The State. vs Wazeer etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.17 of 2019 (The State Vs. 1. Wazeer

2.Muhammad Ali)

Criminal Appeal No. 489 of 2019 (Wazeer and another Vs. The State and another)

Petition for Special Leave to Appeal No.78 of 2019.

(Muhammad Asghar Vs. The State and two others.)

JUDGMENT

Date of hearing: 15.02.2022.

Appellants by: Mr. Muhammad Sharif Bhatti, Advocate.

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

Complainant by: Syed Aasim Ali Bukhari, Advocate.

SADIQ MAHMUD KHURRAM, J. –Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad (convicts) were tried along with Jafar son of Mukhtiar Ahmad and Sabir Hussain son of Rab Nawaz ( the co-accused of the convicts, both since acquitted) by the learned Additional Sessions Judge/ Model Criminal Trial Court, Khanpur in the case instituted upon the private complaint titled “Muhammad Asghar Vs. Wazir and three others” (relating to FIR No. 49 of 2017 dated 06.02.2017 registered at Police Station Saddar Khanpur District Rahim Yar Khan) in respect of offences under sections 302,

Criminal Appeal No. 489 of 2019 Petition for Special Leave to Appeal No.78 of 2019.

311, 148 and 149 PPC for committing the Qatl-i-Amd of Muhammad Ehsan son of Muhammad Asghar (deceased) and Tahira Bibi daughter of Ibrahim (deceased) . The learned trial court vide judgment dated 19.07.2019, convicted Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad (convicts) and sentenced them as infra:

Wazeer son of Nazir Ahmad :

Death on two counts under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Tahira Bibi daughter of Ibrahim (deceased) and Muhammad Ehsan son of Muhammad Asghar (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of both the deceased namely Muhammad Ehsan son of Muhammad Asghar (deceased) and Tahira Bibi daughter of Ibrahim; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment for each default. The convict was ordered to be hanged by his neck till dead.

Muhammad Ali son of Mukhtiar Ahmad:

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

ii)Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Tahira Bibi daughter of Ibrahim (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased namely Tahira Bibi daughter of Ibrahim; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

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

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Jafar son of Mukhtiar Ahmad and Sabir Hussain son of Rab Nawaz, the co-accused of the convicts, were acquitted by the learned trial court.

2.Feeling aggrieved, Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad (convicts) lodged the Criminal Appeal No.489 of 2019 assailing their convictions and sentences. The learned trial court submitted Murder Reference No.17 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad. The complainant of the case namely Muhammad Asghar filed Petition for Special Leave to Appeal No.78 of 2019 seeking permission to file an appeal against the acquittal of Jafar son of Mukhtiar Ahmad and Sabir Hussain son of Rab Nawaz (the co-accused of the convicts, both since acquitted). We intend to dispose of the Criminal Appeal No. 489 of 2019, Murder Reference No.17 of 2019 and Petition for Special Leave to Appeal No.78 of 2019 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as stated by Muhammad Asghar (PW-1), the complainant of the case, are as under:- “I am farmer and I owned 5/6 Tractor Trolleys and used those Tractor Trolleys for supply of sand and soil to brick-kilns, for that purpose I engaged labour and my son Ehsan (deceased) used to check the labour above mentioned and oftenly go to TIBBA Chak. No.10/P to check the labour. Accused Wazeer present before this Court had suspicion of illicit relations with his wife Mst.Tahira deceased with my son Ehsan. Sometime prior to 06.2.2017, Wazeer accused in the presence of Jalil Ahmad and Muhammad Naeem PWs, informed me that my son Ehsan deceased had illicit relations with his wife, if my son Ehsan did not give up that activity, he would suffer the consequences. On 06.2.2017, my son Ehsan deceased while riding on motorcycle bearing registration No. RNQ/403 went to Chak No.10/P to check the labour, I along with Jalil Ahmad and Muhammad Naeem PW followed him on motorcycle. At about MAGHRIB time, when we reached near damaged Pulli

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(bridge), we saw that Mst.Tahira Bibi deceased was standing on the road, who indicated Ehsan deceased to stop. As soon as my son Ehsan stopped, meanwhile, Muhammad Ali armed with pistol, Wazeer armed with TOKA, Jafar, Sabir accused present before Court and two unknown person armed with TOKAS, emerged from nearby/adjacent sugarcane crop with their common object. Muhammad Ali accused fired at Ehsan my son with his pistol which hit on his chest and he fell down in injured condition. Meanwhile, Wazeer accused inflicted TOKA blows on the person of Ehsan. Soon after Wazeer accused inflicted TOKA blows on the neck of his wife Tahira Bibi. Sabir, Jafar and two unknown accused persons inflicted TOKA blows on the back side of head of Ehsan deceased and on the left side of head of Tahira Bibi deceased. Accused persons threatened us if we come forward, we would face the same consequences. On hue and cry, people of the locality started to attracted (sic) there while seeing them accused persons while brandishing their respective weapons, fled away in the nearby sugarcane crop, who could not be traced out inspite of search. Police reached at the spot. I submitted application Ex.PA to the Thanedar for registration of case which bears my signature. IO visited the place of occurrence, inspected the place of occurrence, took the dead bodies into his possession for postmortem examination. IO secured blood stained soil from the of respective place of occurrence, took into his possession empty of crime weapon (pistol), Ear Rings of deceased Tahira Bibi, Shoes of deceased persons, Motorcycle registration No.403/RNQ of Ehsan deceased.

IO did not investigate my case impartially and he in connivance with accused persons Sabir and Jafar found them not involved in this case. To the extent of Sabir and Jafar, the investigation by the IO is not transparent. I had left no other option but to file this private complaint Ex.PB which bears my signature. I and PWs with our own eyes witnessed Jafar and Sabir while inflicting TOKA blows on the person of Tahira Bibi and Ehsan. Accused persons are real culprits, they be punished as per law.”

4.The accused were summoned to face trial in the case instituted upon the private complaint titled “Muhammad Asghar Vs. Wazir and three others” (relating to FIR No. 49 of 2017 dated 06.02.2017 registered at Police Station Saddar Khanpur District Rahim Yar Khan) in respect of offences under sections 302, 311, 148 and 149 PPC for committing the Qatl-i-Amd of Muhammad Ehsan son of Muhammad Asghar (deceased) and Tahira Bibi daughter of Ibrahim (deceased). The learned trial court framed the charge against the

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accused on 18.12.2017, to which the accused pleaded not guilty and claimed trial.

5.The complainant of the case in order to prove its case got recorded statements of as many as twelve witnesses. The ocular account of the case was furnished by Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6). Muhammad Tariq, ASI (PW-3) stated that on 06.02.2017, he recorded the formal F.I.R (Exh.PA/1). Sami Ullah 2000/C (PW-4) stated that on 06.02.2017 the Investigating Officer of the case handed over to him the dead bodies of the deceased for escorting them to the hospital and he also received the last worn clothes of both the deceased from the Medical Officers after the post mortem examinations of the dead bodies of the deceased. Jamil Ahmad, Patwari Halqa (PW-7) prepared the scaled site plan of the place of occurrence (Exh.PK). Shahzad Ahmad (PW-8) stated that on 01.04.2017 the appellant namely Wazeer got recovered his blood-stained clothes (P-12, P-13 and P-14) and a Toka stained with blood and on 02.04.2017 the appellant namely Muhammad Ali got recovered the pistol (P-16) having five live bullets (P-17/1- 5). Ibrar Hussain, ASI (PW-9) investigated the case on 06.02.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Iftikhar Ahmad 429/HC (PW-11) stated that on 06.02.2017 Amjad Hussain, SI (CW-2), the Investigating Officer of the case, handed over to him three sealed parcels said to contain blood stained earth and an empty recovered from the place of occurrence and on 15.02.2017 he handed over the said three sealed parcels to Ghulam Mohay ud Din, ASI (PW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore . Iftikhar Ahmad 429/HC (PW-11) further stated that on 01.04.2017

Criminal Appeal No. 489 of 2019 Petition for Special Leave to Appeal No.78 of 2019.

Amjad Hussain, SI (CW-2), the Investigating Officer of the case, handed over to him two sealed parcels said to contain clothes and a Toka and on 02.04.2017 Amjad Hussain, SI (CW-2), the Investigating Officer of the case, handed over to him a sealed parcel said to contain a pistol which all the three sealed parcels he handed over to Amjad Hussain, SI (CW-2), the Investigating Officer of the case, for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore.

6.The learned trial court also examined as many as two witnesses as court witnesses. Abbas Akhtar, DSP (CW-1) investigated the case on 26.05.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Amjad Hussain, SI (CW-2), the Investigating Officer of the case, investigated the case from 06.02.2017 till 26.05.2017, arrested the appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad on 29.03.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

7.The complainant also got Dr. Tariq Aziz (PW-10) examined who on 06.02.2017 was posted as Senior Medical Officer at THQ hospital Khanpur and on the same day(actually being 07.02.2017at 12:00 a.m.) conducted the post mortem examination of the dead body of the deceased namely Muhammad Ehsan son of Muhammad Asghar. Dr. Tariq Aziz (PW-10), on examining the dead body of the deceased namely Muhammad Ehsan son of Muhammad Asghar, observed as under:-

“DESCRIPTION OF INJURY (INCLUDING FINDING ON

DISSECTION):

1.There was incised wound “W” shape 4cm x 6 cm looking made by sharp and heavy weapon.

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2.There was incised pinna of left ear with incised neck from behind measuring about 12cm x 2.5cm. Wound cutting neck apart leaving only the point of neck area till hyoid bone region, also causing heavy bleeding and hemorrhage.

3.There is wound at mid epigastrium 1-2 cm away from midline left side, looking as an entry wound of fire arm. There is an exit wound at back of chest 1cm away from midline as well while entering the abdominal cavity, it ruptured the liver and stomach organs causing bleeding and hemorrhage.

4.There is minor wound on right hand index finger measuring 1cm x 1cm x skin deep.

5.There are two minor tiny wound on right knee measuring 0cm x 0.4cm x skin deep. Injuries are simple.

OPINION

After conducting the autopsy, I was of the opinion that deceased had died of hemorrhage and shock due to injury No. 1, 2, 3, 4 & 5. Injuries No.1 & 2 caused by sharp weapon and injury No.3 caused by fire arm, injuries No. 4 & 5 caused by blunt.

All these injuries are sufficient to cause death in ordinary course of nature.

Expected duration between death and post (about 7-hours) and probable duration between injury and death (immediately)”

The complainant also got Dr. Ayesha Anwar (PW-12) examined who on 06.02.2017 was posted as Woman Medical Officer at THQ hospital Khanpur and on the same day (actually being 07.02.2017at 12:00 a.m.) conducted the post mortem examination of the dead body of the deceased namely Tahira Bibi daughter of Ibrahim. Dr. Ayesha Anwar (PW-12) on examining the dead body of the deceased namely Tahira Bibi daughter of Ibrahim, observed as under:-

“ DESCRIPTION OF INJURY (INCLUDING FINDING ON

DISSECTION);

1.Neck and head are amputated at the level of shoulder, only tag of skin intact on right lateral side looking to be caused by sharpedge weapon.

2.Incised wound 3cm x 1cm skin deep on left parietal ear of head 8 cm away from left ear.

OPINION

Expected duration between injury and death instantaneous and probable duration between death and postmortem within 24-hours.

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FINAL OPINION:

After conducting the autopsy, I was of opinion that the deceased has died of the hemorrhage and shock due to injury No.1 & 2. These injuries were ante mortem and caused by sharp weapon. These injuries (especially injury No.1) was sufficient to cause death in ordinary course of nature.”

8.On 29.06.2019, the learned Deputy District Public Prosecutor gave up the witness namely Zafar Ullah as being unnecessary. On 13.07.2019, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore (Exh.PT) regarding the analysis of the pistol recovered from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the empty collected from the place of occurrence , the report of Punjab Forensic Science Agency, Lahore (Exh.

PV) regarding the analysis of the blood-stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh. PU) regarding the analysis of the Toka and clothes from the appellant namely Wazeer.

9.After the closure of prosecution evidence, the learned trial court examined the appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, each of them replied that they had been involved in the case falsely and were innocent.

The appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad opted not to get themselves examined under section 340(2) Cr.P.C, however, produced a sworn affidavit (Mark-B) of Nazir Hussain as evidence in their defence.

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10.On the conclusion of the trial, the learned Additional Sessions Judge/ Model Criminal Trial Court, Khanpur convicted and sentenced the appellants as referred to above.

11.The primary contention of the learned counsel for the appellants is that the whole case is fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statements of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) were not worthy of any reliance. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt.

12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant/respondent No.2 contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. They further argued that both the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6). They further argued that the recovery of the pistol (P-16) from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the recovery of the Toka from the appellant namely Wazeer son of Nazir Ahmad also

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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 innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant/respondent No.2 prayed for the rejection of appeals as lodged by the appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad.

13.We have heard the learned counsel for the appellants, 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 carefully.

14.According to the evidence produced by the prosecution during the course of the trial, the occurrence was witnessed by the three prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6). All the said three witnesses were not only related to each other but also with the deceased namely Muhammad Ehsan. The deceased Muhammad Ehsan was the real son of the prosecution witness namely Muhammad Asghar (PW-1), whereas the prosecution witness namely Jalil Ahmad (PW-2) admitted to being the cousin of Muhammad Asghar (PW-1) and the prosecution witness Muhammad Naeem (PW-6) admitted that Muhammad Asghar (PW-1) was his uncle. It was further disclosed by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) that they were residents of the same area and their houses were constructed near to each other. Muhammad Asghar (PW-1) during cross-examination explained as under:-

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“ Jalil Ahmad is my maternal cousin who is resident of Mad Bhoora.

Basti Mad Bhoora is at the distance of half kilometer from Adda Mad Bhoora and said Basti Mad Bhoora is on Eastern side of my house, Naeem s/o Akbar PW is my nephew. Naeem is also resident of Basti Mad Bhoora.

The inter se distance between the houses of PW Naeem and PW Jalil is about 1/1 acres”

Jalil Ahmad (PW-2) during cross-examination admitted as under:- “ Complainant is Muhammad Asghar is my cousin and BEHNOI.

Asghar is my cousin and BEHNOI and Ehsan deceased was my BHANJA.

PW Naeem is son of my cousin. Our Basti comprises of about 50 houses.

My house is in middle of the Basti. My shop is at a distance of 9/10 acres from my Basti. The house of Asghar complainant is situated at Mad Bhoora Adda and my house is in the Basti.Inter se distance between my house and house of Naeem is 1 1⁄2 acre.”

Muhammad Naeem (PW-6) , during cross-examination admitted as under:- “ Asghar complainant is my uncle and PW Jalil is my relative.”

It was also admitted by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) that the occurrence took place on a road that was crossing through the land of one

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Ghulam Rasool. Muhammad Asghar (PW-1) during cross-examination stated as under:-

“ According to my information the place of occurrence and in the surrounding of the place of occurrence, there is land owned by Ghulam Rasool”

During the course of cross-examination, it was also brought on record that the place of occurrence was at a distance of about one kilometre, a five minutes journey on a motorcycle, from the houses of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6). In this regard, Muhammad Asghar (PW-1) explained during cross- examination as under:-

“ On 06.2.2017, my son Ehsan left the house at 5:40/5:41 PM on motorcycle for Chak 10/P to check the labour at brick-kiln. Inmates of the house were in the house and my son left the house when we were present on the back side of our house. About one minute later, I also left the house on motorcycle for Chak 10/P. I could not reach Chak 10/P as the occurrence took place in the way. When I reached at the place of occurrence, it was about 5:45.PM. The place of occurrence is situated in the area of Mauza Mad Bhoora Chak 10/P.

Inter se distance between my house and place of occurrence is one kilometre”(emphasis supplied)

We have also perused the scaled site plan of the place of occurrence (Exh.

PK) as prepared by Jamil Ahmad, Patwari (PW-7) and the rough site plan of the place of occurrence (Exh. PQ) as prepared by Amjad Hussain, SI (CW-2),

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the Investigating Officer of the case, and find that in both the said site plans (Exh. PK and Exh. PQ) neither any house nor any place of business nor any place of work of any of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) has been marked. As all the three prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) were admittedly not the residents of any place near or around the place of occurrence and as the occurrence had taken place on a road lined on the sides by sugarcane crop at about Maghrib time, the presence of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6), at the place of occurrence, could not be termed, as in the normal course of events, therefore, the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) can be validly termed as “chance witnesses” 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. We have noted with grave concern that the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and that too at the very moment when the same was taking place. According to prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6), the complainant of the case namely Muhammad Asghar (PW-1) had a brickkiln constructed within the area of Chak No. 10/P and about 50-60 labourers were

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also employed there, working at the said brickkiln. It was further claimed by the prosecution witnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) that the deceased namely Muhammad Ehsan, the son of the complainant of the case namely Muhammad Asghar (PW-1), on the day of occurrence had proceeded to the said brickkiln constructed in Chak No. 10/P to check upon the labour, followed by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-

2)and Muhammad Naeem (PW-6) travelling on a motorcycle, when the deceased namely Muhammad Ehsan was stopped by Tahira Bibi, the other deceased and both were attacked by the accused. The reason given by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-

2)and Muhammad Naeem (PW-6) for their arrival at the place of occurrence, at the time of occurrence, was that they were following Muhammad Ehsan (deceased) to his travel to the brickkiln constructed in Chak 10/P. We have noted with grave concern that during the course of the investigation as well as during the course of trial no proof was given of the alleged fact that any brickkiln owned by Muhammad Asghar (PW-1) was constructed in Chak 10/P to which the deceased Muhammad Ehsan was travelling when he was attacked. It was admitted by all the relevant prosecution witnesses that no proof of existence of any such brickkiln was brought on record. In this regard, we have noticed that Muhammad Asghar (PW-1) admitted during cross- examination that he did not produce any witnesses to prove the reality of the brickkiln. Muhammad Asghar (PW-1) during cross-examination admitted as under:-

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“ I am owner of two brick-kilns which are situated in my own land in Mauza Mad-Bhoora and Mauza Mad Ilyas. We usually took Sand from Tibba Chak

10/P.

After the registration of the FIR I did not produce any person from my labour of brick-kiln or drivers of my Tractors before the I.O during the course of investigation regarding verification of my business of brik-kiln and carriage through Tractor Trolleys.”

Amjad Hussain, SI (CW-2), the Investigating Officer of the case, also admitted during cross-examination that Muhammad Asghar (PW-1), the complainant of the case, did not produce any proof that he had any brickkiln constructed in the area of Chak 10/P to which the deceased was travelling to when he was attacked. Amjad Hussain, SI (CW-2), the Investigating Officer of the case, during cross-examination admitted as under:- “It is correct that I have not investigated the ownership, possession of the tractors of the complainant as mentioned in the FIR nor I investigated the business/trade of loading and unloading of these tractors used for, by the complainant.

I have inquired about the factum mentioned in the FIR that deceased Ehsan used to check the labour schedule but the same I have not incorporated in my case diary nor any individual persons was investigated in this regard.”

In this manner, the very reason of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) for following the deceased could not be proved and the very

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foundation upon which the edifice of the prosecution case had been built stands shattered, bringing down the whole structure of the prosecution case.

It was essential for the prosecution to prove the fact that the deceased had gone to check on the labour employed by Muhammad Asghar (PW-1) at the brickkiln constructed in Chak 10/P, however, their failure in this regard entails the failure of the whole prosecution case. Even otherwise no plausible evidence was brought on record which necessitated that the deceased, at Maghrib time, proceeded to the brickkiln to check on the labour when the business for the day had already ended. Furthermore, it was claimed by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-

2)and Muhammad Naeem (PW-6) that they had gone to the place of occurrence on one motorcycle, however, during the course of the investigation as well as before the learned trial court, the said motorcycle allegedly used by the prosecution witnesses namely Muhammad Asghar (PW-1) , Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) to arrive at the place of occurrence was not produced. Amjad Hussain, SI (CW-2), 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, Amjad Hussain, SI (CW-2), the Investigating Officer of the case, did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) to arrive at the place of occurrence alongwith the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence if

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the same was available. The said motorcycle which was used by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-

2)and Muhammad Naeem (PW-6) was not even produced during the entire period of investigation nor was produced before the learned trial court. The non-production of the motorcycles used by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) to arrive at the place of occurrence and the failure of Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such motorcycle was available. Amjad Hussain, SI (CW-2), the Investigating Officer of the case, during cross-examination admitted as under:-

“I have not collected nor mentioned any description of to the motorcycle upon which the complainant and the PWS boarded and came to the place of occurrence. No other independent person, except complainant, joined the investigation nor stated that the deceased Muhammad Ehsan was boarded on motorcycle bearing No.RNQ- 403.”(emphasis supplied) .

The instant case was instituted upon the private complaint lodged by Muhammad Asghar (PW-1) and in that manner, he had all the opportunity to produce the evidence available with him. The failure of Muhammad Asghar (PW-1), the complainant of the case, to produce the motorcycle which was used by the prosecution witnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) to arrive at the place of occurrence means that had there been such motorcycle available, the same

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would necessarily have been produced before the learned trial court but it was not and it proves that a false claim was made by the prosecution witnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) that they had arrived at the place of occurrence on a motorcycle. The very inception of the prosecution case is therefore put in doubt. Reliance in this regard is placed on the case of “Muhammad Ali Vs.

The State” (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:-

“The Investigating Officer during the cross-examination has admitted that the 'Dala' was not present when he visited the spot and he had not taken into possession the said 'Dala' during investigation. So the story introduced by the eye-witnesses that they were travelling on the 'Dala' when the incident took place is not supported by any connecting material.”

In this manner, the eye witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) not only failed miserably to establish the reason for their arrival and presence at the place of occurrence, at the time of occurrence but also the mode through which they came to arrive at the place of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) while following Muhammad Ehsan (deceased), had proceeded to and arrived at the place of the occurrence and the failure to prove any reason for Muhammad Ehsan (deceased) to have proceeded to and subsequently arrive at the place of occurrence and the failure to prove the reason for the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil

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Ahmad (PW-2) and Muhammad Naeem (PW-6) to have proceeded to the place of occurrence and the failure to prove the mode through which they came to arrive at the place of occurrence, has vitiated our trust in Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) . 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 witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore the said eye- witnesses being, chance witnesses were declared not worthy of reliance.

Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724). Additionally, according to the witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6), they were in clear view, at a meagre distance, from the assailants and unarmed whereas the appellants were allegedly armed with weapons whereas their co-accused were also armed with weapons. Had the witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) been present in the view of the assailants, then they would not have been spared. Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and

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Muhammad Naeem (PW-6) even did not claim that they did not receive any injury because they had hidden or were not visible to the assailants. Blessing Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) with such an incredible consideration and showing them such favour is implausible and opposed to the natural behaviour of any accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellants and their co-accused did not cause any injury to them. Neither there was any dearth of weapons nor that of intent and opportunity on part of the appellants or their co-accused for not doing away with the witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6). In this scenario, it is hard to believe that the witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) would have been shown the courtesy of being not attacked at all when they should also have been the targets of the assailants. Such behaviour, on part of the accused as deposed by Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6), 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 Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6), as opposed to the common course of natural events and human

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conduct which proves that Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) did not witness the occurrence.

15.Another aspect of the prosecution case which raises doubt with regard to the presence of the prosecution witnesses namely Muhammad Asghar (PW-

1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) at the place of occurrence, at the time of occurrence is the fact that Amjad Hussain, SI (CW- 2), the Investigating Officer of the case, not only take into possession the shoes (P-5/1-2) of the deceased namely Muhammad Ehsan from the place of occurrence but also took into possession the sandals (P-4/1-2) of Tahira Bibi (deceased) from the place of occurrence. According to the prosecution witnesses, Muhammad Ehsan (deceased) was travelling on a motorcycle when Tahira Bibi (deceased) signalled him to stop whereafter Muhammad Ehsan (deceased) was attacked by the accused while he was sitting on the motorcycle and killed and similarly Tahira Bibi (deceased) was also murdered.

Muhammad Asghar (PW-1) during cross examination stated as under:- “As soon as deceased Tahira signaled to stop my son, Ehsan deceased stopped his motorcycle at the distance of 3/4 karams from Tahira Bibi and when he stopped his motorcycle, immediately the accused persons armed with weapons emerged from the field of sugarcane.

My son Ehsan did not park motorcycle on stand and he was sitting on motorcycle and he did not switch off the engine of his motorcycle.”(emphasis supplied)

The shoes (P-5/1-2) of the deceased namely Muhammad Ehsan and the sandals (P-4/1-2) of Tahira Bibi (deceased) were taken into possession by Amjad Hussain, SI (CW-2), the Investigating Officer of the case, in the presence of

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the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6). All the three prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) did not give any evidence as to how and in what circumstances both the deceased removed their footwear, which subsequently was found to be present at the place of occurrence by Amjad Hussain, SI (CW-2), the Investigating Officer of the case. According to the statement of Amjad Hussain, SI (CW-2), the Investigating Officer of the case, the shoes (P-5/1-2) of the deceased namely Muhammad Ehsan and the sandals (P-4/1-2) of Tahira Bibi (deceased) were present at a distance of one karam from the dead body of Muhammad Ehsan and three karams from the dead body of Tahira Bibi. Amjad Hussain, SI (CW-2), the Investigating Officer of the case, during cross- examination stated as under:-

“Pair of shoes (P5) was lying at the distance of 01-Karam from the dead body of deceased Ehsan. Pair of sandle (sic) (P4) of the deceased Tahira Bibi was lying 03-Karam away from her dead body. ”(emphasis supplied) .

The motive of the occurrence as stated by the prosecution witnesses was the suspicion of illicit relations between Muhammad Ehsan (deceased) and Tahir Bibi (deceased). With this aspect of the case in our minds, the presence of the shoes (P-5/1-2) of the deceased namely Muhammad Ehsan and the sandals (P- 4/1-2) of Tahira Bibi (deceased) away from their bodies is quite revealing of the actual circumstances in which both the deceased were done to death on a road ,lined on sides by sugarcane crop, at Maghrib time on 06.02.2017. The failure of the prosecution witnesses namely Muhammad Asghar (PW-1) ,Jalil

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Ahmad (PW-2) and Muhammad Naeem (PW-6) to explain the circumstances in which the shoes (P-5/1-2) of the deceased namely Muhammad Ehsan and the sandals (P-4/1-2) of Tahira Bibi (deceased) were found away from their bodies is also revealing of the fact that the prosecution witnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) had not witnessed the occurrence.

16.We have noted with serious anxiety that the ocular account of the occurrence as furnished by the prosecution witnesses namely Muhammad Asghar (PW-1) , Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) is inconsistent with the medical evidence as furnished by Dr.Tariq Aziz (PW-

10)and Dr. Ayesha Anwar (PW-12) and flawed beyond mending , resulting in disfiguring the complexion of the whole prosecution case beyond reparation and recognition. According to the statements of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) they had seen the appellant namely Wazeer son of Nazir Ahmad, along with Sabir Hussain, Jafar (both since acquitted) and two unknown accused, all armed with Tokas, inflicting various blows on the bodies of both the deceased. Muhammad Asghar (PW-1) in his statement before the learned trial court stated as under:-

“Meanwhile Wazeer inflicted TOKA blows on the person of Ehsan. Soon after Wazeer accused inflicted TOKA blows on the neck of his wife Tahira Bibi. Sabir, Jafar and two unknown accused persons inflicted TOKA blows on the back side of head of Ehsan deceased and on the left side of head of Tahira Bibi deceased

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Two unknown accused persons while leaving the place of occurrence inflicted TOKA blows on both the deceased”(emphasis supplied) Jalil Ahmad (PW-2) in his statement before the learned trial court stated as under:-

“Wazeer accused inflicted TOKA blows on the person of Ehsan deceased and soon after inflicted TOKA blows on the person of Tahira Bibi deceased.

Jafar, Sabir and two unknown accused persons inflicted TOKA blows on the back side of head of Ehsan deceased and on the left side of head of deceased Tahira Bibi”. (emphasis supplied)

Muhammad Naeem (PW-6) in his statement before the learned trial court stated as under:-

“...... and in the meanwhile Wazeer accused inflicted repeatedly TOKA blows on the neck of deceased Muhammad Ehsan, soon-after, Wazeer accused inflicted TOKA blows on the neck of his wife Tahira Bibi deceased.

Jafar Sabir and two unknown persons inflicted TOKA blows with their respective TOKAS which hit Ehsan deceased on the back of his head and to Tahira Bibi which hit on the left side of her head.”(emphasis supplied) A perusal of the above referred statements of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) reveals that according to them as many as five accused persons, each individually armed with a Toka, gave repeated blows with the same to both the deceased. Contrary to the above-referred statements of the eyewitnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6),Dr. Ayesha Anwar, (PW-12), who conducted the post mortem examination of the dead body of the deceased namely Tahira

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Bibi, observed only two injuries, caused by the use of a heavy sharp-edged weapon, present on the dead body of Tahira Bibi (deceased), out of which only one was present on the back of her head, whereas Dr.Tariq Aziz (PW- 10), who conducted the post mortem examination of the dead body of the deceased namely Muhammad Ehsan, observed only two injuries , caused by the use of a heavy sharp-edged weapon, present on the dead body of Muhammad Ehsan (deceased) whereas observed three minor injuries caused by use of a blunt weapon on the dead body of Muhammad Ehsan (deceased).

The said opinion and observations of Dr. Ayesha Anwar, (PW-12), that she observed only two injuries ,caused by the use of a heavy sharp-edged weapon, present on the dead body of Tahira Bibi (deceased) and the opinion and observations of Dr.Tariq Aziz (PW-10), that he observed only two injuries, caused by the use of a heavy sharp-edged weapon, present on the dead body of Muhammad Ehsan (deceased) whereas observed three minor injuries caused by use of a blunt weapon on the dead body of Muhammad Ehsan (deceased), were never challenged by the prosecution either during the investigation of the case or during the course of the trial. In this manner, the statements of the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) are in direct contradiction and in conflict with the opinion and observations of Dr. Ayesha Anwar, (PW-12) and the opinion and observations of Dr. Tariq Aziz (PW-10).

To reiterate the flawed prosecution narrative, according to the prosecution witnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) five accused persons, each armed with a Toka, gave repeated blows to the deceased, hitting both the deceased on their heads,

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whereas according to the observations and opinions of Dr. Ayesha Anwar, (PW-12) and Dr.Tariq Aziz (PW-10), both the deceased had only two injuries each present on their bodies which were caused by use of a heavy sharp-edged weapon and out of which only one was present on the back of the head of Tahira Bibi (deceased). The prosecution witnesses very well knew that the observations and opinions of Dr. Ayesha Anwar, (PW-12) and Dr.Tariq Aziz (PW-10), were in themselves sufficient to shatter the very foundation upon which the prosecution case was built, however, even being in knowledge of this fact, no effort was made by the prosecution witnesses to challenge the observations and opinions of Dr. Ayesha Anwar, (PW-12) and Dr.Tariq Aziz (PW-10) or if the same could not be challenged, then to explain the same.

Despite our repeated queries, the learned Deputy Prosecutor General and the learned counsel for the complainant have failed to explain the said discrepancy in the prosecution evidence. In this manner, irreconcilable and harrowing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) and the medical evidence as furnished by Dr. Ayesha Anwar, (PW-12) and Dr.Tariq Aziz (PW-10). The contradictions in the ocular account of the occurrence, as narrated by Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) and the medical evidence as furnished by Dr. Ayesha Anwar, (PW-12) and Dr.Tariq Aziz (PW-10), clearly establish that the prosecution miserably failed to prove the charge against the appellants. The contradictions in the ocular account of the occurrence, as narrated by Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) and the

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medical evidence, as furnished by Dr. Ayesha Anwar, (PW-12) and Dr.Tariq Aziz (PW-10), sounded the death knell for the prosecution case and proved to be the cause of its sad demise. Had the witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) seen the occurrence then there did not exist any possibility that they would fallen into error. The august Supreme Court of Pakistan in the case of “Muhammad Shafi alias Kuddoo vs. The State and others ” (2019 S C M R 1045) has held as under:-

“Ocular account is in conflict with medical evidence inasmuch as according to the crime report both the appellant, as well as, Abdul Razzaq, co-accused, are assigned one blow each to the deceased, whereas according to the initial medical examination, Medical Officer noted solitary injury on the head, its impact on the eye has been utilized by the witnesses to array the latter in the crime.”

Reliance is also placed on the case of “Muhammad Zaman vs. The State and others ” (2014 S C M R 749) wherein it has been held as under:- “The more so, when the total number of injuries found on the deceased as well as the injured could be caused by one or two L.G. Cartridges. The number of assailants in the circumstances of the case appears to have been exaggerated”

Reliance is placed on the cases of “Muhammad Ali Vs. The State” (2015 SCMR 137) “Muhammad Ashraf Vs. The State” ( 2012 S C M R 419) ,USMAN alias KALOO Vs. The State (2017 S C M R 622) ,Muhammad Hussain Vs. The State (2008 S C M R 345) and “Ain Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of prosecution witnesses when the same was found to be in contrast with the medical evidence.

17.We have also noted with disquiet that according to the statement of Dr. Ayesha Anwar (PW-12), the dead body of the deceased Tahira Bibi was

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received at the hospital at 11:45 p.m. on 06.02.2017 and she conducted the post mortem examination of the dead body of the deceased namely Tahira Bibi at 12.00 a.m. on 06.02.2017 (actually being 07.02.2017) i.e., after 06 hours of the occurrence, however, she did not observe presence of any rigor mortis rather to the contrary noted that rigor mortis was absent.

Additionally, according to Dr.Tariq Aziz (PW-10) ,the dead body of the deceased Muhammad Ehsan was received at the hospital at 12.00 a.m. on 06.02.2017 (actually being 07.02.2017) and he conducted the post mortem examination of the dead body of the deceased namely Muhammad Ehsan at 12.00 a.m. on 06.02.2017(actually being 07.02.2017) and observed the presence of rigor mortis. According to the prosecution witnesses Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) both the deceased died at the same time, and the dead bodies of the deceased were kept in the same conditions, however, according to the observations and opinions of Dr. Ayesha Anwar (PW-12) and Dr.Tariq Aziz (PW-10) , the time when the deceased met their deaths was different from each other by a large margin. According to the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6), the occurrence statedly took place at 05.45 p.m. on 06.02.2017 whereas the post mortem examination of the dead body of the deceased namely Tahira Bibi was conducted at 12.00 a.m. (night). The complete absence of rigor mortis as observed by Dr. Ayesha Anwar (PW-12) in the month of February, contradicts the time of occurrence deposed by the witnesses. In the month of February, completion of rigor mortis within such short span of time is implausible and the occurrence does not appear to have

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taken place at the point of time mentioned by the witnesses. The august Supreme Court of Pakistan in the case of “Noor Ahmad vs. The State and others ” (2019 SCMR 1327) has held as under:

“Occurrence statedly took place at 10.00 a.m. whereas the autopsy was conducted at 5.00 p.m. development of complete rigor mortis on the body of a young lady in hot weather, belies point of time of assault given in the crime report”.

The august Supreme Court of Pakistan in the case of Asad Rehmat vs. The State and others ” (2019 SCMR 1156) has held as under:

“Occurrence, statedly, took place at 2.00 p.m., autopsies started 4.30 p.m., concluded at 9.00 p.m. Muhammad Hayat was examined first; the medical officer noted rigor mortis. Same is the case with other corpses. In the month of March, development of rigor mortis within such short span of time is mind boggling; occurrence does not appear to have taken place at the point of time mentioned in the crime report.”

Furthermore, according to Ibrar Hussain Shah ASI (PW-9), he arrived at the place of occurrence on 06.02.2017 at 4.20 p.m. whereas according to the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-

2)and Muhammad Naeem (PW-6), the occurrence took place on 06.02.2017 at 5.45 p.m. In the aftermath of the above-discussion, we are swayed to hold that time, of occurrence, as deposed to by the eyewitnesses, is not free from uncertainty.

18.Another aspect of the case raising our doubt over the presence of the prosecution witness namely Muhammad Asghar (PW-1),Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) at the place of occurrence, at the time of occurrence is the fact that they never reported the matter to the police on their own and made no effort to take the deceased to any hospital during the said time period. According to the prosecution case, Ibrar Hussain Shah ASI (PW- 9), got the information about the occurrence and reached the place of

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occurrence on his own. No one out of the witnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) had told him about the occurrence. Moreover, the oral statement (Exh. PA) of Muhammad Asghar (PW-1) was recorded by Ibrar Hussain Shah ASI (PW-

9)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:

“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.”

Furthermore, according to Ibrar Hussain Shah ASI (PW-9), he arrived at the place of occurrence on 06.02.2017 at 4.20 p.m. still the oral statement (Exh.

PA) of Muhammad Asghar (PW-1) was not recorded till 07.00 pm on 06.02.2017. Ibrar Hussain Shah ASI (PW-9) during cross-examination stated as under:-

“I received the information about occurrence at about 04:00 PM and we reached at the place of occurrence that at about 04:20 PM ”(emphasis supplied) By not reporting the matter and staying at the place of occurrence conclusively proves that the oral statement (Exh. PA) of Muhammad Asghar (PW-1) and the formal F.I.R (Exh.PA/1) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival. The scrutiny of the

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statements of the prosecution witnesses reveals that the oral statement (Exh.

PA) of Muhammad Asghar (PW-1) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and compromised document.

Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and not 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. Furthermore Muhammad Asghar (PW-1) admitted during cross-examination that not only he never leave the place of occurrence to report the matter to police rather also did not take the deceased to any hospital and also did not accompany the dead bodies of the deceased to the hospital. Muhammad Asghar (PW-1) during cross-examination admitted as under:-

“I did not accompany the dead bodies to hospital and I remained there at the spot.”

The august Supreme Court of Pakistan has repeatedly observed that such conduct of the prosecution witnesses where they failed to accompany the dead body of the deceased to the hospital revealed their absence at the place of occurrence. Reliance is placed on the case of Muhammad Sharifan Bibi vs.

Muhammad Yasin and others ( 2012 SCMR 82) wherein the august Supreme Court of Pakistan held as under:-

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

The august Supreme Court of Pakistan in the case of “Zaheer Sadiq v.

Muhammad Ijaz and others” (2017 SCMR 2007) has observed as under:

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“The conduct of both these witnesses is also highly improbable as they did not try to shift Muhammad Sadiq (deceased) or Muhammad Sadiq (injured) to the hospital prior to the arrival of the Police.”

19.We have also noted with disquiet that despite the fact that the occurrence took place at about 5:45 a.m. on 06.02.2017, the postmortem examination of the dead bodies of the deceased was conducted after much delay. According to Dr. Ayesha Anwar (PW-12), the dead body of the deceased Tahira Bibi was received at the hospital at 11:45 p.m. on 06.02.2017 and she conducted the post mortem examination of the dead body of the deceased namely Tahira Bibi at 12.00 a.m. on 06.02.2017 (actually being 07.02.2017) i.e., after 06 hours of the occurrence. Dr. Ayesha Anwar (PW-12), who conducted the post mortem examination of the dead body of Tahira Bibi daughter of Ibrahim (deceased) and prepared the post mortem examination report (Exh. PS), gave the time between death and post mortem examination as being within 24 hours. According to Dr.Tariq Aziz (PW-10) , the dead body of the deceased Muhammad Ehsan was received at the hospital at 12.00 a.m. on 06.02.2017 (actually being 07.02.2017) and he conducted the post mortem examination of the dead body of the deceased namely Muhammad Ehsan at 12.00 a.m. on 06.02.2017(actually being 07.02.2017) i.e., after 06 hours of the occurrence. Dr.Tariq Aziz (PW-10), who conducted the post mortem examination of the dead body of Muhammad Ehsan son of Muhammad Asghar (deceased) and prepared the post mortem examination report (Exh. PP), gave the time between death and post mortem examination as being about seven hours. Additionally, according to the statement of Muhammad Naeem (PW-6), the dead bodies had been sent to the

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hospital at about 09.00/9.30 p.m. i.e after about three hours of the occurrence.

Muhammad Naeem (PW-6) during cross-examination stated as under:- “At about 9/9:30. PM, dead bodies were shifted to hospital from the place of occurrence ”

In this manner, it is an admitted part of the prosecution case that the Post- Mortem Examinations of the dead bodies of the deceased were conducted after more than six hours after the occurrence and there did not exist any reason for the delay in conducting the post mortem examinations of the dead bodies of the deceased except the reason which is apparent that by that time the details of the occurrence were not known and the said time was used to not only to procure the attendance of the witnesses but also to fashion a false narrative of the occurrence. No explanation was offered to justify the said delay in conducting the post mortem examinations. This establishes that the witnesses claiming to have seen the occurrence or having seen the appellants escaping from the place of occurrence were not present at the time of occurrence and the delay in the post mortem examinations 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 examinations of the dead bodies is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

“The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the

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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 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.”

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20.The learned Deputy Prosecutor General along with the learned counsel for the complainant has laid much stress and has also relied upon the recovery of the pistol (P-16) made from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the recovery of the Toka made from the appellant namely Wazeer son of Nazir Ahmad and the report of Punjab Forensic Science Agency, Lahore (Exh. PT) and the report of the Punjab Forensic Science Agency, Lahore (Exh. PU). With regard to the recovery of the pistol (P-16) made from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the recovery of the Toka made from the appellant namely Wazeer son of Nazir Ahmad, it is observed that the said recoveries of the weapons have no evidentiary value in the eyes of law as the same were made in clear violation of section 103 of the Code of Criminal Procedure, 1898. The recovery of the pistol (P-16) made from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the recovery of the Toka made from the appellant namely Wazeer son of Nazir Ahmad cannot be used as incriminating evidence against the appellants, being evidence which was attained through illegal means and hence hit by the exclusionary rule of evidence. The Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the pistol (P-16) made from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the place of and the recovery of the Toka made from the appellant namely Wazeer son of Nazir Ahmad to witness the recoveries of the same. Shahzad Ahmad (PW-8), the witness who claimed that the pistol (P-16) from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the recovery of the Toka from the appellant namely Wazeer son

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of Nazir Ahmad were recovered in his presence admitted during cross- examination as under”-

“.House of one Qabool is situated towards east of the house of accused Wazir. House of one Hameed is situated towards west and north of the house of accused Wazir while towards south of the house of accused Wazir a street is situated

House of one Qabool is situated towards east of the house of accused Muhammad Ali. House of one Hameed is situated towards west and north of the house of accused Muhammad Ali while towards south of the house of accused Muhammad Ali a street is situated. We proceeded towards Tibba Chak-10/P on official vehicle. Neither I nor I.O Amjad Hussain SI called any neighbor to join the proceeding of recovery.” (emphasis supplied) Similarly, Amjad Hussain, SI (CW-2), the Investigating Officer of the case , during cross-examination admitted as under:-

“I did not summon the neighbours i.e namely Wazir Ahmad Bhatti, Abdul Hameed Bhatti, Abdul Hameed and Jhagan S/O Loonia Thoori as well as the other people of locality of house of accused Wazir for proceedings of recovery.

I have not summoned to join the recovery proceedings conducted on 02.04.2017 from the persons of locality around the place of occurrence.”

The above referred portions of the cross-examination of both the witnesses namely Shahzad Ahmad (PW-8) and Amjad Hussain, SI (CW-2), the Investigating Officer of the case, clearly establishes that the provisions of

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section 103 the Code of Criminal Procedure, 1898 were flouted. Section 103 of the Code of Criminal Procedure, 1898 is of vital significance to render search proceedings both transparent and creditable. The provisions of this section, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search. under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

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.”

Moreover, it has also been noticed by us that the occurrence took place on 06.02.2017, whereas the Toka was received in the office of Punjab Forensic Science Agency, Lahore on 06.04.2017 and was analyzed on 03.05.2017.

During such a long period the blood available on the Toka, if any, would have disintegrated. It is not possible to believe that the blood available on the Toka had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of “Faisal Mehmood Vs. The State” (2016 SCMR 2138) has held as under:-

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“The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”

Therefore, the recovery of the pistol (P-16) made from the appellant namely Muhammad Ali son of Mukhtiar Ahmad and the recovery of the Toka made from the appellant namely Wazeer son of Nazir Ahmad does not further the case of the prosecution in any manner and the same cannot be used as a circumstance against the appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.

21.The learned Deputy Prosecutor General along with the learned counsel for the complainant has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Muhammad Asghar (PW-1) ,Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) was that the appellant namely Wazeer son of Nazir Ahmad suspected that the deceased namely Muhammad Ehsan had developed illicit relations with the deceased namely Tahira Bibi and also complained about the same to Muhammad Asghar (PW- 1). We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. Though it was stated by Muhammad Asghar (PW-1) that the appellant namely Wazeer son of Nazir

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Ahmad had threatened him about the conduct of his son namely Muhammad Ehsan (deceased), however, admitted that neither he reported the said threat to the police nor remembered as to when the same had been made. Muhammad Asghar (PW-1) during cross-examination stated as under:- “ I do not remember the date and month when Wazeer accused came to me, however, it was year 2017. After Zohr-Prayer, Jalil and Naeem PWs were present with me. I did not submit any application before the police regarding the threat of Wazeer Ahmad for facing dire consequences to my son Ehsan deceased.”(emphasis supplied)

Muhammad Naeem (PW-6) during cross-examination admitted as under:- “ During the intervening period between asking of Wazeer and the day of the occurrence, we used to accompany Ehsan and Haji Asghar to their brick-kilns. During this period complainant and his son Ehsan had not disclosed to us that they had apprehension of lost of life from the accused persons. Complainant or any of us after the threat by the accused Wazeer, did not move any application to the local police.”(emphasis supplied) .

The prosecution witnesses also admitted that though the appellant namely Wazeer son of Nazir Ahmad had threatened Muhammad Asghar (PW-1) with regard to the conduct of his son, however, the deceased as well as Muhammad Asghar (PW-1) continued to go to the brickkiln while travelling on the same road where the occurrence took place even after the alleged threat had been made. Jalil Ahmad (PW-2) during cross-examination admitted as under:- “ It is correct that after extending of threats by the accused Wazeer, the complainant and his son Ehsan used to go to their brick kilns and no one from the accused intercept them till the occurrence.”

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The above referred portions of the statements of Muhammad Asghar (PW-1), Jalil Ahmad (PW-2) and Muhammad Naeem (PW-6) clearly prove that the prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellants to have committed the Qatl-i- Amd of the deceased. Moreover, the prosecution witnesses did not explain as to how the appellant namely Muhammad Ali son of Mukhtiar Ahmad and Jafar and Sabir Hussain (both since acquitted) were connected with the motive of the occurrence as alleged. Furthermore, during the course of the investigation, the Investigating Officer of the case did not collect any evidence so as to establish that there was any grievance developing in the heart of the appellants as against the deceased which motivated them to act in the manner in which they did. There is a poignant silence with regard to the particulars of the 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.”

Besides, it is an admitted rule of appreciation of evidence that motive is only a corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made the basis of conviction.

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

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), 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 Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been observed in paragraph No.13 of page 236 as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for

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the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

23.For what has been discussed above, Criminal Appeal No.489 of 2019 lodged by the appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad is allowed. The conviction and sentences of Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad (appellants) awarded by the learned trial court through the impugned judgment dated 19.07.2019 are hereby set-aside. Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad (appellants) are ordered to be acquitted by extending them the benefit of doubt. The appellants namely Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad are in custody and they are directed to be released forthwith if not required in any other case.

24.The complainant of the case filed Petition for Special Leave to Appeal No.78 of 2019 seeking permission to file an appeal against the acquittal of Jafar son of Mukhtiar Ahmad and Sabir Hussain son of Rab Nawaz (both since acquitted), the co-accused of the appellants. We have observed that the learned trial court has rightly acquitted the said accused. We have ourselves

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scrutinized the statements of the prosecution witnesses and have come to the conclusion that the prosecution witnesses could not prove the facts in issue.

It is important to note that according to the established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as Muhammad Inayat Versus The State ( 1998 SCMR 1854) wherein it has been held as under:

“The Court would not interfere with acquittal merely because on re­appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same, and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

The august Supreme Court of Pakistan in the case of “Mst. Sughran Begum and another Vs. Qaiser Pervaiz and others” (2015 SCMR 1142) has held as under:

“On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on

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reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course.”

Pursuant to the discussion made and conclusions arrived at above, the Petition for Special Leave to Appeal No.78 of 2019 as filed by the complainant, seeking permission to file an appeal against the acquittal of Jafar son of Mukhtiar Ahmad and Sabir Hussain son of Rab Nawaz (both since acquitted), is hereby dismissed.

25.Consequently, the Murder Reference No. 17 of 2019 is answered in Negative and the sentences of death awarded to Wazeer son of Nazir Ahmad and Muhammad Ali son of Mukhtiar Ahmad are Not Confirmed.

(ALI ZIA BAJWA) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

JUDGE JUDGE