SARDAR AKBAR ALI, J:- Wasif Saeed (convict/appellant) along with his co-accused Muhammad Rashid Saeed, Muhammad Saeed Awan, Mst.Jamila Saeed and Mst.Rabia Saeed was tried by learned Sessions Judge, Lahore, in a private complaint titled "Mst. Jannat-ul-Fairdous vs. Wasif Saeed and others" under sections 302, 148/ 149 PPC arising out of case FIR No.1178 of 2018, dated 02.10.2018 for offences under sections 302/34 PPC registered at Police Station South Cantt., Lahore, and on conclusion of trial vide judgment dated 02.07.2021, co-accused Muhammad Saeed Awan, Mst.Jamila Bibi and Mst.Rabia Saeed were acquitted, whereas, appellant Wasif Saeed was convicted and sentenced as under:- "Under Section 302 (a) PPC to death sentence as qisas for committing Oatl-e-Amad of Shakeel Ashraf deceased. He was also directed to pay compensation of Rs 1,000,000/- (one million) to the legal heirs of Shakeel Ashraf (deceased) recoverable as arrears of land revenue and in default whereof to suffer 06-months simple imprisonment."
Aggrieved by his conviction and sentence, Wasif Saeed (appellant) filed Criminal Appeal No.56099 of 2021. Likewise, trial Court sent reference under Section 374 Cr.P.C. which was numbered as Murder Reference No.208 of 2021 for the confirmation or otherwise of death sentence awarded to Wasif Saeed appellant whereas complainant Mst. Jannat-ul-Firdous filed Crl. PSLA No.56097 of 2021 challenging the acquittal of co-accused Muhammad Rashid Saeed, Muhammad Saeed Awan, Mst. Jamila Saeed and Mst. Rabia Saeed.
2. Mst. Jannat-ul-Firdous, complainant (PW-1) on 02.10.2018 at 10:45 p.m. submitted written complaint (Ex.PD) before Shahzad Kamal, S.I (not produced), when he on receiving the information of the occurrence reached at Emergency Ward, Services Hospital, Lahore. The complainant stated therein that on 02.10.2018 at about 08:30 p.m. accused Mst. Rabia Awan, telephonically contacted Muhammad Shakeel Ashraf, with whom, he contracted Nikah about 1 years ago, inviting him to visit her house for reconciliation proceedings and to settle the dispute with her parents and during this call, her father also talked to Muhammad Shakeel Ashraf to the effect to visit their house as they are waiting for them. At about 09:00 p.m. the complainant along with her Dewar/ husband's brother Muhammad Aqeel Ashraf and three unknown friends of her husband reached at the house of Saeed Awan situated in Street No.2 Gulshan Park. The complainant party seated there whereas her husband and dewar Muhammad Aqeel seated in their front and their backs were towards the door. Her husband when started conversation requesting to accept his Nikah with Rabia Bibi and the matters may be settled amicably, upon this accused Saeed Awan loudly shouted to teach a lesson to Muhammad Shakeel Ashraf to molest their honor. Instantaneously accused Wasif and Kashif sons of Saeed Awan came there while armed with pistols. Wasif made a fire shot with pistol hitting on the back of Muhammad Shakeel Ashraf, who fell to the ground whereas Kashif just to harass them made indiscriminate firing which hit the glasses of windows and walls. The complainant and the PWs rescued their lives while sitting and laying. Thereafter the accused Saeed Awan, Wasif and Kashif took flight from the place of occurrence while making firing. The wife of Saeed Awan snatched mobile phone from the complainant and also beaten her. The complainant's dewar and unknown friends of her deceased husband escorted the deceased to Civil Hospital but he succumbed to the injures on the way.
The motive behind the occurrence was that complainant's husband contracted Nikah with Rabia Bibi secretly and due to this grudge the accused committed his murder while inviting him at their house.
3. Saif-Ullah Gondal Sub-Inspector (PW-11) initiated the investigation. On 02.10.2018, he reached at Services Hospital, Lahore and inspected the dead body of deceased lying on stature, prepared injury statement Exh.PR, application Exh.PS for postmortem, inquest report Exh.PT and application Exh.PU. Thereafter, he along with complainant and witnesses visited the crime scene/ house situated at Street No.2, Gulshan Park, Lahore, knocked the door which was opened by Jamila Saeed.
The crime scene was located at first floor of the house. He inspected the crime scene and prepared unscaled site plan Exh.PV, collected blood imbrued cotton, took the same into possession through recovery memo Exh.PH. Secured a Chitai P-10 from the crime scene and seized it through recovery memo Exh.PG. Secured one empty P-1 from the crime scene, took into possession through recovery memo Exh.PF. PFSA team handed over to him one sealed envelope, took the same through recovery memo Exh.PJ. Secured seven empties of 9 mm pistol P2/1-7 from outside the house and took it into possession through recovery memo Exh.PK. On 02.10.2018, the complainant submitted another application before him regarding substitution of name of Kashif Saeed stating that the name of Kahsif Saeed was Rashid Saeed. On 03.10.2018 Abu-al-Asar constable produced before him postmortem report and last worn clothes of deceased i.e. shirt P-11, bunyan P-12 patloon P-13 and underwear P-14, took the same into possession through recovery memo Exh.PM. On 06.10.2018 Syed Younas Bukhari, draftsman produced before him scaled site plan in triplicate. On 10.10.2018, he deposited one empty of pistol .30 bore, seven empties of 9 mm, one khaki envelope sealed by doctor and another sealed parcel given by PFSA scientist during inspection of the crime, in the Office of PFSA intact.
On 13.10.2018, accused persons Muhammad Saeed Awan and Rashid Saeed were arrested. On 27.10.2018, they were sent to judicial lock up. On 29.10.2018, Jamila Saeed accused submitted application for cross version received through CCPO and cross version was not approved. On 31.10.2018 accused Waif Saeed was arrested. On 12.11.2018, accused got recovered pistol P-3 and unloading the same four live bullets P-15/1-4 were recovered, took the same into possession through recovery memo Exh.PN.
The investigation of this case was also conducted by Ali Akhtar, DSP who while appearing as PW-09 stated that on 13.11.2019 he joined appellant Wsif Saeed into investigation, confined him in Bukhshi Khana and on 21.11.2019, he completed investigation and in his opinion Wasif Saeed (appellant), Saeed Awan and Rashid Saeed were found involved in the commission of offence, whereas, Jamila Saeed and Rabia Saeed accused were not found involved in the commission of the crime.
Subsequently, the complainant opted to file a private complaint (Ex.PA) almost with the same story as set out in the FIR, but added that the Investigating Officer had not correctly recorded statements of witnesses under section 161 Cr.P.C. to benefit the accused and did not recover the pistol from Rashid Saeed Awan during the investigation which he used in the occurrence and out of malafide declared Jamila Saeed and Rabia Saeed, as innocent, whereas, solid evidence was available against them.
4. The learned trial court after recording cursory evidence summoned all the accused/respondents to face trial. When charge sheeted, the accused/appellant pleaded not guilty and claimed to be tried, whereupon, the prosecution examined Jannat-ul-Firdous complainant (PW-1) and Muhammad Aqeel Ashraf (PW-2) who furnished the ocular account of occurrence; Dr. Nasir Abbas (PW-3) conducted postmortem examination of deceased Muhammad Shakeel and observed as under: "Injury No.1-A "A penetrating lacerated wound of 1x1 cm with inverted margins on back of chest at midline, 22 cm below from cervical (C) 5 vertebra and 46 cm from top of heard. Abrasion collor present.
Blackening burning and tattooing absent. Bleeding from wound.
"Injury No.1-B "A lacerated wound of 1.5x1.5 cm with everted margins in epigastric region, 2 cm towards left side from midline, 18 cm from left nipple and 62 cm from top of head. No blackening burning and tattooing. Bleeding from the wound. No abrasion collor.
Whereas, Saif Ullah Gondal, SI (PW-11) and Ali Akhtar, DSP (PW-09) appeared in the dock to give details of their investigation and Tahir Kamal Khan, Junior Scientist PFSA, who visited and inspected the crime scene, appeared as PW-13. It may be clarified here that when cursory statements of witnesses were being recorded, the complainant has also been mentioned as CW-1, whereas, during trial her statement has been recorded as PW-1. The rest of the witnesses were formal in nature. On close of prosecution case, the accused were examined under section 342 Cr.P.C. who refuted the prosecution evidence. However, did not produce any witness in defence nor opted to appear in the witness box as required by section 340(2) Cr.P.C. and the trial ended in the terms as detailed in opening paragraph of this judgment.
5. Heard. Record perused.
6. From the narration of above facts, according to the prosecution's perspective the occurrence took place on 02.10.2018 at 09.00 p.m. and was alleged to have been seen by witnesses namely Jannat-ul-Firdous complainant (PW-1) and Muhammad Aqeel Ashraf (PW-2), but the matter was reported to the police on the same night at 11:15 p.m. i.e. with delay of about two hours and 15 minutes, despite the fact that police station was just 3 kilometers from the place of occurrence. The situation worsens when we see that according to prosecution's stance as taken in the FIR as well as in the private complaint, Muhammad Shakeel Ashraf died on the way to Services Hospital, Lahore and when Shahzad Kamal, SI (not produced) on receiving the information of the occurrence reached at Emergency, Services Hospital, Lahore, Mst. Jannat-ul-Firdous complainant (PW-1) presented before him written complaint. In the postmortem report of Muhammad Shakeel (Ex.PC), the doctor who conducted postmortem examination on the dead body of the deceased on 03.10.2018 at 01:30 p.m., had mentioned probable time between death and postmortem as 15 hours and 30 minutes. Thus, if this time is considered for the purposes of time of death, the occurrence would might be happened at 10:00 p.m. whereas as per prosecution's own case the occurrence took place at 09:00 p.m.
7. In the column regarding date and time of death of the postmortem report (Ex.PC) of Muhammad Shakeel Ashraf (deceased), it is mentioned as 10.00 p.m. on 02.10.2018. Muhammad Kashif (PW-4) stated that on 02.10.2018 at about 10:30 p.m. he along with Muhammad Aqeel Ashraf (PW-02) was present in the emergency of Services Hospital, Lahore and at about 01/01:30, he along with Muhammad Aqeel Ashraf and two police constables left the Services Hospital along with dead body of Muhammad Shakeel Ashraf. Dr. Nasir Abbas in his examination-in-chief stated that the docket was received along with other police papers on 03.10.2018 at 01:00 p.m. and the dead body was examined at 01:30 p.m. He in his examination in chief stated that "Rigor mortis fully developed"
He further stated that: "the determining factor to calculate the time of death was only development of rigor mortis"
He further clarified that "there was a possibility of survival of deceased if he was provided timely treatment"
The question arises here that as per prosecution's own case, the deceased succumbed to the injuries on the way to Services Hospital and if so, why the dead body remained in Services Hospital for a sufficient time for which no explanation has been offered by the prosecution and in this regard no report of any doctor of the Services Hospital, Lahore has been brought on the record.
Another fact is very important and is missing that why the dead body of the deceased was escorted to the General Hospital even the postmortem of the deceased could have also been conducted at the attached mortuary of Kind Edward Medical College/ Mayo Hospital, Lahore which was nearby the Services Hospital. Thus, there is obvious delay in sending the dead body to mortuary, as according to postmortem report (Ex.PC), the police papers were received at 01:00 p.m. at the mortuary and thereafter postmortem examination was conducted at 01:30 p.m. Keeping in mind that Jannat-ul-Firdous complainant (PW-1), Muhammad Aqeel Ashraf (PW-2) are closely related inter-se to the deceased and also the fact that both these witnesses of ocular account are the residents of the same vicinity, in such a situation if these witnesses were present at the place of occurrence and also witnessed the scene of occurrence then such an inordinate and unexplained delay would never have occurred. In the case "Mehmood Ahmed & others vs. the State & another" (1995 SCMR 127), it was observed by the Supreme Court of Pakistan that:- "Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate".
Similar view was taken by the Hon'ble Supreme Court of Pakistan in a recent pronouncement in case titled Muhammad Nawaz Vs. The State and others (2024 SCMR 1731).
8. Another intriguing aspect of the case is that Tahir Kamal Khan (PW-13) who being Junior Forensic Scientist, PFSA stated that on 02.10.2018 he received information about the happening of the occurrence at 10:50 P.m. and at 01:05 a.m. he reached at the place of occurrence and opined that: "It was concluded that multiple gun shots were fired from outside the building as indicated by direction of travel of gun shot impacts at glass window of TV lounge. KM test was positive which could indicate the presence of blood between the sofas in TV lounge. Report was prepared by Adil Umar who has resigned from PFSA. I identify the signature of Adil Umar. Report of crime scene is Exh.PY."
He in his cross-examination further stated that: "It is correct that fire travelled from outside to inside from TV lounge."
9. Thus, in the facts and circumstances of the instant case, the element of delayed registration of FIR, delay in preparation of police papers and also delayed post mortem are clear indicator of the fact that in fact it was a blind murder and inference can be drawn that the intervening period was consumed in fabricating the prosecution story after the preliminary investigation, otherwise there was no justification for conducting the postmortem examination with such a delay. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCM R 1190), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye- witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted."
Similar view was taken by the Hon'ble Supreme Court of Pakistan in case titled Muhammad Ijaz alias Billa and another Vs. The State and others (2024 SCMR 1507).
10. As stated above, complainant Jannat-ul-Firdous (PW-1) is wife of the deceased and Muhammad Aqeel Ashraf (PW-2) is real brother of Muhammad Shakeel Ashraf (deceased), therefore, both can be said to be richly interested. It is a fact borne out from the record that complainant Jannat-ul-Firdous (PW-1) admitted in her cross-examination that she was second wife of the deceased. She was earlier married to Mian Anees from whom she got divorce on the basis of Khula. She further admitted in her cross-examination that deceased was already married and the name of her earlier wife was Ayesha who after divorcing Ayesha contracted marriage with the complainant and that it was her love marriage as well as arranged marriage with Muhammad Shakeel Ashraf deceased. She further stated that she came to know about Nikah of her husband with accused Rabia Saeed about 18/20 days prior to the occurrence.
11. When the above narrations of the complainant are compared with her statement recorded before the police for lodging of FIR as well as in the private complaint that on receiving the telephone call from the accused, she along with Muhammad Shakeel Ashraf deceased and other PWs went to the house of Rabia Saeed, other wife of the deceased, it is an important factor and phenomenon in our society that first wife specifically try to keep the new wife away from her family and she cannot tolerate about her at any cost. By comparing four typical but contrasting marriages and examining the rules about the formation and breakup of polygamous marriages, the role of the pre-existing and new wife's consent (or not) and the economic consequences of poly-formation in ongoing and divorcing marriages, we demonstrate that the surpluses generated and distributions currently in place can both benefit and harm the co-wives. Jannat-ul-Firdous complainant (PW-1), in her cross examination has stated as under:- "I have stated before DSP/SDPO Ali Akbar on 05.11.2019 regarding the motive part of the occurrence that Rabia Saeed was already divorced before the occurrence of this case and now Rabia Saeed wanted to usurp property being showing herself widow of the deceased."
Similarly, Saif Ullah Gondal SI (PW-11), during his cross examination admitted that:- "During investigation, it was found that Shakeel had already divorced Rabia accused verbally on the insistence of Rabia accused, when she visited the office of Shakeel. This happened about three months prior to the occurrence as per the version Jahangir taken before me."
Furthermore, Ali Akbar, DSP (PW-9) in his cross-examination stated as under:- "It was found during investigation that Shakeel deceased had already divorced Rabia Saeed verbally prior to the occurrence."
In view the above deposition, it does not appeal to the mind of a prudent man that why first wife i.e. complainant Jannat-ul-Firdous (PW-1), who was also a school teacher, had accompanied her husband for reconciliation with her husband's co-wife, when her parents were not happy with their marriage and what necessitated the complainant to sit in the Punchayat, it is not comprehendible.
12. Even otherwise, there are a number of flaws, contradictions and improvements in the statement of Jannat-ul-Firdous complainant (PW-1), Muhammad Aqeel Ashraf (PW-2). Jannat-ul-Firdous complainant (PW-1) in her cross-examination stated that: "The said supplementary statement was written at about 11:45 a.m. I got drafted the supplementary statement by someone but I do not remember the name of the scriber. The investigating officer came to our house at about 11:45 p.m. The I.O. left my house at about 01:00a.m."
She further stated that: "The I.O for the first time met me on the day of occurrence at about 11:45 P.M. when he came to my house. He stayed at our house till about 01:00 A.M."
It was her further stance that: "After the occurrence, I went to the Hospital from the place of occurrence. We went to hospital on our own vehicle. Aqeel Ashraf, Shakeel Ashraf and one friend of Shakeel accompanied me to hospital. I do not know the name of friend of Shakeel who was driving vehicle. I remained in hospital till about 11:15 P.M. I had moved written application for registration of FIR. I got drafted the said application from someone but I cannot tell the name of scriber. The application was got drafted at about 10:45 A.M. The police arrived in the hospital at about 11:00 A.M."
She further stated that: "I did not myself call on 15 or 1122" "It is not in my knowledge that who called 1122 and 15 calls"
Likewise Muhammad Aqeel Ashraf, PW-2 also made contradictory statement with improvements which are reproduced as under: "The police for the first time came at about 10:45 p.m. at hospital. The application for registration of FIR was prepared meanwhile during the presence of police. The police enquired facts of the occurrence before preparation of application for registration of FIR."
He further stated that: "It is not in my knowledge that who called on 1122 and 15 for coming at the spot"
Whereas as per FIR Exh PE, the police reached at Emergency Ward of Services Hospital at 10:45 p.m.
The fact also remained un-answered that who and when escorted the dead body of Muhammad Shakeel Ashraf deceased to the Services Hospital. The aforesaid flaws, contradictions and improvements in the statement of Jannat-ul-Firdous complainant (PW-1), Muhammad Aqeel Ashraf (PW-2) create doubts in the prosecution story. It is settled by now that dishonest improvements made by a witness in his statement to strengthen the prosecution case casts serious doubt about veracity of his statement and makes the same untrustworthy and unreliable.
Reliance may be made to a case titled Mst. Saima Noreen and another Vs. The State (2024 SCMR 1310).
13. Moreover, as per story of FIR Exh.PD, the complainant (PW-1), Muhammad Aqeel Ashraf (PW-2) and the friends of her deceased husband took the injured then deceased to Services Hospital for treatment and after his death also escorted the dead body to the mortuary. Admittedly, no blood stained clothes of the PWs and the friends of the deceased, were taken into possession by the I.O and no explanation in this behalf had been advanced by the prosecution. The stance of the complainant and eye witnesses was not only improbable, but also got no support from the record, thus, the prosecution has failed to prove the presence of the complainant and the eye-witnesses at the time and place of the occurrence. Reliance in this behalf may be placed upon case titled Zafar Ali Abbasi and another Vs. Zafar Ali Abbasi and others (2024 SCMR 1773).
14. We have also noted that the complainant (PW-1) admitted during examination in chief that "three friends of my husband of whom names are not known to me went to the house of Mst.
Rabya/accused". Three friends of the deceased were in a position to make statements qua the occurrence and they being the most natural witnesses of the occurrence had not produced by the prosecution. Learned State counsel frankly conceded that neither their statements under Section 161 Cr.P.C. were recorded during the investigation of the case nor they ever appeared before the learned trial Court, therefore, the prosecution has withheld the best piece of evidence, hence an adverse inference within the meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 can validly be drawn against the prosecution that had the abovementioned witnesses been produced in the witness box then their evidence would have been unfavourable to the prosecution. Reliance in this respect may be placed on the case reported as "Abdul Qadeer Vs. The State" (2024 SCMR 1146).
15. We have noted that it was night occurrence and neither any source of light was mentioned in the FIR as well as in the site plan of the place of occurrence nor the Investigating Officer collected or gathered any such evidence, meaning thereby, source of light in night occurrence is missing in this case.
16. According to the prosecution story the accused/appellant slipped away from the place of occurrence along with crime weapon i.e. pistol 30- bore and got recovered the same on 12.11.2018 i.e. last day of the remand, from his residential room located at 3rd floor of his house lying underneath of bed. It is somewhat difficult to believe that an accused having committed such a serious crime like murder though succeeded in fleeing away from the crime scene along with weapon of offence, would not get rid of such weapon, rather would keep the same in safe custody for its subsequent recovery and use against him. Besides, when we have already disbelieved the ocular account, such recovery would not be sufficient for recording conviction of an accused on capital charge, because this type of corroborative evidence is always taken into consideration along with direct evidence. In case titled "Noor Muhammad Versus The State" (2010 SCMR 97) it has been held by the Supreme Court of Pakistan that recovery of crime weapon with matching report of PFSA is corroborative piece of evidence, which by itself is not sufficient to record conviction.
17. After the arrest of appellant, the crime weapon was shown recovered on his lead on 12.11.2018 and the recovery memo (Ex.PN) shows that such recovery proceedings were supervised by Saif Ullah, Sub-Inspector (PW-11) and witnessed by Aamir Hameed, ASI (PW-07) and Abu-Al-Asar (given up PW). The said recovery cannot be relied upon for the reason that Investigating Officer of the case did not join any witness of the locality during the recovery of such 30 bore pistol on the lead of accused/appellant, which is clear violation of section 103 of Code of Criminal Procedure, 1898. Therefore, the evidence of such recovery cannot be used as incriminating evidence against the accused/appellant, being evidence that was obtained through illegal means and hence hit by the exclusionary role of evidence. The Supreme Court of Pakistan in the case reported as "MUHAMMAD ISMAIL and others versus The STATE" (2017 SCMR 989), held:- "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."
Even otherwise, it was highly unsafe to rely on the evidence of recovery, which even otherwise was a corroborative piece of evidence and relevant only when the primary evidence i.e. ocular account inspired confidence, whereas in the present case, the ocular account was doubtful. Reliance is placed upon case titled Muhammad Hassan and another Vs. The State and others (2024 SCMR 1427).
18. After disbelieving the ocular account as well as the recovery, the medical evidence only being corroborative piece of evidence, cannot be made basis to record or sustain conviction because medical evidence could only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. but never identify the real assailant. In the instant case, as discussed above, delay in medical examinations and autopsy already has created dents in the prosecution case. In the case "MUNAWAR ALI alias MUNAWAR HUSSAIN versus THE STATE" (PLD 1993 SC 251) the Hon'ble Supreme Court of Pakistan held that:- "Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries can never name the accused, that is, from the injuries alone it cannot be said who had inflicted those injuries.
The case "Muhammad Jahangir and another Vs. The State and others" (2024 SCMR 1741) is also to the same effect.
19. As regards motive, that complainant's husband contracted Nikah with Rabia Saeed secretly and due to this grudge the accused committed his murder while inviting him at their house, complainant Mst. Jannat-ul-Firdous (PW-01) in her cross-examination stated that: "I have not produced three unknown persons accompanying me before police. I went to the house of accused persons after conversation of Rabia accused with Muhammad Shakeel deceased."
She further stated that: "I have stated before the DSP/SDPO Ali Akhter on 05.11.2019 regarding the motive part of the occurrence that Rabia Saeed was already divorced before the occurrence of this case and now Rabia Saeed wanted to usurp property being showing herself widow of deceased."
Whereas the stance of the appellant regarding motive in his statement recorded under section 342 Cr.P.C was that when deceased contracted marriage with Rabia Saeed, the complainant pressurized the deceased to divorce Rabia Saeed and on the day of occurrence, the complainant came to the house of the appellant along with his companions where the deceased was also present. When complainant asked the deceased to divorce Rabia Saeed but when the deceased refused rather alarmed to divorce the complainant, the complainant's companions who were notorious persons committed the murder of the deceased. We cannot ignore the legal position that motive even if proved, depending upon the facts and circumstances of the case, may act as a double edged weapon. If it can be a reason for the accused to commit the crime, it can also be used by the prosecution as a tool to implicate an innocent person. Therefore, after disbelieving the ocular account, recovery as well as medical, the motive set up in this case is of no help to the prosecution.
20. While summing up, it may be mentioned that on the same set of evidence, co-accused Muhammad Saeed Awan, Mst. Jamila Bibi, Rabia Saeed, who had been shown present at the place of occurrence whereas Rashid Saeed who had also been shown present at the place of occurrence while armed with a pistol, stood acquitted. Therefore, present appellant cannot be convicted under the principle of "falsus in uno falsus in omnibus" (false in one thing, false in all). Reliance is placed on the case reported as "Notice to Police Constable Khizar Hayat son of Hadait Ullah" (PLD 2019 Supreme Court 527), "PERVAIZ KHAN and another versus The STATE" (2022 SCMR 393) & "Muhammad Iqbal Vs. The State and another (2024 SCMR 1133).
21. For what has been discussed above, we have no doubt to hold that here in this case the prosecution has miserably failed to establish the charge against the accused/appellant beyond any shadow of doubt. In the cases of "KHIAL MUHAMMAD Versus The STATE" (2024 SCMR 1490) & "MUHAMMAD IJAZ alias BILLA and another Versus The STATE and others" (2024 SCMR 1507), the Supreme Court of Pakistan has held that for giving benefit of doubt to an accused a single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit, whereas, in present case numerous doubts have crept into the evidence making whole edifice of prosecution unreliable. Thus, the prosecution has squarely failed to bring home the guilt against the accused/appellants.
22. Consequently, Crl. Appeal No. 56099 of 2021 is allowed, impugned judgment of conviction & sentence is set-aide and the accused/ appellant is acquitted of the charges against him. He shall be released forthwith if not required to be detained in any other case. The case property, if any, be disposed of in accordance with law, and record of the learned trial Court be sent back immediately.
23. Murder Reference No.208 of 2021 is answered in the NEGATIVE and the sentence of death awarded to Wasif Saeed (appellant) is NOT CONFIRMED.
24. In view of above discussion, Crl. P.S.LA. No.56097 of 2021 filed by the complainant against the acquittal of co-accused Muhammad Rashid Saeed, Muhammad Saeed Awan, Mst. Jamila Saeed and Mst. Rabia Saeed having no merits is dismissed.