Weshal Khalil vs The State

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Criminal Appeal No. 118 of 2022 (Weshal Khalil and two others Vs. The State and another.)

Criminal Appeal No. 72 of 2022 (Ali Raza Vs. The State and another.)

JUDGMENT

Date of hearing: 25.11.2022.

Appellant by: Mr. Muhammad Akram Baloch, Advocate for the appellants in Criminal Appeal No. 118 of 2022).

Syed Zeeshan Haider, Advocate for the appellant in Criminal Appeal No. 72 of 2022.

State by: Rao Muhammad Riaz Khan, Deputy District Public Prosecutor.

Complainant by: Ch. Muhammad Zahid Muneer, Advocate.

SADIQ MAHMUD KHURRAM, J. -- Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq, Ali Raza son of Noor Muhammad and Weshal Khalil son of Khalil-Ullah (convicts), were tried by the learned Additional Sessions Judge, Fortabbas in the case FIR No. 215 of 2021 dated 31.05.2021 registered in respect of offences under sections 302 and 34 P.P.C. at Police Station Khichiwala, Bahawalnagar for committing the Qatl-i-Amd of Muhammad Shafi son of Kheera (deceased). The learned trial court vide judgment dated 27.01.2022, convicted Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul

Crl. Appeal No.72 of 2022

Razzaq , Ali Raza son of Noor Muhammad and Weshal Khalil son of Khalil-Ullah (convicts) and sentenced them as under:

Muhammad Aamir Shahzad son of Abdul Razzaq:-

Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Shafi son of Kheera (deceased) and directed to pay Rs.50,000/- 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.

Hamid son of Abdul Razzaq:-

Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Shafi son of Kheera (deceased) and directed to pay Rs.50,000/- 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.

Ali Raza son of Noor Muhammad :-

Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Shafi son of Kheera (deceased) and directed to pay Rs.50,000/- 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.

Weshal Khalil son of Khalil-Ullah:-

Imprisonment for life under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Shafi son of Kheera (deceased) and directed to pay Rs.50,000/- 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.

Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq, Ali Raza son of Noor Muhammad and Weshal Khalil son of Khalil-Ullah (convicts)

Crl. Appeal No.72 of 2022

were, however, extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial court.

2.Feeling aggrieved, Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq and Weshal Khalil son of Khalil-Ullah (convicts) lodged the Criminal Appeal No.118 of 2022, assailing their conviction and sentences. Feeling aggrieved, Ali Raza son of Noor Muhammad (convict) lodged the Criminal Appeal No.72 of 2022 assailing his conviction and sentence. I intend to dispose of the Criminal Appeal No.118 of 2022 and the Criminal Appeal No.72 of 2022 through this single judgment.

3.Precisely, the necessary facts of the prosecution case, as narrated by Muhammad Amin (PW-5), the complainant of the case, are as under:- “Stated that we are two brothers and two sisters and we all are married. My sister Mst.Shamim Bibi was married with one Abdul Razzaq at chak No.167/7R East and residing with him. My other sister Mst.Razia Bibi was married with Nazeer Ahmed R/o Sialkot. My sister Mst.Razia Bibi had died some years ago. Daughter of my sister Razia Bibi namely Mst.Tasleem Bibi and his son namely Weshal Khalil came at Chak No.167/7R East in the house of their Khalo Abdul Razzaq. On 30.05.2021, at noon time, 1 along with Muhammad Riaz S/o Muhammad Siddique, Muhammad Tariq S/o Ahmed Din and Muhammad Hussain S/o Ali Muhammad were present at the daira with my father namely Muhammad Shafee situated in our land. Meanwhile, Accused Aamir Shahzad and Weshal Khalil came there. Accused Aamir Shahzad demanded share of land of his mother as well as his Khala from my father. I stopped him and he extended threats and they went away. During midnight of 30/31.05.2021, 1 along with Muhammad Riaz and Muhammad Tariq came to our tube well to irrigate the land. When we reached at the tube well at about 03:00 am (night), we heard hue and cry of my father Muhammad Shafee. I had torch and with the light of torch, I identified four accused persons namely Aamir Shahzad, Weshal Khalil, Ali Raza and Hamid Raza. The

Crl. Appeal No.72 of 2022

accused persons were beating my father mercilessly with sotas. We tried to apprehend them but they succeeded to run way by extending threats of dire consequences by taking benefit of night. We attended my father Muhammad Shafee and found that mouth of my father was tied and there were injuries on his body and within ten/fifteen minutes, he succumbed to injuries. I left Muhammad Tariq and Muhammad Riaz with the dead body of my father and I went to police station Khichiwala. I moved application Exh.P.A to police station for registration of case. Thereafter, I along with police officials came at the place of occurrence. Crime scene Unit of Bahawalpur also attracted at the spot. Thereafter, dead body was shifted to THQ Hospital Fortabbas for post mortem. After post mortem, dead body of my father was handed over to me through receipt Exh.P.B. Accused persons are real culprits, they be punished as per law.”

4.After the formal investigation of the case, the 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 26.08.2021, 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 eight witnesses recorded. The ocular account of the case was furnished by Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2). Zulfiqar Ali Patwari, (PW-3) prepared the scaled site plan of the place of occurrence (Exh.PN). Zaheer Ahmad 75/C stated that on 31.05.2021, he escorted the dead body of the deceased to the hospital for its post mortem examination and also received the last worn clothes of the deceased from the Medical Officer after the post mortem examination.

Muhammad Akram 885/HC, (PW-5) stated that on 31.05.2021, Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, handed over to him sealed parcels said

Crl. Appeal No.72 of 2022

to contain blood stained earth, last worn clothes of the deceased and other articles belonging to the deceased and on 03.06.2021, Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, handed over to him five sealed jars and a sealed packet and on 06.06.2021, he handed over the five sealed jars, sealed parcel said to contain the blood stained earth and the envelope to Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Akram 885/HC, (PW-5) further stated that on 13.06.2021, Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, handed over to him sealed parcels said to contain wooden sticks and on 23.06.2021, he handed over the said sealed parcels to Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Ayub Samuil, ASI (PW-7), stated that on 31.05.2021, he got recorded the formal F.I.R (Exh.PA/2) and also investigated the case from 31.05.2021 till 26.06.2021, arrested the appellants on 09.06.2021 and narrated the facts of the investigation conducted by him in his statement before the learned trial court. Arif Bajwa Inspector (PW-8) stated that on 21.11.2021, he prepared the report under section 173 Cr.P.C..

6.The prosecution also got Dr. Muhammad Asif (PW-6) examined, who on 31.05.2021 was posted as Medical Officer at THQ hospital Fortabbas and on the same day conducted the postmortem examination of the dead body of Muhammad Shafi son of Kheera (deceased). Dr. Muhammad Asif (PW-6), on examining the dead body of Muhammad Shafi son of Kheera (deceased), observed as under:-

Crl. Appeal No.72 of 2022

“DESCRIPTION OF INJURIES:

(Including findings on dissection) Injury No.1:

A wound of about 2cm X 0.5 cm over the right temporal region. Injury No.2 A wound of about 2cm Xo5em over the frontal region of head about gem from the vertex.

Injury No.3 On examination (O/E) There were no bruises or wound present only blood clots were present.

Injury No.4.

O/E. There were fractures of radius and ulna of left forearm. Injury No.5.

O/E. There were fractures of radius and ulna of right forearm. Injury No.6:

O/E. There were no bruises or wound present over the Right elbow joint, only blood clots were present.

Injury No.7.

There were multiple bruises present over the whole of the back. Bruises were different sizes and length. Colour of the bruises was black and blue. Injury No. 8:

There were multiple bruises present over the back of both buttocks. Bruises were bluish colour.

Injury No.9.

There were multiple bruises of hinish in colour over the Right thigh region. Injury No.10.

O/E, there were no bruises or abrasion seen over the Right knee joint only blood clots were present.

Injury No.11:

There were multiple bruises of Bluish in colour over the left thigh region. Injury No.12:

There was a single bruise of about 2cm in length over the left knee joint.

Probable time that elapsed.

a) Between injury and death within 1 to 2 hours.

Crl. Appeal No.72 of 2022

b) Between death and post mortem almost 13 to 14 hours.

INITIAL OPINION:

Final opinion will be given after receiving the report of PFSA.

FINAL OPINION.

According to PFSA report, no poison was detected in liver and stomach. Only Atherosclerotic changes detected/noted in cardiac vasculature. In final conclusion, death was occurred due to head injuries No.1 & 2, which was caused by due to excessive bleeding that leads to haemorrhagic shock that leads to cardio- pulmonary arrest. I prepared the post mortem report No.08/2021 Exh.P.P and I also prepared the pictorial diagrams Exh.PP/1 & Exh.P.P/2. I also signed the injury statement of deceased Exh.P.P/3 inquest report Exh.P.P/4.”

7.On 15.09.2021, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Riaz Ahmad and Muhammad Hussain as being unnecessary. On 07.12.2021, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh. PS and Exh.PT).

8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq , Ali Raza son of Noor Muhammad and Weshal Khalil son of Khalil- Ullah 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 Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq ,Ali Raza son of Noor Muhammad and Weshal Khalil son of Khalil-Ullah opted to not to get

Crl. Appeal No.72 of 2022

themselves examined under section 340(2) Cr.P.C. and also did not adduce any evidence in their defence.

9.At the conclusion of the trial, the learned Additional Sessions Judge, Fortabbas 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, 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 District Public Prosecutor 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 appellants. They further contended that the

Crl. Appeal No.72 of 2022

medical evidence also corroborated the statements of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2). They further argued that the recoveries of the wooden sticks (P-11 to P-14) from the appellants 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 Deputy District Public Prosecutor and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeals as lodged by the appellants namely Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq, Ali Raza son of Noor Muhammad and Weshal Khalil son of Khalil-Ullah.

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

13.The whole prosecution case revolves around the statements of Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2), the eyewitnesses of the occurrence.

The relationship of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) with the deceased is on record. The deceased, namely Muhammad Shafi son of Kheera was the father of Ghulam Mustafa (PW-1) and the maternal grandfather of Muhammad Tariq (PW-2). Ghulam Mustafa (PW-1) in his cross-examination stated as under:-

“PW Riaz is my nephew while PW Tariq is son of my phupi.”

Crl. Appeal No.72 of 2022

Muhammad Tariq (PW-2), during cross-examination, stated as under:- “Complainant is my maternal cousin. PW Riaz Ahmed is the grandson of complainant. Muhammad Hussain PW is the paternal cousin of complainant.”

It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) were indeed not the residents of the place of occurrence or any place around the same. According to the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW- 2), the occurrence took place at a distance from the Dera of the deceased. The prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-

2)also claimed that on the night of occurrence, i.e. 31.05.2021, the prosecution witness namely Ghulam Mustafa (PW-1) called Muhammad Tariq (PW-2) and Muhammad Riaz (given up), to go to the Tube-well for the purpose of watering the crops, when at about 03.00 a.m. (night), upon their arrival at the place of occurrence, they heard the hue and cries of the deceased and were attracted to the place of the occurrence itself. The prosecution witness namely Ghulam Mustafa (PW-1) during cross-examination stated as under:-

“House of Tariq PW is situated at the distance of one acre from my house while the house of PW Riaz is situated at the distance of 1 1/2 acre from my house. Firstly, I called Tariq PW from his land and then I called PW Riaz from his daira/land for the purpose of operating the tube well,” During the course of investigation, Ayub Samuil ASI (PW-7), the Investigating Officer of the case, did not verify the place of residences of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2). This Court has itself examined the scaled site plan of the place of occurrence (Exh.PN) as prepared by Zulfiqar Ali Patwari (PW-3) and the rough site plan of the place of occurrence

Crl. Appeal No.72 of 2022

(Exh.PQ) as prepared by Ayub Samuil ASI (PW-7), the Investigating Officer of the case, and has noted with concern that the residences of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) have not been mentioned in both the site plans (Exh.PN and Exh.PQ). Then ,as mentioned above , the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) claimed that they ,after hearing the hue and cries of the deceased , were attracted to the place of the occurrence, from the place where they were present prior to the occurrence . The prosecution witness namely Ghulam Mustafa (PW-1), in his statement before the learned trial court , stated as under:- “When we reached at the tube well at about 03:00 a.m (night), we heard hue and cry of my father Muhammad Shafee.” (emphasis supplied) The prosecution witness namely Muhammad Tariq (PW-2), in his statement before the learned trial court , stated as under:-

“...when we reached there, we heard hue and cry of Muhammad Shafee.”(emphasis supplied)

As is revealed from the above portions of the statements of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2), according to them, they were attracted to the place of occurrence after hearing the hue and cries of Muhammad Shafee (deceased) however, both the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) also admitted that the mouth of the deceased had been tied with a rope. The prosecution witness namely Ghulam Mustafa (PW-1), in his statement before the learned trial court, stated as under:- “We attended my father Muhammad Shafee and found that mouth of my father was tied

Crl. Appeal No.72 of 2022

I got recorded said fact in my application Exh.P.A. I got recorded in my application Exh.P.A that mouth of my father was tied.

My father did not talk to me as he was unconscious.

Mouth of my father was tied when local police as well as crime scene unit team arrived at the place of occurrence. Crime scene unit team untied the mouth of my father”(emphasis supplied)

The prosecution witness namely Muhammad Tariq (PW-2), in his statement before the learned trial court, stated as under:-

“Mouth of Muhammad Shafee was tied with the rope.

I also got recorded in my statement U/S. 161 Cr.P.C that mouth of deceased Muhammad Shafee was tied with the rope.”

Ayub Samuil, ASI, (PW-7), the Investigating Officer of the case during cross- examination stated as under:-

“When I reached at the place of occurrence and inspected the dead body of deceased, the mouth of deceased Muhammad Shafee was tied with rope. The rope which was tied on the mouth of deceased was untied by the team of crime scene unit.” (emphasis supplied)

As narrated by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) repeatedly, the mouth of the deceased was tied with a rope, therefore their claim that they had heard the hue and cries of the deceased, upon hearing which they had been attracted to the place of occurrence, is fully denuded as being a false claim. The deceased had his mouth tied could not have

Crl. Appeal No.72 of 2022

raised any hue and cry, which could have been heard by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) and could have enabled them to be attracted to the place of occurrence. In this manner, the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-

2)are proved to be false witnesses, unworthy of any reliance.

14.This Court has also noted with concern that despite the claim of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-

2)that the deceased used to sleep and live in his Dera, the dead body of the deceased was found to be present at a distance of as many as 30-feet from the Dera. The prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-

2)did not explain as to in what circumstances the dead body of the deceased came to be present at such a distance from the place of his sleeping, when the occurrence had taken place in the dead of the night at about 03.00 a.m. on 31.05.2021. The prosecution witness namely Ghulam Mustafa (PW-1), during cross-examination, stated as under:-

“Dead body of my deceased father was lying at about 06/07 karams from the daira where my father used to reside and sleep. It is correct that dead body was lying near the pond outside the daira.”

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

“Dead body of deceased Muhammad Shafee was lying outside his daira at the distance of 8/10 feet.”

Crl. Appeal No.72 of 2022

15.This Court has noted that according to the prosecution witnesses the occurrence took place in the dead of night at about 03.00 a.m on 31.05.2021, however, admittedly no source of light, which could have enabled the witnesses to have rightly identified the accused and also allowed the witnesses to note the individual roles of each and every accused present at the place of occurrence, at the time of occurrence, was produced by the prosecution witnesses during the investigation of the case or even before the learned trial court. Both the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) claimed that they had witnessed the occurrence in the light of a torch light which was being carried by the prosecution witness namely Ghulam Mustafa (PW-1), however, Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, admitted during cross- examination that he never took into possession the said torch light which was used by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) to witness the occurrence, on the night of the occurrence. Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, during cross-examination, stated as under:-

“ It is correct that the time of occurrence is of night. Complainant had the torch at the time of occurrence but I did not take into possession the torch.

The witnesses disclosed that they had no torch at the time of occurrence.” (emphasis supplied)

The non-production of the torch light which was used by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) to witness the occurrence, on the night of the occurrence , is all the more a matter of disquiet for the reason that if the said source of light was indeed available then the complainant

Crl. Appeal No.72 of 2022

of the case could have easily produced the same before the learned trial court. The failure of the complainant of the case to produce the same before the learned trial court leads to only one conclusion, and that being that no such source of light was available at the place of occurrence which could have enabled the eye witnesses to have identified the assailants and also witness the individual roles of the assailants as acted by them during the occurrence. As mentioned above, no torch light used by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) to witness the occurrence, on the night of the occurrence was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence. According to the prosecution evidence, Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, visited the place of occurrence after the occurrence, remained there for a substantial length of time but the torch light used by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) to witness the occurrence, on the night of the occurrence, was not taken into possession at the spot by the Investigating Officer alongwith other recoveries , though there was no occasion for the said torch light not to have been present at the place of occurrence or it being not produced by the witnesses before the Investigating Officer or it being not taken into possession by the Investigating Officer during his visit at the place of occurrence. The joint failure of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) and Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, to prove the availability of the torch light with the prosecution witness namely Ghulam Mustafa (PW-1), proves that none was available and only an invented and false claim of such torch light being available was made by the said witnesses. The

Crl. Appeal No.72 of 2022

prosecution witnesses failed to establish the fact of availability of any light source and in absence of their ability to do so, this Court cannot presume the existence of such a light source. The absence of any light source has put the whole prosecution case in the dark. It was admitted by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) themselves that it was a dark night and they had used the light of the torch light, never produced, to identify the assailants during the occurrence and as the prosecution witnesses failed to prove the availability of such light source, their statements with regard to them identifying the assailants cannot be relied upon. The failure of the prosecution witnesses to prove the presence of any light source at the place of occurrence, at the time of occurrence has repercussions, entailing the failure of the prosecution case. Reliance is placed on the case of “Gulfam and another v. The State” (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:-

“The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised”

Reliance is also placed on the case of “Hameed Gul v. Tahir and two others” (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:- “Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along.”

Crl. Appeal No.72 of 2022

Reliance is also placed on the case of “Basar Vs. Zulfiqar Ali and others” (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:- “7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.

8.Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.”

Reliance is also placed on the case of “Azhar Mehmood and others v. The State” (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:-

“It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case.”

Reliance is also placed on the case of “Arshad Khan v. The State” (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:- “The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer.”

16.This Court has also noted that the alleged eye-witnesses namely Ghulam Mustafa (PW-1), Muhammad Tariq (PW-2) and Muhammad Riaz (given up) made no effort either to save the deceased or to apprehend the accused. It is unnatural and unbelievable that the alleged eye witnesses namely Ghulam Mustafa (PW-1), Muhammad Tariq (PW-2) and Muhammad Riaz (given up) did not even move a

Crl. Appeal No.72 of 2022

limb to protect their near and dear one. This Court has perused the postmortem examination report of the deceased and the unfortunate deceased had received as many as twelve injuries on his body . During the receiving of the said injuries on the various parts of the body of the deceased, none of the prosecution witnesses namely Ghulam Mustafa (PW-1), Muhammad Tariq (PW-2) and Muhammad Riaz (given up), who all claimed to had been present at the same place as were the accused and the deceased, made any effort to save the deceased or to restrain the assailants. It is all the more bizarre that none of the above-mentioned prosecution witnesses actually interfered in order to save the life of the victim. It is worrying to note that the prosecution witnesses namely Ghulam Mustafa (PW-1), Muhammad Tariq (PW-2) and Muhammad Riaz (given up) kept watching the accused beating the deceased but still kept viewing and did not interfere at all. No person having ordinary prudence would believe that such closely related witnesses would remain watching the proceedings as mere spectators for as long as the occurrence continued without doing anything to rescue the deceased or to apprehend the assailants. The allowance of prosecution witnesses to the assailants of causing the death of their near and dear relative speaks loudly that if Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-

2)had been present at the place of occurrence, they would have definitely intervened and prevented the assailants from murdering their dear one. It only proves that the deceased was at the mercy of the assailants and no one was there to save him. Such behaviour, on part of the witnesses, runs counter to natural human conduct and behaviour. Article 129 of the Qanun-e-Shahadat, 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

Crl. Appeal No.72 of 2022

of the particular case. This Court thus trusts the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat, 1984, that the conduct of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2), as deposed by them, was opposed to the common course of natural events, human conduct and that the witnesses Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-

2)were not present at the time of occurrence, at the time of occurrence and their presence was procured subsequently. The august Supreme Court of Pakistan has enunciated binding principles for appreciation of evidence in such circumstances.

Reliance is placed on the case of “Zulifqar Ali v. The State” (2021 S C M R 1373) wherein the august Supreme Court of Pakistan observed as under:- “Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself "a young female with average-built" could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene” Reliance is placed on the case of Pathan v. The State (2015 SCMR 315) at page 317 wherein the august Supreme Court of Pakistan observed as under:- “The causing of such large number of injuries one after another to the deceased with scissors must have consumed reasonable time due to the

Crl. Appeal No.72 of 2022

pause in between the first injury and the last one but all the three P.Ws. including the son with a strong stature and built remained as silent spectators. They did not react or showed any response when the accused was causing the injuries. No man on the earth would believe that a close relative would remain silent spectator in a situation like this because their intervention was very natural to rescue the deceased but they did nothing nor attempted to chase the accused and apprehend him at the spot.”

Further reliance is placed on the case of Shahzad Tanveer v. The State (2012 SCMR 172) at page-176 wherein the august Supreme Court of Pakistan observed as infra:- “It is also more strange that none of the P.Ws. dared to physically intervene in order to save the victim or apprehend the accused at the spot.”

Reliance is also placed on the case of Liaquat Ali v. The State (2008 SCMR 95) at page 97 wherein the august Supreme Court of Pakistan observed as under:

“He was a single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.”

17.I have also been vexed by the statement of Dr. Muhammad Asif (PW-6), who stated that the deceased remained alive for about 1-2 hours after receiving the injuries still both the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2), both closely related to the deceased ,did not take him to any hospital. Dr. Muhammad Asif (PW-6) during cross-examination stated as under:- “ The duration between injuries and death was within 01 to 02 hours.”

It is admitted that the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) made no effort to take the deceased to the hospital and it convincingly establishes that the said witnesses were not present. As mentioned above, the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) even did not remove the rope with which the mouth of the deceased had been tied. The august Supreme Court of Pakistan in the case of “Abdul Jabbar alias Jabbari v. The State” (2017 SCMR 1155) has observed as under:

Crl. Appeal No.72 of 2022

“The Medico-legal Certificate issued in respect of Manzoor Ahmed deceased when he was alive shows that the injured victim was brought to the hospital not by the above mentioned eye-witnesses but by a police official which showed that in all likelihood the said eye-witnesses had been procured and planted in this case at some subsequent stage.”

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.”

Reliance is also 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.”

18.I have also marked with concern that despite the fact that the F.I.R was registered with such delay, still in the inquest report (Exh.PP/4) in column No.8 it had been noted that both the mouth and the eyes of the deceased were open at the time of preparation of the same, which clearly shows that the dead body was not attended to by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2), as claimed. Dr. Muhammad Asif (PW-6), who had conducted the post mortem examination of the dead body of the deceased on 13.02.2019 at 4.15 p.m. also observed that the eyes and mouth of the dead body were

Crl. Appeal No.72 of 2022

open. Dr. Muhammad Asif (PW-6), in his statement before the learned trial court, stated as under:-

“A dead body of a person aged about 80 years lying on the post-mortem table arms by the side of the body. Mouth and eyes opened. Rigor mortis and post-mortem staining present.” (emphasis supplied)

The stance set up by the prosecution in the present case is that the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) were present at the time of the death of the deceased and had remained with the dead body.

The mouth and eyes of the deceased were found open at the time of preparation of the inquest report (Exh.PP/4), thus, if the witnesses were present then, at least after the death, as is a consistent practice of such close relatives, they would have closed the eyes and mouth of the deceased on his expiry. Thus, the open eyes and mouth of the deceased force a hostile interpretation against the prosecution's version regarding the presence of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) at the place of occurrence, at the time of occurrence. This fact by itself indicates that none was present with the deceased till his death. The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs. The State”(2019 SCMR 1068) has held as under:

“What has further irked this Court is that in column No. 9 of the Marg Report (Ex.PW9/1), and even in the Post Mortem Report (Ex.PW-10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However, the stance set up by the prosecution in the present case is that Arshad Ali - the brother, and Nazir Ahmad - the uncle

Crl. Appeal No.72 of 2022

of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter. Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence.”

19.Another aspect of the case raising doubt over the presence of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) at the place of occurrence, at the time of occurrence is the fact the matter was reported to the police on 31.05.2021 at 7.15 a.m., when the prosecution witness Ghulam Mustafa (PW-1) submitted his written application (Exh.PA) for the registration of the F.I.R at the Police Station to Ayub Samuil ASI (PW-7) who got recorded the formal F.I.R (Exh.PA/2) ,when the occurrence had taken place on 31.05.2021 at 03.00 a.m.. In this manner, the delay in reporting the matter to the police was of more than four hours, for which delay no reason, much less plausible, was offered.

This Court has also noticed that in column No.11 of the inquest report (Exh.PP/4) as it was mentioned that at the time of the preparation of the same, the blood of the deceased had coagulated. No justification, much less credible, has been given by the prosecution at any stage for such deferral in submitting the written application (Exh.

PA) of Ghulam Mustafa (PW-1) to the police.The reason for this inordinate delay in reporting the matter to the police by the prosecution witness namely Ghulam Mustafa (PW-1) is obvious, being that both the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) were not present at the place of occurrence, at the time of occurrence and the delay was used to procure their attendance. 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,

Crl. Appeal No.72 of 2022

because, the witnesses never reported the matter to the police for as many as four hours. This inordinate delay in reporting the matter conclusively proves that the written application (Exh.PA) of Ghulam Mustafa (PW-1) and the formal F.I.R (Exh.PA/2) were prepared after probe, consultation, planning, investigation and discussion and as the the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) were not present at the place of occurrence, at the time of occurrence, the delay was used for procuring their arrival. As many as four hours were taken to invent a false and dishonest narrative of the written application (Exh.PA) of Ghulam Mustafa (PW-1). The scrutiny of the statements of the prosecution witnesses reveals that the written application (Exh.PA) of Ghulam Mustafa (PW-1) was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document. Sufficient doubts have arisen and inference against the prosecution has to be drawn in this regard and the delay in reporting the matter to the police and the failure of the prosecution witnesses to proceed to the Police Station evidences their absence at the time of occurrence, at the place of occurrence. Reliance is placed on the case of “Ghulam Abbas and another v. The State and another” (2021 SCMR 23) wherein the august Supreme Court of Pakistan observed as under:-

“As per contents of FIR, the occurrence in this case took place on 19.06.2008 at 01.40 a.m. and the matter was reported to the Police on the same morning at 07.00 a.m. and as such there is a delay of more than five hours in reporting the crime to the Police whereas Police Station was situated at a distance of just six kilometers from the place of occurrence. No explanation whatsoever was furnished by the complainant for this delay in reporting the crime to the Police. Hameed Ullah Khan SI (PW.15) who investigated the case stated during his cross-examination that he reached at the place of occurrence at about 05.00 a.m. and he had completed the police proceedings by 06.30 p.m. In the circumstances, chances of deliberations and consultations before reporting the matter to the Police cannot be ruled out.”

Crl. Appeal No.72 of 2022

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

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

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Zafar vs. The State and others (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under:- “It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay in lodging the FIR or for that matter the belated postmortem of the deceased.”

Guidance is sought from the principles enunciated by the august Supreme Court of Pakistan in the cases of “G. M. NIAZ Vs. The State” (2018 SCMR 506), Abdul Jabbar and another Vs. The State (2019 S C M R 129) and Muhammad Shafi alias Kuddoo Vs. The State and others (2019 S C M R 1045).

20.This Court has also noted with disquiet that despite the fact that the occurrence took place at about 03.00 a.m. (night) on 31.05.2021 , the postmortem examination of the dead body of the deceased was conducted after much delay. According to Post-Mortem Examination Report (Exh. PP), Dr. Muhammad Asif (PW-6), conducted the post mortem examination of the dead body of the deceased on 31.05.2021 at 04.15 p.m. i.e after as many as thirteen hours after the death of

Crl. Appeal No.72 of 2022

Muhammad Shafi son of Kheera. Furthermore, Dr. Muhammad Asif (PW-6), in his statement before the learned trial court stated as under:-

“Date and time of death is 31.05.2021 at about 03:00 AM, receiving dead body in dead house on 31.05.2021 at about 03:30 PM, receiving complete documents from police on 31.05.2021 at about 03:45 PM, conducting Autopsy on 31.05.2021 at about 04:15 PM.

The duration between injuries and death was within 01 to 02 hours and death to post mortem is about 13 to 14 hours..”(emphasis supplied) The reason which is apparent for the delayed conducting of the post mortem examination of the dead body of Muhammad Shafi son of Kheera 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 and also the delay in submission of the police papers. This clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellants escaping from the place of occurrence were not present at the time of occurrence and the delay in the post mortem 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

Crl. Appeal No.72 of 2022

Pakistan in the case of “Khalid alias Khalidi and two others vs. The State” (2012 SCMR 327) has held as under:

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

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

“According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution” The august Supreme Court of Pakistan in the case of “MUHAMMAD RAFIQUE alias FEEQA vs. The State” (2019 SCMR 1068) has held as under:

“More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.

10.Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the 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.”

Crl. Appeal No.72 of 2022

21.The learned Deputy District Public Prosecutor and the learned counsel for the complainant, have also relied upon the recoveries of the Soti (P-11) from the appellant namely Muhammad Aamir Shahzad son of Abdul Razzaq, the Soti (P-14) from the appellant namely Hamid son of Abdul Razzaq, the Soti (P-13) from the appellant namely Ali Raza son of Noor Muhammad and the Soti (P-12) from the appellant namely Weshal Khalil son of Khalil-Ullah and have submitted that the said recoveries offered sufficient corroboration of the ocular account of the occurrence as furnished by Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2).

The recoveries of the Soti (P-11) from the appellant namely Muhammad Aamir Shahzad son of Abdul Razzaq, the Soti (P-14) from the appellant namely Hamid son of Abdul Razzaq, the Soti (P-13) from the appellant namely Ali Raza son of Noor Muhammad and the Soti (P-12) from the appellant namely Weshal Khalil son of Khalil-Ullah cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recoveries of the Soti (P-11) from the appellant namely Muhammad Aamir Shahzad son of Abdul Razzaq, the Soti (P-14) from the appellant namely Hamid son of Abdul Razzaq, the Soti (P-13) from the appellant namely Ali Raza son of Noor Muhammad and the Soti (P-12) from the appellant namely Weshal Khalil son of Khalil-Ullah, which was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898. The provisions of this section, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search. under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate

Crl. Appeal No.72 of 2022

to attend and witness the search and may issue an order in writing to them or any of them so to do.

Therefore the evidence of the recoveries of the Soti (P-11) from the appellant namely Muhammad Aamir Shahzad son of Abdul Razzaq, the Soti (P-14) from the appellant namely Hamid son of Abdul Razzaq, the Soti (P-13) from the appellant namely Ali Raza son of Noor Muhammad and the Soti (P-12) from the appellant namely Weshal Khalil son of Khalil-Ullah cannot be used as incriminating evidence against the appellants, being evidence, which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State (2017 SCMR 898) at page 901 has held as under:-

“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

This Court has also noted that the prosecution witnesses namely Muhammad Tariq (PW-2) and Ayub Samuil ASI, (PW-7), the Investigating Officer of the case, who gave evidence that the recoveries of the Soti (P-11) from the appellant namely Muhammad Aamir Shahzad son of Abdul Razzaq, the Soti (P-14) from the appellant namely Hamid son of Abdul Razzaq, the Soti (P-13) from the appellant namely Ali Raza son of Noor Muhammad and the Soti (P-12) from the appellant namely Weshal Khalil son of Khalil-Ullah were made on 13.06.2021 never stated that the said Sotis (P-11, P-12, P-13 and P-14) were stained with blood. Therefore, the recoveries of the Soti (P-11) from the appellant namely Muhammad Aamir Shahzad son of Abdul Razzaq, the Soti (P-14) from the appellant namely Hamid son of Abdul Razzaq, the

Crl. Appeal No.72 of 2022

Soti (P-13) from the appellant namely Ali Raza son of Noor Muhammad and the Soti (P-12) from the appellant namely Weshal Khalil son of Khalil-Ullah are not proved, do not further the case of the prosecution in any manner and the same cannot be considered as a circumstance against the appellants. Moreover, with regard to the recovery of the motorcycle (P-10) from the appellant namely Muhammad Aamir Shahzad, it was admitted by Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, that none of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) had stated that any motorcycle was used by any accused to arrive at the place of occurrence or to decamp from the same. Ayub Samuil, ASI (PW-7), the Investigating Officer of the case, admitted during cross- examination as under:-

“Neither complainant nor PWS mentioned in the FIR as well as in their statements U/S. 161 Cr.P.C that the accused came on motor bike and they fled away on motorcycle after the occurrence.”

In this manner, the recovery of the motorcycle (P-10) from the appellant namely Muhammad Aamir Shahzad does not prove any fact in issue or any relevant fact.

Even otherwise as this Court has disbelieved the ocular account in this case, hence the evidence of the recoveries of the Soti (P-11) from the appellant namely Muhammad Aamir Shahzad son of Abdul Razzaq, the Soti (P-14) from the appellant namely Hamid son of Abdul Razzaq, the Soti (P-13) from the appellant namely Ali Raza son of Noor Muhammad and the Soti (P-12) from the appellant namely Weshal Khalil son of Khalil-Ullah and the recovery of the motorcycle (P-10) from the appellant namely Muhammad Aamir Shahzad would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece

Crl. Appeal No.72 of 2022

of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.

22.The learned Deputy District Public Prosecutor has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) was that the appellant namely Muhammad Aamir Shahzad had demanded the share of the land of his mother and his maternal aunt from the deceased. I have perused the statement of the prosecution witnesses namely Ghulam Mustafa (PW-1) and Muhammad Tariq (PW-2) and find that the motive as alleged could not be proved. The prosecution witnesses did not even make an effort to provide any details regarding the dispute over the legacy of the deceased.

It was not even brought on record that what was the share of the mother and maternal aunt of the appellant namely Muhammad Amir Shahzad, for which share the demand was being made from the deceased. No litigation was pending in this regard. The Investigating Officer of the case, did not collect any documentary evidence in support of the alleged motive. The prosecution failed to provide evidence enabling this Court 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 Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

Crl. Appeal No.72 of 2022

“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.”

23.The only other piece of evidence left to be considered by this Court is the medical evidence with regard to the injuries observed on the dead body of the deceased by Dr. Muhammad Asif (PW-6) 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 this Court, 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 "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

Crl. Appeal No.72 of 2022

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.”

24.Considering all the above circumstances, this Court entertains serious doubt regarding the involvement of Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq and Weshal Khalil son of Khalil-Ullah ( the appellants in the Criminal Appeal No.118 of 2022) and Ali Raza son of Noor Muhammad (the appellant in the Criminal Appeal No.72 of 2022), 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).”

Crl. Appeal No.72 of 2022

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 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 reasona ble 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.”

25.For what has been discussed above, the Criminal Appeal No.118 of 2022 lodged by Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq and Weshal Khalil son of Khalil-Ullah and the Criminal Appeal No.72 of 2022 lodged by Ali Raza son of Noor Muhammad are allowed and the conviction and sentences of the appellants namely Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq and Weshal Khalil son of Khalil-Ullah ( the appellants in the Criminal Appeal No.118 of 2022) and Ali Raza son of Noor Muhammad (the appellant in the Criminal Appeal No.72 of 2022) awarded by the learned trial court through the impugned judgment dated 27.01.2022 are hereby set-

Crl. Appeal No.72 of 2022

aside. The appellants namely Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq and Weshal Khalil son of Khalil-Ullah ( the appellants in the Criminal Appeal No.118 of 2022) and Ali Raza son of Noor Muhammad (the appellant in the Criminal Appeal No.72 of 2022) are ordered to be acquitted by extending them the benefit of the doubt. The appellants namely Muhammad Aamir Shahzad son of Abdul Razzaq, Hamid son of Abdul Razzaq and Weshal Khalil son of Khalil-Ullah ( the appellants in the Criminal Appeal No.118 of 2022) and Ali Raza son of Noor Muhammad (the appellant in the Criminal Appeal No.72 of 2022) are in custody and are directed to be released forthwith if not required in any other case.

(SADIQ MAHMUD KHURRAM)

JUDGE

Raheel

APPROVED FOR REPORTING

JUDGE