had illicit relations with his daughter and therefore Muhammad Gulzar (since acquitted) got the deceased killed.We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. Admittedly, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) did not even know the name of the daughter of Muhammad Gulzar (since acquitted), the co-accused of the appellant, regarding whom it was suspected that the deceased had illicit relations with her.
Furthermore, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW- 8) also admitted that they had not furnished any information to the Investigating Officer of the case, as to when Muhammad Gulzar (since acquitted), the co-accused of the appellant ever confronted either the deceased or the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) that he had a suspicion that the deceased had illicit relations with his daughter. The prosecution witness namely Ikram ul Haq (PW-7) during cross-examination admitted as under:- "I did not mention in Ex.PJ that on what time, date and at which place Gulzar stopped me and asked the above said fact of illicit relationship. I mentioned to the Investigating Officer during investigation date, time and place where and when Gulzar stopped me and asked the above said fact of illicit relationship. It is incorrect to suggest that I have deposed falsely in this regard. It is incorrect to suggest that I never ever mentioned the details of abetment during course of investigation. I did not produce any other witness before police during investigation except me and Maroof PW with regard to the motive/illicit relationship. I did not get registered any case against Gulzar when he stopped me and extended threats to me about illicit relationship of deceased with their daughter. I told the Investigating Officer during investigation the name of lady with whom Gulzar said that deceased had illicit relationship. I informed the Investigating Officer about the name of the said lady after 4/5 days of arrest of accused. I did not get recorded any statement to the Investigating Officer about the said fact. Witness has volunteered that I orally told Investigating Officer. It is incorrect to suggest that my volunteer portion is false. I told the police name of lady on basis of my own knowledge. I did not mention relationship of the lady with accused persons in Ex.PJ. It is correct that I did not mention in Ex.PJ name of father of lady and age of lady. It is incorrect to suggest that motive part is false and fictitious. Said lady was not produced during investigation in my presence. "(emphasis supplied)
Similarly, Muhammad Maroof (PW-8), admitted during cross-examination, as under:- "I did not mention name of lady with whom deceased had illicit relationship in my statement under Section 161 Cr.P.C. Gulzar and his son Tasaddaq stopped and asked us that deceased had illicit relationship with a lady and we should stop him otherwise they would teach the lesson to him. I did not mention date, time and place of the said incident to the police during investigation"
(emphasis supplied)
Qamar Sultan, SI (PW-9), the Investigating Officer of the case also admitted during cross- examination, as under:- "It is correct that neither complainant nor witnesses mentioned name of any girl with whom the deceased had illicit relationship. The witnesses stated during investigation that deceased had illicit relationship with daughter of Gulzar accused. In statements of witnesses it is not specifically mentioned that the said lady is daughter of accused Gulzar, however, it is mentioned "their daughter. It is correct that no girl appeared before me during investigation with claim that deceased had illicit relationship with her. I took into possession mobile phone of deceased and same was sent to Punjab Forensic Science Agency, Lahore for its forensic report. Complete data was not recovered from the said mobile phone as it was locked. It is correct that the data, which was extracted from mobile phone of deceased did not show any contact between deceased and lady of accused party. It is correct that complainant or witnesses did not state before me during investigation that Gulzar stopped complainant or P.Ws and asked them to prohibit deceased from having illicit relationship with his daughter. I have not mentioned in my investigation that deceased had illicit relationship with any said lady." (emphasis supplied)
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 to have committed the Qatl-i-Amd of the deceased. There is an evocative muteness in the prosecution case with regard to the minutiae of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. 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."
Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable, then motive and recovery have no evidentiary value and lost their significance.
23. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Zahoor ul Haq (PW-1) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by this Court, therefore, the appellants' convictions cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another Vs. The State" (2017 SCMR 986) has enunciated the following principle of law: "The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
The august Supreme Court of Pakistan in its binding judgment titled "Naveed Asghar and two others Vs. The State" (PLD 2021 Supreme Court 600) has enunciated the following principle of law: "31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."32
24. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar 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 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.840-J of 2023 lodged by the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar is allowed and the convictions and sentences of the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar awarded by the learned trial court through the impugned judgment dated 24.08.2023 are hereby set-aside. Both the appellants namely Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar are ordered to be acquitted by extending them the benefit of doubt. Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar are in custody and they are directed to be released forthwith if not required in any other case.
26. The complainant of the case namely Ikram ul Haq (PW-7) filed Criminal Appeal No.640 of 2023 against the acquittal of the accused namely Muhammad Shaban, Ali Haider and Muhammad Gulzar (all since acquitted), the co-accused of the appellants by the learned trial court. We have observed that the learned trial court has rightly acquitted the said accused. As discussed above, the prosecution witnesses namely Ikram ul Haq (PW-7) and Muhammad Maroof (PW-8) failed to prove their presence at the place of occurrence, at the time of occurrence and therefore, their statements have been rejected in entirety. It is important to note that according to established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as "Ghulam Sikandar and another Versus Mamaraz Khan and Others" (PLD 1985 Supreme Court 11) wherein it has been held as under: "The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however. the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
Reliance is placed on the case of "Muhammad Inayat Versus The State" (1998 SCMR 1854) wherein it has been held as under: "The judgment of acquittal qua Muhammad Yousaf, Muhammad Sated and Muhammad Nawaz cannot, in the given situation, be termed as perverse or foolish inasmuch as the view having been taken by the High Court can possibly be taken for acquitting them in the peculiar facts and circumstances of this case. It cannot be said that the impugned judgment of the High Court acquitting Muhammad Yousaf and two others is fanciful, artificial, shocking or ridiculous. 1t is based on convincing reasons"
The august Supreme Court of Pakistan in the case of "Mst. Sughran Begum and another Vs. Qaiser Pervaiz and others" (2015 SCMR 1142) has held as under: "On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course."
Pursuant to the discussion made and conclusions arrived at above, the Criminal Appeal No.640 of 2023, lodged by the complainant of the case namely Ikram ul Haq (PW-7) against the acquittal of the accused namely Muhammad Shaban, Ali Haider and Muhammad Gulzar by the learned trial court from the charges, is hereby dismissed.
27. Murder Reference No.46 of 2023 is answered in Negative and the sentences of death awarded to Tahir Mahmood alias Tahiri son of Mukhtar Ahmad and Tasaddaq Hussain son of Muhammad Gulzar are Not Confirmed.