The State vs Muhammad Ismail

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.03 of 2019 (The State Vs. Muhammad Ismail)

Criminal Appeal No. 53 of 2019 (Muhammad Ismail Vs. The State and another)

JUDGMENT

Date of hearing: 28.10.2021.

Appellant by: Ms. Tania Bazai, Advocate.

(Learned defence counsel appointed at State expense).

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

SADIQ MAHMUD KHURRAM, J. –Muhammad Ismail son of Shahab Din (convict) was tried by the learned Additional Sessions Judge, Chishtian in case FIR No. 50 of 2018 dated 23.01.2018 registered at Police Station City Chistian District Bahawalnagar in respect of an offence under section 302 PPC for committing the Qatl-i-Amd of Gulzar Ahmad son of Rehmat Ali (deceased). The learned trial court vide judgment dated 28.01.2019, convicted Muhammad Ismail son of Shahab Din (convict) and sentenced him as infra:

Muhammad Ismail son of Shahab Din:

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

Criminal Appeal No. 53 of 2019

heirs of the deceased and 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.

2.Feeling aggrieved, Muhammad Ismail son of Shahab Din (convict) lodged Criminal Appeal No.53 of 2019 assailing his conviction and sentence.

The learned trial court submitted Murder Reference No.03 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ismail son of Shahab Din. We intend to decide the Criminal Appeal No. 53 of 2019 and Murder Reference No.03 of 2019 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as stated by Muhammad Irshad (PW-1), the complainant of the case, are as under:- “Stated that 1 run a business of selling cloth on my own motorcycle from village to village on daily basis. My brother Gulzar Ahmed deceased also runs the same business. My brother Gulzar Ahmed resides in Bhatta Colony Chishtian in a rented house. On 23 01-2018 at about 06:00PM Muhammad Tariq s/o Muhammad Ismaeel caste Ansari came to my house and inquired about Gulzar Ahmed and he told me that he had to purchase cloth from Faisalabad through Gulzar Ahmed and he wants to meet him to give him some money for purchasing of the cloth from Faisalabad. I replied to Muhammad Tariq that usually he returns back and visits my house before Maghrab but today he did not come in my house. On 23-01-2018 at about 06:30 PM I alongwith Tariq and my son Dastageer reached at the house of Gulzar Ahmed to give him some money for purchasing cloth. When we entered in his house there was hue and cry in his residential room. We saw that Muhammad Ismaeel accused armed with Churi was giving Churi blows on body of Gulzar Ahmed. Before our eyesight. Muhammad Ismaeel accused gave 6/7 Churi Blows to Gulzar Ahmed at his chest, hands, neck and back. We raised noise and tried to apprehend him but he fled away from the scene by brandishing Churi. My brother Gulzar Ahmad succumbed to injuries. On telephonic call of Muhammad Tariq PW, police arrived there and we told the whole story to the police. Muhammad Akram SI recorded my statement Exh-PA, read the same over me and obtained my signature on it. Motive behind the occurrence is that accused Muhammad Ismaeel demanded money as loan from my brother Gulzar Ahmed but he refused to give the same. On the fateful day this

Criminal Appeal No. 53 of 2019

fact was in the knowledge of accused Muhammad Ismaeel that there is huge amount in the pocket of Gulzar Ahmed and he has to go Faisalabad for purchasing cloth. Accused came there and tried to snatch money but on his resistance, he murdered him with Churi. The accused murdered my brother Gulzar Ahmed without any cause, he should be convicted strictly.

On the same day I received dead body of my brother Gulzar Ahmed deceased. The IO prepared receipt. Exh-PB which bears my signature.”

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 Ismaeel son of Shahab Din was sent to face trial. The learned trial court framed the charge against the accused on 09.03.2018, to which the accused pleaded not guilty and claimed trial.

5.The prosecution, in order to prove its case, got statements of as many as eleven witnesses recorded. The ocular account of the case was furnished by Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3). Muhammad Akram, SI (PW-4) submitted that on 23.01.2018, he reached the place of occurrence and recorded the oral statement (Exh.PA) of Muhammad Irshad (PW-1). Muhammad Riaz, ASI (PW-5) stated that on 23.01.2018 he recorded the formal F.I.R (Exh.PA/1).

Mehboob Manzoor 1123/C (PW-6) stated that on 23.01.2018 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 Jamil, Draftsman, (PW-7) stated that he prepared the scaled site plan of the place of occurrence (Exh.PG). Shaukat Ali 1002/HC (PW-8) stated that on 23.01.2018 the Investigating Officer of the case

Criminal Appeal No. 53 of 2019

handed over to him four sealed parcels which on 30.01.2018 he handed over the same to Khalid Rauf, SI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Akbar, Inspector (PW-11), the Investigating Officer of the case, investigated the case from 23.01.2018 till 07.01.2019, arrested the appellant on 05.02.2018, 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. Muhammad Waheed Amjad (PW-10) examined, who on 23.01.2018 was posted as Medical Officer at THQ hospital Chishtian and on the same day conducted the postmortem examination of the dead body of Gulzar Ahmad son of Rehmat Ali (deceased). Dr. ,Muhammad Waheed Amjad (PW-10) on examining the dead body of Gulzar Ahmad son of Rehmat Ali (deceased) observed as under:-

“ Description of injuries.

Injury No.1.

An incised wound measuring 3 cm x 2 cm x muscle deep present on right side of the neck near thyroid cartilage. Under lying vessels damaged.

Injury No.2.

An incised wound measuring 3 x 2 cm x muscle deep present on the interior side of the neck.

Injury No.3.

An incised wound measuring 3 x 1 cm x muscle deep present on right side of upper chest.

Injury No.4.

Two incised wound measuring 3 x 1 cm x muscle deep and on dissection going into thorasic cavity damage right ventrical of the heart, present on left side of the chest.

INJURY NO. 5.

Criminal Appeal No. 53 of 2019

An inside (sic) wound measuring 2 x 1 cm x skin deep. Present on interior side of the right arm.

INJURY NO. 6.

An incised wound measuring 4 x 1 cm x muscle deep present in first web space of right hand.

INJURY NO. 7

An incised wound measuring 4 x 2 cm x muscle deep present on first web space of left hand.

INJURY NO. 8.

An incised wound measuring 4 x 1 cm x muscle deep present on posterior side of lower chest. On deep dissection damaging liver.

INJURY NO. 9.

An incised wound measuring 3x 2cm x muscle deep present on left side of neck damaging deep vessels of neck. Thyroid, arytenoids, hyoid bone intact.

FINAL OPINION.

After performing external and internal examination of dead body, it can be said that injury No. 1,4 and 9 are sufficient to cause death..”

7.On 17.01.2019, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PK) and the certificate of identification of the accused (Exh.PL).

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Ismail son of Shahab Din under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Ismail son of Shahab Din opted not to get himself examined

Criminal Appeal No. 53 of 2019

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 Additional Sessions Judge, Chishtian convicted and sentenced the appellant as referred to above.

10.The primary contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of the eye witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) were not worthy of any reliance. The learned counsel for the appellant 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 appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

11.On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. He further argued that the deceased died as a result of injuries suffered at the hands of the appellant. He further contended that the medical evidence also corroborated the statements of Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam

Criminal Appeal No. 53 of 2019

Dastageer (PW-3). He further argued that the recovery of the Churri (P-4) from the appellant namely Muhammad Ismail son of Shahab Din also corroborated the ocular account. He further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General prayed for the rejection of appeal as lodged by the appellant namely Muhammad Ismail son of Shahab Din.

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

13.The whole prosecution case revolves around the statements of the eye witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3). The relationship of the said witnesses with each other and the deceased is on record. Gulzar Ahmad son of Rehmat Ali, deceased, was the brother of Muhammad Irshad (PW-1) and brother in- law of Muhammad Tariq Sultan (PW-2) and the paternal uncle of Ghulam Dastageer (PW-3). According to the prosecution witnesses the occurrence had taken place in a house rented by the deceased namely Gulzar Ahmad son of Rehmat Ali. It has been admitted by Muhammad Irshad (PW-1) that the said house was at a distance from the place of his residence and it took the witnesses ten minutes on a motorcycle to arrive from the house of Muhammad Irshad (PW-1) to the house taken on rent by Gulzar Ahmad (deceased), on the

Criminal Appeal No. 53 of 2019

day of occurrence. Muhammad Irshad (PW-1) during cross-examination stated as under:-

“ Tariq PW is my brother in law (Behnoi) and PW Ghulam Dastageer is my real son. The distance between residence of my brother (deceased) and PW Tariq is about one mile. It is incorrect to suggest that the said distance is about four kilometer. The distance between my residence and residence of deceased is approximately 03/04-acres.

Tariq PW came on motorcycle to my house at about 06:00PM on the day of occurrence and he stayed at my house for about 5/7 minutes then we proceeded to the house of deceased. Motorcycle was driven by Tariq on which I, Tariq PW and Ghulam Dastageer were riding towards the house of deceased on the same motorcycle. It would have consumed about 10 minutes in reaching the house of deceased.” (emphasis supplied).

The other witness namely Muhammad Tariq Sultan (PW-2) also admitted that he was not the resident of any place around the place of occurrence rather his house was at a distance of 2.7 kilometres from the rented house of the deceased Gulzar Ahmad, the house where the occurrence took place.

Muhammad Tariq Sultan (PW-2) during cross-examination admitted as under:-

“Gulzar was my brother in law. Distance between my house and house of complainant is about 2-5 KM. Distance between my house and the house of deceased Gulzar is about . 2- 3⁄4 -KM (Ponay 3-KM).”(emphasis supplied).

Criminal Appeal No. 53 of 2019

Muhammad Akbar, Inspector (PW-11), the Investigating Officer of the case also admitted during the cross-examination that none of the witnesses whose statements he had recorded during the investigation of the case were residents of the area around the place of occurrence. Muhammad Akbar, Inspector (PW-11),the Investigating Officer of the case, admitted during the cross- examination as under:-

“ It is correct that PWs and complainant are not residents of the area of place of occurrence .”

We have also perused the scaled site plan of the place of occurrence (Exh.PG) as prepared by Muhammad Jamil , Draftsman (PW-7) and the rough site plan of the place of occurrence (Exh.PP) as prepared by Muhammad Akbar Inspector (PW-11), the Investigating Officer of the case, and find that that the places of the residences of none of the three witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) nor the places of work or any shop of the three witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) are marked in the same. In view of the above mentioned facts, it can be validly held that all the three prosecution witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) were “chance witnesses” and therefore were under a duty to explain and prove their presence at the place of occurrence, at the time of occurrence. Strangely enough all the three witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) did not even offer any explanation as to why they found it necessary

Criminal Appeal No. 53 of 2019

to go to the house of the deceased at the end of the day when there did not exist any reason for them to do so. Furthermore, it was claimed by Muhammad Irshad (PW-1) that all the three witnesses had gone to the rented house of the deceased namely Gulzar Ahmad while riding on a motorcycle, however admittedly the said motorcycle used by the three witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) to arrive at the place of occurrence was neither taken into possession by the Investigating Officers of the case nor was produced by any of the three witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) during the investigation of the case. The oral statement (Exh.PA) of Muhammad Irshad (PW-1) was recorded by Muhammad Akram, SI (PW-4) when the said police officer arrived at the place of occurrence, however the motorcycle used by the witnesses to arrive at the place of occurrence was not observed to be present at the place of occurrence by Muhammad Akram, SI (PW-4) at the time of his arrival at the place of occurrence. Subsequently as mentioned above, the investigation of the case was conducted by Muhammad Akbar, Inspector (PW-11), who arrived at the place of occurrence on the same night, but he also did not observe the presence of any motorcycle used by the three witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3), at the time of his arrival and stay at the place of occurrence. The failure of the prosecution witnesses to prove that they had used any motorcycle to arrive at the place of occurrence has repercussions which point towards the fact that the claim of the prosecution witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and

Criminal Appeal No. 53 of 2019

Ghulam Dastageer (PW-3) in this regard was false. All these omissions are conspicuous by their absence. In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of “Muhammad Rafiq v.

State”(2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre 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 , who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and 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.”

We have also marked with concern that the mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PM) by Muhammad Akbar, Inspector (PW-11), who according to his own self had arrived at the place of occurrence at about 8.00 p.m when the occurrence

Criminal Appeal No. 53 of 2019

had taken place at about 6.30 p.m. However, the stance set up by the prosecution in the present case was that Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) were present at the time of the death of the deceased and had remained with the dead body. The mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PM), thus, if the witnesses were present then, at least after the death, as is a consistent practice of such close relatives, they would have closed the mouth and eyes of the deceased on his expiry. Thus, the open mouth and eyes of the deceased at the time of the preparation of the inquest report (Exh.PM) by Muhammad Akbar, Inspector (PW-11) forces a hostile interpretation against the prosecution's version regarding the presence of the witnesses at the place of occurrence, at the time of occurrence. This fact by itself indicates that none of the witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) was present with the deceased at the time his death or even till the arrival of Muhammad Akbar, Inspector (PW-11),the Investigating Officer of the case , at the place of occurrence . The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs. The State”(2019 SCMR 1068) has held as under:

“What has further irked this Court is that in column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW-10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However, the stance set up by the prosecution in the present case is that Arshad Ali - the brother, and Nazir

Criminal Appeal No. 53 of 2019

Ahmad - the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter. Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence.”

14.Another aspect of the case noted by us with some gravity is the fact that all the three witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) admitted that the occurrence had taken place inside a room of the rented house of the deceased namely Gulzar Ahmad at around 6.30 p.m and according to all the three witnesses namely Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) it was dark at the time of occurrence, still none of the witnesses stated in their statements before the learned trial court that any source of light was present and lit at the place of occurrence , at the time of occurrence , which allowed the witnesses to observe the occurrence. Muhammad Irshad (PW-1) during cross- examination admitted as under:-

“ It is correct that usually sun sets in January at about 05/05:15 PM and it is darken at 6.30 PM.”(emphasis supplied)

Similarly, Muhammad Tariq Sultan (PW-2) during his cross-examination stated as under:-

“ At the time of occurrence at 6.30 PM there was darkness.”(emphasis supplied)

Ghulam Dastageer (PW-3) also admitted during cross-examination stated as under:-

Criminal Appeal No. 53 of 2019

“At the time of occurrence it was darkness.”(emphasis supplied) During the course of investigation and even before the learned trial court the no source of light was ever produced in which the three witnesses had witnessed the occurrence. Moreover, all the three prosecution witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) candidly admitted that it was dark at the time of occurrence , however, made no effort to state that they had any source of light with them or that any source of light was available at the place of occurrence in the light of which they had seen the occurrence. The learned Deputy Prosecutor General has submitted that the witnesses had a motorcycle on which they arrived at the place of occurrence, hence the light of the same could have been used to witness the occurrence. The contention of the learned Deputy Prosecutor General has no force for the reason that it was not even claimed by the three witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) that they had used the light of the motorcycle to witness the occurrence.

Moreover, as mentioned above, the said motorcycle was never produced before either of the Investigating Officers of the case or before the learned trial court. Additionally, according to the the scaled site plan of the place of occurrence (Exh.PG) as prepared by Muhammad Jamil , Draftsman (PW-7) and the rough site plan of the place of occurrence (Exh.PP) as prepared by Muhammad Akbar Inspector (PW-11), the Investigating Officer of the case, the occurrence had taken place inside a room which room was at a distance of as many as about 24 feet from the main gate of the house where the occurrence took place and in that manner the light of the motorcycle could

Criminal Appeal No. 53 of 2019

not have illuminated the inside of the room where the occurrence took place.

According to the statement of Muhammad Irshad (PW-1) he was at a distance of 15 feet away when he had seen the occurrence and in that manner there did not exist any possibility that the light of the motorcycle would have allowed the witnesses to observe the occurrence. Moreover, Muhammad Akbar, Inspector (PW-11), the Investigating Officer of the case, also admitted the absence of any light source at the place of occurrence.

Muhammad Akbar, Inspector (PW-11) during cross-examination admitted as under:-

“ It is correct that I did not mention any source of light Exh.PP. It is correct that at the time of occurrence i.e on 23.01.2018 at about 6.30 p.m.

it was darkness.”

Muhammad Akbar, Inspector (PW-11), the Investigating Officer of the case , visited the place of occurrence after the occurrence but no source of light was taken into possession at the spot by the Investigating Officer alongwith other recoveries though there was no occasion for the said source of light not to have been present at the place of occurrence or being not taken into possession by the Investigating Officer during his visit at the place of occurrence, if the same was available. The non-production of any light source lit at the place of occurrence, at the time of occurrence and the failure of the complainant of the case as well as the Investigating Officer 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 with the witnesses or available at the place of occurrence which could have enabled the eye witnesses to have identified the assailant and also spectate the role of

Criminal Appeal No. 53 of 2019

the assailant as acted by him during the occurrence. The prosecution witnesses failed to establish the fact of availability of any light source at the place of occurrence, at the time of occurrence 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 murk. It was admitted by the witnesses themselves that it was a dark night and as the prosecution witnesses failed to prove the availability of any light source, their statements with regard to them identifying the assailant cannot be relied upon. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of “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.”

Criminal Appeal No. 53 of 2019

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

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

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

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

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

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

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

15.We have also observed that according to the prosecution witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3), the occurrence took place only when they had arrived at the place of occurrence. This narrative of the witnesses that the accused kept waiting for their arrival at the place of occurrence and

Criminal Appeal No. 53 of 2019

thereafter committed the same is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to commission of the offence. It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and them deposing against the accused even then the assailant kept waiting for their arrival.

Such behavior, on part of the accused, runs counter to natural human conduct and behavior. Hence we are holding that the prosecution witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3), were not present at the time of occurrence at the place of occurrence and had not witnessed the occurrence . In this regard reliance is placed on the case of “STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others” ( 2019 S C M R 1154) wherein the august Supreme Court of Pakistan held as under:- “Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case.”

Reliance is also placed on the case of “Muhammad Imran Vs. The State” (2020 S C M R 857) wherein the august Supreme Court of Pakistan held as under:-

“These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself.”

Criminal Appeal No. 53 of 2019

16.We have also spotted that the alleged eye witnesses namely Muhammad Jamil (PW-1), Mehboob Ahmad (PW-2) and Khalil Ahmad (PW-3), 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 at the time of occurrence was alone. It is unnatural and unbelievable that the alleged eye witnesses namely Muhammad Irshad (PW- 1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) did not even move a limb to protect their near and dear one. We have perused the postmortem examination report of the deceased and the unfortunate deceased had received as many as nine injuries on his body. During the receiving of the said injuries, nobody helped him. We have observed that despite the claimed presence of Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) , no effort was made to save the life of the deceased namely Gulzar Ahmed. It is all the more bizarre that none of the above mentioned prosecution witnesses actually interfered in order to save the life of the victim when according to them they had arrived at the place of occurrence prior to the occurrence. As per the statement of Dr. Muhammad Waheed Amjad (PW-10) , the deceased had received nine injuries and that during this episode of causing the said injuries some time must have been consumed however, Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) , remained silent spectators and did not react at all or show any response when this incident was taking place. Muhammad Irshad (PW-1) during cross- examination stated as under:-

Criminal Appeal No. 53 of 2019

“ We saw the occurrence from a distance of 15 feet away in standing position.

The whole occurrence took place within ten minutes.”

No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as ten minutes 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 Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) had been present at the place of occurrence, they would have definitely intervened and prevented the assailant from murdering their dear one. It only proves that the deceased was at the mercy of the assailant and no one was there to save him. Such behavior, on part of the witnesses, runs counter to natural human conduct and behavior. Article 129 of the Qanun-e-Shahadat, 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, 1984, that the conduct of the witnesses, as deposed by them, was opposed to common course of natural

Criminal Appeal No. 53 of 2019

events, human conduct and that the witnesses were not present at the time of occurrence at the crime scene. We hence are holding that these witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3), were not present at the place of occurrence, at the time of occurrence and their presence was procured subsequently. 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” 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

Criminal Appeal No. 53 of 2019

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.”

17.We have also noted with disquiet that the postmortem examination of the dead body of the deceased was conducted with much delay.

According to the Post Mortem Examination Report (Exh.PJ) as well as the statement of Dr. Muhammad Waheed Amjad (PW-10) , the post mortem examination of the dead body of the deceased namely Gulzar Ahmad son of Rehmat Ali was conducted at 1.30 a.m. on 24.01.2018. Furthermore, according to the Post Mortem Examination Report (Exh.PJ) as well as the statement of Dr. Muhammad Waheed Amjad (PW-10), the police papers were received at 12.30 a.m on 24.01.2018 and thereafter the post mortem examination of the dead body of the deceased was conducted. It is worth mentioning here that Dr. Muhammad Waheed Amjad (PW-10) in his statement before the learned trial court mentioned that he conducted the post mortem examination of the dead body of the deceased namely Gulzar Ahmad son of Rehmat Ali at 1.30 a.m. on 23.01.2018

Criminal Appeal No. 53 of 2019

inadvertently as the date had changed to 24.01.2018 by the time the post mortem examination of the dead body of the deceased was conducted. Furthermore in the Post Mortem Examination Report (Exh.PJ) it was also wrongly recorded that according to police papers the date of death was 22.01.2018 whereas according to the police papers it was 23.01.2018. Dr. Muhammad Waheed Amjad (PW-10) gave the time between death and post mortem examination as being “06 hours almost”. Dr. Muhammad Waheed Amjad (PW-10), also observed that the rigor mortis was present, however was not fully developed at the time of conducting the post mortem examination. Before proceeding any further, it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours. Similarly, the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from “The Principles And Practice Of Medical Jurisprudence” by Alfred Swaine Taylor,MD , is being referred hereunder:- "In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."

Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to

Criminal Appeal No. 53 of 2019

develop. In Chapter 15 “POST-MORTEM CHANGES AND TIME SINCE DEATH”, from page 351 to page 352 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) ,it has been discoursed as under:-:

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

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

Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post- mortem delivery may occur owing to contraction of the uterine muscular fibres.

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

Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop..”

The perusal of the Post Mortem Examination Report (Exh.PJ) as well as the statement of Dr. Muhammad Waheed Amjad (PW-10) clearly establishes the fact the post mortem examination of the dead body of the deceased was delayed and the delay was due to the late arrival of the dead body at the hospital and the late submission of police papers. No explanation was offered

Criminal Appeal No. 53 of 2019

to justify the said delay in conducting the post mortem examination. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid 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:

Criminal Appeal No. 53 of 2019

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

10.Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the 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.Regarding the recovery of the Churri (P-4) from the appellant namely Muhammad Ismail son of Shahab Din, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Churri (P-4) from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. Ghulam Dastageer (PW-3) during cross-examination stated as under:-

“So many people gathered at place of recovery after seeing the police.”

Criminal Appeal No. 53 of 2019

Admittedly, Muhammad Akbar, Inspector (PW-11) , the Investigating Officer of the case, did not record the statement of any of the said witnesses who had allegedly arrived at the place of recovery, at the time of the same.

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.”

Additionally, both the witnesses namely Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) of recovery of the Churri (P-4) admitted that the recovered Churri had no specific mark upon the same so as to distinguish it as being the same which was used during the occurrence.

Muhammad Tariq Sultan (PW-2) during cross-examination stated as under:- “I did not see any specific mark, number or any name at (sic) the weapon of offence.”

Similarly, Ghulam Dastageer (PW-3) during cross-examination stated as under:-

“So many people gathered at place of recovery after seeing the police. No specific mark was present over the Churi but the recovered Churi was bloodstained and soil.”

Even Muhammad Akbar, Inspector (PW-11) , the Investigating Officer of the case also admitted the same fact during cross-examination and stated as under:-

“Said recovered weapon was not marked by any specific number or identification and same was of common nature.”

Criminal Appeal No. 53 of 2019

Moreover, the prosecution witnesses also remained at variance with regard to the time of their arrival at the place of recovery. With regard to the report of the Punjab Forensic Science Agency, Lahore (Exh.PK) that the DNA profile generated from the swab taken from the blade of the Churri deposited to the same matched the DNA profile of GulzarAhmed (deceased) it is observed that the same cannot be relied upon as the safe custody and the safe transmission of the recovered Churri (P-4) from the place of recovery to the Police Station and from the Police Station to the Punjab Forensic Science Agency, Lahore was not proved .According to the prosecution witness namely Shaukat Ali 1002/HC (PW-8) on 23.01.2018 he was acting as the Moharrir of the Police Station and on the same day the Investigating Officer of the case handed over to him four sealed parcels which on 30.01.2018 he handed over the same to Khalid Rauf, SI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Shaukat Ali 1002/HC (PW-8) did not state that subsequent to 23.01.2018 he was handed over any sealed parcel by the Investigating Officer of the case. Shaukat Ali 1002/HC (PW-8) in his statement before the learned trial court stated as under:-

“Stated that on 23.01.2018 I was posted as Moharrar at P.S City Chishtian.

On the same day, 1.0 handed over to me one sealed parcel said to contain blood stained earth and three other sealed parcels were also handed over to me by Crime Scene Investigation Unit for safe custody and onwards transmission to PFSA, Lahore. On 30.01.2018 I handed over the above said sealed parcels to Khalid Rauf SI for onward transmission to PFSA Lahore intact. 1.0 recorded my statement u/s 161 Cr.P.C on 06.02.2018.

XXXX By Ch. Muhammad Tahir Advocate for the accused.

Criminal Appeal No. 53 of 2019

Opportunity given. NIL ”

The above referred statement of Shaukat Ali 1002/HC (PW-8) clearly reflects that he was not handed over any other sealed parcels subsequent to 23.01.2018 whereas according to the prosecution case the Churri (P-4) was recovered from the possession of the appellant on 09.02.2018. Shaukat Ali 1002/HC (PW-8) was never re-examined by the prosecution nor any application was moved in this regard that he had also been handed over a sealed parcel said to contain the recovered Churri by the Investigating Officer of the case on any date. In this manner, the safe custody and the safe transmission of the recovered Churri (P-4) from the place of recovery to the Police Station and from the Police Station to the Punjab Forensic Science Agency, Lahore is not proved and in absence of that evidence no reliance can be place on the report of Punjab Forensic Science Agency, Lahore (Exh.PK). This portion of the prosecution evidence proves that there are missing links in the chain relating to the taking into possession the Churri (P-4) from the place of recovery and its submission to the Punjab Forensic Science Agency, Lahore. We have queried the learned Deputy Prosecutor General to clarify that what was the evidence available on the record to confirm that the Churri (P-4) had indeed been transmitted and kept in safe custody at the police station and then deposited in the Punjab Forensic Science Agency, Lahore but, after going through the record of this case from cover to cover, he has remained unable to refute that there is no consistent evidence whatsoever available on the record in this respect that how the recovered Churri (P-4) was transmitted to the police station and then submitted to the Punjab Forensic Science Agency,

Criminal Appeal No. 53 of 2019

Lahore. The learned Deputy Prosecutor General admitted that the prosecution evidence was contradictory and mutually destructive in this regard. In such a state of contradictory evidence available on the record, safe custody of the recovered Churri (P-4) is not discernable from the record of this case .In absence of such evidence, prosecution, which must establish that the chain of custody of the Churri (P-4) was unbroken, unsuspicious, indubitable, safe and secure, has failed to do so. The break in the chain of custody casts doubts and impairs and vitiates the conclusiveness and reliability of the report of the Punjab Forensic Science Agency, Lahore (Exh.PK). Therefore, the recovery of the Churri (P-4) from the appellant does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the Churri (P-4) is not proved and the same cannot be used as a circumstance against the appellant. 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.

19.The learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) was that the appellant namely Muhammad Ismail demanded money as loan from the deceased namely Gulzar Ahmed but he refused to give the same however, on the fateful day, this fact was in the knowledge of the appellant namely Muhammad Ismail that there was a huge

Criminal Appeal No. 53 of 2019

amount of money available with Gulzar Ahmed (deceased) as he had to go to Faisalabad for purchasing cloth , therefore the appellant came to the house of the deceased and tried to snatch the said cash from the deceased , but on his resistance, the appellant murdered him. All the three witnesses namely Muhammad Irshad (PW-1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) admitted that when the dead body of the deceased was checked at the place of occurrence not even a single currency note was found as being available on it. Muhammad Irshad (PW-1) during cross examination stated as under:-

“No cash amount was recovered from the deceased from the place of occurrence.”

Similarly, Muhammad Tariq Sultan (PW-2) also admitted during cross- examination as under:-

“During search of dead body no cash amount or any ticket was recovered.”

Muhammad Akbar, Inspector (PW-11), the Investigating Officer of the case also admitted during cross-examination as under:-

“ No currency was recovered from the last worn clothes of the deceased.”

The above referred portions of the statements of Muhammad Irshad (PW-1) , Muhammad Tariq Sultan (PW-2) and Muhammad Akbar, Inspector (PW-11) , 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. All the three witnesses namely Muhammad Irshad (PW-

1), Muhammad Tariq Sultan (PW-2) and Ghulam Dastageer (PW-3) stated in unison that the appellant murdered the deceased as he was unable to snatch

Criminal Appeal No. 53 of 2019

the cash available with the deceased from the deceased , however, it was proved on record that the deceased had no such cash with himself at the time when the occurrence took place and the alleged event of the appellant attempting to snatch any such cash was totally a false story and it has repercussions , entailing absolute and ardent collapse of the prosecution case with regard to the motive.. The prosecution witnesses failed to prove 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.”

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.

20.The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore,

Criminal Appeal No. 53 of 2019

the appellant”s conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

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

21.The plea of the learned Deputy Prosecutor General 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

Criminal Appeal No. 53 of 2019

jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the 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 Ismail son of Shahab Din (appellant) 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

Criminal Appeal No. 53 of 2019

doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs.

The State(2018 SCMR 772) has enunciated the following principle:

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

23.For what has been discussed above, Criminal Appeal No.53 of 2019 lodged by Muhammad Ismail son of Shahab Din(appellant) is allowed. The conviction and sentence of Muhammad Ismail son of Shahab Din (appellant) awarded by the learned trial court through the impugned judgment dated 28.01.2019 are hereby set-aside. Muhammad Ismail son of Shahab Din(appellant) is ordered to be acquitted by extending him the benefit of doubt. The appellant namely Muhammad Ismail son of Shahab Din is in

Criminal Appeal No. 53 of 2019

custody and he is directed to be released forthwith if not required in any other case.

24.Consequently, the Murder Reference No. 03 of 2019 is answered in Negative and the sentence of death awarded to Muhammad Ismail son of Shahab Din, is Not Confirmed.

(MUHAMMAD AMJAD RAFIQ) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved For Reporting

JUDGE JUDGE