The State vs Muhammad Irshad

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.13 of 2017 (The State Vs. Muhammad Irshad)

Criminal Appeal No. 51 of 2017 (Muhammad Irshad Vs. The State and another) Criminal Appeal No. 85 of 2017 (Muhammad Muzammil Vs. The State and another) Petition for Special Leave to Appeal No.5 of 2017.

(Muhammad Hashim Vs. Ishaq and eleven others.)

Crl. Revision No. 25 of 2017

(Muhammad Hashim Vs. Irshad and two others.)

Date of hearing: 15.09.2021.

Appellants by: Syed Zeeshan Haider, Advocate. State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

Complainant by: Mr. Ahmed Sher Kathia, Advocate.

SADIQ MAHMUD KHURRAM, J. –Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq (convicts) were tried along with Mohammad Maki son of Abdul Hameed, Mohammad Ishaq son of Ghulam Mustafa, Mohammad Bilal son of Ghulam Qadir, Mohammad Jameel son of Ghulam Mohammad, Mohammad Rafique son of Ghulam Ali, Ejaz

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Ahmad son of Saifal, Abdul Ghafoor son of Abdul Majeed, Sajjad Ahmad son of Allah Wasaya, Mumtaz son of Khaleel Ahmad, Abdur Razaq alias Saqi son of Khadim Hussain and Mohammad Akram son of Mohammad Yousaf ( the co-accused of the convicts , all since acquitted) by the learned Additional Sessions Judge, Ahmadpur East in case instituted upon the private complaint titled “Muhammad Hashim Vs. Ishaq and thirteen others” (relating to FIR No. 264 of 2014 dated 12.09.2014 registered at Police Station Noshehra Jadeed District Bahawalpur) in respect of offences under sections 302, 460, 452, 324,148, 149 and 109 PPC for committing the Qatl-i-Amd of Abdul Waheed son of Muhammad Hashim (deceased) and Naveed Akhtar son of Muhammad Hashim (deceased) . The learned trial court vide judgment dated 25.01.2017, convicted Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq (convicts) and sentenced them as infra:

Muhammad Irshad son of Allah Wasaya:

i)Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Naveed Akhtar son of Muhammad Hashim (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both the deceased namely Abdul Waheed son of Muhammad Hashim (deceased) and Naveed Akhtar son of Muhammad Hashim, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.

ii)Imprisonment for life under section 460 PPC

Muhammad Muzammil son of Sadiq:

Imprisonment for life on two counts under section 460 PPC and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both the deceased namely Abdul Waheed son of Muhammad Hashim (deceased) and Naveed Akhtar son of Muhammad Hashim, in case of default thereof, the convict was directed to further undergo six months of simple imprisonment

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Both the convicts namely Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq were extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court .

Mohammad Maki son of Abdul Hameed,Mohammad Ishaq son of Ghulam Mustafa,Mohammad Bilal son of Ghulam Qadir,Mohammad Jameel son of Ghulam Mohammad, Mohammad Rafique son of Ghulam Ali, Ejaz Ahmad son of Saifal, Abdul Ghafoor son of Abdul Majeed,Sajjad Ahmad son of Allah Wasaya, Mumtaz son of Khaleel Ahmad, Abdur Razaq alias Saqi son of Khadim Hussain and Mohammad Akram son of Mohammad Yousaf , the co-accused of the convicts, were acquitted by the learned trial court.

2.Feeling aggrieved, Muhammad Irshad son of Allah Wasaya (convict) lodged Criminal Appeal No.51 of 2017 assailing his conviction and sentence.

Feeling aggrieved, Muhammad Muzammil son of Sadiq lodged Criminal Appeal No.85 of 2017 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.13 of 2017 under section 374 Cr.P.C.

seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Irshad son of Allah Wasaya. The complainant of the case namely Muhammad Hashim filed Petition for Special Leave to Appeal No.5 of 2017 seeking permission to file an appeal against the acquittal of Mohammad Maki son of Abdul Hameed, Mohammad Ishaq son of Ghulam Mustafa,Mohammad Bilal son of Ghulam Qadir, Mohammad Jameel son of Ghulam Mohammad, Mohammad Rafique son of Ghulam Ali, ,Ejaz Ahmad son of Saifal, Abdul Ghafoor son of Abdul Majeed, Sajjad Ahmad son of Allah Wasaya, Mumtaz son of Khaleel Ahmad, Abdur Razaq alias Saqi son of Khadim Hussain and Mohammad Akram son of Mohammad Yousaf ( the co- accused of the convicts , all since acquitted). The complainant of the case namely Muhammad Hashim also filed a Criminal Revision No. 25 of 2017

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seeking the enhancement of sentences awarded to Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq (convicts). We intend to dispose of the Criminal Appeal No. 51 of 2017, Criminal Appeal No. 85 of 2017 ,Murder Reference No.13 of 2017, Criminal Revision No. 25 of 2017 and Petition for Special Leave to Appeal No.5 of 2017 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as stated by Muhammad Hashim (PW-1) , the complainant of the case, are as under:- “On 12.09.2014, I alongwith my family members and my relatives. Noor Hassan and Zahoor Ahmad, was sleeping in my house. My daughter Tahira Mai was sick, for which emergency tube light was on in my house. At about 2.30 am, the accused persons Ishaq son of Ghulam Mustafa, armed with pistol, Irshad son of Allah Wasaya, armed with pistol, Makki son of Haji Hameed, armed with pistol, Ejaz son of sifal, armed with pistol, Bilal alias Pappi son of Ghulam Qadir, armed with pistol, Jameel son of Ghulam Mohammad armed with pistol, Rafique son of Ghulam Ali armed with pistol, Wazeer Ahmad son Kareem Bakhsh, armed with pistol, Ghafoor son of Majeed, armed with pistol, Sajjad son of Allah Wasaya, armed with pistol, Muzamil son of Sadiq, armed; with pistol and an unknown person also armed with pistol entered my house. after scaling over the wall. After hearing foot fall we all woke up. The PWs Noor Hassan and Zahoor Ahmad also woke up. In our sight the accused Ishaq, fired with pistol at front of right side of neck of my son Mohammad Naveed. The accused Irshad also made fire with pistol at Mohammad Naveed, which landed on left side of left side of (sic) front of neck. The accused Makki also made fire with pistol which landed on right side of front of chest of Mohammad Naveed, on right nipple. The accused Ejaz also made fire with pistol at Mohammad Naveed, which landed on left side of his collar bone (clavicle). The accused Jameel also made fire shot with pistol at right shoulder of Mohammad Naveed. The accused Rafique also fired with pistol which landed on back of right shoulder of Mohammad Naveed. The accused Bilal alias Pappi fired at my other son Abdul Waheed with pistol, which landed on back of left side of his head. The accused Ishaq also made fire with pistol which hit left palm of Abdul Waheed. The absconding accused Wazeer, Abdul Ghafoor, Sajjad, (Muzamil) and unknown person made indiscriminate fire and did not allow anyone of us to intervene and rescue the deceased Mohammad Naveed and Abdul Waheed, as we all were un-armed. We raised hue and cry upon which our neighbours attracted the spot while the accused persons fled away. My son Mohammad Naveed succumbed to the injuries at the

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spot. Whereas my other son Abdul Waheed was taken to hospital by us in serious condition but he expired at B.V.Hospital, Bahawalpur at about 5.15 a.m as a result of the injuries received by him. The said accused persons committed the occurrence on instigation ( )ایماof the accused Mumtaz, Razaq and Mohammad Akram, as they supported the accused Mohammad Jameel. The motive behind the occurrence was that the accused Jameel suspected illicit relations of my son Abdul Waheed with his (Jameel's) daughter Rukhsana Bibi but it was not correct.

I got submitted the application Ex.PA, on the basis of which FIR No.264/2014 against the said accused persons was registered. ( The application Ex.PA is available in original in file of the connected state case, which is detached from the same and attached with file of the isnant (sic) case) Post mortem examination of the dead bodies of both of the deceased persons ws (sic) got conducted. During the course of investigation the 1.0 without any justification and with ulterior motives declared the accused Mumtaz, Mohamamd Makki, Mohammad Ejaz, Mohammad Bilal, Mohammad Ishaq, Mohammad Jameel and Rafiqlse innocent for which I have to file the instant private complaint Ex.PB..”

4.The accused were summoned to face trial in the case instituted upon the private complaint titled “Muhammad Hashim Vs. Ishaq and thirteen others” (relating to FIR No. 264 of 2014 dated 12.09.2014 registered at Police Station Noshehra Jadeed District Bahawalpur) in respect of offences under sections 302, 460, 452, 324,148, 149 and 109 PPC for committing the Qatl-i-Amd of Abdul Waheed son of Muhammad Hashim (deceased) and Naveed Akhtar son of Muhammad Hashim (deceased). The learned trial court framed the charge against the accused on 27.04.2016, to which the accused pleaded not guilty and claimed trial.

5.The complainant of the case in order to prove its case got recorded statements of as many as three witnesses. The ocular account of the case was furnished by Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2).

Muhammad Ajmal (PW-3) stated that one year after the occurrence the appellant namely Muhammad Muzammil got recovered the pistol (P-3) along

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with two live bullets (P-4/1-2) which were taken into possession through recovery memo (Exh.PG) .

6.The learned trial court also examined as many as twelve witnesses as court witnesses. Muhammad Hussain, ASI (CW-2) stated that on 12.09.2014 he recorded the formal F.I.R of the case (CW-2/1). Muhammad Asif, ASI (CW-3) stated that on 28.11.2014 non-bailable warrants of arrest (Mark-A) of the appellant namely Muhammad Muzammil were handed over to him for execution for execution, however, the same could not be executed and subsequently a proclamation under section 87 of the Cr.P.C. (Mark-B) was issued which he was deputed to publish. Ghulam Mustafa 1331/C (CW-4) stated that on 12.09.2014 he escorted the dead body of the deceased namely Naveed Akhtar for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Ghulam Mustafa 1331/C (CW-4) further stated that on 25.10.2014 Muhammad Arshad, SI (CW-7) received the Call Data Record from Muhammad Aslam, SI, Incharge Data Cell, Bahawalpur. Muhammad Nadeem Akhtar, draftsman (CW-5) prepared the scaled site plan of the place of occurrence (CW-5/1)..

Muhammad Nawaz 1033/HC (CW-9) stated that on 12.09.2014, the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained earth relating to the deceased namely Abdul Waheed and Naveed Akhtar and another sealed parcel said to contain empties which on 15.09.2014 he handed over all the three parcels to Rasheed Ahmad 263/C (CW-11) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore . Muhammad Siddique 1021/HC (CW-10) stated that on 23.11.2014, the Investigating Officer of the case handed over to him a

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sealed parcel said to contain a pistol which on 13.12.2014 he handed over to Faryad Hussain 1359/C for its onward transmission to the office of Punjab Forensic Science Agency, Lahore and further stated that on 05.11.2015, the Investigating Officer of the case handed over to him a sealed parcel said to contain a pistol which on 24.11.2015 he handed over to Muhammad Ashraf , SI (CW-12) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Rao Jamshed Ali (CW-8) investigated the case from 25.09.2015 till 05.11.2015, arrested the appellant namely Muhammad Muzammil son of Sadiq on 28.10.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Muhammad Arshad, SI (CW-7) investigated the case from 12.09.2014 till 28.11.2014, arrested the appellant namely Muhammad Irshad son of Allah Wasaya on 12.11.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

7.The learned trial court also examined Dr. Zeeshan Ahmad (CW-1) who on 12.09.2014 was posted as Medical Officer at RHC Uch Sharif and on the same day medically examined Abdul Waheed son of Muhammad Hashim (then injured later deceased ). Dr. Zeeshan Ahmad (CW-1), on examining Abdul Waheed son of Muhammad Hashim (then injured later deceased ) observed as under:

“DESCRIPTION OF INJURIES.

1.A lacerated wound 6.2 cm x 1.5 cm, bone exposed on the left parital region of head. Skull was fractured (sic) and brain matter coming out. Margins were inverted.

2.A lacerated wound 1 cm x 1.5 cm x through and through on palmor aspect of left and between middle and index finger. There was

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blackening around the wound. Margins were inverted. This was entry Mons Judge wound.

3.A lacerated wound 4 cm x 2 cm x through and through on the darsal aspect of left hand between the middle and index finger. Margins were everted. This was exist wound of injury No.2.

On the same day, Dr. Zeeshan Ahmad (CW-1) conducted the post mortem examination of the dead body of the deceased namely Abdul Waheed son of Muhammad Hashim after his death and noted the same injuries as mentioned by him at the time of the medical examination of Abdul Waheed son of Muhammad Hashim, and further opined as under:-

“After thorough external and internal post mortem examination of the dead body was of the opinion that injury No.1 was cause of death which caused fracture of skull bone rupturing of brain (vital Organ) leading and to cardiac and respiratory depression due to damage to these centers in the brain and finally death. All the injuries were ante mortem and homicidal.

All injuried (sic) were caused by fire-arm weapon. Ex.CW1/3 is attested copy of the post mortem report and Ex.CW1/4 is its pictorial diagrams, in resepct of the deceased Waheed.”

On the same day, Dr. Zeeshan Ahmad (CW-1) also conducted the post mortem examination of the dead body of the deceased namely Naveed Akhtar son of Muhammad Hashim and opined as under:- “Description of Injuries.

1.A lacerated wound 1.2 cm x .8 cm x through and through on the right frontal side of neck. Margins were inverted. There was blackening around the wound. This was entry wound.

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2.A lacerated wound 2 cm x 1.6 cm x through on the left frontal side of neck. Margins are everted. There was swelling around the neck. This was exit wound of injury No.1.

3.Three lacerated wounds on anterior lateral side of right shoulder. 3(a) A lacerated wound 2.5 cm x 2 cm round to oval in shape, burning and blackening present around the wound. Margins were inverted. 3(b) A lacerated wound 1.4 cm x 1.4 cm a round to oval in shape. Margins were inverted, Blackening around the wound .5 cm away from injury No.3(a).

3(c) A lacerated wound 1.2 cm x 1.3 cm. Margins were inverted .4 cm away from injury No.3 (a).

4.A lacerated wound 1 cm x 5 cm x through and through on the right nipple. Margins were inverted. This was entry wound.

5.A lacerated wound 1.1 cm x .8 cm x through and through on right scapular region. Margins were averted. This was exit wound of injury No.4.

6.A lacerated wound 1.1 cm x .8 cm above left clavicle. There was blackening around the wound. Margins were inverted.

FINAL OPINION.

After thorough internal and external post mortem examination of the dead body was of the opinion that injury No.4 and injury No.5 were the cause of death which caused perforation and rupture of right lung (vital organ) leading to massive internal bleeding in the right chest leading to hypovolemic shock and death. All injuries were ante mortem and homicidal. All the injuries were caused by fire-arm weapon. Ex.CW1/5 is

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attested copy of the post mortem report and Ex.CW1/6 is its pictorial diagrams, in respect of the deceased Naved.”

8.On 25.10.2016, the learned counsel for the complainant of the case, gave up witness namely Noor Hassan as being unnecessary. The reports of Punjab Forensic Science Agency, Lahore (Exh.PH) regarding the analysis of the pistols recovered from the appellants namely Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq and the empties collected from the place of occurrence and the report of Punjab Forensic Science Agency, Lahore (Exh.PJ) regarding the analysis of the blood stained earth.

9.After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, each of them replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq opted not to get themselves examined under section 340(2) Cr.P.C and did not adduce any evidence in their defence.

10.On the conclusion of the trial, the learned Additional Sessions Judge, Ahmed Pur East convicted and sentenced the appellant as referred to above.

11.The primary contention of the learned counsel for the appellants is that the whole case is fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in

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issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statements of Muhammad Hashim (PW-1) and Zahoor Ahmed (PW-2) were not worthy of any reliance. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt.

12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that both the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of Muhammad Hashim (PW-1) and Zahoor Ahmed (PW-2). They further argued that the recovery of the pistol (P-3) from the appellant namely Muhammad Muzammil son of Sadiq and the recovery of the pistol (P-1) from the appellant namely Muhammad Irshad son of Allah Wasaya also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of appeals as lodged by the appellants namely Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq.

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

14.We have noted that according to the prosecution witnesses the occurrence took place in the dead of night at about 2.30 a.m in the balmy 12 th night of the month of September, however, admittedly no source of light, which could have enabled the witnesses to have rightly identify such a large number of accused and also allowing the witnesses to note the individual roles of each and every accused present at the place of occurrence , at the time of occurrence , was produced by the witnesses during the investigation of case or even before the learned trial court. Muhammad Hashim (PW-1) claimed that he had witnessed the occurrence in the light of a rechargeable tube light which was lit at the place of occurrence for the reason that his daughter namely Tahira Mai was suffering from illness and was staying at the place of occurrence along with him. The said Tahira Mai admittedly never joined the investigation of the case nor she appeared before the learned trial court to prove her presence at the place of occurrence during the night of occurrence.

Furthermore, Muhammad Hashim (PW-1) admitted during cross-examination that he did not produce any evidence to prove that the said Tahira Bibi was being treated for any disease and since when Muhammad Hashim (PW-1) during cross-examination admitted as under:-

“At the time of the occurrence children of Mst:Tahira Bibi were also in my house. My daughters. Abida, Rabia and Sajida are married and they were not present in my house during the night of the occurrence whereas my other daughters Tahira, Asma and Asia were present in my house. My

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wife Noor Khatoon was also present during the night of the occurrence in the house . It is correct that I did not cite or mention any of my daughters Tahira, Asma, Asia, my wife Noor Khatoon and children of Tahira Bibi as witness of the instant occurrence anywhere nor I produced them before the police. I did not provide any documentary proof to the Investigating Officer showing sickness of my daughter Tahira Bibi, during the course of investigation.”

The above referred portion of the cross-examination of Muhammad Hashim (PW-1) clearly establishes that he failed to prove the reason for which according to him a rechargeable tube light was lit at the place of occurrence.

Furthermore, Muhammad Hashim (PW-1) also admitted during cross- examination that he never produced the said rechargeable tube light which was lit at the place of occurrence before the Investigating Officer of the case during the investigation of the case. Similarly, Zahoor Ahmad (PW-2) also admitted during cross-examination that neither Tahira Bibi joined the investigation of the case nor the tube-light which was lit at the place of occurrence was produced before the Investigating Officer of the case during the investigation of the case. Muhammad Hashim (PW-1) during cross- examination admitted as under:-

“I did not produce the said emergency light to the police during the investigation.

The said emergency tube light is also not present in the court room today nor I demonstrated the said tube light before the court at the time of filing of the instant complaint.”

Zahoor Ahmad (PW-2) during cross-examination admitted as under:-

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“During site inspection the police did not record statement of Tahira Bibi nor statement of any other female or any children, present at the time of the occurrence. The emergency light. was not produced to the police by the complainant.

The tube light as mentioned by me in my examination in chief is neither present in the court at this time nor the police secured the same during the course of investigation.”

Muhammad Arshad, SI, (CW-7) , the Investigating Officer of the case, also admitted during cross-examination as under:-

“The complainant did not produce any proof regarding supply of electricity in his house at the time of the occurrence nor the complainant produced the emergency tube light to me. I also did not secure the same on my own.”

The non-production of the rechargeable tube light which was lit at the place of occurrence is all the more a matter of disquiet for the reason that the trial of the case was conducted in a private complaint and if the said source of light was indeed available then the complainant of the case could have easily produced the same before the learned trial court . The failure of the complainant of the case to produce the same before the learned trial court leads to only one conclusion, and that being that no such source of light was available at the place of occurrence which could have enabled the eye witnesses to have identified the assailants and also witness the individual roles of the assailants as acted by them during the occurrence. As mentioned above, no such rechargeable tube light which was lit at the place of occurrence was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence. According to the prosecution evidence, Muhammad Arshad, SI, (CW-7) , the Investigating

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Officer of the case, visited the place of occurrence after the occurrence but the rechargeable tube light, which was allegedly available and lighted at the place of occurrence , at the time of occurrence, was not taken into possession at the spot by the Investigating Officer alongwith other recoveries though there was no occasion for the said rechargeable tube 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 Hashim (PW-1) , the complainant of the case and Muhammad Arshad (CW-7) , the Investigating Officer, to produce the rechargeable tube light allegedly present at the place of occurrence and lighted up at the time of occurrence, proves that none was available and only an invented and false claim of such an rechargeable tube light being available was made by the said witnesses. 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 dark.

It was admitted by the witnesses themselves that it was a dark night and they had used the light of the rechargeable tube-light, never produced, to identify the assailants during the occurrence and as the prosecution witnesses failed to prove the availability of such light source, their statements with regard to them identifying the assailants cannot be relied upon. The failure of the prosecution witnesses to 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

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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 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.

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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.”

15.The scrutiny of prosecution evidence reflects the falsity of the claims of the eye-witnesses as the occurrence was completed within a few minutes and in that scenario it was humanly impossible to provide such minute details in such a photographic manner or to assign the specific roles and furnish detailed description of the same while getting the written application (Exh.PA) for the registration of the F.I.R submitted to the Investigating Officer of the case. The manner in which minute and complex details of the occurrence, including the individual roles of the assailants, have been mentioned in the written application (Exh.PA), would rather infer pre inquiry , exploration and detailed considerations, as such before the writing of the written application (Exh.PA) and rules out the possibility of truthfulness, spontaneity and extemporaneity in the narrative of the written application (Exh.PA) . Specific assignment of multiple fire shots in a crisis situation to the appellants and acquitted co-accused by the witnesses in their statements recorded by the learned trial court is extremely improbable as well for the simple reason that it was humanly impossible to capture such

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minute details in a photographic manner, that too, in the absence of any source of light. The photographic narration of the occurrence by both the witnesses by assigning specific injury to each of the accused in an extreme calamity and crunch situation was highly improbable and not believable, especially when the occurrence had taken place in the dark hours of the night. Over anxious photographic account of the occurrence by the prosecution witnesses vis-a-vis, the weapon of offence, number and locale of injuries allegedly caused by the appellants to the deceased is not only proved to be maneuvered but also improbable and preposterous . Despite the said details containing the written statement (Exh.PA) of Muhammad Hashim (PW-1) , the ocular account was proved to be inconsistent with the medical evidence. Both the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) stated that the appellant namely Muhammad Irshad son of Allah Wasaya had fired with a pistol , which fire landed on the left side of the neck of Naveed Akhtar, (deceased). Dr. Zeeshan Ahmad (CW-1) who conducted the post mortem examination of the dead body of the deceased namely Naveed Akhtar son of Muhammad Hashim observed a lacerated wound of the dimension of 2 cm x 1.6 cm present on the left frontal side of neck with inverted margins and further opined that it was an exit wound of injury No.1. In this manner, both the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) attributed causing of an exit wound to the appellant namely Muhammad Irshad son of Allah Wasaya. Even the Investigating Officer of the case namely Muhammad Arshad, SI (CW-7) admitted during cross-examination as under:-

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“ It is correct that the injury attributed to the accused Irshad on left side of neck is injury No.2 in the post mortem report of the deceased Naveed, which is an exit wound of the injury No.1. It stands proved from all these facts that the accused Irshad did not fire on left side of neck of the deceased Naveed.”(emphasis supplied)

Furthermore we have noted with grave concern that according to Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2), twelve accused continued firing at the place of occurrence , targeting the deceased specifically , still Dr. Zeeshan Ahmad (CW-1), who conducted the post mortem examinations of the dead bodies of the deceased namely Naveed Akhtar and Abdul Waheed, observed presence of only six entry wounds in total on the dead bodies of both the deceased. These apparent flaws in the statements of both the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2), who otherwise narrated all the complex and varied details of the occurrence, has led us to an irresistible conclusion that the statements of the witnesses are not worthy of any reliance and are to be rejected outright. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Irfan Ali Vs. The State” (2015 S C M R 840) where the august Supreme Court of Pakistan was pleased to reject the evidence eye witnesses witnesses and held as under:- “The most striking feature of the case is that in the FIR complete photographic narration of the entire tragedy has been given so much so, Muhammad Khan acquitted accused and the appellant were attributed causing specific injuries with the fire shots of 30-bore pistols at the deceased. With such degree of accuracy each and every detail of the incident was given however, it was not due to mental disorientation that the dagger blows inflicted on the deceased found during the autopsy on the dead body, could not be noticed by the complainant. This doubt of

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reasonable nature and substance would strongly suggest that the complainant and the other eye-witnesses were not present at the spot, otherwise, lodging the report after more than 3 hours and spending 1-1/2 hour at the spot with the dead body, no room was left for this glaring omission. This omission is very fatal to the prosecution case and it is established that crime was an un-witnessed one.”

Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Amin Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- “11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries

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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.”

16.We have also noted that according to the prosecution witnesses both the deceased received injuries at the hands of the assailants when they were at a distance of 15 feet from the said assailants. Zahoor Ahmad (PW-2), during cross-examination, stated as under:-

“ Both of the deceased persons received fire shots from the distanced of about 14/15 feet.”

Similarly Muhammad Nadeem Akhtar draftsman (CW-5) , during cross- examination, stated as under:-

“From point No.1 to the spot of presence of the accused persons, the PWs told me the distance about 15/16 feet”

Muhammad Arshad (CW-7) ,the Investigating Officer of the case , during cross-examination, stated as under:-

“The distance from where the accused Ishaq, Irshad and Ejaz allegedly fired at the deceased Naveed was three karms. Whereas the PWs told me that the accused Maki, Jameel and Rafique allegedly fired at the deceased

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Naveed from distance of four karams, which I mentioned in the rough site plan. I mentioned in the rough site plan Ex.CW7/4, the distance between the deceased Naveed and the spot of collection of the fire empties as five karam.”

Contrary to this claim of the prosecution witnesses that the firing had been made by the appellants and their co-accused from a distance of as much as fifteen feet and the deceased remained static during the occurrence , Dr.

Zeeshan Ahmad (CW-1) , who conducted the post mortem examinations of the dead bodies of the two deceased did observe the presence of blackening on the wounds observed by him on the bodies of the two deceased . Dr.

Zeeshan Ahmad (CW-1) in his statement before the learned trial court clearly stated that blackening and burning was observed around the wounds which he found present on the dead bodies of the two deceased . Had the firing at the deceased namely Abdul Waheed and Naveed Akhtar been made from a distance of fifteen feet as suggested by the prosecution witnesses, then blackening on the wounds could not have been observed by Dr.

Zeeshan Ahmad (CW-1). Dr. Zeeshan Ahmad (CW-1), in his statement before the learned trial court , clearly stated that he had observed blackening and burning around the entry wounds of the dead bodies of the deceased namely Abdul Waheed and Naveed Akhtar. Dr. Zeeshan Ahmad (CW-1) was not cross-examined by the complainant and his testimony with regard to his opinion regarding observation of blackening and burning around the entry wounds which he found present on the dead bodies of the two deceased remained unchallenged. Dr. Zeeshan Ahmad (CW-1), during cross- examination, further elaborated as under:-

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“It is correct that a fire shot made by pistol or revolver from the distance of two feet causes blackening. According to the medical juriprudence the covered garment of the victim is burnt when the distance between the victim and the barrel is less than 2 or 3 inches or it is a contact fire. I observed blackening around the injuries No.1, 3 and 6, on the body of the deceased Naveed, which indicate that it was closed range fire. The injury No.4 on the body of the deceased Naveed is on right side of front of chest and I observed the part of the dress i.e shirt having torn and burnt, at the spot of injuyr No.4. Similarly I also observed burning on the site of the entry wounds on right shoulder. According to my observation all the said wounds were closed range. I observed the injury No.2 & 5 as exit wounds.” (emphasis supplied).

This opinion of Dr. Zeeshan Ahmad (CW-1) also proves that no reliance can be placed on the statements of Muhammad Hashim (PW-1) and Zahoor Ahmed (PW-2) . In such a case the ocular account is to be rejected as being contrary to the medical evidence. Reliance is placed on Barkat Ali Vs.

Muhamad Asif and others (2007 SCMR 1812) wherein it has been observed as infra: -

“It is an admitted fact that eye-witnesses had stated that the deceased was hit by the respondents at about 30/35 feet whereas according to the medical report, there was burning and blackening as is evident from the statement of P.W.2, therefore, ocular account furnished by the two eye- witnesses is not in consonance with the medical evidence which clearly contradicts the statement of the eye-witnesses. It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali’s case 1980 SCMR 889, Bagh Ali’s case 1983 SCMR 1292, Sain Dad’s case 1972 SCMR 74 and Zardshad’s case 1969 SCMR 644.”

Reliance is also placed on Muhammad Zaman Vs. The State and others (2014 S C M R 749) wherein it has been observed as under: -

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“Let us assume that F.I.R., whose maker passed away before his examination in the court, cannot be looked into for any purpose yet the prosecution version neither rings true nor inspires confidence when a firearm entry wound found on the person of P.W. No.5 caused by a shot fired from a distance of 13 feet was accompanied by blackening which is not possible beyond 3 feet. Especially when it has never been the case of the P.W. that any of the assailants fired at him from a close or contact range. In Modi's Medical Jurisprudence and Toxicology (21st Edition) at page 354, it has been held that "Blackening is found, if a fire-arm like shot-gun is discharged from a distance of not more than 3 feet". Improvements and afterthoughts introduced to bring the ocular account in tune with the medical evidence which too tend to damage evidentiary worth of the evidence.”

Reliance is also placed on the case of Faiz meeran vs. Muhammad Khan and others (2016 S C M R 1456) wherein it has been observed as under: - “The said allegation leveled against respondents Nos. 1 and 2 was not supported by the medical evidence because according to the eyewitnesses produced by the prosecution respondents Nos. 1 and 2 had fired at and injured Muhammad Arif (PW7) from a distance of thirty-five feet but the medical evidence had shown availability of burning on the relevant injuries which was not possible from a distance of thirty-five feet.”

Reliance is also placed on the case of ZAHIR YOUSAF and another Vs.

The State and another (2017 S C M R 2002) wherein it has been observed as infra: -

“According to the scaled site plan (Exh.PA) distance between the place were corpse of Ghulam Sarwar (point 1) was lying and where the appellant and his cc-accused were present (point 2) was sixteen feet. Dr. Ghulam Abbas Zafar (PW.11) who conducted autopsy upon the dead body of Ghulam Sarwar (deceased) while appearing before the learned trial court in his examination-in-chief stated that injury No.1 was with burnt inverted margins. In the last line of his cross examination, the said doctor stated that blackening occurred on the injury if fired from six feet and burning, if fired from few inches. Therefore, the medical evidence does not support the ocular account..”

17.We have also noted with grave concern that despite the claim of the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) that they were sleeping at the place of occurrence, prior to the occurrence Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case failed

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to observed the presence of any cots or beddings under the use of the witnesses when he visited the place of occurrence on the very night of occurrence. The admitted absence of the cots under the use of the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) denudes their false claims that they were sleeping at the place of occurrence , prior to the occurrence. Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case during cross-examination admitted as under:- “It is correct that in the scaled site plan Ex.CW5/1 the said cot has not been mentioned. During my investigation I did not find that the cots of the complainant as well as of the PWs Zahoor and Noor Hassan were present at any specific spot in the courtyard. It is correct that during site inspection neither the complainant nor the PWs indicated the spot of their cots.”

We have also perused the scaled site plan of the place of occurrence (Exh.CW-5/1) as prepared by Muhammad Nadeem Akhtar, draftsman (CW-

5)and the rough site plan of the place of occurrence (Exh.CW-7/3) as prepared by Muhammad Arshad, SI (CW-7) and find that no cots or beddings under the use of the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) have been shown and identified in the same.

Moreover, Zahoor Ahmad (PW-2) admitted that his house was at a distance of seven kilometres from the place of occurrence , however, did not explain as to why and for what purpose he was present at the place of occurrence.

As mentioned above, Muhammad Hashim (PW-1) also claimed that his daughters namely Tahira Bibi, Asima and Asia and his wife namely Noor Khatoon were also present at the place of occurrence , on the night of

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occurrence , however, none of them appeared either during the investigation or before the Investigating Officer of the case in support of the narrative of the complainant. Additionally, according to the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2), they were in clear view, at a meagre distance, from the assailants and unarmed whereas the appellants were allegedly armed with firearm weapons whereas their co- accused were also armed with various weapons. Furthermore, it was the claim of the prosecution witnesse,s that as many as twelve accused in total fired from weapons of different bores at the time of occurrence and in the midst of this indiscriminate firing , the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2), did not receive even a single scratch on their persons during the whole occurrence. If the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) had been present in the view of the assailants, then they would not have been spared.

Both Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) even did not claim that they did not receive any injury because they had hidden themselves or were not visible to the assailants.. Blessing them with such an incredible consideration and showing them such favour is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellants and their co- accused did not cause any injury to them. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellants or their co-accused for not doing away with the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2). In this scenario, it is hard to

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believe that the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) would have been shown the courtesy of being not fired at all when they should also have been the targets of the assailants . Such behaviour, on part of the accused, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e- Shahadat Order, 1984, that the conduct of the assailants, as deposed to by the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) , was opposed to the common course of natural events and human conduct. Hence, we are holding that both Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) did not witness the occurrence. We have also noted that both the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) claimed that after the occurrence, they held Abdul Waheed , (deceased), who remained alive at the place of occurrence and was taken to the hospital in an injured condition, and while they were holding the injured, their clothes were sustained with blood. Muhammad Hashim (PW-

1)during cross-examination stated as under:-

“ My clothes as well of PWs had smeared with blood. I did not produce my clothes to the police.”

Similarly, Zahoor Ahmad (PW-2) during cross-examination stated as under:-

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“I attended the dead bodies soon after the occurrence. My clothes were smeared with blood but I did not produce the same to the police”.

Muhammad Arshad, SI (CW-7) , Investigating Officer of the case , did not take any such blood-stained clothes of Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) in possession during the investigation of the case nor the said witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) admittedly produced their clothes either before the Investigating Officer of the case or before the learned trial court .

Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) . This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence ,at the time of occurrence. Both these witnesses were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst.

SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 S C M R 1142) wherein it has been held as under:-

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“20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses.”

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

The august Supreme Court of Pakistan in the case of NADEEM alias KALA versus The State and others (2018 S C M R 153) has held as under:- “For the following reasons the prosecution case against the appellant is doubtful in nature:-

(a)........

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

18.We have also noted that Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case , got information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses

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namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) had told him about the occurrence. We have also observed with grave concern that none of the witnesses including Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case ,at the place of occurrence on his own. The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:

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

We have also noticed that despite the fact that the deceased namely Abdul Waheed remained alive at the place of occurrence and was taken in an injured condition to the hospital, arriving at the same at 3.00 a.m, however, none of the witnesses even tried to escort him to any hospital. Zahoor Ahmad (PW-2) during cross-examination admitted as under:-

“ I did not try to convey the deceased Abdul Waheed to hospital in injured condition, prior to arrival of the police. The deceased Waheed remained on lying on the ground in injured condition for about half an hour, before the police reached there. During that period we did not try to lift the deceased Waheed.”

Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case , during cross-examination stated as under:-

“I did not mention in my police proceedings Ex.PA/1 the source through which I got the information regarding the occurrence. I narrated the

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police proceedings Ex.PA/1 after reaching the place of occurrence. When I reached the place of occurrence Abdul Waheed deceased was lying on the cot whereas the deceased Naveed was lying on the ground. I did not observe any bendage or any piece of cloth on any of the injuries on the body of the deceased Abdul Waheed.

The complainant and the PWs did not go with Abdul Waheed.”

This conduct of the witnesses wherein they made no effort to take the then injured Abdul Waheed (deceased) to the hospital also convincingly establishes that the said witnesses were not present. The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:

“The Medico-legal Certificate issued in respect of Manzoor Ahmed deceased when he was alive shows that the injured victim was brought to the hospital not by the above mentioned eye-witnesses but by a police official which showed that in all likelihood the said eye-witnesses had been procured and planted in this case at some subsequent stage.”

The august Supreme Court of Pakistan in 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.”

Reliance is also placed on the case of Muhammad Sharifan Bibi vs.

Muhammad Yasin and others ( 2012 SCMR 82) wherein the august Supreme Court of Pakistan held as under:-

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“Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for postmortem examination.”

19.We have also noted with anxiety that Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) , the eye witnesses of the occurrence, made dishonest improvements to their previous statements. Both the witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) were duly confronted with their previous statements. Muhammad Hashim (PW-1) was cross-examined and the learned trial court observed as under:- “ I got recorded in my examination in chief that all the accused persons entered the house after scaling over the wall. The same fact was also got narrated by me in my application Ex.PA, in my complaint Ex.PB and in my cursory statement Ex.DA. Confronted with Ex.PA, Ex.PB and Ex.DA where the words after scaling over the wall do not stand recorded.,.”

Similarly, Zahoor Ahmad (PW-2) was cross-examined and the learned trial court observed as under:-

“I got recorded in my cursory statement that the accused persons entered the house after scaling over the wall. Confronted with Ex.DB where the words scaling over the wall are not recorded. ”

We have also observed that while writing the written application (Exh.PA), Muhammad Hashim (PW-1) had not mentioned the name of appellant namely Muhammad Muzammil as an accused in the same though admittedly he knew the appellant namely Muhammad Muzammil prior to the occurrence . Muhammad Hashim (PW-1) also admitted that he did not mention the name of Sajjad Ahmad, the co-accused of the appellant since

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acquitted, in the written application (Exh.PA) as an accused though he was his son in-law During cross-examination , Muhammad Hashim (PW-1) stated as under:-

“It is also correct that in the FIR I did not mention name of my Damad Sajjad as accused.

The accused Muzamil is resident of Awami Colony Bahawalpur. I was acquainted with the accused Muzamil even prior to the occurrence, as he was friend of my Damad Sajjad, and the accused Wazeer and Irshad. It is correct that I did not nominate the accused Muzamil in the FIR.

It is correct that in my application Ex.PA I nominated seven accused persons and five unknown persons, who entered my house.” (emphasis supplied)

Similarly, Zahoor Ahmad (PW-2) was cross-examined and the learned trial court observed as under:-

“I got recorded that the accused Wazeer, Ghafoor, Sajjad and Muzamil alongwith the unknown person did indiscriminate fire and did not allow us to intervene and rescue the deceased Naveed and Waheed, in my statement Ex.DC. Confronted with the Ex.DC where it is not so recorded” (emphasis supplied)

The said improvements made by Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statements,

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Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) impeached their own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: -

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

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

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

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

As Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of “Muhammad Ashraf Vs. State” (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

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

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

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

20.The learned Deputy Prosecutor General along with the learned counsel for the complainant has laid much stress and has also relied upon the recovery of the pistol (P-3) made from the appellant namely Muhammad Muzamil son of Sadiq and the recovery of the pistol (P-1) made from the appellant namely Muhammad Irshad son of Allah Wasaya and the report of Punjab Forensic Science Agency, Lahore (Exh.PH). With regard to the recovery of the pistol (P-3) from the appellant namely Muhammad Muzamil son of Sadiq and the recovery of the pistol (P-1) made from the appellant namely Muhammad Irshad son of Allah Wasaya, it is observed that the said recoveries of the weapons have no evidentiary value in the eyes of law as the same were made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The said recovery of the pistol (P-3) from the appellant

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namely Muhammad Muzamil son of Sadiq and the recovery of the pistol (P-

1)made from the appellant namely Muhammad Irshad son of Allah Wasaya cannot be used as incriminating evidence against the appellants, being evidence which was attained through illegal means and hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the pistol (P-3) from the appellant namely Muhammad Muzamil son of Sadiq and the place of the recovery of the pistol (P-1) made from the appellant namely Muhammad Irshad son of Allah Wasaya to witness the recoveries of the same. Muhammad Ajmal (PW-3) , the witness who claimed that the pistol (P-3) was recovered from the appellant namely Muhammad Muzamil son of Sadiq, in his presence admitted during cross-examination as under”- “The place of recovery was owned by some Joyas. The owner was not caused join the recovery proceedings. No other person from the vicinity was called by the I.O. The place of recovery was single Kacha room, having broken door, which opened towards south. No other person was present in the said room at that time. The place of recovery was barren type of place but it was beside the metalled road and any person could go to the place of recovery being accessible (sic).”

Similarly, Rao Jamshed Ali, (CW-8) , the Investigating Officer of the case , during cross-examination admitted as under:-

“The place of recovery was at the distance of about 4/5 kilometers from Police station Naushehra and at the same distance from the place of occurrence. I did not interrogate the owner of the place of recovery i.e Kacha room. The Kacha room had no door. The place of recovery was a barren place. There was no population around the place of recovery. The

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place of recovery was accessible to everyone. I did not cite any witness from the vicinity. I cannot tell regarding direction of opening of the Kacha room without consulting the site plan of the place of recovery. I” The above referred portion of the cross-examination of both the witnesses namely Muhammad Ajmal (PW-3) and Rao Jamshed Ali, (CW-8) , the Investigating Officer of the case, clearly establishes that the place from where the recovery of the pistol (P-3) was made was not even in the exclusive possession of the appellant namely Muhammad Muzammil and was made from a place which was accessible all and sundry. 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.”

Moreover, the perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PH) reveals that the empties recovered from the place of occurrence were deposited in the office of Punjab Forensic Science Agency, Lahore on 04.12.2014 , whereas the pistol (P-1) was recovered from the appellant namely Muhammad Irshad son of Allah Wasaya on 23.11.2014.

There was no reason for keeping the empties which were taken into possession of 04.12.2014 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore prior to the recovery of the pistol (P-1) from the appellant namely Muhammad Irshad son of Allah Wasaya on 23.11.2014. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PH) has no evidentiary value as the

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possibility of fabrication is floating on the surface. Reliance is placed on the case of Muhammad Amin Vs. The State and another(2019 S C M R 2057) wherein the august Supreme Court of Pakistan has held as under:- “Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential.”

Therefore, the recovery of the pistol (P-3) made from the appellant namely Muhammad Muzamil son of Sadiq and the recovery of the pistol (P-1) made from the appellant namely Muhammad Irshad son of Allah Wasaya does not further the case of the prosecution in any manner and the same cannot be used as a circumstance against the appellants namely Muhammad Irshad son of Allah Wasaya and Muhammad Muzamil son of Sadiq. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.

21.The learned Deputy Prosecutor General along with the learned counsel for the complainant has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Muhammad Hashim (PW-1) and Zahoor Ahmad (PW-2) was that Muhammad Jamil (since acquitted), the co-accused of the appellant, had a suspicion that the deceased namely Abdul Waheed was having illicit relationship with Rukhsana Bibi, the daughter of Muhammad Jamil (since acquitted), the co-

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accused of the appellant. It is an admitted fact of the prosecution case that the said Rukhsana Bibi never appeared during the investigation of the case nor was produced before the learned trial court in support of the motive.

Muhammad Hashim (PW-1) also admitted that during the investigation of the case he did not produce any evidence so as to prove the motive.

Muhammad Hashim (PW-1) during cross-examination admitted as under:- “The accused Jameel did not get registered any FIR against the deceased Abdul Waheed regarding his suspecting illicit relations between the deceased Abdul Waheed and his daughter Rukhsana Bibi. I did not produce any particular person before the police to establish the suspicion of the accused Jameel regarding the said illicit relations. ” Similarly, Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case admitted during the cross-examination that he did not collect any evidence with respect to the motive of the case. Muhammad Arshad, SI (CW-7) during cross-examination stated as under:-

“The complainant did not produce any evidence or other proof to establish the motive, as set in the FIR. The complainant also did not indicate any other source through which I could gather that the accused persons suspected illicit relations between the deceased Waheed and daughter of the accused Jameel namely Rukhsana Bibi.”

The above referred portions of the statements of Muhammad Hashim (PW-

1)and Muhammad Arshad, SI (CW-7) , the Investigating Officer of the case, clearly prove 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 the deceased. Moreover according to

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Muhammad Arshad SI (CW-7) ,the Investigating Officer of the case, the actual motive of the occurrence was entirely different and was got determined by him after recording statements of witnesses. Muhammad Arshad SI (CW-7) ,the Investigating Officer of the case, stated that the actual motive was the dispute between Wazeer Ahmed son of Kareem Baksh (since declared a proclaimed offender) and the deceased over the illicit liaison of Wazeer Ahmed son of Kareem Baksh (since declared a proclaimed offender) with Mst. Asma Bibi ,the sister of the deceased .

Muhammad Arshad SI (CW-7) ,the Investigating Officer of the case, during cross-examination stated as under:-

“On that day i.e 23.11.2014 I concluded that there were illicit relations between the absconding accused Wazeer and daughter of the complainant namely Asma Bibi and during the night of the occurrence, the accused Wazeer entered the house of the complainant in order to elope Asma Bibi and made fire shots on the deceased Naveed and Abdul Waheed. It is correct that on 23.11.2014 the PW Mukhtiar told me that there were illicit relations between the absconding accused Wazeer and Asma Bibi. The said Mukhtiar Ahmad also told me that the absconding accused Wazeer demanded hand of complainant's daughter Asma Bibi which he refused.

The said Mukhtiar Ahmad also told me that on that issue hot talks were exchanged on mobile phone between the deceased persons and the accused Wazeer and they extended threats to each other of life.”

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

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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.”

Moreover, it is an admitted rule of appreciation of evidence that motive is only corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction.

22.The learned Deputy Prosecutor General along with the learned counsel for the complainant has also laid much premium on the abscondence of the appellant namely Muhammad Muzamil son of Sadiq, who was arrested during the investigation of the case on 28.10.2015, whereas the occurrence had taken place on 12.09.2014 as proof of his guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of “Asadullah v. Muhammad Ali” (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case “Rasool Muhammad v. Asal Muhammad” (1995 SCMR 1373) that abscondence is only a suspicious circumstance. In the case of “Muhammad Sadiq v. Najeeb Ali” (1995 SCMR 1632) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of “Muhammad Khan v. State”

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(1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of “Gul Khan v. State” (1999 SCMR 304) it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of “Muhammad Arshad v.

Qasim Ali” (1992 SCMR 814), “Pir Badshah v. State” (1985 SCMR 2070) and “Amir Gul v. State” (1981 SCMR 182) it was observed that conviction on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone. Reliance is also placed on the cases of “Muhammad Farooq and another Vs. The State” (2006 SCMR 1707) and “Nizam Khan and 2 others Vs. the State” (1984 SCMR 1092) and Rohtas Khan vs. The State (2010 SCMR 566).

23.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq (appellants) in the present case. It is 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

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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), Muqarab Khanv.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 Muqarab Khan Vs. the State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:

“It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

24.For what has been discussed above, Criminal Appeal No.51 of 2017 lodged by Muhammad Irshad son of Allah Wasaya (appellant) is allowed.

Criminal Appeal No. 85 of 2017 lodged by the appellant namely Muhammad Muzammil son of Sadiq is allowed. The conviction and sentences of Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq (appellants) awarded by the learned trial court through the impugned judgment dated 25.01.2017 are hereby set-aside.

Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq (appellants) are ordered to be acquitted by extending them the benefit of doubt. The appellant namely Muhammad Irshad son of Allah Wasaya (the appellant in Criminal Appeal No. 51 of 2017) is in custody and he is directed to be released forthwith if not required in any other case. The sentence of the appellant namely Muhammad Muzammil son of Sadiq (the appellant in Criminal Appeal No. 85 of 2017) was suspended by this Court

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vide order dated 05.10.2017, and the appellant namely Muhammad Muzammil son of Sadiq (the appellant in Criminal Appeal No. 85 of 2017) is present before the Court on bail. The surety of the appellant namely Muhammad Muzammil son of Sadiq (the appellant in Criminal Appeal No.

85 of 2017) shall stand discharged from his liability and the bail bonds submitted by the appellant namely Muhammad Muzammil son of Sadiq (the appellant in Criminal Appeal No. 85 of 2017) are hereby cancelled.

25.The complainant of the case filed Petition for Special Leave to Appeal No.05 of 2017 seeking permission to file an appeal against the acquittal of Mohammad Maki son of Abdul Hameed, Mohammad Ishaq son of Ghulam Mustafa, Mohammad Bilal son of Ghulam Qadir, Mohammad Jameel son of Ghulam Mohammad, Mohammad Rafique son of Ghulam Ali, , Ejaz Ahmad son of Saifal, Abdul Ghafoor son of Abdul Majeed, Sajjad Ahmad son of Allah Wasaya, Mumtaz son of Khaleel Ahmad, Abdur Razaq alias Saqi son of Khadim Hussain and Mohammad Akram son of Mohammad Yousaf (all since acquitted), the co-accused of the appellant. We have observed that the learned trial court has rightly acquitted the said accused.

We have ourselves scrutinized the statements of the prosecution witnesses and have come to the conclusion that the prosecution witnesses could not prove the facts in issue. It is important to note that according to the established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the courts competent to interfere in the acquittal order should be slow in converting the same into

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conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as Muhammad Inayat Versus The State ( 1998 SCMR 1854) wherein it has been held as under:

“The Court would not interfere with acquittal merely because on re­appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible.

If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same, and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

The august Supreme Court of Pakistan in the case of “Mst. Sughran Begum and another Vs. Qaiser Pervaiz and others” (2015 SCMR 1142) has held as under:

“On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same

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because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course.”

Pursuant to the discussion made and conclusions arrived at above, the Petition for Special Leave to Appeal No.05 of 2017 as filed by the complainant, seeking permission to file an appeal against the acquittal of Mohammad Maki son of Abdul Hameed, Mohammad Ishaq son of Ghulam Mustafa, Mohammad Bilal son of Ghulam Qadir, Mohammad Jameel son of Ghulam Mohammad, Mohammad Rafique son of Ghulam Ali, , Ejaz Ahmad son of Saifal, Abdul Ghafoor son of Abdul Majeed, Sajjad Ahmad son of Allah Wasaya, Mumtaz son of Khaleel Ahmad, Abdur Razaq alias Saqi son of Khadim Hussain and Mohammad Akram son of Mohammad Yousaf (all since acquitted), is hereby dismissed.

26.Pursuant to the discussion made and conclusions arrived at above, the Criminal Revision No. 25 of 2017 seeking the enhancement of sentences awarded to Muhammad Irshad son of Allah Wasaya and Muhammad Muzammil son of Sadiq (convicts), is also dismissed.

27.It is made clear that the observations made in this judgment shall not be relevant during the trial of the absconding co-accused namely Wazeer Ahmed son of Kareem Baksh (since declared a proclaimed offender) and his case shall be decided on the basis of the evidence adduced during the trial by the parties (prosecution and defence), strictly in accordance with the law.

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28.Consequently, the Murder Reference No. 13 of 2017 is answered in Negative and the sentence of death awarded to Muhammad Irshad son of Allah Wasaya is Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

Judge Judge