Azhar vs The State etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 22 of 2017 (The State Vs. Azhar)

Criminal Appeal No. 267 of 2017 (Azhar Vs. The State and another.)

Date of hearing: 21.09.2021 Appellant by: Syed Zeeshan Haider, Advocate.

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

Complainant by: Jam Fakhar-ud-Din Lar,Advocate.

JUDGMENT.

SADIQ MAHMUD KHURRAM, J.– Azhar son of Hashim

(convict) was tried by the learned Additional Sessions Judge, Sadiqabad alongwith Akbar son of Jeevan (since acquitted) in the case FIR No. 19 of 2015 dated 24.01.2015 registered at Police Station Ahmadpur Lamma, District Rahim Yar Khan in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Mst. Allah Rakhi daughter of Haji Habib Ahmad (deceased). The learned trial court vide judgment dated 28.04.2017, convicted Azhar son of Hashim (convict) and sentenced him as under:

Azhar son of Hashim:

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Mst. Allah Rakhi daughter of Haji

Crl. Appeal No. 267 of 2017 2

Habib Ahmad (deceased) and directed to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Mst. Allah Rakhi daughter of Haji Habib Ahmad (deceased) and 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.

Akbar son of Jeewan, the co-accused of the appellant, was however acquitted by the learned trial court.

2.Feeling aggrieved, Azhar son of Hashim (convict) lodged Criminal Appeal No.267 of 2017 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.22 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Azhar son of Hashim. We intend to dispose of the Criminal Appeal No. 267 of 2017 and Murder Reference No.22 of 2017 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Imam Bakhsh (PW-1), the complainant of the case, are as under:- “About five/six years ago, Mst. Allah Rakhi daughter of Haji Habib Ahmad, caste Detha, r/o Mauza Qasmani, married with me with her own free will and consent. Before our marriage, Azhar son of Hashim accused present in court was engaged with Mst. Allah Rakhi. Azhar was became revenge hulk why Allah Rakhi married with me. On 24-01-2015, at about 10:00 am, I alongwith my wife Allah Rakhi, Ghulam Haider and Haji Ahmad went to sugar cane crop for cutting the crop. At about 01:30 pm, after cutting the crop, I alongwith Allah Rakhi my wife, Ghulam Haider my brother and Haji Ahmad were coming back from our field towards our house having with fodder. Allah Rakhi was at a distance from us at some

Crl. Appeal No. 267 of 2017 3

paces and we were behind Allah Rakhi alongwith Haji Ahmad and Ghulam Haider at some distance. When we reached at the brink Kandair raw road, and then Akbar and Azhar armed with pistol came at the spot. Upon seeing us, Akbar raised lalkara while armed with pistol that we will teach the lesson to Allah Rakhi upon getting marriage with Imam Bakhsh and we will not leave her alive. Then, in the meanwhile, Azhar accused made fire shot in order to kill Allah Rakhi straight away made fire shot upon Allah Rakhi which hit on the right palm of hand of Allah Rakhi deceased. When, I alongwith Haji Ahmad and Ghulam Haider went forward just in order to save Allah Rakhi then Akbar accused frightened us by way of making slogans that if anybody come near, he will kill us, Azhar made second fire shot to Allah Rakhi deceased which hit on her chest. Allah Rakhi after receiving fire shot injury fell down on the earth. Then Azhar made third fire shot to Allah Rakhi which hit on her back. I Ghulam Haider and Haji Ahmad raised hue and cry after this event. People gathered there after hearing the voices of this occurrence and the above said accused decamped from the spot. I alongwith Ghulam Haider, Haji Ahmad tried to manage Mst. Allah Rakhi but she could not succumbed the injuries she died on the spot. The above-said accused are killer of my wife, they must be punished severely in accordance with law. 1.0 came at the spot and got recorded my statement Exh. PA which bears my signatures Exh.PA/1. The same statement was read over by the I.O to me on the spot.”

4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Azhar son of Hashim and the co-accused of the appellant namely Akbar son of Jeewan (since

Crl. Appeal No. 267 of 2017 4

acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 23.02.2016, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case got statements of as many as ten witnesses recorded. The ocular account of the case was furnished by Imam Bakhsh (PW-1) and Ghulam Haider (PW-2). Altaf Hussain, SI (PW-3) stated that on 24.01.2015 he recorded the formal F.I.R (Exh.PF).Ali Bakhsh 1492/HC (PW-5) stated that on 23.03.2015 he handed over two sealed parcels said to contain the recovered empties and pistol to Muhammad Ramzan 669/C (PW-8) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore .

Shahid Mehmood 1069/C (PW-6) stated that on 24.01.2015 he escorted the dead body of the deceased for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer.

Mudassar Maqsood 394/HC (PW-7) stated that on 24.01.2015 the Investigating Officer of the case handed over to me two sealed parcels and on 23.03.2015 he handed over both the said parcels to Muhammad Ramzan 669/C (PW-8) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Liaqat Ali Patwari (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PH) .Jam Munir Ahmad Inspector (PW-10), the Investigating Officer of the case, investigated the case from 24.01.2015 till 12.08.2016, arrested the appellant on 19.02.2015, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

Crl. Appeal No. 267 of 2017 5

6.The prosecution also got Dr. Asifa Zahid (PW-4) examined, who on 24.01.2015 was posted as Woman Medical Officer at RHC, Ahmadpur Lamma and on the same day conducted the postmortem examination of the dead body of Allah Rakhi daughter of Haji Habib Ahmad (deceased). Dr. Asifa Zahid (PW-4) ,on examining the dead body of Allah Rakhi daughter of Haji Habib Ahmad (deceased) observed as under:-

“Injury No.1 Multiple circular and irregular lacerated wound with inverted margins was present in front of chest in the central region each measuring 0.7x 0.7 cm about 7 cm from left nipple and 5 cm from right nipple and about 6 cm from manubrium sterni. Blackening was present around the wound. Bleeding also present.

Injury No.2 9 cm x 9 cm avulsed wound was present on lateral aspect of palmer surface of right hand. Wound was irregular and flush(sic) exposed. It was about 23 cm from right elbow joint.

Injury No.3

(a)A lacerated wound with irregular everted margin measuring 03 cm x 03 cm was present on the back on left side. It was about 20 cm away from anterior superior illac supine of left side and 12 cm away from posterior axilliary line of left side.

(b)Irregular lacerated wound with everted margin measuring 3 cm x 4 cm was present on back on right side about 24 cm from anterior superior iliac supine of right side and 15 cm away from posterior axilliary line of right side. Injury No.1 and Injury No.3 correlates with each other.

Opinion:

In my opinion, the cause of death was hemorrhagic shock due to injury No. 1 and 3. Injury No. 1,2 and 3 were individually and collectively sufficient to cause death in ordinary course of nature. Injury No.1 is entry wound and injury No.3 was exit wound. All injuries was caused by fire-arm and was antimortem in nature.

Probable Time that elapsed:

Between injury and death immediately as per police papers.

Between death and postmortem:

Crl. Appeal No. 267 of 2017 6

Within four hours..

Final Opinion:

In my opinion, the cause of death was hemorrhagic shock due to injury No.1 and 3. Injury No. 1,2 and 3 were individually and collectively sufficient to cause death in ordinary course of nature. Injury No.1 is entry wound and injury No.3 was exit wound. All injuries was caused by fire-arm and was antimortem in nature.”

7.On 15.12.2016 the learned ADPP gave up the prosecution witness namely Haji Ahmad as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PM) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh.PN) regarding the analysis of the crime empties and the recovered weapon.

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Azhar son of Hashim 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, the appellant namely Azhar son of Hashim replied that he had been involved in the case falsely and was innocent. The appellant namely Azhar son of Hashim opted not to get himself examined under section 340(2) Cr.P.C. and however, got Muhammad Khalid Raza (DW-1), Muhammad Zia-ud-Din (DW-2), Muhammad Hashim (DW-3) and Rana Khan (DW-4) examined as witnesses in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Sadiqabad, convicted and sentenced the appellant namely Azhar son of Hashim as referred to above.

Crl. Appeal No. 267 of 2017 7

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 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.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.

They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Imam Bakhsh (PW-1) and Ghulam Haider (PW-2). They further argued that the recovery of the pistol (P-3) from the appellant namely Azhar son of Hashim also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel appearing on

Crl. Appeal No. 267 of 2017 8

behalf of the complainant/respondent No.2 prayed for the rejection of appeal as lodged by the appellant namely Azhar son of Hashim.

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

13.We have noted with grave anxiety that the ocular account of the occurrence as furnished by the witnesses namely Imam Bakhsh (PW-

1)and Ghulam Haider (PW-2) is flawed beyond reparation and has disfigured the appearance of the whole prosecution case beyond restoration and recognition. The statements of both the eye witnesses namely Muhammad Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) are in direct contrast and inconsistent with the observations and the opinion of Dr. Asifa Zahid (PW-4), who conducted the post mortem examination of the dead body of the deceased namely Allah Rakhi daughter of Haji Habib Ahmad. According to the statements of both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) ,they had seen the appellant namely Azhar son of Hashim make three separate fires with the pistol carried by him and all the three fires hit Allah Rakhi daughter of Haji Habib Ahmad . Imam Bakhsh (PW-1) in his examination in-chief stated as under:-

“Azhar made second fire shot to Allah Rakhi deceased which hit on her chest. Allah Rakhi after receiving fire shot injury fell down on the earth. Then Azhar made third fire shot to Allah Rakhi which hit on her back.” (emphasis supplied) .

Crl. Appeal No. 267 of 2017 9

Similarly, Ghulam Haider (PW-2) in his examination in-chief stated as under:-

“ Then Azhar made second fire shot which landed on chest of Allah Rakhi. Then Azhar accused made third fire shot which landed on the back of Allah Rakhi” (emphasis supplied) .

Both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) remained adamant that the appellant had fired thrice at the person of Allah Rakhi (deceased) and further stated that the third fire made by the appellant had hit Allah Rakhi (deceased) on her back. Contrary to the said repeated claim of both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2), Dr. Asifa Zahid (PW-4), who on 24.01.2015 had conducted the postmortem examination of the dead body of Allah Rakhi daughter of Haji Habib Ahmad (deceased), stated that the injuries observed by her on the back of the body of Allah Rakhi deceased were actually exit wounds relating to the injury No.1 observed by her on the chest of the deceased. Dr. Asifa Zahid (PW-4) while preparing the post mortem examination (Exh.PF) conclusively opined as under:- “ Injury No.3

(a)A lacerated wound with irregular everted margin measuring 03 cm x 03 cm was present on the back on left side. It was about 20 cm away from anterior superior illac supine of left side and 12 cm away from posterior axilliary line of left side.

(b)Irregular lacerated wound with everted margin measuring 3 cm x 4 cm was present on back on right side about 24 cm from anterior superior iliac supine of right side and 15 cm away from posterior axilliary line of right side. Injury No.1 and Injury No.3 correlates with each other.

Opinion:

In my opinion, the cause of death was hemorrhagic shock due to injury No. 1 and 3. Injury No. 1,2 and 3 were individually and

Crl. Appeal No. 267 of 2017 10

collectively sufficient to cause death in ordinary course of nature. Injury No.1 is entry wound and injury No.3 was exit wound. All injuries was caused by fire-arm and was antimortem in nature.

Final Opinion:

.......... Injury No.1 is entry wound and injury No.3 was exit wound.”

The said opinion of Dr. Asifa Zahid (PW-4) that the injuries observed by her on the back of the body of Allah Rakhi deceased were actually exit wounds was never challenged by the prosecution either during the investigation of the case or during the course of trial. The prosecution very well knew that the observations and opinion of Dr. Asifa Zahid (PW-4) were in themselves sufficient to bring down the whole edifice of the prosecution case as narrated by the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2), however, even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. Asifa Zahid (PW-4) or if the same could not be challenged, then to explain the same. We have noted that during the course of trial the prosecution witnesses failed to explain as to why was there such a huge, gaping and all consuming, inexplicable and baffling error in the statements of the prosecution witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) who proceeded to attribute causing of a third fire by the appellant on the body of the deceased without any support from the medical evidence. Dr. Asifa Zahid (PW-4) during cross-examination further explained as under:- It is correct that injury No 1 is entry wound and injury No.3 is exit wound of injury No.1. It is correct that in pictorial diagram I

Crl. Appeal No. 267 of 2017 11

mentioned upon injury No.3 which are two parts A and B both are exit wounds. Since injury No.2 which was serious in nature and skin was dragged from the body due to injury that cannot specifically said that which exit wounds upon injury No.2 are. It is correct that injury No.1 was entry wound, injury no.3 was exit wound in two parts of injury No.1 and injury No.2 was observed on the hand. No other injury was observed upon the dead body during conducting post mortem. (emphasis supplied)

Despite our repeated queries, both the learned Deputy Prosecutor General and the learned counsel for the complainant/respondent No.2 have failed to explain the said discrepancy in the prosecution evidence. In this manner, irreconcilable and distressing contradiction has cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) and the medical evidence as furnished by Dr. Asifa Zahid (PW-4). This contradiction in the ocular account of the occurrence, as narrated by Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) and the medical evidence as furnished by Dr. Asifa Zahid (PW-4), clearly establishes that the prosecution witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) miserably failed to prove their presence at the place of occurrence , at the time of occurrence. Had the witnesses namely Imam Bakhsh (PW-

1)and Ghulam Haider (PW-2) seen the occurrence then there did not exist any possibility that they would have fallen into error, stating wrongly that the appellant fired at the deceased hitting her on her back. In this regard guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Amin Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- “11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries

Crl. Appeal No. 267 of 2017 12

on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution.

13.From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence.”

Crl. Appeal No. 267 of 2017 13

Reliance is also placed on the case of “Mansab Ali Vs. The State” ( 2019 S C M R 1306 ) where the august Supreme Court of Pakistan was pleased to hold as under:--

“2. Prosecution case is structured upon ocular account. According to Muhammad Bilal, PW-6, the appellant made two successive shots on the deceased, first landing on the right arm, while second hitting the back; Muhammad Mansha, PW-7 took the same position. Both of them are in a diametrical conflict with the position taken in the crime report wherein the appellant is assigned solitary shot landing on the deceased's chest. Confusion is further compounded by the statement of Dr. Javid Ahmed, PW- 3, who noted an entry wound on the posterior aspect of left shoulder; the bullet exited from the chest valve; the second fire shot was on the right upper arm with its corresponding exit. This is not in line with the prosecution case that the appellant targeted the chest as the wound noted by the Medical Officer is an exit wound. Both the witnesses have been duly confronted with their deviation from previous statements. From amongst the acquitted accused, Muhammad Yousaf was assigned a club blow to Muhammad Munawar, PW-8, noted by the Medical Officer as a painful swelling; his acquittal went without challenge. The learned Law Officer has not been able either to justify witnesses' departure from previous statements or to explain conflict between ocular account and medical evidence. Though with roles somewhat trivial nonetheless, en bloc acquittal of co-accused on the same evidence is yet another predicament facing the State. The prosecution case is fraught with doubts, thus it would be unsafe to maintain the conviction. Resultantly, the appeal is allowed, the impugned judgment is set aside. The appellant shall be set at liberty forthwith, if not required in any other case.” (emphasis supplied) .

14.Another aspect of the case piquing our concern is the narrative of the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) that the occurrence took place at the brink of Kandair road (a rough path) when the witnesses along with the deceased were returning

Crl. Appeal No. 267 of 2017 14

from their land taken by them on lease, to which land they had proceeded in the morning at 10.00 a.m for the purpose of cutting crop and from which land they were returning after cutting the said crop. The said land where both the prosecution witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) had proceeded for the purpose of cutting crop along with the deceased was at a distance of as many as twelve acres.

Imam Bakhsh (PW-1) during cross-examination stated as under:- “The inter se distance of place of occurrence towards place where we cut the crop of sugar cane is approximately 12 acre. On the day of occurrence at the time of occurrence, fifteen minutes consumed while arriving at the place of occurrence from the place where we harvesting sugar cane crop.”

In this manner, it was admitted by the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) that the place of occurrence was not a place of their usual presence and was actually at a distance from the place where the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) had been present prior to the occurrence. In this manner, both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) can validly be termed as chance witnesses and therefore were under a duty to prove their presence at the place of occurrence, at a time of occurrence by producing relevant and admissible evidence in this regard, however, both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) failed to establish their presence at the place of occurrence, at the time of occurrence. We have perused and analyzed the statements of both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) and find that the details furnished by the said witnesses regarding their arrival

Crl. Appeal No. 267 of 2017 15

at the place of occurrence were inconsistent with each other. We have also noticed that the prosecution witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) failed to bring on record any physical proof of their presence at the place of occurrence, at the time of occurrence.

According to Imam Bakhsh (PW-1) , prior to the occurrence he along with the witnesses and the deceased had proceeded to the land taken by them on lease for purpose of cutting the sugar cane crop and for the said purpose he was carrying a sickle and a piece of cloth. Furthermore, Imam Bakhsh (PW-1) stated that each of them including him and Ghulam Haider (PW-2) after cutting the sugar cane crop , were carrying Gathris with them containing the cut crop when they arrived at the place of occurrence and witnessed the same during cross-examination Imam Bakhsh (PW-1) stated as under:-

“Wgen (sic) we escorted towards sugar cane crop for harvesting at that time I was handing over sickle and cloth for wrapping the same after harvesting or cutting the sugar cane. We proceeded above all at our own land on the day of occurrence. The land upon which we proceeded on the day of occurrence is leased land which is being enjoyed by me.

On the day of occurrence, when we harvested the crop sugar cane, said sugar cane crop was cut by us in shape of three bundles and every person carried out each bundle after cutting the same. I do not know whether other persons were enjoying sickles for harvesting sugar cane crop however, myself were enjoying sickle for harvesting sugar cane crop. While proceedings, by way of carrying the said bundles of sugar cane crop which was carried respectively each person after harvesting sugar cane crop, Allah Rakhi was ahead of us empty handed and without carrying any bundle of sugar cane crop. I was chasing and

Crl. Appeal No. 267 of 2017 16

behind Allah Rakhi by way of carrying bundle of sugar cane crop after harvesting and behind me Ghulam Haider was also carrying bundle and subsequently Haji Ahmad also having sugar cane bundle on his head.” (emphasis supplied) Contrary to the above referred statement of Imam Bakhsh (PW-1) that he as well as Ghulam Haider (PW-2) had harvested the sugar cane crop and were carrying Gathris of the cut sugar cane crop on their way back to their home, Ghulam Haider (PW-2) denied the said narrative of the Imam Bakhsh (PW-1) and contrary to the statement of Imam Bakhsh (PW-1) , Ghulam Haider (PW-2) stated that the sugar cane crop was cut by labourers and furthermore, he was not carrying any such Gathri.

Ghulam Haider (PW-2) during cross-examination stated as under:- “ The labour harvested the sugar cane crop , one sugar cane bundle was taken and carried by Imam Bakhsh on the day of occurrence and we were not carrying any sugar cane crop bundle.” (emphasis supplied)

Additionally, we have also noted that no such Gathri containing the cut sugar cane crop and carried by the witnesses, was observed or taken into possession at the place of occurrence by Jam Munir Ahmad Inspector (PW-10), the Investigating Officer of the case, when he visited the place of occurrence. According to the statements of the prosecution witnesses Jam Munir Ahmad Inspector (PW-10) , Investigating Officer of the case arrived at the place of occurrence immediately within half an hour of the happening of the same and in that manner the said Gathris containing the cut sugar cane crop must have been present at the place of occurrence if the said claim of the prosecution witnesses was true, however, Jam Munir

Crl. Appeal No. 267 of 2017 17

Ahmad Inspector (PW-10) , the Investigating Officer of the case did not observe the presence of said Gathris at the place of occurrence during his visit. Both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) also did not produce the said Gathris or the cut sugar cane crop or the sickles carried by them before the Jam Munir Ahmad Inspector (PW-10), the Investigating Officer of the case during the investigation of the case or before the learned trial court, so as to provide the best possible proof of their presence at the place of occurrence. The absence of the said Gathris, at the place of occurrence, which were allegedly being carried by the witnesses at the time of occurrence, denudes the fact that both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) developed a false narrative to provide the reason for their arrival at the place of occurrence and were exposed badly in their endeavour. Another aspect of the case is that while getting recorded his oral statement (Exh.PA), Imam Bakhsh (PW-1) had stated in the same that they were returning to their houses and arrived at the place of occurrence while carrying fodder, however, during cross-examination, a portion of which has been reproduced above, Imam Bakhsh (PW-1) stated that they had arrived the place of occurrence while carrying cut sugar cane crop. These contradictory statements of the witnesses with regard to the identity of what the witnesses were carrying at the time of their arrival at the place of occurrence also lays bare the hollowness of the claim both the prosecution witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) . Putting further in doubt the seeing of the

Crl. Appeal No. 267 of 2017 18

occurrence by the witnesses is the statement of Imam Bakhsh (PW-1) made during cross-examination as under:-

“When we arrived at the place of occurrence, the dead body of deceased Allah Rakhi was lying in a direction that legs was towards southern side and head was towards northern side.”

We have also noted that both the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) claimed that after the occurrence, they had held the deceased namely Allah Rakhi . Imam Bakhsh (PW-1) during examination in chief stated as under:-

“ I along with Ghulam Haider, Haji Ahmad tried to manage Mst. Allah Rakhi but she could not succumbed the injuries (sic) , she died on the spot.”

A similar statement was made by Ghulam Haider (PW-2). In this scenario, had the witnesses been present at the place of occurrence and held the deceased, who had suffered massive injuries and was bleeding profusely, then their clothes must have been stained with blood. Jam Munir Ahmad Inspector (PW-10), the Investigating Officer of the case, did not take any such blood-stained clothes of Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) in possession during the investigation of the case nor the said witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) admittedly produced their clothes either before the Investigating Officer of the case or before the learned trial court . Jam Munir Ahmad Inspector (PW-10) , the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) which were stained with blood, into possession and if these were sent to the Punjab Forensic

Crl. Appeal No. 267 of 2017 19

Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2). Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 S C M R 1142) wherein it has been held as under:- “20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses.”

The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 S C M R 319) has held as under:- “Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced”.

The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 S C M R 153) has held as under:-

“For the following reasons the prosecution case against the appellant is doubtful in nature:-

(a)........

Crl. Appeal No. 267 of 2017 20

(b)Presence of both the witnesses of ocular account i.e. Tariq Mehmood complainant (PW.8) and Tahir Mehmood (PW.9) at the place of occurrence is also not free from doubts. During cross-examination the complainant stated that Maqsood Ahmad (deceased) in injured condition was shifted to Civil Hospital on a carry van but he could not disclose the registration number of the van or name of the driver of vehicle. He also deposed during his cross-examination that his clothes were also stained with blood but stated that he did not produce the blood stained clothes to the Police.”

These omissions strike at the roots of the case of the prosecution and lay bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence, at the time of occurrence. All these omissions are conspicuous by their absence. In absence of any physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the cases of “Muhammad Rafiq v. State” (2014 SCMR 1698), “Usman alias Kaloo v. State” (2017 SCMR 622) and “Nasrullah alias Nasro v. The State” (2017 SCMR 724) .

15.We have also noted that according to the prosecution case the motive of the occurrence was that Allah Rakhi daughter of Haji Habib Ahmad (deceased) had contracted marriage with Imam Bakhsh (PW-1) and the appellant namely Azhar was annoyed due to the said marriage and became revengeful as to why the said marriage had taken place when Allah Rakhi (deceased) was set to marry the appellant namely Azhar son of Hashim. Imam Bakhsh (PW-1) during examination in-chief stated as under:-

Crl. Appeal No. 267 of 2017 21

“About five/six years ago, Mst. Allah Rakhi daughter of Haji Habib Ahmad, caste Detha, r/o Mauza Qasmani, married with me with her own free will and consent. Before our marriage, Azhar son of Hashim accused present in court was engaged with Mst. Allah Rakhi. Azhar was became revenge hulk why Allah Rakhi married with me.”

A similar statement was made by Ghulam Haider (PW-2) who also stated that the appellant namely Azhar was annoyed due to the marriage of the Allah Rakhi deceased with Imam Bakhsh (PW-1). If the said statements of the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-

2)were true then Imam Bakhsh (PW-1) should have been the prime target of the assailants as it was Imam Bakhsh (PW-1) who was the person who had married the deceased. Furthermore, according to the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) , they were in clear view, at a meagre distance, from the assailants and unarmed whereas the appellant and his co-accused namely Akbar (since acquitted) were allegedly armed with firearm weapons. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellant or his co-accused namely Akbar (since acquitted) for not doing away with the witness namely Imam Bakhsh (PW-1) , their main adversary. In this scenario, it is hard to believe that the witness namely Imam Bakhsh (PW-

1)would have been shown the courtesy of being not fired at all when he should have been the prime target of the assailants . Furthermore, it was the claim of the prosecution witnesses that in the midst of firing, the witness namely Imam Bakhsh (PW-1) did not receive even a single scratch during the whole occurrence. If the witness namely Imam Bakhsh (PW-1) had been present in the view of the assailants, then he would not

Crl. Appeal No. 267 of 2017 22

have been spared. Blessing Imam Bakhsh (PW-1) with such an incredible consideration and showing him such favour is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant and his co-accused namely Akbar (since acquitted) did not cause any injury to them. Such behaviour, on part of the accused, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We, thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e- Shahadat Order, 1984, that the conduct of the assailants, as deposed to by the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) , was opposed to the common course of natural events and human conduct.

Hence, we are holding that both Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) were not present at the place of occurrence, at the time of occurrence and did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses were not present at the place of occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under:

Crl. Appeal No. 267 of 2017 23

“First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report.”

The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under:

“The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence.”

The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707) at page 1712 held as under:- “Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased.”

We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum & others v. Sajjad & others (2017 SCMR 596) where at page 601 it was observed as under:- “Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two

Crl. Appeal No. 267 of 2017 24

deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition.”

16.We have also noted that Jam Munir Ahmad Inspector (PW-10), the Investigating Officer of the case, got information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) had told him about the occurrence. We have also observed with grave concern that none of the witnesses including Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Jam Munir Ahmad Inspector (PW-10), the Investigating Officer of the case ,at the place of occurrence on his own. 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.”

Crl. Appeal No. 267 of 2017 25

17.We have also noted with disquiet that despite the fact that the occurrence took place at 1.30 p.m on 24.01.2015, the postmortem examination of the dead body of the deceased was conducted with delay.

According to the Post Mortem Examination Report (Exh.PF), Dr. Asifa Zahid (PW-4) , conducted the post mortem examination of the dead body of the deceased namely Allah Rakhi daughter of Haji Habib Ahmad (deceased) at 7.00 p.m. on 24.01.2015. Furthermore, according to the Post Mortem Examination Report (Exh.PF), Dr. Ayesha Attique (PW-11), received the police paper at 6.30 p.m on 24.01.2015 and thereafter conducted the post mortem examination of the dead body of the deceased.

The perusal of the Post Mortem Examination Report (Exh.PF) clearly establishes the fact the post mortem examination of the dead body of the deceased was delayed and the delay was due to the late arrival of the dead body at the hospital and the late submission of police papers. No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert.

It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid

Crl. Appeal No. 267 of 2017 26

alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

“The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time”.

The august Supreme Court of Pakistan in the case of “Mian SOHAIL AHMED and others vs. The State and others” (2019 SCMR 956) has held as under:

“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution” The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs. The State” (2019 SCMR 1068) has held as under:

“More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.

10.Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the

Crl. Appeal No. 267 of 2017 27

investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.

11.It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting.”

18.Learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol 12- bore (P-3) made from the appellant and the report of the Punjab Forensic Science Agency, Lahore (Exh.PN). The recovery of the pistol 12-bore (P-

3)from the appellant namely Azhar cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol 12-bore (P-3) from the appellant namely Azhar which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. Therefore the evidence of the recovery of the pistol 12-bore (P-3) from the appellant cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:-

“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Furthermore, on the perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PN) regarding the analysis of the Pistol (P-3)

Crl. Appeal No. 267 of 2017 28

recovered from the appellant and the empties collected from the place of occurrence, we have noticed that both the empties recovered from the place of occurrence and the pistol (P-3) were received by Punjab Forensic Science Agency, Lahore on the same day i.e. 24.03.2015. Ali Bakhsh 1492/HC (PW-5) stated that on 23.03.2015 he handed over two sealed parcels said to contain the recovered empties and the pistol to Muhammad Ramzan 669/C (PW-8) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore .In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PN) has no evidentiary value as the possibility of fabricating matching empties is apparent. The august Supreme Court of Pakistan has held in the case of Nasrullah alias Nasro v. The State (2017 SCMR 724) as under :-

“The alleged recovery of a pistol from the appellant's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day.”

The august Supreme Court of Pakistan has held in the case of Nasrullah alias Ali Sher v. The State (2008 SCMR 707) as under :- “The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony.”

Moreover, the appellant namely Azhar was arrested on 19.02.2015, the pistol 12-bore (P-3) was recovered from the appellant namely Azhar on 27.02.2015 , however the empties taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency, Lahore on

Crl. Appeal No. 267 of 2017 29

24.03.2015 and there was no reason for keeping the empties which were taken into possession of 24.01.2015 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till 24.03.2015. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PN) has no evidentiary value as possibility of fabrication is apparent. Reliance is placed on the case of Muhammad Amin Vs. The State and another (2019 S C M R 2057) wherein the august Supreme Court of Pakistan has held as under:-

“Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential.”

Therefore, the recovery of the pistol 12-bore (P-3) from the appellant namely Azhar does not further the case of prosecution in any manner. In view of the above mentioned facts, the recovery of the pistol 12-bore (P-

3)from the appellant namely Azhar is not proved and the same cannot be used as a circumstance against the appellant.

19.Learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. As mentioned above, the motive of the occurrence was that Allah Rakhi daughter of Haji Habib Ahmad (deceased) had contracted marriage with Imam Bakhsh (PW-1) and the appellant namely Azhar was annoyed due to the said marriage and became revengeful as to why the said marriage had taken place when Allah Rakhi (deceased) was set to marry the appellant namely Azhar son of Hashim. We have already observed that if the statements of the

Crl. Appeal No. 267 of 2017 30

witnesses namely Imam Bakhsh (PW-1) and Ghulam Haider (PW-2) were true with regard to the alleged motive then Imam Bakhsh (PW-1) should have been the prime target of the assailants as it was Imam Bakhsh (PW-

1)who was the person who had married the deceased, however Imam Bakhsh (PW-1) was not even fired at. Moreover, during the cross- examination Imam Bakhsh (PW-1) admitted that he failed to produce any witness so as to prove the fact of Allah Rakhi (deceased) marrying him.

Imam Bakhsh (PW-1) during cross-examination admitted as under:- “No person who participated in the above said nikha (sic) appeared befor (sic) this court today in order to get record statement in my favour pertaining to the consent of Allah Rakhi.”

Jam Munir Ahmad Inspector (PW-10) , Investigating Officer of the case ,also admitted during cross-examination as under:- “ Complainant Imam Bakhsh never presented before me any Nikah Nama so , I never made it the part of the police file” Contrary to the lack of any evidence produced by the prosecution to prove the factum of Nikah between Imam Bakhsh (PW-1) and Allah Rakhi (deceased) on 28.03.2011, the appellant namely Azhar got statements of Muhammad Khalid Raza (DW-1), Muhammad Zia-ud-Din (DW-2), Muhammad Hashim (DW-3) and Rana Khan (DW-4) recorded to prove that the deceased had contracted marriage with him on 29.01.2011.

Muhammad Khalid Raza, (DW-1) stated that he was posted as Secretary Union Administration City Sadiqabad during the period of 25.11.2005 to 31.12.2016 and during the said period Muhammad Zia ud Din (DW-2) was the Nikah Registrar of Union Council A-1 City Sadiqabad.

Muhammad Khalid Raza, (DW-1) further stated that according to the

Crl. Appeal No. 267 of 2017 31

record available with him the Nikah of the appellant namely Azhar was solemnized with Mst. Allah Rakhi (deceased) on 29.01.2011 by Muhammad Zia ud Din (DW-2). Muhammad Khalid Raza, (DW-1) further stated that the Purt of the Nikah Nama was in his hand and he issued the certified copy (Exh.D1) of the same. Muhammad Zia ud Din (DW-2) also appeared before the learned trial court in support of the statement of Muhammad Khalid Raza, (DW-1) and verified the contents of (Exh.D1). Muhammad Hashim (DW-3) and Rana Khan (DW-4) in their statements stated that they had witnessed the solemnization of Nikah between the appellant namely Azhar and Mst. Allah Rakhi (deceased) on 29.01.2011.Though all the said witnesses namely Muhammad Khalid Raza (DW-1) , Muhammad Zia-ud-Din (DW-2), Muhammad Hashim (DW-3) and Rana Khan (DW-4) were cross-examined by the learned counsel for the complainant, however, nothing fruitful cropped up during the said cross-examination in favour of the prosecution case. The fact that the Nikah of the appellant namely Azhar was solemnized with Mst. Allah Rakhi (deceased) on 29.01.2011 was duly proved , negating the claim of the prosecution witnesses and the demise of the motive alleged.

Additionally allegedly the Nikah between Imam Bakhsh (PW-1) and Allah Rakhi (deceased) had taken place on 28.03.2011 whereas the occurrence took place on 24.01.2015 with no intervening episode of any dispute arising during this long period though the parties were residents of the same area. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the

Crl. Appeal No. 267 of 2017 32

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. Even otherwise 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.”

Furthermore, it is settled law that motive is a double-edge weapon, which can cut either way; if it is the reason for the appellant to murder the deceased, it equally is a ground for the complainant to falsely implicate him in this case. The august Supreme Court of Pakistan has held in the case of Muhammad Ashraf Alias Acchu v. The State (2019 S C M R 652) as under:-

“7. The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse.” Reliance is also placed on the case of “Liaqat Ali and 11 others v. The State” (1992 S C M R 372) wherein it Haji Saeed Ahmad (PW-1) been held as under:-

“In this behalf, it may be observed that the motive is a double‐ edged weapon which could be one of the reasons for false implication as well as has been held by the Supreme Court in the

Crl. Appeal No. 267 of 2017 33

case of Allah Bakhsh and another v. The State (PLD 1978 SC It is an admitted rule of appreciation of evidence that motive is 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.

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

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:

Crl. Appeal No. 267 of 2017 34

“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.”

21.For what has been discussed above, the Criminal Appeal No.267 of 2017 lodged by Azhar son of Hashim (appellant) is allowed and the conviction and sentence of the appellant namely Azhar son of Hashim awarded by the learned trial court through the impugned judgment dated 28.04.2017 are hereby set-aside. Azhar son of Hashim (appellant) is ordered to be acquitted by extending him the benefit of doubt. Azhar son of Hashim (appellant) is in custody and he is directed to be released forthwith if not required in any other case.

22.Murder Reference No.22 of 2017 is answered in Negative and the death sentence awarded to Azhar son of Hashim is Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

Judge Judge