Sardar Akbar Ali, J:- Zulfiqar Khan and Saqib Ali (appellants) along with their co-accused Muhammad Iqbal, Abbas Sarfraz and Imran Khan were tried by the learned Additional Sessions Judge, Attock in case FIR No.332 dated 20.09.2020, offences under Sections 302/ 324/ 34/ 109 PPC, registered at Police Station Saddar, District Attock and vide judgment dated 19.07.2024 passed by learned trial Court, convicted and sentenced Zulfiqar Khan and Saqib Ali (appellants) as under: ZULFIQAR KHAN (APPELLANT NO.01)
U/S 302 (b) P.P.C. for committing the murder of Waqar Shah Bukhari (deceased) and sentenced to imprisonment for life as "Ta'zir". He was also directed to pay an amount of Rs.300,000/- as compensation in terms of section 544-A Cr.P.C. payable to the legal heirs of the deceased and in default whereof to further undergo Simple Imprisonment for six months.
SAQIB ALI (APPELLANT NO.02)
U/S 324 P.P.C. to undergo ten years' Rigorous Imprisonment and to pay a fine of Rs.100,000/- and in default whereof to further undergo Simple Imprisonment for four months.
U/S 337-D P.P.C. to undergo Rigorous Imprisonment for 04 years as Ta,zir and to pay Arsh, one third of 'Diyat' (for the financial year of occurrence i.e. 2020-21) Rs.925,784.33/- to injured Ali Asghar.
It was also directed that Saqib Ali (appellant) after having undergone the imprisonments shall remain in jail as simple imprisonment till the payment of 'Arsh'. He was also extended the benefit of section 382-B P.P.C. His both the sentences were ordered to run concurrently.
Through the same judgment, Muhammad Iqbal, Abbas Sarfraz and Imran Khan co-accused of the appellants were, however, acquitted by the learned trial Court. Assailing the above conviction and sentence, Zulfiqar Khan and Saqib Ali (appellants) have filed Criminal Appeal No. 702 of 2024, whereas, Husnain Abbas Shah, complainant has filed Criminal Revision No.315 of 2024 for enhancement of sentence of the appellants/ respondents Zulfiqar Khan and Saqib Ali. Since both the matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. After registration of case and completion of investigation by Azmat Hayat, SI (PW.16), the details whereof are available in the judgment of the learned trial Court itself, final report under section 173 Cr.P.C. was submitted. When charge sheeted the accused/appellants denied the charges and pleaded innocence, whereupon, the prosecution produced 19 witnesses. On closure of prosecution case, the appellants did not opt to appear in the witness box as required by section 340(2) Cr.P.C.
However, Zulfiqar Khan (appellant) produced copy of F.I.R No.281/21 registered under sections 324, 341, 440, 148, 149 P.P.C., Police Station Saddar Attock (Exh.DD), photocopy of F.I.R No.261/23, under sections 13 of the Arms Ordinance, Police Station Basal (Mark-DA) in his defence evidence whereas Saqib Ali (appellant) relied upon the documents produced by Zulfiqar Khan (appellant) in his defence evidence. The trial ended in the terms as detailed in opening paragraph of this judgment.
3. I have heard arguments of learned counsel for the parties as well as the learned DPP for the State at a considerable length and have also gone through the record very minutely.
4. Precisely, the prosecution case is that Husnain Abbas Shah, complainant (PW-14) on 20.09.2020 at 04:55 p.m. got recorded his statement (Exh.PG) before Azmat Hayat S.I. (PW-16) on the basis of which F.I.R (Exh.PG/1) was chalked out at 05:05 p.m. on the same day stating therein that on 20.09.2020, he (complainant) was present at his home when Ali Asghar (PW-15) driver of complainant's paternal cousin Anjum Hussain Shah came there and informed the complainant that his cow while grazing entered into the fields of Zulfiqar Khan, Saqib Ali (appellants) and Imran (co-accused since acquitted), as a result of which, they beaten him; that he (complainant) told this fact to Waqar Shah Bukhari (deceased), Majid Ali Shah (since given up being won over) and Malik Barkat Ali (since given up being won over) who came to his house and in the meantime, Imran co-accused (since acquitted) telephonically contacted him (complainant) and asked him to come to his 'dera'/well so as to resolve the issue of quarrel of Ali Asghar (PW-15); that he (complainant) alongwith abovementioned witnesses reached at the 'dera'/well in the street of Masjid Usmania at 01:00 p.m. where Zulfiqar and Saqib (appellants) and their co-accused Iqbal and Abbas (since acquitted) were already present and on their arrival, Iqbal co-accused (since acquitted) raised a 'lalkara' to teach a lesson for altercation taken place in the morning, upon which all the accused pulled out their pistols. Zulfiqar Khan (appellant) made a straight fire shot with his pistol with the intention to kill Waqar Shah Bukhari which hit Waqar Shah Bukhari on his head who was turning back and fell to the ground. Thereafter, Saqib Ali (appellant) made a straight fire shot with his pistol with the intention to kill Ali Asghar (PW-15) which hit him on his chest who also fell to the ground. All the accused also made indiscriminate firing upon complainant party but complainant party saved themselves while hiding themselves by taking the shelter of the wall and upon their raising hue and cry all the accused fled away from the spot while making aerial firing. Both the injured were shifted to DHQ Hospital, Attock and after providing them first aid they were referred to Rawalpindi while Waqar Shah Bukhari succumbed to the injuries on the way to Rawalpindi and his dead body was shifted back to DHQ Hospital, Attock.
Motive behind the occurrence was stated to be a scuffle which took place due to grazing of the cow in the field of the appellants.
5. As shall be seen from the narration of above facts, according to the prosecution's perspective the occurrence took place on 20.09.2020 at 01:00 p.m. and was alleged to have been seen by witnesses namely Husnain Abbas Shah, complainant (PW-14) and Ali Asghar, injured (PW-15), but the matter was reported to the police on the same day at 05.05.p.m. i.e. with the delay of about four hours, despite the fact that police station was 4.5 kilometers from the place of occurrence. Ali Asghar (PW-15) and Waqar Shah (deceased) in an injured conditioned were taken to District Headquarter Hospital, Attock. Dr. Syed Hammad Wajid Talha while appearing as (PW-10) categorically stated that he medically examined Waqar Shah (deceased)/ the then injured on 20.09.2020 at about 01:25 p.m. who was brought by the police. On the same day at 01:40 p.m. he also medically examined Ali Asghar, injured (PW-15) and also stated that Ali Asghar injured (PW-15) was brought by the police. Said portions of statements of Dr. Syed Hammad Wajid Talha (PW-10) were not challenged by the State or complainant. This fact is also fortified from the statement of Azmat Hayat, SI/IO (PW-16) who during his cross-examination admitted that when he reached in the hospital, it came into his knowledge that Waqar Shah (deceased) and Ali Asghar injured (PW- 15) were brought in the hospital in an injured condition who were got medically examined by Asad Ali, 1654/C (PW-06) who handed over to him the injury statements of Ali Asghar (PW-15) and Waqar Shah Bukhari (Exh.PM) and (Exh.PO). It means that at the time of medical examination of Ali Asghar (PW-15) and Waqar Shah Bukhari, the then injured (deceased), the incident was in the notice of the police. It is also worth mentioning here that while appearing before the learned trial Court both the aforesaid witnesses of ocular account namely Husnain Abbas Shah, complainant (PW-14) and Ali Asghar, injured (PW-15) did not utter even a single word about the above said delay. Keeping in mind that they were closely attached inter-se and also to the deceased, 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".
Therefore, I hold that this inordinate delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance is placed on case law titled as "Altaf Hussain vs. The State" (2019 SCMR 274), "Abdul Ghafoor vs. The State" (2022 SCMR 1527), "Pervaiz Khan and another vs. The State" (2022 SCMR 393), "Amir Muhammad Khan vs. The State vs. The State" (2023 SCMR 566),"Muhammad Hassan and another vs. The State and others" (2024 SCMR 1427) and "Muhammad Nawaz and another vs. The State and others" (2024 SCMR 1731).
6. Another aspect of the case which intrinsically makes the prosecution story unbelievable is the time of first medical examination of Waqar Shah deceased, (the then injured) as well as the time of postmortem examination on the dead body of Waqar Shah (deceased) in the hospital. According to F.I.R (Exh.PG/1), the occurrence took place on 20.09.2020 at 01:00 p.m. which was statedly reported on the same day at 05:05 p.m. whereas the doctor medically examined Waqar Shah in an injured condition at 01:25 p.m. but on the expiry of Waqar Shah, his postmortem was conducted on the same day at 04:45 p.m. i.e. about twenty minutes prior to the registration of the F.I.R.
7. Ocular account in this case was furnished by Husnain Abbas Shah, complainant (PW-14) and Ali Asghar, injured (PW-15). The presence of both these PWs on the spot at the time of incident is doubtful in nature because they allegedly saw the incident from a close distance but I failed to understand that in the presence of both these PWs, who were closely attached inter as well as to the deceased how such tragedy with the deceased could happen without any intervention on their part to rescue the deceased. In the FIR, Zulfiqar Khan (appellant) has been ascribed specific role of causing pistol fire shot hitting on the head of Waqar Shah Bokhari when he was turning back.
Husnain Abbas Shah, complainant (PW-14) while appearing before the learned trial Court in his examination-in-chief although has stated the same story but Ali Asghar, injured while appearing as (PW-15) in his examination-in-chief stated as under: "The first fire was made by accused Zulfiqar with his pistol which landed on the back side of his head while he was turning back and he fell down."
From the above portion of the statement of Ali Asghar, injured (PW-15), it is clear that he did not name the person on whose head the injury was caused by Zulfiqar Khan (appellant) whereas as per story put forth in the F.I.R, and the statement of Husnain Abbas Shah, complainant/ eyewitness (PW-14), Waqar Shah Bokhari deceased had received the injury on his head. It remained shrouded in mystery that as per statement of Ali Asghar, injured (PW-15) as to who had caused injury to Waqar Shah Bokhari deceased on his head. Had Ali Asghar, injured (PW-15) been present at the time and place of occurrence, there should not be such like contradiction in his statement rather he had to make his statement in line with the prosecution case.
8. As per prosecution's own case, Saqib Ali (appellant) made a straight fire shot which hit Ali Asghar (PW-15) on his chest. Although Husnain Abbas Shah, complainant while appearing before the learned trial Court as (PW-14) in his examination-in-chief has narrated the same story but Ali Asghar, injured (PW-15) in his examination-in-chief has changed the role of Saqib Ali (appellant) who caused him fire shot injury. The relevant portion of his examination-in-chief is reproduced hereunder: "Then Saqib accused present before the Court made fire with his pistol at me which hit me on my back as I was turning and I fell down."
9. From the perusal of the aforesaid statement of Ali Asghar (PW-15), it clearly established that Ali Asghar (PW-15) has changed the role of Saqib Ali (appellant) of causing him fire arm injury by stating that the Saqib Ali (appellant) made fire shot which hit him at his back whereas the prosecution case was that Saqib Ali (appellant) made straight fire shot which hit Ali Asghar (PW- 15) on his chest.
10. Besides the above contradictions in the statement of the eyewitnesses, they have also made certain dishonest and substantial improvements in their statements. Husnain Abbas Shah, complainant (PW-14) in his cross-examination stated in the following manner: "I stated before the police in my complaint (Exh.PG) that on the day of occurrence, I was present at my house at 11:00/11:30 a.m. Confronted with Exh.PG where the time 11:00/11:30 a.m. is not mentioned.
I stated before the police in my complaint Exh.PG that we called 1122 and took both the injured to DHQ, Hospital Attock through 1122. Confronted with Exh.PG where the calling 1122 and taking the injured by 1122 is not mentioned."
Similarly, Ali Asghar (PW-15) has deposed in the following manner: "Only once, my statement was recorded by the police on 23.09.2020. I stated to the police in my statement that on 20.09.2020, I was grazing cow at 10:00 a.m. Confronted with Exh.DC where grazing of the cattle is not mentioned. I also got recorded in my said statement that I went to take back the cow. Confronted with Exh.D.C where the fact of taking back is not mentioned. I also got recorded in my said statement that thereafter, I came back to my house for leaving the cow and thereafter contacted Husnain Shah. Confronted with Exh.DC where it is not so recorded I also got recorded in Exh.DC that I was brought at DHQ Hospital, Attock on the vehicle Rescue-1122. Confronted with Exh.DA where vehicle rescue 1122 is not mentioned. It is incorrect to suggest that I improved my statement dishonestly in order to tow down the prosecution case.".
11. From the above narrations, admissions, contradictions as well as dishonest improvements of Husnain Abbas Shah, complainant (PW-14) and Ali Asghar, injured (PW-15), I am of the view that if these PWs of ocular account were present on the spot then they should not have to made dishonest improvements in their statements in such a manner to strengthen the prosecution case.
The aforesaid flaws, contradictions and improvements in the statements of aforesaid PWs 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).
12. Moreover, the statement of Ali Asghar, injured (PW-15) under section 161 Cr.P.C. was recorded on 23.09.2020 after three days of the occurrence by Azmat Hayat, SI/I.O. (PW-16). Ali Asghar, injured while appearing as (PW-15) in his cross-examination stated that: "I do not know how much time I remained in the hospital as my condition was serious.........When I reached the hospital, I was semi-conscious. It is incorrect to suggest that I was well oriented in time and space at the time of my medical examination."
Above testimony of Ali Asghar, injured (PW-15) was controverted through the statement of Dr. Syed Hammad Wajid Talha (PW-10) who medically examined Ali Asghar, injured (PW-15) on 20.09.2020 at 01:40 p.m. and opined that he was fully conscious, oriented in time, place and person. The doctor further stated that according to victim Ali Asghar, injured (PW-15), he was shot by some person. The delay of three days in recording the statement of Ali Asghar (PW-15) under Section 161 Cr.P.C. has also not been explained by the prosecution when he was fully conscious and oriented at the time of medical examination. The evidentiary value of such statement recorded under section 161 Cr.P.C. after a delay of three days is considered unreliable unless such delay is reasonably explained. This is because the delay could allow any witness to fabricate or tailor his statement based on subsequent events or other witness testimony. which is the result of due consultation and deliberation, creating serious doubts about the veracity of the prosecution version. Moreover, the statement under section 161 Cr.P.C. recorded by the local police after a considerable delay, without any tangible and plausible explanation must vanish its sanctity and would not be held confidence inspiring evidence. Furthermore, it is settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. This statement also reduces its value to nil until and unless it is explained rendering justiciable reasoning. Even otherwise, the sequence of events narrated in his statement both under section 161 Cr.P.C. as well as his testimony before the learned trial Court is rather highly improbable. Reliance is placed on the judgment reported as "Abdul Khaliq Vs. The State" (1996 SCMR 1553). This judgment was followed by the Hon'ble Supreme Court in another judgment reported as "Noon Muhammad Vs. The State" (2020 SCMR 1049). Keeping in view the conduct of Ali Asghar, injured (PW-15), it would not be safe to only rely upon his statement to sustain conviction of the appellants.
13. It is true that injured prosecution eyewitness Ali Asghar (PW-15) appeared in the witness box in support of the prosecution case but it is by now well settled that mere injuries on the person of the injured PW does not mean that he was stating the whole truth and his evidence is to be relied upon or discarded while keeping in view the other facts and circumstances of particular case. In the preceding paragraphs No.8 and 9, it has already been held that Ali Asghar (PW-15) had changed the role of Saqib Ali (appellant) of causing him fire arm injury whereas regarding the role of Zulfiqar Khan (appellant) he made ambiguous statement for causing fire shot injury to the deceased, thus, his evidence is not trustworthy and confidence inspiring. Reliance in this regard is placed upon the cases reported as "Said Ahmad vs. Zammured Hussain and 4 others" (1981 SCMR 795), "Muhammad Pervez vs. The State and others" (2007 SCMR 670), "Naveed Sadiq vs. The State"
(2023 YLR 2562) and "Muhammad Atif Naveed and another vs. The State" (2024 P.Cr..L.J 1421).
14. I have also observed that there is a direct conflict between the ocular account and the medical evidence. As per contents of F.I.R (Exh.PG/1) and statement of Husnain Abbas Shah, complainant (PW-14), Saqib Ali (appellant) was attributed role of causing pistol fire shot on the chest of Ali Asghar (PW-15) but Dr. Syed Hammad Wajid Talha (PW-10) at 01:40 p.m on 20.09.2020 medically examined Ali Asghar (PW-15) and observed following injuries on the body of Ali Asghar (PW-15):
1. A lacerated wound measuring 1cm x 1cm is present on left side of chest above nipple with everted margins. No blackening or tattooing present.
2. A lacerated wound is present on the back of chest below scapula measuring 1.5 cm x 1cm with inverted margins. Blackening was present.
The doctor further stated that this injured made his statement before him that he was shot by some person at 01:00 p.m. on 20.09.2020. On medical examination, he was fully conscious and oriented in time, place and person.
The doctor in his cross-examination stated that there were two injuries on the body of injured Ali Asghar, i.e. one entry wound and second exit wound. Injury No.2 was the entry wound whereas injury No.1 was exit wound. He further admitted it correct that injury No.1 was not an independent wound rather it was result/ exit wound of injury No.2. Blackening was observed on injury No.2 of injured Ali Asghar. Blackening occurred when the shot is fired from close range within 3 feet.
Pictorial Diagram (Exh.PN/1) also depicts that injury No.2 was on the left back side of the deceased which as per statement of the doctor was entry wound.
According to the Modi's Book of Medical Jurisprudence and Toxicology 27th Edition, in case of pistol fire shot burning can occur if the fire shot is made from a distance of within 02 feet. Relevant extract from the Book of Modi's Medical Jurisprudence and Toxicology 27th Edition reproduced as under:- "...25.7.1.1 Distance of the Firearm If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet."
Reliance is also placed upon the case law titled as "Riasat Ali and another vs. The State and another" (2024 SCMR 1224), wherein it has been held as under:- "14. The postmortem report of deceased Asadullah Khan mentions about blackened and burnt area of his entrance wound near lower end of his scapula. The distance from which the deceased Asadullah Khan was fired upon was 5.5 feet. According to Modi's Medical Jurisprudence and Toxicology blackening is found, if a firearm like shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet."
According to site plan (Ex.PK), Ali Asghar (PW-15) was present at Point-1 whereas Saqib Ali (appellant) made fire shot at him while standing at Point-4. The distance between Point-1 and Point-4 is about 08 feet whereas as per postmortem report (Exh.PP) burning is present, therefore, ocular account furnished by the two eyewitnesses is not inconsonance with the medical evidence which clearly contradicted the statements of the eyewitnesses. The contradiction in the ocular account of the occurrence as narrated by the prosecution witnesses and the medical evidence furnished by the doctor clearly established that the prosecution has miserably failed to prove the charge against the appellants. Guidance is sought from Muhammad Idrees v. The State (2021 SCMR 612) and Muhammad Hanif v. The State (2023 SCMR 2016).
15. Azmat Hayat, SI (PW-16) collected 24 empties from the place of occurrence. He arrested Zulfiqar Khan (appellant) on 02.10.2020 who on 11.10.2020 got recovered pistol .30 bore (P-7) on the pointing out of the appellant which he took into possession vide recovery memo (Exh.PS). On 18.12.2020, he arrested Saqib Ali (appellant) and on his pointing out got recovered pistol (P-8) on 14.12.2020. The pistols recovered from both the appellants were sent to the PFSA for analysis. The cartridge cases (C8, C10 and C19 and C24 collected from the place of occurrence and sent by the I.O. were reported that it was not possible to identify or eliminate these cartridges cases as having been fired in the items (P-1) i.e. pistol (P-7) recovered on the pointing out of Zulfiqar Khan (appellant), thus, the recovery of pistol .30 on the pointing out of Zulfiqar Khan (appellant) remains inconsequential.
16. So far as the recovery of pistol recovered from Saqib Ali (appellant), it was opined in the report of PFSA (Exh.PUU) that the empties collected from the place of occurrence (C1 to C6) were identified as having been fired from his pistol and the report in this regard was positive. It is also pertinent to mention here, that Malik Barkat Ali and Sajid Ali Shah were the attesting witnesses of the recovery memos of empties (Exh-PW), (Exh-PX), (Exh-PY) and (Exh-PZ) collected by the Investigating Officer of the case from the place of occurrence but they were given up by the prosecution, hence, they failed to appear before the learned trial Court to prove the recovery of the empties. Furthermore, the testimonies of both the eyewitnesses i.e. Husnain Abbas Shah, complainant (PW-14) and Ali Asghar, injured (PW-15) have already been disbelieved as a whole. It is fundamental principle of justice that corroboratory evidence, must come from independent source providing strength and endorsement to the account of the eye-witnesses, therefore, eyewitnesses, in the absence of extraordinary and very exceptional and rare circumstances, cannot corroborate themselves by becoming attesting witness/witnesses to the recovery of crime articles. In other words, eyewitnesses cannot corroborate themselves but corroboratory evidence must come from independent source and shall be supported by independent witnesses other than eye-witnesses besides the recovery witnesses of the empties were also given up by the prosecution, thus, these recoveries are equally of no judicial efficacy. Even otherwise, according to the memorandum of recovery the pistol was allegedly recovered from an abundant place, as such the recovery of pistol had not been effected from an exclusive custody of the Saqib Ali (appellant), as such, does not provide any support to the prosecution case and in view of above the positive report of PFSA (Exh.PUU) is also inconsequential.
17. Another intriguing aspect of the case is that according to the contents of FIR the other most natural witnesses of the occurrence were Majid Ali Shah and Barkat Ali in whose presence the occurrence took place but they were not produced by the prosecution during the trial. Likewise, Majid Ali Shah and Malik Barkat Ali were also the witnesses of recovery of empties from the spot and taken into possession by the Investigating Officer of the case through recovery memos (Exh.PX), (Exh.PY) and (Exh.PZ) whereas these PWs were also the witnesses of recovery of blood stained earth taken into possession by the Investigating Officer of the case through recovery memo (ExhPAA) from the place where murder of Waqar Hussain (deceased) was committed and also the recovery witnesses of blood stained earth taken into possession by the Investigating Officer of the case through recovery memo (Exh.PBB) from the place where Ali Asghar PW sustained injuries at the hands of Saqib Ali (appellant). Therefore, the prosecution withheld best available evidence and in view of Article 129(g) of Qanoon-e-Shahadat Order, 1984, adverse inference, that had this witness been produced before the learned trial court he would not have supported the prosecution case, can safely be drawn against the prosecution. Reliance is placed on case law titled as "Lal Khan vs The State" (2006 SCMR 1846) and "Muhammad Rafique and others vs. The State and others" (2010 SCMR 385).
18. Coming to the motive part of the case, though complainant has disclosed the motive stating that prior to the happening of the occurrence, the appellants and his co-accused beaten Ali Asghar (PW-15) as his cow grazed in the field of the accused persons. From the perusal of whole prosecution evidence, it is nowhere available on record that the deceased had any enmity with the appellants rather Ali Asghar (PW-15) should have been the prime target of the assailants whereas the deceased had no concern or dispute which could have led to his murder at the hands of the appellants and their co-accused. Furthermore, according to the witnesses namely Husnain Abbas Shah, complainant (PW-14) and Ali Asghar, injured (PW-15), they were in clear view at a meager distance, from the assailants and unarmed whereas the appellants and their co-accused were allegedly armed with firearm weapons. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellants or their co-accused for not doing away with the witness namely Ali Asghar their main adversary.
19. To sum up the above findings, it is noted that the eyewitness have made dishonest improvements in their testimonies; the medical evidence is in conflict with the ocular account; recovery is ineffective and is of no consequence; the motive behind the occurrence is far from being proved and almost non-existent, and the lack of any cogent and reliable evidence adduced by the prosecution in support of the reasons advanced for the presence of the PWs and lastly acquittal of co-accused Muhammad Iqbal, Abbas Sarfraz and Imran Khan on the same set of evidence, are all strong circumstances which create a serious dent in the prosecution's case qua the presence of the eyewitnesses at the time and place of occurrence. Thus, when the very presence of the eyewitnesses is doubtful, then the veracity of their testimony would surely fall short of credence to saddle capital punishment upon the present appellants. Reliance is placed on Muhammad Rafique alias Feeqa v. The State (2019 SCMR 1068).
20. For what has been discussed above, I have no doubt to hold that here in this case the prosecution has miserably failed to establish the charge against the accused/appellants 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.
21. Consequently, Crl. Appeal No. 702 of 2024 is allowed, impugned judgment of conviction & sentence is set-aside and the accused/ appellants are acquitted of the charges against them.
Zulfiqar (appellant) shall be released forthwith if not required to be detained in any other case whereas Saqib Ali, (appellant) is on bail. His surety is discharged from the liability owed by him. The case property, if any, be disposed of in accordance with law, and record of the learned trial Court be sent back immediately.
22. In view of above discussion, Crl. Revision No.315 of 2024 filed by the complainant for enhancement of sentences awarded to appellants/ respondents Zulfiqar Khan and Saqib Ali having no merits is dismissed.