Allah Rakha etc. vs State etc.

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR .

JUDICIAL DEPARTMENT

Murder Reference No. 14 of 2021 (The State Vs. Allah Rakha)

Criminal Appeal No. 408 of 2021 (Allah Rakha and another Vs. The State and another.)

JUDGMENT

Date of hearing: 28.11.2022.

Appellants by: Mr. Muhammad Umair Mohsin, Advocate. State by: Ch. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Mr. Saleem Abbas, Advocate.

SADIQ MAHMUD KHURRAM, J.–– The convicts namely

Allah Rakha son of Muhammad Yaseen and Muhammad Ramzan son of Muhammad Ilyas were tried along with Tariq and Allah Ditta, their co- accused, both since acquitted, by the learned Additional Sessions Judge, Fortabbas in case F.I.R. No.25 of 2021 dated 28.01.2021 registered at Police Station Marrot, District Bahawalnagar in respect of offences under sections 302, 452, 324, 337-F(vi), 337-L(2), 34 and 109 P.P.C. for committing the Qatl-i-Amd of Mst. Noor Fatima daughter of Muhammad Saleem (deceased).

The learned trial court vide judgment dated 30.09.2021, convicted Allah Rakha son of Muhammad Yaseen and Muhammad Ramzan son of Muhammad Ilyas (convicts) and sentenced them as infra:

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Allah Rakha son of Muhammad Yaseen.

i)Death under section 302(b) P.P.C. as Tazir for committing Qatl- i-Amd of Mst Noor Fatima daughter of Muhammad Saleem (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment.

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

ii)Rigorous Imprisonment for ten years under section 324 P.P.C. for attempting to commit Qatl-i-Amd of Manzoor Ahmad (PW-1) and directed to pay fine of Rs. 50,000/- and in default thereof to undergo further simple imprisonment for six months.

iii)Pay Daman of Rs.50,000/- under section 337-L(2) P.P.C. to Manzoor Ahmad (PW-1) and in default thereof to be kept in jail till the payment of the same and the period of imprisonment due to failure to pay Daman be considered as simple imprisonment.

iv)Rigorous Imprisonment for ten years under section 324 P.P.C. for attempting to commit Qatl-i-Amd of Haram Fatima and directed to pay fine of Rs. 50,000/- and in default thereof to further six months of simple imprisonment.

v)Pay Daman of Rs.1,00,000/- under section 337-F(vi) P.P.C. to Haram Fatima and in default thereof to be kept in jail till the payment of the same and the period of imprisonment due to failure to pay Daman be considered as simple imprisonment.

vi)Rigorous Imprisonment for seven years under section 452 P.P.C. and directed to pay fine of Rs. 50,000/- and in default thereof to further six months of simple imprisonment.

Muhammad Ramzan son of Muhammad Ilyas.

i)Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Mst Noor Fatima daughter of Muhammad Saleem (deceased) and directed to pay Rs.400,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment.

ii)Rigorous Imprisonment for seven years under section 324 P.P.C. for attempting to commit Qatl-i-Amd of Manzoor Ahmad (PW-1) and directed to pay fine of Rs. 30,000/- and in default thereof to undergo further simple imprisonment for six months.

iii)Rigorous Imprisonment for seven years under section 324 P.P.C. for attempting to commit Qatl-i-Amd of Haram Fatima and

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directed to pay fine of Rs. 30,000/- and in default thereof to further six months of simple imprisonment.

All the sentences awarded to the convict namely Muhammad Ramzan son of Muhammad Ilyas were ordered to run concurrently by the learned trial court and the benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was also extended to the convict namely Muhammad Ramzan by the learned trial court.

2.Feeling aggrieved, Allah Rakha son of Muhammad Yaseen and Muhammad Ramzan son of Muhammad Ilyas (convicts) lodged Criminal Appeal No.408 of 2021 assailing their conviction and sentences. The learned trial court submitted Murder Reference No.14 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Allah Rakha son of Muhammad Yaseen. We intend to dispose of the Criminal Appeal 408 of 2021 and Murder Reference No.14 of 2021 through this single judgment.

3.Precisely, the facts necessary, as disclosed through the statement of Manzoor Ahmad (PW-1), the complainant of the case, are as under:- “Stated that Mst.Sumaira Bibi solemnized marriage with me against the wishes of her brothers and she is owner of land measuring 4/5 kanals. My wife promised to return said land to her brothers. On 28.01.2021 at about 11:00 am, accused Allah Rakha S/o Muhammad Yasin, Muhammad Ramzan S/o Ilyas came by riding on 125 motorcycle and entered into my house. I made hue and cry, witnesses Muhammad Asghar S/o Wali Muhammad and Shah Rasool S/o Shair Muhammad attracted at the spot. Meanwhile, accused Allah Rakha made fire shot with pistol which hit on my left arm, while he made second fire shot on my left buttock which went through and through. I fell down and I saw that my niece Noor Fatima, who was present in the court yard of my house, accused Allah Rakha made fire shot at my niece Noor Fatima which hit on her right thigh. Accused Allah Rakha again made fire shot on my niece Haram Fatima which hit on her right lower leg. PWs Asghar and Shah Rasool tried to stop the accused Allah Rakha but he made fire shot at P.W.s but they escaped. Then accused persons fled away by riding on motorcycle along with pistol. Then P.W.s took us to Hospital Marrot. Police came at R.H.C Marrot and recorded my statement Exh.P.A, upon which I affixed my thumb impression and signatures Exh.P.A/1. Then, I along with my nieces Haram Fatima

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and Noor Fatima were referred to BVH Bahawalpur. On the same night at about 1 1/2/02:00 a.m i.e. 29.01.2021, my niece Noor Fatima succumbed to the injuries. Accused Allah Rakha and Muhammad Ramzan committed the occurrence on the abetment of Liaqat S/o Khurasheed, Tariq S/o Shoukat and Allah Ditta S/o Yasin.”

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 04.05.2021, to which the appellants pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case, got recorded statements of as many as fourteen witnesses. The ocular account of the case was furnished by Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3). Nadeem Asghar 295/H.C. (PW-4) stated that on 28.01.2021, Sikandar Hayat, A.S.I. (PW-13) , the Investigating Officer of the case , handed over to him three sealed parcels said to contain blood stained earth and one sealed parcel said to contain empty shells of the bullets recovered from the place of occurrence and on 08.02.2021, he handed over the three sealed parcels said to contain blood stained earth and one sealed parcel said to contain empty shells of the bullets recovered from the place of occurrence to Sikandar Hayat, A.S.I. (PW-13) for their onward transmission to the office of the Collection Centre, Punjab Forensic Science Agency, Multan. Nadeem Asghar 295/H.C. (PW-4) further stated that on 16.02.2021, Muhammad Hafeez 74/C (PW-12) handed over to him three sealed envelopes, six sealed boxes, four small sealed boxes and the last worn clothes of the deceased and on 17.02.2021, he handed over the three sealed envelopes, six sealed boxes, four small sealed boxes and the last worn clothes of the deceased to Sikandar Hayat, A.S.I. (PW-13) for their onward transmission to the office of the

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Collection Centre, Punjab Forensic Science Agency, Lahore. Muhammad Din Abid, Draftsman (PW-5) prepared the scaled site plan of the place of occurrence (Exh. P.H.). Muhammad Maqbool (PW-6) stated that on 29.01.2021, he identified the dead body of the deceased at the time of its post mortem examination. Abdul Ali, A.S.I. (PW-9) stated that on 28.01.2021, he got recorded the formal F.I.R (Exh. P.P.). Muhammad Usman P.S.A. (PW-

10)stated that on 16.02.2021, he handed over the Call Data Record of the mobile phone device under the use of the appellant namely Allah Rakha to the Investigating Officer of the case. Sikandar Hayat, A.S.I. (PW-13) investigated the case from 28.01.2021 to 20.03.2021, arrested the appellants in this case on 08.02.2021 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. Muneeba Naveed (PW-7) examined, who on 29.01.2021 was posted as Woman Medical Officer at R.H.C. Marrot and on the same day conducted the postmortem examination of the dead body of the deceased namely Mst Noor Fatima daughter of Muhammad Saleem.

Dr. Muneeba Naveed (PW-7), after conducting the postmortem examination, observed as under:-

“DESCRIPTION OF INJURIES:

Two holes were present at front and back of thigh. On close examination, small wound was present at the back of thigh. Measurements were 3x1cm. It was 17cm away from the knee joint and 15cm from away from PSIS. A big hole was present on front of thigh measuring 3x2.5 cm. It was 15 cm away from knee joint and 10 cm away from ASIS. Swabs were taken from both.

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FINAL OPINION:

According to my opinion, the victim's death had occurred due to excessive loss of bleedings (sic) as a result of hurt caused by firearm.”

The prosecution also got Dr. Aroosa (PW-14) examined, who on 28.01.2021 was posted as Woman Medical Officer at R.H.C. Marrot and on the same day medically examined Mst Noor Fatima daughter of Muhammad Saleem (then injured later deceased). Dr. Aroosa (PW-14) after examining Mst. Noor Fatima daughter of Muhammad Saleem (then injured later deceased), observed as under:-:

“Complain of wound on right thigh. O/E, there was wound on anterior surface of right thigh. 12cm from symphysis pubis measuring 3x5cm with fresh blood in wound cavity. Wound was rounded in shape with irregular everted margins.

Redness was present on adjacent areas of the wound. No burning or tatooing present. The finger was easily passing through the wound cavity. There was another wound of posterior surface of right thigh measuring 3x3cm, 15cm away from popliteal fossa. Wound was round in shape with irregular inverted margins. Finger was easily penetrating through the wound cavity. However, patient was profusing, bleeding and vitally unstable. After resuscitation and first aid treatment given, patient was referred to BVH, Bahawalpur immediately in critically ill condition for further treatment and management.

Final result will be given after treatment notes from BVH, Bahawalpur. I prepared the M.L.C. No.334/2021 of Mst.Noor Fatima Exh.P.Y (attested by Dr.Mujahid, R.H.C. Marrot), which bears my signatures and stamp Exh.P.Y/1.

(Original record of M.L.C. No.334/2021 of Mst.Noor Fatima (since deceased) is shown to witness, who identified her writing, signatures and stamp).”

Dr. Aroosa (PW-14) on the same day i.e. 28.01.2021 also medically examined Mst.Haram Fatima, aged about five years and observed as under:-

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“Complain of wound on right leg. O/E, there was wound measuring 4x2.5cm on posterior surface of right leg about 11cm distal to popliteal fossa, oval in shaped, wound margins irregular and inverted. Cavitation was present. Fresh blood was coming out of wound. Blackening and tatooing was absent on adjacent areas of wound. There was another wound present at anterior aspect of right leg measuring 5x4 about 6.5 cm distal knee joint. Wound margins irregular and everted. Cavitation was present. Fresh blood coming out of wound. Blackening and tatooing was not present on adjacent areas of wound. However, patient was in critically ill condition. Patient referred to BVH, B.W.P. after giving first aid treatment. Final result will be given after treatment notes received from BVH, Bahawalpur.

DECLARATION:

According to surgical notes received from Department of Orthopedic and traumatology, BVH, Bahawalpur dated 19.03.2021, there was comminuted fracture of right tibia, so, injury was declared as Jurah Ghayr Jaifah Munaqqilah. I prepared the M.L.C. No.335/2021 Exh.P.Z, which bears my signatures and stamp Exh.P.Z/1. (Carbon copy present on file has been shown to her and she has identified her writing, signatures and stamp.)”

The prosecution also got Dr. Wasif (PW-11) examined, who on 28.01.2021, was posted as Medical Officer at R.H.C. Marrot and on the same day medically examined Manzoor Ahmad (PW-1). Dr. Wasif (PW-11), after examining Manzoor Ahmad (PW-1), observed as under:-:

“INJURY NO.1-

According to opinion of BVH Bahawalpur, a lacerated wound measuring about 5x2cm on posterior surface of left forearms about 7cm below left elbow joint. Adjacent area had redness but there was no scar mark, bruise or burning. There was no cutting of muscle, easy to moveable, bone crepitus not present.

INJURY NO.2.

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According to opinion of BVH, Bahawalpur surgeon, there was 1x1em penetrating wound (entry wound) on abdomen. The margins were irregular & inverted. No burning or tatooing present. The wound was 2cm blow & lateral to left iliac crest. The adjacent area have no bruise, laceration or scar mark. Blood was oozing from wound.

INJURY NO.3.

According to opinion of BVH, Bahawalpur surgeon, there was about 2x2cm larger wound (exit wound) on medial and upper quadrant of left hip and 4 inches away from anus. The wound was rounded with everted margins and irregular. No burning or tatooing present. The adjacent area have no bruise, laceration or scar mark. Fresh blood was oozing from wound.

OPINION:

Injury No.1 was declared other hurt U/S. 337-L(ii) PPC while injuries No.2&3 were firearm injuries. Probable duration of injuries was 2 to 4 hours. Possibility of fabrication, No.”

7.On 10.08.2021 the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Muhammad Saleem, Muhammad Latif, Shah Muhammad and Matloob Ahmad 891/C as being unnecessary. On 16.09.2021, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency, Lahore regarding the blood stained earth (ExPBB) and the report of Punjab Forensic Science Agency, Lahore (Exh. P.A.A.) regarding the analysis of the pistol recovered from the appellant namely Allah Rakha and the empty shells of the bullet collected from the place of occurrence.

Crl. Appeal No.408 of 2021

8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Allah Rakha son of Muhammad Yaseen and Muhammad Ramzan son of Muhammad Ilyas under section 342 Cr.P.C. and in answer to question why this case against you and why the P.W.s have deposed against you, the appellants replied that the case was false and the witnesses had deposed untruthfully. The appellants namely Allah Rakha son of Muhammad Yaseen and Muhammad Ramzan son of Muhammad Ilyas opted not to get themselves examined under section 340(2) Cr.P.C and did adduce any evidence in their defence.

9.At the conclusion of the trial, the learned trial court convicted and sentenced the appellants as referred to above.

10.The contention of the learned counsel for the appellants precisely is that the whole case is fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellants in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence was without any justification. He further contended that the statements of Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) were not worthy of any reliance. The learned counsel for the appellants further submitted that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.

Crl. Appeal No.408 of 2021

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellants. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3). The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the pistol from the appellant namely Allah Rakha and the report of the Punjab Forensic Science Agency, Lahore (Exh. P.A.A.) also corroborated the ocular account.

The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant, prayed for the rejection of the appeal.

12.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.

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13.In the first instance, we would like to discuss the prosecution case with regard to the appellant namely Muhammad Ramzan son of Muhammad Ilyas. We have observed that the case of the appellant namely Muhammad Ramzan son of Muhammad Ilyas is distinct from the case of the appellant namely Allah Rakha son of Muhammad Yaseen. According to the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-

2)and Muhammad Asghar (PW-3), the appellant namely Muhammad Ramzan son of Muhammad Ilyas had arrived at the place of occurrence along with his co-convict namely Allah Rakha (appellant) on a motorcycle, however, all the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) did not mention in their statements before the learned trial court that the appellant namely Muhammad Ramzan actually entered the premises of the house where the occurrence took place. Furthermore, all the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) stated that they had seen the appellant namely Allah Rakha, armed with a pistol, firing at the deceased as well as the injured witness, however, did not state that the appellant namely Muhammad Ramzan was even armed with any weapon or that if he even deboarded from the motorcycle which he was allegedly driving at the time of occurrence. It is also not discernible from the statements of the prosecution witnesses namely Manzoor Ahmad (PW- 1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) that the co-accused of the appellant namely Allah Rakha (the other appellant) needed any help of the appellant namely Muhammad Ramzan in committing the murder of the deceased or causing injuries to the witnesses. We have also noted that during the course of investigation, Sikandar Hayat, A.S.I. (PW-13), the Investigating

Crl. Appeal No.408 of 2021

Officer of the case, did not observe any trail marks of the wheels of the motorcycle which was allegedly being driven by the appellant namely Muhammad Ramzan at the time of occurrence. We have also noted that according to the scaled site plan of the place of occurrence (Exh. P.H.) as prepared by Muhammad Din Abid, draftsman (PW-5) and the rough site plan of the place of occurrence (Exh. P.U.) as prepared by Sikandar Hayat, A.S.I.

(PW-13), the presence of the appellant namely Allah Rakha has been mentioned as point No.1 in the said site plans, whereas the presence of the motorcycle, which motorcycle the appellant namely Muhammad Ramzan was driving at the time of occurrence, has been shown as point No.6 in the site plan having a distance of as many as 110 feet from each other. In this manner, the prosecution could not prove that the appellant namely Muhammad Ramzan was even in knowledge of what the other appellant namely Allah Rakha was doing at the time of occurrence, when, allegedly the appellant namely Muhammad Ramzan was present as far as 110 feet away on a motorcycle. The most important fact proving the failure of the prosecution to prove the presence of the appellant namely Muhammad Ramzan, at the place of occurrence, at the time of the occurrence, remains the evidence of the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) who all never stated that the appellant namely Muhammad Ramzan either accompanied the other appellant namely Allah Rakha to the place of occurrence or that the appellant namely Muhammad Ramzan even deboarded from the motorcycle. The learned Deputy Prosecutor General has also argued that on 14.02.2021, the appellant namely Muhammad Ramzan led to the recovery of the motorcycle, hence, the statements of the prosecution witnesses namely Manzoor Ahmad

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(PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) are supported sufficiently. The recovery of the motorcycle from the appellant namely Muhammad Ramzan cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the said recovery, which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recovery of the motorcycle cannot be used as incriminating evidence against the appellant namely Muhammad Ramzan, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The provisions of section 103 Code of Criminal Procedure, 1898, 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.”

We have also noted that the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) failed to

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establish any connection of the appellant namely Muhammad Ramzan with the motive due to which the occurrence had taken place. For the reasons mentioned above, we are of the opinion that the appellant namely Muhammad Ramzan son of Muhammad Ilyas has a distinguishable case from the other appellant namely Allah Rakha son of Muhammad Yaseen.

Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Ramzan son of Muhammad Ilyas 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 Reliance is also placed on the judgment of the august Supreme Court of Pakistan in the case of “Najaf Ali Shah Vs. the State” (2021 S C M R 736) in which it has been observed 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

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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 eyewitnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

For what has been discussed above, Criminal Appeal No.408 of 2021 lodged by the appellants is allowed to the extent of the appellant namely Muhammad Ramzan son of Muhammad Ilyas by extending the benefit of doubt to the appellant namely Muhammad Ramzan son of Muhammad Ilyas and the conviction and sentences of the appellant namely Muhammad Ramzan son of Muhammad Ilyas, awarded by the learned trial court through the impugned judgment dated 30.09.2021 are hereby set-aside. Muhammad Ramzan son of Muhammad Ilyas (the appellant) is ordered to be acquitted.

Muhammad Ramzan son of Muhammad Ilyas (the appellant) is in custody and is directed to be released forthwith if not required in any other case.

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15.We would now discuss the case of the appellant namely Allah Rakha son of Muhammad Yaseen. The whole prosecution case against the appellant namely Allah Rakha son of Muhammad Yaseen revolves around the statements of Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3). The witnesses namely Manzoor Ahmad (PW-

1)and Shah Rasool (PW-2) were related to each other and the deceased. Their relationship with the deceased is also on record. The deceased namely Mst.

Noor Fatima was the niece of Manzoor Ahmad (PW-1) and Shah Rasool (PW-2). It is also a fact that the prosecution witness namely Muhammad Asghar (PW-3) was not even related to either the other witnesses or the deceased or the accused and in that manner, was quite an independent witness. The prosecution witness namely Muhammad Asghar (PW-3) during cross-examination stated as under:-

“ I have no relationship/rishtadari with complainant Manzoor Ahmed.”

We have noted that the prosecution witnesses namely Manzoor Ahmad (PW- 1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3), in a very natural and forthright manner, narrated the incidence and gave each and every detail of the same with regard to the role of the appellant namely Allah Rakha. More importantly the occurrence took place inside the house of prosecution witness namely Manzoor Ahmad (PW-1) on 28.01.2021 at about 11.00 a.m. and the presence of the prosecution witness namely Manzoor Ahmad (PW-1) at that time inside his own house, where the occurrence took place, cannot be doubted and was but natural. Reference is made to the judgment in the case titled as “Abid Ali v. The State” (2017 SCMR 662) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

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“The occurrence in this case had taken place early in the morning in the month of May at a time when the day had already broken. The appellant was not only an immediate neighbour of Fateh Bibi complainant (PW10) but he was also related to the complainant party as the complainant was the appellant's aunt. Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the complainant in her house at that time was nothing but natural and expected.”

Reference is made to the judgment in the case titled as “Nadeem Raamzan v.

The State” (2018 SCMR 149) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The said eye-witnesses were inmates of the house wherein the occurrence had taken place and, thus, were nothing but natural witnesses.”

Reference is made to the judgment in the case titled as “Muhammad Ikram and another v. The State” (2011 SCMR 1133) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- “Aqeel Shahzad (complainant) and her sister Mst. Saima were natural witnesses as the occurrence took place inside the house where they were residing.”

With regard to the arrival of the prosecution witnesses namely Shah Rasool (PW-2) and Muhammad Asghar (PW-3) at the place of occurrence, the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-

2)and Muhammad Asghar (PW-3) explained that it was on the hearing of the hue and cry that both the prosecution witnesses namely Shah Rasool (PW-

2)and Muhammad Asghar (PW-3) rushed to the place of occurrence and witnessed the same. The prosecution witness namely Manzoor Ahmad (PW- 1), during cross-examination, stated as under:-

“ On my hue and cry, P.W.s attracted at the spot immediately.”

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The prosecution witness namely Shah Rasool (PW-2) during cross- examination, stated as under:-

“On hearing first fire, I stood up and on second fire, I ran towards the place of occurrence. I was working at the distance of half an acre at the time of occurrence.”

The prosecution witness namely Muhammad Asghar (PW-3), during cross- examination, stated as under:-

“As soon as I heard noise of fire shot, I ran out of my house and reached at the place of occurrence where accused Allah Rakha made other fire shots. ”

The prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) also explained that the injured and the deceased were taken to the hospital immediately by the prosecution witnesses Shah Rasool (PW-2) and Muhammad Asghar (PW-3) , which also proves the presence of the prosecution witnesses Shah Rasool (PW-2) and Muhammad Asghar (PW-3) at the place of occurrence , at the time of occurrence. The prosecution witness namely Manzoor Ahmad (PW-1), during cross-examination stated as under:-

“I, Mst. Noor Fatima and Haram Fatima were brought to R.H.C Marrot by Shah Rasool and Muhammad Saleem through car.”

The prosecution witness Shah Rasool (PW-2), during cross-examination stated as under:-

“Injured persons were taken to hospital by me along with Muhammad Saleem and Muhammad Asghar ”

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The statements of the witnesses Manzoor Ahmad (PW-1), Shah Rasool (PW-

2)and Muhammad Asghar (PW-3) prove that they were present at the place of occurrence at the time of occurrence and that they had also witnessed the occurrence which had taken place inside the house of the prosecution witness namely Manzoor Ahmad (PW-1). The defence could not prove that the said witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) were not present at the place of occurrence at the time of occurrence. We have scrutinized the evidence of Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) and find that they were proved to be truthful witnesses and implicit reliance can be placed upon their statements as against the appellant namely Allah Rakha son of Muhammad Yaseen. There is no evidence on record that Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) were motivated by any enmity to depose against the appellant namely Allah Rakha son of Muhammad Yaseen. As mentioned above, no friction between the appellant Allah Rakha son of Muhammad Yaseen and the witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) existed prior to the occurrence which could have interested Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) to get the appellant namely Allah Rakha son of Muhammad Yaseen involved in this occurrence falsely. The prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) were subjected to cross-examination but the defence had failed to make cracks in their deposition with regard to the appellant Allah Rakha son of Muhammad Yaseen and the veracity of their statements has been proved. The august

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Supreme Court of Pakistan in the case of “GHULAM ALI and another versus THE STATE” (2002 SCMR 1205) held as under:-

“As reflected from the ocular account the occurrence had taken place in front of main gate of the house of the complainant. They are natural witnesses and their presence at the place of incident cannot be doubted in any manner.”

The prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) by no stretch of imagination, can be declared as chance witnesses, as pressed time and again by the learned counsel appearing on behalf of the appellants, because they have rendered a plausible justification for their presence at the place of occurrence. During the course of investigation, Sikandar Hayat, A.S.I. (PW-13) , the Investigating Officer of the case, also collected the blood stained earth from the place where the blood of Manzoor Ahmad (PW-1) had fallen and took the same into possession through recovery memo (Exh. P.C.) and also collected the blood stained earth from where the blood of the deceased had fallen and took the same into possession through recovery memo (Exh. P.D.)

and also collected blood stained earth from the place where the blood of Mst.

Haram Fatima had fallen and took the same into possession through recovery memo (Exh. P.E.). The report of the Punjab Forensic Science Agency, Lahore (Exh.PBB) establishes that the said blood taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site plan (Exh. P.U.) as prepared by Sikandar Hayat, A.S.I. (PW-13) and the scaled site plan of the place of occurrence (Exh. P.H.) as prepared by Muhammad Din Abid, draftsman (PW-5). There is no such material available on record which would indicate substitution of the appellant namely Allah

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Rakha in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of “Irshad Ahmad and others v. The State and others” (PLD 1996 SC 138). The appellant namely Allah Rakha has not been able to establish any animosity of the complainant or the police for his false involvement in the case.

Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3), in a straightforward manner, held the appellant namely Allah Rakha responsible for the murder of Mst. Noor Fatima (deceased). Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony. In this regard, reference is made to the judgment in the case titled as “Ijaz Ahmad v. The State” (2009 SCMR 99) wherein the August Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."

16.We have also noted that the presence of the prosecution witness namely Manzoor Ahmad (PW-1) at the place of occurrence cannot be doubted as he had stamp of injuries on his body. The prosecution got Dr.

Wasif (PW-11) examined, who on 28.01.2021, was posted as Medical Officer at R.H.C. Marrot and on the same day had medically examined Manzoor Ahmad (PW-1). Dr. Wasif (PW-11), after examining Manzoor Ahmad (PW-1) observed a lacerated wound, measuring about 5 cm x2cm,

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present on the posterior surface of the left forearms, about 7cm below the left elbow joint of Manzoor Ahmad (PW-1) and also observed a penetrating wound of the dimension of 1cm x 1cm present on the abdomen of the prosecution witness namely Manzoor Ahmad (PW-1) and the bullet exited from the medial and upper quadrant of left hip and 4 inches away from anus of Manzoor Ahmad (PW-1). Dr. Wasif (PW-11) had further opined that the injuries suffered by Manzoor Ahmad (PW-1) had been received by him two to four hours prior to his examination. This opinion of Dr. Wasif (PW-11) regarding the duration of injuries is also conversant with the time of occurrence as given by the witnesses. Dr. Wasif (PW-11) also opined that there was no possibility of fabricating the injuries observed on the person of Manzoor Ahmad (PW-1). As the prosecution witness namely Manzoor Ahmad (PW-1) was proved to have been injured during the occurrence, hence, his presence at the place of occurrence, at the time of occurrence, cannot be doubted. With this realization in mind, the failure of the defence to impute any reason to the prosecution witness namely Manzoor Ahmad (PW-1) for making a false statement against the appellant namely Allah Rakha, makes the statement of Manzoor Ahmad (PW-1) worthy of implicit reliance. The august Supreme Court of Pakistan in the case of “Khadim Hussain vs. The State” (P L D 2010 Supreme Court 669) has held as under:-

“We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17.”

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Reliance is also placed on the case of “KHADIJA SIDDIQUI and another Vs.

SHAH HUSSAIN and another” (P L D 2019 Supreme Court 261) wherein the august Supreme Court of Pakistan observed that implicit reliance could be placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye- witness namely Sofia Siddiqui of that case.

17.We have also valued the fact that, as mentioned above, the occurrence in question had admittedly taken place in broad daylight at 11.00 a.m and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. As it was a broad daylight occurrence and because of the fact that the appellant namely Allah Rakha was well known to the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3), the question of his misidentification even does not arise. It is also a fact of the prosecution case that there was nothing in the line of sight of the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) and the place where the appellant namely Allah Rakha was present.

Sikander Hayat A.S.I. (PW-13), the Investigating Officer of the case, during cross-examination stated as under:-

“There is no hindrance between point No.1 of rough site plan Exh.P.U where the accused Allah Rakha was present and the door of room of complainant.”

The above portion of the cross-examination of Sikander Hayat A.S.I. (PW- 13), the Investigating Officer of the case, proves that there was nothing in the

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line of sight of the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) and the place where the appellant namely Allah Rakha was present, which obstacle could have obstructed the view of the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) and prevented them from witnessing the appellant namely Allah Rakha committing occurrence.

18.We have also appreciated the fact that the occurrence in this case took place at about 11.00 a.m and was reported by the complainant namely Manzoor Ahmad (PW-1), immediately. According to the prosecution evidence, the oral statement (Exh. P.A.) of Manzoor Ahmad (PW-1) was recorded at the R.H.C. by Sikandar Hayat, A.S.I. (PW-13) on the day of the occurrence at about 01.25 p.m. and the formal F.I.R (Exh. P.P.) was registered at the Police Station at 01.55 p.m. on the same day when the distance between the place of occurrence and the Police Station was as much as 12 kilometers. It was explained by the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) that during the occurrence, the prosecution witness namely Manzoor Ahmad (PW-1), Haram Fatima and Mst. Noor Fatima (deceased) were injured and were immediately taken to the hospital in an injured condition. It was in these circumstances that the oral statement (Exh. P.A.) of the complainant namely Manzoor Ahmad (PW-1) was recorded at the R.H.C.

Marrot on the day of occurrence at 01.25 p.m. Thus, it is apparent that the oral statement (Exh. P.A.) of Manzoor Ahmad (PW-1) was recorded immediately and the formal F.I.R (Exh. P.P.) was registered with remarkable

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promptitude, especially when Manzoor Ahmad (PW-1), the complainant of the case, himself was grievously injured and had also suffered the trauma of serious injuries being caused to his young nieces namely Mst. Noor Fatima (deceased) and Haram Fatima at the hands of the appellant namely Allah Rakha. Manzoor Ahmad (PW-1), not only named the appellant Allah Rakha but also mentioned each and every minor as well as a material fact of the incident in his oral statement (Exh. P.A.) which of course, excludes the possibility of deliberation or consultation regarding the false implication of the appellant namely Allah Rakha in the instant case. The essential features of the occurrence have been elaborately explained in the oral statement (Exh.

P.A.) of Manzoor Ahmad (PW-1). The promptitude in lodging of the F.I.R.

also corroborates the case of the prosecution as against the appellant namely Allah Rakha. This promptitude in reporting the matter to the police also establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as “Muhammad Waris v. The State” (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death.”

Reliance is also placed on the case of “Muhammad Arshad Versus The State” (2020 S C M R 2025) wherein it has been held as under:- “There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that

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there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society.”

Reliance is also placed on the case of “Noor Sultan and others Versus The State” (2021 S C M R 176) wherein it has been held as under:- “The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution.”

Reliance is also placed on the case of “Shaheen Ijaz Alias Babu Versus The State” (2021 S C M R 500) wherein it has been held as under:- “ ..........petitioner's nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation.”’

Reference is also made to the judgment in the case titled as “Muhammad Aslam v. The State” (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“F.I.R. in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt.”

During the course of the trial, it was proved that the oral statement (Exh.

P.A.) of Manzoor Ahmad (PW-1), upon the basis of which the formal F.I.R (Exh. P.P.) was registered, was a genuine document and was made spontaneously, naturally and contained the true facts, devoid of any manipulation.

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19.The medical evidence produced by the prosecution in the case, proves that the deceased namely Mst. Noor Fatima succumbed to the injury caused by the appellant namely Allah Rakha and the prosecution witness namely Manzoor Ahmad (PW-1) and Haram Fatima, aged about five years received serious injuries on vital parts of their bodies at the hands of the appellant namely Allah Rakha. The medical evidence fully supports the ocular account.

Dr. Muneeba Naveed (PW-7), on conducting the post mortem examination of the dead body of the deceased namely Mst.Noor Fatima, observed a wound present on the back of the right thigh of the dead body of the deceased namely Mst. Noor Fatima. Dr. Muneeba Naveed (PW-7) opined that the injury observed by her on the dead body of Mst. Noor Fatima (deceased) was caused by the use of a firearm weapon and was sufficient to cause death in the ordinary course of nature. As mentioned above, all the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) saddled the appellant namely Allah Rakha with the responsibility of causing the said fatal injury to Mst.Noor Fatima (deceased).

We have already mentioned that Dr. Wasif (PW-11), after examining Manzoor Ahmad (PW-1), observed a lacerated wound, measuring about 5 cm x 2cm, present on the posterior surface of the left forearms, about 7cm below the left elbow joint of Manzoor Ahmad (PW-1) and also observed a penetrating wound of the dimension of 1cm x 1cm present on the abdomen of the prosecution witness namely Manzoor Ahmad (PW-1) and the bullet exited from the medial and upper quadrant of left hip and 4 inches away from anus of Manzoor Ahmad (PW-1). Dr. Wasif (PW-11) had further opined that the injuries suffered by Manzoor Ahmad (PW-1) had been received by him two to four hours prior to his examination. Dr. Wasif (PW-11) also opined

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that there was no possibility of fabricating the injuries observed on the person of Manzoor Ahmad (PW-1). The prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) held the appellant namely Allah Rakha responsible for causing the said serious injuries on the vital parts of the body of Manzoor Ahmad (PW-1) and Mst.

Haram Fatima, aged about five years. In view of the above discussion, it is ascertained and proved that the intent of the appellant namely Allah Rakha was to cause death and that he is guilty of Qatl-i-Amd of the deceased namely Mst. Noor Fatima daughter of Muhammad Saleem and the appellant namely Allah Rakha is also guilty of attempting to commit Qatl-i-Amd of the prosecution witnesses Manzoor Ahmad (PW-1) as well as Mst. Haram Fatima, aged about five years.

20.Regarding the recovery of the Pistol from the appellant namely Allah Rakha son of Muhammad Yaseen, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said from the appellant namely Allah Rakha which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore, cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. 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

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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.”

Furthermore, though the empty shells of the bullets (P-5/1-5) were taken into possession by the Investigating Officer of the case on 28.01.2021, however, the same were not handed over to Sikandar Hayat, A.S.I. (PW-13) for depositing them in the Punjab Forensic Science Agency, Lahore till 08.02.2021, the very day when the appellant namely Allah Rakha was arrested by Sikandar Hayat, A.S.I. (PW-13) . This makes the effort of padding up the prosecution case against the appellant namely Allah Rakha by procuring a favourable report of the Punjab Forensic Science Agency, Lahore quite obvious. In view of the above-mentioned facts, the alleged recovery of the Pistol is not proved and the same cannot be used as a circumstance against the appellant namely Allah Rakha son of Muhammad Yaseen.

21.The motive of the occurrence, as mentioned by the prosecution witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3) was that the appellant namely Allah Rakha son of Muhammad Yaseen harboured a grudge against Manzoor Ahmad (PW-1) for not transferring the land in the name of Mst. Sumera, the wife of Manzoor Ahmad (PW-1) in the name of the appellant namely Allah Rakha.We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. Though in the oral statement (Exh.

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P.A.) the prosecution witness namely Manzoor Ahmad (PW-1) had got recorded that it was him who had promised to transfer the land owned by his wife namely Mst. Sumera Bibi in the name of the accused, however, while appearing before the learned trial court, Manzoor Ahmad (PW-1) stated that it was his wife who had promised to transfer the land in the name of the accused. Furthermore, the prosecution witnesses namely Manzoor Ahmad (PW-1) and Shah Rasool (PW-2), both admitted during cross-examination that Mst. Sumera Bibi was present in the same house where the occurrence had taken place. The prosecution witness namely Manzoor Ahmad (PW-1), during cross-examination stated as under:-

“On the day of occurrence. my children went to the house of my in- laws of my first wife and my wife Mst. Sumaira was present in the house.”

Mst. Sumera Bibi neither appeared before the Investigating Officer of the case, during the investigation of the case nor appeared before the learned trial court in support of the motive alleged. To prove the motive available with the accused for committing the occurrence, it was imperative that Mst. Sumera should have not only been made to join the investigation of the case and get her statement recorded but she should have also been produced before the learned trial court, as being the best witness to give evidence with regard to the motive of the occurrence. 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 accused, namely Allah Rakha as against the deceased or Manzoor Ahmad (PW-1), which motivated them to act in the manner in which he did.

The prosecution did not produce any documentary evidence in support of the

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motive alleged. It is also admitted part of the prosecution case that no litigation or any proceedings were pending with regard to the transfer of the share of the property of Mst. Sumera to anyone. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant namely Allah Rakha to have committed the Qatl- i-Amd of the deceased namely Mst. Noor Fatima. There is an evocative silence with regard to the particulars of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of “Muhammad Asif v. The State” (2008 SCMR 1001) as under:

“Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side.”

So, this leads us to the conclusion that the prosecution remained unable to prove the motive as alleged.

22.We have disbelieved the evidence of prosecution qua the motive and recovery of the Pistol from the appellant namely Allah Rakha in this case.

However, if the evidence of motive and recovery of the Pistol from the appellant namely Allah Rakha is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Allah Rakha son of Muhammad Yaseen to prove the case of the prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Manzoor Ahmad (PW-1), Shah Rasool (PW-2) and Muhammad Asghar (PW-3). The said eye-witnesses stood the test of lengthy cross-examination

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but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Muneeba Naveed (PW- 7), Dr. Aroosa (PW-14) and Dr. Wasif (PW-11), therefore, we hold that the prosecution has proved its case against the appellant namely Allah Rakha son of Muhammad Yaseen beyond the shadow of any doubt.

23.Now, coming to the quantum of the sentence, we have noted some mitigating circumstances in favour of the appellant namely Allah Rakha son of Muhammad Yaseen, firstly, the evidence of recovery of the Pistol from the possession of the appellant namely Allah Rakha son of Muhammad Yaseen has been disbelieved by us for the reason mentioned in Para No.20 of this judgment, secondly the prosecution had alleged a specific motive in this case but failed to prove the same. It is a well- recognized principle by now that the question of quantum of the sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard, we respectfully refer the case of “Mir Muhammad alias Miro v.

The State” (2009 SCMR 1188) wherein august Supreme Court has held as under:-

"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."

The august Supreme Court of Pakistan has held in the case of “Ansar Ahmad Khan Barki v. The State and another” (1993 SCMR 1660), that the

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prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Allah Rakha son of Muhammad Yaseen, in the peculiar circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the appellant, which had resulted in the death of the deceased namely Mst. Noor Fatima, therefore, in our view, the death sentence awarded to the appellant is quite castigatory. It has been held in a number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of “Ahmad Nawaz and another v. The State” (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:-

"10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl- i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that

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an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".

The august Supreme Court of Pakistan has held in the case of “Mst. NAZIA ANWAR v. The State and others” (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under :- “In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.”

We are also fortified in our view in this regard by the cases of “Nawab Ali v. The State” (2019 SCMR 2009), “Muhammad Akram alias Akrai v. The State” (2019 SCMR 610), “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165), “Muhammad Mumtaz v. The State and another” (2012 SCMR 267), “Muhammad Imran alias Asif v.

The State” (2013 SCMR 782), “Sabir Hussain alias Sabri v. The State” (2013 SCMR 1554), “Zeeshan Afzal alias Shani and another v. The State and another” (2013 SCMR 1602), “Naveed alias Needu and others v. The State and others” (2014 SCMR 1464), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Muhammad Asif v. Muhammad Akhtar and others” (2016 SCMR 2035), “Qaddan and others v. The State” (2017 SCMR 148) and “Ghulam Murtaza v. The State” (2021 S C M R

24.In the light of the above discussion, the conviction of the appellant namely Allah Rakha son of Muhammad Yaseen, as awarded by the learned

Crl. Appeal No.408 of 2021

trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Allah Rakha son of Muhammad Yaseen under section 302(b) P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof are maintained and upheld. The other sentences awarded to the appellant namely Allah Rakha son of Muhammad Yaseen under sections 324, 337- F(vi), 452 and 337 L(2) P.P.C. are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Allah Rakha son of Muhammad Yaseen. All the sentences of the appellant namely Allah Rakha son of Muhammad Yaseen are ordered to run concurrently. Consequently, with the above said modification in the sentence awarded to the appellant namely Allah Rakha son of Muhammad Yaseen under section 302 (b) P.P.C., Criminal Appeal No.408 of 2021, is hereby dismissed to the extent of the appellant namely Allah Rakha son of Muhammad Yaseen.

25.Murder Reference No. 14 of 2021 is answered in Negative and the sentence of death awarded to Allah Rakha son of Muhammad Yaseen, is Not Confirmed.

(MUHAMMAD TARIQ NADEEM) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

APPROVED FOR REPORTING

JUDGE JUDGE