Muhammad Imran vs The State etc.

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.02 of 2019 (The State Vs. Muhammad Imran)

Criminal Appeal No. 59-J of 2019 (Muhammad Imran Vs. The State.)

Criminal Appeal No. 61-J of 2019 (Mst. Sajida Bibi Vs. The State.)

JUDGMENT

Date of hearing: 23.02.2022.

Appellants by: Syed Zeeshan Haider, Advocate for Muhammad Imran (the appellant in Criminal Appeal No. 59-J of 2019). Ms. Tania Bazai, Advocate (learned defence counsel appointed on State expense to represent Mst. Sajida Bibi, the appellant in Criminal Appeal No. 61-J of 2019). State by: Ch. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Mirza Muhammad Azam, Advocate.

SADIQ MAHMUD KHURRAM, J.–Muhammad Imran son of

Abdul Salam and Mst. Sajida Bibi wife of Maqbool Ahmad (convicts) were tried by the learned Additional Sessions Judge, Bahawalnagar in the case FIR No. 262 of 2018 dated 07.08.2018 registered in respect of offences under sections 302 and 34 PPC at Police Station City A-Division, Bahawalnagar, District Bahawalnagar for committing the Qatl-i-Amd of Maqbool Ahmad son of Rehmat Ali (deceased). The learned trial court vide judgment dated

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

29.01.2019, convicted Muhammad Imran son of Abdul Salam and Mst. Sajida Bibi wife of Maqbool Ahmad (convicts) and sentenced them as infra:

Muhammad Imran son of Abdul Salam:-

Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Maqbool Ahmad son of Rehmat Ali (deceased) and directed to pay Rs.250,000/- 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.

Mst. Sajida Bibi wife of Maqbool Ahmad :-

Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Maqbool Ahmad son of Rehmat Ali (deceased).

Mst. Sajida Bibi wife of Maqbool Ahmad (convict) was, however, extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898

2.Feeling aggrieved, Muhammad Imran son of Abdul Salam (convict) lodged Criminal Appeal No.59-J of 2019 through jail assailing his conviction and sentence. Feeling aggrieved, Mst. Sajida Bibi wife of Maqbool Ahmad (convict) lodged Criminal Appeal No.61-J of 2019 through jail assailing her conviction and sentence. The learned trial court submitted Murder Reference No.02 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Imran son of Abdul Salam. We intend to dispose of the Criminal Appeal No.59-J of 2019, Criminal Appeal No.61-J of 2019 and Murder Reference No.02 of 2019 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Asad Mahmood (PW-3), the complainant of the case, are as under:-

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

“On 07-08-2018 at about 5:45 AM I along with my brother Abdul Ghafoor and my brother-in-law Muhammad Afzal P.Ws was sitting on the roof of my house. We were discussing about some business and we heard hue and cry from the house of my brother Maqbool Ahmed deceased of this case. We rushed to the house of Maqbool Ahmed and saw that Sajida Bibi had caught hold by hands of my bool and Imran was having with pistol. Sajida Bibi shouted and asked Imran ( )مقبول احمد کو راستے سے ہٹا دوon which Imran made straight fire to my brother Maqbool which landed on his chest. Maqbool fell down on the ground. We apprehended accused persons present in the court, at spot. Accused resisted but we over powered both of them. We attended Maqbool and due to his precarious condition we called 1122 through my mobile phone. The 1122 rescue team reached at the spot. They rescued Maqbool to hospital. After sometime police came to the spot. I got drafted application Exh.PA about the occurrence and submitted to the police officer. I had signed beneath my application Exh.PA. Maqbool died later on. Motive behind the occurrence was the illicit relations of Imran and Sajida Bibi present in the court.”

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 and the accused were sent to face trial. The learned trial court framed the charge against the accused on 22.09.2018, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case got statements of as many as twelve witnesses recorded. The ocular account of the case was furnished by Asad Mahmood (PW-3) and Muhammad Afzal (PW-4). Muhammad Saleem, SI (PW-1) stated that on 07.08.2018, he recorded the formal F.I.R (Exh.PA/1).

Muhammad Taj, ASI (PW-2) stated that on 07.08.2018, he went to the place of occurrence and received the written application (Exh. PA) of Asad Mahmood (PW-3). Hassan Javed 1586/C (PW-5) stated that on 07.08.2018,

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

he got conducted the post mortem examination of the dead body of the deceased and also received the last worn clothes of the deceased from the Medical Officer and the Investigating Officer of the case took the photographs (P-3/1-3) of the dead body of the deceased in his presence. Muhammad Din Abid, Map Planner (PW-10), prepared the scaled site plan of the place of occurrence (Exh. PJ). Manzoor Ahmad 681/HC (PW-12) stated that on 07.08.2018, he received one sealed parcel said to contain blood stained earth, one sealed parcel said to contain a pistol and six sealed parcels said to contain items to be deposited to the Punjab Forensic Science Agency, Lahore and on 12.08.2018, he handed over all the sealed parcels to

Shahid Ayyub, ASI (PW-6) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Shafaqat Ali, SI (PW-11), investigated the case from 07.08.2018 till 15.09.2018, arrested the appellants on 07.08.2018, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Mobeen Ahmad (PW-7) examined, who on 07.08.2018 was posted as Medical Officer at DHQ hospital Bahawalnagar and on the same day conducted the postmortem examination of the dead body of Maqbool Ahmad son of Rehmat Ali (deceased). Dr. Mobeen Ahmad (PW- 7), on examining the dead body of Maqbool Ahmad son of Rehmat Ali (deceased) observed as under:-

“According to record, death was caused on 07-08-2018 at 7:30 AM, dead body was received in dead house on 07-08-2018 at about 7:45 AM and police documents were received on 07-08-2018 at 2:20 PM. I conducted the postmortem examination on 07-08-2018 at 2:30 PM.

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

INJURIES.

1)An oval shape lacerated wound on front of chest near medial one third of left clavicle lead staining burning present, margins were inverted, direction of the wound was backward and downward, measuring 1 cm x 0.75 cm in, it was an entry wound.

2)A lacerated wound on back of right side middle of lumber region, margins were everted, direction was towards injury No.1 measuring 2 cm x 1.5 cm, it was an exit wound.

OPINION.

In my opinion, the cause of death in this case was due to injuries No.1 and 2 which caused damage to main blood vessels of chest right lung, liver and main blood vessels of abdomen leading to severe haemorrhage, shock and death. These injuries were ante mortem and caused by firearm weapon and were sufficient to cause death in ordinary course of nature.”

The prosecution also got Dr. Yasmeen Kamboh (PW-8) examined, who on 07.08.2018, was posted as Woman Medical Officer at DHQ hospital Bahawalnagar and on the same day medically examined Mst. Sajida Perveen wife of Maqbool Ahmad (the appellant in Criminal Appeal No. 61-J of 2019) and issued the Medico Legal Examination Certificate No. 759 dated 07.08.2018 (Exh. PG). The prosecution also got Dr. Mobeen Ahmad (PW-9) examined who remained posted with and was acquainted with the handwriting Dr. Aftab Saleem as Dr. Aftab Saleem was not available and his attendance could not be procured without an amount of delay which, under the circumstances of the case, the learned trial court considered unreasonable. Dr.

Mobeen Ahmad (PW-9) stated that on 07.08.2018 Dr. Aftab Saleem was posted as Medical Officer at the DHQ hospital, Bahawalnagar and on the same day medically examined the appellant namely Muhammad Imran and issued the Medico Legal Examination Certificate (Exh. PH) .

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

7.On 06.11.2018, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Asghar 590/C as being unnecessary. On 21.01.2019, the learned Deputy District Public Prosecutor tendered in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh. PL, Exh. PM and Exh. PN). On 22.01.2019, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. PP and Exh. PQ).

8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Imran son of Abdul Salam and Sajida Bibi wife of Maqbool Ahmad 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, they replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Imran son of Abdul Salam and Sajida Bibi wife of Maqbool Ahmad opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.

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

10.The contention of the learned counsels for the appellants 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,

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

and relevant evidence. Learned counsels for the appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsels for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsels for the appellants also submitted that the recoveries made in the case were full of procedural defects, of no legal worth and value, and were the result of fake proceedings. The learned counsels for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsels for the appellants 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 the 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 namely Muhammad Imran.

They further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4). They further argued that the recovery of the pistol (P-5) also corroborated the ocular account. They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the 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 the appeals as lodged by

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

the appellants namely Muhammad Imran son of Abdul Salam and Mst. Sajida Bibi wife of Maqbool Ahmad.

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

13.According to the evidence produced by the prosecution during the course of the trial, the occurrence was witnessed by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4). Both the said prosecution witnesses were not only related to each other but also with the deceased namely Maqbool Ahmad. The deceased namely Maqbool Ahmad was the real brother of the prosecution witness namely Asad Mahmood (PW-

3)and the brother-in-law (brother of wife) of the prosecution witness namely Muhammad Afzal (PW-4). It was further brought on record that the occurrence took place inside the house of the deceased namely, Maqbool Ahmad, whereas both the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) had their own separate houses. The prosecution witness namely Asad Mahmood (PW-3) admitted in his statement before the learned trial court that before the occurrence, he was present on the roof of his own house whereas the occurrence took place inside the Television viewing room of the house of the deceased. Asad Mahmood (PW-3) during cross-examination stated as under:-

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

“ The house of occurrence consisted of about 3/ 3⁄4 Marla of land but it was not transferred in the name of Maqbool Ahmed deceased. Deceased was residing in the house of occurrence for the last four five years. He had constructed this house i.e. the place of occurrence .

My house is adjoining to the house of occurrence towards north. The intervening wall of our houses is about 11 feet height. The opening doors of the house of occurrence and my house falls towards east.

The place of occurrence is TV lounge of the house of occurrence.”(emphasis supplied)

It was also admitted by the prosecution witnesses namely Asad Mahmood (PW-

3)and Muhammad Afzal (PW-4) that the house of the other prosecution witness namely Muhammad Afzal (PW-4) was in another locality which was at a distance of three kilometres from the other house of the prosecution witness namely Asad Mahmood (PW-3). Asad Mahmood (PW-3) during cross- examination admitted as under:-

“ It is correct that my brother Abdul Ghafoor PW resides in Railway colony Bahawalnagar at a distance about 1 1⁄2 K.M and Muhammad Afzal PW resides in Taqwa Colony Bahawalnagar at about 3 K.M from my house.”

As both the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) were admittedly not the residents of the house in the room of which the occurrence had taken place and that too early in the morning at 5.45 a.m., the presence of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4), at the place of occurrence, could not be termed as in the normal course of events, therefore, the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

(PW-4) can be validly termed as “chance witnesses” and therefore were under a bounden duty to provide a convincing reason for arrival 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 Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) failed miserably to provide any consistent evidence as to their arrival at the place of occurrence and that too at the very moment when the same was taking place. According to the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4), they were sitting on the roof of the house of the prosecution witness namely Asad Mahmood (PW-3) when they heard the hue and cry coming out of the house of the deceased and subsequently they rushed there and saw the occurrence. During the course of the investigation, the Investigating Officers of the case remained present inside the house of the deceased where the occurrence had taken place for a considerable time and for long hours, however, the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) did not produce any evidence to prove that they were sitting on the roof of the house of the prosecution witness namely Asad Mahmood (PW-3) just before the occurrence took place. During the course of their stay at the place of occurrence, neither Muhammad Taj, ASI (PW-2), the police officer who received the written application (Exh. PA) of Asad Mahmood (PW-3) nor Shafaqat Ali, SI (PW-11), the Investigating Officer of the case, observed any chairs or cots or anything else on the roof of the house of the prosecution witness namely Asad Mahmood (PW-3), which could prove that the prosecution witnesses namely Asad Mahmood (PW-3) and

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

Muhammad Afzal (PW-4) were indeed present on the said roof half an hour before 5.45 a.m. from where they subsequently reached at the place of the occurrence, along with the other recoveries, though there was no occasion for the said articles not to have been present on the roof of the prosecution witness namely Asad Mahmood (PW-3) or not being taken into possession by the Investigating Officers during their visits and stay at the place of the occurrence, if the same were available. It only proves that there did not exist any physical evidence proving the presence of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) on the roof of the house of Asad Mahmood (PW-3) prior to the occurrence from where they subsequently rushed to the place of occurrence. We have also perused the scaled site plan of the place of occurrence (Exh. PJ) prepared by Muhammad Din Abid, Map Planner (PW-10) and the rough site plan of the place of occurrence (Exh. PK) , prepared by Shafaqat Ali, SI (PW-11), the Investigating Officer of the case, and no place where the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) were present prior to the occurrence has been marked in the said site plans (Exh. PJ and Exh. PK) despite the fact that the house of the prosecution witness namely Asad Mahmood (PW-3) has been mentioned in the said site plans. Muhammad Din Abid, Map Planner (PW-10) admitted during cross- examination that while preparing the scaled site plan of the place of occurrence (Exh. PJ), he had not visited the roof of the house where the occurrence took place. The prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) had claimed that they rushed to the place of occurrence after hearing the hue and cry coming from inside the

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

house of the deceased while they were sitting on the roof of the house of the prosecution witness namely Asad Mahmood (PW-3). As mentioned above, according to the prosecution witness namely Asad Mahmood (PW-3), there was a wall, as high as eleven feet, between the houses of Asad Mahmood (PW-3) and the deceased. The scaling over the said wall by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) was a feat easier said than done. During the course of cross-examination, the prosecution witness namely Muhammad Afzal (PW-4) claimed that they had scaled over the said wall and then rushed down the stairs to arrive at the place of occurrence, whereas the prosecution witness namely Asad Mahmood (PW-

3)had already stated that the height of the said wall to be 11 feet. Asad Mahmood (PW-3) during cross-examination stated as under:- “The intervening wall of our houses is about 11 feet height (sic).”(emphasis supplied)

Muhammad Afzal (PW-4) during cross-examination claimed as under:- “Just after hearing the noise from the house of occurrence we after scaling over the intervening wall on the roofs rushed to the place of occurrence through stairs. ”(emphasis supplied)

It has not been explained by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) as to how they were able to scale over the wall having such substantial height. Moreover, Shafaqat Ali, (PW-11), the Investigating Officer of the case, during cross-examination, admitted that none of the witnesses who were present at the place of occurrence stated before him that they had scaled over the wall between the

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

houses of Asad Mahmood (PW-3) and the deceased and thereafter taken the stairs down from the roof of the house of the deceased to arrive at the place of occurrence. Shafaqat Ali, (PW-11), the Investigating Officer of the case, during cross-examination stated as under:-

“ None of the witnesses stated before me that from the roof they reached in the room i.e Place of occurrence from stairs of the house.”

In this manner, the eye witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) failed miserably to establish their presence together on the roof of the house of Asad Mahmood (PW-3) half an hour prior to 5.45 a.m. in the morning and their subsequent arrival 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 Asad Mahmood (PW-3) and Muhammad Afzal (PW-4), while hearing the hue and cry coming from the inside of the house of the deceased, had proceeded to the same and arrived at the place of the occurrence but the failure to prove their presence on the roof of the house of Asad Mahmood (PW-3) half an hour before before 5.45 a.m., has vitiated our trust in Asad Mahmood (PW-3) and Muhammad Afzal (PW-4).

14.We have noted that according to the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4), they were in clear view, at a meagre distance, from the assailant and unarmed whereas the appellant namely Muhammad Imran was allegedly armed with a pistol. The prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) also claimed to had detained both the appellants at the place of occurrence, after

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

the occurrence. Asad Mahmood (PW-3) during cross-examination claimed that he had also beaten the appellant namely Muhammad Imran and stated during cross-examination as under:-

“ I had slapped and gave fist blows to accused at that time when we apprehended them.”

Had the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) been present in the view of the assailant, then they would not have been spared. Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) even did not claim that they did not receive any injury because they had hidden or were not visible to the assailant. Blessing Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) 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 appellant namely Muhammad Imran, who allegedly was armed with a pistol and had only fired once with the same, did not cause any injury to them. According to the report of the Punjab Forensic Science Agency, Lahore (Exh. PM), the magazine of the Pistol had three live rounds still loaded into it when the sdame was examined by the Punjab Forensic Science Agency, Lahore . Neither there was any dearth of ammunition nor that of intent and opportunity on part of the appellant namely Muhammad Imran for not doing away with the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) or to make any effort to escape even. In this scenario, it is hard to believe that the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4)

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

would have been shown the courtesy of being not attacked at all when they should also have been the targets of the assailant. Such behaviour, on part of the accused, as deposed by Asad Mahmood (PW-3) and Muhammad Afzal (PW-4), 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 assailant, as deposed to by the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4), was opposed to the common course of natural events and human conduct which proves that Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) did not witness the occurrence.

15.We have also noted that the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) made harrowingly inconsistent statements with regard to various aspects of the prosecution case.

The prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) claimed that the occurrence had taken place on 07.08.2018 at 5.45 a.m., however, according to the statement of Shafaqat Ali, (PW-11), the Investigating Officer of the case, the occurrence had taken place on 07.08.2018 at 4.45 a.m. Asad Mahmood (PW-3) in his statement before the learned trial court stated as under:-

“On 07-08-2018 at about 5:45 AM I along with my brother Abdul Ghafoor and my brother-in-law Muhammad Afzal P.Ws was sitting on the roof of my house. We were discussing about some business and we heard hue and

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

cry from the house of my brother Maqbool Ahmed deceased of this case.

We rushed to the house of Maqbool Ahmed and saw...........”(emphasis supplied)

Contrary to the above statement, Shafaqat Ali, (PW-11), the Investigating Officer of the case during cross-examination stated as under:- “ It is correct that in first case diary I had mentioned the time of occurrence as 4:45 AM.”(emphasis supplied)

More importantly, Shafaqat Ali, (PW-11), the Investigating Officer of the case, stated during cross-examination that the dead body of the deceased had reached the DHQ hospital at 5.00 a.m. i.e even prior to the time of the occurrence as given by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4). Shafaqat Ali, (PW-11) , the Investigating Officer of the case during cross-examination stated as under:- “ I do not know by whom the dead body was shifted to hospital. It is correct that I had been mentioned in police file that dead body was shifted by 1122 rescue team to the DHQ Hospital, Bahawalnagar at 5:00 AM.”(emphasis supplied)

The impact of the above mentioned statement of the Shafaqat Ali, (PW-11) , the Investigating Officer of the case on the prosecution case is huge for the simple reason that it also reflects that if the dead body had already reached the hospital at 5.00 a.m. then the occurrence must have taken place prior to the said time but the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) did not even claim to have been present together on the roof of Muhammad Afzal (PW-4) before 5.00 a.m. on 07.08.2018. The

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

above mentioned statement of Shafaqat Ali, (PW-11), the Investigating Officer of the case , totally shatters the foundation of the prosecution case and proves that the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) were not sitting together prior to the occurrence and had not actually witnessed the occurrence. Putting the prosecution case in further doubt was the statement made by Dr. Mobeen Ahmad (PW-7) who proceeded on to claim in his statement that according to the record presented to him the deceased had died on 07.08.2018 at 7.30 a.m. In his statement before the learned trial court , Dr. Mobeen Ahmad (PW-7), stated as under:- “According to record, death was caused on 07-08-2018 at 7:30 AM” All these facts prove that the prosecution could not even prove the time of the occurrence with any consistency .

16.The prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) also claimed that prior to the arrival of the police officers at the place of occurrence, Maqbool Ahmad, the then injured later deceased, had been dispatched to the hospital on the ambulance of the Emergency Ambulance Service (1122). Asad Mahmood (PW-3) in his statement before the learned trial court stated as under:- “ The 1122 rescue team reached at the spot. They rescued Maqbool to hospital.

Maqbool was taken away by 1122 rescue 10 to 15 minutes prior to reaching of police official staff. Taj ASI PW reached afterwards.”

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

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

“We called 1122 rescue. 1122 rescue team reached the spot and they took Maqbool Ahmed to hospital. At that time Maqbool was breathing very hard later on Maqbool died.”

However, the proceedings recorded by Muhammad Taj, ASI (PW-2) on the written application (Exh.PA) of Asad Mahmood (PW-3) speak otherwise.

According to the proceedings recorded by Muhammad Taj, ASI (PW-2) on the written application (Exh.PA) of Asad Mahmood (PW-3), after his arrival at the place of occurrence, he took into custody the dead body of the deceased which was present at the place of occurrence. According to Muhammad Taj, ASI (PW-2) he had arrived at the place of occurrence at about 7.00 a.m. and had recorded the proceedings on the written application (Exh.PA) of Asad Mahmood (PW-3) at 8.30 a.m. Muhammad Taj, ASI (PW-

2)during cross-examination stated as under:-

“I was present at Eid Gah Road when I received information through 15. It was about 7:00 AM.

The place where I was present at the time of receiving information detailed above I was present about 1⁄2 KM distance from the police station. I had not proceeded to police station after receiving the information of occurrence. I straight away proceeded to the spot. I reached the spot 15 minutes afterward.

1 had read over Exh.PA to complainant at that time. He had admitted all the averments of Exh.PA”

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

The police proceedings recorded by Muhammad Taj, ASI (PW-2) read as under:-

Shafaqat Ali, (PW-11), the Investigating Officer of the case, also explained that according to the proceedings recorded by Muhammad Taj, ASI (PW-2) on the written application (Exh.PA) of Asad Mahmood (PW-3), after his arrival at the place of occurrence, he took into custody the dead body of the deceased which was present at the place of occurrence. Shafaqat Ali, (PW- 11), the Investigating Officer of the case, stated as under:- “ It is correct that according to contents of the F.I.R. Taj Muhammad ASI had taken the dead body in custody at the place of occurrence.”

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

Contrary to all the above statements of the different prosecution witnesses, according to Dr. Mobeen Ahmad (PW-7), the dead body was received in the hospital on 07.08.2018 at 7.45 a.m. Dr. Mobeen Ahmad (PW-7) stated as under:-

“According to record, death was caused on 07-08-2018 at 7:30 AM, dead body was received in dead house on 07-08-2018 at about 7:45 AM and police documents were received on07-08-2018 at 2:20 PM.” (emphasis supplied).

Shafaqat Ali, (PW-11), the Investigating Officer of the case, had another tale to tell when he proceeded on to claim during his cross-examination that the dead body of the deceased had been shifted by the Emergency Ambulance Service (1122) to the DHQ hospital at 5.00 a.m. Moreover, we have also noted that no person associated with the Emergency Ambulance Service (1122) who had allegedly shifted Maqbool Ahmad (deceased) in an injured condition to the hospital joined the investigation of the case or appeared before the learned trial court. On the other hand, Asad Mahmood (PW-3), the complainant of the case, admitted that he had not mentioned in his written application (Exh.PA) that Maqbool Ahmad (deceased) was shifted to the hospital by the Emergency Ambulance Service (1122). Asad Mahmood (PW-

3)during cross-examination admitted as under:-

“I had not got recorded in application Exh.PA that 1122 rescue team was called through my mobile phone. Similarly I have not got recorded in my application Exh.PA that Maqbool was rescued by 1122 rescue.”(emphasis supplied) .

In this manner, what is proved is the fact that the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) did not know

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

as to what happened during or after the occurrence and continued to make fanciful and incorrect statements during the course of the trial.

17.We have also noted with concern that despite the claim of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) that Maqbool Ahmad (deceased) was taken in an injured condition to the hospital, none of the prosecution witnesses namely Asad Mahmood (PW-

3)and Muhammad Afzal (PW-4) accompanied him to the same. Asad Mahmood (PW-3) during cross-examination admitted as under:- “Neither I nor the P.Ws of F.I.R. accompanied Maqbool Ahmed to the hospital on 1122 vain. (sic)”

Similarly, Muhammad Afzal (PW-4) during cross-examination admitted as under:-

“ The rescue 1122 team reached the spot after 7/8 minutes of the occurrence.

I did not accompany Maqbool Ahmed on 1122 vain. (sic) ” 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.”

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

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

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

“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.”

18.Another aspect of the case raising our doubt over the presence of the prosecution witness namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) 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. According to the prosecution case, Muhammad Taj, ASI (PW-2), got the information about the occurrence and reached the place of occurrence on his own. No one out of the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) had told him about the occurrence. Moreover, the written application (Exh. PA) of Asad Mahmood (PW-3) was received by Muhammad Taj, ASI (PW-2) 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, as mentioned above, according to Muhammad Taj, ASI (PW-2), he arrived at the place of occurrence on 07.08.2018 at about 07.15 a.m. still the written application (Exh. PA) of Asad Mahmood (PW-3) was not received till 08.30 a.m. when according to the prosecution witnesses namely Asad

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

Mahmood (PW-3) and Muhammad Afzal (PW-4) the occurrence had taken place at 05.45 a.m. There remained absolute silence on part of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) for as many as nearly three hours after the occurrence, during which period they kept sitting at the place of occurrence without ever reporting the matter to the police or sending any information to the police station regarding the happening of the occurrence. It was of his own that Muhammad Taj, ASI (PW-2) arrived at the place of occurrence, however, none of the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) made any effort to relay any information to the Police Station . Not reporting the matter to the police and staying of Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) at the place of occurrence are facts which conclusively prove that the written application (Exh. PA) of Asad Mahmood (PW-3) and the formal F.I.R (Exh.PA/1) were prepared after probe, consultation, planning, investigation and discussion and as the prosecution witnesses namely Asad Mahmood (PW-

3)and Muhammad Afzal (PW-4) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival and developing of a false story. The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh. PA) of Asad Mahmood (PW-3) 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. This fact itself proves that both the

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) made a false claim that they were present at the place of occurrence, at the time of occurrence. In this case, the ocular account furnished is suffering from legal and factual infirmities and does not appeal to a prudent mind, much less a legal one, because, the witnesses never reported the matter to the police till the arrival of Muhammad Taj, ASI (PW-2) on his own 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.”

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:

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

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

19.We have also observed that the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) claimed that the occurrence took place only when they had arrived at the place of occurrence from the

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

house of Asad Mahmood (PW-3). This narrative of the prosecution witnesses that the accused kept waiting for the arrival of the witnesses at the place of occurrence and thereafter committed the same is unnatural and cannot be believed. It is opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence. It is all the more illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and them deposing against the accused, even then the assailant kept waiting for their arrival. Such behaviour, on part of the accused, as deposed by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) runs counter to natural human conduct and behaviour. Hence, being perceptive of this strain of human conduct, we are holding that Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence. In this regard reliance is placed on the case of “STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others” ( 2019 S C M R 1154) wherein the august Supreme Court of Pakistan held as under:- “Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case.”

Reliance is also placed on the case of Muhammad Imran Vs. The State ( 2020 S C M R 857) wherein the august Supreme Court of Pakistan held as under:- “These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself.”

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

20.We have also noted with disquiet that despite the fact that the occurrence took place at about 05.45 a.m. on 07.08.2018, the postmortem examination of the dead body of the deceased was conducted after much delay. According to Dr. Mobeen Ahmad (PW-7), he conducted the post mortem examination of the dead body of the deceased on 07.08.2018 at 2.30 p.m. i.e. after as many as eight hours and forty five minutes after the death of Maqbool Ahmad (deceased). Dr. Mobeen Ahmad (PW-7), in his statement before the learned trial court stated as under:-

“police documents were received on 07-08-2018 at 2:20 PM. I conducted the postmortem examination on 07-08-2018 at 2:30 PM.”

Dr. Mobeen Ahmad (PW-7), who conducted the post mortem examination of the dead body of Maqbool Ahmad (deceased) and prepared the post mortem examination report (Exh. PF), gave the time between death and post mortem examination as being within twelve hours. Additionally, as mentioned above, Dr. Mobeen Ahmad (PW-7) stated that he started the post mortem examination at 2.30 p.m. only after he had received the police documents at 2.20 p.m. The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Maqbool Ahmad is that by that time the details of the occurrence were not known and the said time was used 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 examination when the dead body of the deceased had already been brought to the hospital since 07.45 a.m. on

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

07.08.2018. This clearly establishes that the witnesses claiming to have seen the occurrence were not present at the time of occurrence and the delay in the post mortem examination was used to procure their attendance and formulate a dishonest account, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The august Supreme Court of Pakistan in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

“The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time”.

The august Supreme Court of Pakistan in the case of “Mian SOHAIL AHMED and others vs. The State and others” (2019 SCMR 956) has held as under:

“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution”

The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs. The State” (2019 SCMR 1068) has held as under:

“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

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

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.”

21.The learned counsel for the complainant and the learned Deputy Prosecutor General, have also argued that both the appellants were apprehended by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) and this fact also proved the case against the appellants. We have noticed that according to the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) they had claimed that they had detained both the appellants after the occurrence and handed over their custody to Muhammad Taj, ASI (PW-2) after his arrival at the place of occurrence, however, while appearing before the learned trial court, Muhammad Taj, ASI (PW-2), never made any statement that the custody of the appellants was handed over to him by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4). The

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

examination-in-chief of Muhammad Taj, ASI (PW-2) recorded by the learned trial court reads as under:-

“ On 07-08-2018 I on receiving call at 15 went to the spot along with my companions. Asad Mahmood complainant submitted written application Exh. PA. I made relevant endorsement on application Exh. PA I sent Exh.PA to police station for registration of formal F.I.R. through Muhammad Asghar 590/C.”

Muhammad Taj, ASI (PW-2) , was never re-examined by the prosecution nor any application was submitted for his re-examination to bring on record the alleged fact that the appellants had been apprehended by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) and their custody was handed over to Muhammad Taj, ASI (PW-2). When Muhammad Taj, ASI (PW-2) himself did not make any such statement that he had taken over the custody of the appellants then we cannot presume the same. Moreover, according to the prosecution case, it was Shafaqat Ali, (PW- 11), the Investigating Officer of the case, who arrested the appellants in the said case. Furthermore, it was claimed by the prosecution witness namely Muhammad Afzal (PW-4) that he had remained at the place of occurrence and did not accompany Maqbool Ahmad (deceased) when Maqbool Ahmad (deceased) was taken to the hospital because he was engaged in detaining the appellants. Muhammad Afzal (PW-4) during cross-examination volunteered as under:-

“Volunteered we had apprehended the accused persons therefore, we did not proceed to hospital. ”

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

During the course of the recording of the statement of Shafaqat Ali, (PW-11), the Investigating Officer of the case, a very important fact was brought on record. Shafaqat Ali, (PW-11), the Investigating Officer of the case stated in his statement before the learned trial court stated that initially after getting information of the occurrence, he reached the DHQ hospital Bahawalnagar and from there he came to the place of occurrence along with the prosecution witness namely Muhammad Afzal (PW-4) and Abdul Ghafoor (given up) and arrived at the same at about 01.00 p.m.. Shafaqat Ali, (PW-11), the Investigating Officer of the case in his statement before the learned trial court stated as under:-

“On the same day, I received the information regarding the murder of Maqbool Ahmad deceased and reached at DHQ Hospital, Bahawalnagar.

I visited the place of occurrence at about 01.00 p.m.

Abdul Ghafoor and Muhammad Afzal PWs accompanied from hospital to the place of occurrence.”(emphasis supplied)

The above referred portion of the cross-examination of Shafaqat Ali, (PW- 11), the Investigating Officer of the case, clearly establishes the fact that the prosecution witness namely Muhammad Afzal (PW-4) had not remained at the place of occurrence detaining the appellants rather had met with Shafaqat Ali, (PW-11), the Investigating Officer of the case, at the DHQ hospital Bahawalnagar and from there he had proceeded to the place of occurrence along with Shafaqat Ali, (PW-11), the Investigating Officer of the case. We

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

have also noted that according to the proceedings recorded on the written application (Exh.PA) of Asad Mahmood (PW-3), the appellants, the Pistol and the dead body of the deceased, all were handed over to Muhammad Taj, ASI (PW-2) at the time of recording the proceedings on the written application (Exh.PA), however, the prosecution witnesses themselves altered the said version of events and went on to claim that neither the pistol nor the dead body of the deceased were handed over to Muhammad Taj, ASI (PW-2) at the time of his arrival at the place of occurrence. When the witnesses themselves did not support the claim that the pistol and the dead body of the deceased were handed over to Muhammad Taj, ASI (PW-2) at the time of his arrival at the place of occurrence then they cannot be believed only to the extent of having stated correctly that the appellants were also apprehended by them and their custody was handed over to the police officers. All these statements of the prosecution witnesses prove the fact that the claim of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) that they had detained the appellants after the occurrence and handed over their custody to the police officers was a claim left not proved.

22.It has been argued by the learned Deputy Prosecutor General and the learned counsel for the complainant that where any person dies an unnatural death in the house of such accused then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The prosecution is bound to prove its case against an accused person beyond a reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts the presence of some eye-witnesses and such claim of the

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

prosecution is not established by it, there the accused person could not be convicted merely on the basis of a presumption that since the murder of a person had taken place in his/ her house, therefore, it must be he/she and none else who would have committed that murder. The learned Deputy Prosecutor General submits that it was in the knowledge of the appellant how the deceased died so it was the appellant who was responsible, in absence of any explanation. The law on the burden of proof, as provided in Article 117 of the Qanune-Shahadat, 1984, mandates the prosecution to prove, and that too, beyond any doubt, the guilt of the accused for the commission of the crime for which he is charged. The said provision provides:

“117. Burden of proof:- (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

On a conceptual plain, Article 117 of the Qanune-Shahadat, 1984 enshrines the foundational principle of our criminal justice system, whereby the accused is presumed to be innocent unless proved otherwise. Accordingly, the burden is placed on the prosecution to prove beyond doubt the guilt of the accused which burden can never be shifted to the accused, unless the legislature by express terms commands otherwise. It is only when the prosecution is able to discharge the burden of proof by establishing the elements of the offence, which are sufficient to bring home the guilt of the accused then, the burden is shifted upon the accused, inter alia, under Article 122 of the Qanune- Shahadat, 1984, to produce evidence of facts, which are especially in his

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

exclusive knowledge, and practically impossible for the prosecution to prove, to avoid conviction. Article 122 reads as under:

“122. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden to proving that fact is upon him.”

It has to be kept in mind that Article 122 of the Qanune-Shahadat, 1984 comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except the facts referred in Article 122 Qanun- e-Shahadat, 1984, leading to the inescapable conclusion that the offence was committed by the accused. Then, the burden is on the accused not to prove his innocence, but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that this issue was also dilated upon by the august Supreme Court of Pakistan in the case of “Rehmat alias Rahman alias Waryam alias Badshah v. The State” (PLD 1977 SC 515), where, while deliberating upon Section 106 of the Evidence Act, which is para materia with Article 122 of the Qanune-Shahadat, 1984, it held as under:

“Needless to emphasis that in spite of section 106 of the Evidence Act in criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve! the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

The ratio decidendi of the above decision was further developed by in the case of “NASRULLAH alias NASRO Versus The STATE (2017 S C M R 724) , wherein, it held as under:

“It has been argued by the learned counsel for the complainant that in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the circumstances of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder.

In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased.”

In a criminal case, the burden of proof is on the prosecution and article 122 of the Qanune-Shahadat, 1984 is certainly not intended to relieve it of that duty.

On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are " especially " within the knowledge of the accused and which he/ she could prove without difficulty or inconvenience. If the article was to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he/she did not commit the murder because who could

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

know better than he/she whether he/she did or did not. Article 122 of the Qanune-Shahadat, 1984 cannot be used to undermine the well-established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts. Throughout the web of the Law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the accused's guilt subject to any statutory exception. No matter what the charge, the principle that the prosecution must prove the guilt of the accused is the law and no attempt to whittle it down can be entertained. As discussed above, the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) failed miserably to prove their presence at the place of occurrence, at the time of occurrence. In a case of this nature, the appellant namely Mst. Sajida Bibi could not have been convicted for the alleged murder merely because she happened to be the resident of the place of occurrence. An accused person cannot be convicted merely because he/she did not explain the circumstances in which the deceased had lost his life. The august Supreme Court of Pakistan has held in the case of “MUHAMMAD JAMSHAID and another vs. The State and others” (2016 SCMR 1019 ) as under:

“only circumstance relied upon by the prosecution was that the deadbody of the deceased had been found inside the house of the appellant and, hence, it was concluded by the courts below that it must be none other than the present appellant who had done the deceased to death. We have found such an approach adopted by the courts below to be nothing but speculative”.

The august Supreme Court of Pakistan has held in the case of “Arshad Khan vs. The State” (2017 SCMR 564 ) as under:

“It may be true that it has been held by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) that in such cases some part of the onus lies on the accused person to explain as to how and in which circumstances

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

the accused person's wife had died an unnatural death inside the confines of the matrimonial home but at the same time it has also been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the prosecution completely fails to discharge its initial onus there no part of the onus shifts to the accused person at all.”

The august Supreme Court of Pakistan has held in the case of Nazeer Ahmed vs. The State (2016 SCMR 1628 ) as under:

“It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Abdul Majeed v. The State (2011 SCMR 941) and Saeed Ahmed v. The State (2015 SCMR 710).”

The august Supreme Court of Pakistan has held in the case of Asad Khan vs.

The State (PLD 2017 Supreme Court 681 ) as under:

“It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house; It had, however, been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement.”

The august Supreme Court of Pakistan has held in the case of Abdul Majeed vs. The State (2011 SCMR 941 ) as under:

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

“The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence. However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed.”

23.The learned Deputy Prosecutor General and the learned counsel for the complainant, have also relied upon the recovery of the Pistol (P-5) and have submitted that they offered sufficient corroboration of the ocular account of the occurrence as furnished by Asad Mahmood (PW-3) and Muhammad Afzal (PW-4). The recovery of the Pistol (P-5) does not offer any corroboration of the statements of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) for the simple reason that the said Pistol (P-5) was not recovered from the possession of either of the appellants. Initially, in the written application (Exh.PA) of Asad Mahmood (PW-3) it had been got recorded that the appellant namely Muhammad Imran was apprehended by the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) along with the Pistol and both the appellant namely Muhammad Imran and the pistol were handed over to Muhammad Taj, ASI (PW-2) but subsequently the prosecution witnesses abandoned the said claim.

Muhammad Afzal (PW-4) admitted during cross-examination that Asad Mahmood (PW-3) had never handed over the Pistol to Muhammad Taj, ASI (PW-2). Muhammad Afzal (PW-4) during cross-examination stated as under:-

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

“Asad did not hand over the pistol to Taj ASI. Volunteered the police official forbade us from touching any articles from the place of occurrence.”(emphasis supplied)

Muhammad Taj, ASI (PW-2) also claimed that the pistol was never produced by the witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-

4)before him and he had not taken the said pistol into his possession during his stay at the place of occurrence. Muhammad Taj, ASI (PW-2) during cross- examination stated as under:-

“ Pistol was not produced before me at that time

I had seen the pistol lying under the bad (sic) and I had forbade the complainant party from touching the pistol. I myself had also not touched the pistol. I remained present at the spot about one and half hour. IO.

reached the spot in my presence.” (emphasis supplied)

Subsequently, Shafaqat Ali, (PW-11), the Investigating Officer of the case , claimed that it was the Crime Scene Unit Bahawalpur which took the pistol (P-5) into its possession which was lying under a bed and thereafter handed over the same to Shafaqat Ali, (PW-11), the Investigating Officer of the case.

Shafaqat Ali, (PW-11), the Investigating Officer of the case also admitted that during the course of investigation, no officer of the Crime Scene Unit Bahawalpur joined the investigation of the case. Even during the trial, no such officer of the Crime Scene Unit Bahawalpur appeared before the learned trial court to prove the recovery of the Pistol (P-5) from the place of occurrence.

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

Shafaqat Ali, (PW-11), the Investigating Officer of the case, during cross- examination stated as under:-

“Pistol the weapon of offence was taken into possession by Crime Scene Unit Bahawalpur, thereafter they prepared the parcel and handed over to me .The pistol was lying under the bed and from there Crime Scene Unit took the same into custody. The fact mentioned in the F.I.R that pistol was produced by the complainant party does not relate to me as it relates to police official who recorded the statement u/s 154 Cr P.C.

I had not cited the officials of crime scene unit as witnesses in this case” (emphasis supplied) .

We have also perused the report of the Punjab Forensic Science Agency, Lahore (Exh.PM) related to the development of latent fingerprints on the Pistol, magazine and three live bullets loaded in the magazine, however, no latent prints could be developed and it was not determined that the appellant namely Muhammad Imran had handled the Pistol, magazine and three live bullets loaded in the magazine. In this manner, the recovery of the Pistol (P-

5)cannot be considered as evidence corroborating the ocular account of the occurrence. 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.

24.Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by Asad Mahmood (PW-3) in the written

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

application (Exh. PA) was that an illicit relationship had developed between the appellants. We have perused the statements of the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) and find that they failed to prove the motive of the occurrence as stated by them. The prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) never claimed that they had any idea regarding the alleged illicit relationship which had developed between the appellants. Asad Mahmood (PW-3) also admitted that he had not ever discussed the matter of the illicit relationship between the appellants with the deceased. Both the prosecution witnesses namely Asad Mahmood (PW-3) and Muhammad Afzal (PW-4) did not give any details as to when they had come to know about the alleged illicit relationship between the appellants and also did not claim that they had ever seen the appellants in the company of each other or that any altercation had taken place between the deceased and the appellant namely Mst. Sajida Bibi with regard to her illicit liaison with the appellant namely Muhammad Imran.

Shafaqat Ali, (PW-11), the Investigating Officer of the case, also did not collect any evidence with regard to the alleged motive of the occurrence or the fact as to whether the appellants had any relationship with each other. 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. There is a poignant hush 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

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

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.”

25.The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Mobeen Ahmad (PW-7) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellants’ conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:

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

The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court 600) has enunciated the following principle of law:

“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

"corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. 32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”

26.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Muhammad Imran son of Abdul Salam and Mst. Sajida Bibi wife of Maqbool Ahmad 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).”

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

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 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.”

27.For what has been discussed above, the Criminal Appeal No.59-J of 2019 lodged by Muhammad Imran son of Abdul Salam (appellant) and the Criminal Appeal No.61-J of 2019 lodged by Mst. Sajida Bibi wife of Maqbool Ahmad are allowed and the conviction and sentences of the appellants namely Muhammad Imran son of Abdul Salam (the appellant in Criminal Appeal No.59-J of 2019) and Mst. Sajida Bibi wife of Maqbool Ahmad (the appellant in Criminal Appeal No.61-J of 2019) awarded by the learned trial court through the impugned judgment dated 29.01.2019 are hereby set-aside. The

Murder Reference No.02 of 2019 Criminal Appeal No. 59-J of 2019 Criminal Appeal No. 61-J of 2019

appellants namely Muhammad Imran son of Abdul Salam (the appellant in Criminal Appeal No.59-J of 2019) and Mst. Sajida Bibi wife of Maqbool Ahmad (the appellant in Criminal Appeal No.61-J of 2019) are ordered to be acquitted by extending them the benefit of the doubt. The appellants namely Muhammad Imran son of Abdul Salam (the appellant in Criminal Appeal No.59-J of 2019) and Mst. Sajida Bibi wife of Maqbool Ahmad (the appellant in Criminal Appeal No.61-J of 2019) are in custody and are directed to be released forthwith if not required in any other case.

28.Murder Reference No.02 of 2019 is answered in Negative and the sentence of death awarded to Muhammad Imran son of Abdul Salam is Not Confirmed.

(ALI ZIA BAJWA) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

Approved for Reporting

JUDGE JUDGE