The State vs Muhammad Fayaz

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.04 of 2018 (The State Vs. Muhammad Fayyaz)

Criminal Appeal No. 70 of 2018 (Muhammad Fayyaz Vs. The State.)

JUDGMENT

Date of hearing: 07.12.2021.

Appellant by: Mr. Muhammad Umair Mohsin, Advocate. State by: Ch. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Syed Zeeshan Haider, Advocate.

SADIQ MAHMUD KHURRAM, J.– Muhammad Fayyaz son

of Allah Ditta (convict) was tried along with Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta ( all since acquitted) by the learned Additional Sessions Judge, Ahmadpur East in the case FIR No. 113 of 2016 dated 23.07.2016 registered at Police Station Noshehra Jadeed , District Bahawalpur in respect of offences under sections 302,148 and 149 PPC for committing the Qatl-i-Amd of Ghulam Yasin son of Khuda Bakhsh (deceased). The learned trial court vide judgment dated 25.01.2018, convicted Muhammad Fayyaz son of Allah Ditta (convict) and sentenced him as under:

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Muhammad Fayyaz son of Allah Ditta:

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Ghulam Yasin son of Khuda Bakhsh (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

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

The convict namely Muhammad Fayyaz son of Allah Ditta was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court .

Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta, the co-accused of the convict, were however acquitted by the learned trial court.

2.Feeling aggrieved, Muhammad Fayyaz son of Allah Ditta (convict) lodged the Criminal Appeal No.70 of 2018 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.04 of 2018 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Fayyaz son of Allah Ditta. We intend to dispose of the Criminal Appeal No. 70 of 2018 and Murder Reference No.04 of 2018 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Khuda Bakhsh (PW-3), the complainant of the case are as under:- “On 23.07.2016, just before Maghrib, Asghar, Akhtar and I were sitting at a nearby 'dera' and were having conversation. Meanwhile Ghulam Yaseen, after ploughing the fields, was returning on the road by tractor and was heading towards his house. When Ghulam Yaseen reached near the house

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of Allah Ditta, situated in a street, accused Fayaz armed with pistol, Amir armed with pistol., Sajjad armed with hatchet, Ejaz armed with 'soti', Dilshad armed with 'soti' and Allah Ditta armed with hatchet surrounded the tractor of Ghulam Yaseen. Allah Ditta raised 'lalkara' by stating that Ghulam Yaseen would not be spared. Amir made fire with his pistol towards Ghulam Yaseen but the fire was missed. Fayaz by climbing on the frame, fixed behind the tractor, fired upon Ghulam Yaseen which hit on his neck. The tractor stopped after covering a short distance. Akhtar and I attended Ghulam Yaseen. The people of locality started gathering there and the accused decamped after making firing. Then we shifted Ghulam Yaseen to Bahawalpur after making arrangements of the transport. GhulamYaseen breathed his last and we transported his dead body to RHC Mubarakpur.

Police came there and I preferred application Ex.PC which contains my thumb impression The motive behind this occurrence was that the deceased Ghulam Yaseen was my son and I have a tubewell there. Accused Allah Dittal and others had purchased tubewell water for irrigation and Ghulam Yaseen had gone there to demand the money from them on 22.07.2016 where verbal altercation ensued. Due to this grudge, the accused had committed the occurrence. All the accused are present in the court today.”

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 accused were sent to face trial. The learned trial court framed the charge against the accused on 06.04.2017, 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 eleven witnesses recorded. The ocular account of the case was furnished by Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4). Muhammad

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Aslam, ASI (PW-1) stated that on 23.07.2016 he recorded the formal F.I.R (Exh.PA). Muhammad Fayyaz 1723/C (PW-2) stated that on 23.07.2016 he escorted the dead body of the deceased to the hospital for the purpose of post mortem examination and also received the last worn clothes of the deceased from the Medical Officer. Muhammad Aslam, Patwari (PW-5) stated that he prepared the scaled site plan of the place of occurrence (Exh.PJ). Abdul Rasheed 1500/MHC (PW-6) stated that on 23.07.2016 Shamas-ud-Din, SI (PW-7) handed over to him one sealed parcel said to contain blood stained earth and one sealed parcel said to contain two empties and on 27.09.2016 he handed over the said sealed parcels to Shamas-ud-Din, SI (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Abdul Rasheed 1500/MHC (PW-6) further stated that on 30.10.2016 Shamas-ud-Din, SI (PW-7) handed over to him two sealed parcels said to contain a pistol which on 29.12.2016 he handed over the said sealed parcel to Abdul Razaq, ASI (PW-8) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore . Muhammad Asif, ASI (PW-11) stated that he had been posted with Mulazim Hussain, SI (not produced as he was suffering from paralysis) and recognized the signature of Mulazim Hussain, SI on the oral statement (Exh.PC) of Khuda Bakhsh (PW-3). Shamas-ud- Din, SI (PW-7) investigated the case from 23.07.2016 till 05.09.2017, arrested the appellant on 19.10.2016, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

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6.The prosecution also got Dr. Muhammad Nauman (PW-10) examined, who on 24.07.2016 was posted as Medical Officer at RHC Mubarakpur and on the same day conducted the postmortem examination of the dead body of Ghulam Yasin son of Khuda Bakhsh (deceased). Dr.

Muhammad Nauman (PW-10),on examining the dead body of Ghulam Yasin son of Khuda Bakhsh (deceased) observed as under:- “DESCRIPTION OF INJURIES.( Including findings on dissection):

1.01 x 01 cm radius pointed hole with inverted margins on left side of neck.No blackening seen. No tattooing seen. Suppose to be point of entry of bullet.

2.Pointed hole 1.5 cm x 01cm radius on right side of neck, with averted margins. Bleeding suppose to be point of exit of bullet

FINAL OPINION.

After performing complete and thorough autopsy of the dead body, found ruptured blood vessels of the neck by fire arm due to which all body cavities were flooded with blood and blood was drained out of the vessels. According to my opinion said injuries were ante mortem in nature and such type of injuries were sufficient to cause death in ordinary course of life. However, result will be KUO for Histopathologist report and consider following initial as provisional statement.

After receiving the report of Histpathology from Punjab forensic Science Agency, have come to conclusion that cause of death was same as already mentioned above.”

7.On 21.12.2017 the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Asghar as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PQ ) regarding the analysis of the blood stained earth and the report of Punjab

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Forensic Science Agency, Lahore (Exh.PR) regarding the analysis of the empties and the pistol (P-8) recovered from the possession of the appellant.

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

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

10.The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the pistol (P-8) was full of procedural defects, of no legal worth and value, and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity. The learned

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counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant 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 Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4). They further argued that the recovery of the pistol (P-8) from the appellant namely Muhammad Fayyaz son of Allah Ditta 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 offender with the 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 Muhammad Fayyaz son of Allah Ditta.

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

13.The whole prosecution case revolves around the statements of Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4), the eye witnesses of the occurrence. The relationship of both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) with the deceased

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and each other is on record. Ghulam Yaseen (deceased) was the real son of Khuda Bakhsh (PW-3) whereas the son of paternal cousin (Chachazad) of Muhammad Akhtar (PW-4) .According to the admission of Khuda Bakhsh (PW-3) himself, he was not the resident of the place of occurrence or anywhere around it . The occurrence in this case took place on a road laid in front of the house of one Allah Ditta and the said place of occurrence was surrounded by the lands of Fida Hussain, Bashir Aheer and Hafiz Rasheed. The said Allah Ditta, Fida Hussain, Bashir Aheer and Hafiz Rasheed never joined the investigation of the case nor appeared as witnesses before the learned trial court. Nonetheless, Khuda Bakhsh (PW-

3)admitted that his residence was at a distance of one kilometre from the place of occurrence. Khuda Bakhsh (PW-3) during cross-examination stated as under:-

“The deceased was my son, PW Akhtar is my "Chachazad' and PW Asghar is my 'Mamoonzad'. The house of PW Asghar is at a distance of one kilometer from the place of occurrence.

Asghar PW and I reside at the same place.

On the east of the place of occurrence is house of Fida Hussain and there were crops of Bashir Aheer and Hafiz Rasheed near the place of occurrence.”(emphasis supplied)

Though Khuda Bakhsh (PW-3) admitted that he was not a resident of any place at or around the place of occurrence however at the same time both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad

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Akhtar (PW-4) stated that the house of Muhammad Akhtar (PW-4) was near the place of occurrence and for the reason that the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were present inside the Baithak of Muhammad Akhtar (PW-4), therefore, they witnessed the occurrence. This claim of the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) remained not proved rather it was proved to be a false claim. We have perused the scaled site plan of the place of occurrence (Exh.PJ) as prepared by Muhammad Aslam Patwari (PW-5) and the rough site plan of the place of occurrence (Exh.PM) as prepared by Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case , and find that the claimed house/Dera/Baithak of Muhammad Akhtar (PW-4) has not been shown in the said site plans (Exh.PJ and Exh.PM). Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case, claimed that he had prepared the said site plan (Exh.PM) on the pointing of the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) and had any house/Dera/Baithak of Muhammad Akhtar (PW-4) existed at the place of occurrence, then the existence of the same would have been reflected in the said site plans (Exh.PJ and Exh.PM). This omission is conspicuous and has far reaching repercussions. It was the claim of both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) that they had witnessed the occurrence when they were present inside the Baithak of Muhammad Akhtar (PW-4) and did not claim that they had moved from the said place of their presence at the time of the occurrence.

When both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were claiming that they were present inside the

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Baithak of Muhammad Akhtar (PW-4), then the non-mentioning of the said Baithak of Muhammad Akhtar (PW-4) in the scaled site plan of the place of occurrence (Exh.PJ) as prepared by Muhammad Aslam Patwari (PW-5) and the rough site plan of the place of occurrence (Exh.PM) as prepared by Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case, which proved that no such house/Dera/Baithak existed at or around the place of occurrence and therefore the same was not reflected in the said site plans (Exh.PJ and Exh.PM), means that both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) made a false claim as to the place of their presence at the time of occurrence.

Moreover, both Muhammad Aslam Patwari (PW-5) and Shamas-ud-Din, SI (PW-7) , the Investigating Officer of the case, admitted during cross- examination that they had not mentioned the names of the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) in the site plans (Exh.PJ and Exh.PM) prepared by them. Muhammad Aslam Patwari (PW-5) during cross-examination stated as under:- “I prepared the scaled site plan according to the instructions given to me by the police and that is why the names of any of the accused, complainant and witnesses are not mentioned in it. ” Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case, during cross-examination stated as under:-

“It is correct that site plan Ex.PM does not contain the name of any of the witnesses. It is correct that at all the points mentioned in Ex.PM, the name of none of the accused is mentioned in them”

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Another aspect drawing our grave concern is the fact that both the prosecution witnesses made blatant improvements to their previous statements with regard to the place of their presence at the time of occurrence. It has been brought on record that neither in the oral statement (Exh.PC) of Khuda Bakhsh (PW-3) nor in the statement recorded under section 161 Cr.P.C. (Exh.DA) it was recorded that both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were present inside the Baithak of Muhammad Akhtar (PW-4) when they witnessed the occurrence. Khuda Bakhsh (PW-3) was cross-examined in this regard and the learned trial court observed as under:- “I do not remember whether in my application Ex.PC I had mentioned that I alongwith Asghar and Akhtar was sitting at a nearby 'dera'.

Confronted with Ex.PC wherein it is not so recorded. ”(emphasis supplied).

Similarly, Muhammad Akhtar (PW-4) was also duly confronted with his previous statement with regard to the place of presence of the witnesses prior to the occurrence and the learned trial court observed as under:- “I had got recorded my statement to the police. In my statement recorded u/s 161 Cr.P.C I had mentioned that Khuda Bakhsh, Asghar and I were sitting outside my 'Baithak'. Confronted with Ex.DA wherein the word Batihak is not recorded. ”(emphasis supplied)

The above referred portion of the cross-examination of the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) clearly reflects that both the prosecution witnesses were conscious of the fact that they were not the residents of anywhere at or around the place of

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occurrence, therefore, they introduced the above mentioned blatant improvement in their statements that they were present inside the Baithak of Muhammad Akhtar (PW-4) at the time of occurrence. As mentioned above, the fact that Muhammad Akhtar (PW-4) had any house/Dera/Baithak or even any land near the place of occurrence, was not proved. The said improvements made by Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statements, Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) 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 Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) cannot be relied upon on being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of

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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 Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) 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”.

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.”

Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Amin Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- “11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of

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firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution.

13.From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence.”

Furthermore, as mentioned above, according to the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) they had been sitting inside the Baithak of Muhammad Akhtar (PW-4) when the occurrence took place , however the Investigating Officer of the case did not observe or took into possession any cot or chairs which were used by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) to sit on. Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case, visited the place of occurrence , after the occurrence and remained there for a considerable time. During the course of his stay at the place of occurrence, Shamas-ud-Din, SI (PW-7), the Investigating

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Officer of the case, did not take into possession the cots or chairs which were used by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) alongwith the other recoveries, though there was no occasion for the said chairs or the cots, which were allegedly used by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) to sit, not to have been present or not being taken into possession by the Investigating Officer or not being observed as present during his visit at the place of occurrence, if the same were available. Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case, even was not shown the house/Dera/Baithak of Muhammad Akhtar (PW-

4)during his stay at the place of occurrence or even during the course of investigation, so as to prove that such a house or the Baithak or the Dera of Muhammad Akhtar (PW-4) existed where the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were sitting. When the prosecution witnesses failed to prove the existence of such a house or the Baithak or the Dera of Muhammad Akhtar (PW-4) where the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were sitting at the time of occurrence , we cannot presume its existence . In this manner, both the eye witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) failed miserably to establish their presence near the place of occurrence, at the time of occurrence . It was proved that both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were not the residents of anywhere near the place of occurrence . In this manner, both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) can be validly termed as “chance witnesses”

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and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence , at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same however their utter failure to prove the said facts has vitiated our trust in Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW- 4). In this respect, reliance is placed on the case of “Muhammad Rafiq v.

State” (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of “Usman alias Kaloo v. State” (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant Ghulam Farid and Manzoor Ahmed witnesses in the said case who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, declared chance witnesses and declared not worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR

14.The perusal of the prosecution evidence also reveals the presence of contradiction between the ocular account of the occurrence as narrated by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) and the medical evidence as furnished by Dr.

Muhammad Nauman (PW-10). The inconsistency in the ocular account of

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the occurrence and the medical evidence is of such magnitude that it has resulted in proving that the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) had not witnessed the occurrence and it was for that reason that the flaw cropped up. Both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) stated that the deceased was fired at from very close proximity. Khuda Bakhsh (PW-3) in his statement before the learned trial court stated as under: -

“Fayaz by climbing on the frame, fixed behind the tractor, fired upon Ghulam Yaseen which hit on his neck.

When Ghulam Yaseen received the fire shot, he was sitting on the tractor.

When the accused climbed up the frame of the tractor, it was moving very slowly as there were three humps on the local road. When deceased Ghulam Yasssen received fire shot, the accused was at a distance of 20 to 25 feet from the accused. Volunteered that only one of the accused had climbed up the frame.”

Muhammad Akhtar (PW-4) , in his statement before the learned trial court stated as under: -

“Then Fayaz after climbing the tractor, fired upon Ghulam Yaseen, in our view, which hit in his neck and went through and through.

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Accused Fayaz was at a distance of 3 to 4 feet from the deceased Ghulam Yaseen when the fire was shot. ”(emphasis supplied) Contrary to this claim of the prosecution witnesses that the firing had been made by the appellant from a distance of only about three/four feet, Dr.

Muhammad Nauman (PW-10), who conducted the post mortem examination of the dead body of the deceased, did not observe the presence of any blackening on any of the wounds observed by him on the dead body of the deceased namely Ghulam Yasin son of Khuda Bakhsh. Dr.

Muhammad Nauman (PW-10) in his statement before the learned trial court clearly stated that no blackening or tattooing around the wounds was observed by him on any of the wounds present on the dead body of the deceased namely Ghulam Yasin son of Khuda Bakhsh. Had the firing at the deceased namely Ghulam Yasin son of Khuda Bakhsh been made from such a short distance as suggested by the prosecution witnesses then blackening on the wounds must have been observed by Dr. Muhammad Nauman (PW-10) . Dr. Muhammad Nauman (PW-10) in his statement before the learned trial court stated as under:-

“The blackening/tattooing on the wound occur (sic) when the fire shot is made from within the distance of about four feet. It is correct entrance wound of deceased Ghulam Yaseen was on the left side of the neck.

Volunteered that the exit wound was on the right side. I cannot say that the assailant should have been on the left side of the deceased. Since there was no blackening or tattooing on the wound, it can be said that the assailant had fired upon the deceased from the distance of more than 6 feet.”(emphasis supplied)

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Dr. Muhammad Nauman (PW-10) was not cross-examined by the prosecution and his testimony with regard to his opinion regarding observation of no blackening around the entry wound remained unchallenged. The prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) very well knew that the observations and opinion of Dr. Muhammad Nauman (PW-10) were in themselves sufficient to bring down the whole edifice of the prosecution case as narrated by the witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4), however, even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinion of Dr.

Muhammad Nauman (PW-10) or if the same could not be challenged, then to explain the same. We have noted that during the course of trial the prosecution witnesses failed to explain as to why was there such a huge, gaping and all consuming, inexplicable and baffling error in the statements of the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4). Despite repeated queries, both the learned Deputy Prosecutor General and the learned counsel for the complainant/respondent No.2 have failed to explain the said discrepancy in the prosecution evidence. In this manner, an irreconcilable and a distressing contradiction has cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) and the medical evidence as furnished by Dr.

Muhammad Nauman (PW-10). This contradiction in the ocular account of the occurrence, as narrated by Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) and the medical evidence as furnished by Dr. Muhammad Nauman (PW-10) clearly establishes that the prosecution witnesses namely

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Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) miserably failed to prove their presence at the place of occurrence , at the time of occurrence.

Had the witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) seen the occurrence then there did not exist any possibility that they would have fallen into error. In such a case, the ocular account is to be rejected as being contrary to the medical evidence. Reliance is placed on Barkat Ali Vs. Muhamad Asif and others (2007 SCMR 1812) wherein it has been observed as infra: -

“It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence. See Mardan Ali’s case 1980 SCMR 889, Bagh Ali’s case 1983 SCMR 1292, Sain Dad’s case 1972 SCMR 74 and Zardshad’s case 1969 SCMR 644.”

Reliance is placed on Mian SOHAIL AHMED and othersVs. The State and others (2019 S C M R 956) wherein it has been observed as infra: - “3. Site-plan (Ex-PL) shows one of the appellants to be standing next to the driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely to cause blackening but the medical evidence (Post-mortem examination reports Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again raising a suspicion that the events may have unfolded differently than as reported.”

We have also noted that the prosecution witness namely Khuda Bakhsh (PW-3) also tried to bring his statement in line with the medical evidence after realizing another error in his oral statement (Exh.PC). According to the oral statement (Exh.PC) of Khuda Bakhsh (PW-3), the deceased had been fired from the back, and the said fire had hit the deceased on the back of the neck and exited from the front. When the post mortem examination of Ghulam Yasin son of Khuda Bakhsh (deceased) was conducted by Dr.

Muhammad Nauman (PW-10) , he observed that the entry wound was not

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on the back of the neck of Ghulam Yasin son of Khuda Bakhsh (deceased) rather the same was present on its left side and the exit wound was present on the right side of the neck of Ghulam Yasin son of Khuda Bakhsh (deceased). Being conscious of this flaw, the prosecution witness namely Khuda Bakhsh (PW-3) improved his statement, however, was duly confronted. The learned trial court during the cross-examination of Khuda Bakhsh (PW-3) observed as under:-

“I do not remember whether I had mentioned in my application Ex.PC that the fire hit upon the deceased's neck and made its exit from front of the neck, Confronted with Ex.PC wherein it is so recorded. ”

15.We have also noted with grave concern that according to the statements of the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4), Ghulam Yasin son of Khuda Bakhsh (deceased) had received the injuries while he was driving the tractor (P-7), however according to Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case , no blood was collected from anywhere from the tractor (P-7).

Khuda Bakhsh (PW-3) during cross-examination stated as under:- “When Ghulam Yaseen received the fire shot, he was sitting on the tractor. ”

A similar statement was made by Muhammad Akhtar (PW-4), who stated as under:-

“When Ghulam Yaseen has, received fire shot, he was lying on the seat of the tractor and we helped him lie down”(emphasis supplied) However, Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case, during cross-examination stated as under:-

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“It is correct that I did not collect any blood stains from the tractor which I took into custody. It is correct that I have not mentioned in inspection note and recovery memo Ex.PF that there were blood drops or blood stains or the tractor or on that point.”

Had Ghulam Yasin son of Khuda Bakhsh (deceased) received the injuries while driving the tractor (P-7) as suggested by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) then his blood would have necessarily been observed as being present on the said tractor (P-7) by Shamas-ud-Din, SI (PW-7) , the Investigating Officer of the case , however, the same was not , which fact clearly proves that the occurrence had not taken place in the manner as stated by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4), in turn proving that the said witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were not present at the place of occurrence , at the time of occurrence and had not witnessed the same.

16.We have also noted that both the witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) claimed that after the occurrence, they held Ghulam Yasin son of Khuda Bakhsh (deceased) , who remained alive at the place of occurrence and was taken to the hospital in an injured condition, and while they were holding the injured, their clothes were stained with blood. Khuda Bakhsh (PW-3) during cross-examination stated as under:-

“The clothes of Asghar and mine received minor blood stains which we did not hand over to the police officer..”

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Similarly, Muhammad Akhtar (PW-4) during cross-examination stated as under:-

“When we helped alight Ghulam Yaseen from the tractor, our clothes also received blood stains which the police did not take into possession from us.”.

Shamas-ud-Din, SI (PW-7), Investigating Officer of the case, did not take any such blood-stained clothes of Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) in possession during the investigation of the case nor the said witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) admittedly produced their clothes either before the Investigating Officer of the case or before the learned trial court. Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) which were stained with blood, into possession and if these were sent to the Punjab Forensic Science Agency, Lahore for examination and grouping with that of the blood- stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) . This omission strikes at the roots of the case of the prosecution and lays bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence, at the time of occurrence. Both these witnesses were under a duty to provide a convincing explanation, appealing to a prudent mind, of their presence at the crime spot otherwise their testimony has to be declared questionable and unacceptable. Guidance is sought from the principle enunciated by the

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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 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.”

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17.Another aspect of the case raising our doubt over the presence of the prosecution witness namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) at the place of occurrence, at the time of occurrence is the fact that the oral statement (Exh.PC) of Khuda Bakhsh (PW-3) was recorded on 23.07.2016 at 11.10 pm at the RHC Mubarakpur by Mulazim Hussain SI ( not produced due to being paralyzed ), when the occurrence had taken place at Maghribwela (determined to be about 7.30 pm) on 23.07.2016. The formal FIR (Exh.PA) was not registered till 11.40 p.m.

The prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) being mindful of this delay in reporting the matter to the police and the recording of the oral statement (Exh.PC) of Khuda Bakhsh (PW-3) , made a failing attempt to explain the same. The prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) initially claimed that after the occurrence they proceeded to BV Hospital Bahawalpur to get Ghulam Yasin son of Khuda Bakhsh (then injured later deceased) treated , however when they arrived at the BV Hospital Bahawalpur , Ghulam Yasin son of Khuda Bakhsh (deceased) had already died, hence, they returned to RHC Mubarakpur. According to the statement of Khuda Bakhsh (PW-3), BV Hospital was at a distance of as much as forty kilometres from the place of occurrence, however, the RHC Mubarakpur was only at a distance of three kilometres from the place of occurrence. Khuda Bakhsh (PW-3) during cross-examination stated as under:-

“The RHC Mubarakpur is situated at a distance of three kilometers from the place of occurrence and the police station is at a distance of about 25 kilometers. BV.Hospital is at a distance of 40 kilometers from the place

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of occurrence. THQ Hospital Ahmadpur East is at a distance of 25/30 kilometers from the place of occurrence. ”

It has not been explained by Khuda Bakhsh (PW-3) as to why Ghulam Yasin son of Khuda Bakhsh (deceased) was taken to the BV. Hospital , which hospital was at a distance of as many as forty kilometres from the place of occurrence when two other hospitals, namely RHC Mubarakpur and THQ Hospital Ahmadpur East, were situated much nearer. This conduct of the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) is quite contrary to the natural course of events, hence, cannot be believed. Moreover, according to Khuda Bakhsh (PW-3) they arrived at the BV Hospital at about 8.00/8.30 p.m and when Ghulam Yasin son of Khuda Bakhsh (deceased) was declared dead , they returned not to the place of occurrence, not to their houses, not to the Police Station but inexplicably returned to RHC Mubarakpur for no reason at all.

Both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) also admitted that they never reported the occurrence to the police and the police arrived at the RHC Mubarakpur on its own. Khuda Bakhsh (PW-3) during cross-examination stated as under:- “I did not pass on information of the occurrence at the police station.

When we reached RHC Mubarakpur, some of the police officials were present there and some of them came afterwards. The police met me at about 10.00/10.30 p.m. A constable had drafted the application Ex. PC for the registration of case We came by ambulance from B.V.Hospital Bahawalpur to RHC Mubarakpur.”(emphasis supplied)

Muhammad Akhtar (PW-4) during cross-examination stated as under:-

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“I did not make any phone call as my phone had fallen. Mobile phone of Asghar had also fell down. We had passed on the information to the police when we had returned to RHC Mubarakpur. I do not know who had gone to police station to give information of the occurrence. The police reached after 5 to 10 minutes when we had returned from B.V.Hosptial to RHC Mubarakpur. We had returned from B.V.Hospital Bahawalpur at about 9.00p.m. A police official had drafted the complaint Ex.PC.”(emphasis supplied)

The above referred portion of the cross-examination of both the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) not only discloses the fact that the occurrence was not reported to the police till the arrival of the witnesses at the RHC Mubarakpur but also that even after the prosecution witnesses had arrived at the RHC Mubarakpur, it took another two hours to formulate the oral statement (Exh.PC) of Khuda Bakhsh (PW-3). It was also brought on record that even at the time of proceeding to the BV Hospital Bahawalpur, the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were indeed accompanied by police officials. Khuda Bakhsh (PW-3) during cross-examination stated as under:-

“When we had reached B.V.Hospital, a constable was with us” If the police was already accompanying Khuda Bakhsh (PW-3) to the BV Hospital then there was no reason for not recording the oral statement (Exh.PC) of Khuda Bakhsh (PW-3) till 11.10 p.m. In this case, the ocular account furnished, is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less legal one, because, the witnesses never reported the matter to the police for as many as three and a half

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hours. This inordinate delay in reporting the matter conclusively proves that the oral statement (Exh.PC) of Khuda Bakhsh (PW-3) and the formal F.I.R (Exh.PA) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival. As many as three and half hours were taken to invent a false and dishonest narrative of the oral statement (Exh.PC) of Khuda Bakhsh (PW-3). Besides, Shamas-ud-Din,SI (PW-7), the Investigating Officer of the case , further detailed facts which proved that the oral statement (Exh.PC) of Khuda Bakhsh (PW-3) was recorded after much consultation and brooding over the matter. Shamas-ud-Din, SI (PW-7) during cross-examination stated that Asim Razzaq, ASI presented an application to the Doctors at the BV Hospital Bahawalpur for recording the statement of Ghulam Yasin son of Khuda Bakhsh (deceased) , who then was in an injured condition and the said application had been presented as early as at 8.05 p.m. Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case , during cross-examination stated as under:- “It is correct that Asim Razaq ASI presented that application to the doctor at B.V.Hospital Bahawalpur. Volunteered that Asim Razaq ASI had accompanied the dead body from B.V.Hospital to RHC Mubarakpur. I did not dispatch Asim Razaq ASI alongwithn injured to B.V.Hospital Bahawalpur. It is to correct that the doctor on that application mentioned that the dead body was received at 8.05 p.m and so the same returned to Asim Razaq ASI.”(emphasis supplied)

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The above referred portion of cross-examination of Shamas-ud-Din, SI (PW-7) , the Investigating Officer of the case reflects that Ghulam Yasin son of Khuda Bakhsh (deceased) was taken to the BV Hospital Bahawalpur by Asim Razaq, ASI and not by the prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) . The scrutiny of the statements of the prosecution witnesses reveals that the oral statement (Exh.PC) of Khuda Bakhsh (PW-3) 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 their absence at the time of occurrence , at the place of occurrence. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:- “As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrence at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m.

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

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

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

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

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

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

Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of “G. M. NIAZ Vs. The State” (2018 SCMR 506), Abdul Jabbar and another Vs. The State (2019 S C M R 129) and

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Muhammad Shafi alias Kuddoo Vs. The State and others (2019 S C M R

18.We have also noted with disquiet that despite the fact that the occurrence took place at Maghribwela (determined to be about 7.30 pm) on 23.07.2016 , the postmortem examination on the person of the deceased was conducted after much delay. According to Dr. Muhammad Nauman (PW-10), he conducted the post mortem examination of the dead body of the deceased namely Ghulam Yasin son of Khuda Bakhsh (deceased) at 08.00 a.m on 24.07.2016 i.e. after 12 hours of the occurrence and after 08 hours of the registration of the formal F.I.R (Exh.PA). Dr. Muhammad Nauman (PW-10), who conducted the post mortem examination of the dead body of Ghulam Yasin son of Khuda Bakhsh (deceased) and prepared the post mortem examination report (Exh. PO), gave the time between death and post mortem examination as being twelve hours. No explanation was offered to justify the said delay in conducting the post mortem examination.

This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellant 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.

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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:

“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

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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.”

19.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 stated by Khuda Bakhsh (PW-3) was that the accused had purchased water from Ghulam Yasin son of Khuda Bakhsh (deceased) and on being demanded the price of the same by Ghulam Yasin son of Khuda Bakhsh (deceased) on 22.07.2016, a verbal altercation took place between the accused and the Ghulam Yasin son of Khuda Bakhsh (deceased). We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. The prosecution witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) did not give any evidence as to what volume of water was purchased by the accused from Ghulam Yasin son of Khuda Bakhsh (deceased) and what price of the same had been demanded. Furthermore, Khuda Bakhsh (PW-3) during cross-examination admitted that he was not present on 22.07.2016 when Ghulam Yasin son of Khuda Bakhsh (deceased) had demanded the price of the water purchased by the accused . Khuda Bakhsh (PW-3) during cross- examination stated as under:-

“Ghulam Yaseen alone went to demand the rent money from accused Allah Ditta. ”

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Furthermore, Shamas-ud-Din, SI (PW-7), the Investigating Officer of the case during cross-examination admitted that he did not collect any evidence with regard to the alleged motive of the occurrence. Shamas-ud-Din, SI (PW-7) , the Investigating Officer of the case , during cross-examination admitted as under:-

“I did not record the statements u/s 161 Cr.P.C of any witness with specific regard to motive.”

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.”

It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.

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20.The learned Deputy Prosecutor General and the learned counsel for the complainant have submitted that the recovery of the pistol (P-8) from the appellant also offered corroboration of the ocular account, however, have admitted that according to the report of Punjab Forensic Science Agency, Lahore (Exh.PR) , the empties recovered from the place of occurrence (P-4,P-5 and P-6) and the pistol (P-8) recovered from the possession of the appellant were analyzed and it was determined that the empties(P-4,P-5 and P-6) had not been fired in the pistol (P-8). The report of the Punjab Forensic Science Agency, Lahore (Exh.PR) further strengthens the claim of the appellant that he had been involved in the occurrence wrongly.

21.We have already mentioned that along with the appellant his co- accused namely Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta (all since acquitted) were also tried.

The learned trial court acquitted the above mentioned Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta, the co-accused of the appellant. We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co- accused of the appellant, who have stated that the acquittal of Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta (all since acquitted) had attained finality as the Criminal Appeal No.

110 of 2018 lodged by Khuda Bakhsh (PW-3) assailing the acquittal of Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta (all since acquitted) was dismissed by this Court vide order

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dated 28.10.2020. The question for determination before this Court now is that whether the evidence of the prosecution witnesses which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." If a witness is not coming out with the whole truth, then his evidence is liable to be discarded as a whole, meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: - “The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of

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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.”

Both the witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) were found to have made false statements with regard to Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta (all since acquitted), the co-accused of the appellant. We are unable to find any independent corroboration of the prosecution case against the appellant. We find no reason to believe the statements of the witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) with regard to the appellant in absence of any reason to do so. This lying on part of the witnesses namely Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-4) with regard to Muhammad Amir, Muhammad Ijaz, Sajjad Ahmad, Muhammad Dilshad and Allah Ditta (all since acquitted), the co- accused of the appellant, has vitiated our trust in them. We are thus satisfied that the evidence of Khuda Bakhsh (PW-3) and Muhammad Akhtar (PW-

Crl. Appeal No. 70 of 2018 38

4)has no worth and deserves outright rejection. Reliance in this regard is placed on the cases of “Tariq Vs. The State” (2017 S C M R 1672) , MUNIR AHMED and others Vs. the State and others (2019 S C M R 2006) and SAFDAR ABBAS and others Versus The STATE and others (2020 S C M

R 219) .

22.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Fayyaz son of Allah Ditta, 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 doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

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

Crl. Appeal No. 70 of 2018 39

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

23.For what has been discussed above, the Criminal Appeal No.70 of 2018 lodged by Muhammad Fayyaz son of Allah Ditta (appellant) is allowed and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 25.01.2018 are hereby set-aside. Muhammad Fayyaz son of Allah Ditta (appellant) is ordered to be acquitted by extending him the benefit of doubt. Muhammad Fayyaz son of Allah Ditta (appellant) is in custody and is directed to be released forthwith if not required in any other case.

24.Murder Reference No.04 of 2018 is answered in Negative and the death sentence awarded to Muhammad Fayyaz son of Allah Ditta is Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

JUDGE JUDGE