Liaqat Ali Khan Vs The State etc

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v Judgment Sheet

(Judicial Department)

Cr.A No.65-B/2023

Liaqat Ali Khan v.

The State, etc.

JUDGMENT

For appellant(s):

F'or respondent(s): Mr. Muhammad Rashid Khan Dhirma Khel Advocate

For State:

Date of hearing: 11.02.2025 ,t****

AURANGZEB. J.- By this single judgment, we proceed to decide the fate of this criminal appeal and Criminal Revision Petition # 14-812023, as both involve identical questions of law and fact, and arise out of a judgment dated 18.02.2023 (66the impugned judgment"), passed by the court of Additional Sessions Judge-IV, Bannu ('6the trial Court"), whereby, Liaqat Ali Khan ("the appellant") was convicted and sentenced:

i. under section 302(b)t34 PPC, to rigorous imprisonment for life, with the payment of Rs.1,000r000/- as compensation to the legal heirs of the deceased in terms of section 544-A Cr'P'C', or in default of its payment, to suffer 06 months of S'I';

(D.8.) Mr. Justice Khurshid Zaman Hon'ble Mr. Justice Aurangzeb

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ii. under section 324134 PPC, for attempting to commit qatl-i-amd of complainant Laiq Nawaz Khan, to 03 years of R.I., with a fine of Rs.50,0001-, or in default of its payment, to suffer 03 months of S.I.; and iii. under section 324134 PPC, for attempting to commit qatl-i-amd of eyewitness Haq Nawaz Khan, to 03 years of R.I., with a fine of Rs.50r0001-,or in default of its payment, to suffer 03 months of S.I.

The benefit under Section 382-B Cr.P.C. was extended to the appellant, and the sentences were ordered to run concurrently.

2.The brief facts leading to the filing of the captioned criminal appeal and the revision petition are that on 17.08.2020 at 10:20 AM, the complainant Laiq Nawaz (PW- l2), while present with the dead body of his son Malik Niaz Khan in the Emergency Ward of Civil Hospital, Bannu, reported the matter to Hamad Ullah Jan, S.I. (PW-01), to the effect that on the fateful day, at about 09:30 AM, he and his

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sons Malik Niaz Khan and Haq Nawaz Khan were present on the metalled road near his under construction shops. At about 09:30 AM, accused Liaqat Ali and Shah Khisroon, armed with Kalashnikovs, arrived and immediately started firing at them with their respective weapons, intending to commit their qatl-i-amd. As a result, Malik Niaz Khan was hit and seriously injured, while the complainant and Haq Nawaz luckity escaped unhurt. After the occurrence, the accused decamped from the spot. When attended by the complainant Ghafoor Zaman (D.B. ) Hon'ble Mr. Justice Dr. Khurshid lqbal Hon'ble Mr. Justice Aurangzeb

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Page-3-of26 v and Haq Nawaz, the injured Malik Niaz Khan succumbed to his injuries at the spot. The two, being empty handed, could do nothing. The motive for the occulrence is alleged to be a previous blood feud between the parties.

3.The report of the complainant was jotted down in the form of murasila Ex.PW-1/I. The injury sheet and inquest report of the deceased were prepared. The dead body of the deceased was sent to the mortuary under the escort of constable Shahzeb # 627L The murasila was sent to the police station through constable Asif # Tll2,leading to the registration of FIR # 640, dated 17.08.2020, under sections 302 I 324 I 34 PPC at the Cantt. police station in Bannu.

Simultaneously, the autopsy on the dead body was conducted, ffid the PM report Ex.PW-8/l was furnished and handed over by the doctor to the escorting police constable, who took it and handed over the same to the I.O.

4.After receiving a copy of the FIR Ex.PW-1/1, the I'O' proceeded to the spot, collected bloodstained earth from the place of the deceased and two crime empties of 7.62mm bore weapon from the place of the accused vide recovery memo Ex.PW-2/I. Subsequently, the collected bloodstained earth and the crime empties were sent to the FSL. The FSL reports Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

v Ex.PK and Ex.PK/l were received, indicating that the blood was of a human being and that the crime empties were fired from two differentT.62mm bore weapons.

5.After the completion of the investigation, the report (challan) under section 173 Cr.P.C. was submitted against the accused for proceedings under section 512 Cr.P.C., as they initially remained in hiding. However, the appellant was subsequently arrested and subjected to a full-fledged trial, where he was adjudged guilty by the trial Court, leading to his conviction and sentence, as aforesaid.

6.Now, the appellant, being aggrieved with his conviction and sentence, stands before this Court in this criminal appeal, seeking his acquittal, while the complainant, a

being aggrieved with the quantum of the awarded sentences, has filed the connected criminal revision petition, seeking their enhancement.

7.As noted above, both these matters involve identical questions of law and fact, therefore, they are being taken up for disposal through this single judgment.

8.We have heard with patience the leamed counsel for the parties as well as the learned A.A.G. appearing on behalf Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr, Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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of the State, and perused the record in light of the contentions made at the bar.

9.The fateful day of 17.08.2020 became one of the most tragic for the bereaved family in general and an unbearable solrow for the complainant in particular, where the deceased fell victim to a ruthless act of violence, allegedly gunned down by their opponents in a merciless bid to settle an unrelenting blood feud. The manner in which this harrowing incident unfolded has been narrated in detail in the FIR. It reveals that the complainant, the deceased, and the eyewitness were present in front of their under construction shops when, all of a sudden, the appellant, along with co- accused Shah Khisroon, armed with Kalashnikovs, allegedly arrived at the spot and immediately started firing at them, where the deceased was shot dead, while the complainant and the eyewitness narrowly escaped the shots fired. After perpetrating this ruthless crime, both the appellant and the co-accused decamped from the spot, and subsequently, went into hiding until the appellant was eventually arrested on t4.06.2021. He was brought before the Court of law, and after facing a full fledged trial, was adjudged guilty of committing murder and attempted murder.

Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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L0. Although, the trial Court meticulously examined the evidence on record before sentencing the appellant to the maximum of life imprisonment, however, it is imperative for this Court, as the appellate forum, to undertake a thorough and independent reappraisal of the entire evidence and meticulously scrutinize the collected material to determine as to whether the trial Court has rightly appreciated the facts and evidence or whether any interference is warranted, in order to uphold the principles ofjustice.

11.While carrying out this exercise, we a^re to see as to whether the complainant and the eyewitness were indeed present at the spot; whether they succeeded in establishing their presence through the physical circumstances of the case; whether they have come up with the whole truth;

whether their testimonies inspire confidence; whether the occulrence took place in the mode and manner as alleged and presented; whether the collected evidence supports their testimonies; whether those who actually perpetrated the crime included the appellant; and whether the prosecution has successfully established the guilt of the appellant beyond a reasonable doubt, if so, what the appropriate quantum of the sentence should be to meet the ends ofjustice' Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr Iqbal Hon'ble Mr. Justice Aurangzeb

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12.To begin with, we find that at the heart of the prosecution case lies the ocular account furnished by the complainant Laiq Nawaz Khan (PW-12) and the eyewitness Haq Nawa:zKhan (PW-13). The former was the father, while the latter was the real brother of the deceased. Therefore, they were closely related to the deceased and had a blood feud with the appellant. True, related witnesses cannot be termed as interested witnesses under all circumstances, but equally true, the testimonies of witnesses who are not only closely related to the deceased, but also have a strong motive against an accused must be appreciated with great care and caution to avoid any miscarriage of justice. Reliance is placed on Muhammad Imtiaz Baig v. State Q024 SCMR 11e1).

13.While appreciating the evidence with care and caution, we find that per the contents of the FIR, the complainant party had allegedly been engaged in a blood feud with the appellant, ffid at the time of the occurrence, the complainant, the eyewitness, and the deceased were empty handed. In our view, aparty engaged in a blood feud usually avoids roaming empty handed in the vicinity, save when there are compelling reasons for doing so. In the instant case, the complainant party acted otherwise. However, this alone is not sufficient to Ghatbor Zaman (D.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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create a reasonable doubt, as there might be some reasons that prompted the complainantparly to do so

14.We would, therefore, first examine what those compelling reasons were that prompted the complainant, the deceased, and the eyewifiress to jointly visit andlor remain present at the spot. In this context, it reveals that in the FIR, the complainant did not mention the very purpose for which he, along with the deceased and the eyewitness, was present at the spot. When cross-examined, he remained adamant in asserting that the purpose of their joint presence at the spot was that they were awaiting the arrival of a mechanic from Jaman Road for the installation of shutters to the shops. In reply to a question, the complainant also stated that he had mentioned this reason in the FIR. However, upon perusal, the contents of the FIR are found completely silent in this regard.

15.In the circumstances, it appears that the complainant first omitted to mention in the FIR the very purpose of their joint visit and/or presence at the spot, and after realizing this omission, changed his version by attempting to filI this lacuna during cross-examination. Here, it would be pertinent to mention that in criminal jurisprudence, when a witness deliberately changes his testimony to sffengthen the Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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prosecution case is known as dishonest improvement. It has been unequivocally laid down by the Superior Courts of the land numerous times that where a witness makes a dishonest improvement in his statement, it loses its significance. The latest being judgment in the case of Muhammad Jahangir v.

The State and others Q024 SCMR l74l) could well be relied upon. In this case, the Supreme Court unequivocally ruled:

This Court has held in a number of cases that where a witness makes dishonest improvements in his statement then it loses the significance in the eyes of law. In Muhammad Mansha's case, it has been ruled as follows:

Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses.

16.Furthermore, the mere fact that a mechanic was arriving for the alleged installation of shutters does not justiff that all the three were waiting at the spot for this petty Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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pu{pose. It follows that the said mechanic was not produced before the I.O. during the investigation.

17.Both the complainant and the eyewitness unanimously stated that the assailants arrived from the northern side. The site plan Ex.PW-14/1 reveals that a straight road comes from the northern side, on which the three were present at the fateful time. In cross-examination, both the complainant and the eyewitness conceded that a person coming from the northern side on the road would be visible from a sufficient distance. As the complainant party was entangled in a blood feud with the accused, who were visible from a sufficient distance the complainant party while present at the spot, neither the deceased, nor the complainant, nor the eyewitness noticed the assailants while they were coming on foot.

Similarly, the three made no effort for their escape, despite the fact that they were empty handed and seeing their opponents, the accused, coming while armed with sophisticated weapons. It is interesting to note that the complainant remained categoric in asserting that th.y remained present at their respective places and did not move to take any shelter in their guesthouse, situated close to the spot. This conduct on the part of the deceased, the Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid lqbal Hon'ble Mr. Justice Aurangzeb

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complainant, and the eyewitness goes against natural human behaviour

18.The prosecution case is that besides the deceased, the complainant and the eyewitness were also simultaneously fired atby two assailants with Kalashnikovs from a distance of around 05 paces. The firing continued for about 04 to 05 minutes, the complainant claimed, adding that they remained present at their respective places and did not move while the assailants were committing the gunshots at them.

Notwithstanding this, neither the complainant nor the eyewitness received even a single scratch, let alone firearm entry wounds. Instead, both of them were fortunate enough to escape unhurt, despite standing like statues to the gunshots. It is imperative to note that the I.O., in his statement, admitted it correct that the walls surrounding the complainant had not bullet marks. In the circumstances, neither the conduct displayed by the complainant and the eyewitness appeals to a prudent mind, nor was their escape unhurt possible in the attending circumstances. This particular aspect of the case pricks our minds to the core. The case of Mst. Arbab Khatoon v. Imam Bakhsh and 03 others (2021 MLD 1286 Balochistan) has somewhat similar facts and circumstances, where it was observed:

Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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The witnesses were within the firing range of the accused/respondents that too when allegedly the accused were armed with pistols and Kalashnikovs, which were automatic weapons. So escaping unhurt of the witnesses does not appeal to the prudent mind despite the fact that the distance between the deceased, the witnesses and the accused/respondents were given as 516 steps, from such a short distance how the witnesses remained safe.

19.It is a natural and common phenomenon that whoever is gunned down, his near and dear ones would surely help shift the body of the person gunned down to the hospital. In the instant case, the deceased was the son of the complainant and the real brother of the eyewitness. The two have claimed that the deceased was shot dead in their immediate presence.

When cross-examined, both of them stated that they did not touch or help shift the dead body of the deceased from the spot to the hospital. Instead, they added, those who did so were their co-villagers who attracted to the spot after the occurrence. When asked as to when exactly those co- villagers arrived at the spot, the eyewitness replied that they reached the spot 4 I 5 minutes after the occurrence. The witnesses also unanimously conceded that their hands or clothes were not smeared with the blood of the deceased. It is surprising that the deceased remained in a pool of blood for around 4 I 5 minutes while the complainant and the eyewitness did not touch him and opted to remain silent Ghafoor Zaman (D.B.) Hon'ble Mr Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

v spectators until the arrival of other co-villagers for his shifting to the hospital. This gives the impression that had the complainant and the eyewitness been present at the spot, they would have acted in accordance with natural and common phenomenon. However, the choice they exercised to the contrary suggests that they were not present at the spot.

20.It is also a natural and common phenomenon in this part of the country that whenever a person who has been gunned down is to be shifted to the hospital for a report and/or postmortem examination, a cot is arranged for the purpose. Notably, such a cot is ordinarily shifted in a Datsun pick or a similar vehicle. However, in the instant case, the eyewitness stated that the dead body of the deceased was shifted in a motorcar. Pertinently, there is no evidence to this effect. Thus, the fact that the dead body of the deceased was shifted to the hospital in a motorcar also remains unproved.

Here, it would not be out of place to mention that this aspect of the case has a direct nexus with the presence of the complainant and the eyewitness, as it is part of the post- occuffence circumstances, which the prosecution was required to establish through compelling evidence. The lack of any evidence casts doubt on their presence.

Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr Iqbal Hon'ble Mr. Justice Aurangzeb

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21.Here, it is imperative to note that the unnatural conduct of an eyewitness in criminal cases has repeatedly been considered a factor creating doubt in the prosecution case.

Reference, for instance, may be made to Muhammad Karim v. State (2022 MLD 1097 Peshawar), Muhammad Umar v.

State (2022 MLD 697 Lahore), and Abdul Basit v. State (2021 PCrLJ 348 Peshawar).

22.Hamad Ullah Jan S.I. (PW-01) jotted down the report of the complainant in the form of murasila Ex.PW-llt. According to this witness, it was about 09:00 / 09:30 AM when he received the information regarding the arrival of a dead body at the hospital. The witness remained adamant in asserting that he rushed to the hospital within 05 minutes after receiving the information. This implies that he reached the hospital at around 09:05 and/or 09:35 AM, as the case may be. In his statement, the complainant claimed that his report was jotted down soon after the scribe (PW-Q1) reached the hospital, although the eyewitness has contradicted this claim, stating that the scribe (PW-01) arrived at the hospital after 20 minutes. If we juxtapose the testimonies of these witnesses as aforesaid, then it can safely be concluded that the time of the report should have been either around 09:05 Ghafoor Zaman (D.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

v AM or 09:35 AM. However, this is not the case, as the FIR reveals the time of the report as 10:20 AM.

23.As per the stance of the scribe (PW-01), the dead body was identified before him by the eyewitness at around 10:20 AM. This stance was, however, contradicted by the eyewitness (PW-13), who stated that he identified the dead body before the police at about 1l:15 AM, i.e. almost an hour after the murasila was drafted.

24.We have also noticed that the Cantt. police station is just 3 / 4 kilometers away from the Civil Hospital, where the matter was reported. As per the record, the murasila was drafted at around 10:20 AM and was immediately transmitted to the police station through constable Asif Ullah # 7112. Nevertheless, the Muharrir Zahk Nawaz (PW-l1), who incorporated the murasila into the FIR Ex.PW-|/|, stated that he received the murasila at 10:20 AM and chalked out the FIR at l1:00 AM. In this view of the matter, if we are to accept the version put forward by the scribe that he drafted the murasila at 10:20 AM, then it was not possible for the Muharrir to have received it at 10:20 AM, therefore, in these circumstances, we must reject his version. Conversely, if we are to accept what the Muharrir stated that he received the Ghafoor Zaman (D.B.) 'ble Mr Dr.

Hon'ble Mr. Justice Aurangzeb

v murasila at 10:20 AM, then it was not possible for the scribe to have drafted it at 10:20 AM, thus, in these circumstances, we must reject his version as well. Regardless of the time when the murasila was received by the Muharrir, the distance from Civil Hospital to the Cantt. police station could easily be covered within 5 I l0 minutes. Therefore, if the murasila was drafted at around 10:20 AM, then the time for chalking out the FIR must have been around l0:40 AM. However, this is not the case, as the FIR reveals the time of its chalking as I 1:20 AM. It is imperative to note that the prosecution has not fumished any reason, let alone a plausible one, for the delay in chalking out the FIR. This explanation was important, so as to eliminate any possibility of waiting for the arrival of the complainant at the hospital for reporting the matter, especially when the scribe has categorically claimed that he reached the hospital at around 09:00 I 09:30 AM. In this state of affairs, the timelines disclosed by these witnesses do not align with the timelines of the events as reflected in the record.

25.The complainant remained categoric in asserting that soon after their arrival at the hospital, the scribe (PW-01) accompanied by a police contingent, reached the hospital.

Conversely, the eyewitness denied this, stating that the scribe' Chatbor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

v (PW-01) arrived at the hospital 20 to 25 minutes after their arrival. The eyewitness also admitted that he did not sign and/or thumb impress the murasila. He claimed that he and his father (the complainant) both pointed out the site plan to the I.O., while the I.O. denied this, stating that he prepared the site plan at the instance of the complainant only. The eyewitness further stated that he left the hospital at about I 1:30 AM, rushed to the spot, and after pointing out the site plan to the I.O., retumed to the hospital. In our view, leaving the hospital by the eyewitness while the postmortem of his real brother was underway does not appeal to a prudent mind. The eyewitness claimed that he received the dead body at around 0l:30 I 02:00 PM. However, this claim was falsified when the Medical Officer (PW-08) stated that he received the dead body for postmortem examination at 1 I :15 AM and completed it within 30 minutes, implying that the dead body was then handed over to the LRs of the deceased around 12:00 PM, not 01:30 or 02:00 PM.

26.We have also observed that the scribe (PW-01) mentioned in the injury sheet Ex.PW-1/Z that the deceased sustained only two injuries: one on the neck and the other on the right leg. The witness was specifically cross-examined on this particular aspect of the case, where he stated, "I have Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

v examined the entire body of the deceased and thereafter prepared the injury sheet Ex.PW-1/2, wherein I have mentione d 02 injuries, i.e. one on the neck of the deceased and the other on the right leg. Had I found any other injury on the person of the deceased, then I would have definitely mentioned the same in the injury sheet." A contradiction was revealed when this aspect of the case was examined in juxtaposition with the testimony provided by Dr. Aziz-ur' Rehman (PW-08), who conducted the autopsy on the dead body and furnished the PM report Ex.PW-8/1. According to the Doctor's testimony, the deceased received three firearm entry wounds: one on the left side of the temporal region, the second on the right back of the neck, and the third on the left front of the chest. He also conceded that he had gone through the inquest report and injury sheet of the deceased before conducting the autopsy. He admitted that only two wounds were mentioned in the irjury sheet. We are cognizant of the fact that the scribe was not a medical expert and, therefore, the mere fact that he did not mention the exact number of injuries the deceased had sustained is not fatal to the prosecution case. However, in the instant case, the very presence of the complainant and the eyewitness is doubtful, and the manner in which the report is alleged to have been (D.B.) Hon Mr Ghafoor Zaman Hon'ble Mr . Justice Aurangzeb

lodged seems dubious. Therefore, this discrepancy further adds to our anxiety.

27.We are cognizant of the fact that the testimony of eyewitnesses serves as direct evidence of a particular occurence and, therefore, the presence of an eyewitness is a decisive factor in establishing the guilt of an accused in criminal cases. However, when certain witnesses claim to have seen the incident, but fail to substantiate their presence at the spot during the trial, then it would not be safe to record or uphold a conviction. This is because the burden on part of the prosecution to prove the charge beyond a reasonable doubt would remain unfuIfiIled in such circumstances. In the instant case, the afore-noted discrepancies and contradictions not only create a reasonable doubt in the testimonies furnished by the complainant and the eyewitness, but also lead us to the conclusion that they have failed to establish their presence at the spot. Under the administration of criminal justice, it is a well settled principle that an eyewitness failing to prove his presence at the spot would entitle the accused to the benefit of the doubt. Reliance is placed on Kholid Mehmood and anolher Vs The State and another (2021SCMR 810), wherein it was held that:

Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

v All the circumstances highlighted above lead us to a definite conclusion that the presence of eye-witnesses at the place of occurrence at the relevant time is not above board and prosecution has failed to prove its case against the petitioner beyond reasonable doubt. Therefore, the instant jail petition is converted into an appeal and the same is hereby allowed. The conviction and sentence of appellant Khalid Mehmood is set aside. He is acquitted of the charge framed against him. He is behind the bars and is ordered to be released forthwith, if not required to be detained in any other case.

28.Similarly, in the case of Naiof Ali shah Vs the State (2021SCMR 736), it was ruled:

The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such toophole/lacuna in the prosecution case automatically goes in favour of an accused.

29.What never ceases to amaze us is the surface level claim of the complainant that he was simultaneously fired at by two assailants using Kalashnikovs for about 04 to 05 minutes, and despite the complainant avoiding moving or taking any shelter, neither did he receive any scratch, let alone a bullet, nor did the surrounding walls have any bullet marks as affirmed by the I.O. in his statement. Also, where have those bullets gone remains a begging question, and the prosecution failed to answer it satisfactorily. The peculiar Ghafoor Zaman (D.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

v facts and circumstances of the case suggest that the occurence has not take place in the mode and manner as alleged and prcsented by the prosecution. The consistent view of the Superior Courts emphasizes that in cases where significant inconsistencies and contradictions exist in the prosecution evidence, and it becomes evident that the incident did not occur as portrayed, then the benefit of doubt should be given to the accused. The cases of Nawab Khan v.

State (2024 YLR 457 Peshawar), Jawad v. The State and another (2020 YLR 1462), and Jalat Khan alias Jalo v. The State (2020 PCT.LJ 503) are, but few to refer in this regard.

Furthermore, the l{igh Court of Balochistan unequivocally affirmed and reiterated the effect of such discrepancy on the prosecution case in Rafaat Shah v. The State (2022 PCT.LJ Note 39 Balochistan). The operative part of the judgment reads as under:

The mode and manner of the occurrence itself by the prosecution is not appealable to the prudent mined, therefore, it was highly unsafe to rely on the statement of both these witnesses to maintain conviction and sentence ofthe accused on a capital charge'

30.Examining the medical evidence, we find that the autopsy on the dead body of the deceased was conducted by Dr. Aziz-r,]r-Rehman (PW-08) at the North west Hospital in Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

Peshawar, where the PM report Ex.PW-8/l was furnished.

Although, the PM report confirmed that the deceased met an unnatural death as a result of receiving firearm injuries, but this alone is not sufficient to sustain a conviction. The reason is that the value and status of medical evidence are always confirmatory in nature with regard to the seat and kind of injuries and the weapon used. However, when the direct or circumstantial evidence fails to establish the guilt of an accused, the medical evidence loses its weight for the simple reason that it cannot tell who caused those injuries to the victim. In this regard, reliance is placed on Naveed Asghar v.

State (PLD 2021 SC 600), wherein the Supreme Court ruled:

31.The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proyes only the factum that death of the deceased persons was caused by cuffing their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person. Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.

31.Similar is the case with the recovery of crime empties. Although, as per the FSL report Ex.PK, it is established that the two crime empties recovered from the spot were fired from different 7.62mm bore weapons, suggesting the involvement of more than one assailant, but this fact alone is not sufficient to hold the appellant guilty. The reason is that neither the crime empties nor the FSL report can conclusively establish who actually fired the shots when there is no recovery of weapon of offence.

32.Insofar as the abscondence is concerned, it revealed that undoubtedly, the appellant remained absconder for a considerable period without providing any explanation.

Flowever, it is imperative to state that abscondence alone does not serve as a conclusive proof of guilt. While it can be considered as a corroborative piece of evidence, its weight is contingent on the prior establishment of an accused person's guilt through compelling evidence. As ruled in the case of Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid lqbal Hon'ble Mr. Justice Aurangzeb

Rafaqat Ullah alias Paka v. Umar Fayaz (deceased) through brother Muhammad Riaz Q020 PCT.LJ 1361 Peshawar), when direct evidence falls short, abscondence as a piece of evidence becomes inconsequential. The present case is no exception to this principle. Reliance is also placed on Rafoqat Ali and another v. The State and others (2024 SCMR 1579), wherein the Supreme Court ruled:

9.According to the settled principles of Iaw, abscondence can never remedy the defects in the prosecution case, as it is not necessarily indicative of guilt. Moreover, abscondence is never sufficient by itself to prove the guilt. In the case of Shafgat Abbas v. The State, it has been held that in absence of any other incriminating piece of evidence mere absconsion does not entail pcnal consequences against accused or to expose him to the criminal liability.

33.After reappraising the entire evidence, it is abundantly clear that the prosecution case is riddled with material discrepancies, contradictions, and doubts. The complainant and the eyewitness failed to establish their presence at the spot through physical circumstances of the case. The testimonies they furnished did not inspire confidence. The mode and manner of the occurrence is also highly doubtful.

The prosecution case lacks any evidence that could reasonably link the appellant with the commission of the offence

Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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34.In these circumstances, we have reached the inescapable conclusion that the prosecution has been unable to prove the charge against the appellant through compelling evidence beyond a reasonable shadow of doubt. It is a well settled principle that not many doubts are required, rather a single doubt would suffice for acquittal, if it reasonably pricks the judicial mind as to the guilt of the accused. In this regard, reliance is placed on Muhammad Imtiaz Bai v. State (2024 SCMR 1191), Abdul Qadeer v. State Q024 SCMR 1146), and Sardaran Bibi v. State Q024 SCMR 1116).

Similarly, in Muhammad Riaz and others v. The State and others (2024 SCMR 1839), the Supreme Court ruled:

It is an established principle of law that to extend the benefit of the doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons as held by this Court in Daniel Boyd (Muslim Name Saifullah) and another v. The State (1992 SCMR 196); Gul Dast Khan v. The State (2009 SCMR 431); Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652); Abdul Jabbar and another v. The State (2019 SCMR 129); Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) and Muhammad Imran v. The State (2020 scMR 8s7).

35.Not being persuaded that there was any sound basis for adjudging the appellant guilty, we unanimously hold that the Ghafoor Zaman (D.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb

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trial Court failed to appreciate the evidence in its true perspective and thus erred in handing down the convictions and sentences to the appellant, resulting in a miscarriage of justice. This warrants the interference of this Court.

36.In the result, we allow this appeal, set aside the impugned judgment, and acquit the appellant of the charges by extending him the benefit of doubt. He shall be immediately released, with the caveat that his detention is not otherwise warranted.

37.As the appeal against conviction is allowed and the impugned judgment set aside, the connected revision petition seeking enhancement of the awarded sentences becomes infructuous and is accordingly dismissed.

38.The foregoing are the reasons for our short order of even date.

Announced

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Ghafoor Zaman (D.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal Hon'ble Mr. Justice Aurangzeb