The State vs Muhammad Rizwan

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 33 of 2019 (The State Vs. 1.Muhammad Rizwan

2.Muhammad Usman)

Criminal Appeal No. 656 of 2019 (Muhammad Rizwan and another Vs. The State and another.)

Date of hearing: 20.09.2021 Appellants by: Mr. Muhammad Umair Mohsin, Advocate. State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

JUDGMENT.

SADIQ MAHMUD KHURRAM, J.– Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir (convicts) were tried by the learned Additional Sessions Judge, Haroonabad in the case FIR No. 81 of 2015 dated 23.02.2015 registered at Police Station Faqirwali, District Bahawalnagar in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Mst. Shamshad Anjum widow of Muhammad Saleem and Kiran Akbar daughter of Akbar Ali (deceased). The learned trial court vide judgment dated 31.10.2019, convicted Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir (convicts) and sentenced them as under:

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Muhammad Rizwan son of Muhammad Munir:

i)Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Mst. Shamshad Anjum widow of Muhammad Saleem (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Mst. Shamshad Anjum widow of Muhammad Saleem (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.

ii)Imprisonment for life under section 302(b) read with section 34 PPC as Tazir for committing Qatl-i-Amd of Kiran Akbar daughter of Akbar Ali (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Kiran Akbar daughter of Akbar Ali (deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.

Muhammad Usman son of Muhammad Munir:

i)Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Kiran Akbar daughter of Akbar Ali (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Kiran Akbar daughter of Akbar Ali (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.

ii)Imprisonment for life under section 302(b) read with section 34 PPC as Tazir for committing Qatl-i-Amd of Mst. Shamshad Anjum widow of Muhammad Saleem (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Mst. Shamshad Anjum widow of Muhammad Saleem (deceased) and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.

All the sentences awarded to both the convicts were ordered to run concurrently by the learned trial court. The convicts were also extended the benefit available under Section 382-B of Code of Criminal Procedure,

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2.Feeling aggrieved, Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir (convicts) lodged Criminal Appeal No.656 of 2019 assailing their convictions and sentences. The learned trial court submitted Murder Reference No.33 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir. We intend to dispose of the Criminal Appeal No. 656 of 2019 and Murder Reference No.33 of 2019 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Muhammad Farooq Tahir (PW-1), the complainant of the case, are as under:-

“On 23-02-2015 at about 1:00 PM I was present at my home. On hearing hue, cry and noise of firing, I came out from my house. My sister namely Shamshad Anjum was standing in front of the house. Rizwan and Usman accused persons present in the court while armed with 12 bare guns repeater and two unidentified persons while armed with pistols 30 bore were making aerial firing. In my view, accused Muhammad Rizwan made a fire shot with his gun repeater 12 bore which hit on the left flank of sister Shamshad Anjum, who fell down. In the meanwhile, on hearing the noise of firing, Mst Kiran Akbar aged 12/13 years who was coming in the street, tried to enter the home. Muhammad Usman accused made a fire shot with his gun 12 bore repeater which hit to her at between her right shoulder and clavicle bone (collar bono) and she fell down .Two unidentified persons remained making aerial firing which hit the walls of our house. On hearing the hue, cry and noise of firing, Muhammad Saeed s/o Muhammad Younas and Muhammad Rauf s/o Muhammad Amin Caste Arain r/o Chak No.433/6-R alongwith many other people of the same village attracted to the spot and witnessed the occurrence. On seeing the P.Ws accused persons while brandishing their fire arms and making serial firing fled

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away on their motorcycles. We attended to Mst. Shamshad Anjum and Kiran Akbar but they succumbed to their injuries at the spot. Motive behind this occurrence was my sister Shamshad Anium had got registered a criminal case F.I.R. No.354/2014 u/s 452/34 PPC at Police Station Faqirwali against the accused persons, due to which above said accused persons committed murder of my sister Shamshad Anjum and Kiran Akbar.

I left Muhammad Saeed and Rauf P.Ws to guard the dead bodies and reported the matter at Police Station Faqirwali by submitting a written application Exh. PA signed by me On the basis of my application, F.I.R.

was registered, police accompanied me at the place of occurrence and conducted the investigation.

After postmortem of the dead bodies of Shamshad Anjum & Kiran Akbar, I.O. Muhammad Azhar Saced SI handed over the dead bodies in lieu of a receipt Exh. PB which is signed by me. ”

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 appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir were sent to face trial. The learned trial court framed the charge against the accused on 25.05.2015, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case got statements of as many as twelve witnesses recorded. The ocular account of the case was furnished by Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2). Zahid Mehmood (PW-3) stated that on 23.02.2015 he identified the dead body of the deceased namely Mst. Shamshad Anjum at the time of the post mortem examination and the Medical Officer handed over the

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last worn clothes of the deceased to the Investigating Officer of the case.

Zahid Mehmood (PW-3) further stated that on 20.03.2015, the appellant namely Muhammad Rizwan led to the recovery of Repeater gun 12-bore (P-9), seven live cartridges (P-10/1-7), magazine (P-11) and a motorcycle (P-12), whereas on the same day the appellant namely Muhammad Usman led to the recovery of Repeater gun 12-bore (P-6), eight live cartridges (P- 7/1-8), magazine (P-8). Akbar Ali (PW-4) stated that on 23.02.2015 he identified the dead body of the deceased namely Kiran Akbar at the time of the post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case.

Ghulam Yasin tracer (PW-5) stated that he prepared the scaled site plan of the place of occurrence (Exh.PL). Muhammad Rafique 132/HC (PW-6) stated that on 23.02.2015 the Investigating Officer of the case handed over to him two sealed parcels said to contain earth, two envelopes and six jars and on 08.03.2015 he handed over the two sealed parcels said to contain blood stained earth to Muhammad Naseer 1279/C (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and on 11.03.2015 he handed over six jars to Muhammad Naseer 1279/C (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore . Muhammad Rafique 132/HC (PW-6) stated that on 23.02.2015 the Investigating Officer of the case handed over to him one sealed parcel said to contain empties and on the same day he handed over the sealed parcel said to contain the empties to Muhammad Naseer 1279/C (PW-7) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Rafique

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132/HC (PW-6) further stated that on 13.04.2015 the Investigating Officer of the case handed over to him two sealed parcels said to contain weapons recovered from the appellants and on the same day he handed over the said two sealed parcels said to contain the recovered weapons to Muhammad Naseer 1279/C (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Abdullah 235/C (PW-9) stated that on 23.02.2015 the Investigating Officer of the case handed over to him the dead bodies of the deceased for escorting them to the hospital for post mortem examination and he also received the last worn clothes of both the deceased after post mortem examination from the Medical Officer. Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case, investigated the case from 23.02.2015 till 10.04.2015, arrested both the appellants on 11.03.2015, 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. Ayesha Attique (PW-11) examined, who on 23.02.2015 was posted as Woman Medical Officer at THQ, Hospital, Haroonabad and on the same day conducted the postmortem examination of the dead body of Mst. Shamshad Anjum widow of Muhammad Saleem (deceased). Dr. Ayesha Attique (PW-11) ,on examining the dead body of Mst. Shamshad Anjum widow of Muhammad Saleem (deceased) observed as under:-

“ INJURIES:

1)1 X 1 CM X Cavity deep, punctured wound on the postrolateral surface of left chest, at the level of 7th and 8th ribs, margins of wound were inverted, blackening and burning was present. Tear on the adjacent clothes present.

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2)4 cm x 5 cm ecchymosis raddish (sic) blue in colour on the right breast just lateral to nipple.

Opinion:

After doing external and internal postmortem examination of the dead body, I am of the opinion that cause of death in this case was due to excessive bleeding by damaging the vital organs, liver, lungs and heart that leads to shock and death, caused by injury No.1 by fire arm weapon which was sufficient to cause death in ordinary course of nature. Injuries No.1 and 2 was through and through. Time between injury and death was immediate and time between death and postmortem was within 12 hours. Exh.PP is the correct carbon copy of postmortem report No.2/2015 which is in my hand and bear my seal and signature. Exh.PP/1 diagram showing the seats of injuries are also in my hand and bear my seal and signature. I also the injury statement Exh.PM and inquest report Exh.PM/1 of the dead body prepared by police. On completion of postmortem I handed over stitched dead body, postmortem report and all relevant papers to Mahmood Ahmad SI.”

Dr. Ayesha Attique (PW-11) on 23.02.2015 also conducted the postmortem examination of the dead body of Kiran Akbar daughter of Akbar Ali (deceased). Dr. Ayesha Attique (PW-11), on examining the dead body of Kiran Akbar, daughter of Akbar Ali (deceased) observed as under:-

INJURIES.

1)3 X 3 CM X oval shape X Cavity deep, punctured wound on the left side of chest, mildy lateral to left, margins of wound were inverted, blackening and burning was present. Underline sternum was fractured into pieces.

2)2 cm x 1.5 cm oval shape punctured wound on lateral and front of left chest just below the left shoulder at the level of left clavical. Underline left clavical was fractured. Margins of the wound were inverted, blackening and burning was present.

3)2.5 cm X 1.5 cm x cavity deep punctured wound in the center of front of chest at the level of Xiphisternum, blackening and burning was present. Margins of the wound were inverted.

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4)1.5 cm x 1.5 cm oval shape punctured wound X cavity deep on the front of left arm 8 cm below left shoulder joint, blackening and burning was present. Margins of the wound was inverted.

5)1.5 cm X 1.5 cm oval shape punctured wound on the back of left arm 10 cm below the left shoulder joint, blackening and burning was not present. Margins of the wound were (everted. Injuries No.4 and 5 were through and through.

6)4 cm x 4 cm X skin deep lacerated wound on the lateral surface of left chest and antroposteriorly, blackening and burning was present.

7)1.5 cm x 1.5 cm oval shape punctured wound on the front of left arm 6 cm above left elbow joint, blackening and burning was present. Margins of the wound were inverted.

8)1.5 cm X 1.5 CM oval shape punctured wound on the back of left arm 6 cm above left elbow joint, blackening and burning was not present. Everted Margins of the wound were everted. Injuries No.7 and 8 were through and through.

9)2 cm x 2 cm x cavity deep oval shape punctured wound on the back of right chest, margins were everted blackening and burning was not present. profuse bleeding was present. Injuries No.1 and 9 were through and through.

OPINION.

After doing external and internal postmortem examination of the body, I am of the opinion that cause of death in this case was due to excessive bleeding by damaging the vital organs, lungs and heart that leads to shock and death, all the injuries were anti mortem in nature and were caused by arm weapon which was sufficient to cause death in ordinary course of nature. Time between injury and death was immediate and time between death postmortem was within 12 hours. Exh.PQ is the correct carbon

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copy of mortem report No.3/2015 which is in my hand and bears my seal.”

7.On 09.05.2017 the learned ADPP gave up the prosecution witnesses namely Muhammad Rauf, Muhammad Boota and Muhammad Rafique as being unnecessary. On 11.07.2017 the learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PT) regarding the analysis of the blood stained earth, the report of Punjab Forensic Science Agency, Lahore (Exh.PU) regarding the analysis of the crime empties and the recovered weapons, the copy of F.I.R No.354 of 2014 (Exh.PR) and the report under section 173 of the Code of Criminal Procedure, 1898 of the case F.I.R No.

354 of 2014 (Exh.PS).

8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir 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 appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir opted not to get themselves examined under section 340(2) Cr.P.C.

however, the appellant namely Muhammad Usman son of Muhammad Munir produced copy of appeal (Exh.DC), copy of suit (Exh.DD), copy of another suit (Exh.DE), copy of application under section 22-A of the

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Code of Criminal Procedure, 1898 (Exh.DF), copy of order of the same (Exh.DG) and registration book of motorcycle (Mark-D-1) as evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Haroonabad convicted and sentenced the appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir as referred to above.

10.The contention of the learned counsel for the appellants 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 appellants 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 appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence due to enmity. The learned counsel for the appellants 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 both the deceased died as a result of injuries suffered at the hands of the appellants. The learned Deputy

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Prosecutor General further contended that the medical evidence also corroborated the statements of Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2). 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 offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General prayed for the rejection of the appeal.

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

13.We have noted with grave concern that the ocular account of the occurrence as furnished by the witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) is flawed beyond mending and has disfigured the complexion of the whole prosecution case beyond repair and recognition. The statements of both the eye witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) are in direct contrast and contradictory to the observations and the opinion of Dr. Ayesha Attique, (PW-11), who conducted the post mortem examinations of the dead bodies of both the deceased namely Shamshad Anjum and Kiran Akbar. According to the statements of both the witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2), they had seen the appellant namely Muhammad Usman son of Muhammad Munir firing once at Kiran Akbar (deceased) during the occurrence and the said fire hit (Kiran Akbar) deceased between her

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right shoulder and the clavicle bone. Muhammad Farooq Tahir (PW-1) in his examination in-chief stated as under:-

“Muhammad Usman accused made a fire shot with his gun 12 bore repeater which hit to her at between her right shoulder and clavicle bone (collar bono) and she fell down.” (emphasis supplied) .

Similarly, Muhammad Saeed (PW-2) in his examination in-chief stated as under:-

“Mst. Kiran Akbar who was coming in the street, on seeing/hearing the firing she was about to enter the home, then accused Muhammad Usman made a fire shot with his gun repeater 12 bore which hit in between left shoulder and clavicle bone (collar bone) of Mst. Kiran Akbar, who fell down.” (emphasis supplied) .

Contrary to the above referred statements of both the eye witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) that they had seen the appellant namely Muhammad Usman son of Muhammad Munir firing once during the occurrence at Kiran Akbar (deceased) and the said fire hit Kiran Akbar (deceased) between her right shoulder and the clavicle bone ,Dr. Ayesha Attique, (PW-11), who conducted the post mortem examination of the dead body of the deceased namely Kiran Akbar, observed as many as six independent entry wounds caused by firearm present on the dead body of Kiran Akbar (deceased) and the said entry wounds had different dimensions as well as presence of blackening around them . Dr. Ayesha Attique (PW-11) ,on examining the dead body of Kiran Akbar daughter of Akbar Ali (deceased) observed an

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entry wound of the dimension of 3cm x 3 cm present on the left side of chest, mildly lateral to left and the margins of wound were inverted with blackening and burning present and the sternum was fractured into pieces and also observed another entry wound of the dimension of 2 cm x 1.5 cm present on lateral and front of left chest, just below the left shoulder at the level of left clavicle with the clavicle fractured and the presence of blackening and burning and observed another entry wound of the dimension of 2.5 cm x 1.5 cm present on the front of chest at the level of xiphisternum with blackening and burning and observed another entry wound of the dimension of 1.5 cm x 1.5 cm present on the front of left arm, 8 cm below the left shoulder joint with blackening and burning and observed another entry wound of the dimension of 4 cm x 4 cm present on the lateral surface of left chest with blackening and burning and also observed another entry wound of the dimension of 1.5 cm x 1.5 cm present on the front of left arm, 6 cm above left elbow joint with blackening and burning . Out of these six entry wounds observed by Dr.

Ayesha Attique (PW-11) ,on examining the dead body of Kiran Akbar daughter of Akbar Ali (deceased), the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) failed to mention as many as five of them. The wounds observed by Dr. Ayesha Attique (PW-11) ,on examining the dead body of Kiran Akbar daughter of Akbar Ali (deceased), were independent wounds and could not have been the result of a single fire as stated by the eye witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2). The deceased namely Kiran Akbar daughter of Akbar Ali received number of

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firearm entry wounds on front of her body as well as back however the witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) spoke of her receiving a single fire. The said opinion of Dr. Ayesha Attique (PW-11) that she had observed as many as six entry wounds on the body of Kiran Akbar daughter of Akbar Ali (deceased) was never challenged by the prosecution either during the investigation of the case or during the course of trial. The prosecution witnesses very well knew that the observations and opinion Dr. Ayesha Attique (PW-11) were in themselves sufficient to shatter the very foundation upon which the prosecution case was built however, even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr. Ayesha Attique (PW-11) or if the same could not be challenged, then to explain the same. Even during the course of investigation the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) could not explain this contradiction and Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case, admitted this fatal flaw of the prosecution case during his cross-examination. Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case , admitted during his cross-examination as under:-

“It is correct that I did not note injury in the mid of left clavicle bone and left shoulder of deceased Kiran Akbar however I had noted one injury near to the left shoulder on its left side besides other eight injuries. I had not interrogated the complainant and eye witnesses in this respect as to whether Kiran Akbar having nine injuries on her body and the P.Ws had disclosed only one injury i.e. In the mid of left clavicle bone and left shoulder.”

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Despite our repeated queries, the learned Deputy Prosecutor General has failed to explain the said discrepancy in the prosecution evidence. In this manner, irreconcilable and harrowing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) and the medical evidence as furnished by Dr. Ayesha Attique (PW-11). The contradictions in the ocular account of the occurrence, as narrated by Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) and the medical evidence as furnished by Dr.

Ayesha Attique (PW-11), clearly establish that the prosecution miserably failed to prove the charge against the appellants . The contradictions in the ocular account of the occurrence, as narrated by Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) and the medical evidence as furnished by Dr. Ayesha Attique (PW-11), sounded the death knell for the prosecution case and proved to be the cause of its sad demise. Had the witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) seen the occurrence then there did not exist any possibility that they would fallen into error. Reliance is placed on the case of “Muhammad Ashraf Vs. The State” ( 2012 S C M R 419) where the august Supreme Court of Pakistan was pleased to hold as under “Both the eye-witnesses are not natural witnesses and they claimed that they had seen the incidence but had failed to explain two injuries caused with blunt weapon on the forehead and below the left eye of the deceased and had only attributed one injury to the appellant at the back of his ear.”

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Reliance is also placed on the case of USMAN alias KALOO Vs. The State (2017 S C M R 622) where the august Supreme Court of Pakistan was pleased to hold as under:-

“Some of the above mentioned eye-witnesses had maintained that the deceased had received only one injury at the hands of the appellant but the Post-mortem Examination Report shows that the deceased had received as many as 8 injuries on different parts of his body.”

Reliance is also placed on the case of Muhammad Hussain Vs. The State (2008 S C M R 345) where the august Supreme Court of Pakistan was pleased to hold as under:-

“Only one fire-arm injury was attributed to Muhammad Hussain petitioner but according to the post-mortem report there was another injury on the person of deceased caused with blunt weapon.”

Guidance is also 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 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

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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.”

14.Another vital point in the case attracting our attention is the fact that the written application (Exh. PA) of Muhammad Farooq Tahir (PW-1) was received by Muhammad Azhar Saeed Paracha, SI (PW-10) the Investigating Officer of the case , at the Police Station at 5.00 p.m on 23.02.2015 whereas the occurrence had taken place on 23.02.2015 at 1.00 pm. The written application (Exh. PA) was hence submitted after four

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hours of the occurrence. Muhammad Saeed (PW-2) admitted during cross- examination as under:-

“It takes 45 minutes to reach Police Station on motorcycle.”

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 according to the prosecution case, as a result of firing made at the place of occurrence, both the deceased namely Shamshad Anjum and Kiran Akbar died at the place of occurrence and the same fact was also confirmed by the witnesses, however the witnesses never reported the matter to the police for as many as four hours. We have also noted that according to the column No.11 of the inquest report (Exh.PM/1) relating to the deceased namely Shamshad Anjum and according to the column No.11 of the inquest report (Exh.PN/1) relating to the deceased namely Kiran Akbar, the blood of the deceased had coagulated when the inquest report (Exh.PM/1) relating to the deceased namely Shamshad Anjum and the inquest report (Exh.PN/1) relating to the deceased namely Kiran Akbar, were prepared, revealing that the said documents had been prepared with much delay. These aspects of the prosecution case has left no doubt in our minds that both the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) were not present at the place of occurrence , at the time of occurrence and also had not witnessed the occurrence . There must be some plausible reason for this failure of the witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) not to

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report the matter to the police promptly, however none is available and hence, doubts have arisen regarding the very presence of the witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) at the place of occurrence, at the time of occurrence . An inference against the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) has to be drawn in this regard. 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 (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.”

Furthermore, it can be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the written application (Exh.PA) of the complainant, namely Muhammad Farooq Tahir (PW-1) was prepared and the same was neither prompt nor spontaneous, hence worthy of the no reliance.

15.We have also noted that both the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) were admittedly not the residents of the place of occurrence. According to Muhammad Farooq Tahir (PW-1), his residence was at a distance of 100

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feet from the place of occurrence, and in another street. Muhammad Farooq Tahir (PW-1) during cross-examination stated as under:- “My house falls at the distance of about 100 feet in the next street of the place of occurrence.”

Similarly, the other eye witness of the case namely Muhammad Saeed (PW-2) admitted that his house was at a distance of 1.5 acres from the place of occurrence. Muhammad Saeed (PW-2) admitted during cross- examination as under:-

“It is correct that my house falls at a distance of 1 1⁄2 acres towards north from the place of occurrence.”

Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case , admitted during cross-examination that during the investigation of the case he had prepared the rough site plan of the place of occurrence (Exh.PO) , however had not shown the existence of the residences of the witnesses in the same. During cross-examination Muhammad Azhar Saeed Paracha, SI (PW-10) admitted as under:- “It is correct that neither the complainant nor the P.Ws showed me the existence of their house near the place of occurrence so I did not mention it in the rough site plan. ”

In this manner, it is an admitted fact that both the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) did not have their residences or their places of employment near or around the place of occurrence. Both the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) can be termed as “chance witnesses” and hence were under a duty to prove the reason and the circumstances for their presence at the place of

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occurrence, at the time of occurrence , which they failed to do. We have also perused the scaled site plan of the place of occurrence (Exh.PL) as prepared by Ghulam Yasin Tracer (PW-5) and the rough site plan (Exh.PO) as prepared by Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case , and find that no house nor any temporary place of residence belonging to the witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) is marked in the same. None who had their residences at the place of occurrence appeared before the Investigating Officer of the case during the investigation of the case nor appeared before the learned trial court in support of the statements of the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2). The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case. 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. The guidance is sought from the binding decision of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State (2010 SCMR 949). We have also noted that the alleged eye witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) were not mentioned in column No.4 or page 4 of the inquest report (Exh. PM/1) relating to the deceased namely Mst. Shamshad Anjum as being the ones who were present at the time of preparation of the said inquest report (Exh. PM/1) by the investigating officer and the alleged eye witnesses

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namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) were also not mentioned in column No.4 or page 4 of the inquest report (Exh. PN/1) relating to the deceased namely Kiran Akbar as being the ones who were present at the time of preparation of the said inquest report (Exh. PN/1) by the investigating officer. These witnesses were also not the ones who had identified the dead body of the deceased at the time of the postmortem examinations of the dead bodies of the deceased 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 case of “Muhammad Rafiq v. State” (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of “Usman alias Kaloo v.

State” (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses, and they were not inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, chance witnesses and not

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worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724) .

16.Not only both the prosecution witnesses namely Muhammad Farooq Tahir (PW-1) and Muhammad Saeed (PW-2) failed to mention any reason for their presence at the place of occurrence, at the time of occurrence but also failed to establish the exact place of occurrence where the same took place. Muhammad Farooq Tahir (PW-1) in examination in chief stated that occurrence took place outside his house where the deceased Mst. Shamshad Anjum was standing. Muhammad Farooq Tahir (PW-1) in examination in chief recorded by the learned trial court stated as under:-

“On 23-02-2015 at about 1:00 PM I was present at my home. On hearing hue, cry and noise of firing, I came out from my house. My sister namely Shamshad Anjum was standing in front of the house. Rizwan and Usman accused persons present in the court while armed with 12 bare guns repeater and two unidentified persons while armed with pistols 30 bore were making aerial firing.” (emphasis supplied).

As mentioned above, this witness himself admitted subsequently during the cross-examination that the occurrence had not taken place in front of his house rather the same had taken place at a distance of 100 feet from his house, in another street. Similarly, Muhammad Saeed (PW-2) mentioned the place of occurrence as happening of a road leading to Ghalla Mandi Latifabad. Then there is the evidence of Akbar Ali (PW-4), the father of the deceased namely Kiran Akbar, who gave evidence that

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place of occurrence was the street outside the house of Rashid Mehmood Fauji, Akbar Ali (PW-4) during cross-examination stated as under”- “The occurrence took place in the street outside the house of one Rashad Mahmood Fauji. It is correct that house is not owned by any Zahid Mahmood.”

We have also perused the scaled site plan of the place of occurrence (Exh.PL) as prepared by Ghulam Yasin Tracer (PW-5) and the rough site plan (Exh.PO) as prepared by Muhammad Azhar Saeed Paracha, SI (PW-

10), the Investigating Officer of the case .According to the scaled site plan of the place of occurrence (Exh.PL) as prepared by Ghulam Yasin Tracer (PW-5) and the rough site plan (Exh.PO) as prepared by Muhammad Azhar Saeed Paracha, SI (PW-10) , the Investigating Officer of the case, the deceased namely Shamshad Anjum was fired at in front of the house of Zahid Mehmood, whereas the deceased namely Kiran Akbar was fired at in front of the house of Khalid Javed. In this manner the statements of all the prosecution witnesses with regard to the place of occurrence and its identity are contradictory and it is not discernible from the perusal of their statements at to what was the exact place of occurrence and where the deceased received the injuries.

17.We have also noted with disquiet that despite the fact that the occurrence took place at 1.00 p.m on 23.02.2015, the postmortem examinations of the dead bodies of the deceased were conducted with delay. According to the Post Mortem Examination Report (Exh.PP), Dr.

Ayesha Attique (PW-11), conducted the post mortem examination of the dead body of the deceased namely Mst. Shamshad Anjum (deceased) at

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7.00 p.m. on 23.02.2015 and according to the Post Mortem Examination Report (Exh.PQ) Dr. Ayesha Attique (PW-11) conducted the post mortem examination of the dead body of the deceased namely Kiran Akbar at 8.30 p.m on 23.02.2015. Dr. Ayesha Attique (PW-11), who conducted the post mortem examination of the dead body of Mst. Shamshad Anjum (deceased) and prepared the post mortem examination report (Exh. PP), gave the time between death and post mortem examination as being within 12 hours. Furthermore, according to the Post Mortem Examination Report (Exh.PQ) and the Post Mortem Examination Report (Exh. PP), Dr. Ayesha Attique (PW-11) ,received the police paper at 6.45 p.m on 23.02.2015 and thereafter conducted the post mortem examinations of the dead bodies of the deceased .The perusal of the Post Mortem Examination Report (Exh.PQ) and the Post Mortem Examination Report (Exh. PP) clearly establishes the fact the post mortem examinations of the dead bodies of the deceased were delayed and the delay was due to the late arrival of the dead bodies at the hospital and the late submission of police papers. No explanation was offered to justify the said delay in conducting the post mortem examinations. 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

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to involve any person. The august 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

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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 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 recoveries of weapons made from the appellants and the report of the Punjab Forensic Science Agency, Lahore (Exh.PU). The recovery of the Repeater gun 12-bore (P-9) from the appellant namely Muhammad Rizwan and the recovery of the Repeater gun 12-bore (P-6) from the appellant namely Muhammad Usman cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the said Repeater gun 12-bore (P-9) from the appellant namely Muhammad Rizwan and the recovery of the Repeater gun 12-bore (P-6) from the appellant namely Muhammad Usman, which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recoveries cannot be used as incriminating evidence against the appellants, 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,

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thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

We have also noted that the prosecution failed to establish the safe custody of the empties (P-1/1-5 and P-2 /1-5) and the recovered weapons from the place of recovery to the police station and from the Police Station to the Punjab Forensic Science Agency, Lahore .According to the prosecution witness namely Muhammad Rafique 132/HC (PW-6), on 23.03.2015 the Investigating Officer of the case handed over to him one sealed parcel said to contain empties and on the same day he handed over the sealed parcel said to contain the empties to Muhammad Naseer 1279/C (PW-7) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Rafique 132/HC (PW-6) during examination-in-chief stated as under:-

“On 23-03-2015 Muhammad Azhar SI I.O. of this case handed over me a sealed parcel said to contain 10 empty cartridges for its safe custody and onward transmission to the office of Punjab Forensic Science Agency, Lahore. On the same day, I handed over the above said sealed parcel Naseer Ahmad 1279/C for onward transmission to the office of Punjab Forensic Science Agency, Lahore intact. On 24-03-2015 Naseer Ahmad 1279/C produced to me receipt No.11565 showing the deposit of above said sealed parcel in the office of Punjab Forensic Science Agency, Lahore.” (emphasis supplied).

There is no explanation in the prosecution case as to why Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case , did not hand over the sealed parcel said to contain the empties recovered by him from the place of occurrence on 23.02.2015 till 23.03.2015.

Furthermore, according to the statement of Muhammad Rafique 132/HC (PW-6) , it was on 13.04.2015 that the Investigating Officer of the case handed over to him two sealed parcels said to contain weapons recovered

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from the appellants and on the same day he handed over the said two sealed parcels said to contain the recovered weapons to Muhammad Naseer 1279/C (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Rafique 132/HC (PW-6) during examination-in-chief stated as under:-

“On 13-04-2015 Muhammad Azhar Saeed S.I. handed over me a sealed parcel said to contain repeater gun 12 bore No.2355/NA and magazine recovered from the possession of accused Muhammad Rizwan. He also handed over me another sealed parcel said to contain repeater gun 12 bore alongwith magazine recovered from the possession of accused Muhammad Usman present in the court, its number was removed. On the same day, I handed over the above said sealed parcels to Naseer Ahmad 1279/C for its transmission to the office of Punjab Forensic Science Agency, Lahore.” (emphasis supplied)

Muhammad Rafique 132/HC (PW-6) was not declared hostile by the prosecution rather his statement was recorded twice, once on 18.05.2017 and then on 23.05.2017. According to the statement of Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case , the recoveries of the Repeater gun 12-bore (P-9) from the appellant namely Muhammad Rizwan and the Repeater gun 12-bore (P-6) from the appellant namely Muhammad Usman were made on 20.03.2015 and there is no explanation in the prosecution case as to where the said recovered Repeater gun 12-bore (P-9) from the appellant namely Muhammad Rizwan and the recovered Repeater gun 12-bore (P-6) from the appellant namely Muhammad Usman were kept by the Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case and why the said weapons were not handed over to Muhammad Rafique 132/HC (PW-6) for keeping

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them in safe custody at the Police Station and were only handed over to Muhammad Rafique 132/HC (PW-6) on 13.04.2015 i.e nearly after a month of their recovery. Moreover, the perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PU) reveals that the empties recovered from the place of occurrence were deposited in the office of Punjab Forensic Science Agency, Lahore on 24.03.2015, whereas the Repeater gun 12-bore (P-9) was recovered from the appellant namely Muhammad Rizwan and the Repeater gun 12-bore (P-6) was recovered from the appellant namely Muhammad Usman on 20.03.2015. There was no reason for keeping the empties which were taken into possession on 23.02.2015 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore prior to the recoveries of the Repeater gun 12-bore (P-9) and the Repeater gun 12-bore (P-6) on 20.03.2015. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PU) 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, recovery of the Repeater gun 12-bore (P-9) from the appellant namely Muhammad Rizwan and the recovery of the Repeater gun 12- bore (P-6) from the appellant namely Muhammad Usman do not further the case of prosecution in any manner. In view of the above mentioned

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facts, recovery of the Repeater gun 12-bore (P-9) from the appellant namely Muhammad Rizwan and the recovery of the Repeater gun 12- bore (P-6) from the appellant namely Muhammad Usman is not proved and the same cannot be used as a circumstance against the appellants.

With regard to the recovery of motorcycle (P-12) from the appellant namely Muhammad Rizwan, it is observed that the witnesses neither during the investigation of the case and nor before the learned trial court mentioned the registration number, colour or any other detail of the motorcycle used by the appellants to flee away from the place of occurrence so as to relate the recovery of motorcycle (P-12) from the appellant namely Muhammad Rizwan with the motorcycle used on the day of occurrence. Furthermore, the Muhammad Azhar Saeed Paracha, SI (PW-10) , the Investigating Officer of the case admitted during cross- examination as under:-

“It is correct that none of the P.Ws had disclosed before me that the accused persons used motorcycle bearing registration No.BNL- 6073. It is correct that none of the P.Ws had disclosed before me the make/mark of motorcycle used in the occurrence. Volunteered, that they had only mentioned that it was 125 motorcycle.”

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 Farooq Tahir (PW-

1)was that the deceased namely Shamshad Anjam had got a case F.I.R No. 354 of 2014 dated 30.08.2014 registered against the appellants, hence they murdered her as well as Kiran Akbar (deceased) . Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case, candidly admitted during cross-examination that he did not record the

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statement of any witness mentioned in the case F.I.R No. 354 of 2014 dated 30.08.2014 during the investigation of the case. It was further admitted by Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case, that he did not even know as to the stage of the said case. Muhammad Azhar Saeed Paracha, SI (PW-10) , the Investigating Officer of the case, during cross-examination admitted as under:-

“It is correct that I had not obtained any certified copy of court proceedings in case F.L.R. No.354/14 u/s 452/34 PPC registered with Police Station Faqirwall i.e. the motive of this case as alleged by the complainant party. I had not mentioned in any of my case diary about the proceedings of the case F.I.R. No.354/14 and the stage of case that what was going on in the said case and in which court. It is correct that I had not associated any of the witnesses of said case F.I.R. No.354/14 in my investigation. It is incorrect to suggest that a fake story of motive was concocted by the complainant party and I did not deliberately investigate the same.”

The above referred portion of the statement of Muhammad Azhar Saeed Paracha, SI (PW-10), the Investigating Officer of the case, clearly proves that 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 appellants to have committed the Qatl-i-Amd of both 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

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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 appellants to murder the deceased, it equally is a ground for the complainant to falsely implicate them 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 case of Allah Bakhsh and another v. The State (PLD 1978 SC 171).”

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.

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20.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir 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:- “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

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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.656 of 2019 lodged by Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir (appellants) is allowed and the convictions and sentences of the appellants namely Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir awarded by the learned trial court through the impugned judgment dated 31.10.2019 are hereby set-aside. Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir (appellants) are ordered to be acquitted by extending them the benefit of doubt. Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir (appellants) are in custody and are directed to be released forthwith, if not required in any other case.

22.Murder Reference No.33 of 2019 is answered in Negative and the death sentences awarded to Muhammad Rizwan son of Muhammad Munir and Muhammad Usman son of Muhammad Munir are Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting.

Judge Judge