SYED MUDASSER AMEER, J.- This single judgment is directed to decide this Criminal Appeal alongwith Murder Reference No.02-A/2024 as well as connected Criminal Appeals No.91-A/2024 titled "Abbas Khan v. The State" and 92-A/2024 titled "Waqas v. The State" and connected Criminal Revision No.19-A/2024 titled "Shahzad Gul v. The State" being outcome of the same orders/ judgment (recorded in Trial No.01/VII of 2022) of Additional Sessions Judge, Abbottabad at Havelian dated 06.06.2024 whereby Waqas son of Sarfaraz (appellant No.1) was convicted under section 302(b) PPC read with section 34 PPC and sentenced to death as Ta'zir for committing qatl- e-amd of Naeem Gul, subject to confirmation by this Court and to pay a compensation Rs.200,000/- to the legal heirs of the deceased within the meaning of section 544-A Cr.PC and in default of payment of compensation he shall further undergo six months simple imprisonment, while Abbas Khan son of Sarfaraz (appellant No.2) was convicted and sentenced to imprisonment for life and was directed to pay compensation Rs.500,000/- to the legal heirs of the deceased within the meaning of section 544-A Cr.PC or in default to undergo six months simple imprisonment (in Trial No.01/VII of 2022); appellant No.2 (in Trial No.04/15AA-KPK of 2022) while appellant No.1 (in Trial No.05/15AA-KPK of 2022) were also convicted and sentenced under section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 to two years simple imprisonment, in case FIR No.710 dated 18.07.2021 registered under sections 302/341/34 PPC read with section 15 of The Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Havelian (Abbottabad).
2. As per the Crime Report (Ex.PW-3/1) on 18.07.2021 at 14:25 hours Shahzad Gul (PW-10/respondent No.2), alongwith his real brother Naeem Gul Khan being injured and unconscious, lodged report with Saeed Shah ASI (PW-9) at Emergency Ward TDH Havelian that he alongwith his brother and son Anas Khan aged about 12 years and son of injured namely Sheryar Khan aged about 11/12 years were coming from Havelian Bazar towards their house on motorcycle; on reaching Zain-ul- Abideen Road, they bought bread from Tandoor; motorcycle 70- CC/APL was driven by him (complainant) while his brother and son were sitting on the rear seat; when at about quarter past two (02:15 p.m.) they reached near cattle-shed of Fareed Khan situated at Zain-ul-Abideen Road, appellants/convicts armed with "Aslah-Atisheen" were standing in the way and intercepted them all of a sudden; by perceiving their intention, they alighted from the motorcycle and ran towards cattle-shed of Fareed Khan to save their lives but appellants/convicts chased them and started firing at them and due to the firing of appellant Waqas, his brother Naeem Gul was hit on chest and fell on the ground. Complainant alongwith two children could hardly save their lives by entering into the said cattle-shed. Occurrence was shown to have been witnessed by complainant, his brother Khan Gul who had also arrived there alongwith Zeeshan alias Shani and other people of locality. Motive was shown as previous land disputes between the parties. His report was reduced into writing by PW-9 in shape of Murasila (Ex.PA) which was sent to Police Station, through constable Saeed Akbar No.502/LHC where FIR was registered at 14:;45 hours. PW-9 also prepared injury-sheet of deceased then injured (Ex.PW-9/1) for medical examination through constable Tauseef No.280. Similarly, after the death of injured Naeem Gul, he (PW-9) also prepared his injury- sheet (Ex.PW-9/2) and inquest-report (Ex.PW-9/3) for post mortem examination, under the escort of said constable Tauseef. As injured Naeem Gul Khan lateron succumbed to injury, section 324 PPC was replaced with section 302/341/34 PPC.
3. After registration of the case, a full fledged investigation was carried out. During investigation/interrogation, on 26.07.2021 one .30 bore pistol country made loaded with magazine containing 04 cartridges was recovered by the Investigation Officer namely Tariq Mehmood (PW- 16) on alleged pointation of appellant/convict Abbas vide recovery memo (Ex.PW-16/6). On 10.11.2021, I.O. (PW-16) vide recovery memo (Ex.PW-16/16) also recovered and took into possession Kalashnikov 7.62 bore having magazine with 20 live rounds from possession of appellant/convict Waqas at the time of his arrest. On completion of investigation, separate challans under section 302/341/34 PPC as well as under section 15 The Khyber Pakhtunkhwa Arms Act, 2013 were put in Court against the appellants. Charge was framed and served upon them to which they pleaded not guilty and claimed trial. In support of its case, prosecution produced as many as twenty witnesses in Trial No.01/VII including Constable Amir No.102 was produced as PW-4. He took parcels to FSL and also stood marginal witness to recovery memo Ex.PW-16/16 vide which Kalashnikov alongwith 20 rounds of 7.62 bore was allegedly recovered from possession of appellant/convict Waqas. Dr.Asad Ali Shah (PW-7) conducted an autopsy on the dead body of the deceased.
Muhammad Hayat Khan SDPO and Tariq Mehmood O.I.I. conducted investigation in this case.
Eyewitnesses namely Shahzad Gul (complainant) and Shehryar Khan appeared as PW-10 and PW- 11, respectively and provided ocular account of the occurrence. PW-17, Shahid Daud IHC, stood marginal witness to recovery memo Ex.PW-16/6 vide which .30 bore pistol alongwith magazine containing 04 cartridges was alleged recovered and taken into possession by the I.O. on pointation of appellant/convict Abbas. Out of twenty prosecution witnesses, some were produced in separate trials against the appellants conducted in Trial No.04/15AA-KPK of 2022 and 05/15AA-KPK of 2022.
4. On conclusion of the prosecution evidence, statements of the appellants were recorded under section 342 Cr.PC, wherein they neither wished to be examined on oath nor desired to produce defence and denied the allegations leveled against them. The learned trial court, after hearing the arguments, vide its order/judgment dated 06.06.2024 convicted and sentenced the appellants as mentioned in Para No.1 of this judgment. The learned trial Court also sent Murder Reference No.02/ 2024 under section 374 Cr.PC for confirmation of death sentence of the appellant/convict Waqas.
Aggrieved, the appellants/convicts have now called in question their aforesaid convictions and sentence before this Court through this and connected criminal appeals, while the complainant has filed the connected Criminal Revision No.19-A/2024 for enhancement of sentence of the appellant/ convict Abbas.
5. Arguments of learned counsel for the parties as well as learned Assistant Advocate General were heard in detail and record perused with their able assistance.
6. At the very outset, it is noted that the appellants, two real brothers inter-se have been charged and convicted for a single firearm injury which has resulted in the death of deceased (Naeem Gul).
Out of five (05) eyewitnesses named in the FIR, three (03) were abandoned and only two (02) were produced by the prosecution. This would have been deemed normal but for abandoning Khan Gul (adult) brother of deceased and producing the minor Shehryar Khan (11/12 years old) son of deceased. As per the site plan, Khan Gul being the closest in distance to the deceased at the time of occurrence and also being closely related to him was the best evidence who could clearly identify the assailant(s) given that his view was completely unhindered. Abandoning him and instead producing a minor, who as per the prosecution version had taken shelter in the cattle-shed would give rise to the adverse inference under Article 129(g) of Qanun-e-Shahadat Order, 1984 that if produced he would not have supported the prosecution version. The another reason for abandoning him could be that he was never present at the time of occurrence but was falsely shown there. Either way, it creates a significant dent in the prosecution's case. Reliance is placed on the case titled "Muhammad Asif vs. The State" reported as 2017 SCMR 486.
7. Prosecution, however, did come up with ocular account through complainant Shahzad Gul (PW- 10) and Shehryar Khan (PW-11), therefore, first of all their testimonies being most important qua establishment of charge against the appellants have to be meticulously analyzed and reappraised with due diligence to assess the legal credence and soundness of the orders/judgment of the learned trial Court impugned in these appeals.
8. First and the foremost is the question of presence of the eyewitnesses at the spot. There is no plausible explanation for all the five (05) family members being present on the spot at the relevant time. The post mortem report (Ex.PW-7/3) shows that the dead body of deceased Naeem Gul was brought by 'self' and was identified by Naseem Khan and Asfandyar whose relationship with the deceased is not given and are apparently strangers. Dr.Asad Ali Shah (PW-7) also stated in his examination-in-chief that Naeem Gul was brought by police constable Toseef at 02:35 p.m. He further stated that lateron, on the same day i.e. 18.07.2021 the above mentioned Naeem Gul was again brought back to him for conducting his post mortem examination.
The same fact was narrated by PW-15 constable Tauseef. In this state of affairs when none of the close relatives or eyewitnesses was shown present with the injured at the time of initial medical examination or subsequently at the time of post mortem examination when he succumbed to the injury, or at the time of report or shown in any document prepared that day including the injury- sheet, MLC of deceased (then injured), post mortem report (depicting time of death as 03:15 p.m. and post mortem examination as 04:15 p.m.), recovery memos etc coupled with the fact that dead body was identified by strangers then on one hand, presence of eyewitnesses with the injured/deceased from the time of his arrival at the TDH Havelian until his post mortem examination at 0415 p.m. becomes highly doubtful while on the other their conduct also remained unnatural.
9. It also does not appeal to reason that the appellants duly armed stopped the complainant party on main Zin-ul-Abideen Road did not fire at them but let them escape and take shelter behind the cattle-shed and then follow them and fire upon them. If the appellants were waiting on the main road duly armed, they would have started firing immediately upon intercepting the complainant party. Furthermore, admittedly the house of the complainant party is not in the vicinity of the place of occurrence. In the Crime Report, complainant states that all of them were coming from Havelian Bazar to their home but no business/reason for their visit together to the Bazar all squeezed on one motorcycle has been given. Only buying of bread has been mentioned but it is highly doubtful that the two brothers alongwith their sons would cramp up on a motorcycle to buy bread. This Court in the case titled "Muhammad Tahir v. Akhtar Ali" reported as 2020 MLD 864 while dismissing appeal against acquittal has observed as under: "...the complainant reported that he along with his brother and father were going on motorcycle and it does not appeal to a prudent mind that when three persons were riding on motorcycle, how the witnesses remained alive."
10. Moreover, though not mentioned in the initial company, another brother namely Khan Gul alongwith one Zeeshan were also said to have arrived at the spot upon hearing the fire-shots but were said to have also witnessed the occurrence. This also defies reason. If Khan Gul and Zeeshan were attracted to the spot after the fire shots then how did they witness the occurrence. It was probably due to this obvious blunder that both of them were abandoned at the trial. Moreover, in his cross-examination, the complainant (PW-10) admitted that another route to their house consumed lesser time than taking the Zain-ul-Abideen Road. Thus even if they were going home from Havelian Bazar there was no reason for them to take this route.
11. Another fact creating doubt is the term 'Aslah-Atisheen' used by both the eyewitnesses i.e. PW-10 and PW-11 who stated that they can very well identify Kalashnikov and a pistol but the absence of these specific weapons in the FIR and 161 statement is unexplained. According to the ocular account, both the appellants/convicts were armed with "Aslah-Atisheen", however, both the eyewitnesses have failed to specify the weapons either in the Crime Report (Ex.PW-3/1) or during their Court statements recorded as PW-10 and PW-11 despite that PW-10 has alleged in his cross- examination that he had seen Kalashnikov with Waqas and pistol with Abbas Khan. As per complainant/PW-10 he alongwith deceased, his sons Anas and deceased's son Shehryar Khan were going to their house on a motorcycle, however, while narrating the seating location in his report, he stated that he himself was driving the motorcycle and his son and brother were sitting behind him on the rear seat and did not mention Shehryar Khan. Similarly, when said Shehryar stepped in the witness-box as PW-11, he in his examination-in-chief did not say a single word that all of them (four in number) were riding on a motorcycle. PW-10 during his examination-in-chief deposed that they alighted from the motorcycle in order to save their lives by entering into the cattle-shed of Fareed Khan, however, PW-11 stated that on seeing appellants complainant turned motorbike in street where both the appellants started firing on them. Meaning thereby that both eyewitnesses are not consistent firstly travelling of all on the motorcycle and secondly turning motorbike in the street.
12. In addition, both eyewitnesses (PW-10 and PW-11) stated that the site plan (Ex.PW-16/1) was prepared in their presence and on their pointation. It was prepared the very same day (18.07.2021), when the occurrence had just taken place and it was most fresh in memories of complainant and the eyewitnesses, however, presence of the eyewitnesses and their ocular account is also belied by the site plan (Ex.PW-16/1). In their ocular account, PW-10 and PW-11 stated that they after alighting the motorcycle took refuge inside the 'bandi Maveshian' (cattle-shed) of Fareed Khan, whereas the site plan shows their alleged presence in the opposite direction near the house of 'Mistri Akram'.
They alleged that they were followed by the appellants after their first encounter on Zain-ul- Abideen road into the street, whereas the site plan shows a wholly different story where the appellants have been shown going in a totally different directions going around the cattleshed of Fareed Khan. It is also admitted by the Investigation Officer in his cross-examination that no blood was found at point 3 where the deceased allegedly got hit rather blood stained earth was recovered from point 3D where the deceased allegedly collapsed. The distance between point 3 and 3D is shown to be 17 feet and admittedly there is even no blood trail between the two points.
Besides that, as per site plan (Ex.PW16/1), deceased at the time he sustained injury was shown at Point 3, while appellant Waqas is at Point 1A and appellant Abbas at Point 2B. The distance between Points 3 and 1A is given 40 feet, while between Points 3 and 2B is given 38 feet, whereas Point G is the place where-from empties of 7.62 bore and.30 bore pistol were recovered by the I.O.
The distance between Points 1A/2B and Point G is 5 feet in circle, however, no exact/ separate distance of presence of empties of 7.62 bore and empty shells of .30 bore pistol is given corresponding to the points given to the appellants. Moreover, as per ocular account, deceased sustained injury at Point 3 and fell there on the ground, whereas as per site plan deceased (then injured) after receiving injury fell at Point 3D which is at a distance of 17 feet from Point 3. Besides that, oddly enough no blood trail was recovered from Points 3 upto Points 3D as admitted by I.O./PW-16 during his cross-examination which aspect of the matter creates reasonable doubt regarding places given by the eyewitness to the I.O. Not only this, as per testimonies of PW-10 and PW-11, they entered into the cattle-shed of Fareed Khan, but no point whatsoever is given to any of them inside the cattle-shed in site plan rather they have been shown in the middle of the street in front of the house of Mistri Akram. These differences and deficiencies create doubt regarding presence of eyewitness as well as appellants on the points given in the site plan (Ex.PW-16/1). The Supreme Court of Pakistan in the case titled "Abdul Latif v. Noor Zaman and another" reported as 2021 SCMR 1428 observed as follows: "4. statement of Mst. Nasreen (PW-7), deceased's mother, is contradicted both by the Investigating Officer (PW-8) as well as the site plan of the crime scene. In the absence of confidence inspiring evidence, the respondent could not have been convicted and sentenced merely on the strength of moral certainty regarding his guilt."
Further reliance is placed on the case titled "Riasat Ali v. The State" reported as 2024 SCMR 1224.
13. Another aspect of the case which makes presence of eyewitness on the spot at the time of occurrence dubious is that the appellants allegedly followed them when they moved in a street but site plan depicts another story where instead of presence of appellants in the street, they are shown present behind cattle-shed of one Fareed Khan at a distance of about 38/40 feet away from the deceased. In view of all above, testimonies of so-called eyewitnesses are not safe for reliance. In the case title "Abdul Jabbar and another vs. The State" reported as 2019 SCMR 129, the Supreme Court of Pakistan while allowing appeal, acquitted some of the appellants and held as under: "...It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused. At the cost of reiteration, it has been observed by us that, in a case, where the learned appellate court, after reappraisal of entire evidence available on record, has reached the conclusion that there is unexplained delay in lodging the FIR; the presence of eyewitnesses is not established; there are irreparable dents in the case of the prosecution; the recovery is ineffective and is of no consequence; the ocular account is belied by the medical evidence; the motive behind the occurrence is far from being proved and almost non-existent, the said Court fell in gross error in maintaining the conviction of the appellants. In these circumstances and after an independent evaluation of evidence available on record, we have no manner of doubt in our minds that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt."
In another case titled "Khalid @ Khalidi and two others vs. The State" reported as 2012 SCMR 327, the Supreme Court has observed as follows: "...the ocular account is not of such a character which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye-witnesses at the place and time of occurrence is not established as their statements have been disbelieved by the learned appellate court regarding Sultan Mehmood acquitted accused."
14. Yet another intriguing aspect is contrast between recovery memo Ex.PW-12/1 showing recoveries of blood stained leaves and small sack from the place of deceased and 7 empties of .7.62 bore and 04 empties of .30 bore near the places of appellants alongwith motorcycle of the complainant from spot and Madd No.39 (Ex.PW-16/D-1) of the same day (18.07.2021) i.e. arrival report of the I.O.
(PW-16) back in the Police Station that day. Recoveries of 4 empties of .30 bore and the motorcycle are mysteriously missing in Madd No.39 Ex.PW-16/D-1, which gives an impression that the same are fabrication on the part of investigation staff, therefore, the same cannot be relied up.
15. Besides that, both the eyewitnesses of the occurrence namely Shahzad Gul and Shehryar Khan are close relatives of the deceased, therefore, they might have been inimical towards the appellants who are real brothers particularly when undeniably parties were already having civil dispute between them, therefore, their testimonies must have been corroborated through independent witnesses particularly when as per Crime Report (Ex.PW-3/1) the occurrence was shown to have been seen also by people of the locality. In the case titled "Javaid Iqbal and another vs. The State" reported as 1998 SCMR 32, the Supreme Court of Pakistan while acquitting the appellants has observed that:- "Being closely related to the deceased and inimical towards the appellants on account of litigation over land the rule of prudence required some independent corroboration of their testimony but the same is not available. No recovery of any incriminating article was made from any of the appellants. Motive by itself cannot be made a basis of other corroboratory material."- Further reliance is placed on case titled "Hazoor Bakhsh vs. Waddon and 3 others" reported as 1980 SCMR 979.
16. It is the case of prosecution that both the accused made firing at the complainant party with their firearms and empty shells, of 7.62 bore (seven in number), while that of .30 bore (four in number) were recovered from near the places of presence of appellants Waqas and Abbas, while as per post mortem report (Ex.PW-7/3) deceased sustained only one firearm entry wound with an exit. No spent bullet was recovered from the spot by the I.O. As per PW-7 Dr.Asad Ali Shah, he conducted medical examination of deceased (then injured) at 02:35 p.m. vide MLC (Ex.PW-7/1) which reads probable duration of the injury as 30 minutes to 45 minutes and if 30 minutes are considered then occurrence might have taken place at 02:05 p.m. and in case of 45 minutes at 01:55 p.m. which is not prosecution case in either way as according to FIR, occurrence took place at 02:15 p.m. In such eventualities, there is no hesitation to hold that the prosecution has badly failed to prove the mode and manner of occurrence as scripted in the Crime Report (Ex.PW-3/1). In the case titled "Abid Hussain and another v. The State and others" reported as 2024 SCMR 1608, the Supreme Court of Pakistan has observed as under: "The manner in which the complainant and PW7 narrated the story does not appear to be trustworthy. In the facts and circumstances of the case, their presence at the place of the occurrence at the relevant time is not established, therefore, we have no doubt in our mind that the prosecution case against the appellant is doubtful. The Courts below have not appreciated the evidence and the material available on the record in its true perspective and have come to a wrong conclusion. Under such circumstances, the conviction and sentence awarded to the appellant Abid Hussain are unjustified, hence, the impugned judgment to his extent is not sustainable."
17. It has also been alleged by the prosecution that one .30 bore pistol loaded with magazine containing 04 cartridges on the pointation of appellant/convict Abbas, while Kalashnikov 7.62 bore having magazine with 20 live rounds from possession of appellant/convict Waqas at the time of his arrest, were recovered by the I.O./PW-16 vide recovery memos Ex.PW-16/6 and Ex.PW-16/16. Having said that, prosecution did not produce any independent witness cited on the recovery memo Ex.PW-16/6 rather preferred to produced Shahid Daud IHC who is subordinate to the I.O. Similarly, I.O. did not associate any private witness to recovery memo (Ex.PW-16/16) despite having prior spy information. Though PW-8 namely Muhammad Hayyat Khan SDPO is also witness of recovery of alleged Kalashnikov at the time of arrest of appellant Waqas, however, he did not utter a single word in his Court statement that either the same was sealed into parcel by the I.O. or appellant Waqas made any disclosure that the same was used in the commission of offence. In this view of the matter, alleged recovery of weapons of offence is not free from doubt.
18. It is matter of the record that alleged pistol belonging to appellant Abbas was recovered on 26.07.2021, while the same was received at FSL on 05.09.2021 with inordinate delay of one month and ten days. Similarly, rifle was shown recovered from possession of appellant Waqas on 10.11.2021, while the same was sent and received at FSL on 20.11.2021 after considerable delay of ten days.
Besides that, empties were allegedly recovered from the spot on the very day of occurrence whereas according to application (Ex.PW-16/26), the same were sent to FSL on 26.07.2021 the date when .30 bore pistol of appellant Abbas was allegedly recovered though as per application (Ex.PW- 16/28) both pistol and four empties were sent to FSL vide Road Certificate No.381/21 dated 04.09.2021. Therefore, FSL reports (Ex.PW-16/24 and Ex.PW-16/25) would lose their legal sanctity and authenticity. In the case titled "Nawab Siraj Ali and others vs The State through A.G. Sindh" reported as 2023 SCMR 16 the Supreme Court of Pakistan has held as under: "...admittedly the crime empties were firstly sent to Forensic Science Laboratory on 31.12.2012 but subsequently they were taken back on 17.01.2013 and were resubmitted later on along with the alleged recovered pistol from the appellant on 23.01.2013. This Court in a number of cases has held that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory loses its evidentiary value. Sending the crime empties together with the weapon of offence is not a safe way to sustain conviction of the accused and it smacks of foul play on the part of the Investigating Officer simply for the reason that till recovery of weapon, he kept the empties with him for no justifiable reason. In this view of the matter, we set aside the conviction of the appellant."
Further reliance in this regard is placed on the case titled "Sarfraz and another vs The State" reported as 2023 SCMR 670.
19. Albeit, prosecution has also relied on some articles as well as recovery memos etc. to corroborate ocular account, however, it has failed to establish its case against the appellants by producing unimpeachable, trustworthy, reliable and confidence inspiring eyewitnesses of the occurrence, therefore, the same are of no use to it. Even otherwise, it is by now settled that mere recovery of a weapon matching with a crime-empty is not sufficient to establish the guilt. Since prosecution has failed to establish its case against the appellants by producing any reliable witnesses, therefore, alleged recoveries are of no use to the prosecution version. The Supreme Court of Pakistan in the case titled "Muhammad Saleem v. Shabbir Ahmed and others" reported as 2016 SCMR 1605 while dismissing an appeal against acquittal, has observed as under: "...mere recovery of a weapon of offence matching with a crime-empty was not sufficient to provide corroboration to the other pieces of circumstantial evidence."
20. It is settled law that for giving benefit to an accused, it is not essential that there should be many circumstances creating doubts, even a single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that it is better that ten guilty persons escape than that one innocent suffer and thus by applying the aforesaid yardstick, the learned trial Court should have extended benefit of doubts to the appellants/convicts. In a recent case titled "Sikandar Ali alias Bhola v. The State" reported as 2025 SCMR 552 the Supreme Court of Pakistan while acquitting accused has held as under: "...It is by now well settled that if there is a single circumstance, which creates doubt in the prosecution case then the same is sufficient to acquit the accused, whereas the instant case is replete with number of circumstances, which have created serious doubts in the prosecution story.
Consequently, this petition is converted into an appeal and allowed. The impugned judgment is set aside. The petitioner is acquitted of the charge while giving him the benefit of doubt. He shall be released from the jail forthwith unless required to be detained in any other case."
In this respect, further reliance can be placed on "Muhammad Nawaz and another vs. The State and others" reported as 2024 SCMR 1731, "Saghir Ahmad vs The State and others" reported as 2023 SCMR 241, "Bashir Muhammad Khan v. The State" reported as 2022 SCMR 986 and "Khalid Mehmood alias Khaloo v. The State" reported as 2022 SCMR 1148.
21. Last but not least no doubt prosecution has set a motive i.e. civil suit already decreed in favour of the appellants, however, it is well settled that when hostilities followed by litigations exist between the parties, the same may drive one of the parties to enmesh its rival in a false case or the latter to do away with the former, therefore, such a motive could be considered a double-edged weapon, hence, merely on the basis of such motive, the appellants who are real brothers inter-se cannot be held responsible for the alleged offence particularly when cause of death of the deceased as per post mortem report (Ex.PW-7/3) was single shot firearm injury and possibility of false implication of appellants (two real brothers) cannot be ruled out. The Supreme Court of Pakistan in a recent case titled "Muhammad Riaz and others v. The State and others" reported as 2024 SCMR 1839, while acquitting both the appellants has observed as under: "It would not be out of place to mention here that when there are open hostilities between two groups, the motive factor may propel one side to commit a crime, and the same factor may possibly induce the other group to implicate their rivals. Even otherwise, the motive is a double- edged weapon, which can be used either way and by either side i.e. for real or false involvement."
Further reliance in this regard is placed on Noor Elahi v. Zafarul Haque (PLD 1976 SC 557); Allah Bakhsh v. The State (PLD 1978 SC 171); Khadim Hussain v. The State (2010 SCMR 1090); Tahir Khan v. The State (2011 SCMR 646); Tariq v. The State (2017 SCMR 1672) and Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652).
22. In view of the foregoing facts and circumstances, it is held that the prosecution has not been successful to prove its case against the appellants/convicts in the occurrence beyond reasonable doubt, therefore, their convictions and sentence recorded by the learned trial court through the impugned orders/judgment cannot be legally maintained and upheld.
23. Accordingly, this appeal and the aforesaid connected criminal appeals are hereby allowed, the impugned orders and judgment of the learned trial court dated 06.06.2024 being not sustainable in law, are set aside and consequently both the appellants namely Waqas and Abbas are acquitted of the charges levelled against them. Sentence of death of appellant Waqas referred to this Court through Murder Reference No.02-A/2024 by the learned trial court is NOT CONFIRMED and the same is replied IN NEGATIVE.
24. Since on acceptance of connected criminal appeal, appellant Abbas has been acquitted of the charges, therefore, connected Criminal Revision No.19-A/2024 for enhancement of his sentence having become infructuous is dismissed.
The above are the detailed reasons of our short orders of even date.