Ghulam Abbas Vs The State etc

Stereo H C J D A 38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Murder Reference No.116 of 2020 (The State. versus Ghulam Abbas.)

Crl. Appeal No. 58516-J of 2020 (Ghulam Abbas vs. The State etc.)

JUDGMENT

Date of hearing: 21.04.2025.

Appellant by: M/s Usman Naseem and Ijaz Rehmat Basra, Advocates.

State by: Mr. Muhammad Akhlaq, Deputy Prosecutor General.

Complainant by: Mr. Abid Hussain Saqi, Advocate.

AALIA NEELUM, CHIEF JUSTICE:- Ghulam Abbas, son of Haq Nawaz, caste Ambrana, resident of Adda Fateh Pur Chak No.3/4-L, Tehsil Ahmad Pur Sial, District Jhang, the appellant was involved in case F.I.R. No.398 of 2013, dated 21.12.2013, offence under sections 302, 148, 149 PPC, registered at Police Station Ahmad Pur Sial, District Jhang, and was tried by the learned Additional Sessions Judge, Ahmad Pur Sial, District Jhang. The trial court seized with the matter in terms of judgment dated 10.10.2020 convicted the appellant under Section 302(b) PPC and sentenced to Death with the direction to pay Rs.500,000/- as compensation under section 544-A of Cr.P.C. to the legal heirs of deceased Muhammad Irfan and in case of default, the appellant would further undergo simple imprisonment for six months.

2.Feeling aggrieved by the judgment of the trial court, Ghulam Abbas, the appellant, has assailed his conviction by filing the instant jail appeal bearing Criminal Appeal No.58516-J of 2020. The trial court also referred M.R. No.116 of 2020 (The State vs. Ghulam Abbas) for confirmation of the death sentence awarded to the appellant, Ghulam Abbas. Both matters arising out of

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the same judgment of the trial court are being disposed of through a single judgment.

3.The prosecution story as alleged in the F.I.R. (Ex. PC) lodged on the written complaint (Ex.PN) of Bashir Ahmad (PW-14)-the complainant is that on 21.12.2013, the complainant (PW-14) along with Muhammad Yar (PW-15) and Anwar was sitting in the side room of his house whereas his son Irfan, his wife Mst. Shamim Mai (PW-16) and his niece Mst. Sehrish Bibi were sitting in the other residential room of same house; that suddenly accused Ghulam Abbas (the appellant) while armed with repeater 12-bore, Nasir armed with gun 12- bore, Haq Nawaz armed with repeater 12-bore, one unknown accused armed with pistol 30 bore and other unknown accused armed with rifle 7MM came there by riding on two motorcycles; that the unknown accused person stopped at the door of Haveli and kept their motorcycles in starting condition whereas remaining three accused persons entered in the Haveli and at the door of residential room, accused Nasir raised lalkara that he would teach lesson to Sehrish Bibi for filing suit for dissolution of marriage; after that, accused Nasir made straight fire with his gun 12-bore which landed on right side of nose of Mst. Sehrish Bibi, while accused Haq Nawaz, made fire which landed beneath the right eye of Mst. Sehrish Bibi, who fell; that Irfan son of complainant (PW-

14)tried to intervene, then accused Ghulam Abbas (the appellant) made fire with repeater 12-bore which landed on his head beneath his left ear and Irfan fell down; that second fire was made by Haq Nawaz, which landed beneath of left jaw of Mst. Sehrish Bibi, that Mst. Shamim Mai wife of complainant while hiding herself behind the door saved herself and had been identifying the accused persons; that electric light was lightening in the room and the complainant was also having charging light in his hand and he along with others properly identified the accused persons; that the complainant (PW-14) along with others tried to apprehend the accused persons but two unknown accused persons made aerial firing that if someone would come near, he would be done to death; that the complainant (PW-14) along with others could identify the unknown accused on their coming in sight of them and the accused persons

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succeeded to flee away; that Irfan son of complainant (PW-14) and Mst. Sehrish Bibi, niece of the complainant, died at the spot.

The motive behind the occurrence was that Mst. Sehrish Bibi was married to Nasir, an accused, who had gone to Dar-ul-Aman due to strained relations with her husband. On the day of the occurrence, she was out of Dar-ul- Aman and residing in the house of the complainant (PW-14), being her niece, as she was facing a life threat. Mst. Sehrish Bibi had filed a suit for dissolution of marriage against the accused Nasir, which was pending on the day of the occurrence. Due to the grudge, the accused persons committed the murder of Irfan and Mst. Sehrish Bibi.

4.After the incident, Bashir Ahmad, the complainant (PW-14), reported the matter to the police through a written application (Ex.PN), upon which Aziz-ur-Rehman A.S.I (PW-4) chalked out a formal F.I.R. (Ex. PC).

5.After the registration of the FIR, Zahoor Ismail, S.I. (PW-17), investigated the case. Having found the appellant guilty, he prepared a report under Section 173 of the Cr.P.C. and sent it to the court of competent jurisdiction. On 20.06.2014, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as eighteen (18) witnesses.

6.After the closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein he had not opted to appear as his own witness in terms of Section 340 (2) Cr.P.C., however, produced in defence copy of suit for dissolution of marriage along with order dated 24.06.2013 as Ex. DC. In response to a particular question of why this case was against him and why the PWs deposed against him, the appellant made the following deposition: -

“All the PWs are relatives and interconnected with each other. None from the locality join investigation of this case from complainant side.

It is case of the prosecution that suit of dissolution of marriage on the day of occurrence i.e. 21.12.2013 and due to said motive the

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occurrence took place. The said suit was dismissed on 24.06.2013 which also shows that prosecution has no legs to stand. In fact it was talk of the village that Mumtaz son of Noor committed murder of both the deceased while seeing them in a room alone in objectionable position. The complainant involved me and my co-accused due to family dispute. The complainant is nephew of Noor father of Mumtaz. Complainant demanded Safai from Noor regarding involvement of his son Mumtaz in the occurrence. Lastly, complainant in league with the PWs and to save the skin of Mumtaz from legal punishment involve me and my co- accused in this case. It is very pertinent to submit that during investigation, it was proved that Sehrish deceased and Irfan deceased has illicit relation and they were living immoral and objectionable life with each other. It was also proved during investigation that Muhammad Irfan deceased committed illicit intercourse with Sehrish Bibi and thereafter, he was done to death in the same room. None from the complainant and from the witnesses was present at the time of occurrence. It is also noteworthy that complainant and an eye witness stated before the I.O during investigation that they are satisfied regarding innocence of Nasir accused my co- accused and also asked the I.O to declare me innocent if not connected with the occurrence. This sole fact has proved that complainant and the witnesses were not present at the place of occurrence. It is case of the prosecution that Mst. Sehrish Bibi was living deserted life in the house of complainant and was not married to any other and a suit for dissolution of marriage was also pending before the Family Court. It is very important to submit that report of P.F.S.A regarding swabs taken from the dead body of Sehrish Bibi and detection of semen has proved that the talk of the village was not baseless and in fact both were done to death by Mumtaz s/o Noor. Complainant party remain failed to prove my presence at the time of occurrence and I succeeded to prove my non presence at the place of occurrence and my presence in District Khanewal. Even father of the deceased namely Zulfiqar stated during investigation regarding

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my innocence and non involvement in the present occurrence.”

7.After recording evidence and evaluating the available evidence in light of the arguments presented by both sides, the trial court found that the prosecution's version was proved beyond any reasonable doubt, resulting in the appellant's conviction in the terms mentioned above.

8.Arguments advanced by the learned counsel for the parties have been heard and minutely perused the record on the file.

9.In the instant case, the incident took place on 21.12.2013 at 07:30 p.m. within the area of Mauza Kundal Khokhran, falling within the territorial jurisdiction of Police Station Ahmed Pur Sial, District Jhang. The incident was reported to the police by Bashir Ahmad (PW-14)-the complainant, through written complaint (Ex.PN) at Adda Kassuana at 08:30 p.m. on 21.12.2013 to Zahoor Ismail S.I. (PW-17)-the investigating officer, who incorporated police proceedings on the written complaint (Ex.PN) and sent the same to the police station through Abdul Hakeem 982/C (PW-1) for registration of formal FIR. Aziz-ur-Rehman ASI (PW-4) chalked out a formal FIR (Ex. PC) based on a written complaint (Ex.PN) at 09:15 p.m. on 21.12.2013. Abdul Hakeem 982/C (PW-1) deposed during examination-in-chief that on 21.12.2013, Aurangzeb SI handed over to him an application for registration of a formal FIR, which he handed over to Aziz-ur-Rehman ASI (PW-4), Duty Officer. However, Aziz-ur- Rehman ASI (PW-4) deposed that on 21.12.2013, Zahoor Ismail S.I. (PW-17)- the investigating officer sent a complaint through Abdul Hakeem 982/C (PW-1) for registration of a formal FIR. The prosecution gave up Aurangzeb SI PW as an unnecessary witness. However, perusal of the record reveals that Aurangzeb S.I. is not the witness of any document. The distance between the police station and the place of occurrence is 23 kilometers, whereas Adda Kassuana, where the incident was reported by Bashir Ahmad (PW-14)-the complainant is at 4/5 kilometers from the place of occurrence. Bashir Ahmad (PW-14)-the complainant deposed during cross-examination as under: -

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“The interse distance between Kassowana and place of occurrence is about 4/5 kilometers.”

According to the prosecution's case, during the incident, Mst. Sehrish Bibi and Muhammad Irfan were murdered by Nasir (since acquitted) and Ghulam Abbas (the appellant), respectively. Bashir Ahmad (PW-14), the complainant, testified that Muhammad Irfan came forward to rescue Mst. Sehrish Bibi, at which point Ghulam Abbas (the appellant) fired with his repeater 12-bore, hitting Irfan near the left ear, causing him to fall. The column of a brief history of inquest reports (Ex.PH & Ex.PK) of Mst. Sehrish Bibi and Muhammad Irfan respectfully revealed that the dead bodies were lying on the cots ()چارپائی. If, shortly after the incident, the police were notified without altering the positions of the deceased, observing the bodies on cots ( )چارپائی raises questions about the mode and manner of the incident.

10.There is another aspect of the case that raises doubts about the prosecution's story. According to the prosecution's case, the incident occurred at 07:30 p.m. on 21.12.2013, and the FIR was filed at 09:15 p.m. on the same day. We have noted that Dr. Ahmad Ali Jafri, APMO (PW-7), stated during his examination in chief that on 22.10.2013, he was posted as SMO at THQ Hospital, Ahmadpur Sial. On the same day, at 10:00 a.m., the dead body of Muhammad Irfan was brought by Asghar Ali 2086/C (PW-6), who examined the dead body on 22.10.2013 at 10:00 a.m. During the cross-examination, Dr. Ahmad Ali Jafri APMO (PW-7) also deposed that: - “In this case the death of Muhammad Irfan deceased may be between 21.10.2013 at 10:00 a.m. to 10:00 a.m. 22.10.2013.”

Whereas Dr. Syeda Zakia Rafique SWMO (PW-11) deposed during examination-in-chief that on 22.12.2013, she was posted as SWMO in DHQ Hospital, Jhang, and on the same day, she received the dead body of Mst. Sehrish Bibi, wife of Muhammad Nasir, aged about 18 years, was brought by Zahoor Ismail SI (PW-17)-the investigating officer, and Muhammad Yasin 779/C (PW-5), and after conducting a postmortem examination, she issued a postmortem report (Ex. PJ). On perusal of the postmortem report (Ex. PJ) of Mst. Sehrish Bibi, it transpires that the date of death was mentioned as

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21.12.2013, the receipt of a dead body in the dead house on 22.12.2013 at 04:00 p.m., and on the same date and time, documents were received. However, the autopsy was conducted on 22.10.2013 at 04:00 p.m. It appears that for the said reason, Dr. Syeda Zakia Rafique (PW-11) has not deposed about the date and time of conducting the autopsy on the dead body of Sehrish Bibi. It has also been noted that in the postmortem report (Ex.PF) of Muhammad Irfan (the deceased), at the bottom of the first page, the date was mentioned under the signatures of the doctor as 22.10.2013. The scanned copy of the relevant page of the postmortem report (Ex.PF) is as under: -

Zahoor Ismail S.I. (PW-17)-the investigating officer deposed that after incorporating police proceedings on written complaint (Ex.PN) as Ex.PN/1, he proceeded to the place of occurrence, examined the dead bodies of deceased Muhammad Irfan and Mst. Sehrish Bibi, also prepared the injury statement (Ex.PL) and the inquest report (Ex.PK) of Mst. Sehrish Bibi. He (PW-17)-the investigating officer also prepared injury statement (Ex.PG) and inquest report (Ex.PH) of deceased Muhammad Irfan. On perusal of the injury statement (Ex.PG) of Muhammad Irfan (the deceased) and the injury statement (Ex.PL) of

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Mst. Sehrish Bibi (the deceased), it reveals that on the face of the particulars of the FIR, the date was mentioned as 21.10.2013. The scanned copies of the injury statement (Ex.PG) of Muhammad Irfan (the deceased) and the injury statement (Ex.PL) of Mst. Sehrish Bibi (the deceased) is as below: - Injury statement (Ex.PG) of Muhammad Irfan (the deceased) Injury statement (Ex.PL) of Mst. Sehrish Bibi (the deceased)

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In addition, upon perusal of the inquest report (Ex.PH) of Muhammad Irfan (the deceased), it is revealed that in column No. 3, the date and time of receiving information about the incident are mentioned as 21.10.2013 at 07:30 p.m. Furthermore, on the face of the inquest report (Ex.PH), the particulars of the FIR are mentioned, revealing that the FIR was dated 21.10.2013. Similarly, on the last page of the inquest report (Ex.PH), the date of preparation of the inquest report was mentioned as 21.10.2013. The scanned copy of a relevant portion of the inquest report (Ex.PH) is as under: - Similarly, upon perusing the inquest report (Ex.PK) of Mst. Sehrish Bibi (the deceased), it is revealed that in column No. 3, the date and time of receiving information about the incident were mentioned as 21.10.2013 at 07:30 p.m. On the face of the inquest report (Ex.PK), particulars of the FIR were mentioned, revealing that the FIR was dated 21.10.2013. Similarly, on the last page of the inquest report (Ex.PK), the date of preparation of the inquest report was mentioned as 21.10.2013. The scanned copy of the relevant portion of the inquest report (Ex.PK) is as under: -

From the above depositions of the prosecution witnesses, i.e., Dr. Ahmad Ali Jafri (PW-7), Dr. Syeda Zakia Rafique (PW-11), and Zahoor Ismail, S.I. (PW-17), the investigating officer, and the documents referred to above, it is revealed that in all the documents prepared by Zahoor Ismail, S.I. (PW-17), investigating officer, the date of preparation of the documents and the date of

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registration of the FIR were shown as 21.10.2013. It also gets support from the deposition of Muhammad Yasin 779/C (PW-5), who deposed during his examination-in-chief as under: -

“On 22.10.2013, I was posted at police station Ahmad Pur Sial. On the same day dead body of Mst. Sairesh Bibi w/o Muhammad Nasir was handed over to me alongwith police papers for autopsy. I escorted the dead body along with the police papers to DHQ hospital Jhang. I got conducted postmortem examination on the dead body of Mst. Sairesh Bibi from DHQ hospital, Jhang.”

Asghar Ali 2068/C (PW-6) deposed during examination-in-chief that: - “On 22.10.2013 I was posted at police station Ahmad Pur Sial. On the same day dead body of Irfan s/o Bashir Ahmad was handed over to me alongwith police papers for autopsy. I escorted the dead body alongwith the police papers to THQ hospital Ahmad Pur Sial. I got conducted postmortem examination on the dead body of Irfan from THQ hospital, Ahmad Pur Sial.”

The prosecution has not given any explanation about the facts as mentioned above, which creates doubt about the date and time of occurrence, as well as the date and time when the autopsy on the dead body of Muhammad Irfan (the deceased) was conducted. It has also been noted that Dr. Ahmad Ali Jafri (PW-7) deposed that the probable duration between injury and death was immediate, and between death and postmortem was 24 hours. He (PW-7) admitted during cross-examination that: - “It is correct that time between death and postmortem is mentioned as within 24 hours. It could be from one second to 24 hours.”

Dr. Syeda Zakia Rafique SWMO (PW-11), who conducted postmortem examination on the dead body of Mst Sehrish Bibi (the deceased), deposed during examination in chief that: -

“Probable duration between the injuries and death was immediate and between death and postmortem was within 20 to 24 hours.”

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There is another external check that, when the postmortem was conducted, whether the FIR was in the picture or not. Dr. Ahmad Ali Jafri (PW-

7)deposed during examination in chief that: - “I also endorsed injury statement Ex.PG and inquest report Ex.PH.”

Similarly, Dr. Syeda Zakia Rafique (PW-11) deposed during examination in chief that: - “I also endorsed inquest report Ex.PK and injury statement Ex.PL.”

The deposition of Dr. Ahmad Ali Jafri (PW-7) and the postmortem report (Ex.PF) of Muhammad Irfan (the deceased) reveal that the autopsy was conducted on 21.10.2013. However, the inquest reports (Ex. PH and Ex. PK) reveal that the time of receiving information regarding the deaths of Muhammad Irfan and Mst. Sehrish Bibi was 7:30 on 21-10-2013 by Zahoor Ismail, S.I. (PW- 17), the investigating officer. Whereas Zahoor Ismail, S.I. (PW-17), the investigating officer, deposed during his examination-in-chief that after sending a written complaint (Ex. PN) for registration of the formal F.I.R. investigation of the case, he proceeded to the place of occurrence and prepared an injury statement (Ex. PG) and inquest report (Ex. PH) of deceased Muhammad Irfan and an injury statement (Ex. PL) and the inquest report (Ex. PK) of the deceased Mst. Sehrish Bibi. It has been noticed that in the inquest reports (Ex.PH and Ex.PK), even the names of Bashir Ahmad (PW-14), the complainant, Muhammad Yar (PW-15), and Mst. Shamim Mai (PW-16) has not been mentioned. The inquest reports (Ex.PH and Ex.PK) are not signed by any of the eyewitnesses or the complainant. However, Zahoor Ismail, S.I. (PW-17), the investigating officer, has categorically asserted that he recorded statements of witnesses under section 161 of Cr.P.C. and investigated the people present at the spot. If he (PW-17) visited and prepared inquest reports (Ex.PH and Ex.PK) and had met with Bashir Ahmad (PW-14), the complainant, Muhammad Yar (PW- 15), and Mst. Shamim Mai (PW-16), there is no reason why the details which we have been found missing from the inquest reports (Ex.PH and Ex.PK) should not have been there. The absence of those details is indicative of the fact that the prosecution's story was still in embryo and had not been given any shape, and

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that the FIR was recorded later after due deliberations and consultations. The second external check, equally important, is the sending of a copy of the FIR along with the dead bodies for postmortem examination and its reference in the inquest reports (Ex.PH and Ex.PK). The absence of these details in the inquest reports may be indicative that the FIR was not registered, and the FIR was recorded later after due deliberations and consultation. All the above facts cast a cloud of doubt about the prosecution's story as to the preparation of documents, and when the alleged documents were prepared.

11.It is the prosecution's case that Mst. Sehrish Bibi, niece of Bashir Ahmad (PW-14), the complainant, was living with him (PW-14) because she had filed a suit for dissolution of marriage against the accused, Nasir (since acquitted), and she had life threats. Whereas Bashir Ahmad (PW-14)-the complainant deposed during cross-examination as under: - “Kaniz Mai is the real mother of deceased Sehrish Bibi. Kaniz Mai is daughter of one namely Sohrab. I am the son of Allah Yar. We all brothers and sisters are from one father namely Allah Yar.”

From the above deposition of Bashir Ahmad (PW-14), the complainant, it is revealed that he is not the real brother of Kaniz Mai, the biological mother of Mst. Sehrish Bibi (the deceased). All the prosecution witnesses are closely related to Bashir Ahmad (PW-14), the complainant, and are not residents of the same vicinity. Bashir Ahmad (PW-14)-the complainant deposed during cross-examination that: -

“All the private PWs are my close relatives. Anwar Pw is resident of Kund Sargana. Residence of Anwar PW is at a distance of more than 70/75 kilometer from the place of occurrence.

Muhammad Yar Pw is resident of Chah Mammu Wala. Volunteered that Muhammad Yar Pw oftenly visited my house being my paternal cousin.

------------------------ The interse distance between Chah Mammu Wala and place of occurrence is about 1, 11⁄4 kilometer.”

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Muhammad Yar (PW-15) has failed to provide any reason for visiting the complainant's house. The relevant portion of the cross-examination of Muhammad Yar (PW-15) is as under: -

“I.O. recorded my statement in instant criminal case. I, in said statement got recorded the reason i.e. about ploughing expenses for visiting the house of complainant. Confronted with Exh.DB where it is not so recorded.”

Muhammad Yar (PW-15) deposed during cross-examination that his statement contains his thumb impression. However, no such statement was found in either the judicial or police files, which also raises doubts about the statement allegedly made by Muhammad Yar (PW-15). Muhammad Yar (PW-

15)deposed during cross-examination that: -

“I cannot tell whether the complainant attested the spot recovery memos or not. My statement contains my thumb impression. At this stage, learned defence counsels have requested to provide copy of such statement but no such statement is found in judicial as well as police file.”

Similarly, Mst. Shamim Mai (PW-16), wife of complainant-Bashir Ahmad, deposed during cross-examination that: -

“I marked my thumb impression upon my statement, which I got recorded before the I.O. At this stage, learned defence counsels have requested to provide copy of such statement but no such statement is found in judicial as well as police file.” It is necessary for the investigating officer to promptly record the statements of prosecution witnesses under u/s 161 of the Cr.P.C. to avoid creating a new story. Therefore, the non-availability of thumb-marked statements recorded by the I.O. of both prosecution witnesses, i.e., Muhammad Yar (PW-15) and Mst. Shamim Mai (PW-16) raises doubts about their statements made before the police. In a criminal case, particularly in a murder case, the First Information Report (FIR) is a vital and valuable piece of evidence that helps to appreciate the evidence presented at the trial. The objective of promptly lodging the FIR is to obtain the earliest information regarding the

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circumstances in which the crime was committed, including the names of the actual perpetrators and the roles they played, the weapons, if any, used, as well as the names of eyewitnesses if witnessed. The first information report is not an encyclopedia of the entire case, nor is it a substantive piece of evidence. It undoubtedly has value, but only to corroborate or contradict the maker. Delay in lodging FIR often results in embellishment, which is a creature of an afterthought. Because of the delay, FIR not only loses the advantage of spontaneity but also introduces the danger of a colored version of an exaggerated story. Zahoor Ismail (PW-17)-the investigating officer deposed during cross- examination that: -

“I inquired about the alleged occurrence from the present people including people of different vicinities of Kundal Khokhran, Kulachi, Chak No.8/3-L, Chak No.3/3-L & Mauza Sultan Bahoo.”

He (PW-17)-the investigating officer, also deposed during cross-examination that: - “I had not mentioned in unscaled site plan Exh.PU, the place at which accused facing the trial made firing. I had mentioned the points in unscaled site plan Exh.PU upon the pointation of complainant and witnesses. It is correct to suggest that neither complainant nor witnesses pointed out the place from which accused while standing made firing.”

From the prosecution evidence, it appears that Bashir Ahmad (PW- 14), the complainant, along with his family members, was not residing at the place of occurrence. As Bashir Ahmad (PW-14), the complainant, admitted during cross-examination that electricity was not installed at the place of occurrence; rather, charging lights were used. This suggests that he went elsewhere to charge the lights. Bashir Ahmad (PW-14), the complainant, deposed during cross-examination that: -

“Electricity connection is not installed at place of occurrence. Volunteered that charging lights were liting at the time and place of occurrence.

Charging lights were taken into possession by the police from the place of occurrence. I and

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Muhammad Yar attested the recovery memo of charging lights.”

Zahoor Ismail (PW-17)-the investigating officer deposed during cross- examination that: -

“I had not mentioned in unscaled site plan Exh.PU, any point at which torch light was hanged.”

Bashir Ahmad (PW-14)-the complainant also deposed during cross-examination that: - “I alongwith Safdar went to police for reporting the occurrence. Said Safdar is not my witness in instant criminal case. I got scribed the application for registration of criminal case from my neighbourer namely Faryad.”

Muhammad Yar (PW-15) deposed during cross-examination that: - “After hearing the lalkara, besides us, neighbourers namely Iqbal Dhol, Ghulam Abbas, Ahmad Ali Faqir & Sajjad Faqir also approach the place of occurrence. Above named neighbourers were also present at the arrival of police.”

The person who prepared the complaint has neither joined the investigation nor been cited as a prosecution witness. Bashir Ahmad (PW-14)- the complainant reported the incident at Adda Kassuana to Zahoor Ismail S.I. (PW-17)-the investigating officer on the way to the police station for reporting the incident, but before visiting the police station, the complainant got prepared an application for registration of criminal case from “neighborer, namely Faryad”. Non-mentioning this fact in the application/complaint (Ex.PN) indicates that Bashir Ahmad (PW-14)-the complainant had not stated the complete truth, and that the F.I.R. came into existence later, after due deliberations and consultations. The author of the complaint (Exh.PN) should state that he prepared the complaint under the instructions of the complainant. It is also not a case of the prosecution that Bashir Ahmad (PW-14)-the complainant asked “neighborer, namely Faryad,” to prepare a complaint, and accordingly the complaint was prepared by “neighborer, namely Faryad,”

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which was read over to the complainant and thereafter he (PW-14) put thump impression on the complaint (Ex. PN). The Hon’ble Supreme Court of Pakistan in the case of “Allah Bachaya and another v. The State” (PLD 2008 SC 349) held that: - “In the instant case, the FIR was not recorded at the police stations. It has been held time and again that FIRs which are not recorded at the police stations suffer from the inherent doubt that those were recorded at the spot after due deliberations.”

Even the complainant had not provided any explanation regarding the delay in lodging the report or the preparation of the complaint, as stated in both the complaint and his statement before the trial court. Therefore, in these circumstances, the possibility of consultations and deliberations on the part of the complainant cannot be ruled out. It also creates a dent in the prosecution's case.

12.As far as motive is concerned, it is a double-edged sword that cuts both sides/ways. Bashir Ahmad (PW-14)-the complainant deposed about the motive behind the occurrence during examination-in-chief that: - “The motive behind the occurrence was that Mst.

Sehrish Bibi was wife of accused Nasir who went to Dar-ul-Aman due to strained relations with her husband and in the days of occurrence she was out of Dar-ul-Aman and was residing in my house being my niece and Mst. Sehrish Bibi had filed a suit for dissolution of marriage against accused Nasir which was pending in the days of occurrence.

Due to the above said grudge, the accused persons in consultation with each other committed the murder of my son Irfan and Mst. Sehrish Bibi.”

Muhammad Yar (PW-15)-the eye witness deposed during examination-in-chief that: - “The motive behind the occurrence was that Mst.

Sehrish Bibi was wife of accused Nasir who went to Dar-ul-Aman due to strained relations with her husband and in the days of occurrence she was out of Dar-ul-Aman and was residing in the house of Bashir Ahmad being his niece and Mst. Sehrish

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Bibi had filed a suit for dissolution of marriage against accused Nasir which was pending in the days of occurrence. Due to the above said grudge, the accused persons in consultation with each other committed the murder of Irfan and Mst. Sehrish Bibi.”

Admittedly, during the investigation, no document was placed on the record by the prosecution that reveals whether Mst. Sehrish Bibi (the deceased) was lodged in Dar-ul-Aman, or when she returned from Dar-ul-Aman. The reasons for living with the complainant are that Mst. Sehrish Bibi (the deceased) filed a suit for dissolution of marriage, and Ex.PW and Ex.DC indicate that a suit for dissolution of marriage was filed on 25.05.2013 (the certified copies were issued on 03.07.2013 and 22.04.2019) before the learned Senior Civil Judge/Judge Family Court, Layyah. However, the same was dismissed due to non-deposit of the process fee by the learned Judge of the Family Court on 24.06.2013. It appears that when the incident occurred, no case between the parties was pending adjudication. As is evident from the above deposition, the prosecution has failed to prove the motive part of the occurrence, which is shrouded in mystery. Thus, the prosecution has failed to provide evidence of a clear motive.

13.As far as recovery of the weapon of offence, i.e., repeater 12-bore (P-10) alongwith five live cartridges (P-11/1-5) on the pointing of Ghulam Abbas (the appellant), on 09.01.2014 and positive report of Punjab Forensic Science Agency (Ex.PX) is concerned, as per the prosecution case, on 21.12.2013, Zahoor Ismail S.I. (PW-17)-the investigating officer inspected the place of occurrence and secured four empties of 12-bore gun (P8/1-4) through recovery memo (Ex.PR). On 06.01.2014, the appellant, Ghulam Abbas, was arrested. Upon the disclosure of the appellant-Ghulam Abbas, on 09.01.2014, repeater 12-bore (P-10) along with five live cartridges (P-11/1-5) were recovered by Zahoor Ismail, S.I. (PW-17)-the investigating officer who secured the same into possession through a recovery memo (Ex. PS). As per the Firearms & Tool marks Examination Report (Ex. PX), the weapon of offence, i.e., 12-bore repeater and four empty cartridges, were received in the office on the same day,

Crl. Appeal No.58516-J of 2020

i.e., 17.01.2014, which creates doubt about the recovery of the weapon of offence. So, the positive report of the Punjab Forensic Science Agency (Ex. PX) is of no consequence to the prosecution.

14.From the detailed discussion above, we are convinced that the prosecution has failed to establish its case. The truth was obscured by the debris, and a different story was constructed, perhaps to lure the appellant into trial for a serious offense. It is often said, “The more severe the crime, the higher the standard of proof.” We have conducted a thorough examination of the entire material and found compelling reasons, as stated above, to disagree with the conclusion reached by the learned Additional Sessions Judge. We also found that the prosecution has miserably failed to prove the accused's guilt beyond a reasonable doubt. According to the dictates of the law, the benefit of every doubt must be extended in favor of the accused. In the case of “Muhammad Akram v. The State” (2009 SCMR 230), it is held as under: -

“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.”.

15.We, therefore, accept in toto Criminal Appeal No.58516-J of 2020 filed by Ghulam Abbas, son of Haq Nawaz-the appellant; as a result, the conviction and sentence recorded by the trial court vide the judgment dated 10.10.2020 are set aside, and the appellant, namely Ghulam Abbas, is ordered to be acquitted of the charge in case F.I.R. No.398/2013 dated 21.12.2013, under Sections 302, 148, 149 P.P.C., at Police Station, Ahmad Pur Sial, District, Jhang. He (the appellant) is directed to be released forthwith if not required in any other case.

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16.Murder Reference No.116 of 2020, forwarded by the trial court for confirmation of the death sentence inflicted upon the convict, fails, which is answered in NEGATIVE.

(Abher Gul Khan) (Aalia Neelum) Judge Chief Justice

Approved for reporting

Judge Chief Justice

This judgment was dictated, pronounced on 21.04.2025, and signed after completion on

Ikram*