The State vs Muhammad Imran

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH,BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 13 of 2019 (The State Vs. Muhammad Imran)

Criminal Appeal No. 503 of 2019 (Muhammad Imran Vs. The State and another.)

JUDGMENT

Date of hearing: 12.10.2021 Appellant by: Syed Zeeshan Haider, Advocate.

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

Complainant by: Mr. Muhammad Asim Khan, Advocate.

SADIQ MAHMUD KHURRAM, J.– Muhammad Imran son of

Hazoor Bakhsh (convict) was tried alongwith Muhammad Jehangir son of Basheer Ahmed (since acquitted) by the learned Sessions Judge, Rahim Yar Khan in the case FIR No. 266 of 2017 dated 13.08.2017 registered at Police Station Kot Samaba , District Rahim Yar Khan in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Zawar Hussain son of Kaloo Khan (deceased). The learned trial court vide judgment dated 26.06.2019, convicted Muhammad Imran son of Hazoor Bakhsh (convict) and sentenced him as under:-

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Muhammad Imran son of Hazoor Bakhsh:

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

Muhammad Jehangir son of Basheer Ahmed, the co-accused of the convict was, however, acquitted by the learned trial court.

2.Feeling aggrieved, Muhammad Imran son of Hazoor Bakhsh (convict) lodged Criminal Appeal No.503 of 2019 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.13 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Imran son of Hazoor Bakhsh. We intend to dispose of the Criminal Appeal No.

503 of 2019 and Murder Reference No.13 of 2019 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Muhammad Ayyaz son of Kaloo Khan(PW-8), the complainant of the case, are as under:-

“It is stated that my name is Muhammad Ayyaz and I am resident of Tehsil Jatoi District Muzaffar Garh, and am cultivator by profession. My brother Zawar Hussain was residing at Khanpur, and I came to Khanpur to see him. My brother dealt with the business of cattle-farming. On 13.08.2017, I and my brother Zawar Hussain went to cattle- market at Sheikh-Wahan. Muhammad Amir and Muhammad

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Hashim PWs were with us. At about 12.00 noon time, when we were busy in the cattle market, bull of Muhammad Imran, accused now present in court facing trial, climbed over my foot. My brother Zawar Hussain asked Muhammad Imran to control his bull, whereupon Muhammad Imran started to quarrel with us. Meanwhile, Muhammad Jahangir, accused present in court facing trial, also attracted there to help accused Muhammad Imran. Muhammad Imran climbed over my brother Zawar Hussain and throttled my brother Zawar from his neck, whereas Muhammad Jahangir accused gave kick and fist blows to Zawar Hussain. Due to throttling caused by accused Muhammad Imran, my brother Zawar Hussain died at the spot. I, Muhammad Hashim and Muhammad Amir PWs witnessed the above occurrence. After that, the accused persons fled away from the spot while extending threats towards us. I took care of my brother Zawar Hussain and informed the police to 15. Police came at the spot, and I reported the occurrence, who recorded my Fard-bian Ex.P.J, which was read over and explained to me and I thumb marked the same in token of its correctness. Dead body of Zawar Hussain deceased was transmitted to hospital for post mortem examination. Police also prepared rough site plan of place of occurrence and recorded the statements of witnesses u/s 161 Cr.P.C. Accused persons present in court are our real culprits, they may be punished according to law.”

4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Muhammad Imran son of Hazoor Bakhsh alongwith Muhammad Jehangir (since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 18.10.2017, to which the accused pleaded not guilty and claimed trial.

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5.The prosecution, in order to prove its case, got statements of as many as ten witnesses recorded. The ocular account of the case was furnished by Muhammad Ayyaz son of Kaloo Khan (PW-8). Ghulam Farid, ASI (PW-1) stated that on 13.08.2017, he recorded the formal F.I.R (Exh.PA). Tariq Hussain (PW-2) stated that on 13.08.2017 he identified the dead body of the deceased at the time of its post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the police official. Fazal Hussain Patwari (PW-5) prepared the scaled site plan of the place of occurrence (Exh.PH). Sajid Hussain 2183/C (PW-

6)stated that on 13.08.2017 he escorted the dead body of the deceased to the hospital for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Muhammad Suleman, SI (PW-7) stated that on 13.08.2017 he reached at the place of occurrence and recorded the oral statement (Exh.PJ) of Muhammad Ayyaz (PW-8). Ghulam Abbas,SI (PW-9) , the Investigating Officer of the case, investigated the case from 13.08.2017 till 21.09.2017, arrested the appellant on 13.09.2017, 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. Khalil Asrar (PW-4) examined, who on 13.08.2017 was posted as Medical Officer at RHC Kot Samaba and on the same day conducted the postmortem examination of the dead body of Zawar Hussain son of Kaloo Khan (deceased). Dr. Khalil Asrar (PW- 4),on examining the dead body of Zawar Hussain son of Kaloo Khan (deceased) observed as under:-

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“Date and time of death:- 13.08.2017 at 12:00 p.m as in police papers.

Autopsy was conducted on 13.08.2017 at 07:15 p.m. Diagnostic test:

X-RAYS Head & neck, chest and pelvis were conducted/done before postmortem procedure.

External Examination:

Dead body of 32/33 years male lying supine on mortuary table with good heigh (sic), thin and lean person. Eyes semi-opened, no bleeding or hemorrhage seen. Nose, mouth ears normal. Rigor mortis present. No congestion seen, no patecheal hemorrhages seen on body. Abrasion seen at front of forehead. Fecal matter seen at anal orifice. Urethral orifice normal.

Examination of clothes Sky blue colored clothes stained with dirt at multiple sites, not torn, not blood stained.

Examination of neck.

No external marks of violence seen on neck i.e. bruises, hemorrhages or congestion. No marked swelling seen over neck. Upon dissection of neck, skin, soft tissue and adjacent structures seems to be normal. However, hyoid bone arytenoid and thyroid cartilages and adjacent tissue sent for histopathological examination.

Description of Injuries.

1.5 mm x 3 mm abrasion seen in front of forehead above and right aspect of glabella. Sample sent for histopathological examination.

2.On examination of neck, no marks swelling noted however samples of hyoid bone, thyroid cartilages and adjacent tissue was sent for histopathological examination.

Final Opinion:

Though at the level of neck apparently no mark of violence and intact hyoid bone was evident, however taking in view forensic histopathology report which says "The brain section reveals vascular congestion of meninges and of brain tissue and associated brain tissue hyperemia", "The lungs sections reveal presence of oedematous fluid inside alveoli" and "The thyroid cartilage, superficial skin and adjacent soft tissue with hyoid bone reveals blood hemorrhages suggesting ante-mortem nature of injury at level

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of neck" From all this I am of the opinion that cause of death being asphyxia at the level of neck.”

7.On 24.04.2018, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Ghulam Shabbir as being unnecessary. On 04.05.2019 the complainant of the case gave up prosecution witnesses namely Muhammad Hashim, Muhammad Amir, Muhammad Zahid and Muhammad Irfan as being won over by the accused . On 04.05.2019, the learned DPP closed the prosecution evidence.

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

9.On the conclusion of the trial, the learned Sessions Judge, Rahim Yar Khan convicted and sentenced the appellant as referred to above.

10.The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant

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further contended that the story of the prosecution, mentioned in the statements of the witnesses, on the face of it, is highly improbable.

Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to suspicion. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the

complainant/respondent No.2 contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.

They further argued that the deceased died as a result of assault suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statement of Muhammad Ayyaz (PW-8).

They further contended that there was no occasion for Muhammad Ayyaz (PW-8), who was 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 appeal as lodged by the appellant namely Muhammad Imran son of Hazoor Bakhsh .

12.We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General along with the learned counsel for the

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complainant and with their assistance perused the record and evidence recorded during the trial.

13.The whole prosecution case orbits around the evidence of the sole eye witness namely Muhammad Ayyaz son of Kaloo Khan (PW-8). With this realization in our mind that it is the quality and not the quantity of the witnesses which is to be considered, we have proceeded to examine the statement of Muhammad Ayyaz son of Kaloo Khan (PW-8), the sole eye witness of the case produced by the prosecution. Though in the oral statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan (PW-8) it was recorded that the occurrence was also witnessed by Muhammad Hashim and Muhammad Amir, however, as mentioned above, the complainant of the case gave up the said witnesses by submitting a written application in this behalf to the learned trial court on 04.05.2019. After scrutinizing the statement of Muhammad Ayyaz son of Kaloo Khan (PW-

8)and the other prosecution evidence produced before the learned trial court, we have arrived at an irresistible conclusion that the statement of Muhammad Ayyaz son of Kaloo Khan (PW-8) is worthy of no reliance and the facts in issue could not be proved by the prosecution during the course of trial. The deceased namely Zawar Hussain was related to Muhammad Ayyaz son of Kaloo Khan (PW-8) being his real brother. It was also admitted by Muhammad Ayyaz son of Kaloo Khan (PW-8) that he was not the resident of the place of occurrence rather he used to reside within the area of Tehsil Jatoi District Muzaffargarh , whereas the occurrence had taken place within the area of Mauza Roshan Abad,

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District Rahim Yar Khan . It was further admitted by Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross-examination that he was resident of Mauza Ram Pur which was at a distance as many as eight kilometres from the city of Jatoi and it took three hours to reach Rahim Yar Khan from Mauza Ram Pur. Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross-examination further stated that his brother was residing within the area of City Khanpur and Sheikh Wahan, the place where the occurrence took place, was at a distance , which took forty minutes to one hour to cover ,from the house of his deceased brother. Muhammad Ayyaz son of Kaloo Khan (PW-8) in his statement before the learned trial court further claimed that prior to the occurrence he had come to the city of Khanpur to visit his deceased brother namely Zawar Hussain, however, Muhammad Ayyaz son of Kaloo Khan (PW-8) in his statement did not mention as to since when he had arrived at the city of Khanpur to visit his brother. Muhammad Ayyaz son of Kaloo Khan (PW-8) claimed that on the day of occurrence he and his deceased brother namely Zawar Hussain proceeded to the cattle market established within the area of Sheikh Wahan and at about 12.00 noon, a bull belonging to the appellant namely Muhammad Imran treaded on the foot of Muhammad Ayyaz son of Kaloo Khan (PW-8) which resulted into an altercation whereafter the occurrence took place. Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross- examination admitted as under:-

“I am permanent resident of Mouza Ram Pur, Tehsil Jatoi, which is situated at a distance of eight kilometers from city Jatoi. It takes about three hours to reach Rahim Yar Khan from Mouza Ram Pur.

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Today, I have come from Tehsil Jatoi to record my statement, and it took about three hours to reach here. My brother Zawar Hussain was permanently residing with his family members, at Khanpur city.

Zawar Hussain was dealing with cattle-business. Sheikh Wahan is situated at a distance of forty minutes to one hour from Khan Pur.”(emphasis supplied)

In this manner, Muhammad Ayyaz son of Kaloo Khan (PW-8) can be validly termed as a chance witness and therefore was under a duty to prove his presence at the place of occurrence, at the time of occurrence, which place admittedly was not the place of his abode rather was far away from the same. In this regard we have observed that it was claimed by Muhammad Ayyaz son of Kaloo Khan (PW-8) that he had gone to the cattle market along with his deceased brother namely Zawar Hussain and Muhammad Hashim and Muhammad Amir. Muhammad Ayyaz son of Kaloo Khan (PW-8) further explained that he started the journey in the company of Muhammad Amir and Muhammad Hashim along with the deceased from Khanpur to Sheikh Wahan at about 6.00/7.00 a.m. It was further claimed by Muhammad Ayyaz son of Kaloo Khan (PW-8) that they had undertaken the said journey on two single cabin vehicles (Dalas). Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross- examination stated as under:-

“Muhammad Hashim PW was cousin as well as brother in law (Saala) of deceased Zawar Hussain while Amir was his real nephew (Bhateeja).

PW Amir is also resident of Mouza Ram Pur Tehsil Jatoi. On 13.08.2017, I alongwith Zawar Hussain deceased and PWs Amir and Hashim proceeded from Khanpur to Sheikh-wahan at about

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06.00/07.00 a.m. simultaneously in two different vehicles-dalas, and reached Sheikh-wahan cattle-market together. The vehicles/daalas were private and hired by us for the whole day.”

As mentioned above, both Muhammad Hashim, who was the cousin as well as the brother in law (Saala) of the deceased and Muhammad Amir, the real nephew of the deceased and Muhammad Ayyaz son of Kaloo Khan (PW-8), did not appear before the learned trial court in support of the prosecution case rather were given up by Muhammad Ayyaz son of Kaloo Khan (PW-8) himself with the claim that they had been won over by the accused. The said two witnesses namely Muhammad Hashim and Muhammad Amir had no relationship with the accused and it has not been brought on record that as to why and under what circumstances the said two witnesses namely Muhammad Hashim and Muhammad Amir ,who were close relatives of Muhammad Ayyaz son of Kaloo Khan (PW-8) and the deceased , refused to support the prosecution case except that they did not want to support the false narrative as was being championed by Muhammad Ayyaz son of Kaloo Khan (PW-8). More worrying is the fact that though it was claimed by Muhammad Ayyaz son of Kaloo Khan (PW-8) that they had arrived at the place of occurrence on two single cabin vehicles (Dalas), however neither the said vehicles were produced before Ghulam Abbas SI (PW-9) ,the Investigating Officer of the case nor Ghulam Abbas SI (PW-9) himself took the said vehicles into the possession so as to prove the arrival of Muhammad Ayyaz son of Kaloo Khan (PW-8) at the place of occurrence on the said vehicles. According to the statement of Ghulam Abbas,SI (PW-9) , the Investigating Officer of

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the case , he arrived at the place of occurrence , after the occurrence and also recorded the statements of the witnesses and prepared the rough site plan of the place of occurrence (Exh.PK) , however no such vehicle, as used by Muhammad Ayyaz son of Kaloo Khan (PW-8) to arrive at the place of occurrence, was found to be present at the place of occurrence or marked as present in the rough site plan of the place of occurrence (Exh.PK). As mentioned above, Muhammad Ayyaz son of Kaloo Khan (PW-8) claimed that the said vehicles had been hired by them for using the same for the whole day, however, no documentary evidence was produced in this regard and Ghulam Abbas, SI (PW-9) , the Investigating Officer of the case , did not even record the statement of any owner of the said vehicles. Had Muhammad Ayyaz son of Kaloo Khan (PW-8) and the other witnesses namely Muhammad Hashim and Muhammad Amir, arrived at the place of occurrence on such vehicles then the same would have been found to be present at the place of occurrence , at the time of arrival of Muhammad Salman, SI (PW-7) and Ghulam Abbas, SI (PW- 9), the Investigating Officers of the case, however, their absence proves that none was used or hired by Muhammad Ayyaz son of Kaloo Khan (PW-8) or the other witnesses , on the day of occurrence. Furthermore it was claimed by Muhammad Ayyaz son of Kaloo Khan (PW-8) that at the time of occurrence he was taking care of his cattle, however no such cattle were found present by Muhammad Suleman SI (PW-7) at the time of his arrival at the place of occurrence or by Ghulam Abbas, SI (PW-9) , the Investigating Officer of the case, when he arrived at the place of occurrence. Even Muhammad Ayyaz son of Kaloo Khan (PW-8) himself

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did not produce such cattle before the Investigating Officer of the case.

There was no reason for the said cattle not to be present at the place of occurrence, at the time of arrival of Muhammad Suleman SI (PW-7), at the place of occurrence or when Ghulam Abbas, SI (PW-9), the Investigating Officer of the case, arrived at the place of occurrence. The absence of any cattle at the place of occurrence and there being no evidence produced that said cattle were there, are factors proving that none were there and only a false claim was made by Muhammad Ayyaz son of Kaloo Khan (PW-8) to provide a justification for his arrival and presence at the place of occurrence, in which endeavour he was proved to be wanting and failed miserably. In this manner Muhammad Ayyaz son of Kaloo Khan (PW-8) failed to establish that he had arrived at the place of occurrence in the company of the deceased from the house of the deceased, which house was admittedly at a distance of forty minutes to one hour journey from the place of occurrence. We have also noted that the name of Muhammad Ayyaz son of Kaloo Khan (PW-8) was not mentioned in the column No.4 or at page 4 of the inquest report (Exh.PD) as prepared by Muhammad Suleman, SI (PW-7). We have also noted Muhammad Ayyaz son of Kaloo Khan (PW-8) made no effort to take Zawar Hussain (deceased) to the hospital. Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross-examination admitted as under:- “After informing the police, we did not take the deceased anywhere for medical treatment etc. but we were waiting the police

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Police reached the spot at about 03.00/03.30 p.m. We remained present with the dead body till the arrival of police.”

As mentioned above, the name of Muhammad Ayyaz son of Kaloo Khan (PW-8) was not mentioned in column No.4 or at page 4 of the inquest report (Exh.PD) as prepared by the Muhammad Suleman (PW-7) as being the person who was present near the dead body at the time of the preparation of the inquest report (Exh.PD). Additionally, Muhammad Ayyaz son of Kaloo Khan (PW-8) did not accompany the dead body of the deceased to the hospital for post mortem examination. This conduct of Muhammad Ayyaz son of Kaloo Khan (PW-8) where he made no effort to take Zawar Hussain (deceased) to the hospital and also did not accompany the dead body of the deceased to the hospital , convincingly establishes that the said witness was not present at the place of occurrence, at the time of occurrence and arrived there subsequently.

Reliance is placed on the case of “Zaheer Sadiq v. Muhammad Ijaz and others” (2017 SCMR 2007) 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 has held as under:-

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

In absence of any physical proof of the presence of Muhammad Ayyaz son of Kaloo Khan (PW-8) at the crime scene, the same cannot be

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believed. 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 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 worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:- “In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence.”

14.We have also noted that the alleged eye witnesses namely Muhammad Ayyaz son of Kaloo Khan (PW-8), Muhammad Amir and Muhammad Hashim ( both not produced) made no effort either to save the deceased or to apprehend the appellant when they were three in number and could have easily restrained the accused, who was not even armed

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with any weapon. Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross-examination admitted as under:-

“ Both the accused persons were empty handed and did not had (sic) any kind of weapon with them. Zawar Hussain deceased was of normal physique .”

It is unnatural and unbelievable that the alleged eye witnesses namely Muhammad Ayyaz son of Kaloo Khan (PW-8), Muhammad Amir and Muhammad Hashim (both not produced) did not even move a limb to protect their near and dear one. During the whole occurrence none of Muhammad Ayyaz son of Kaloo Khan (PW-8), Muhammad Amir and Muhammad Hashim (both not produced) made any attempt to help the deceased. Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross- examination admitted as under:-

“ At the time of occurrence , I was present on Western side at a distance of 10/15 paces from Zawar Hussain.

When the accused Imran was throttling the neck of Zawar Hussain, I was managing and controlling my cattle.”

The above referred statement of Muhammad Ayyaz son of Kaloo Khan (PW-8) makes the conduct of the said witness all the more absurd. We have observed that despite the claimed presence of Muhammad Ayyaz son of Kaloo Khan (PW-8) , Muhammad Amir and Muhammad Hashim (both not produced), no effort was made to save the life of the deceased namely Zawar Hussain. During the course of occurrence the prosecution witnesses namely Muhammad Ayyaz son of Kaloo Khan (PW-8), Muhammad Amir and Muhammad Hashim (both not produced) remained

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silent spectators and did not react at all or show any response when this incident was taking place. Muhammad Ayyaz son of Kaloo Khan (PW-8) admitted that he did not receive any injury during the occurrence.

Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross-examination admitted as under:-

“Neither the witnesses nor accused persons received any kind of injury.”

No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators without doing anything to rescue the deceased or to apprehend the assailant. It is strange that when the witnesses had the desire to apprehend the accused after the occurrence and were not fearful of the assailant at that time, then why they could not stop him from committing the occurrence. The allowance of prosecution witnesses to the assailant of causing the death of their near and dear relative speaks loudly that if Muhammad Ayyaz son of Kaloo Khan (PW-8), Muhammad Amir and Muhammad Hashim (both not produced) had been present at the place of occurrence, at the time of occurrence, then they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save him. Such behavior, on part of the witnesses, runs counter to natural human conduct and behavior. Article 129 of the Qanun- e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the

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common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the witnesses, as deposed by Muhammad Ayyaz son of Kaloo Khan (PW-8), was opposed to common course of natural events, human conduct and that the witnesses were not present at the time of occurrence at the crime scene. We hence are holding that Muhammad Ayyaz son of Kaloo Khan (PW-8) was not present at the place of occurrence, at the time of occurrence . The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances.

Reliance is placed on the case of Zulifqar Ali v. The State (2021 S C M R 1373) wherein the august Supreme Court of Pakistan observed as under:-

“Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene”

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Reliance is placed on the case of “Pathan v. The State” (2015 SCMR

315)at page 317 wherein the august Supreme Court of Pakistan observed as under:-

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

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

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

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

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

15.We have also observed that according to Muhammad Ayyaz son of Kaloo Khan (PW-8), the incident took place in the cattle market where as many as two thousand persons were present at the time of occurrence, however, none appeared either before Muhammad Suleman SI (PW-7) or Ghulam Abbas, SI (PW-9), the Investigating Officers of the case, in support of the statement of Muhammad Ayyaz son of Kaloo Khan (PW- 8). During the cross-examination Muhammad Ayyaz son of Kaloo Khan (PW-8) stated as under:-

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“ It is correct to suggest that there might have been about two thousands persons in the market.

Many people of my tribe were present in cattle-market at that time.”

Admittedly none of the cattle merchants or the other two thousand attendees, who were present at the place of occurrence, at the time of occurrence, as mentioned by Muhammad Ayyaz son of Kaloo Khan (PW-

8)himself, were examined during the investigation of the case or appeared as prosecution witnesses before the learned trial court during the trial to support the prosecution case. It is further an admitted aspect of the case that no one, other than Muhammad Ayyaz son of Kaloo Khan (PW- 8),appeared to support the case against the appellant. The Investigating Officers of the case were under a binding duty to collect evidence and their 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 decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State (2010 SCMR 949) wherein it has been observed as under:- “....further that no independent witness of the locality where the incident took place, a “Bazar” joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is

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difficult to say that prosecution has proved its case beyond shadow of doubt.”

16.Another aspect of the case raising our doubt over the presence of the prosecution witness namely Muhammad Ayyaz son of Kaloo Khan (PW-8) at the place of occurrence, at the time of occurrence is the fact that he never reported the matter to the police for as many as more than three and a half hours and made no effort to take the deceased to any hospital during the said time period. According to the prosecution case, Muhammad Suleman SI (PW-7), got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Muhammad Ayyaz son of Kaloo Khan(PW-8) and Muhammad Amir and Muhammad Hashim ( both not produced) had told him about the occurrence. We have also observed with grave concern that none of the witnesses including Muhammad Ayyaz son of Kaloo Khan (PW-8) and Muhammad Amir and Muhammad Hashim (both not produced) ever proceeded from the place of occurrence to report the matter to the police till the arrival of Muhammad Suleman, SI (PW-7), at the place of occurrence on his own. Being conscious of this flaw, Muhammad Ayyaz son of Kaloo Khan (PW-8), in his statement before the learned trial court, claimed that it was him who had informed the Punjab Police 24 hours Emergency Helpline(15), however, was exposed to have made a false statement in this regard. During the cross-examination Muhammad Ayyaz son of Kaloo Khan (PW-8) admitted that it was not him who informed Punjab Police 24 hours Emergency Helpline (15) about the occurrence and did not even remember the name of person who did .

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Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross-examination stated as under:-

“I do not remember who informed the police on 15.

After informing the police through 15, police did not come at the place of occurrence, whereupon a person also went to police station and after that, police came at the spot. I do not remember as to who went to the police station to inform the police. I also do not know as to on which conveyance, some body/informer went to police station”(emphasis supplied)

Moreover, during the course of trial no such witness of the Punjab Police 24 hours Emergency Helpline (15) was produced before the learned trial court to prove the claim of Muhammad Ayyaz son of Kaloo Khan(PW-8) nor any documentary evidence was produced related to any information relayed to the officials of the Punjab Police 24 hours Emergency Helpline(15) at the place of occurrence. Moreover, the oral statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan (PW-8) was recorded by Muhammad Suleman, SI (PW-7) at the place of occurrence after his arrival there at 03.30 p.m . The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:

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

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We have also noted that despite the fact that the occurrence had allegedly taken place at about 12.00 noon, however the oral statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan (PW-8) was recorded by Muhammad Suleman, SI (PW-7) at 3.30 p.m and the formal FIR (Exh.PA) was not registered till 4.50 p.m. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one, because, the witnesses never reported the matter to the police for as many as three and a half hours .This inordinate delay in reporting the matter conclusively proves that the oral statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan(PW-8) and the formal F.I.R (Exh.PA) were prepared after probe, consultation, planning, investigation and discussion. As mentioned above, Muhammad Ayyaz son of Kaloo Khan (PW-8) was resident of Mauza Rampur and according to him it took about three and a half hours to arrive from his house to the place of occurrence, and in this case this was the exact amount of time which was taken after the occurrence for recording the oral statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan (PW-8) , proving that Muhammad Ayyaz son of Kaloo Khan (PW-8) was not present at the place of occurrence , at the time of occurrence , and the delay was used for procuring his arrival. As many as three and half hours were taken to invent a false and dishonest narrative of the oral statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan (PW-8). The scrutiny of the statements of the prosecution witnesses reveals that the oral

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statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan (PW-8) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences there absence at the time of occurrence , at the place of occurrence. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:-

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

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

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

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

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Zafar vs. The State and others (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:-

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

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

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

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

S C M R 1045).

17.We have also noted with disquiet that despite the fact that the occurrence took place at about 12.00 noon on 13.08.2017, however, the

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postmortem examination of the dead body of the deceased was conducted after a delay. According to the Post Mortem Examination Report (Exh.PC), Dr. Khalil Asrar (PW-4), conducted the post mortem examination of the dead body of the deceased namely Zawar Hussain (deceased) at 7.15 p.m. on 13.08.2017. According to the Post Mortem Examination Report (Exh.PC), Dr. Khalil Asrar (PW-4) received the complete documents from the police at 7.00 p.m on 13.08.2017 despite the claim of the prosecution witnesses that the occurrence had taken place at about 12.00 noon and on 13.08.2017, the oral statement (Exh.PJ) of Muhammad Ayyaz son of Kaloo Khan (PW-8) had been recorded at 3.30 p.m on 13.08.2017 and the formal F.I.R (Exh.PA) had been recorded at the Police Station at 4.50 p.m on 13.08.2017. The post mortem examination of the dead body of the deceased was delayed and the delay was due to late arrival of the dead body and the late submission of police papers. No explanation was offered to justify the said delay in conducting the post mortem examination. This clearly establishes that Muhammad Ayyaz son of Kaloo Khan (PW-8) claiming to have seen the occurrence was not present at the place of occurrence, at the time of occurrence and the delay in the post mortem examination was due to the time used to procure his attendance and formulate a false narrative after consultation and discussion. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case

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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.We have also noted that though it was claimed by Muhammad Ayyaz son of Kaloo Khan (PW-8) that the appellant had pressed the neck of the deceased with his hands and kept pressing the same till the deceased died, however, Dr. Khalil Asrar (PW-4), on examining the dead body of Zawar Hussain son of Kaloo Khan (deceased) did not observe any marks of violence on the neck of dead body of the deceased. Dr.

Khalil Asrar (PW-4) observed as under:-

Examination of neck.

No external marks of violence seen on neck i.e. bruises, hemorrhages or congestion. No marked swelling seen over neck. Upon dissection of neck, skin, soft tissue and adjacent structures, seems to be normal. However, hyoid bone arytenoid and thyroid cartilages and adjacent tissue sent for histopathological examination.

Description of Injuries.

1.5 mm x 3 mm abrasion seen in front of forehead above and right aspect of glabella. Sample sent for histopathologicall examination.

2.On examination of neck, no marks swelling noted however samples of hyoid bone, thyroid cartilages and adjacent tissue was sent for histopathological examination.”

In Chapter 20 “Deaths from Asphyxia ”, from page 515 to page 517 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) Strangulation has been defined as the compression of the neck by a force other than hanging and when

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constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. It has been further noted that if fingers are used for throttling, marks of pressure by the thumb and the finger prints are found on the either side of the neck. In Chapter 20 “Deaths from Asphyxia”, at page 515 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), the types of strangulation have been mentioned as under:-

“ Types of Strangulation

. Ligature strangulation

. Throttling (manual strangulation-compressing with hand) • Mugging (compressing with forearm or foot or wrist)

• Bansdola (wooden stick is used to compress the neck) • Garrotting (a rope or a loincloth and a wooden stick as a lever to tighten the ligation is used)

• Accidental strangulation (can arise in the course of a person's occupation when a neck tie or scarf is caught in moving machinery or belts as in mill workers or in an epileptic or an intoxicated person who may be helpless in extricating himself from such tight encirclement of the neck or in utero when the movements of the foetus cause the umbilical cord to be wound round into neck.”

In the same Chapter 20 “Deaths from Asphyxia ”, from page 516 to page 517 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) it has been discoursed as under:-

“(2) If fingers are used (throttling), marks of pressure by the thumb and the fingertips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of

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the neck, and the finger marks are situated on its other side obliquely downwards and outwards, and one below the other. However, the marks are sometimes found clustered together, so that they cannot be distinguished separately. These fingertip bruises, each disc-shaped and 1-2 cm in diameter, look like red bruises (six penny bruises) if examined soon after death, but they look brown, dry and parchment- like sometimes death. One should refrain from drawing inference from the direction of curved abrasion, as to how the hand of the assailant might have been applied to the neck of victim. The inherent quality of the victim's skin, the shape, and length of the fingernails of the assailant render such inferences extremely tenuous. This linear or crescentic marks produced by the fingernails are occasionally present, if the fingertips are pressed deeply into the soft tissues of the neck. A body, which is wet, may not reveal fingernail marks until drying of the skin of the body. When both hands are used to grasp and compress the throat, the thumb mark of one hand and the finger marks of the other hand are usually found on either side of the throat. Sometimes, both thumb marks are found on one side and several finger marks on the opposite side. If the throat is compressed between two hands, one being applied to the front and the other to the back, bruises and abrasions may be found on the front of the neck, as well as on its back.

Besides these marks, there may be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, if there has been a struggle. Similarly, fractures of the ribs and injuries to the thoracic and abdominal organs may be present, if the assailant kneels on the chest or abdomen of his victim while pressing his throat” As narrated above, had the deceased been throttled in the manner as stated by Muhammad Ayyaz son of Kaloo Khan (PW-8) then Dr. Khalil Asrar

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(PW-4) must have observed the evidence of marks of pressure by the thumb and the fingertips, fingertip bruises, linear or crescentic marks produced by the fingernails, abrasions and bruises on the mouth, nose, cheeks forehead, lower jaw or any other part of the body, however he did not. The oral account of the occurrence, as given by Muhammad Ayyaz son of Kaloo Khan (PW-8), cannot be said to be in accordance with the medical evidence, rather is proved to be contrary to it.

19.We have already mentioned that along with the appellant his co- accused namely Muhammad Jehangir (since acquitted) was also tried .

The learned trial court acquitted the above mentioned co-accused namely Muhammad Jehangir (since acquitted) of the charges. We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co-accused of the appellant, who have stated that the acquittal of Muhammad Jehangir (since acquitted) had attained finality as the acquittal of Muhammad Jehangir (since acquitted) was not assailed and the matter was not agitated any further. The question for determination before this Court now is that whether the evidence of the prosecution witnesses which has been disbelieved qua the acquitted co- accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of

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Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No.

200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: -

“The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.

Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is

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a serious offence in this country. A court of law cannot permit something which the law expressly forbids.

21.We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury.”

Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statement of Muhammad Ayyaz son of Kaloo Khan (PW-8), the sole eye witness of the occurrence. Muhammad Ayyaz son of Kaloo Khan (PW- 8), during his statement recorded by the learned trial court, stated as under:-

“Muhammad Imran climbed over my brother Zawar Hussain and throttled my brother Zawar from his neck, whereas Muhammad Jahangir accused gave kick and fist blows to Zawar Hussain”. (emphasis supplied)

Muhammad Ayyaz son of Kaloo Khan (PW-8) attributed causing of injuries to the deceased by Muhammad Jehangir (since acquitted) however Muhammad Ayyaz son of Kaloo Khan (PW-8) was adjudged to

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have made a false statement with regard to Muhammad Jehangir (since acquitted), the co-accused of the appellant. We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appellant from the case of the acquitted co-accused namely Muhammad Jehangir as the prosecution evidence with regard to the appellant and with regard to his co-accused namely Muhammad Jehangir (since acquitted) is similar, being the statement of Muhammad Ayyaz son of Kaloo Khan (PW-8) .

We find no reason to believe the statement of Muhammad Ayyaz son of Kaloo Khan (PW-8) with regard to the appellant in absence of any reason to do so. This lying on part of Muhammad Ayyaz son of Kaloo Khan (PW-8) with regard to Muhammad Jehangir (since acquitted) , the co- accused of the appellant ,has vitiated our trust in him. We are thus satisfied that the evidence of Muhammad Ayyaz son of Kaloo Khan (PW-

8)has no worth and deserves outright rejection. Reliance in this regard is placed on the case of Tariq Vs. The State (2017 S C M R 1672) wherein the august Supreme Court of Pakistan has held as under: - “So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant.”

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Reliance in this regard is also placed on the case of MUNIR AHMED and others Vs. the State and others (2019 S C M R 2006) wherein the august Supreme Court of Pakistan has held as under: -

“Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity, it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the deceased and the injured, nonetheless, are identically placed with those by now, off the hook.

Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitioners and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in

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the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside;

the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case.”

Reliance is also placed on the case of SAFDAR ABBAS and others Versus The STATE and others (2020 S C M R 219) wherein the august Supreme Court of Pakistan has held as under: -

“Petitioners' father, namely, Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-accused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential.

Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court.

In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co- accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error.

Criminal Petition No.955-L/2016 is converted into appeal and allowed,

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impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case.”

20.Learned Deputy Prosecutor General and the learned counsel for the complainant have also submitted that the evidence of motive corroborated the ocular account. The motive of the occurrence as stated by Muhammad Ayyaz son of Kaloo Khan (PW-8) was that a bull belonging to the appellant stepped on his foot whereupon Zawar Hussain (deceased) confronted the appellant, however the appellant started a quarrel about it, which ended with the death of Zawar Hussain (deceased).

During the trial, Muhammad Ayyaz son of Kaloo Khan (PW-8) could not produce any evidence in support of the said motive. According to Muhammad Ayyaz son of Kaloo Khan (PW-8) they had been present in the cattle market since 8.00 a.m, however the occurrence took place at 12.00 noon, when allegedly the bull belonging to the appellant treaded on the foot of Muhammad Ayyaz son of Kaloo Khan (PW-8), however during the course of investigation, both Muhammad Suleman, SI (PW-7) and Ghulam Abbas, SI (PW-9) , the Investigating Officers of the case,did not observe or identify the place where the said incident of the bull belonging to the appellant stepping on the foot of Muhammad Ayyaz son of Kaloo Khan (PW-8) had taken place. We have also perused the scaled site plan of the place of occurrence (Exh.PH) as prepared by Fazal Hussain Patwari (PW-5) and the rough site plan of the place of occurrence (Exh.PK) as prepared by Ghulam Abbas, SI (PW-9) , the Investigating Officer of the case and find that no such place has been identified in both the said site plans where the incident related to the motive of the

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occurrence had taken place. Muhammad Ayyaz son of Kaloo Khan (PW-

8)also admitted that he did not receive any injury as a result of the bull treading on his foot. Muhammad Ayyaz son of Kaloo Khan (PW-8) during cross-examination admitted as under:-

“ Due to climbing of bull on my foot, my foot did not sustain any injury.”

Additionally, according to Muhammad Ayyaz son of Kaloo Khan (PW-8) there were about two thousand people, many of his own tribe, who were present at the place of occurrence, at the time of occurrence , however none of them appeared either during the investigation of the case or before the learned trial court in support of the alleged motive. After going through the evidence of the prosecution witnesses we have come to the irresistible conclusion 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 appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

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

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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 has no evidentiary value and loses its significance.

21.The plea of the learned Deputy Prosecutor General and the learned counsel for the complainant that because the complainant party was having no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon.

Reliance in this regard may be placed on the case of Waqar Zaheer vs.

The State (1991 PSC 281).It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without a shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so imputed against the accused, have not been proved beyond a reasonable doubt, then the accused becomes entitled to acquittal. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the

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benefit of the doubt the Court can conclude on considering the agglomerated effect of the evidence available on record as held in the cases of Safdar Ali v. The Crown (PLD 1953 FC 93) and Muhammad Luqman v. The State (PLD 1970 SC 10). In the instant case we have scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence- inspiring and consistent evidence against the appellant. Conversely, the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused person intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently would not be sustainable in the eye of law in view of the principles laid down by this Court in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent and flawed, thus, on the basis of the same, appellant cannot further be immured because he has every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with the law.

22.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Imran son of Hazoor Bakhsh, the appellant, in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then

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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 entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”

23.For what has been discussed above, the Criminal Appeal No.503 of 2019 lodged by Muhammad Imran son of Hazoor Bakhsh (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 26.06.2019 are hereby set-aside. Muhammad Imran son of Hazoor Bakhsh (appellant) is ordered to be acquitted by extending him the benefit of doubt.

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Muhammad Imran son of Hazoor Bakhsh (appellant) is in custody and is directed to be released forthwith if not required in any other case.

24.Murder Reference No.13 of 2019 is answered in Negative and the death sentence awarded to Muhammad Imran son of Hazoor Bakhsh is Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Approved for Reporting

JUDGE JUDGE