The State vs Muhammad Ashraf

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR .

JUDICIAL DEPARTMENT

Murder Reference No.13 of 2021 (The State Vs. Muhammad Ashraf)

Criminal Appeal No. 418 of 2021 (Muhammad Ashraf Vs. The State and another.)

Date of hearing: 30.11.2022.

Appellants by: Mr. Ghazanfar Ali Khan, Advocate.

State by: Mr. Najeeb Ullah Jatoi, Deputy Prosecutor General. Complainant by: Mirza Muhammad Azam, Advocate.

SADIQ MAHMUD KHURRAM, J. – Muhammad Ashraf son of

Muhammad Younis (convict) was tried by the learned Sessions Judge, Bahawalnagar, in case FIR No. 45 of 2021 dated 21.02.2021 registered in respect of an offence under section 302 P.P.C. at the Police Station Takhat Mahal District Bahawalnagar for committing the Qatl-i-Amd of Ghulam Mustafa son of Abdul Ghaffar (deceased). The learned trial court vide judgment dated 04.10.2021 convicted Muhammad Ashraf son of Muhammad Younis (convict) and sentenced him as under:-

Muhammad Ashraf son of Muhammad Younis:

Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Ghulam Mustafa son of Abdul Ghaffar (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 undergo further six months of simple imprisonment .

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

2.Feeling aggrieved, Muhammad Ashraf son of Muhammad Younis (convict) lodged Criminal Appeal No. 418 of 2021 assailing his conviction and sentence..

The learned trial court submitted Murder Reference No.13 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ashraf son of Muhammad Younis. We intend to dispose of the Criminal Appeal No. 418 of 2021 and the Murder Reference No.13 of 2021 through this single judgment.

3.Precisely the facts necessary, as stated by Muhammad Afzal (PW6), the complainant of the case, are as under: -

“Stated that we are six brothers, three of us viz myself. Muhammad Arshad and Shah Behram work at our bakery and the remaining three namely Ghulam Mustafa (since deceased person). Amjad and Ajmal used to sell the baked items in the local market.

On 21-02-2021, I alongwith Abdullah and Muhammad Arshad PWs were going to Nathey Wala on motorbike. My brothers Muhammad Amjad, Amal and Ghulam Mustafa were on their work. My brother Ghulam Mustafa (since deceased) used to sell bakery items in the area of Noor Sar, Mitha Aakoka and Murli Garh etc. At about 2.30/3.00 P.M, Ghulam Mustafa (since deceased) was going on his motorbike at a distance of about one acre ahead of us. When we reached in the area of Mauza Tahli Wala, a person wearing black clothes, later identified as accused Muhammad Ashraf , present in court, crossed us on a motorbike 125 and fired two shots at Ghulam Mustafa when he reached near him who fell down and the accused shot a third fire on his temple in our view. The accused decamped while resorting to aerial firing. We attended Ghulam Mustafa but he died at the spot. Some body informed the rescue 1122 who came to the spot and called the police. I narrated the occurrence to Muhammad Siddique ASI who had come to the spot and made application Exh.PA/1 duly thumb marked by me.

On 04-03-2021, 1 identified the accused during the identification parade held at District Jail, Bahawalnagar under the supervision of a Magistrate and told the Magistrate that accused Muhammad Ashraf had committed the murder of Ghulam Mustafa. The Magistrate also recorded my statement.’

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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 appellant namely Muhammad Ashraf son of Muhammad Younis was sent to face trial. The learned trial court framed the charge against the accused on 03.05.2021 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 nine witnesses recorded. The ocular account of the case was furnished by Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7). Riaz Ahmad, ASI (PW-1) stated that on 21.02.2021 he got recorded the formal F.I.R (Exh.PA). Muhammad Din Abid, draftsman (PW-2) prepared the scaled site plan of the place of occurrence (Exh.PB). Shah Behram 1008/HC (PW-4) stated that on 21.02.2021, Muhammad Siddique, ASI (PW-9) handed over to him one sealed parcel said to contain blood stained earth and one sealed parcel said to contain the empty shells of the bullets recovered from the place of occurrence and a motorcycle belonging to the deceased and on 28.02.2021, he handed over the one sealed parcel said to contain blood stained earth to Muhammad Siddique, ASI (PW-9) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 07.03.2021, Muhammad Siddique, ASI (PW-9) handed over to him one sealed parcel said to contain a pistol and one motorcycle and on 10.03.2021, he handed over the one sealed parcel said to contain a pistol to Muhammad Siddique, ASI (PW-9) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore.

Muhammad Afzal 597/C (PW-5) stated that on 21.02.2021, he escorted the dead body of the deceased to the hospital for its post mortem examination and received the last worn clothes of the deceased from the Medical Officer after its post mortem examination. Mehmood Alam, Magistrate (PW-8) got conducted the test

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identification parade proceedings on 04.03.2021 held to establish the identity of the appellant and prepared his report (Exh.PM). Muhammad Siddique, ASI (PW-9) investigated the case from 21.02.2021 till 10.03.2021, arrested the appellant namely Muhammad Ashraf son of Muhammad Younis on 01.03.2021 and detailed the facts of his investigation in his statement before the learned trial court.

6.The prosecution got Dr. Shahid Iqbal (PW-3) examined who, on 21.02.2021, was posted as Medical Officer at DHQ hospital Bahawalnagar and on the same day conducted the postmortem examination of the dead body of Ghulam Mustafa son of Abdul Ghaffar (deceased). Dr. Shahid Iqbal (PW-3), on examining the dead body of the deceased namely Abdul Majeed son of Haji Sher Muhammad, observed as under:-

“Injuries:

i)Lacerated wound with everted margins on front of the right ear (temporomandibular joint) size 6 cm X 3.5 cm (exit wound).

ii)A circular lacerated wound with inverted margin on the back side of left ear (mastoid process) burning, lead staining present direction of the wound towards to injury No.1 measuring 1.27 cm X 1.27 cm (entry wound).

iii)A circular lacerated wound with inverted margin on left side of the chest along nipple (mid clavicular line, 2-3 ribs) burning, blackening present, size 1.5 cm X 1.27 cm (entry wound),

iv)A lacerated wound on the back of left chest (mid scapular line) everted margins measuring 2.61 cm X 2.54 cm (exit wound).

v)Lacerated circular wound on medial size of right knee joint (at base of pettla, vastus medialis) lead staining present inverted margin size 1.27 cm X 1.27 cm entry wound, the direction of the wound is lateral side of the right knee (iliotibial tract) making exit wound measuring 2.67 cm X 2.54 cm everted margins.

FINAL OPINION

In my final opinion, these injuries were ante-mortem in nature caused by fire-arm, injury No.1 (exit wound) & injury No.2 (entry wound) were the fatal injuries. The cause of death in this case was due to injuries No.1 & 2.

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7.On 03.08.2021, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Arshad as being unnecessary. On 20.09.2021,the learned Deputy District Public Prosecutor gave up the prosecution witness namely Abdul Basit as being unnecessary and closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PT) regarding the analysis of the blood taken from the place of occurrence and the report of the Punjab Forensic Science Agency, Lahore (Exh.PV) regarding the comparison of the recovered weapon with the empty shells of the bullets taken from the place of occurrence.

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

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

10.The contention of the learned counsel for the appellant precisely is that the whole case is fabricated and false. The learned counsel for the appellant submitted

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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 appellant further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the appellant had no connection with the occurrence. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of a doubt.

11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that the prosecution has proved its case beyond the shadow of any uncertainty by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the appellant was responsible for the death of an innocent person. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the recoveries from the appellant also corroborated the prosecution account. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case prayed for the rejection of appeal.

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

13.The whole prosecution case revolves around the statements of Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7), the eye witnesses of the occurrence, who claimed to had witnessed the occurrence and also took part in the test identification parade proceedings held to establish the identity of the appellant.

The relationship of the said witnesses with the deceased is on record. Ghulam Mustafa son of Abdul Ghaffar (deceased) was the real brother of Muhammad Afzal (PW-6) and the cousin of Muhammad Abdullah (PW-7). During cross-examination, the prosecution witness namely Muhammad Abdullah (PW-7) stated as under:- “ The deceased was my cousin”

The prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were also admittedly not the residents of the place of occurrence.

According to the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7), both of them used to work at a bakery in the city of Bahawalnagar established by the prosecution witness namely Muhammad Afzal (PW-6) and the occurrence had taken place within the area of Mauza Tahli Wala,which place was admittedly at a distance from the place of work of Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7). The prosecution witness namely Muhammad Afzal (PW-6), during cross-examination stated as under:-

“My brother Ghulam Mustafa (since deceased) used to collect bakery items from the bakery at Bahawalnagar and would sell them on the way up till Nathey Wala

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before going to his house over there. The deceased and my two aforementioned other brothers used to sell the bakery items in separate areas. My brother Amjad sells bakery items in the area of Gajjani Haroonabad road and Ajmal sells the same in the area of Minchinabad road. Ghulam Mustafa deceased used to sells the bakery items in the area of Murli Garh, Mitha Aakoka, Balochan till Nathey Wala, They had carrier cages fixed on their motorbikes for carrying the bakery items. I used to work only on bakery and was not doing the supply job. We open our bakery at about 7.00 a.m. and close it at about 1.30/2.00 p.m. My brothers used to leave the bakery after loading the bakery items at about 1.30/2.00 p.m. They used to sell the items till evening.

On the fateful day, I left Bahawalnagar at about 2.15 p.m. for going to Nathey Wala.

The distance between my bakery and Nathey Wala is about 35 kilometers.”(emphasis supplied).

The prosecution witness namely Muhammad Abdullah (PW-7), during cross- examination stated as under:-

“ I am middle pass. I work at the bakery of the complainant, I am not a salesman and work only at the bakery. The distance between my home and the bakery is 32 kilometers. I was at my work place at the bakery for the last about two days prior to the occurrence.

The distance between the bakery and the place of occurrence is about 10/12 kilometers.” (emphasis supplied)

It is an admitted fact that both the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) did not have their residences or their places of employment near or around the place of occurrence. In this manner, both the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad

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Abdullah (PW-7) can be validly termed as “chance witnesses” and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence, when the same was taking place. During the course of the investigation, no evidence was brought on record that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) had started their journey from a bakery and while on their said journey, they had witnessed the occurrence. Muhammad Siddique, ASI (PW-9) , the Investigating Officer of the case, did not collect any evidence that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) had started their journey from a bakery established by the prosecution witness namely Muhammad Afzal (PW-6) and on that journey had witnessed the occurrence. Muhammad Siddique, ASI (PW-

9), the Investigating Officer of the case, admitted during cross-examination as under:-

“I had not visited the bakery of the complainant. I did not enquire that PW Muhammad Abdullah is servant of complainant since 10 year. The deceased was resident of Chak Nathey Wala. I do not know either the deceased had also a residence at Chak Hafiz Wala.” (emphasis supplied) No documentary evidence was produced by the prosecution witnesses in this regard that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) had indeed started their journey from such a bakery established by Muhammad Afzal (PW-6) where Muhammad Abdullah (PW-7) used to work. We

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have also noted that though it was claimed by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) that they had gone to the place of occurrence on one motorcycle, however, during the course of the investigation as well as before the learned trial court, the said motorcycle allegedly used by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) to arrive at the place of occurrence was not produced.

Muhammad Afzal (PW-6), during cross-examination, stated as under:- “We might be at 40 km speed on our bike as three of us were riding the same.”

(emphasis supplied)

Muhammad Siddique, ASI (PW-9), the Investigating Officer of the case, visited the place of occurrence, after the occurrence and remained there for a considerable time, for as many as four hours. Muhammad Siddique, ASI (PW-9) during cross- examination stated as under:-

“ It consumed about 4 1⁄2 hours in completion of the whole proceedings at the spot.”

During the course of his stay at the place of occurrence, Muhammad Siddique, ASI (PW-9), the Investigating Officer of the case did not take into possession the motorcycle allegedly used by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) to arrive at the place of occurrence alongwith the other recoveries, though there was no occasion for the said motorcycle not to have been present at the place of occurrence or not being taken into possession by the Investigating Officer during his visit at the place of the occurrence, if the same was available. The said motorcycle which was used by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) was not even produced during the entire period of investigation nor was produced before the

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learned trial court. The non-production of the motorcycle used by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) to arrive at the place of occurrence and the failure of Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) as well as the Investigating Officer of the case to produce the same before the learned trial court leads to only one conclusion and that being that no such motorcycle was available. Had a motorcycle been used by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) to arrive at the place of occurrence, then the same must have been available at the place of occurrence, at the time of arrival of Muhammad Siddique, ASI (PW- 9), the Investigating Officer of the case and the same would necessarily have been taken into possession by Muhammad Siddique, ASI (PW-9), the Investigating Officer of the case but it was not and it proves that a false claim was made by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) that they had arrived at the place of occurrence on a motorcycle. The very inception of the prosecution case, is therefore, put in doubt. Reliance in this regard is placed on the case of “Muhammad Ali Vs. The State” (2015 SCMR 137) wherein the august Supreme Court of Pakistan has held as under:-

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

In this manner, both the eye witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) failed miserably to establish the reason for their presence at the place of occurrence, at the time of occurrence and the mode through which they arrived at the place of occurrence . The prosecution was under a bounden

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duty to establish not only that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) had a reason to proceed to the place of occurrence but also to prove the mode through which the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) arrived at the place of occurrence. The failure of the prosecution to prove the said fact has vitiated our trust in Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) as being truthful witnesses. In this respect, reliance is placed on the case of “Muhammad Rafiq v. State” (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of “Usman alias Kaloo v.

State” (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad, Ghulam Farid and Manzoor Ahmed in the said case who were all residents of some other houses and they were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses were, thus, chance witnesses and declared not worthy of reliance. Reliance is also placed on the case of “Nasrullah alias Nasro v. The State” (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:-

“In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence.”

14.We have also observed that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) claimed that the occurrence took

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place exactly at the same time when they had arrived at the place of occurrence. The prosecution witness namely Muhammad Afzal (PW-6), in his statement before the learned trial court, stated as under:-

“At about 2.30/3.00 P.M, Ghulam Mustafa (since deceased) was going on his motorbike at a distance of about one acre ahead of us..”

Similarly, the prosecution witness namely Muhammad Abdullah (PW-7), in his statement before the learned trial court, stated as under:- “When we reached in the area of Tahli Wala, my cousin Ghulam Mustafa was on his bike about one acre ahead of us, a person on motor bike 125 wearing black Qameez us,..”

This narrative of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) that they were at a distance of only one acre from the deceased when they witnessed the occurrence is not believable as according to prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7), the deceased left the bakery on his motorcycle at about 01.30 p.m, whereas the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) left the bakery at about 2.15 p.m., also riding on a motorcycle.

The prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) also mentioned the speed at which the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were driving their motorcycle as being about 40 km/h. It was also mentioned by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) that the distance between the place of occurrence and the place of bakery was as much as 35 kilometres. The prosecution witness namely Muhammad Afzal (PW-6) , during cross-examination stated as under:-

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“ We open our bakery at about 7.00 a.m. and close it at about 1.30/2.00 p.m.

My brothers used to leave the bakery after loading the bakery items at about 1.30/2.00 p.m.

On the fateful day, I left Bahawalnagar at about 2.15 p.m. for going to Nathey Wala. The distance between my bakery and Nathey Wala is about 35 kilometers.

We might be at 40 km speed on our bike as three of us were riding the same.” (emphasis supplied)

The prosecution witness namely Muhammad Abdullah (PW-7), during cross- examination, stated as under:-

“Ghulam Mustafa deceased had come to the bakery on that day at about 1.30 p.m. He left the bakery within 15/20 minutes after collecting the bakery items. The distance between the bakery and Nathey Wala is about 27/28 kilometers.” (emphasis supplied)

The above referred portions of the cross-examination of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) reveal that the deceased, while riding on a motorcycle, had left the bakery where the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were present prior to the occurrence , much before the departure of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) from the same bakery and in these circumstances, the arrival of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) at the place of occurrence, at the same time when the deceased was also present there,

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is a claim which could not be proved because of the obvious difference in the time of leaving of the deceased on a motorcycle from the bakery and the time of departure of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) from the same bakery. It was not possibly that the deceased and the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) would have travelled the same distance despite starting their journeys with a difference of as much as about 45 minutes from each other. There is no evidence brought on record that the deceased , after his departure from the bakery, had made any stops till he was waylaid by the assailant and therefore, it was not possibly for the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) to have covered the same distance as the deceased , despite them departing from the bakery much later.. Hence, after analyzing the statements of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) , we are constrained to hold that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were not present at the time of occurrence, at the place of occurrence and had not witnessed the occurrence. In this regard reliance is placed on the case of “STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar Vs. HASSAN JALIL and others” ( 2019 S C M R 1154) wherein the august Supreme Court of Pakistan held as under:-

“Arrival of Noor Seema, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case.”

Reliance is also placed on the case of Muhammad Imran Vs. The State ( 2020 S C M R 857) wherein the august Supreme Court of Pakistan held as under:- “These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon

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to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself.”

15.We have also noted with grave worry that the ocular account of the occurrence as furnished by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) is contradictory to the medical evidence, flawed beyond mending and has disfigured the whole complexion of the prosecution case, beyond repair and recognition. The statements of both the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) are in direct contrast and contradictory to the observations and the opinion of Dr. Shahid Iqbal (PW-3), who conducted the post mortem examination of the dead body of the deceased namely Ghulam Mustafa son of Abdul Ghaffar. According to the statements of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) , the deceased was riding a motorcycle at the time of occurrence and had suffered two fire arm injuries while still on the motorcycle. The prosecution witness namely Muhammad Afzal (PW-6), during his statement before the learned trial court, stated as under:-

“The accused fired two shots on the deceased while he was on motorbike and the third one on his temple when he had fallen from the motorbike.”

(emphasis supplied)

The prosecution witness namely Muhammad Abdullah (PW-7), during cross- examination, stated as under:-

“ The deceased had fallen from his motorbike when the accused inflicted the first two fireshots.”

In this manner, according to the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) , the deceased fell on the road after

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receiving two fire shots. It has also been brought on record that the occurrence had taken place on a metalled road. We have perused the scaled site plan of the place of occurrence (Exh.PB) as prepared by Muhammad Din Abid, draftsman (PW-2) and the rough site plan of the place of occurrence (Exh.PO) as prepared by Muhammad Siddique, ASI (PW-9) and according to the said site plans (Exh.PB and Exh.PO), the occurrence had taken place on a metalled road and the deceased had also fallen on the said road and the blood stained earth was also collected from the road, therefore, in that scenario , if the manner of the occurrence as narrated by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) had been true, then Dr. Shahid Iqbal (PW-3), the Medical Officer who conducted the post mortem examination of the dead body of the deceased, must have observed injuries on the dead body of the deceased caused by him falling from a motorcycle on a metalled road, after receiving two fire shots at the hands of the assailants, however, Dr. Shahid Iqbal (PW-3) did not observe any other injury on the dead body of the deceased except the three injuries suffered by the deceased caused to him by use of a firearm weapon. This fact alone is sufficient to conclude that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were not present at the place of occurrence and therefore gave a false narrative of how the occurrence had taken place. Putting the prosecution case in further doubt are the statement of the prosecution witness namely Muhammad Abdullah (PW-7) that the deceased had suffered the first two shots on the right side of his body, whereas the third shot had been inflicted after the deceased had fallen on the road. The prosecution witness namely Muhammad Abdullah (PW-7) , in his statement before the learned trial court , stated as under:- “He inflicted last fire shot on the temple of Ghulam Mustafa in our view.

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The accused fired the first two shots from the right side of the deceased. ” Dr. Shahid Iqbal (PW-3), the Medical Officer who conducted the post mortem examination of the dead body of the deceased, observed a circular lacerated wound of the dimension of 1.5 cm X 1.27 cm, with inverted margin, present on the left side of the chest along nipple (mid clavicular line, 2-3 ribs) , on the dead body of the deceased, contrary to the statement of the prosecution witness namely Muhammad Abdullah (PW-7) that the deceased had suffered two fire shots on the right side of his body. Despite our repeated queries, the learned Deputy Prosecutor General as well as the learned counsel for the complainant have failed to explain the said discrepancies in the prosecution evidence. In this manner, irreconcilable and harrowing contradictions have cropped up in the ocular account of the occurrence as narrated by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) and the medical evidence as furnished by Dr. Shahid Iqbal, (PW-3). The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) and the medical evidence as furnished by Dr. Shahid Iqbal (PW-3), clearly establish that the prosecution miserably failed to prove the charge against the appellant. The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) and the medical evidence as furnished by Dr. Shahid Iqbal (PW-3), sound the death knell for the prosecution case and prove to be the cause of its sad demise. Had the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) seen the occurrence then there did not exist any possibility that they would have fallen into such colossal error.

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Reliance is placed on the cases of “Muhammad Ashraf Vs. The State” ( 2012 S C M R 419) ,USMAN alias KALOO Vs. The State (2017 S C M R 622) ,Muhammad Hussain Vs. The State (2008 S C M R 345) and “Amin Ali and another Vs. The State” (2011 SCMR 323) .

16.It was indeed an unfortunate incident wherein, Muhammad Afzal (PW6), the complainant of the case, lost his brother namely Ghulam Mustafa son of Abdul Ghaffar (deceased), however, the fact remains that the name of the assailant was not mentioned in the written application (Exh.PA/1) as submitted by Muhammad Afzal (PW6) to Muhammad Siddique, ASI (PW-9), the Investigating Officer of the case and the formal F.I.R (Exh.PA) was lodged against an unknown accused person.

The prosecution, in order to prove the identity of the appellant as being the accused involved in the occurrence, Muhammad Afzal (PW6) and Muhammad Abdullah (PW-7) both stated that on 04.03.2021 they had identified the appellant during the test identification parade proceedings held to establish the identity of the appellant.

Facts which establish the identity of any person whose identity is relevant are, by virtue of Article 22 of the Qanun-e-Shahadat, 1984, always relevant. The term 'identification' means proving that a person before the Court is the very same that he is alleged, charged or reputed to be. Identification is almost always a matter of opinion or belief. With regard to a criminal offence, identification has a two-fold object: first, to satisfy the investigating authorities, before sending a case for trial to court, that the person arrested, but not previously known to the witnesses, was the one or those who committed the crime,; second, to satisfy the court that the accused was the real offender concerned with the crime. Identification proceedings are therefore as much in the interest of the prosecution as in the interest of the accused.

An identification parade is held in the course of investigation of an offence for the

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purpose of enabling the witnesses to identify the persons who are concerned with the offence; they are not held merely for the purpose of identifying persons irrespective of their connection with the offence; the witnesses are explained the purpose of holding these parades and are asked to identify the persons which are concerned in the offence. But it is obvious that if before the court a witness pointed to a stranger and stated that he was the offender, there would be no guarantee of the truth of his assertion. Consequently, in order to have some assurance of truth, a test identification is held , that is to say, the witness at an earlier stage is confronted with the alleged offender, not standing alone but mixed with a number of innocent persons of the same age-group and of similar build and features. That is to say, it is to give credence to the evidence of a witness who does not know the accused from before, subsequent to the commission of the offence, that a test identification is held, since, without it, the evidence of the witness concerned would have little value. Of course, the substantive evidence, i.e., evidence on which alone the court can base its order of conviction or acquittal, is that given by the witness before the court, but the value of deposition of a witness there of having identified the accused in the act of the crime is of little consequence. Before the Court can accept such identification as sufficient to establish the identity of the accused, it is very necessary that there be reliable corroborative evidence, and the corroborative evidence which the Court is entitled to accept in such cases is that of a test identification parade conducted with due precautions. In short, a test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the court. But of all evidence of fact, evidence about the identification of a stranger is perhaps the most elusive, and the Courts are generally agreed that the evidence of identification of a stranger based on a personal impression, even if the veracity of the witness is above board, should be approached with considerable caution, because a variety of

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conditions must be fulfilled before evidence based on the impression can become worthy of credence. 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:-

“13. In the late 1960s, the courts around the world, began to set the standard for reviewing eyewitness identification evidence Reliability and credibility of the witness was termed as the linchpin in determining the admissibility of identification testimony. US Supreme Court in the case of Manson v Brathwaite, UK Court of Appeal (Criminal Division) in Regina v. Turnbull and Another, New Jersey Supreme Court in State v Madison and Oregon Supreme Court in State v. Classen settled the following factors for assessing the reliability of the witness:

(1)the opportunity of the witness to view the suspect at the time of the crime;

(2)the witness's degree of attention;

(3)the accuracy of the witness's prior description of the suspect;

(4)the level of certainty demonstrated at the confrontation (seeing the accused in court); and

(5)the time between the crime and the confrontation (seeing the accused in court).

It is interesting to note that these factors were drawn from earlier judicial rulings and not from scientific research. The scientific research refutes the notion that memory is like a video recording, and that a witness needs only to replay the tape to remember what happened. Human memory is far more complex. The memory is a constructive, dynamic, and selective process. The process of remembering consists of three stages: acquisition-"the perception of the original event"; retention-"the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval-the "stage during which a person recalls stored information". The process of memory retention and retrieval may be affected by a number of factors. The scientific literature divides those variables into two categories: system and estimator variables. System variables are factors like lineup procedures which are within the control of the criminal justice system and in our jurisprudence are referred to as the Test Identification Parade. Whereas Estimator variables are factors related to the witness - like distance, lighting, or stress - over which the legal system has no control. Our courts have marginally attended to this aspect of witness reliability before placing reliance on the identification evidence (see above). The scientific research establishes that the following non-exhaustive list of "estimator variables" negatively affect the memory process:-

i. Stress: Even under the best viewing conditions, high levels of stress can diminish an eye-witness' ability to recall and make an accurate identification. It may be noted "while moderate levels of stress improve cognitive processing and might improve accuracy, an eye-witness under high stress is less likely to make a reliable identification of the perpetrator."

ii. Weapon Focus: When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. "Weapon focus" can thus impair a witness' ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.

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iii. Duration: The amount of time an eye-witness has to observe an event may affect the reliability of an identification. There is no minimum time required to make an accurate identification, however, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure."

iv. Distance and Lighting: A person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. Thus, greater distance between a witness and a perpetrator and poor lighting conditions can diminish the reliability of an identification.

v. Witness Characteristics: Characteristics like a witness' age and level of intoxication can affect the reliability of an identification. Children between the ages of nine and thirteen who view target-absent lineups are more likely to make incorrect identifications than adults.

vi. Characteristics of Perpetrator: Disguises and changes in facial features altered between the time of the event and the identification procedure affects the accuracy of an identification.

vii. Memory Decay: Memories fade with time and memory decay "is irreversible"; memories never improve. As a result, delays between the commission of a crime and the time an identification is made can affect reliability.

The scientific research referred to above has not only appeared in the peer reviewed journals but also has been considered "credible" by various courts in different jurisdictions. New Jersey Supreme Court in State v. Henderson observed that "virtually all of the scientific evidence" that had emerged in recent decades "reveals that an array of variables can affect and dilute memory and lead to misidentifications." Also see State v. Lawson.

14.The laws of evidence maintain that in order for the court to take judicial notice of scientific facts they must be part of the general knowledge of men or must be agreed upon by reputable men in a particular field of science beyond reasonable dispute. For judges to determine the degree of consensus on a particular scientific fact they may refer to any reputable and recognized reference sources.35 The House of Lords in Regina (Quintavalle) v. Secretary of State for Health36 held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. This Court can take judicial notice of the credible scientific development under Article 112, Qanun-e-Shahadat, 1984. The question is can we shut our eyes to credible scientific research and development, which has already been recognized and acknowledged by the courts in various other jurisdictions. If scientific research can help and assist the court in understanding and appreciating evidence more fully and more meaningfully, the risk of miscarriage of justice stands minimized. Therefore, the courts don't shy away from scientific developments but instead reach out and embrace them. Reliance on scientific research and the factors evolved by science to assess the reliability and credibility of the eye-witness can improve the quality of identification evidence and as a consequence the quality of justice. Our jurisprudence had already travelled in this direction and now credible scientific research by providing us additional factors or "estimator variables" (which are not exhaustive) has provided additional factors to certify the credibility and reliability of the eye-witness and as a result the veracity and probative value of the identification evidence.”

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Estimator variables are factors related to the witness , like distance, lighting, or stress during the occurrence, which factors are directly related to the capacity of a witness to first observe and then to retain the features of the accused for him to subsequently remember them with such clarity so as to make a correct identification later during the test identification parade proceedings . The scientific research establishes that "estimator variables" negatively affect the memory process.In the tumult of the occurrence ,the possibility of false identification does exist . An assortment of Estimator variables can affect and cloud memory and lead to misidentifications. Such variables were admittedly available in this case. According to the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) , they were at a distance of as far as one acre from the place where the occurrence was taking place and also that the assailant passed them on a motorcycle while travelling at a speed of 80 km/h. The prosecution witness namely Muhammad Afzal (PW-6) , during cross-examination , stated as under:- “The accused would be at a speed of about 80 km on his motorbike when he over took us. We might be at 40 km speed on our bike as three of us were riding the same.

The distance from the place where the accused over took us and the one where he shot dead the deceased might be 11⁄2 to 2 acres.

I had seen the accused from his back and not from his face when he over took us.”(emphasis supplied)

The prosecution witness namely Muhammad Abdullah (PW-7), during cross- examination, stated as under:-

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“The speed of the motorbike of the accused was 80/90 kilometers per hour when he speed. over took us. We were at the speed of 25/30 km hour.

The distance between the place from which the accused over took us and where the occurrence took place is about 11⁄2 acres. We reached the exact place of occurrence within a minute or so. The distance between us and the accused when he fired the last shot was about 20/25 feet.” (emphasis supplied)

The above referred portions of the cross-examinations of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) clearly reveal that by their own admission, the assailant was travelling on a motorcycle, at a high speed of 80 km/h and passed them from behind, towards the deceased and while sitting on the motorcycle , fired twice at the deceased, who at the time of firing was at a distance of as much as 11⁄2 to 2 acres from the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7).The opportunity of prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) to view the suspect at the time of the crime in this case was bleak and remote in the circumstance as narrated by prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) themselves. A person is easier to recognize when close by, and that clarity decreases with distance. Thus, greater distance between a witness and a perpetrator can diminish the reliability of an identification as in the present case it must have.The presence of the factor that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were at a great distance from the assailant at the time of occurrence and had no opportunity to even see his face in the circumstances narrated by them, has extinguished the possibility of a correct identification by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) of the accused

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during test identification parade proceedings in the circumstances bringing the value of the test identification parade proceedings to null.

17.We have also noted with concern that both the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) , despite claiming to be present at the place of occurrence , at the time of occurrence, admitted that they made no effort to close the eyes and mouth of the deceased after the occurrence. The prosecution witness namely Muhammad Afzal (PW-6), during cross-examination, admitted as under:-

“I did not close the eyes and mouth of the deceased. ”

The prosecution witness namely Muhammad Abdullah (PW-7), during cross- examination, admitted as under:-

“I did not close the eyes or mouth of the deceased. None from the other witnesses closed his eyes or mouth. The deceased breathed his last in our view. His eyes were lying open after he died. ” (emphasis supplied) The stance set up by the prosecution in the present case is that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were present at the time of the death of the deceased and had remained with the dead body. No efforts was made by the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) to close the mouth and eyes of the deceased, 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 Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) , at the place of occurrence, at the time of occurrence. This fact by

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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).

18.Another factor pointing towards the absence of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) at the place of occurrence , is the statement made by the prosecution witness namely Muhammad Afzal (PW-6) that he had presented the written application (Exh.PA/1) for the registration of the case to Muhammad Siddique, ASI (PW-9) at the DHQ hospital, Bahawalnagar at about 8/9.00 p.m, whereas according to Muhammad Siddique, ASI (PW-9) , the written application (Exh.PA/1) was presented to him by Muhammad Afzal (PW-6) at the place of occurrence at about 04.10.p.m. The prosecution witness namely Muhammad Afzal (PW-6) during cross-examination stated as under:- “The ASI Muhammad Siddique Watto wrote the application Exh.PA/1 in the hospital at about 8/9.00 p.m. I was present there at that time.

Except for Exh.PA/1, 1 did not move any other application to Muhammad Siddique Watto ASI. ” (emphasis supplied)

The prosecution witness namely Muhammad Siddique, ASI (PW-9), during cross- examination, stated as under:-

“ I recorded the statements of eye witnesses at the spot. The crime scene unit reached at the place of occurrence on my information. The crime scene unit reached at the place of occurrence after about 03/04 hours of the occurrence. I do not remember that how much time consumed in the recording of statements of eye witnesses at the spot. It is incorrect to suggest that I am intentionally concealing this fact .It is correct that neither I

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received any application for registration of FIR from the complainant nor recorded the statements of eye witnesses in the hospital.” (emphasis supplied)

In this manner, not only this fact is proved on record that the written application (Exh.PA/1) was prepared by Muhammad Siddique, ASI (PW-9) , the Investigating Officer of the case , himself at the hospital but it is also proves that it was a manipulated and compromised document, prepared subsequently reflecting the presence of the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) at the place of occurrence, however, the said effort was exposed badly and it was proved that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) were not present at the place of occurrence , at the time of occurrence and their presence was procured subsequently. Even Muhammad Siddique, ASI (PW-9) , the Investigating Officer of the case, admitted during cross-examination as under:- “It is correct that it was a blind murder. ”

All these facts mentioned above, raise serious doubts regarding the presence of the prosecution witnesses namely Muhammad Afzal (PW6) and Muhammad Abdullah (PW-7) at the place of occurrence.

19.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the pistol (P-16) made from the appellant and the report of the Punjab Forensic Science Agency, Lahore (Exh.PV) and have submitted that the said recovery from the appellant offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Muhammad Afzal (PW6) and Muhammad Abdullah (PW-7) .The recovery of the pistol (P-16) having three bullets (P-17/1-3) from the appellant

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namely Muhammad Ashraf cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the pistol (P-16) having three bullets (P-17/1-3) from the appellant namely Muhammad Ashraf, 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 recoveries 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.

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 prosecution witness namely Muhammad Abdullah (PW-7) during cross examination, admitted as under :-

“Some persons from the locality attracted to the spot at the time of recovery.

The 1.0 did not examine any of them. The IO did not ask them to become a witness.” (emphasis supplied)

Therefore the evidence of the recovery of the pistol (P-16) having three bullets (P- 17/1-3) from the appellant namely Muhammad Ashraf 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. The august

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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 failed to establish the safe custody of the empty shells of the bullets from the place of recovery to the police station and from the Police Station to the Punjab Forensic Science Agency, Lahore. According to the prosecution witness namely Shah Behram 1008/HC (PW-4) on 21.02.2021, Muhammad Siddique, ASI (PW-9) handed over to him one sealed parcel said to contain blood stained earth and one sealed parcel said to contain the empty shells of the bullets recovered from the place of occurrence and a motorcycle belonging to the deceased and on 28.02.2021, he handed over the one sealed parcel said to contain blood stained earth to Muhammad Siddique, ASI (PW-9) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 07.03.2021, Muhammad Siddique, ASI (PW-9) handed over to him one sealed parcel said to contain a pistol and one motorcycle and on 10.03.2021, he handed over the one sealed parcel said to contain a pistol to Muhammad Siddique, ASI (PW-9) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore, however Shah Behram 1008/HC (PW-4) did not make any statement of handing over any sealed parcel containing empty shells of the bullets recovered from the place of occurrence to any police official for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore.

Moreover, though according to the report of Punjab Forensic Science Agency, Lahore (Exh.PV) , the sealed parcel containing empty shells of the bullets recovered from the place of occurrence was brought to the the Punjab Forensic

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Science Agency, Lahore by Muhammad Siddique, ASI (PW-9) , however, Muhammad Siddique, ASI (PW-9) made no statement that any sealed parcel containing empty shells of the bullets recovered from the place of occurrence was handed over to him for its transmission to the Punjab Forensic Science Agency, Lahore or that he had deposited any sealed parcel containing empty shells of the bullets recovered from the place of occurrence in the Punjab Forensic Science Agency, Lahore . The above mentioned prosecution witnesses namely Shah Behram 1008/HC (PW-4) and Muhammad Siddique, ASI (PW-9) were not declared hostile nor the said prosecution witnesses were re-examined by the prosecutor. Therefore, it is proved on record that the safe custody and safe transmission of the empty shells of the bullets from the place of occurrence to the police station and from the Police Station to the Punjab Forensic Science Agency, Lahore could not be proved. With regard to the recovery of the motorcycle (P-18) from the appellant, it has been noted by use with grave concern that the Investigating Officer of the case did not join any witness of the locality during the recovery of the motorcycle (P-18). Moreover, Muhammad Siddique, ASI (PW-9) , the Investigating Officer of the case, admitted that the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) had not told him about the registration number of the motorcycle which they had seen the assailant arrived on at the place of occurrence. Muhammad Siddique, ASI (PW-9), during cross-examination, admitted as under:- “Neither the complainant nor the PWs told me about the registration number of the motorcycle used in the occurrence at the spot,”

When the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) did not identify the recovered motorcycle (P-18) as being the same which was used by the assailant to arrive at the place of occurrence and when

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the prosecution witnesses namely Muhammad Afzal (PW-6) and Muhammad Abdullah (PW-7) also did not mention the registration number of the motorcycle which they had seen the assailant arrived on at the place of occurrence, then the recovery of the motorcycle (P-8) does not prove any fact in issue or relevant fact.

20.The plea of the learned Deputy Prosecutor General that because the complainant party was having no enmity to falsely implicate the appellant in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of “Waqar Zaheer vs. The State” (1991 PSC 281). It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without a shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so imputed against the accused, have not been proved beyond a reasonable doubt, then the accused becomes entitled to acquittal. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of the doubt the Court can conclude on considering the agglomerated effect of the evidence available on record as held in the cases of “Safdar Ali v. The Crown” (PLD 1953 FC 93) and “Muhammad Luqman v. The State” (PLD 1970 SC 10). In the instant case we have

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scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellant. Conversely, the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the prosecution evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused persons intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently would not be sustainable in the eyes of the law in view of the principles laid down by the august Supreme Court of Pakistan in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent and flawed, thus, on basis of the same, appellant cannot further be immured because he has every right to claim guarantee of the Constitution of the Islamic Republic of Pakistan,1973 which provides that every citizen of the country shall be dealt with in accordance with the law.

21.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellant namely Muhammad Ashraf son of Muhammad Younis in the present case. It is settled principle of law that for giving benefit of 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

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of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been observed in as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eyewitnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

22.For what has been discussed above, Criminal Appeal No. 418 of 2021 lodged by the appellant namely Muhammad Ashraf son of Muhammad Younis is allowed. The conviction and sentence of Muhammad Ashraf son of Muhammad Younis (appellant) awarded by the learned trial court through the impugned judgment dated 04.10.2021 are hereby set-aside. Muhammad Ashraf son of

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Muhammad Younis (appellant) is ordered to be acquitted by extending him the benefit of doubt. The appellant namely Muhammad Ashraf son of Muhammad Younis is in custody and he is directed to be released forthwith if not required in any other case.

23.Murder Reference No.13 of 2021 is answered in Negative and the sentence of death awarded to Muhammad Ashraf son of Muhammad Younis, is Not Confirmed.

(MUHAMMAD TARIQ NADEEM) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

APPROVED FOR REPORTING

JUDGE JUDGE