The State vs Taimoor Shahzad

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

Murder Reference No. 90 of 2017 (The State Vs. Taimoor Shahzad)

Criminal Appeal No. 1008 of 2017 (Taimoor Shahzad Vs. The State and another.)

Date of hearing: 06.10.2020 Appellant by: Mr. Basharat Ullah Khan, Advocate. State by: Mr. Sajjad Hussain Bhatti, Deputy Prosecutor General.

SADIQ MAHMUD KHURRAM, J.– Taimoor Shahzad son of Waheed Akhtar (convict) was tried by the learned Additional Sessions Judge, Rawalpindi along with his co-accused namely Sher Khan son of Allah Ditta (since acquitted) in the case FIR No. 112 of 2015 dated 10.06.2015 registered at Police Station Chountra, District Rawalpindi) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Atif Imran son of Rustam Khan (deceased) and Haleema Taimoor wife of Taimoor Shahzad (deceased). The learned trial court vide judgment dated 02.11.2017 , convicted Taimoor Shahzad son of Waheed Akhtar(convict) and sentenced him as infra:

Taimoor Shahzad son of Waheed Akhtar:

Death under section 302(b) PPC as Tazir on two counts for committing Qatl-i-Amd of Atif Imran son of Rustam Khan (deceased) and Haleema Taimoor wife of Taimoor Shahzad (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both Atif Imran son of Rustam Khan (deceased) and Haleema Taimoor wife of Taimoor Shahzad (deceased),

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in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.

Sher Khan son of Allah Ditta, the co-accused of Taimoor Shahzad (convict) was however acquitted by the learned trial court.

2.Feeling aggrieved, Taimoor Shahzad son of Waheed Akhtar (convict) lodged Criminal appeal No.1008 of 2017 against his conviction and sentence. The learned trial court submitted Murder Reference No.90 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Taimoor Shahzad son of Waheed Akhtar. We intend to dispose of the Criminal Appeal No. 1008 of 2017 and Murder Reference No.90 of 2017 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by the witnesses namely Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) are that on the day of occurrence the deceased namely Atif Imran was called by the appellant to his house and upon his arrival there the appellant asked Atif Imran (deceased ) whether he had given an amount of Rs.2000/- to Haleema Taimoor (deceased ) who denied any such fact upon which the appellant started firing at Atif Imran (deceased ) and also fired at the person of Mst. Haleema Taimoor (deceased ) and thereafter fled away from the place of occurrence. Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) stated that the motive of the occurrence was that the accused suspected that Atif Imran (deceased ) had developed illicit relations with Mst. Haleema Taimoor (deceased ).

4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned

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trial court wherein the appellant namely Taimoor Shahzad son of Waheed Akhtar along with his co-accused namely Sher Khan (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 23.11.2015, to which the accused pleaded not guilty and claimed trial

5.The prosecution in order to prove its case got statements of as many as twelve witnesses recorded. The ocular account of the case was furnished by Muhammad Qaisar (PW-8) and Saira Majeed (PW-9). Haleema Bibi 4337/LC (PW-1) stated that on 10.06.2015 she escorted the dead body of the deceased namely Mst. Haleema Taimoor to the hospital for the purpose of post mortem examination and also received last worn clothes from the Doctor after the same. Tauqeer Ahmad 296/HC (PW-2) stated that on 10.06.2015 Khalid Mehmood, SI (PW-12) , the Investigating Officer of the case, handed over to him a sealed envelope bearing stamps of the Medical Officer , a phial containing a bullet, another fire containing swabs, a sealed parcel said to contain six empties, a sealed parcel said to contain blood- stained cotton taken from the place of death of Haleema Taimoor (deceased ) and a sealed parcel said to contain blood-stained cotton taken from the place of death of Atif Imran (deceased ), which he on 19.06.2015 handed over to Aamir Maroof 7677/C (PW-5) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. .

Tauqeer Ahmad 296/HC (PW-2) further stated that on 04.08.2015 Khalid Mehmood, SI (PW-12) , the Investigating Officer of the case, handed over to him a sealed parcel said to contain a rifle which he on 13.08.2015 handed over to Aamir Maroof 7677/C (PW-5) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Khurram Shahzad

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draftsman (PW-3) prepared the scaled site plan of the place of occurrence (Exh.PB). Tariq Manzoor, SI (PW-4) recorded the formal FIR (Exh.PD).

Naveed Imran (PW-10) stated that on 10.06.2015 , the Investigating Officer of the case, prepared a sealed parcel said to contain blood-stained cotton taken from the place of death of Haleema Taimoor (deceased ), a sealed parcel said to contain blood-stained cotton taken from the place of death of Atif Imran (deceased), six empties, four pieces of fired bullets and a bedsheet from the place of occurrence. Abdul Rauf (PW-11) stated that he identified the dead body of the deceased at the time of post mortem examination and on 04.08.2015 the appellant led to the recovery of the rifle Kalashnikov (P-6) in his presence. Khalid Mehmood, SI (PW-12) investigated the case from 10.06.2015 till 15.11.2015, arrested the appellant on 28.07.2015, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution got Dr. Taseer Ahmad Qureshi (PW-6) examined who, on 10.06.2015, was posted as Medical Officer at DHQ Hospital, Rawalpindi and on the same day conducted the postmortem examination of the dead body of Atif Imran son of Rustam Khan (deceased). Dr. Taseer Ahmad Qureshi (PW-6), on examining the dead body of Atif Imran son of Rustam Khan (deceased) observed as under:

“Following external injuries were seen:

1.First: A large 4x3 cm open penetrating irregular wound with flesh fat and muscles. It was present on upper part of right shoulder having a deformity. It was surrounded by a deep imprint of red colour contour (may be due to the barrel of a large firearm). This wound was through wound No.2.

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2.Second wound was of 8x4cm open, lacerated wound just right present in axilla with the muscle and fat coming out and head of the humorous fractured.

3.Third: l x l cm firearm entry would on the right chest wall. About 15cm below the axilla with slight blackening.

4.Fourth: 0.5x1 cm present at the lower part of right abdomen. About 12cm above to the right anterior iliac spine.

5.It was a grazing bullet injury wound 2x0.5cm present before the left ear on the face.

6.It was l x l cm entry wound only through the thickness of the skin on the lower part of left upper arm near elbow.

7.It was 5x5cm open wound near to No.6 and seems to be its exit wound.

8.It was l x l cm lacerated wound, entry, on the external surface of left forearm with underlined bone deformity of left ulnar bone.

9.18x7cm open lacerated wound on the medial side of left forearm with the fat and muscle coming out. 10.Wound 1x2cm exit bullet wound present just above the left iliac crest about 11 cm from the midline. 11.Wound 2x1 cm exit wound just above anterior the iliac spine. In total 5 bullets entered and leave the body. Some wounds were quite large due to very close nature of firing.

Opinion:- After conduction of full autopsy, I am of the opinion that the bullets which entered the body on location No.3 and 4 damaged the vital organs of circulation and caused extensive hemorrhage leading to the death and otherwise healthy individual. All injuries seems to be ante-mortem and homicidal in nature.

Probable time:

Between injury and death: Approximately 15 to 20 minutes. Between death and postmortem: About 6 to 8 hours.”

The prosecution also got Dr. Ruqayya Saleem (PW-7) examined who, on 10.06.2015, was posted as Woman Medical Officer at DHQ Hospital, Rawalpindi and on the same day conducted the postmortem examination of the dead body of Haleema Taimoor wife of Taimoor Shahzad (deceased). Dr. Ruqayya Saleem (PW-7),on examining the dead body of Haleema Taimoor wife of Taimoor Shahzad (deceased) observed as under: “It was dead body of young lady with rigour mortis and postmortem staining was developing. Her eyes and mouth were

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closed. She was wearing green embroided shirt which was blood soaked, green shalwar and dupatta which were handed over to police duly signed by me.

Injuries:-

1.5x1 cm superficial wound at the base of nose.

2.Wound of 22x3cm including entry wound extending from left temporal region including left ear, neck and upper chest. Metallic piece was taken out from back of upper abdomen.

3.Entry wound of 1x1cm on left shoulder 9cm away from the tip of shoulder. Metallic piece was taken out from right axilla.

4.Entry wound on ventral surface 5 cm proximal to left wrist.

5.Exit wound 14x7cm at dorsal surface of left hand including all fingers.

Opinion:- After conducting postmortem, I am of the opinion that the deceased died due to injury No.2 and 3 causing damage to major organs (lungs, liver and aorta) leading to massive hemorrhage, shock and death. According to chemical examiner report, no seminal material was detected on vaginal swabs.

Probable time:

i)Between injury and death: Immediate.

ii)Between death and postmortem: 06 to 07 hours.”

7.On 09.06.2016, the learned ADPP gave up PW Muhammad Asif 7561/C as being unnecessary and on 11.10.2017 gave up PW Saba Naz as being unnecessary. On 26.10.2017, the learned ADPP gave up PWs Muhammad Ikram, Ikhlaq Ahmad, Malik Ishtiaq, Sher Khan, and Mst.

Ansar Bibi being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore regarding the analysis of the rifle Kalashnikov with the empties

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(Exh.PY) and the report of Punjab Forensic Science Agency, Lahore regarding the examination of the pieces of blood-stained cotton (Exh.PX).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Taimoor Shahzad son of Waheed Akhtar under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Taimoor Shahzad son of Waheed Akhtar opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value, and result of fake proceedings.The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.

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11.On the other hand, thelearned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statement of Muhammad Qaisar (PW-8) and Saira Majeed (PW-9).The learned Deputy Prosecutor General further argued that the recovery from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, he prayed for the rejection of the appeal.

12.We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, and with their able assistance perused the record and evidence recorded during the trial.

13.We have noted with grave concern that a futile effort was made by Muhammad Qaisar (PW-8) to claim himself to have witnessed the occurrence before the learned trial court. It is an admitted fact that the formal FIR (Exh.PD) was recorded by Tariq Manzoor, SI (PW-4) after he had received the oral statement (Exh.PN) of Muhammad Qaisar (PW-8) reduced into writing by Khalid Mehmood SI, (PW-12). According to the oral statement (Exh.PN) Muhammad Qaisar (PW-8) was not an eye witness of the occurrence. Khalid Mehmood SI (PW-12),the Investigating Officer of the case, stated before the learned trial court that he reached the place of

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occurrence after getting information of the same and reduced into writing the statement of Muhammad Qaisar (PW-8). During cross-examination Khalid Mehmood, SI (PW-12), the Investigating Officer of the case, stated that the oral statement (Exh.PN) of Muhammad Qaisar (PW-8) was recorded without any addition, omission, or alteration by him. Khalid Mehmood, SI (PW-12), the Investigating Officer of the case, admitted during cross-examination as under:-

“ It is correct that according to complaint Ex.PN Qasir is also not an eye witness of the occurrence.”

We have also ourselves perused the oral statement (Exh.PN) of Muhammad Qaisar (PW-8) as recorded and find that it is not mentioned in the same that he or any other witness had witnessed the said occurrence. Muhammad Qaisar, (PW-8) was also confronted with the oral statement (Exh.PN) that he was not mentioned as an eye witness of the occurrence in the said oral statement (Exh.PN). Muhammad Qaisar (PW-8) though stated that he had got recorded in the oral statement (Exh.PN) that he was an eye witness of the case, however, when confronted with the oral statement (Exh.PN) it was found that it was not so recorded in the same. Not only Muhammad Qaisar (PW-8) improved his earlier statement with regard to his own status of being an eye witness of the occurrence, he also improved his statement to state that the occurrence was witnessed by Saira Majeed (PW-9) , Saba Naz, Tabassum Majeed and Abdul Rauf. The names of these witnesses and the fact that they had also witnessed the occurrence was not mentioned in the oral statement (Exh.PN). Not only this but Muhammad Qaisar (PW-8) during cross-examination further stated as under:-

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“I did not meet with Saira Majeed, Saba Naz, Tabusum Majeed and Abdul Rauf when proceedings of F.I.R and investigation were carried out at the place of occurrence as I did not meet with Saira Majeed, Saba Naz, Tabusum Majeed and Abdul Rauf so I did not mention their names in complaint. It is correct that I remained aware of all the proceedings being a complainant during course of investigation from the very first day.”

This portion of cross-examination of Muhammad Qaisar (PW-8) clearly establishes that he had made a false statement before the learned trial court and not only introduced himself as an eye witness of the occurrence but also stated that besides him the occurrence was witnessed by Saira Majeed (PW-9), Saba Naz, Tabassum Majeed and Abdul Rauf. It is also on record that Muhammad Qaisar (PW-8) was the real brother of Saira Majeed (PW- 9). In this way it is impossible to conceive that Muhammad Qaisar (PW-8) would have forgotten to name his real sister namely Saira Majeed (PW-9) and other witnesses mentioned above while getting the oral statement (Exh.PN) recorded as witnesses of the occurrence if they had been present at the place of occurrence and had seen the occurrence. Muhammad Qaisar (PW-8) remained unable to explain this blatant and dishonest introduction of the names of the witnesses of the occurrence. As mentioned above, Muhammad Qaisar (PW-8) , in order to explain himself, stated that as he did not meet the said witnesses at the place of occurrence, therefore, he did not get their names recorded. If the statement of Muhammad Qaisar (PW-8) is to be believed then the whole prosecution case crashes to the ground for the simple reason that this statement means that Saira Majeed (PW-9) , Saba Naz, Tabassum Majeed and Abdul Rauf were not named as witnesses as they were not present at the place of occurrence and there is no claim

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that they had left the place of occurrence prior to the arrival of Khalid Mehmood, SI (PW-12). Muhammad Qaisar (PW-8) was further confronted with his other statement under section 161 of the Code of Criminal Procedure, 1898 recorded by the Investigating Officer of the case, on 10.06.2015 (Exh. DA) and his statement recorded under section 161 of the Code of Criminal Procedure, 1898 on 23.06.2015 (Exh.DB). The names of Saira Majeed (PW-9) and Saba Naz are not mentioned as witnesses of the occurrence in the statement recorded under section 161 of the Code of Criminal Procedure, 1898 on 10.06.2015 (Exh.DA) and the name of Tabassum Majeed is not mentioned as witness of the occurrence in the statement recorded under section 161 of the Code of Criminal Procedure, 1898 on 23.06.2015 (Exh.DB). This clearly establishes that not only Muhammad Qaisar (PW-8) failed in his attempt to pose as an eye witness of the occurrence but also he failed to prove that Saira Majeed (PW-9) , Saba Naz, Tabassum Majeed and Abdul Rauf had also witnessed the occurrence.

14.We have also perused the statement of Saira Majeed (PW-9). As mentioned above Saira Majeed (PW-9) was the sister of Muhammad Qaisar (PW-8). The occurrence in the case took place on 10.06.2015 whereas according to Khalid Mehmood, SI (PW-12) , the Investigating Officer of the case, the statement of Saira Majeed (PW-9) was recorded on 23.06.2015 i.e after a delay of thirteen days of the occurrence. Muhammad Qaisar (PW-

8)also admitted during cross-examination that Saira Majeed (PW-9) did not get her statement recorded prior to 23.06.2015. Khalid Mehmood, SI (PW-12), the Investigating Officer of the case, stated during cross- examination as under:-

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“ It is correct that Mst. Saira and Saba did not record any statement before me till 23.06.2015.”

We have been unable to find any plausible explanation for the delay in recording the statement of Saira Majeed (PW-9). As mentioned above, Muhammad Qaisar (PW-8) stated that Saira Majeed (PW-9) , Saba Naz, Tabassum Majeed and Abdul Rauf were not named as witnesses on the first day of occurrence while getting the oral statement (Exh.PN) recorded as they were not present at the place of occurrence. It is an admitted statement of Muhammad Qaisar (PW-8) that Saira Majeed (PW-9) was not present at the place of occurrence at the time of the recording of the oral statement (Exh.PN). Khalid Mehmood, SI (PW-12) , the Investigating Officer of the case, also stated that the said witness was not present when he prepared the site plan of the place of occurrence. In this manner, Only one inference can be drawn and that is that Saira Majeed (PW-9) is not a truthful witness.

The reasons as mentioned by us above also have persuaded us to reject her evidence in its entirety as we are holding that she remained unable to prove her presence at the place of occurrence at the time of occurrence. The august Supreme Court of Pakistan in the case of Abdul Khaliq Vs. The State ( 1996 SCMR 1553) has held as under:

“ It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay”.

The august Supreme Court of Pakistan in the case of Muhammad Khan Vs. Maula Bakhsh ( 1998 SCMR 570) has held as under:

“It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C

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is recorded with delay without offering any plausible explanation”.

The august Supreme Court of Pakistan in the case of Syed Saeed Muhammad Shah and another Vs. The State ( 1993 SCMR 550) at page 571 has held as under:

“In the absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation”.

Analyzing the above stated facts we have reached an irresistible conclusion that the introduction of Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) as eye witnesses was an afterthought manipulation to create evidence and the prosecution failed to establish that Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) had indeed witnessed the said occurrence in any manner. Muhammad Qaisar (PW-8) is the real brother of Saira Majeed (PW-9) and it cannot be even we fathomed that a real brother would forget to name his own sister as a witness if indeed that sister was present at the place of occurrence at the time of occurrence. Moreover in this case even Muhammad Qaisar (PW-8) did not claim to be an eye witness while getting his oral statement (Exh-PN) recorded . Muhammad Qaisar (PW-8) was duly confronted with these omissions during the cross- examination and remained unable to explain the same, only denying making such omissions in naming himself and Saira Majeed (PW-9) as a witness of the occurrence. The delayed introduction of Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) as eye witnesses raises many questions regarding the substance of the prosecution case. This addition of

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Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) as eye witnesses of the occurrence annihilates the very foundation of the case of the prosecution and lays bare the dishonest and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence. Both these witnesses were under a burden to provide a convincing clarification, attractive to a judicious mind, of their presence at the place of crime. If we allow such kind of witnesses to appear before the learned trial courts and depose against unsuspecting adverse parties then it could open floodgates for the introduction of such unscrupulous witnesses.

We are satisfied in our mind that the evidence of Muhammad Qaisar (PW-

8)and Saira Majeed (PW-9) has no worth and is to be rejected outright.

Even Khalid Mehmood, SI (PW-12) , the Investigating Officer of the case, admitted during cross-examination as under:-

“ I recorded in my findings in daily diary dated 23.06.2015 that statements of eye witnesses are doubtful. “

15.We have also noted with grave concern that the witnesses namely Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) made blatant and dishonest improvements to their earlier statements. Both the witnesses namely Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) were duly confronted with their previous statements during cross-examination. Article 151 of the Qanun-e Shahadat, 1984 provides a mechanism in which the credit of a witness can be impeached and one of the ways in which the same can be done is by confronting him with his previous statement. Article 151 of the Qanune Shahadat 1984 provides as under:

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“151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:

(1)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;

(2)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence ;

(3)by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;

Explanation.__ A witness declaring another witness to be unworthy of credit may not, upon his examination inchief, give reason for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.”

During cross-examination, both the witnesses were badly exposed to have made blatant, dishonest and unscrupulous improvements in their statements before the learned trial court. Muhammad Qaisar (PW-8) during cross- examination stated as under:

I have mentioned this fact that I witnessed the occurrence in my complaint Exh.PN. Confronted with Exh. PL where so not recorded.

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In reply to a question that name of witness in my supplementary statement is not mentioned in my statement of 23.6.2015 again said I have mentioned in both my statement the names of all the witnesses. Confronted with Exh. DA (statement dated 10.6.2015) where names of the eye-witnesses Saira Majeed are Saba Naz are not recorded being eye-witnesses the same portion of answer was confronted with Exh. DB statement dated 23.6.2015 where name of witness Tabassum Majeed is not mentioned.

I mentioned this fact that accused Taimoor Shahzad asked deceased Atif Imran to come his house in connection with some work in my statement Exh.DA and Exh. DB. Confronted with Exh.DA and Exh.DB where it not so recorded. I mentioned this fact that Taimoor Shahzad asked deceased Atif Imran whether this amount was given to Haleema Bibi deceased by him, Atif Imran deceased replied negative in my statement Exh.DA/Exh.DB, confronted with Exh.DA and Exh. DB where it not so recorded. I mentioned this fact that he is ready to satisfy them on Oath upon Holy Qurean, and Taimoor took Atif Imran deceased in a room for Oath. Confronted with Exh.DA and Exh.DB where it not so recorded. I have mentioned the fact that the Taimoor made fire with gun like Kalashinkov which hit on his different parts of body. Confronted with Exh.DA and Exh.DB where it not so recorded.

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I mentioned this fact that in the meanwhile Mst. Haleema Bibi raised hue and cry that you have murdered an innocent person in my statement Exh.DA and Exh.DB. Confronted with the same where it is not so recorded. I mentioned this fact that in the meanwhile Mst. Haleema Bibi was also fired which hit on her different part of body who succumbed to the injuries. We raised hue and cry in my statement Exh.DA and Exh.DB. Confronted with the same where it is not so recorded. I mentioned that Taimoor accused fled away from spot in my statement Exh.DA and Exh.DB and Exh.PN.

Similarly, Saira Majeed (PW-9) also made improvements to her previous statement and stated as follows in the cross-examination:

“I have mentioned in my statement U/S 161 Cr.P.C. that I alongwith Saba went to the house of Ansar Bibi with the delay of about 5/10 minutes. Confronted with Ex.DC where it is not so recorded. I mentioned before police in my statement U/S 161 Cr.P.C. this fact that Taimoor Shahzad made a call and asked Atif Imran to come there with delay of about 15 minutes Atif and Qaisar reached there. Confronted with Ex.DC where it is not so recorded.

I have mentioned before police in my statement U/S 161 Cr.P.C.

that Atif Imran fell on the bed. Confronted with Ex.DC. where it is not so recorded. Volunteered at that time his legs were on the ground. I have mentioned before police in my statement U/S 161 Cr.P.C. that Halima Bibi fell on the bed. Confronted with Ex.DC

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where it is not so recorded. I have mentioned before police in my statement U/S 161 Cr.P.C. that I raised hue and cry. Confronted with Ex.DC where it is not recorded. I have not mentioned before police in my statement U/S 161 Cr.P.C. that Taimoor accused fled away from the spot.”

As both the witnesses namely Muhammad Qaisar (PW-8) and Saira Majeed (PW-9), had improved upon their previous statements and were duly confronted with their previous statements, hence their credit stands impeached and they cannot be relied upon. The august Supreme Court of Pakistan in the case of “Muhammad Ashraf Vs. State” (2012 SCMR 419) took serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) has no intrinsic worth and is to be rejected outrightly. The august Supreme Court of Pakistan in a recent case reported as “Muhammad Mansha Vs. The State” (2018 SCMR

772)has enunciated the following principle:

“Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence”.

The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle:

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“ It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.”

16.We have also noted that according to both the witnesses namely Muhammad Qaisar (PW-8) and Saira Majeed (PW-9), the deceased Atif Imran had been called by the appellant to come to his house prior to the occurrence. This claim of the prosecution witnesses was also found to be false. Khalid Mehmood, SI (PW-12), the Investigating Officer of the case, collected the Call Data Record of the appellant and found that the appellant had made no such call to Atif Imran, deceased, prior to the occurrence.

Khalid Mehmood SI (PW-12) stated as under:-

“It is correct that according to CDR and according to my investigation accused Taimoor Shahzad did not make any call to deceased Atif Imran prior to occurrence.”

17.We have also noted that Khalid Mehmood SI (PW-12) got information about the occurrence and reached the place of occurrence. No one out of the eye-witnesses had told him about the occurrence. We have also observed that none of the witnesses including Muhammad Qaisar (PW-

8)and Saira Majeed (PW-9) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Khalid Mehmood, SI (PW-12) at the place of occurrence of his own. According to Khalid Mehmood, SI (PW-12) the police station was situated in the same village

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where the occurrence had taken place. We have also noted that it is recorded in the formal FIR (Exh.PD) that the place of occurrence was at a distance of only 25 karams from the police station, however, despite the fact that the occurrence had allegedly taken place at 2.00p.m, the formal FIR (Exh.PD) was not registered till 4.50 p.m. The oral statement (Exh.PN) of Muhammad Qaisar (PW-8) was reduced into writing by Khalid Mehmood SI, (PW-12) at the place of occurrence at 4.30 p.m. This has left no doubt in our minds that the witnesses were not present at the place of occurrence at the time of occurrence and proves that the said oral statement reduced into writing as Exh.PN is just a compromised and fake document.

The august Supreme Court of Pakistan in the case of Abdul Jabbar alias Jabbari v. The State(2017 SCMR 1155)has observed as under:

“An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot.”

18.We have also noted that despite the fact that the matter was reported to the police at 4.30 p.m. when the oral statement (Exh.PN) of Muhammad Qaisar (PW-8) was received, the postmortem examination on the person of the deceased was conducted after a delay. The post mortem examination of the dead body of the deceased namely Atif Imran was conducted at 8.05 p.m, whereas the post mortem examination of the dead body of the deceased namely Haleema Taimoor was conducted at 8.30 p.m.

Both the Medical Officers namely Dr. Taseer Ahmad Qureshi (PW-6) and Dr. Ruqayya Saleem (PW-7) gave the probable time between the death and post mortem examination as 6 to 7 hours. This clearly establishes that the

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witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay was used to propcure their attendace and formulate a false narrative after consultation and concert. It has been repeatedly held by the August Supreme Court of Pakistan that such delay is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. Reliance is placed on the cases of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) , “Mian SOHAIL AHMED and others vs. The State and others” (2019 SCMR 956) and “MUHAMMAD RAFIQUE alias FEEQA vs. The State” (2019 SCMR

19.We have already mentioned that along with the appellant his co- accused namely Sher Khan son of Allah Ditta ( since acquitted) was tried by the learned trial court. The learned trial court acquitted Sher Khan son of Allah Ditta ,the co-accused of the appellant. The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition.

The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should

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be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting the accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. Reliance is placed on the principle enunciated by the august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No.

238-L of 2013 reported as PLD 2019 Supreme Court 527. Both Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) were adjudged to have deposed falsely against Sher Khan son of Allah Ditta (since acquitted). We find no reason to believe their statements with regard to the appellant in absence of any reason to do so. This lying on part of the witnesses with regard to Sher Khan son of Allah Ditta (since acquitted) has vitiated our trust in them. We are thus satisfied that the evidence of Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) has no worth and is to be rejected outright.

20.It has been argued by the learned Deputy Prosecutor General that where a wife or any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts the presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of a

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person had taken place in his house, therefore, it must be he and none else who would have committed that murder. In the case in hand presence of the eye witnesses at the spot had not even been mentioned by the complainant in the FIR lodged by him and the conduct displayed by the said eye- witnesses was such that they did not inspire confidence at all. As discussed above, both the witnesses namely Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) failed miserably to prove their presence at the place of occurrence at the time of occurrence. The prosecution also failed to establish that the appellant was present inside his house when the occurrence took place. Khalid Mehmood, SI (PW-12) , the Investigating Officer of the case, also admitted during cross-examination that it was the first version of the appellant that he was not present at his house at the time of occurrence. The prosecution witnesses also admitted during cross- examination that the place of occurrence was a house wherein besides the appellant his father, mother and sisters were also residing. In a case of this nature, the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased. An accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. The august Supreme Court of Pakistan has held in the case of “MUHAMMAD JAMSHAID and another vs. The State and others” (2016 SCMR 1019 ) as under:

“only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the courts below that it must be none other than the present appellant who had done the

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deceased to death. We have found such an approach adopted by the courts below to be nothing but speculative”.

The august Supreme Court of Pakistan has held in the case of NASRULLAH alias NASRO vs. The State (2017 SCMR 724 ) as under:

“It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder.”

The august Supreme Court of Pakistan has held in the case of Arshad Khan vs. The State (2017 SCMR 564 ) as under:

“It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all.”

The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628 ) as under:

It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there

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some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710).

The august Supreme Court of Pakistan has held in the case of Asad Khan vs. The State (PLD 2017 Supreme Court 681 ) as under:

It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however, been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement.

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The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941 ) as under:

“The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed.”

21.Learned Deputy Prosecutor General has also relied upon the recovery made from the appellant. The recovery of the rifle Kalashnikov (P-6) cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said rifle Kalashnikov (Exh.P-6) from the appellant which was in clear violation of section 103 Cr.PC and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. Abdul Rauf (PW-11) admitted during cross-examination that many independent witnesses were residents of the area around the place of occurrence, however, none was asked to join the said recovery proceedings. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs.

The State ( 2017 SCMR 898) at page 901 has held as under:-

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“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.”

Additionally, Khalid Mehmood, SI (PW-12),the Investigating Officer of the case, during cross-examination, stated that on 06.08.2015 Muhammad Qaisar (PW-8) got recorded his statement that he had wrongly stated that the appellant was armed with a rifle 44 bore and actually the appellant was armed with a rifle Kalashnikov. Furthermore, according to the prosecution witnesses the rifle Kalashnikov (P-6) was recovered from the same house which was the place of occurrence. It was stated by the witnesses that after the occurrence the accused fled away from the spot while carrying the weapon with him , hence the recovery of the same from the same house cannot be believed. Furthermore, Abdul Rauf (PW-11) admitted during cross-examination that the place of recovery was a house wherein besides the appellant his father, mother and sisters were also residing. In this manner, prosecution failed to prove that the place of recovery of the rifle Kalashnikov (P-6) was in the exclusive possession of the appellant.

22.Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account.

The motive of the occurrence as stated by Muhammad Qaisar (PW-8) and Saira Majeed (PW-9) was that the accused suspected that Atif Imran (deceased) had developed illicit relations with Mst. Haleema Taimoor (deceased). No further details of said motive were mentioned by the witnesses in their statements. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led

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the appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. A tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

“The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case.”

It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.

23.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Taimoor Shahzad son of Waheed Akhtar ,the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State(2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the

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benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra: “It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

24.For what has been discussed above Criminal Appeal No.1008 of 2017 lodged by Taimoor Shahzad son of Waheed Akhtar (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 02.11.2017 are hereby set-aside. Taimoor Shahzad son of Waheed Akhtar (appellant) is ordered to be acquitted. Taimoor Shahzad son of Waheed Akhtar (appellant) is directed to be released forthwith if not required in any other case.

25.Murder Reference is answered in Negative and the death sentence of Taimoor Shahzad son of Waheed Akhtar is Not Confirmed.

(SADAQAT ALI KHAN) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel