Bilal Ahmad vs The State

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 09 of 2018 (The State Vs. Bilal Ahmad)

Criminal Appeal No. 224-J of 2018 (Bilal Ahmad Vs. The State.)

Date of hearing: 22.11.2021 Appellant by: Syed Zeeshan Haider, Advocate.

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

Complainant by: Mr. Muhammad Sharif Bhatti, Advocate.

JUDGMENT.

SADIQ MAHMUD KHURRAM, J.– Bilal Ahmad son of Allah Bachaya (convict) was tried along with his co-accused namely Muhammad Hanif, Muhammad Ashiq and Mst. Rakhal alias Allah Rakhi (all since acquitted) by the learned Additional Sessions Judge, Bahawalpur in the case FIR No. 244 of 2014 dated 08.10.2014 registered at Police Station Sama Satta, District Bahawalpur in respect of offences under sections 302, 34 and 109 PPC for committing the Qatl-i-Amd of Shakeel Ahmad son of Abdul Rasheed and Saeed Ahmad son of Allah Diwaya (deceased). The learned trial court vide judgment dated 27.03.2018, convicted Bilal Ahmad son of Allah Bachaya (convict) and sentenced him as under:

Bilal Ahmad son of Allah Bachaya:

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Shakeel Ahmad son of Abdul Rasheed (deceased) and directed to pay Rs1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Shakeel Ahmad son of Abdul Rasheed (deceased)

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and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

Muhammad Hanif, Muhammad Ashiq and Mst. Rakhal alias Allah Rakhi, the co-accused of the appellant, were however acquitted by the learned trial court. Moazzam Ali alias Sajid, the other co-accused of the convict was tried separately under the Juvenile Justice System Ordinance, 2000 , being under the age of eighteen years at the time of occurrence and hence “child” within the definition of Juvenile Justice System Ordinance, 2000 . Moazzam Ali alias Sajid was convicted and sentenced to imprisonment for life under section 302 (b) PPC as Tazir for committing Qatl-i-Amd of Saeed Ahmad son of Allah Diwaya (deceased) and directed to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Saeed Ahmad son of Allah Diwaya (deceased) and in case of default thereof, he was further directed to undergo six months of simple imprisonment.

2.Feeling aggrieved, Bilal Ahmad son of Allah Bachaya (convict) lodged Criminal Appeal No.224-J of 2018 through jail assailing his conviction and sentences. The learned trial court submitted Murder Reference No.09 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Bilal Ahmad son of Allah Bachaya. We intend to dispose of the Criminal Appeal No. 224-J of 2018 and Murder Reference No.09 of 2018 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Abdul Rasheed (PW-1) , the complainant of the case, are as under:- “One year prior to 08.10.2014, marriage of my son Shakeel was solemnized with Najma Bibi d/o Allah Bachaya and in exchange of

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said marriage, marriage of my daughter Haseena Bibi was solemnized with Bilal accused brother of said Najma Bibi. After six months of the marriage of my daughter, my son in law Bilal accused ousted my daughter after giving her severe beatings and she came to my house and started living with me. Whereas, my daughter in law Najma Bibi was remained living with my son happily. On 07.10.2014, my son Shakeel Ahmad went to the house of his in-laws for giving the meat of "Qurbani". Allah Rakhi mother in law of my son (accused present in Court) asked Shakeel Ahmad (since deceased) to come her house tomorrow alongwith her daughter Najma Bibi and would also take away amount of lease money Rs.2,10,000/- which he had given to Bilal accused for taking the agricultural land on lease. My son Shakeel came back to the house and told me the said fact. On 08.10.2014, I alongwith Shakeel Ahmad (since deceased) Saeed Ahmad (since deceased), Najma Bibi, Hanif s/o Allah Bakhsh and Mohammad Ajmál reached the house of Allah Rakhi accused at 09.00 a.m., situated in Mouza Wahi Ghosain, while riding' on two motorbikes. After providing refreshment to us, Allah Rakhi accused, present in Court, stopped Najma Bibi to her house and asked us to send Haseena Bibi to her house, whereafter, took away their amount Rs.2,10,000/- and Najma Bibi. We returned back at 10.30 a.m., when we reached Sheikhan Wali Pulley, Mouza Sheikh Shajra, accused Bilal Sajid alias Moazzam and Hanif came there. Accused Bilal while armed with pistol 30 bore made a fire shot which landed on the head of my son Shakeel Ahmad, whereas, accused Hanif s/o Hameed caught hold Saeed Ahmad with Japha and put him on the ground, accused Sajid alias Moazzam took pistol 30-bore from accused Bilal and made fire shot on Saeed Ahmad which landed on his head. I and PWs tried to apprehend the accused persons, but accused persons extended threat of dire consequences and fled away from the spot. I alongwith PWS attended Shakeel and Saeed injured persons, but they

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both succumbed to the injuries at the spot. Motive behind the occurrence was that an amount of Rs.2,10,000/- was taken by accused Allah Rakhi, Bilal and Sajid alias Moazzam for obtaining the land on lease for us. Accused persons neither provided us the land on lease nor returned the said amount and due to this grudge, they also gave beatings to my daughter Haseena Bibi and expelled her from their house who was living with me six months prior to the occurrence. On demand of amount and due to domestic differences, accused Bilal, Sajid alias Moazzam and Mohammad Hanif committed murder of my son Shakeel Ahmad and my cousin Saeed Ahmad, on the abetment and instigation of Allah Rakhi and Mohammad Ashiq s/o Faiz Bakhsh, accused present in Court.

After the occurrence, the police reached the spot and I presented written application Ex.PA before the Police, whereupon, formal FIR Ex.PA/I was chalked out. Written application Ex.PA bears my thumb-impression.

Prior to autopsy examination, dead body of deceased Shakeel Ahmad was identified by me. On 06.11.2014, I presented application Ex.PB for nomination of accused Mohammad Hanif s/o Abdul Hameed, which also bears my thumb-impression. I.O. also recorded my statement u/s 161 Cr.P.C., in this regard.”

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 Bilal Ahmad son of Allah Bachaya and the co-accused of the appellant namely Muhammad Hanif, Muhammad Ashiq and Mst. Rakhal alias Allah Rakhi ( all since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 29.04.2017, 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 ten witnesses recorded. The ocular account of the case was

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furnished by Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2).

Muhammad Imtiaz, ASI (PW-3) stated that on 08.10.2014 he recorded the formal F.I.R (Exh.PA/1). Abdul Aziz, Patwari (PW-4) prepared the scaled site plan of the place of occurrence (Exh.PP). Nadeem Akhtar 1803/C (PW-

6)stated that on 08.10.2014 he escorted the dead bodies of the deceased to the hospital from the place of occurrence and also received the last worn clothes of the deceased from the Medical Officer. Muhammad Nawaz 1572/HC (PW-9) stated that on 08.10.2014 Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, handed over to him two sealed parcels said to contain blood stained earth and empties which parcels on 28.10.2014, he handed over to Moreed Hussain 226/C (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and further stated that on 07.11.2014 Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, handed over to him one sealed parcel said to contain a pistol which on 13.11.2014 he handed over to Moreed Hussain 226/C (PW-7) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, investigated the case from 08.10.2014 till 05.12.2014, arrested the appellant on 29.10.2014, 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 Athar (PW-5) examined, who on 08.10.2014 was posted as Senior Medical Officer at RHC, Khanqah Sharif and on the same day conducted the postmortem examination of the dead body of Saeed Ahmad son of Allah Diwaya (deceased). Dr. Muhammad Athar (PW-5), on examining the dead body of Saeed Ahmad son of Allah Diwaya (deceased) observed as under:-

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“Injury No. 1.

There was lacerated wound measuring 1 cm x 1 cm located on the right side of the head 2 cm above from right ear, having inverted edges. This was the wound of entry.

Injury No.2.

There was lacerated burst wound measuring 6 cm x 2 cm located on the parieto-occipital aspect 5 cm from left ear. Wound had everted edges This was the exit of injury No.1. ON DISSECTION Injury No.1 was through and through cross the skull and brain. Brain was totally ruptured and damaged, there was fracture of the skull bones on both left and right side

FINAL OPINION:

After careful external and internal post-mortonl examination of the dead body of Saeed Ahmad deceased, I was of the opinion that the injury No.1 and Injury No.2 were the cause of death in this case, because there was total damage and rupture of membrane which leads to heavy bleed, shock and death. Moreover, as the brain is vital organ of the body and damage to the vital organ of the body is sufficient to cause death in ordinary course of life. Injuries No.1 and 2 were ante- mortem in nature and caused by firearm.”

On the same day Dr. Muhammad Athar (PW-5) conducted the postmortem examination of the dead body of Shakeel Ahmad son of Abdul Rasheed (deceased). Dr. Muhammad Athar (PW-5), on examining the dead body of Shakeel Ahmad son of Abdul Rasheed (deceased)observed as under:- “ Injury No. 1.

There was lacerated wound measuring 1 cm x 1 cm circular in shape, located on the occipital aspect of head, on the parieto occipital region. The edges of wound were inverted, blood of black coloured coming from the wound. This was the wound of entry.

Injury No.2.

There was clotted blood inside the both nostrils.

ON DISSECTION There was present a wound inside the nose in right nostril with the fracture of nasal bone. The wound was present is forming of track which through and through united to injury No.1 alongwith the rupturing and damaging of brain, membrane and fracture of parietal and occipital bones. Injury No.1 was the entry wound and injury No.2 was the exit wound.

FINAL OPINION

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After careful external and internal post-mortem examination of the dead body of Shakeel Ahmad deceased, I was of the opinion that injury No.1 and Injury No.2 were the cause of death in this case, because there was total damage and rupture of brain which leads to heavy internal bleeding, shock and death. Brain is the vital organ of the body and the damage of vital organ is sufficient to cause death in ordinary course of life. Injuries No.1 and 2 were ante-mortem in nature and caused by firearm.”

7.The learned trial court examined Muhammad Farooq (CW-1) and recorded his statement who stated that on 08.10.2014, he was posted a Wireless Operator at Police Station Sama Satta and received a message sent by the SHO that two persons had been murdered.

8.On 17.01.2018 the learned ADPP gave up the prosecution witnesses namely Muhammad Hanif and Najma Bibi as being unnecessary.

On 21.02.2018, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PY) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh.PZ) regarding the analysis of the crime empties recovered from the place of occurrence and the pistol (P-12) recovered from the possession of the appellant.

9.After the closure of prosecution evidence, the learned trial court examined the appellant namely Bilal Ahmad son of Allah Bachaya under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, the appellant namely Bilal Ahmad son of Allah Bachaya replied that he had been involved in the case falsely and was innocent. The appellant namely Bilal Ahmad son of Allah Bachaya opted not to get himself examined under section 340(2) Cr.P.C.

and did not adduce any evidence in his defence.

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10.On the conclusion of the trial, the learned Additional Sessions Judge, Bahawalpur, convicted and sentenced the appellant namely Bilal Ahmad son of Allah Bachaya as referred to above.

11.The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable.

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

12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2). They further argued that the recovery of the pistol (P-12) from the appellant namely Bilal Ahmad son of Allah Bachaya also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the

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innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant prayed for the rejection of appeal as lodged by the appellant namely Bilal Ahmad son of Allah Bachaya.

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

14.The whole prosecution case revolves around the statements of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2). These witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) were related to each other. Their relationship with the deceased is also on record. The deceased namely Shakeel Ahmad was the son of Abdul Rasheed (PW-1). The deceased namely Saeed Ahmad was the cousin of Abdul Rasheed (PW-1) whereas it was admitted by Muhammad Ajmal (PW-2) that Abdul Rasheed (PW-1) was his maternal cousin. It is also an admitted fact that both of the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) did not have their residences or their houses or their lands or their places of business at or around the place of occurrence. Abdul Rasheed (PW-1) admitted during cross-examination as under:-

“It is correct that I as well as my witnesses do not have any residence or business at Pull Sheikhan Wali i.e. place of occurrence.”

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

“My house is at a distance of about 35/36 K.M. from the place of occurrence. It is correct to suggest that from main road, the above said distance is 50 K.M. Complainant of this case is my maternal cousin. Saeed

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Ahmad PW is also my maternal cousin. I have no house or shop at Pull Sheikhan Wali, Mouza Sheikh Shajra. Likewise, complainant as well as accused persons have also got no residence or shop at said Pull Sheikhan Wali, Mouza Sheikh Shajra.” (emphasis supplied).

Khurshid Ali, SI (PW-10), the Investigating Officer of the case, during cross-examination stated as under:-

“It is correct to suggest that there are no houses or places of business of the complainant and witnesses near the place of occurrence.”

We have also perused the scaled site plan of the place of occurrence (Exh.PP) as prepared by Abdul Aziz, Patwari (PW-04) and the rough site plan of the place of occurrence (Exh.PX) as prepared by Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, and find that neither the residences of the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) nor the places of work or any shop of the witnesses or any land of the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) is marked in the same. In view of the above mentioned facts, it can be validly held that they were both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) 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.

We find that the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) failed to explain the circumstances in which they had arrived at the place of occurrence and witnessed the same. Both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) claimed that they had gone to the house of Mst. Rakhal alias Allah Rakhi (since acquitted) along with Najma Bibi prior to the occurrence where Mst. Rakhal alias Allah Rakhi (since acquitted) stopped Najma Bibi

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from leaving her house and told the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) to send Haseena Bibi to her house and then take away Najma Bibi. It is an admitted part of prosecution case that during the investigation, the statement of Najma Bibi was recorded , however, she was not produced as a witness during the course of trial and was given up as being unnecessary. The failure of the prosecution to produce Najma Bibi in support of the claim that Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) had visited the house of Mst. Rakhal alias Allah Rakhi (since acquitted) in the company of the deceased and Najma Bibi, has consequences entailing the failure of the prosecution to prove their visit to the house of Mst. Rakhal alias Allah Rakhi (since acquitted) prior to the occurrence. 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. Illustration (g) of the said Article 129 of the Qanun-e- Shahadat Order, 1984 provides as under:-

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

We thus believe the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that had the said Najma Bibi appeared before the learned trial court, she would have not supported the prosecution case. Reliance is placed on the case of Riaz Ahmad Vs. The State (PLJ 2010 SC 877). Furthermore, Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, during cross-examination admitted that in her statement recorded under section 161 of the Code of Criminal Procedure, 1898, Najma Bibi had

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stated that she and the deceased were having a drink when the occurrence took place and had not mentioned the presence of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) at the time of occurrence and it was for this reason that Najma Bibi was not produced before the Court. Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, during cross-examination stated as under:-

“Najma Bibi stated in her statement u/s 161 Cr.P.C., that she alongwith both the deceased persons, were sitting at Pull Sheikhan Wali and were drinking Coca-Cola while putting it into glass.

It came into my investigation that at the time of occurrence and at the place of occurrence, only Najma Bibi was present alongwith Shakil and Saeed deceased”

It is also a fact that during his visit at the place of occurrence , after the occurrence , Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, took into possession a bottle of Coca Cola (P-3) and a glass (P-4) from the place of occurrence and both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) , though admitted and gave evidence of the presence of the said bottle of Coca Cola (P-3) and the glass (P-4) at the place of occurrence, could not explain the presence of the said bottle of Coca Cola (P-3) and the glass (P-4) at the place of occurrence and who was using the same. It was only during investigation and after the recording of statement of Najma Bibi (not produced) that it was determined that the said bottle of Coca Cola (P-3) and the glass (P-4) were being used by the deceased and Najma Bibi (not produced). Khurshid Ali, SI (PW-10) , the Investigating Officer of the case, stated as under:-

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“According to my investigation, the bottle Coca Cola and glass were recovered at the time of inspection, are same which were/ used by Najma Bibi, Shakil and Saeed.”

Moreover, both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) also claimed that after leaving the house of Mst. Rakhal alias Allah Rakhi (since acquitted) they had followed the deceased who were travelling on a separate motorcycle whereas the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) were using another motorcycle and while arriving at the place of occurrence, had witnessed the same, however, the said motorcycle, which was being used by the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2), was never produced before the Investigating Officer of the case on the day of occurrence or even subsequently during the investigation of the case. Muhammad Ajmal (PW-2) during cross-examination admitted as under:-

“After about 07/08 minutes of our leaving the house, the instant occurrence took place. The motorcycle of Shakeel and Saeed was ahead to us when accused persons stopped us.

Shakeel deceased was driving motorcycle while Saeed deceased was sitting behind him when they sustained firearm injuries.

We did not produce our motorcycle to police.” (emphasis supplied) Admittedly the said motorcycle used by the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) to arrive at the place of occurrence was neither taken into possession by Khurshid Ali, SI (PW-

10),the Investigating Officer of the case, nor was produced by Abdul

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Rasheed (PW-1) and Muhammad Ajmal (PW-2) during the investigation of the case. The motorcycle used by Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) to arrive at the place of occurrence was not observed to be present at the place of occurrence by Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, at the time of his arrival at the place of occurrence and therefore there is no mention of the presence of the same in the rough site plan of the place of occurrence (Exh.PX) as prepared by Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case. Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, admitted during cross- examination as under:-

“I have not shown or mentioned the availability of second motorcycle being used by the complainant. It is also correct that second motorcycle was also not produced by complainant party. ”

The non-production and the absence of any motorcycle under the use of the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) 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 fact that Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) had used a motorcycle to arrive at the place of occurrence. The failure of the prosecution witnesses to prove that Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) 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 Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) in this regard was false. We have also noted that according to both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) they had left the house of Mst. Rakhal alias Allah Rakhi (since acquitted) and continued on their journey while riding on

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a motorcycles, till they were stopped by the accused, however, could not explain as on what vehicle the accused arrived at the place of occurrence, at the same time as the deceased and the witnesses, when prior to the departure of the deceased and the witnesses from the house of Mst. Rakhal alias Allah Rakhi (since acquitted), the accused were present inside the said house . It was not possible that the accused made up the distance between them and the deceased as well as the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) without having used any vehicle to arrive at the place of occurrence, however Abdul Rasheed (PW-1), in his statement before the learned trial court , stated that he did not know and could not tell as to on what vehicle the accused had arrived at the spot. Abdul Rasheed (PW-1) during cross-examination stated as under:-

“I do not know by which vehicle, accused had arrived at the spot” All these omissions in the prosecution evidence 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

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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.”

15.We have also noted that according to the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) the incident had taken place for the reason that the appellant had taken an amount of Rs.2,10,000/- from Abdul Rasheed (PW-1) for procuring land on lease for Abdul Rasheed (PW-1) , however, neither returned the amount nor procured any land on lease for Abdul Rasheed (PW-1) and on demand of the return of the amount , the appellant and his co-accused murdered the deceased. Abdul Rasheed (PW-1) in his statement before the learned trial court stated as under:- “Motive behind the occurrence was that an amount of Rs.2,10,000/- was taken by accused Allah Rakhi, Bilal and Sajid alias Moazzam for obtaining the land on lease for us. Accused persons neither provided us the land on lease nor returned the said amount and due to this grudge, they also gave beatings to my daughter Haseena Bibi and expelled her from their house who was living with me six months prior to the occurrence. On demand of amount and due to domestic differences, accused Bilal, Sajid alias Moazzam and Mohammad Hanif committed. murder of my son Shakeel Ahmad and my cousin Saeed Ahmad, on the abetment and instigation of Allah Rakhi andMohammad Ashiq s/o Faiz Bakhsh, accused present in Court”

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Muhammad Ajmal (PW-2) in his statement before the learned trial court stated as under:-

“Motive behind the occurrence was that about 06 months prior to the occurrence, accused Bilal Ahmad took amount Rs.2,10,000/-- from the complainant for providing him the agricultural land on lease. Accused Bilal Ahmad neither provided him the land on lease nor returned the said amount, and due to this grudge, on the abetment and instigation of accused Allah Rakhi and Mohammad Ashiq, present in Court, accused Bilal Ahmad, Sajid alias Moazam and Mohammad Hanif committed murder of Shakeel Ahmad and Saeed Ahmad deceased persons.”

Both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) also admitted during cross-examination that the deceased had no enmity with the appellant. Muhammad Ajmal (PW-2) during cross-examination stated as under:-

“Saeed deceased got no concern with respect to above said disputed amount with Bilal accused.

Shakeel deceased got no dispute with the used persons.”

Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, stated as under:-

“It is correct that according to complaint and statements of witnesses, dispute was in between Bilal accused and complainant Abdul Rasheed.”

The above referred portions of the statements of the prosecution witnesses fully reveals that Abdul Rasheed (PW-1) , should have been the prime target of the assailants whereas both the deceased had no concern or dispute which could have led to the their murder at the hands of the appellant and his co-

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accused. Furthermore, according to the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2), they were in clear view, at a meagre distance, from the assailants and unarmed whereas the appellant was allegedly armed with a firearm weapon. Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellant or his co-accused for not doing away with the witness namely Abdul Rasheed (PW-1) , their main adversary. In this scenario, it is hard to believe that the prosecution witness namely Abdul Rasheed (PW-1) would have been shown the courtesy of being not fired at all when he should have been the prime target of the assailants . Furthermore, it was the claim of the prosecution witnesses that in the midst of firing, the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) did not receive even a single scratch on their persons during the whole occurrence. If the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) had been present in the view of the assailants, then they would not have been spared. Abdul Rasheed (PW-1) during cross-examination stated as under:-

“No accused made firing upon me or injured me. I do not know by which vehicle, accused had arrived at the spot. At the time of firing, I was facing towards northern side, while Shakeel and Saeed deceased were also facing towards northern side. Sajid and Bilal accused were standing with the intervening distance of only a motorcycle. I did not try to run away from the firing made by accused.”(emphasis supplied)

Muhammad Ajmal (PW-2) during cross-examination stated as under:

“Abdul Rasheed complainant did not sustain any injury during this occurrence.”

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Blessing Abdul Rasheed (PW-1), with such an incredible consideration and showing him such favour, the only person with whom the assailants had a dispute with, is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant and their co-accused did not cause any injury to them. Such behaviour, on part of the accused as deposed by the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2), runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e- Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order, 1984, that the conduct of the assailants, as deposed to by the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) , was opposed to the common course of natural events and human conduct. Hence, we are holding that both Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) were not present at the place of occurrence, at the time of occurrence and did not witness the occurrence. The august Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses were not present at the place of occurrence. The august Supreme Court of Pakistan in case Tariq Mehmood v. The State and others (2019 SCMR 1170) has observed as under:

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“First sight cannot escape preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution's own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report.”

The august Supreme Court of Pakistan in case Rohtas Khan v. The State (2010 SCMR 566) at page 571 observed as under:

“The alleged motive was against the complainant, but it is noted that the appellant did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P.Ws. were not present at the place of occurrence.”

The august Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707) at page 1712 held as under:- “Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased.”

We are also guided by the binding judgment of the august Supreme Court of Pakistan passed in the case of Mst. Rukhsana Begum & others v. Sajjad & others (2017 SCMR 596) where at page 601 it was observed as under:- “Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him.

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Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e- Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition.”

16.We have also noted that both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) claimed that their clothes were smeared with the blood of the deceased. Abdul Rasheed (PW-1) during cross-examination stated as under:-

“When we attended deceased persons, they had not expired, but they were breathing their last. At that time, my wearing clothes were also stained with blood when I attended the deceased persons. I did not produce my blood stained clothes to police.”

Similarly, Muhammad Ajmal (PW-2) during cross-examination stated as under:-

“We attended the deceased. Our wearing clothes were stained with blood while attending the deceased. We did not produce our blood stained wearing clothes to the Police.”

Khurshid Ali, SI (PW-10), the Investigating Officer of the case, , did not take any such blood-stained clothes of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) in possession during the investigation of the case nor the said witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) admittedly produced their such clothes either before the Investigating Officer of the case or before the learned trial court . Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Abdul

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Rasheed (PW-1) and Muhammad Ajmal (PW-2) which were stained with blood, into possession and if these blood stained clothes of the witnesses had been taken into possession and 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 Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2). This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) to have been present at the place of occurrence ,at the time of occurrence. The prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Mst. SUGHRA BEGUM and another versus QAISER PERVEZ and others (2015 S C M R 1142) wherein it has been held as under:- “20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not take the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses.”

The august Supreme Court of Pakistan in the case of Mst. MIR ZALAI versus GHAZI KHAN and others (2020 S C M R 319) has held as under:- “Both the eye-witnesses produced by the prosecution had claimed that while handling Afsar Khan deceased their clothes had been smeared with

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the blood of the deceased but admittedly no such blood-stained clothes of the said eye-witnesses had been secured or produced”.

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

(a)........

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

17.Another aspect of the case raising our doubt over the presence of the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police for as many as more than two hours and made no effort to take the deceased to any hospital during the said time period. According to the prosecution case, Khurshid Ali, SI (PW-

10),the Investigating Officer of the case, got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-

2)had told him about the occurrence. We have noted that despite the fact that the occurrence had allegedly taken place at about 10.30 a.m, however the written application (Exh.PA) of Abdul Rasheed (PW-1) was received by Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, at 12.30 p.m at the place of occurrence and the formal FIR (Exh.PA/1) was registered

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at 1.00 p.m. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. Abdul Rasheed (PW-1) during cross-examination admitted as under:- “I did not call police on telephone regarding the occurrence. I did not visit police station for registration of case.”

Muhammad Ajmal (PW-2) during cross-examination stated as under:- “After the occurrence, I did not try to lodge the FIR by visiting police station. I also made no call on Rescue-15 or at Rescue-1122. I did not make any effort by arranging vehicle for shifting the deceased to the Hospital.”

In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one, because, the witnesses never reported the matter to the police for as many as two hours and kept waiting at the place of occurrence. We have also noted with grave concern that Abdul Rasheed (PW-1) during cross-examination claimed that the formal F.I.R was registered at the Police Station at 3.00 p.m. and after the post mortem examinations of the dead bodies of the deceased had been conducted. Abdul Rasheed (PW-1) during cross- examination stated as under:-

“I moved application for registration of case at the spot, but FIR was lodged at about 03.00 p.m. I also went to police station for registration of case and making my thumb-impression there. FIR was lodged after about 30 minutes of the post-mortem examination.”(emphasis supplied).

It can be easily inferred that the FIR was registered with delay for the simple reason that no witnesses of the occurrence were available and the

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matter of submitting the application (Exh.PA) was kept pending to procure the attendance of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) .

The above referred portion of the statements of the prosecution witnesses conclusively proves that the written application (Exh.PA) of Abdul Rasheed (PW-1) and the formal F.I.R (Exh.PA/1) were prepared after probe, consultation, planning, investigation and discussion. As many as two hours were taken to invent a false and dishonest narrative of the written application (Exh.PA) of Abdul Rasheed (PW-1). The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PA) of Abdul Rasheed (PW-1) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences there absence at the time of occurrence , at the place of occurrence. Reliance is placed on the cases of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23), MUHAMMAD ASHRAF JAVEED and another vs. MUHAMMAD UMAR and others (2017 SCMR 199) ,Zafar vs. The State and others (2018 SCMR 326) ,“G. M.

NIAZ Vs. The State” (2018 SCMR 506), Abdul Jabbar and another Vs. The State (2019 S C M R 129) and Muhammad Shafi alias Kuddoo Vs. The State and others (2019 S C M R 1045). Moreover, the written application (Exh.PA) of Abdul Rasheed (PW-1) was received by Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, at the place of occurrence after his arrival there. The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:

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

18.We have also noted with grave anxiety that according to the prosecution case, the written application (Exh.PA) of Abdul Rasheed (PW-

1)was received by Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, at 12.30 p.m and the formal FIR (Exh.PA/1) was registered at 1.00 p.m., however, the post mortem examination of the deceased had already been conducted prior to the registration of the formal FIR (Exh.PA/1). Dr.

Muhammad Athar (PW-5) in his statement before the learned trial court stated as under:-

“I conducted the post-mortem examination on the dead body of Saeed Ahmad deceased on the same day i.e. 08.10.2014, at 11.30 a.m..

I conducted the post-mortem examination on the dead body of Shakeel Ahmad deceased on the same day i.e. 08.10.2014, at 11.50 a.m.”(emphasis supplied)

Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, stated as under:-

“It is correct that according to police Karwai, at the margin of complaint, I have mentioned that the dead bodies of the deceased are yet to be dispatched when written complaint was sent to Police Station.

According to my proceedings at the spot, I mentioned that dead bodies were sent after receipt of police file, recording statements of witnesses and after inspection of the place of occurrence. It took one hour while

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completing the proceedings i.e. recording statements of witnesses and inspecting the place of occurrence. It is correct that according to my proceedings, after recording statements of witnesses and after inspecting the place of occurrence, I dispatched the dead bodies for post-mortem examinations.”(emphasis supplied)

According to the above referred statements of the prosecution witnesses , Dr.

Muhammad Athar (PW-5) conducted the postmortem examination of the dead body of Saeed Ahmad son of Allah Diwaya (deceased) on 08.10.2014 at 11.30 a.m and conducted the postmortem examination of the dead body of Shakeel Ahmad son of Abdul Rasheed (deceased) on 08.10.2014 at 11.50 a.m. whereas the formal FIR (Exh.PA/1) was registered at 1.00 p.m..

Furthermore, as mentioned above, Abdul Rasheed (PW-1) also admitted that the F.I.R was registered after about 30 minutes of the post-mortem examinations. In this manner, it is apparent that the dead bodies of the deceased were escorted to the hospital and post mortem examinations were conducted even prior to the registration of the F.I.R proving the fact that the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) were not present at the place of occurrence , at the time of occurrence and someone else had escorted the dead bodies of the deceased to the hospital. Moreover, Muhammad Farooq (CW-1) stated that on 08.10.2014, he was posted a Wireless Operator at Police Station Sama Satta and received a message sent by the SHO Police Station Sama Satta that two persons had been murdered and the identity of one of them was determined as Shakeel Ahmad with the help of the identity card recovered from the dead body and the said SHO sought confirmation of the information from the Police Station Qureshi Wala, the Police Station within whose jurisdiction the deceased was resident of . Muhammad Farooq (CW-1) further stated that at

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about 1.00 p.m the message from the Police Station Qureshi Wala was received that the deceased was indeed the resident of the area and the said information was then relayed to SHO Police Station Sama Satta. This also proves that the witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) were not present at the place of occurrence, at the time of occurrence and therefore the SHO Police Station Sama Satta, after his arrival at the place of occurrence, had to confirm the identity of the deceased and for this reason the Wireless message was relayed. As mentioned above, the post-mortem examinations of the dead bodies of the deceased were conducted much before the receiving of the written application (Exh.PA) of the complainant Abdul Rasheed (PW-1). In this manner we have arrived at an irresistible conclusion that both Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) were not present at the place of occurrence ,at the time of occurrence and had not witnessed the occurrence.

19.We have also noted with disquiet that both the prosecution witnesses namely Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2), made dishonest and blatant improvements to their previous statements recorded by the police during the investigation of the case. A scrutiny of the statements of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) recorded by the learned trial court reveals that Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) made substantial improvements to their previous statements related to the number of the accused and the weapons carried by them, however, during the course of cross-examination, it was brought on record that Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) had made improvements with regard to all the above mentioned details narrated by them in their statements recorded by the learned trial court. Abdul Rasheed

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(PW-1) and Muhammad Ajmal (PW-2) were duly confronted with their previous statements. Abdul Rasheed (PW-1) was confronted during cross- examination and the learned trial court observed as under:- “ I had also recorded in my written application Ex.PA that Hanif accused was also present at the spot. (Confronted with Ex.PA, wherein, it is not so recorded). Volunteered scribe left the name of Hanif accused. I had also recorded in my application Ex.PA that Hanif accused caught Saeed Ahmad deceased with "Japha" and put him on the ground. (Confronted with Ex.PA, wherein, it is not so recorded). I stated in Ex.PA that accused Sajid alias Moazzam took pistol 30-bore from Bilal accused and caused injury on the person of Saeed.

(Confronted with Ex.PA, wherein, it is not so recorded). After 28 days of the occurrence, I came to know that name of Hanif accused is not figured in the FIR. I nominated Hanif accused on 06,11.2014 through written application Ex.PB. (at this stage, learned defence counsel requested for supply of copy of statement in shape of Ba Daryaft of Abdul Rasheed dated 06.11.2014, whereupon, learned ADPP is directed to supply the same, which was given to learned defence counsel). I did not state in my said statement that at the time of occurrence, accused Mohammad Hanif s/o Abdul Hameed, caste Galohtra, r/o Mouza Wahi Gosaeen committed murder of Saeed Ahmad deceased. (Confronted with Ex.DB wherein, it is so recorded). Volunteered Hanif accused had made "Japha" to Saeed Ahmad deceased. It is incorrect to suggest that my volunteered portion is false improvement on my part, contrary to Ex.DB.

It is correct that prior to my examination in chief dated 14.10.2017, my statement was also recorded by this Court on 17.06.2016. I did not state in my said statement dated 17.06.2016 that occurrence of this case took place on 08.04.2010. (Confronted with Ex.DC wherein, 08.04.2010 is recorded).

I got recorded in my application Ex.PA that both accused Bilal and Sajid were armed with pistols. Volunteered there was one pistol, one

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made fire and then other accused fire took the same pistol and made fire.”(emphasis supplied)

Similarly ,Muhammad Ajmal (PW-2) was confronted during cross- examination and the learned trial court observed as under:- “I also recorded in my statement before police that Sajid accused took pistol from Bilal and made fire upon Saeed Ahmad. Confronted with Ex.DA, wherein, it is not so recorded). I got recorded before Police in my statement that Sajid and Bilal came there and both armed with pistols.

It is incorrect to suggest that I have made deliberate improvements of taking pistol by Sajid accused from his co accused Bilal on legal advice, after perusing the report of PFSA Lahore. I do not know that according to Investigation of this case, Sajid accused was found not to have inflict any injury on the person of any deceased. I also got recorded in my statement before police that Hanif accused made a "Japha" to Saeed Ahmad deceased and put him on the ground. (Confronted with Ex.DA, wherein, it is not so recorded). I stated before the I.O. regarding presence of accused Mohammad Hanif at the place of occurrence in my statement dated 08.10.2014. (Confronted with Ex.DA, wherein, it is not so recorded). Mohammad Hanif accused is my close relative.”(emphasis supplied)

The above referred portions of cross-examinations of Abdul Rasheed (PW-

1)and Muhammad Ajmal (PW-2) substantially proves that they made a failing effort to prove that they had arrived at the place of occurrence and witnessed the same. The said improvements made by Abdul Rasheed (PW-

1)and Muhammad Ajmal (PW-2) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statements, Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2)

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impeached their own credit. Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: -

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

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

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

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

As Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-

2)cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of “Muhammad Ashraf Vs. State” (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“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

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case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence”.

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

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

20 . The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol (P-12) made from the appellant and the report of the Punjab Forensic Science Agency, Lahore (Exh.PZ). The recovery of the pistol (P-12) from the appellant namely Bilal Ahmad cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol (P-12) from the appellant namely Bilal Ahmad which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. Muhammad Ajmal (PW-2), also a witness of the recovery of the pistol (P-12) from the appellant Bilal Ahmad, during cross-examination admitted as under:-

“People of the surrounding areas/neighbours also arrived at the time of recovery, but I.O. did not join them into recovery proceedings.”

Khurshid Ali, SI (PW-10) , the Investigating Officer of the case, also admitted during cross-examination as under:-

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“I did not record any statement of witnesses of the locality near the place of recovery, at the time of recovery on 07.11.2014.”

The above referred portions of the cross-examination of the prosecution witnesses namely Muhammad Ajmal (PW-2) and Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, reveal that the provisions of the section 103 Code of Criminal Procedure, 1898 were violated, therefore the evidence of the recovery of the pistol (P-12) from the appellant namely Bilal Ahmad 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. 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, the appellant namely Bilal Ahmad was arrested on 29.10.2014, and the empties taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency, Lahore also on 29.10.2014. There was no reason for keeping the empties which had been taken into possession on 08.10.2014 at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till 29.10.2014 i.e twenty one days after the occurrence and on the same day when the arrest of the appellant was made. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. PZ) has no evidentiary value as possibility of fabrication is apparent. Reliance is placed on the case of Muhammad Amin

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Vs. The State and another (2019 S C M R 2057) wherein the august Supreme Court of Pakistan has held as under:-

“Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential.”

Therefore, the recovery of the pistol (P-12) from the appellant namely Bilal Ahmad does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the pistol (P-12) from the appellant namely Bilal Ahmad 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 of the pistol (P-12) from the appellant namely Bilal Ahmad would have no consequence.

It is an admitted rule of appreciation of evidence that the evidence of recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the mere recovery of a weapon has no evidentiary value.

21.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. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. As mentioned above, the motive of the occurrence was that the appellant had taken an amount of Rs.2,10,000/- from Abdul Rasheed (PW-1) for procuring land on lease for Abdul Rasheed (PW-1) , however, neither returned the amount nor procured any land on lease for Abdul Rasheed (PW-

1)and on demand of the return of the amount , the appellant murdered the deceased. As mentioned above, if the motive of the occurrence as narrated

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by the Abdul Rasheed (PW-1) and Muhammad Ajmal (PW-2) was correct then Abdul Rasheed (PW-1) , should have been the prime target of the assailants whereas both the deceased had no concern or dispute which could have led to the their murder at the hands of the appellant and his co-accused, however Abdul Rasheed (PW-1) was not even fired at by any of the assailants though he had claimed to be present near and in sight of the accused. Additionally, Khurshid Ali, SI (PW-10) ,the Investigating Officer of the case, during cross-examination admitted as under:- “I did not record statement of any witness regarding the dispute of amount Rs.2,10,000/- It is correct that neither any evidence has been produced before me nor I collected any evidence, regarding motive part of the occurrence.” (emphasis supplied).

Moreover, no documentary evidence was brought on record so as to substantiate the datum of handing over of Rs.2,10,000/- by Abdul Rasheed (PW-1) to the appellant. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

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

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22.The only other piece of evidence left to be considered by us is the medical evidence with regard to the number of injuries observed by Dr.

Muhammad Athar (PW-5) and the weapon used to cause them 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, 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.”

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

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doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014

SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:

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

24.For what has been discussed above Criminal Appeal No.224-J of 2018 lodged by Bilal Ahmad son of Allah Bachaya (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 27.03.2018 are hereby set- aside. Bilal Ahmad son of Allah Bachaya (appellant) is ordered to be acquitted by extending him the benefit of doubt. Bilal Ahmad son of Allah Bachaya (appellant) is in custody and is directed to be released forthwith if not required in any other case.

25.Murder Reference No.09 of 2018 is answered in Negative and the death sentence awarded to Bilal Ahmad son of Allah Bachaya is Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

APPROVED FOR REPORTING

JUDGE JUDGE