Muhammad Ismail vs The State

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 17 of 2018 (The State Vs. Muhammad Ismail)

Criminal Appeal No. 313 of 2018 (Muhammad Ismail Vs. The State and another.)

Date of hearing: 30.09.2021 Appellant by: Mr. Muhammad Tayyab Wattoo, Advocate. State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

JUDGMENT.

SADIQ MAHMUD KHURRAM, J.– Muhammad Ismail son of Karam Din (convict) was tried by the learned Sessions Judge, Bahawalnagar in the case FIR No. 495 of 2015 dated 06.12.2015 registered at Police Station Saddar Bahawalnagar , District Bahawalnagar in respect of an offence under section 302 PPC for committing the Qatl-i- Amd of Muhammad Shakeel son of Allah Ditta (deceased). The learned trial court vide judgment dated 24.04.2018, convicted Muhammad Ismail son of Karam Din (convict) and sentenced him as infra:

Muhammad Ismail son of Karam Din:

Death under section 302(b) PPC as Tazir for committing Qatl-i- Amd of Muhammad Shakeel son of Allah Ditta (deceased) and directed to pay Rs.500,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of Muhammad Shakeel son of Allah Ditta (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.

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2.Feeling aggrieved, Muhammad Ismail son of Karam Din (convict) lodged Criminal Appeal No.313 of 2018 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.17 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ismail son of Karam Din. We intend to dispose of the Criminal Appeal No. 313 of 2018 and Murder Reference No.17 of 2018 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Muhammad Ibrahim (PW-4), the complainant of the case, are as under:- “About one year ago, I and my brother Muhammad Shakeel went out from our house at about 7.00 p.m and we saw that Muhammad Ismail accused, present in court was sitting at our "Phatta Beef" while wearing his shoes. My brother Muhammad Shakeel objected and asked the accused that why he was sitting on the "Phatta" with his shoes which is the place of our earning, upon which the accused started abusing and a quarrel took place and my brother. Muhammad Shakeel and accused grappled and gave slaps and fists blows to each other. Thereafter, the accused went to his house after extending threats of dire consequences. After some, when we were present near grocery shop of Muhammad Latif, Muhammad Ismail accused armed with Churri came there and attacked upon my brother Muhammad Shakeel, Ahmad Hassan and Ahmad Yar PWs also attracted at the spot. The accused gave two Churri blows on the chest of Muhammad Shakeel who fell down on the ground after sustaining the injuries. We tried to apprehend the accused but he fled away from the spot after waving his Churri. We attended Muhammad Shakeel but he succumbed to the injuries at the spot. Thereafter, we made a call on 1122 and 15. Police reached at the spot and recorded my statement Exh. P-A which was read over to me and I signed the same in token of its correctness”

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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 Muhammad Ismail son of Karam Din was sent to face trial. The learned trial court framed the charge against the accused on 05.03.2016, 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 twelve witnesses recorded. The ocular account of the case was furnished by Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) .

Muhammad Bilal Anjum 374/HC (PW-1) stated that on 06.12.2015, the Investigating Officer of the case handed over to him one sealed parcel said to contain blood stained earth and on 17.12.2015 he handed over the said sealed parcel to Fazal Karim, ASI (PW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Bilal Anjum 374/HC (PW-1) further stated that on 09.01.2016, the Investigating Officer of the case handed over to him one sealed parcel said to contain Churri which on 19.01.2016 he handed over the said sealed parcel to Fazal Karim, ASI (PW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Akhtar, ASI (PW-3) stated that on 06.12.2015 he proceeded to the place of occurrence and recorded the statement (Exh.PA) of Muhammad Ibrahim (PW-4). Muhammad Din Abid, draftsman (PW-6) stated that he prepared the scaled site plan of the place of occurrence (Exh.PD).

Muhammad Imran Ashraf, ASI (PW-7) stated that he recorded the formal

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F.I.R (Exh.PA/1) on 06.12.2015. Muhammad Younis (PW-8) stated that on 25.12.2015 the appellant led to the recovery of blood stained Churri (P-4). Shabbir Ahmad 178/C (PW-9) stated that on 06.12.2015 he escorted the dead body of the deceased to the hospital for post mortem examination and received the last worn clothes of the deceased from the Medical Officer. Abdul Hakeem, SI (PW-12), the Investigating Officer of the case, investigated the case from 06.12.2015 till 27.12.2015, arrested the appellant on 21.12.2015, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Sajid Ali (PW-11) examined, who on 07.12.2015 was posted at DHQ, Hospital, Bahawalnagar and on the same day conducted the postmortem examination of the dead body of Muhammad Shakeel son of Allah Ditta (deceased). Dr. Sajid Ali (PW- 11),on examining the dead body of Muhammad Shakeel son of Allah Ditta (deceased) observed as under:-

“On 07.12.2015, I was posted at Emergency Department, DHQ, Hospital, Bahawalnagar. On the same day, I received a dead body of young man about 24 years old with average height and built lying in supine position, wearing Mahroon coloured Shalwar and Rigormortis Qameez and white coloured Banian. Soaked with blood, (Rigormortis and postmortem staining was present Eyes closed, mouth closed. On examination of clothes, two holes are present in front of chest on Qameez and corresponding sites of Bunian, one on right side and another on left side of chest. I observed following injuries on the body of the deceased.

INJURY NO.1.

A sharp wound measuring about 2 x 2 CM on the right side of chest. 4 CM below and medial to right nipple with sharp margins. Blood is coming from wound which is not clotted.

INJURY NO.2.

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A Sharp wound 2.5 x 1 CM on left side of chest. 6 CM laterally from midline and 9 cm below from the left nipple. Blood is oozing from the wound..

OPINION.

Death in this case has occurred due hemorrhagic shock due to Injuries No.1 & 2 resulting in rupture of right ventricle, liver and spleen. This injury was sufficient to cause death in ordinary course of nature. The injuries were antemortem caused by sharp edged weapon.

Probable time that elapsed.

A) Between Injury and death. Within half hour.

B) Between death and postmortem. 2 to 24 hours.”

7.On 23.02.2018, the learned DPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PK) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh.PL) regarding the analysis of the blood stained Churri. On 27.11.2017 the statement of the complaimnat of the case was recorded that he did not want to examine prosecution witnesses namely Ahmed Yar and Muhammad Yousaf.

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Ismail son of Karam Din 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 Muhammad Ismail son of Karam Din opted not to get himself examined under section 340(2) Cr.P.C. and did not adduce any evidence in his defence.

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9.On the conclusion of the trial, the learned Sessions Judge, Bahawalnagar 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 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 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 statements of Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5). 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.

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Lastly, the learned Deputy Prosecutor General 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.The whole prosecution case revolves the evidence of two eye witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW- 5). Both the witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) were related to each other as well as the deceased. The deceased namely Muhammad Shakeel was the real brother of Muhammad Ibrahim (PW-4) and the maternal nephew of Ahmad Hassan (PW-5).

According to these prosecution witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) ,the occurrence took place in front of the shop of one Abdul Latif when they were standing their along with the deceased . According to the prosecution evidence the said shop was at a distance of 35 feet from the house of Muhammad Ibrahim (PW-4) and the deceased. What has raised our concern is the fact that the occurrence took place at night time after 7.00 p.m on the sixth day of December,2015, however no source of light ,which could have enabled the witnesses to see the occurrence, was produced before the Investigating Officer of the case or even before the learned trial court . We have scrutinized the statements of both the eye witness namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) and find that though they stated that the occurrence took

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place after 7.00 p.m and it was dark at the time, however, they admittedly did not state in their statements before the learned trial court that their existed any source of light at the place of occurrence which allowed them to see the occurrence. It was also not the claim of both the prosecution witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-

5)that they were blessed with any ability to see in the dark. Both the witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-

5)admitted quite candidly that no such source of light was taken into possession by the Investigating Officer of the case nor the same was produced by them during the investigation of the case or before the learned trial court. Muhammad Ibrahim (PW-4) during cross-examination admitted as under:-

“ Site plan was prepared on my pointation. It is correct that electric bulb is not shown in the site plan

It is correct that sunset at 5.00 p.m.”

Similarly, Muhammad Din Abid draftsman (PW-6) also admitted that in the scaled site plan of the place of occurrence (Exh.PD) as prepared by him, there was no source of light shown in the same. Muhammad Din Abid draftsman (PW-6) admitted during cross-examination as under:- “ It is correct that in the site plan Exh.PD and Exh.PD/1 I have not shown any bulb.”

Abdul Hakeem, SI (PW-12), the Investigating Officer of the case, also admitted that the occurrence had taken place when it was dark, however during his visit to the place of occurrence and even subsequently, he did not take into possession any such source of light which was lit at the place

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of occurrence, at the time of occurrence. Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case admitted during cross-examination as under:-

“It is correct that the occurrence took place in the moth (sic) of December. It is also correct that on the eventful day, the sun set time was of 5:00 P.M.

I had not shown the source of light in my visual site plan, however, there is sufficient arrangement of light in the street. No bulb was taken into possession. I have not shown the presence of light in front of the grocery shop of Abdul Lateef Bhutta. ” (emphasis supplied) We ourselves have also perused the scaled site plan of the place of occurrence (Exh.PD) as prepared by Muhammad Din Abid , draftsman (PW-6) and the rough site of the place of occurrence (Exh.PJ) as prepared by Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case , and have noted with concern that no source of light as being available at the place of occurrence has been mentioned in the said site plans. We have noted that even the presence of any electricity pole installed at the place of occurrence or the present of any electricity supply cables has also not been mentioned in the scaled site plan of the place of occurrence (Exh.PD) as prepared by Muhammad Din Abid , draftsman (PW-6) and the rough site of the place of occurrence (Exh.PJ) as prepared by Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case. According to the prosecution evidence, Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case, visited the place of occurrence , after the occurrence on the same night, however, neither observed nor mentioned nor took into

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possession any source of light which was available and lit at the place of occurrence which could have enabled the prosecution witnesses to see the occurrence in the darkness prevalent at the place of occurrence ,at the time of occurrence . The occurrence took place in a village and there cannot be any presumption that electricity was available in the said village when no evidence has been brought on record with regard to the same.

Had any source of light been available at the place of occurrence and had the same source of light been lighted at the time of occurrence then there was no occasion for the said source of light not to have been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer or it being not taken into possession by the Investigating Officer during his visit at the place of occurrence. The joint failure of Muhammad Ibrahim (PW-4) , the complainant of the case and Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case , to take into possession and produce the same the source of light allegedly present at the place of occurrence and lighted up at the time of occurrence, proves that none was available. The prosecution witnesses failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in a gloom cloaking the same with the shroud of obscurity, obscuring all its features. It was admitted by the witnesses themselves that it was a dark night and as the prosecution witnesses failed to prove the availability of any light source, their statements with regard to them identifying the assailant cannot be relied upon. The failure of the prosecution witnesses to

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prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:-

“Admittedly, it was a night time occurrence. According to the contents of FIR and statements of both the witnesses of ocular account, they had witnessed the occurrence in the light of bulb erected at the place of occurrence. Hameed Ullah Khan SI (PW.15) admitted during his cross- examination that he had not recorded the availability of bulb in inspection note. He further admitted that in the scaled site plan (Exh.PE and Exh.PE/1) the Patwari had not shown the availability of bulb.”

Reliance is placed on the case of “Gulfam and another v. The State” (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised”

Reliance is also placed on the case of “Hameed Gul v. Tahir and two others” (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:-

“Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the

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trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along.”

Reliance is also placed on the case of “Basar Vs. Zulfiqar Ali and others” (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:-

“7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.

8.Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.”

Reliance is also placed on the case of “Azhar Mehmood and others v. The State” (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:-

“It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case.”

Reliance is also placed on the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer.”

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14.We have also noted that the alleged eye witnesses namely Muhammad Ibrahim (PW-4) , Ahmad Hassan (PW-5) and Ahmed Yar(not produced) made no effort either to save the deceased or to apprehend the appellant when they were three in number and could have easily restrained the accused. It is unnatural and unbelievable that the alleged eye witnesses namely Muhammad Ibrahim (PW-4) , Ahmad Hassan (PW-

5)and Ahmed Yar(not produced)did not even move a limb to protect their near and dear one. We have perused the postmortem examination report of the deceased and the unfortunate dead lad had received two injuries on his chest during the occurrence . During the receiving of the said injuries, nobody helped him. We have observed that despite the claimed presence of Muhammad Ibrahim (PW-4), Ahmad Hassan (PW-5) and Ahmed Yar(not produced), no effort was made to save the life of the deceased namely Muhammad Shakeel. It was also claimed by both the witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) that their shop was at a distance of only 35 feet from the place of occurrence and according to the witnesses they were keeping their tools including knives and cleavers at the said shop, however, made no effort to reach for the same and protect the deceased . Muhammad Ibrahim (PW-4) during cross examination stated as under:-

“ We kept Churri and Bughda at Phatta.”

The above referred portion of cross-examination of Muhammad Ibrahim (PW-4) makes it all the more bizarre that none of the above mentioned prosecution witnesses actually interfered in order to save the life of the

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victim. During the course of occurrence the prosecution witnesses namely Muhammad Ibrahim (PW-4) ,Ahmad Hassan (PW-5) and Ahmed Yar(not produced) remained silent spectators and did not react at all or show any response when this incident was taking place. Both the witnesses admitted that they did not receive any injury during the occurrence. Muhammad Ibrahim (PW-4) during cross-examination admitted as under:- “It is correct that none of the PWs was injured in the occurrence. The occurrence took place at the distance about 30/35 feet away from our house.”

No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators without doing anything to rescue the deceased or to apprehend the assailant. It is strange that when the witnesses had the desire to apprehend the accused after the occurrence and were not fearful of the assailant at that time, then why they could not stop him from committing the occurrence. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Muhammad Ibrahim (PW-4) , Ahmad Hassan (PW-5) and Ahmed Yar(not produced) had been present at the place of occurrence, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save him. Such behavior, on part of the witnesses, runs counter to natural human conduct and behavior. 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

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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 witnesses, as deposed by them, was opposed to common course of natural events, human conduct and that the witnesses were not present at the time of occurrence at the crime scene. We hence are holding that these witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) were not present at the time of occurrence at the place of occurrence. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances. Reliance is placed on the case of Zulifqar Ali v. The State (2021 S C M R 1373) wherein the Aaugust Supreme Court of Pakistan observed as under:- “Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene”

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Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:-

“The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causing the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot.”

Further reliance is placed on the case of Shahzad Tanveer v. The State (2012 SCMR 172) at page176 wherein the august Supreme Court of Pakistan observed as infra:-

“It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot.”

Reliance is also placed on the case of Liaquat Ali v. The State (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under:

“He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.”

15.Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) at the place of occurrence is the fact that they never reported the matter to the police for as many as more than three hours and neither made any effort to take the deceased to any hospital during the said time period. According to the prosecution case, Muhammad Akhtar, ASI (PW-3), got the information about the occurrence and reached the place of occurrence on his own. No one out of

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the witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) had told him about the occurrence. We have also observed with grave concern that none of the witnesses including Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Muhammad Akhtar, ASI (PW-3) ,at the place of occurrence on his own. Moreover, the oral statement (Exh.PA) of Muhammad Ibrahim (PW-4) was recorded by Muhammad Akhtar, ASI (PW-3) at the place of occurrence after his arrival there at 10.30 p.m whereas the occurrence had taken place just after 7.00 p.m. 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.”

We have also noted that according to the prosecution evidence, the police station was situated at a distance of only 10-15 minutes drive from the Police Station from the place of occurrence, however, still no one proceeded to report the matter. Abdul Hakeem, SI (PW-12), the Investigating Officer of the case, during cross-examination stated as under:-

“ The place of occurrence is at a distance of 10 to 15 minutes drive from the Police Station .

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On learning the sadful incident the police arrived at about 10.30 p.m at the place of occurrence.” (emphasis supplied)

We have also noted that despite the fact that the occurrence had allegedly taken place at about just after 7.00 p.m, the formal FIR (Exh.PA/1) was not registered till 11.00 p.m. No effort was made to report the matter to the police for as many as four hours after the occurrence. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one, because, the witnesses never reported the matter to the police for as many as four hours. Being conscious of this flaw in the prosecution case, Muhammad Ibrahim (PW-

4), the complainant of the F.I.R , in his statement before the learned trial court stated that they after the occurrence had made a call to the Punjab Emergency Service (Rescue 1122) after the occurrence and they arrived at the place of occurrence. Muhammad Ibrahim (PW-4) during cross- examination stated as under:-

“When we informed 1122 then we also informed the police. I do not know from which number the call was made. Our neighbour namely Sarfraz made call. It is incorrect to suggest that I was not present at the spot. All the proceedings were taken place by Sarfraz. The police reached at reached at the spot after about 10:30 p.m. Police reached at the spot after 1 1⁄2 hours of our information.” (emphasis supplied).

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However, during the course of trial no such witness of the Punjab Emergency Service (Rescue 1122) was produced before the learned trial court to prove the claim of Muhammad Ibrahim (PW-4) nor any documentary evidence was produced related to the arrival of the officials of the Punjab Emergency Service (Rescue 1122) at the place of occurrence. Even during the investigation of the case Abdul Hakeem, SI (PW-12), the Investigating Officer of the case admittedly did not join any such witness of the Punjab Emergency Service (Rescue 1122) who had allegedly arrived at the place of occurrence on the call of Muhammad Ibrahim (PW-4). Furthermore, Sarfraz, the person who had made the call to the Punjab Emergency Service (Rescue 1122) neither appeared before the Investigating Officer of the case during the investigation of the case nor before the learned trial court in support of the said claim of Muhammad Ibrahim (PW-4).This inordinate delay in reporting the matter to the conclusively proves that the oral statement (Exh.PA) of Muhammad Ibrahim (PW-4) and the formal F.I.R (Exh.PA/1) were prepared after probe, consultation, planning, investigation and discussion.

As many as four hours were taken to invent a false and dishonest narrative of the oral statement (Exh.PA) of Muhammad Ibrahim (PW-4). The scrutiny of the statements of the witnesses reveals that the oral statement of Muhammad Ibrahim (PW-4) was neither prompt nor spontaneous, rather a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences there absence at the

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time of occurrence , at the place of occurrence. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:-

“As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrence at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m.

In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out .”

Reliance is also placed on the case of MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others (2017 SCMR 199) wherein the august Supreme Court of Pakistan was pleased to hold as under:

“The hospital is closely situated to the Police Station but neither the complainant nor PWs took a little pain to report the matter, nor the staff of the hospital including the treating doctor took initiative.”

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Zafar vs. The State and others

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(2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:-

“It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m.

i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay in lodging the FIR or for that matter the belated postmortem of the deceased.”

Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of “G. M. NIAZ Vs. The State” (2018 SCMR 506), Abdul Jabbar and another Vs. The State (2019 S C M R

129)and Muhammad Shafi alias Kuddoo Vs. The State and others (2019

S C M R 1045).

16.We have also noted that according to the statement of Dr. Sajid Ali (PW-11), in his opinion the deceased died within half an hour of receiving the injuries, however the prosecution witnesses admittedly made no effort to take the injured to the hospital so as to save his life. This conduct of the witnesses wherein they made no effort to take Muhammad Shakeel (deceased) to the hospital also convincingly establishes that the said witnesses were not present. The august Supreme Court of Pakistan in

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the case of “Zaheer Sadiq v. Muhammad Ijaz and others” (2017 SCMR 2007) has observed as under:

“The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police.”

Another aspect of the case is that the occurrence took place in front of the shop of Abdul Latif Bhutta, however, the said Abdul Latif Bhutta did not appear before the learned trial court as a witness of the case though it was claimed by the prosecution witnesses that at the time of occurrence, the shop of Abdul Latif Bhutta was opened. Ahmad Hassan (PW-5) during cross-examination stated as under:-

“Shop of Abdul Latif Bhutta was opened at the time of occurrence ” Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case, also stated during cross-examination as under:-

“1 joined Abdul Lateef shopkeeper in the investigation but did not record his statement Cr.P.C”

The prosecution failed to produce Abdul Latif Bhutta as a witness before the learned trial court . This failure proves that had Abdul Latif Bhutta, the person in front of whose shop the occurrence had taken place, been produced before the learned trial court then he would not have supported the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have

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been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under: - “(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled “Nadeem alias Nanha alias Billa Sher Vs.

The State” (2010 SCMR 949) wherein it has been observed as under: - “.... further that no independent witness of the locality where the incident took place, a “Bazar” joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt.”

The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable.

17.We have also noted with disquiet that despite the fact that the occurrence took place at about 7.00 pm on 06.12.2015, the postmortem examination on the person of the deceased was conducted after a delay.

According to the Post Mortem Examination Report (Exh.PF) , Dr. Sajid Ali (PW-11) , conducted the post mortem examination of the dead body of the deceased namely Muhammad Shakeel (deceased) at 12.50 a.m. on 07.12.2015. Dr. Sajid Ali (PW-11) ,who conducted the post mortem examination of the dead body of Muhammad Shakeel son of Allah Ditta (deceased) and prepared the post mortem examination report (Exh. PF),

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gave the time between death and post mortem examination as being within 02 to 12 hours. According to the Post Mortem Examination Report (Exh.PF) , Dr. Sajid Ali (PW-11) received the complete document from the police at 12.30 a.m on 07.12.2015 despite the claim of the prosecution witnesses that the occurrence had taken place at about 7.00 p.m and on 06.12.2015 and the formal F.I.R (Exh.PA/1) had been recorded at the Police Station at 11.00 p.m on 06.12.2015. This evidence clearly establishes the fact the post mortem examination of the dead body of the deceased was delayed and the delay was due to late arrival of the dead body and the late submission of police papers. Dr. Sajid Ali (PW-11) also observed presence of rigor mortis which fact also proves that the post mortem examination was conducted with substantial delay. In Chapter 15 “POST-MORTEM CHANGES AND TIME SINCE DEATH”, from page 351 to page 352 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) ,it has been discoursed as under:-:

"Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.

Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.

Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the

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right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.

In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However, according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor.

Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology”, observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function" and in the “The Principles And Practice Of Medical Jurisprudence” by Alfred Swaine Taylor,MD , a similar duration for rigor mortis to develop has been declared.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

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Supreme Court of Pakistan in the case of “Khalid 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

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Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the 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 has also relied upon the recovery of the Churri (P-4) made from the appellant and the report of the Punjab Forensic Science Agency, Lahore (Exh.PL). Regarding the recovery of the Churri (P-4) from the appellant namely Muhammad Ismail son of Karam Din cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the Churri (P-4) from the appellant namely Muhammad Ismail son of Karam Din which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore 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.

Furthermore, the place of recovery was not under the conscious control of the appellant and the Churri (P-4) was laying at an open place accessible to everyone. It was incumbent from the prosecution to prove the exclusive possession of the appellant with regard to the recovered Churri (P-4) and the exclusive control of the appellant over the place of the recovery, for the same to be used as a corroborative piece of evidence. Muhammad Younis (PW-8) during cross-examination admitted as under:-

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“The complainant is my nephew. It is correct that all family members reside When we went in the house of accused together to the house of accused for the recovery, mother of the accused opened the door. Door of the room, from where recovery was effected, was opened. Sisters of the accused except his mother were also present in the house. Recovery was effected after 19/20 days of the occurrence . Churi was lying on the "Paiti" at open place. At the time of recovery proceedings, any Lumberdar, Member or councilor was not summoned. ” The Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case , during cross-examination admitted as under:-

“The recovered churree was a common patron and easily available in the market. The other family members of the accused are living in the said house from where the recovery is affected. The door of the house of the accused was opened. The alleged churree was lying on open place at jasti patti.

There are two or three Lumberdars of the said village. I did not cite them as a witness in the instant case.” (emphasis supplied) .

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.”

Another aspect of the case is that the occurrence took place on 06.12.2015, whereas the Churri (P-4) was sent to the office of Punjab Forensic Science Agency, Lahore, on 20.01.2016 and was analyzed on 01.03.2016.

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During such a long period the blood available on the Churri (P-4), if any, would have disintegrated. It is not possible to believe that the blood had not disintegrated by then and was scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of “Faisal Mehmood Vs. The State” ( 2016 SCMR 2138) has held as under:- “The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”

We have also noted that according to the statement of Muhammad Bilal Anjum 374/HC (PW-1) it was on 09.01.2016 that Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case handed over to him one sealed parcel said to contain blood stained Churri and he on 19.01.2016 handed over the said parcel to Fazal Karim, ASI (PW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. In this manner, it has not been explained as to why the Churri, which was recovered and taken into possession by Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case , on 25.12.2015 was not handed over to Muhammad Bilal Anjum 374/HC (PW-1) till 09.01.2016. Muhammad Bilal Anjum 374/HC (PW-1) during his statement before the learned trial court stated as under:-

“......on 09.1.2016 the 1.0 of this case deposited sealed parcel containing blood stained ‘Churi’ for safe custody and its onward

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transmission to the concerned office and on 19.01.2016 I handed over this parcel to Fazal Karim, ASI.” (emphasis supplied) .

The above referred portion of cross-examination clearly proves the fact that the prosecution failed to prove the safe and secured custody of the blood stained Churri (P-4) recovered from the appellant and its deposit to the Punjab Forensic Science Agency, Lahore . The Churri (P-4) recovered from the appellant and taken into possession by Abdul Hakeem, SI (PW-

12), the Investigating Officer of the case, on 25.12.2015 was admittedly not handed over to the Moharrir of the Police Station till 09.01.2016 and therefore, no reliance can be placed on the report of Punjab Forensic Science Agency, Lahore (Exh.PL) as the possibility of manipulation is apparent. For all the above reasons the recovery of Churri (P-4) from the appellant namely Muhammad Ismail son of Karam Din is not proved .

19.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 Ibrahim (PW-4) and Ahmad Hassan (PW-5) was that the appellant and the deceased had an altercation with each other just before the occurrence and during the said altercation the appellant and the deceased abused, grappled and slapped each other. Though the occurrence took place just after the said altercation between the deceased and the appellant, however, Dr. Sajid Ali. (PW-11), at the time of the Post-Mortem examination of the dead body of the deceased, did not observe any mark of any injury or violence which the deceased should have had on his body if such an altercation

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between him and the appellant had indeed taken place just prior to the occurrence. The absence of any mark of any injury or violence observed by Dr. Sajid Ali. (PW-11) on the dead body of the deceased relatable to the earlier altercation between the deceased and the appellant denudes the fact that none had taken place. Another aspect of the case is that according to the prosecution witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5), the earlier altercation between the appellant and the deceased had taken place due to the fact that the appellant was sitting on the Phatta of the shop of the deceased while wearing shoes and upon seeing this act of the appellant, the deceased confronted him and also fought with him. During the course of investigation, Abdul Hakeem, SI (PW-12) , the Investigating Officer of the case , did not take into possession any article from the shop of the deceased to establish the fact as to whether such a shop existed and if it existed then was it having a “Phatta” , upon which alleged “Phatta” the deceased had sat with his shoes on , prior to the occurrence . In absence of any evidence to prove the existence of the shop of the deceased we cannot presume it on our own. Moreover, both the witnesses namely Muhammad Ibrahim (PW-4) and Ahmad Hassan (PW-5) admitted during cross-examination that there did not exist any enmity between the deceased and the appellant.

Muhammad Ibrahim (PW-4) during cross-examination stated as under:- “It is correct that there was no enmity with Ismail earlier.”

After going through the evidence of the prosecution witnesses we have come to the irresistible conclusion that the prosecution witnesses failed to

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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 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.”

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.The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by a Dr. Sajid Ali (PW-11) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellant”s conviction cannot be upheld on the basis of medical evidence alone. The august

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Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”

21.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Ismail son of Karam Din, 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 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:

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“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.”

22.For what has been discussed above,the Criminal Appeal No.313 of 2018 lodged by Muhammad Ismail son of Karam Din (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 24.04.2018 are hereby set-aside. Muhammad Ismail son of Karam Din (appellant) is ordered to be acquitted by extending him the benefit of doubt.

Muhammad Ismail son of Karam Din (appellant) is in custody and is directed to be released forthwith if not required in any other case.

23.Murder Reference No.17 of 2018 is answered in Negative and the death sentence awarded to Muhammad Ismail son of Karam Din is Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

APPROVED FOR REPORTING

JUDGE JUDGE