The State vs Khadim Ali etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.23 of 2018 (The State Vs. 1.Khadim Ali

2.Imtiaz Ahmed)

Criminal Appeal No. 418 of 2018 (Khadim Ali and another Vs. The State and another)

JUDGMENT.

Date of hearing: 15.11.2021.

Appellants by: Syed Zeeshan Haider, Advocate.

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

Complainant by: Mr. Muhammad Aslam Khan Dhukkur, Advocate.

SADIQ MAHMUD KHURRAM, J.- Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah (convicts) were tried along with Nazir Ahmad, Abdul Qadir alias Qadri and Muhammad Zakria alias Zakri ( the co- accused of the convicts , all since acquitted) by the learned Additional Sessions Judge, Sadiqabad in case FIR No. 256 of 2013 dated 22.07.2013 registered at Police Station Kot Sabzal District Rahim Yar Khan in respect of offences under sections 302, 34 and 109 PPC for committing the Qatl-i-Amd of Siraj Ahmad son of Raees Gaman Khan (deceased). The learned trial court vide judgment dated 29.05.2018, convicted Khadim Ali son of Aman

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Ullah and Imtiaz Ahmad son of Aman Ullah (convicts) and sentenced them as infra:

Khadim Ali son of Aman Ullah:

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Siraj Ahmad son of Raees Gaman (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Siraj Ahmad son of Raees Gaman 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.

Imtiaz Ahmad son of Aman Ullah:

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Siraj Ahmad son of Raees Gaman (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Siraj Ahmad son of Raees Gaman 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.

Nazir Ahmad, Abdul Qadir alias Qadri and Muhammad Zakria alias Zakri, the co-accused of the convicts, were acquitted by the learned trial court.

2.Feeling aggrieved, Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah (convicts) lodged Criminal Appeal No.418 of 2018 assailing their conviction and sentence. The learned trial court submitted Murder Reference No.23 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah. We intend to dispose of the Criminal Appeal No. 418 of 2018 and the Murder Reference No.23 of 2018 through this single judgment.

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3.Precisely, the necessary facts of the prosecution case, as stated by Mushtaq Ahmad (PW-4), the complainant of the case, are as under:- “Stated that on 22-7-2013 at about 6:30 P.M. I alongwith Zahoor Ahmad and Aman Ullah was going to the shop of deceased Siraj Ahmad which is situated in Tanki Bazar, Sanjarpur. When we reached Mohallah Mubarik Patyala near the house of Sofi Akhtar where Siraj Ahmad deceased was coming towards Bazar. Suddenly two motorcycles accused namely Khadim, Imtiaz Qadri and Nazir came there. They pulled out their pistols and threatened deceased Siraj Ahmad of life threat. First fire was made by Khadim Ali which sustained on left side of Siraj Ahmad. Then second fire was made by Imtiaz Ahmad which Siraj Ahmad on his right side of chest. Abdul Qadir made fire which hit Siraj Ahmad trvrobrf (sic) on his left arm. Nazir Ahmad made a fire which Siraj Ahmad received on his right shoulder. Then Khadim made fire which was received by Siraj Ahmad on his right shoulder. Then Imtiaz Ahmad made fire which was received by Siraj Ahmad on the beneath of right ear. Another fire was made by Khadim Hussain which landed upon the right clavical of deceased.

We tried to apprehend the accused persons they showed their weapons to us and threatened for dire consequences. We took Siraj Ahmad who succumbed to the injuries at the spot. Then we took Siraj Ahmad to RHC Sanjarpur. Police reached the hospital. Police inquired who is the legal heirs of the deceased, then I replied that I am brother of the deceased and I assured to the police that I was also present at the place of occurrence. Thanedar directed me to draft the application. Thanedar made the injury statement of deceased Siraj Ahmad. I presented the application ExP. D which was duly thumb marked by me. Thanedar handed over the dead body to Doctor for the purpose of conducting the autopsy. Thanedar asked me to accompany him and produce those witnesses who were present at the place of occurrence. I alongwith Thanedar reached the place of occurrence. The police officer collected 4 empties from the place of occurrence. The Police officer sealed the four empties in a packet/jar. The I/O got the signatures/thumb impressions of PWs Zahoor and Aman Ullah. The 1.0 collected the blood stained earth from the place of death of deceased Siraj Ahmad and sealed the same and got the signatures of PWS Aman Ullah and Zahoor Ahmad on the paper. The 1.0 prepared rough site plan of the place of occurrence. Then we left for Hospital again with the 1.0. I received the dead body of the deceased Siraj Ahmad through receipt ExP.H from the police.

On 25-7-2013, there was a Qul ceremony of my. deceased brother Siraj Ahmad at evening time. Bashir Ahmad and Khadim Hussain PWs came there and offered Fateha and told me about the occurrence. They told that on 22-7-2013 they were sitting at the Derah of Ch. Zakki at about 5:30/5:45 P.M. when Khadim, Imtiaz, Qadri and Nazir accused came there and told Ch. Zakki that they had come prepared and now order them what to do. Ch. Zakki ordered them to kill Mukhtiar Ahmad and Siraj Ahmad. Khadim and Bashir PWs told that they were still present at the Derah of Ch. Zakki when

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at 06:45 P.M. in the evening, Khadim, Imtiaz, Qadari and Nazir came there again and told Ch. Zakki that they had killed Siraj Ahmad. Ch. Zakki told them that he ordered to kill both Siraj Ahmad and Mukhtiar Ahmad but you had not killed Mukhtiar, you go and kill Mukhtiar then I would produce you before the police. We submitted an application to the police but the police did not heed to it. Then we preferred to file application before the Justice of Peace. Justice of peace ordered the police to interrogate Ch. Zakki. Police associated Ch. Zakki in investigation regarding his abetting the accused. All the five accused present in the Court have killed my brother Siraj Ahmad on the instigation and abetment of Ch. Zakki. Accused be convicted and sentenced for the maximum.”

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 01.09.2014, 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 thirteen witnesses recorded. The ocular account of the case was furnished by Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5). Abdul Sattar (PW-1) stated that on 22.07.2013 he identified the dead body of the deceased. Liaquat Ali, Patwari, (PW-3) stated that he prepared the scaled site plan of the place of occurrence (Exh.PE and Exh.PF).Bashir Ahmad (PW-6) and Khadim Hussain (PW-7) stated that on 22.07.2013 they saw the appellants arrive at the Dera of Muhammad Zakria alias Zaki (since acquitted) who ordered them to kill the deceased and saw the appellants return to the Dera of Muhammad Zakria alias Zaki (since acquitted) after murdering the deceased. Naseer Ahmad 383/C (PW-8) stated that on 13.09.2013 he was handed over the warrants of arrest (Exh.PN and Exh.PO) of the appellants namely Imtiaz Ahmad and Khadim Ali however, the same could not be executed and thereafter proclamations (Exh.PR and Exh.PS) were handed over to him which he pasted

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the copies of at the relevant places. Naseer Ahmad 1500/HC (PW-13) stated that on 22.07.2013 the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained earth and empties taken from the place of occurrence and on 21.12.2013, the Investigating Officer of the case handed over to him a motorcycle and on 26.12.2013 the Investigating Officer of the case handed over to him a sealed parcel said to contain a pistol which all the said parcels he handed over to Muhammad Naeem 1019/C (PW-

12)for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Abdul Majeed, SI (PW-11) investigated the case on 22.07.2013 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Muhammad Aslam, SI (PW-10) investigated the case from 15.08.2013 till 08.04.2014, arrested the appellants namely Imtiaz Ahmad and Khadim Ali on 13.12.2013 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.Wakeel Ahmad (PW-2) examined, who on 22.07.2013 was posted as Medical Officer at the RHC Sanjarpur and on the same day conducted the postmortem examination of the dead body of Siraj Ahmad son of Raees Gaman (deceased). Dr.Wakeel Ahmad (PW-2), on examining the dead body of the deceased namely Siraj Ahmad son of Raees Gaman, observed as under:-

“1). A lacerated wound of 7 x 3⁄4 cm x bone exposed on the back of head and was 8-cm above the left ear. Wounds margins were burnt.

2). A lacerated wound of 6 x 3⁄4 cm x skin deep on the right side of face and is just below the lobule of right ear. The wound margins were burnt.

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3), A circular would of 1 x 1 cm with burnt inverted margins on the left side of chest and was 6 cm inferio lateral to the left nipple i.e. (entry wound).

4). A circular wound of exit 1x 1 cm with everted margins on the right chest just below the right clavicle and is directed towards the wound No.3.

5). A circular wound of entry 1 x 1 cm with burnt inverted margin on the front of right chest and is two cm above the right nipple. The wound was directed towards the wound No.6.

6)A circular would of exit 1 x 1 cm with everted margins in the right exilla and is directed towards the wound No.5

7)A circular wound of entry 1 x 1 cm with burnt inverted margins on the anterior aspect of mid of left forearm and was directed towards the wound No.8.

8)A circular wound of exit 1 x 1 cm with everted margins on the back of mid of left forearm and was directed towards the wound No.7.

9)A circular wound of entry 1 x 1 cm with burn inverted margins on the posterior aspect of upper 1/3rd of right arm and is directed towards the wound No.10.

10)A circular wound of exit 1 x 1 cm with everted margins on the lateral aspect of upper 1/3" of right arm and is directed towards the wound No.9.

(11)A circular wound of entry 2 x 1 cm with burnt inverted margins on the supra pubic area of abdomen.

12)A circular wound of entry 1 x 1 cm with burnt inverted margins on the back of mid of right thigh and is directed towards the wound No.13.

13)A circular wound of exit 1 x 1 cm on the anterior aspect of mid of right thigh the margins of wound were everted and was directed towards wound no.12

REMARKS/OPINION:

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In my opinion the cause of death was haemorrhage and shock due to injury No.1 to injury No.13. Injuries No. 3, 4, 5, 6 & 11 individually and injuries No. 1 to 13 collectively were sufficient to cause death an ordinary course of nature. All the injuries were ante-mortem and were caused by fire arm.

Probable time that elapsed between the injuries and death was found immediate and between death and post mortem was within thirteen hours.”

7.On 27.01.2018, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Zahoor Ahmad, Meer Hassan and Ali Gull as being unnecessary. On 17.02.2018, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of the report of Punjab Forensic Science Agency, Lahore (Exh.PZZ) regarding the comparison of the empties (P-1/1-4) recovered from the place of occurrence and the pistol (P-3) recovered from the possession of the appellant namely Khadim Ali and the report of the Punjab Forensic Science Agency, Lahore (Exh.PZ) regarding the analysis of the blood stained earth.

8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah did not to get themselves examined under section 340(2) Cr.P.C however the appellant namely Khadim Ali submitted copy of FIR No. 218/2014 P.S Kotsabzal dated: 03-07-2014 u/s 457/380

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PPC as Exh.DC, certified copy of FIR No.404/2008 PS Kotsabzal dated: 03- 10-2008 u/s 148/149 PPC as Exh.DD, certified copy FIR No.224/2010 P.S Kotsabzal u/s 395 PPC as Exh.DE, certified copy of the FIR No.141/2002 P.S Kotsabzal dated: 04-07-2002 u/s 337 PPC as Exh. PDF, certified copy of FIR No. 125/2005 P.S Kotsabzal dated: 03-07-2005 u/s 380/411/215 PPC as Exh.DG, certified copy of FIR No. 326/1990 P.S Kotsabzal dated: 20-12- 1990 u/s 380 PPC as Exh.DH, certified copy of FIR No 266/1997 P.S Kotsabzal u/s 380/411 PPC as Exh PDI, certified copy of FIR No.335/1990 P.S. Kotsabzal dated. 21-12-1990 u/s 380 PPC as Exh.DJ, certified copy of FIR No.266/1990 P.S Kotsabzal dated: 21-12-1990 u/s 380 PPC as Exh.DK, certified copy of FIR No. 336/1990 u/s 380 PPC P.S. Kotsabzal as Exh.DL, certified copy of FIR No.354/1990 u/s 380/411 PPC, P.S Kotsabzal as ExhDM, certified copy of FIR No.64/2013 P.S Kotsabzal u/s 457/380 PPC, PS Kotsabzal as Exh.DN , as evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Sadiqabad, convicted and sentenced the appellants as referred to above.

10.The contention of the learned counsel for the appellants is that whole case is fabricated and false. The learned counsel for the appellants 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 appellants further contended that the statements of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) were not worthy of any reliance. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and

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value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the three deceased died as a result of injuries suffered at the hands of the appellants. The learned Deputy Prosecutor General alongwith the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5). The learned Deputy Prosecutor General alongwith the learned counsel for the complainant further argued that the recovery of the pistol (P-3) form the appellant namely Khadim Ali son of Aman Ullah and the recovery of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad son of Aman Ullah also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of appeal as lodged by the appellants namely Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah.

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

13.The whole prosecution case relies upon the statements of the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) who gave the evidence with regard to the ocular account of the occurrence. It has also been brought on record that Siraj Ahmad (deceased) was the real brother of Mushtaq Ahmad (PW-4). Though it has been admitted by Aman Ullah (PW-5) that he had friendship with the deceased as well as Mushtaq Ahmad (PW-4), the complainant of the case, and he was on visiting terms with Mushtaq Ahmad (PW-4) , however, he was not related to them. Mere fact that a witness is not related to the deceased or the complainant of the case, is not the sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is credible and consistent with the circumstances of the case or otherwise. This is a well-known principle of appreciation of evidence that a witness to be relied upon, apart from being independent and disinterested, must be truthful and his evidence must be confidence inspiring and the mere fact that a witness is disinterested or having no motive to falsely implicate an accused in the case, can never be the sole reason believe his testimony.

Reliance is placed on the case of “Lal Khan Vs. The State” (2006 SCMR 1846). Nonetheless during the course of cross-examination it was brought on record that Mumtaz, brother of the appellant namely Imtiaz Ahmad had

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got lodged an F.I.R against Aman Ullah (PW-5) prior to the occurrence.

Aman Ullah (PW-5) during cross-examination admitted as under:- “It is correct that Mumtaz, brother of accused Imtiaz, lodged a criminal case FIR No. 64/13 P.S. Kotsabzal against me.

It is correct that FIR No. 64/13 supra was registered on 22-2-2013 and 22-7-2013. It the instant FIR No.256/13 was registered on 22-7- Admittedly, the occurrence had taken place on a road laid within the area of Mohalla Mubarik Patyala, near the house of one Sufi Akhtar (not produced as a witness). Mushtaq Ahmad (PW-4) admitted during cross-examination that he was not the resident of the place of occurrence, rather the place of occurrence was at a distance of as many as one kilometer from his house.

Mushtaq Ahmad (PW-4) during cross-examination admitted as under:- “Siraj Ahmad deceased was my brother. Aman Ullah PW is my friend.

Siraj Ahmad deceased and I resided in the same house. The house of Aman Ullah PW is about 8/9 Km from my house.

My house is at a distance of about 01-Km from the shop of deceased Siraj Ahmad. Mohallah Mubarik Patwalvi is 01-Km away from my house.” (emphasis supplied) .

Similarly, Aman Ullah (PW-5) also admitted that he was not resident of the place of occurrence rather his house was at a distance of as many as ten kilometres from the place of occurrence. Aman Ullah (PW-5) during cross- examination stated as under:-

“My house is at a distance of about 8/9 Km from the house of Siraj deceased.

On the day of occurrence I did not go to the shop of the deceased On the day of occurrence, I had gone to the Bazar to purchase "Samosas" etc for "AFTARI" because its was the holy month "RAMZAAN". 1 reached the Bazar at 6:30 P.M. My house is at a distance of about 10-km from the said Bazar. On the day of occurrence, I did not go to the shop of PW Zahoor. From my house to the Bazar, I came by foot on that day for purchasing the

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"Samosas" etc. It was July, 2013. It was summer.” (emphasis supplied).

We have also perused the scaled site plans of the place of occurrence (Exh.PE and Exh.PF) as prepared by Liaquat Ali Patwari (PW-3) and the rough site plan of the place of occurrence (Exh.PY) as prepared by Abdul Majeed, SI (PW-11) , the Investigating Officer of the case, and find that the residences of the witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) nor the places of work or any shops of the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) are marked in the same. In view of the above mentioned facts, it can be validly held that the both the eye witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) “chance witnesses” and therefore were under a duty to explain and prove their presence at the place of occurrence, at the time of occurrence. We find that both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) failed to explain the circumstances in which they arrived at the place of occurrence and witnessed the same. We have noted with grave concern that no reason was mentioned by both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) in the written application (Exh.PG) and in the statements recorded under section 161 of the Code of Criminal Procedure, 1898 which necessitated them to travel to the place of occurrence. During the course of cross-examination it was claimed by Mushtaq Ahmad (PW-4) that he along with Zahoor Ahmad (given up PW) were going to the shop of Siraj Ahmad (deceased) situated in Tanki Bazar, Sanjarpur for the purpose of giving Siraj Ahmad (deceased) their clothes for sewing. It was also claimed by Mushtaq Ahmad (PW-4) that he and Zahoor Ahmad (given up pw) had purchased the

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cloth from a shop owned by one Zulfiqar Punjabi at about 6.15 p.m.

Mushtaq Ahmad (PW-4) during cross-examination stated as under:- “I told the police that I had gone to the shop of my deceased brother to give him cloths for stitching.

I told the police that I had gone to the shop of my deceased brother to give him cloths for stitching.

PW Aman Ullah met me at about 06:25 P.M, at "adda" Sanjarpur. PW Aman Ullah was alone at "Rehri". We remained with Aman Ullah at "Rehri" for about one and two minutes. I went to Aman Ullah by foot. Aman Ullah purchased "SAMOSAS" from said "Rehri". During the interregnum from 2:P.M. to 6:p.M. at the motorcycle shop of PW Zahoor neither my brother Siraj deceased nor I made any contact with each other. The shop of PW Zahoor was at a distance of about 200-yards from shop my brother Siraj deceased. Zahoor and I both purchased cloths from the shop at about 6:15 P.M. We purchased the cloth from the shop of one Zulfiqar Punjabi.” (emphasis supplied)

In this manner, a very specific claim was made by Mushtaq Ahmad (PW-4) that at the time of occurrence he as well as Zahoor Ahmad (given up pw) were carrying cloth for the purpose of its sewing into clothes by Siraj Ahmad (deceased) and therefore the said pieces of cloth should have been with the witness namely Mushtaq Ahmad (PW-4) and he should have also showed the same to Abdul Majeed, SI (PW-11) at the time of his arrival at the place of occurrence ,however, the said pieces of cloth in possession of the prosecution witness namely Mushtaq Ahmad (PW-4) were never produced before the Investigating Officer of the case on the day of occurrence or even subsequently during the investigation of the case.The said pieces of cloth which were to be given to Siraj Ahmad (deceased) for the purpose of sewing were also not observed to be present at the place of occurrence by Abdul Majeed, SI (PW-11) , the Investigating Officer of the case , at the time of his arrival at the place of occurrence . The non-

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production and the absence of any pieces of cloth as carried by Mushtaq Ahmad (PW-4) at the place of occurrence, at the time of arrival of the Investigating Officer of the case reveals that the prosecution failed to prove the reason for the arrival of Mushtaq Ahmad (PW-4) at the place of occurrence. Additionally, Mushtaq Ahmad (PW-4) also claimed that he had purchased the cloth which was to be tailored by Siraj Ahmad (deceased) from the shop of one Zulfiqar Punjabi, however obviously the said Zulfiqar Punjabi never joined the investigation of the case nor appeared before the learned trial court and remained a figment of imagination of Mushtaq Ahmad (PW-4). Additionally, with regard to Aman Ullah (PW-5), we have noted with grave concern that as mentioned above, it was admitted by Aman Ullah (PW-5) that his house was at a distance of as many as ten kilometres from the place of occurrence, however he claimed that he had travelled from his house to the place of occurrence on foot, on a very hot summer evening , in the holy month of Ramadan, a claim which is not only hard to digest but bordering on being out rightly absurd, hence not believable. Aman Ullah (PW-5) further claimed that he had purchased some eatables from a shop however during the investigation of the case no such shop keeper was produced in support of the claim of Aman Ullah (PW-5).

Muhammad Aslam, SI (PW-10), the Investigating Officer of the case, also admitted during cross-examination that his notes on the site plans (Exh.PE and Exh.PF) as prepared by Liaqat Ali Patwari (PW-3) neither showed the shop of Siraj Ahmad (deceased) nor any shop of Zulfiqar Punjabi nor any cart where eatables were being sold on the day of occurrence. Muhammad Aslam, SI (PW-10), the Investigating Officer of the case, during cross- examination stated as under:-

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“My notes on EXP.E and ExP.F do not show the shop of the deceased Siraj, the Samosa sellers cart (Rehri) and Samosa buyer namely Aman Ullah and the shop of Zahoor Ahmad (the cloth seller).

I did not interrogate any person around the place of occurrence. I did not interrogate any employee of Siraj deceased. I did not visit the shop of Zahoor Ahmad PW in regard of the presence of Mushtaq Ahmad. I did not interrogate any owner of the Samosa seller from where Aman Ullah was alleged that he was buying Samosa at the time of occurrence. I did not interrogate or join any cloth seller from where Mushtaq Ahmad purchased the cloths”

The failure of the prosecution witnesses to produce any physical proof of their presence at the place of occurrence has repercussions which point towards the fact that the claim of the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) in this regard was false. We have also noted that neither Mushtaq Ahmad (PW-4) nor Aman Ullah (PW-5) were mentioned in column No.4 or at page 4 of the inquest report (Exh.PB) as being present near the dead body at the time of preparation of the same.

We have also noted that Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) claimed that after the occurrence, they held the deceased and also took Siraj Ahmad (deceased) to the RHC Sanjarpur. In this manner, the clothes of both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) must have been stained with the blood of the deceased. Abdul Majeed, SI (PW-11), the Investigating Officer of the case, did not take any such blood-stained clothes of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) in possession during the investigation of the case nor the said witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) admittedly produced their clothes either before the Investigating Officer of the case or before the learned trial court. Abdul Majeed, SI (PW-11), the Investigating Officer of the case who otherwise showed extraordinary interest in the case, did not take the clothes Mushtaq Ahmad (PW-4) and

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Aman Ullah (PW-5) which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the eye witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) to have been present at the place of occurrence, at the time of occurrence. Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the cases of “Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others” (2015 S C M R 1142), “Mst. MIR ZALAI versus GHAZI KHAN and others”(2020 S C M R 319), “NADEEM alias KALA versus The State and others” (2018 S C M R 153). All these omissions are conspicuous by their absence. In absence of any physical proof or the reason for the presence of the witnesses at the crime scene, the same cannot be relied upon. In this respect, reliance is placed on the case of “Muhammad Rafiq v. State”(2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one 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)

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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, declared to be 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 with anxiety that both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5), made dishonest improvements to their previous statements recorded by the police during the investigation of the case. A scrutiny of the statements of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) recorded by the learned trial court reveals that Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) made substantial improvements to their previous statements so as to justify their arrival and presence at the place of occurrence. During the course of cross-examination, it was brought on record that both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) had made improvements with regard to all the details narrated by them in their statements recorded by the learned trial court. Mushtaq Ahmad (PW-4) was duly confronted with his previous statement. Mushtaq Ahmad (PW-4) during cross-examination admitted as under:-

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“ I got it recorded in my application ExP.G on the basis of which FIR was chalked out to the police that "when we reached near the house of Sofi Akhtar where Siraj Ahmad deceased was coming towards Bazar". Confronted with EXP.G where it is not so recorded. I got it recorded in my application ExP.G that they pulled out their pistols. Confronted with EXP.G where it is not so recorded. I got it recorded in EXP.G that first fire was made by Khadim. Hussain. Confronted with EXP.G where the word "first fire was made by Khadim Hussain is not mentioned", however, it is mentioned that Khadim Hussain mad straight fire. It is incorrect to suggest that Khadim has not made straight fire. It is incorrect to suggest that the reply of the above question is not according to the facts. I got it recorded that the second fire was made by Imtiaz Ahmad. Confronted with EXP.G where the word "second fire was made by Imtiaz Ahmad" is not mentioned, however, it is mentioned that Imtiaz Ahmad made a fire. It is incorrect to suggest that the reply of the above question is not according to the facts. It is incorrect to suggest that Imtiaz Ahmad did not make any fire. I got it recorded to the police that we took Siraj Ahmad deceased who succumbed to the injuries at the spot. Confronted with ExP.G where it is not so recorded. I got it recorded to the police that we took Siraj Ahmad deceased to RHC Sanjapur. Confronted with EXP.G where it is not so recorded. I got it recorded that police reached the hospital. Confronted with ExP.G where it is no so recorded.I got it recorded in the application ExP.G that the police asked as to who were the legal heirs of Siraj Ahmad deceased to which I replied that I was brother of the deceased. Confronted with ExP.G where it is not so recorded. I got it recorded in my application that I assured the police that I was present at the place of occurrence. Confronted with ExP.G where it is not so recorded. I got it recorded in my application that Thanedar directed me to draft the application. Confronted with ExP.G where it is not so recorded. I got it recorded in my application Ex.PG that the Thanedar made injury sheet of the deceased Siraj Ahamd. Confronted with ExP G where it is not so recorded. I got it recorded in my application that Thanedar asked me to produce the witnesses before him who were present at the place of occurrence. Confronted with ExP.G where it is not so recorded. I got recorded it that I alongwith Thanedar reached the place of occurrence, the police officer collected the four empties from the place of occurrence, the police officer sealed the four empties in a packet jar, the I.O got the signature/thumb impression of PWS Zahoor and Aman Ullah. Confronted with ExP.G where the above mentioned portion is not so recorded. I have got recorded it that the 1.0 collected the blood stained earth from the place of death of deceased Siraj Ahmad and sealed the same and got the signatures of PWs Aman Ullah and Zahoor Ahmad on the paper, the 1.0 prepared rough site plan of the place of occurrence, then we left for hospital again with the 1.0. Confronted with EXP.G where above mentioned portion is not so recorded. .”(emphasis supplied)

The above referred portion of cross-examination substantially proves that Mushtaq Ahmad (PW-4) made a failing effort to prove that he had arrived at the place of occurrence and witnessed the same. Similarly, Aman Ullah (PW-5) also made substantial improvements to his previous statement in an

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effort to prove his presence, however was confronted and the learned trial court, during the cross-examination of Aman Ullah (PW-5), observed as under:-

“Police recorded my statement. I got it recorded in my statement to the police that the shop of Siraj Ahmad situated in Tanki Bazar Sanjarpur. Confronted with EXD.A where it is not so recorded. I got it recorded in my statement to the police that the accused armed with weapons came there. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement to the police that first fire was made by Khadim Hussain. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement to the police that Imtiaz Ahmad made second fire. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement to the police that Imtiaz Asif Ahmad made fire which landed upon right ear pinna of Siraj Ahmad. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement to the police that thereafter the accused persons fled away on their motorcycle from the place of occurrence. Confronted with ExD.A where it is not so recorded. I got it recorded to the police in my statement that we attended Siraj Ahmad injured but he succumbed to the injuries at the spot. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement to the police that we took Siraj Ahmad deceased to the hospital where police came and asked from Mushtaq Ahmad about legal heirs of the deceased. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement to the police that Mushtaq Ahmad told the police that he was legal heir of the deceased and he also witnessed the occurrence. Confronted with ExD.A where it is not so recorded. It got it recorded in my statement to the police that Thanedar asked us to write an application and mentioned the particulars of the occurrence in it. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement to the police that Thanedar prepared injury statement and handed over the dead body of the deceased to the doctor. Confronted with ExD.A where it is not so recorded. I got it recorded in my statement that Thanedar asked Mushtaq Ahmad to accompany him to the place of occurrence for its visit. Asif Sial Confronted with ExD.A where it is not so recorded.”

The said improvements made by both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statements, Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) impeached their own credit. Article 151 of the Qanun-e- Shahadat Order 1984 provides as under: -

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

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

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

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

As Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of “Muhammad Ashraf Vs. State” (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

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

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

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

15.We have also noted that according to prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) they were in clear view, at a meagre distance, from the assailants and unarmed whereas the appellants were allegedly armed with firearm weapons whereas their co-accused were also armed with various weapons. Furthermore, it was the claim of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) that as many as four accused in total fired from the pistols carried by them at the time of occurrence and in the midst of this indiscriminate firing, the witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5), did not receive even a single scratch on their persons during the whole occurrence. If Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) had been present in the view of the assailants, then they would not have been spared. Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) even did not claim that they did not receive any injury because they had hidden themselves or was not visible to the assailants. Blessing Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) with such an incredible consideration and showing them such favour is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) were left alive, they would depose against the accused, even then the appellants and

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their co-accused did not cause any injury to them. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellants or their co-accused for not doing away with Mushtaq Ahmad (PW-

4)and Aman Ullah (PW-5). In this scenario, it is hard to believe that Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) would have been shown the courtesy of being not fired at all when they should also have been the target of the assailants. Such behaviour, on part of the accused, as deposed by the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-

5)runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailants, as deposed to by Mushtaq Ahmad (PW-4) and Aman Ullah (PW- 5), was opposed to the common course of natural events and human conduct.

Hence, we are holding that Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) were not present at the place of occurrence and did not witness the occurrence.

16.The scrutiny of prosecution evidence reflects the falsity of the claims of the eye-witnesses as the occurrence was completed within a few minutes and in that scenario it was humanly impossible to provide such minute details in such a photographic manner or to assign the specific roles and furnish detailed description of the same while getting the written application (Exh.PG) for the registration of the F.I.R submitted to the Investigating Officer of the case. The manner in which minute and complex details of the occurrence, including the individual roles of the assailants, have been

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mentioned in the written application (Exh.PG), would rather infer pre inquiry, exploration and detailed considerations, as such before the writing of the written application (Exh.PG) and rules out the possibility of truthfulness, spontaneity and extemporaneity in the narrative of the written application (Exh.PG). Specific assignment of multiple fire shots in a crisis situation to the appellants and acquitted co-accused by the witnesses in their statements recorded by the learned trial court is extremely improbable as well for the simple reason that it was humanly impossible to capture such minute details in a photographic manner. The photographic narration of the occurrence by both the witnesses by assigning specific injury to each of the accused in an extreme calamity and crunch situation was highly improbable and not believable.

Over anxious photographic account of the occurrence by the prosecution witnesses vis-a-vis, the weapon of offence, number and locale of injuries allegedly caused by the appellants to the deceased is not only proved to be maneuvered but also improbable and preposterous .Both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) also candidly admitted that prior to the submission of written application (Exh.PG) a complete inquiry was made and thereafter the said written application (Exh.PG) was got recorded. According to the statement of Abdul Majeed, SI (PW-11), the Investigating Officer of the case, on 22.07.2013 at 7.45 pm Mushtaq Ahmad (PW-4) came to the Police Station and presented to him the written application (Exh.PG) upon the basis of which the former F.I.R (Exh.PX) was got recorded by Abdul Majeed, SI (PW-11), the Investigating Officer of the case. It was further stated by Abdul Majeed, SI (PW-11), the Investigating Officer of the case, that Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) did not go to the hospital from the Police Station rather they

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accompanied him to the place of occurrence where the dead body was laying on the ground. Abdul Majeed, SI (PW-11), the Investigating Officer of the case , during cross-examination stated as under:-

“The complainant and witnesses did not Asif Sial go to the hospital from the police station. Volunteer stated the complainant and witnesses accompanied me to the place of occurrence where the dead body was lying. when I reached the place of occurrence along with complainant and Pws, the dead body was lying on the ground.

1 dispatch the dead body from the place of occurrence to the hospital under the escort of constable Adnan while complainant and PWS remained with me at the place of occurrence. I reached the place of occurrence at about 08:00 pm. I remained at the place of occurrence for about half of an hour. After the dispatch of dead body, I remained along with complainant and witnesses at the place of occurrence for about 05/10 minutes From the place of occurrence I went in search of the accused.”

Contrary to the above mentioned statement of Abdul Rasheed, SI (PW-11), the Investigating Officer of the case, both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) had entirely a different story to narrate. According to the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) they initially took Siraj Ahmad (deceased) to the RHC Sanjarpur where the police arrived and from there they went to the Police Station and got lodged the F.I.R. Mushtaq Ahmad (PW-4) in his statement before the learned trial court stated as under:- “We took Siraj Ahmad who succumbed to the injuries at the spot. Then we took Siraj Ahmad to RHC Sanjarpur. Police reached the hospital. Police inquired who is the legal heirs of the deceased, then I replied that I am brother of the deceased and I assured to the police that I was also present at the place of occurrence. Thanedar

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directed me to draft the application. Thanedar made the injury statement of deceased Siraj Ahmad.

We inspected the place of occurrence, we saw the dead body and then shifted the same to the Hospital. The police had shown the wounds on the dead body of my brother to me as well as the PWS. The doctor also has shown the wounds to us.

I am illiterate. The application was written by Rana Tipu, the local landlord. Rana Tipu is local landlord who also came to the hospital. After we reached the hospital, the police and Rana Tipu came to the hospital within 20/25 minutes. The police remained at hospital for about 10/15 minutes. When the police reached the hospital, we narrated the occurrence to the police and the police made inquiry and then the police got application from us which drafted by Rana Tipu. Police took us from the hospital to the P.S.” (emphasis supplied)

Similarly, Aman Ullah (PW-5) in his statement before the learned trial court stated as under:-

“We took Siraj Ahmad deceased to the Hospital where police came and asked from Mushtaq about the hears of the deceased then Mushtaq replied that he is legal deceased and also witnessed the occurrence. Thanedar said. that write down the application what ever you have seen. Thanedar prepared injury statement and handed over the dead body to the doctor.

The police reached the hospital 20/25 minutes after we reached there. The police and the doctor had shown us the wounds and injuries on the dead body of Siraj Ahmad. The police remained in the hospital for half of an hour. The police recorded the statements of Zahoor, Mushtaq and mine. The police first recorded the statement of Mushtaq at the spot. On the day of occurrence I did not go to the P.S. The complainant did. not get me to the P.S. on the day of occurrence” (emphasis supplied).

The above referred portions of the statements of Abdul Rasheed, SI (PW- 11), the Investigating Officer of the case, Mushtaq Ahmad (PW-4) and

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Aman Ullah (PW-5) clearly evidence that the written application (Exh.PG) was recorded after due deliberations, inquiry and consultation. The above referred reproduced statements of the prosecution witnesses also prove that the written application (Exh.PG) was a compromised document containing false facts.

17.We have noted with grave concern that the ocular account of the occurrence as furnished by Mushtaq Ahmad (PW-4) and Aman Ullah (PW-

5)was is in contrast and contradictory to the observations and the opinion of Dr.Wakeel Ahmad (PW-2), who conducted the post mortem examination of the dead body of the deceased namely Siraj Ahmad (deceased).

According to the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) the assailants were all armed with pistols whereas Dr.Wakeel Ahmad (PW-2), while conducting the post mortem examination of the dead body of the deceased observed two entry wounds, one of the dimension of 7 cm x 3⁄4 cm present on the back of the head and the other wound of the dimension of 6 cm x 3⁄4 cm present on the right side of the face, whereas all the other entry wounds observed by Dr.Wakeel Ahmad (PW-2) were of the dimensions of 1 cm x1 cm. Obviously, according to the observations and the opinion of Dr.Wakeel Ahmad (PW-2), two different kinds of firearm weapons having different bores were used during the occurrence , however no such distinction was made by the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5). Despite our repeated queries, the learned Deputy Prosecutor General as well as the learned counsel for the complainant have failed to explain the said discrepancy in the prosecution evidence. Had the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) seen the

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occurrence, then there did not exist any possibility that they would have fallen into error.

18.Another grave fact of the prosecution case is that Mushtaq Ahmad (PW-4) claimed that the occurrence took place on a road surrounded by shops which shops at the time of occurrence were also open, however, none of the said witnesses appeared before the learned trial court in support of the prosecution case. Mushtaq Ahmad (PW-4) during cross-examination stated as under:-

“The place of occurrence is in the Bazar. The Bazar consisted of shops about 500/1000. Bazar is a busy place with the rush of people in it. The people of different languages and castes have their shops in the Bazar. Mohallah Mubarak Patalvi consists of families about 1000/1500 of different languages and castes. No person from Mohallah Mubarak Patalvi or from the Bazar has been cited as witness in this case.”(emphasis supplied)

As mentioned above, none of those who had seen the occurrence according to Mushtaq Ahmad (PW-4) and were also having their shops around the place of occurrence, appeared either during the investigation of the case or before the learned trial court in support of the prosecution case. The failure of the prosecution to produce the said shop keepers who had witnessed the occurrence according to Mushtaq Ahmad (PW-4), has convinced us that had they been produced before the learned trial court, they would not have supported the prosecution case. Article 129 of the Qanun-e-Shahadat, 1984 provides that if any evidence available with the parties is not produced then it shall be presumed that had that evidence been produced the same would have been gone against the party producing the same. Illustration (g) of the said Article 129 of the Qanun-e-Shahadat Order, 1984 reads as under:-

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“(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

The Investigating Officer was under a binding duty to collect evidence and his failure has to be taken as a circumstance belying the prosecution case.

The purpose of the trial is the discovery of truth. As long as men keep lying the only causality would be the reality. The prosecution case suffers from inherent defects which are irreconcilable as it is. The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in case titled Nadeem alias Nanha alias Billa Sher Vs. The State (2010 SCMR 949) wherein it has been observed as under:-

“....further that no independent witness of the locality where the incident took place, a ‘Bazar’ joined, made case of the prosecution doubtful. It is cardinal principle of Criminal Jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of the right and not as concession. It is difficult to say that prosecution has proved its case beyond shadow of doubt.”

19.We have also noted with disquiet that despite the fact that the occurrence took place at 6.30 p.m on 22.07.2013, the postmortem examination on the person of the deceased was conducted after much delay.

According to Dr. Wakeel Ahmad (PW-2), he conducted the post mortem examination of the dead body of Siraj Ahmad (deceased) at 8.00 a.m on 23.07.2013 i.e. after 13 hours and 30 minutes of the occurrence and after 12 hours of the registration of the formal F.I.R (Exh.PX). Dr. Wakeel Ahmad (PW-2), who conducted the post mortem examination of the dead body of Siraj Ahmad (deceased) and prepared the post mortem examination report (Exh. PC), gave the time between death and post mortem examination as being within 13 hours. No explanation, much less plausible, was offered to justify the said delay in conducting the post mortem examination. This

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clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellants escaping from the place of occurrence while armed 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:

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“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.”

20.We have already mentioned that along with the appellants their co-accused namely Nazir Ahmad, Abdul Qadir alias Qadri and Muhammad Zakria alias Zakri (all since acquitted) were also tried. The learned trial court acquitted the above mentioned Nazir Ahmad, Abdul Qadir alias Qadri and Muhammad Zakria alias Zakri, the co-accused of the appellants. 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 Nazir Ahmad, Abdul Qadir alias Qadri and Muhammad Zakria alias Zakri (all since acquitted) had attained finality as the Criminal Appeal No. 463 of 2021 lodged by Mushtaq Ahmad (PW-4) assailing the acquittal of Nazir Ahmad and Abdul Qadir alias Qadri (both since acquitted) was dismissed by this Court today by way of a separate order on the ground that

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the same was hopelessly barred by time. 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 appellants can be believed against the appellants. 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 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

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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 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 statements of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5), the eye witnesses of the occurrence. Mushtaq Ahmad (PW-4) in his statement recorded by the learned trial court stated as under:-

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“Abdul Qadir made fire which hit Siraj Ahmad trvrobrf (sic) on his left arm. Nazir Ahmad made a fire which Siraj Ahmad received on his right shoulder..” (emphasis supplied) .

Similarly, Aman Ullah (PW-5) in his examination in-chief stated as under:- “Then Qadri made fire shot which hit upon the left elbow. Then accused Nazir made fire shot which landed upon the right shoulder of deceased.. (emphasis supplied) .

Both the prosecution witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) attributed causing of firearm injuries to the deceased by Nazir Ahmad and Abdul Qadir alias Qadri (both since acquitted), however, both the witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) were found to have made false statements with regard to Nazir Ahmad and Abdul Qadir alias Qadri (both since acquitted), the co-accused of the appellants. We are unable to find any independent corroboration of the prosecution case against the appellants and we are unable to distinguish the case of the appellants from the case of the acquitted co-accused namely Nazir Ahmad and Abdul Qadir alias Qadri as the prosecution evidence with regard to the appellants and with regard to their co-accused namely Nazir Ahmad and Abdul Qadir alias Qadri (both since acquitted) is similar. We find no reason to believe the statements of the witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) with regard to the appellants in absence of any reason to do so. This lying on part of the witnesses namely Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) with regard to Nazir Ahmad and Abdul Qadir alias Qadri (both since acquitted), the co-accused of the appellants, has vitiated our trust in them. We are thus satisfied that the evidence of Mushtaq Ahmad (PW-4) and Aman Ullah (PW-5) has no worth and deserves outright rejection. Reliance in this regard is placed on the case

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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.”

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

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of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in 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, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case.”

21.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol (P-3) from the appellant namely Khadim Ali son of Aman Ullah and have submitted

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that the said recovery of the pistol (P-3) and the report of Punjab Forensic Science Agency, Lahore (Exh.PZZ) further proves the prosecution case against the appellant namely Khadim Ali. With regard to the recovery of the recovery of the pistol (P-3) from the appellant namely Khadim Ali son of Aman Ullah, it is observed that the Investigating Officer of the case did not join into the investigation any witness, resident of the locality of the place of the recovery of the pistol (P-3) from the appellant namely Khadim Ali son of Aman Ullah, to witness the same. Aman Ullah (PW-5), the witness of the recovery of the pistol (P-3) from the appellant namely Khadim Ali son of Aman Ullah, admitted during cross-examination that the Investigating Officer of the case did not summon any resident of the area around the place of recovery to witness the same. Aman Ullah (PW-5) during cross- examination stated as under:-

“The local police did not associate any local respectable, Lambardar in the recovery proceedings.”.

Aman Ullah (PW-5) also admitted that his house was at a distance of three kilometres from the place of recovery of the pistol (P-3) from the appellant namely Khadim Ali son of Aman Ullah. Muhammad Aslam, SI (PW-10), the Investigating Officer of the case who arrested the appellant namely Khadim Ali son of Aman Ullah and also recovered the pistol (P-3) from the appellant namely Khadim Ali, admitted during cross-examination that he did not join into investigation the residents of area around the place of recovery.

Muhammad Aslam, SI (PW-10), the Investigating Officer of the case, during cross-examination admitted as under:-

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“I did not associate any Lambardar or local councilor with lo the recovery proceedings of Pistol 30-bore.”

As the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol (P-3) from the appellant namely Khadim Ali son of Aman Ullah, which was in clear violation of section 103 Cr.PC and therefore the same cannot be used as incriminating evidence against the appellant namely Khadim Ali, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of “Muhammad Ismail and others Vs. The State” ( 2017 SCMR 898) at page 901 has held as under:-

“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Furthermore, on the perusal of the report of Punjab Forensic Science Agency, Lahore (Exh.PZZ) regarding the analysis of the pistol (P-3) from the appellant namely Khadim Ali son of Aman Ullah and the empties (P-1/1-

4)collected from the place of occurrence, we have noticed that both the empties (P-1/1-4) recovered from the place of occurrence and the pistol (P-

3)recovered from the appellant namely Khadim Ali son of Aman Ullah were received by Punjab Forensic Science Agency, Lahore on the same day i.e. 24.01.2014. Muhammad Naeem 1019/C (PW-12) stated that he received the sealed parcel said to contain empties recovered from the place of occurrence and a sealed parcel said to contain a pistol recovered from the appellant namely Khadim Ali, on the same day and he deposited the said

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parcels in the office of Punjab Forensic Science Agency, Lahore on the same day. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PZZ) has no evidentiary value as the possibility of fabricating matching empties is apparent. The august Supreme Court of Pakistan has held in the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724) as under :-

“The alleged recovery of a pistol from the appellant's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day.”

The august Supreme Court of Pakistan has held in the case of Nasrullah alias Ali Sher v. The State (2008 SCMR 707) as under :-

“The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony.”

Moreover, the appellant namely Khadim Ali was arrested on 13.12.2013, the pistol 30-bore (P-3) was recovered from the appellant namely Khadim Ali on 26.12.2013, however the empties taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency, Lahore on 24.01.2014 and there was no reason for keeping the empties which were taken into possession of 22.07.2013 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till 24.01.2014 i.e. after the arrest of the appellant namely Khadim Ali and the recovery of the pistol 30-bore (P-3). In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PZZ) has no evidentiary value as possibility of fabrication is apparent. Reliance is placed on the case of

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

In view of the above mentioned facts, the recovery of the pistol 30-bore (P-

3)from the appellant namely Khadim Ali is not proved and the same cannot be used as a circumstance against the appellant namely Khadim Ali. With regard to the recovery of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad it is observed that the Investigating Officer of the case did not join into the investigation any witness, resident of the locality of the place of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad, to witness the same. Aman Ullah (PW-5), the witness of the recovery of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad, admitted during cross- examination that the Investigating Officer of the case did not summon any resident of the area around the place of recovery to witness the same. Aman Ullah (PW-5) also admitted that his house was at a distance of three kilometres from the place of recovery of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad. Aman Ullah (PW-5) during cross- examination stated as under:-

“The intervening distance between my house and the house of Imtiaz Ahmad is about 03-Km. police did not summon any councilor, lambardar, Waderah or any respectable of the locality or any habitants of the locality for recovery proceedings..”.

Muhammad Aslam, SI (PW-10), the Investigating Officer of the case, who arrested the appellant namely Imtiaz Ahmad and also recovered the motorcycle (P-2) from the appellant namely Imtiaz Ahmad, admitted during

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cross-examination, that he did not join into investigation the residents of area around the place of recovery. Muhammad Aslam, SI (PW-10), the Investigating Officer of the case, during cross-examination admitted as under:-

“I did not associate any councilor or lambardar with recovery proceedings of motorcycle..”

As the Investigating Officer of the case did not join any witness of the locality during the recovery of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad, which was in clear violation of section 103 Cr.PC and therefore the same cannot be used as incriminating evidence against the appellant namely Imtiaz Ahmad, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence.

The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:- “For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

It has also been noted by us that according to the statement of Aman Ullah (PW-5) , the pistol (P-3) was recovered from the possession of the appellant namely Khadim Ali on 26.12.2013, whereas the motorcycle (P-2) was recovered from the possession of the appellant namely Imtiaz Ali on 21.12.2013 from within the same house. It is beyond reason that when the police had recovered the motorcycle (P-2) on 21.12.2013 then why the pistol (P-3) was not seen by them as being present at the same place. Aman Ullah (PW-5) during cross-examination admitted as under:-

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“The places of recovery of Pistol and of motorcycle are in the same four-walls.”

Contradicting the statement of Aman Ullah (PW-5), Muhammad Aslam, SI (PW-10), the Investigating Officer of the case, claimed that the house of the appellants namely Khadim Ali and Imtiaz Ali were separate and distinct.

Muhammad Aslam, SI (PW-10), the Investigating Officer of the case, during cross-examination admitted as under:-

“The houses of accused Khadim and Imtiaz are independent with independent fourwalls but adjacent to each other”

Furthermore, Abdul Majeed, SI (PW-11), the Investigating Officer of the case also admitted that he did not collect evidence as to the ownership of motorcycle (P-2). Abdul Majeed, SI (PW-11), the Investigating Officer of the case, during cross-examination admitted as under:- “Neither I collected the ownership documents of recovered motorcycle nor could I tell about the ownership of the said motorcycle up till now or made any interrogation about it.”

In view of the above mentioned facts, the recovery of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad is not proved and the same cannot be used as a circumstance against the appellant namely Imtiaz Ahmad. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery of the Pistol (P-3) from the appellant namely Khadim Ali and the recovery of the motorcycle (P-2) from the appellant namely Imtiaz Ahmad 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.

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22.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as narrated by the prosecution witnesses namely Mushtaq Ahmad (PW-4) , Bashir Ahmad (PW-6) and Khadim Hussain (PW-7) was that Muhammad Zakria alias Zaki (since acquitted) wanted Siraj Ahmad dead. As mentioned above, Muhammad Zakria alias Zaki was tried by the learned trial court and acquitted. Neither the State nor Mushtaq Ahmad (PW-4), the complainant of the case, assailed the said acquittal of Muhammad Zakria alias Zaki, the co- accused of the appellants, who was alleged to had ordered the killing of Siraj Ahmad (deceased) .It clearly proves that the prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged. The unchallenged acquittal of Muhammad Zakria alias Zaki, the co- accused of the appellants 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 appellants to commit the Qatl-i-Amd of the deceased.

There is a haunting silence with regard to the minutiae of motive alleged and what triggered the occurrence. 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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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.

23.The learned Deputy Prosecutor General and the learned counsel for the complainant have also laid much premium on the abscondence of the appellants namely Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah as proof of his guilt. The fact of abscondence of an accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence. The august Supreme Court of Pakistan has held in the case of “Asadullah v.

Muhammad Ali” (PLD 1971 SC 541) that both corroborative and ocular evidence are to be read together and not in isolation. As regards abscondence, the august Supreme Court of Pakistan has held in the case of “Rasool Muhammad v. Asal Muhammad” (1995 SCMR 1373) that abscondence is only a suspicious circumstance. In the case of “Muhammad Sadiq v. Najeeb Ali” (1995 SCMR 1632) the august Supreme Court of Pakistan observed that abscondence itself has no value in the absence of any other evidence. It was also held in the case of “Muhammad Khan v. State” (1999 SCMR 1220) that abscondence of the accused can never remedy the defects in the prosecution case. In the case of “Gul Khan v. State” (1999 SCMR 304) it was observed by the august Supreme Court of Pakistan that abscondence per se is not sufficient to prove the guilt but can be taken as a corroborative piece of evidence. In the cases of “Muhammad Arshad v.

Qasim Ali” (1992 SCMR 814), “PirBadshah v. State” (1985 SCMR 2070) and “Amir Gul v. State” (1981 SCMR 182) it was observed that conviction

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on abscondence alone cannot be sustained. In the present case, substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on abscondence alone.. Reliance is also placed on the cases of “Muhammad Farooq and another Vs. The State” (2006 SCMR 1707) and “Nizam Khan and 2 others Vs. the State” (1984 SCMR 1092) and Rohtas Khan vs. The State (2010 SCMR 566).

24.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah(appellants) in the present case. It is settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind 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:

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

25.For what has been discussed above, the Criminal Appeal No.418 of 2018 lodged by the appellants namely Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah is allowed. The conviction and sentences of Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah (appellants) awarded by the learned trial court through the impugned judgment dated 29.05.2018 are hereby set-aside. Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah (appellants) are ordered to be acquitted by extending them the benefit of doubt. Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah (appellants) are in custody and they are directed to be released forthwith if not required in any other case.

26.Consequently, the Murder Reference No. 23 of 2018 is answered in Negative and the sentences of death awarded to Khadim Ali son of Aman Ullah and Imtiaz Ahmad son of Aman Ullah, are Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel/*

Approved for Reporting

JUDGE JUDGE